i

This is Mr. Finney's first habeas corpus petition in this Court.

Art. 1, Sec. 13 of the Florida Constitution provides: "The writ of

habeas corpus shall be grantable of right, freely and without cost."

This petition for habeas corpus relief is being filed in order to

address substantial claims of error under the Fourth, Fifth, Sixth,

Eighth and Fourteenth Amendments to the United States Constitution,

claims demonstrating that Mr. Finney was deprived of the right to a

fair, reliable, and individualized sentencing proceeding and that the

proceedings resulting in his conviction and death sentences violated

fundamental constitutional imperatives.

Citations shall be as follows: The record on appeal concerning

the original court proceedings shall be referred to as "R. "

followed by the appropriate page number. The postconviction record

on appeal will be referred to as

"PC-R. " followed by the appropriate page number.

All other references will be self-explanatory or otherwise

explained herein.

ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION TO ENTERTAIN PETITION

AND GRANT HABEAS CORPUS RELIEF . . . . . . . . . . . . 2

GROUNDS FOR HABEAS CORPUS RELIEF . . . . . . . . . . . . . 3

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . 4

ISSUE I

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY

FAILING TO RAISE THE ISSUE OF THE TRIAL COURT ALLOWING, OVER

DEFENSE OBJECTION, THE ADMISSION INTO EVIDENCE OF CERTAIN

PHOTOGRAPHS OF THE VICTIM, SANDRA SUTHERLAND. . . . . 6

ISSUE II

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY

FAILING TO RAISE THE ISSUE OF THE TRIAL COURT ALLOWING RUTH

SUTHERLAND, THE MOTHER OF THE VICTIM, TO REMAIN IN THE COURTROOM

TO OBSERVE THE TRIAL AFTER SHE HAD COMPLETED HER TESTIMONY. 8

ISSUE III

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY

FAILING TO RAISE THE ISSUE OF THE TRIAL COURT NEVER RULING ON

TRIAL COUNSEL’S MOTION FOR SEQUESTRATION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ISSUE IV

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY

FAILING TO RAISE THE ISSUE OF THE TRIAL COURT EXCUSING TWO JURORS

FOR CAUSE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

ISSUE V

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY

FAILING TO RAISE THE ISSUE OF THE TRIAL COURT REFUSING TO INSTRUCT

THE JURY TO DISREGARD THE COMMENT MADE BY THE STATE ATTORNEY IN

CLOSING ARGUMENT THAT NO SEMEN WAS FOUND IN THE VICTIM EITHER

VAGINALLY OR ANALLY. . . . . . . . . . . . . . . . . . 13

ISSUE VI

MR. FINNEY’S EIGHTH AMENDMENT RIGHT AGAINST CRUEL AND UNUSUAL

PUNISHMENT WILL BE VIOLATED AS MR. FINNEY MAY BE INCOMPETENT AT

THE TIME OF EXECUTION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ISSUE VII

EXECUTION BY ELECTROCUTION IS CRUEL AND/OR UNUSUAL PUNISHMENT AND

VIOLATES Mr. Finney’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER OF THE

FLORIDA CONSTITUTION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. The Death Penalty Reform Act of 2000 is unconstitutional, so

. . . . . . . . . . . . . . . . . . . . . . . . 17

B. Death by electrocution is cruel and/or unusual punishment

which violates Petitioner’s rights under the Eighth and

Fourteenth Amendments of the United States Constitution and

Article I, section Seventeen of the Florida Constitution.

. . . . . . . . . . . . . . . . . . . . . . . . 20

ISSUE VIII

EXECUTION BY LETHAL INJECTION IS CRUEL AND/OR UNUSUAL PUNISHMENT

AND VIOLATES Mr. Finney’S RIGHTS UNDER THE EIGHTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER OF THE

FLORIDA CONSTITUTION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 27

iv

v

Baggett v. Wainwright,

229 So. 2d 239, 243 (Fla. 1969) . . . . . . . . . 2, 18

Barclay v. Wainwriqht,

444 So.2d 956, 959 (Fla. 1984) . . . . . . . . . . . . 1

Boykin v. Alabama,

395 U.S. 238 (1969) . . . . . . . . . . . . . . . . . 18

Brown v. Wainwright,

392 So. 2d 1327 (Fla. 1981) . . . . . . . . . . . . . 2

Bryant v. State,

Cf. Glass v. Louisiana,

471 U.S. 1080, 1084 (1985) . . . . . . . . . . . . . . 24

Chapman v. California,

87 S. Ct. 824 (1967) . . . . . . . . . . . . . . . . . 7

Cubie v. State,

345 So. 2d 1061 ( Fla. 1977) . . . . . . . . . . . . . 10

Dallas v. Wainwright,

175 So. 2d 785 (Fla. 1965) . . . . . . . . . . . . . . 3

DeShields v. State,

534 A.2d 630, 639 n.7 (Del. 1987) . . . . . . . . . . 18

Downs v. Dugger,

514 So. 2d 1069 (Fla. 1987) . . . . . . . . . . . . . 2

Estelle v. Gamble,

429 U.S. 97, 102 (1976) . . . . . . . . . . . . . . . 22

Farmer v. Brennan,

511 U.S. 825, 846 (1994) . . . . . . . . . . . . . . . 23

Finney v. State,

660 So. 2d 674 (Fla. 1995) . . . . . . . . . . . . 4, 14

vi

Fitzpatrick v. Wainwright,

490 So.2d 938, 940 (Fla. 1986) . . . . . . . . . . . . 1

Ford v. Wainwright,

477 U.S. 399,

106 S.Ct. 2595 (1986) . . . . . . . . . . . . . . . . 14

Franco v. State,

2001 WL 87826 (Fla. App. 4 Dist.) . . . . . . . . . . 12

Furman v. Georgia,

408 U.S. 238, 266 (1972) . . . . . . . . . . . . . . . . . 24

Gregg v. Georgia,

428 U.S. 153, 173 (1976) . . . . . . . . . . . . . . . 22

Herrera v. Collins,

506 U.S. 390,

113 S. Ct. 853,

122 L.Ed.2d 203 (1993) . . . . . . . . . . . . . . . . 15

Hudson v. McMillian,

503 U.S. 1, 16-17 (1992) . . . . . . . . . . . . . . . 23

In re Medley,

134 U.S. 160, 171, 172 (1890) . . . . . . . . . . . . 23

In RE: Provenzano,

Jones v. McAndrew,

No. 4:97-CV-103-RH at 34-35 (N.D. Fla. February 20, 1998) 24

Lamadline v. State,

303 So.2d 17 (Fla. 1990) . . . . . . . . . . . . . . . 19

Martin v. Wainwright,

497 So.2d 872 (1986) . . . . . . . . . . . . . . . . . 15

Martinez-Villareal v. Stewart,

118 S. Ct. 1618,

523 U.S. 637,

140 L.Ed.2d 849 (1998) . . . . . . . . . . . . . . . . 15

Maynard v. Cartwright,

486 U.S. 356 (1988) . . . . . . . . . . . . . . . . . 23

vii

Palmes v. Wainwright,

460 So. 2d 362 (Fla. 1984) . . . . . . . . . . . . . . 3

Poland v. Stewart,

41 F. Supp. 2d 1037 (D. Ariz 1999) . . . . . . . . . . 15

Ramirez v. State,

Randolph v. State,

463 So. 2d 186 (Fla. 1985) . . . . . . . . . . . . . . 9

Rhodes v. Chapman,

452 U.S. 337, 346 (1981) . . . . . . . . . . . . . . 22

Riley v. Wainwright,

517 So. 2d 656 (Fla. 1987) . . . . . . . . . . . . . . 2

Smith v. State,

400 So. 2d 956, 960 (Fla. 1981) . . . . . . . . . . . 2

State v. DiGuilio,

491 So. 2d 1129 (Fla. 1986) . . . . . . . . . . . . . 7

State v. Fitzpatrick,

684 P.2d 1112, 1113 (Mont. 1984) . . . . . . . . . . . 18

State v. Hernandez,

645 So.2d 432 (Fla. 1994) . . . . . . . . . . . . . . 19

Thomas v. State,

Trop v. Dulles,

356 U.S. 86, 101 (1958) . . . . . . . . . . . . . 23, 24

Vickers v. Stewart,

Washington v. Dowling,

109 So. 588 (Fla. 1926) . . . . . . . . . . . . . . . 17

Way v. Dugger,

568 So. 2d 1263 (Fla. 1990) . . . . . . . . . . . . . 2

Weems v. United States,

217 U.S. 349, 372 (1910) . . . . . . . . . . . . . . . 24

viii

Weems v. United States,

217 U.S. 349, 373 (1909) . . . . . . . . . . . . . . . 22

Wilkerson v. Utah,

99 U.S. 130, 135 (1879) . . . . . . . . . . . . . . . 24

Wilson v. Wainwright,

474 So. 2d 1163 (Fla. 1985) . . . . . . . . . . . . . 2

Wilson v. Wainwriqht,

474 So.2d 1162, 1164 (Fla. 1985) . . . . . . . . . . . 1

1

Significant errors which occurred at Petitioner' capital

trial and sentencing were not presented to this Court on direct

appeal due to the ineffective assistance of appellate counsel.

The issues, which appellate counsel neglected, demonstrate

that counsel's performance was deficient and that the

deficiencies prejudiced Petitioner. "[E]xtant legal

argument[s]." Fitzpatrick v. Wainwright, 490 So.2d 938, 940

(Fla. 1986). Neglecting to raise fundamental issues such as

those discussed herein "is far below the range of acceptable

appellate performance and must undermine confidence in the

fairness and correctness of the outcome." Wilson v. Wainwriqht,

474 So.2d 1162, 1164 (Fla. 1985). Individually and

"cumulatively," Barclay v. Wainwriqht, 444 So.2d 956, 959 (Fla.

1984), the claims appellate counsel omitted establish that

been undermined." Wilson, 474 So.2d at 1165 (emphasis in

original).

Additionally, this petition presents questions that were

ruled on in direct appeal, but should now be revisited in light

of subsequent case law or in order to correct error in the

appeal process that denied fundamental constitutional rights.

2

As this petition will demonstrate, Mr. Finney is entitled to

habeas relief.

This is an original action under Fla. R. App. P. 9.100(a). See

Art. 1, Sec. 13, Fla. Const. This Court has original jurisdiction

pursuant to Fla. R. App. P. 9.030(a)(3) and Article V, sec. 3(b)(9),

Fla. Const. The petition presents constitutional issues which

directly concern the judgment of this Court during the appellate

process and the legality of Mr. Finney's sentence of death.

Jurisdiction in this action lies in this Court, see, e.g.,

Smith v. State, 400 So. 2d 956, 960 (Fla. 1981), for the fundamental

constitutional errors challenged herein arise in the context of a

capital case in which this Court heard and denied Mr. Finney’ direct

appeal. See Wilson, 474 So. 2d at 1163; Baggett v. Wainwright, 229

So. 2d 239, 243 (Fla. 1969); cf. Brown v. Wainwright, 392 So. 2d 1327

(Fla. 1981). A petition for a writ of habeas corpus is the proper

means for Mr. Finney to raise the claims presented herein. See,

e.g., Way v. Dugger, 568 So. 2d 1263 (Fla. 1990); Downs v. Dugger,

514 So. 2d 1069 (Fla. 1987); Riley v. Wainwright, 517 So. 2d 656

(Fla. 1987); Wilson, 474 So. 2d at 1162.

3

This Court has the inherent power to do justice. The ends of

justice call on the Court to grant the relief sought in this case, as

the Court has done in similar cases in the past. The petition pleads

claims involving fundamental constitutional error. See Dallas v.

Wainwright, 175 So. 2d 785 (Fla. 1965); Palmes v. Wainwright, 460 So.

2d 362 (Fla. 1984). The Court's exercise of its habeas corpus

jurisdiction, and of its authority to correct constitutional errors

such as those herein pled, is warranted in this action. As the

petition shows, habeas corpus relief would be more than proper on the

basis of Mr. Finney's claims.

By his petition for a writ of habeas corpus, Mr. Finney asserts

that his capital conviction and sentence of death were obtained and

then affirmed during this Court's appellate review process in

violation of his rights as guaranteed by the Fourth, Fifth, Sixth,

Eighth and Fourteenth Amendments to the United State Constitution and

the corresponding provisions of the Florida Constitution.

4

Appellant was charged by indictment dated February 13, 1991,

with first degree murder, sexual battery and dealing in stolen

property (R.16-19). The sexual battery charge was nolle

prossed. (R.143).

The case proceeded to trial on September 14-18, 1992. The

jury returned verdicts of guilty on all counts (R-93). In the

penalty phase, appellant, over a defense objection was shackled

(R. 815). The jury by a vote of 9-3 recommended the death

penalty (R.98). On November 10, 1992, after denying as legally

insufficient appellant’s motion for disqualification, the trial

judge imposed a death sentence for the murder conviction, a

sentence of life imprisonment for the armed robbery conviction

and a fifteen-year sentence for the conviction of dealing in

stolen property (R.143).

On direct appeal, the Florida Supreme Court affirmed Mr.

Finney’s convictions and sentences, Finney v. State, 660 So. 2d

674 (Fla. 1995).

On April 16, 1999, Mr. Jack Crooks, then of Capital

Collateral Regional Counsel Middle, (CCRC-M), filed on behalf of

5

appellant a thirty-page final amended motion for postconviction

relief. This motion contained five claims.

The circuit court held a Huff hearing on appellant’s 3.850

motion on May 26, 1999, (PC-R. 272-297).

As a result of this Huff hearing, an Order was entered on

June 9, 1999, by the Circuit Court granting an evidentiary

hearing on only one of appellant’s five claims (PC-R. 190). The

court did not, in this ruling, delineate any reasons for denial

of the other four claims. Postconviction counsel Mr. Crooks,

then filed on May 4, 2000, a "Motion for Rehearing and To Grant

an Evidentiary Hearing" (PC-R. 212). The circuit court denied

his motion for rehearing on May 17, 2000.

On June 4, 2000, Mr. Crooks then filed a notice of appeal

of this order which denied his motion for rehearing (PC-R. 236

).

During the pendency of this appeal, Mr. Crooks left the

employ of CCRC-Middle and undersigned counsel assumed the case.

Undersigned counsel immediately filed a motion to remand

jurisdiction from this court to the circuit court so that it

could render a final order in which it actually explained its

reasons for the denial of appellant’s various claims. While

this motion was pending, the trial court, upon prodding from the

Office of State Attorney which was aware of this problem,

6

produced a written final order denying appellant’s claims on

October 31, 2000, nunc pro tunc to the date of the Huff Hearing,

May 26, 1999.

This Court denied appellant’s motion to remand the cause

back to the trial court and this petition for writ of habeas

corpus ensues, alongside the appeal of the denied postconviction

motion.

In the presentation of the state’s case against the

petitioner, the assistant state attorney introduced a series of

photographs of the victim into evidence. The nature of these

photographs was graphic. They depicted the ankles, wrists and

neck and face of the victim and, specifically, the ligature

marks and wounds left by their having been tied and bound.

Petitioner’s defense attorney objected to these photographs

being admitted.

Ms. Pittman: I would like the court to

consider whether it is necessary to

introduce all these photographs.

(R. 326)

7

The prosecution was permitted to introduce into evidence

numerous gruesome photographs that were inflammatory,

cumulative, and prejudicial, and admitted solely to inflame the

passion of the jurors based on impermissible factors.

The admission of these photographs permitted the state to

elicit the passion of the jurors by shocking them with graphic

pictures. The probative value of these photographs was not only

outweighed by their prejudice, but these photographs were

cumulative to each other. Their graphic content was further

emphasized through the testimony of witnesses and stressed by

the state in the penalty closing argument.

The prejudicial effect of the photographs undermined the

reliability of Mr. Finney's conviction and death sentence. The

photographs themselves did not independently establish any

material part of the state's case nor were they necessary to

corroborate a disputed fact. The trial court's error in

admitting these photographs cannot be considered harmless beyond

a reasonable doubt. Chapman v. California, 87 S. Ct. 824

(1967); State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

Use of these gruesome photographs, which were cumulative,

inflammatory, and appealed improperly to the jury's emotions,

denied Mr. Finney a fair trial in violation of Fifth, Sixth,

Eighth and Fourteenth Amendments to the United States

8

Constitution. Relief is proper and should be granted. To the

extent that trial or appellate counsel failed to raise this

issue, Mr. Finney was denied effective assistance of counsel.

An evidentiary hearing is warranted.

The mother of the victim, Ruth Sutherland, testified for the

state. At the time the state announced it was going to call her, it

also stated that it did not anticipate needing her for any type of

recall and requested of the Court that it allow her to remain in the

courtroom for the rest of the trial after her testimony (R. 242).

Petitioner’s counsel objected to this proposed arrangement, adding

unequivocally that it had no intention to call Ms. Sutherland as a

witness in their case (R. 243). The court overruled this objection and

allowed Mrs Sutherland, the mother of the victim, to remain in the

9

courtroom for the rest of the trial after her own testimony was

completed. Mrs. Sutherland was one of the first witnesses called by

the state so she was observed by the jury for nearly all of

petitioner’s trial.

It was ineffective assistance of appellate counsel not to have

raised this issue on appeal. Unquestionably, the prejudicial impact of

allowing the victim’s mother to remain in the courtroom during the

entire trial in full view of the jury, as they decided petitioner’s

culpability and punishment, deprived

the petitioner to his rights to a fair trial under the Fourteenth

Amendment to the United States Constitution.

This allowance by the trial court was especially egregious where

Mrs. Sutherland remained, as she did here, after she had testified to

the same jury who now had to perform its duties under her observation.

This jury unquestionably could feel nothing but undivided sympathy for

Mrs Sutherland. Her presence during their performance of the their

duties undermined the fairness of the trial.

Generally a trial judge may permit a witness to remain in the

courtroom even though a rule of sequestration and exclusion has been

invoked, but such discretion is subject to being abused and, if abused,

it must be decided whether sufficient harm

results to require a new trial. A trial court should not, as a matter

of course, permit witnesses to remain in the courtroom when they are

10

not on the stand, unless it is shown that it is necessary for the

witness to assist counsel in trial and that no prejudice will result to

the accused and a hearing to determine these matters has been conducted

particularly if the rule sequestering and excluding jurors has been

invoked. See Randolph v. State, 463 So. 2d 186 (Fla. 1985), Thomas v.

No inquiry under Thomas was ever conducted. In fact, all which

occurred involved the state announcing its request, the defense

objecting to same and the court overruling said objection. Had such

appropriate inquiry and analysis occurred, Mrs. Sutherland would not

have been allowed to remain, and this prejudice would not have inured

to petitioner’s cause thus compromising the integrity of his judgment

and sentence. Thomas involved the presence of a police witness, which

is roughly analogous to the case at bar. Both such witnesses, a police

officer and victim’s mother, are going to be highly sympathetic in the

eyes of a jury. If anything, Mrs. Sutherland would be more sympathetic

so, at the very least, the standard applied to police witnesses should

certainly, as matter of logic, apply to her. In Thomas, the Fourth DCA

made the following analysis which is very applicable in this case:

"While it may be helpful, even necessary in some

complex cases, to have a police witness to remain

in the courtroom during trial and thus be

excluded from the witness rule, we deem it proper

to advise the trial court to make a finding no

real prejudice would result from this procedure

if the accused objects after invoking this rule.

A hearing to determine if the police witness’

11

presence is necessary and indispensable and nonprejudicial

would be the way to accomplish a

proper finding. As was said in Richardson " ‘

the (trial) court’s discretion can be properly

excercised only after the court has made an

adequate inquiry into all of the surrounding

circumstances’."

Id. At 999

See Also Cubie v. State, 345 So. 2d 1061 ( Fla. 1977); Ramirez v.

12

At the beginning of petitioner’s trial, his counsel requested that

the jury be sequestered for the entire trial (R. 244).

The Court: All right the sequestration of the

jury you mean, during the course of the trial Ms.

Pittman?

Ms. Pittman: Yes Ma’am

(R. 244)

The court acknowledged the requests and intimated that it will

need to consult with the appropriate rule and presumably rule on the

request. An examination of the trial record reveals that the trial

court apparently never ruled on this request.

Absent a fair determination by the trial court on this motion, Mr.

Finney’s right to a fair and impartial jury, unaffected by extensive

media coverage, was impaired.

It was ineffective assistance of appellate counsel not to have

raised this glaring omission in the record for consideration on direct

appeal. To the extent that trial or appellate counsel failed to

raise this issue, Mr. Finney was denied effective assistance of

counsel. An evidentiary hearing is warranted.

13

The trial court struck without justification two jurors for casue.

One juror, herein designated as Juror J, was a female who had

initially made some statement, casting doubt on her ability to

discharge her prospective duties as a juror in a fair and impartial

manner. Juror J had been convicted of a felony and had been

incarcerated in Florida State Prison (R. 217).

Juror J, when questioned, had stated that she was treated fairly

by the state attorney and the sheriff and that, overall, her

experiences would not affect her deliberations as a juror.

Nonetheless, the court struck her for cause (R. 231).

Another Juror, who shall be designated as Jurors S , had expressed

an initial reservation about the death penalty. Yet even the state

attorney expressed the view that this juror had been rehabilitated on

that issue (R. 220). Again the court inexplicably struck Juror S for

cause (R. 221).

In assessing a jurors competence, the test is whether the juror

can lay aside any bias and render his verdict solely upon the evidence

presented and the instructions on the laws given to him by the court.

See Franco v. State, 2001 WL 87826 (Fla. App. 4 Dist.) Bryant v. State,

14

Both jurors clearly indicated that they could be fair and impartial. It

was an abuse of discretion on the part of the trial court to have

struck them for cause.

To the extent that trial or appellate counsel failed to

raise this issue, Mr. Finney was denied the effective assistance

of counsel. An evidentiary hearing is warranted.

The trial court denied petitioner’s motion for a new trial which

cited as error the trial court’s refusal to instruct the jury that the

state attorney, Ms Vogel, improperly argued that the evidence showed no

semen was found on the victim either anally or vaginally. This comment

came in the state’s rebuttal closing (R. 692-693). It was an attempt

by the state attorney to discount the theory put forth by the

petitioner’s counsel that the incident between he and the victim might

have had a passionate aspect.

This was a crucial misstatement by the state attorney and the

court’s declination to issue an appropriate instruction was a very

significant appellate issue, especially where one of the issues

rejected on the direct appeal was that the state had not presented

15

evidence inconsistent with the defendant’s hypothesis of innocence. See

Finney v. State, 660 So. 2d 674 (Fla. 1995).

There was no basis in the evidence for the statement of the state

attorney that no semen was found either vaginally or anally on the

victim. The trial court’s actions in refusing to instruct the

jury, as requested by petitioner’s counsel, warranted appellate

scrutiny.

To the extent that trial or appellate counsel failed to

raise this issue, Mr. Finney was denied the effective assistance

of counsel. An evidentiary hearing is warranted.

In accordance with Florida Rules of Criminal Procedure 3.811

and 3.812, a prisoner cannot be executed if "the person lacks

the mental capacity to understand the fact of the impending

death and the reason for it." This rule was enacted in response

to Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986).

Petitioner acknowledges that under Florida law, a claim of

incompetency to be executed cannot be asserted until a death

warrant has been issued. Further, petitioner acknowledges that

before a judicial review may be held in Florida, the defendant

16

must first submit his claim in accordance with Florida Statutes.

The only time a prisoner can legally raise the issue of his

sanity to be executed is after the Governor issues a death

warrant. Until the death warrant is signed, the issue is not

ripe. This is established under Florida law pursuant to Section

922.07, Florida Statutes (1985) and Martin v. Wainwright, 497

So.2d 872 (1986).

The same holding exists under federal law. Poland v.

Stewart, 41 F. Supp. 2d 1037 (D. Ariz 1999) (such claims truly

are not ripe unless a death warrant has been issued and an

execution date is pending); Martinez-Villareal v. Stewart, 118

S. Ct. 1618, 523 U.S. 637, 140 L.Ed.2d 849 (1998)(respondent’s

Ford claim was dismissed as premature, not because he had not

exhausted state remedies, but because his execution was not

imminent and therefore his competency to be executed could not

be determined at that time); Herrera v. Collins, 506 U.S. 390,

113 S. Ct. 853, 122 L.Ed.2d 203 (1993)(the issue of sanity [for

Ford claim] is properly considered in proximity to the

execution).

However, most recently, in In RE: Provenzano, No. 00-13193

stated:

17

Realizing that our decision in In Re:

forecloses us from granting him

authorization to file such a claim in a

second or successive petition, Provenzano

asks us to revisit that decision in light of

the Supreme Court’s subsequent decision in

Stewart v. Martinez-Villareal, 118 S.Ct.

1618 (1998). Under our prior panel

precedent rule, See United States v. Steele,

banc), we are bound to follow the Medina

decision. We would, of course, not only be

authorized but also required to depart from

Medina if an intervening Supreme Court

decision actually overruled or conflicted

with it.[citations omitted]

Stewart v. Martinez-Villareal does not

conflict with Medina’s holding that a

competency to be executed claim not raised

in the initial habeas petition is subject to

the strictures of 28 U.S.C. Sec 2244(b)(2),

and that such a claim cannot meet either of

the exceptions set out in that provision.

Id. at pages 2-3 of opinion

This claim is necessary at this stage because federal law

requires that, in order to preserve a competency to be executed

claim, the claim must be raised in the initial petition for

habeas corpus, and federal law requires all issues raised in a

federal habeas petition to be exhausted in state court. Hence,

petitioner raises this claim now.

Petitioner has been incarcerated since 1990. Statistics

show that incarceration over a long period of time will diminish

an individual’s mental capacity. Because petitioner may well be

18

incompetent at time of execution, his Eighth Amendment right

against cruel and unusual punishment will be violated.

For the last eight half years, petitioner has lived on

Florida’s death row, in a cell approximately 6 feet wide, 9

feet long, and 9.5 feet high. Petitioner is allowed yard time

only twice a week and showers every other day. The majority of

petitioner’ fellow death row inmates, the people with whom he

can routinely talk and associate, also suffer various forms of

mental illness and personality disorders. Petitioner’s already

fragile mental condition could only deteriorate under these

circumstances. His mental condition may well decline to the

point that he is incompetent to be executed.

The trial court erred in not granting an evidentiary hearing

so petitioner could prove that death by electrocution is cruel

and/or unusual punishment which violates his rights under the

Eighth and Fourteenth Amendments of the United States

Constitution and the corresponding provisions of the Florida

Constitution.

19

Though the Death Penalty Reform Act of 2000 purports to

change all death sentences to death by lethal injection, that

act violates ex post facto laws, the Eighth and Fourteenth

Amendments of the United States Constitution, and this Court’s

decision in Washington v. Dowling. Washington v. Dowling, 109

So. 588 (Fla. 1926). In Sims v. Florida, this Court held that

Washington v. Dowling is distinguishable from the current

legislation because the new legislation retains the option of

death by electrocution. In fact, the Florida legislation is

significantly different from the legislation this Court used to

support its holding. The statutes in the Montana, Mississippi,

Delaware, and Arizona cases that this Court cited changed the

method of execution from one that was arguably unconstitutional

to one that the courts found constitutional, but preserved the

old method of execution unless the person sentenced to die

534 A.2d 630, 639 n.7 (Del. 1987); Wetzel v. Wiggins, 85 So.2d

469, 471 ( Miss. 1956); State v. Fitzpatrick, 684 P.2d 1112,

1113 (Mont. 1984). The Florida statute however, changes all

executions to lethal injection, the new method of execution,

unless the person sentenced to die affirmatively chooses to have

the State use the electric chair to kill her.

20

Thus, when it enacted the Death Penalty Reform Act of 2000,

the legislature affirmatively took the choice other states left

to people sentenced to die, and chose for them death by lethal

injection. That action violated Petitioner’s Eighth and

Fourteenth Amendment rights under the United States

Constitution. In Boykin v. Alabama, the United States Supreme

Court held that an effective waiver of the federal

constitutional privilege against self incrimination, right to a

jury trial, and the right to confront one’s accusers require an

affirmative showing that the waiver was intelligent and

voluntary. Boykin v. Alabama, 395 U.S. 238 (1969). In Carnley

v. Cochran, the United States Supreme Court stated that the

waiver of the Sixth Amendment right to counsel must be an

affirmative waiver. Carnley v. Cochran, 369 U.S. 506 "Presuming

waiver from a silent record is impermissible. The record must

show, or there must be an allegation and evidence which show,

that an accused was offered counsel but intelligently and

understandingly rejected the offer. Anything less is not

waiver." Carnley v. Cochran, 369 U.S. 506, 516. Likewise, this

Court held that an accused may waive a jury recommendation

during the penalty phase only if the record supports a knowing

and voluntary waiver. State v. Hernandez, 645 So.2d 432 (Fla.

1994); Lamadline v. State, 303 So.2d 17 (Fla. 1990).

21

Accordingly, a person’s decision regarding the means of death

imposed by the state is protected by the Eighth Amendment and

the Fourteenth Amendment. The legislature cannot waive a

person’s choice to die by the means to which they were

sentenced. Such a waiver must be made by the person sentenced

to die, and it must be supported by a record that indicates an

intelligent and voluntary choice. The Death Penalty Reform Act

violates ex post facto law, Washington v. Dowling, and the

Eighth and Fourteenth Amendments. An evidentiary hearing and

3.850 relief are necessary.

Execution by judicial electrocution was mandated by Florida

Statute § 922.10. Hence, the sentence imposed by this Court is

unconstitutional because it subjects Petitioner to judicial

electrocution which constitutes cruel and unusual punishment.

The Constitution of the United States prohibits punishment

that is cruel and unusual. U.S. Const. Amend VIII. The Florida

Constitution bars any punishment that is either cruel or

unusual. Fl. Const. Art.I, § 17. Judicial electrocution is

constitutionally cruel under Florida and Federal Constitutional

22

standards because it involves the unnecessary and wanton

infliction of pain and is an affront to human dignity.

Petitioner can demonstrate that judicial electrocution violates

both the state and federal standards.

Experts can clearly establish by scientifically reliable

evidence that judicial electrocution results in extreme pain and

suffering. The electrocuted person remains conscious for a

significant period of time, during which his brain continues to

process pain signals. The pain results from burning flesh,

massive muscle contractions, and heat related distension of

internal organs.

Petitioner challenges the assumption that judicial

electrocution, if carried out properly, results in instantaneous

and painless death. His experts would have testified that

judicial electrocution always involves extreme pain and

suffering because the condemned person remains conscious for a

variable amount of time.

New circumstances have diminished the Eighth Amendment

stature of electrocution as a means of judicial execution. The

nation's evolving standards of decency have made death by

electrocution an increasingly rare punishment. Legislative

acceptance or rejection of a particular practice is the standard

judicial measure of unusualness. Death by judicial electrocution

23

is constitutionally unusual under Florida and Federal

Constitutional standards because only four of the thirty eight

states that authorize executions mandate execution by judicial

electrocution. In the past years five states have rejected the

practice (Connecticut, Indiana, New York, Pennsylvania, South

Carolina), and four states abolished electrocution as a means of

execution in the last decade (Virginia 1994, Ohio 1993,

Louisiana 1991, Pennsylvania 1990). Thus, electrocution has

become an unusual means of judicial execution.

The violation of petitioner’s constitutional rights which

results from prospective death by electrocution is not harmless

error. An evidentiary hearing was warranted. The trial court

erred in denying this claim without an evidentiary hearing.

The Eighth Amendment prohibits governmental imposition of

"cruel and unusual punishments," and bars "infliction of

unnecessary pain in the execution of the death sentence,"

Louisana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 91 L.

Ed. 422, 67 S. Ct. 374 (1947) (plurality opinion). "Punishments

are deemed cruel when they involve torture or a lingering death

24

. . ." In re Kemmler, 136 U.S. 436, 447, 34 L.Ed. 519, 10 S.

Ct. 930 (1890).

Despite the perception that lethal injection is a painless

and swift death, negligent or intentional errors have caused

persons executed intense suffering. Even when persons executed

by lethal injection are first paralyzed, no evidence clearly

demonstrates that they become unconscious to their pain and

impending death. Indeed, a significant number of the persons

executed by lethal injection in other states have suffered

extremely painful and prolonged deaths resulting in wanton and

unnecessary pain.

The Eighth Amendment "proscribes more than physically

barbarous punishments." Estelle v. Gamble, 429 U.S. 97, 102

(1976). It prohibits punishments that "involve the unnecessary

and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153,

173 (1976). "Among the ‘unnecessary and wanton’ inflictions of

pain are those that are ‘totally without penological

justification.’" Rhodes v. Chapman, 452 U.S. 337, 346 (1981)

103). The Eighth Amendment reaches "exercises of cruelty by

laws other than those which inflict bodily pain or mutilation."

Weems v. United States, 217 U.S. 349, 373 (1909). It forbids

laws subjecting a person to "circumstance[s] of degradation,"

J., concurring) ("As the Court makes clear, the Eighth Amendment

prohibits the unnecessary and wanton infliction of

‘pain,’ not ‘injury.’ . . . ‘Pain’ in its ordinary meaning

surely includes a notion of psychological harm. . . . I have

no doubt that to read a ‘physical pain’ or ‘physical injury’

requirement into the Eighth Amendment would be no less pernicious

and without foundation than the ‘significant injury’ requirement

we reject today.").

25

supplied). See In re Medley, 134 U.S. 160, 171, 172 (1890)

(seclusion in solitary confinement and prohibition on telling

condemned prisoner date and time of his execution are increased

solitary confinement induces "further terror," while "secrecy

[about the time of execution] must be accompanied by an immense

mental anxiety amounting to a great increase in punishment."

must also accord with ‘the dignity of man,’ which is the ‘basic

concept underlying the Eighth Amendment.’" Gregg, 428 U.S. at

173 (citing Trop , 356 U.S. at 100). The court must be

concerned with assuring that general procedures themselves are

adequately designed and maintained to avoid undue risks of

the inquiry is whether there exists an "objectively

intolerable risk of harm").

26

Even if petitioner is killed by lethal injection without

suffering severe pain, any mutilation that occurs such as

multiple, crude, excessive, unnecessary, gaping wounds, offends

notions of basic human dignity underlying the Eighth Amendment.

See Weems v. United States, 217 U.S. 349, 372 (1910) (noting

that Eighth Amendment prohibition on cruel and unusual

punishment bars punishments that "inflict [] bodily pain or

mutilation"); Wilkerson v. Utah, 99 U.S. 130, 135 (1879) (noting

constitutional bar on draw and quartering and on beheading).

See also Jones v. McAndrew, No. 4:97-CV-103-RH at 34-35 (N.D.

Fla. February 20, 1998) (holding that fire about head of

judicially electrocuted person implicates Eighth Amendment).

Cf. Glass v. Louisiana, 471 U.S. 1080, 1084 (1985) (Brennan and

Marshall, JJ., dissenting from denial of certiorari); Furman v.

Georgia, 408 U.S. 238, 266 (1972) (Brennan, J., concurring);

Jones v. State, 701 So.2d at 84, 88 (Kogan, C.J., Shaw and

Anstead, JJ. dissenting). Human dignity "is the basic concept

underlying the Eighth Amendment." Trop v. Dulles, 356 U.S. 86,

100 (1958) (plurality opinion).

been at least sixteen executions by lethal injection that have

been botched.

27

Studies show that lethal injection often results in terror,

pain and disgrace because the procedure required to kill by

lethal injection quickly and painlessly is often to technical

for the executioners to follow or willingly ignored. Professor

Radelet concluded, "Lethal injections are far more likely to be

already bungled one execution, resulting in unconstitutional

pain and mutilation.

Finally, Florida’s lethal injection procedure violates the

Supremacy Clause of the United States Constitution as the State

has not received an exemption from the Controlled Substances

Act, 21 U.S.C. §§ 812, 829, 353, and 21 C.F.R. § 329 & 1328, for

the prescription, possession, or administration of the drugs

used in the lethal injection.

Petitioner respectfully urges this Court to grant habeas

corpus relief.

28

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

has been furnished by United States Mail, first class postage

prepaid, to all counsel of record on this _____ day of February,

2001.

_________________________________

Joseph T. Hobson

Florida Bar No. 0507600

Assistant CCRC-Middle

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Attorney For Petitioner

29

I hereby certify that a true copy of the foregoing Petition

for Writ of Habeas Corpus, was generated in a Courier nonproportional,

_________________________________

Joseph T. Hobson

Florida Bar No. 0507600

Assistant CCRC-Middle

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Attorney For Petitioner

Copies furnished to:

The Honorable Chet A. Tharpe

Circuit Court Judge

Hillsborough County

Courthouse 317 Tower

801 East Kennedy Blvd.

Tampa, Florida 33602

Carol M. Dittmar

Assistant Attorney General

Office of the Attorney

General

Westwood Building, Seventh

Floor

2002 North Lois Avenue

Tampa, Florida 33607

Sharon Vollrath

Assistant State Attorney

Office of the State Attorney

Hillsborough County

Courthouse Annex

800 East Kennedy Boulevard

Tampa, Florida 33602

Charles Finney

DOC# 516349; P4226S

Union Correctional

Institution

Post Office Box 221

Raiford, Florida 32083

30