Florida - PETITIONER’S RENEWED EMERGENCY MOTION TO VACATE

http://www.angel-diaz.us/lethal/renewedvacate.htm

http://www.angel-diaz.us/lethal/Filed_08-22-2007_RenewedMotioinVacate.pdf

IN THE SUPREME COURT OF FLORIDA

IAN DECO LIGHTBOURNE,

Petitioner,

Case No. SC06-2391

v.

BILL McCOLLUM, ET AL.,

Respondents.

____________________________/

PETITIONER’S RENEWED EMERGENCY MOTION TO VACATE THE SCHEDULING
ORDER WHICH TERMINATES JURISDICTION IN THE CIRCUIT COURT

ON SEPTEMBER 10, 2007 BASED ON GOOD CAUSE

COMES NOW the Petitioner, IAN DECO LIGHTBOURNE, through
undersigned counsel, and hereby files the following Renewed
Motion to Vacate the Scheduling Order Based on Good Cause. In
support of this motion, Mr. Lightbourne submits the following
additional new facts:

1. On August 6, 2007, this Court issued an order stating
that the July 18, 2007 scheduling order will govern this
proceeding unless the parties show good cause no later than
August 10, 2007 as to why additional time is required to
conclude the proceedings and for the trial court to enter a
final order. On August 9, 2007, Mr. Lightbourne filed an
Emergency Motion to Vacate the Scheduling Order Which Terminates
Jurisdiction in the Circuit Court on September 10, 2007 Based on
Good Cause. On August 14, 2007, this Court denied Mr.
Lightbourne’s motion.


2. Mr. Lightbourne’s rights to due process and to
discovery to which he is entitled by court order will be
foreclosed, however, due to circumstances created by the circuit
court and the Petitioner. Therefore, because good cause exists
to vacate the scheduling order as it currently stands, Mr.
Lightbourne hereby files this Renewed Emergency Motion to Vacate
the Scheduling Order Based on Good Cause.
3. On August 9, 2007, the circuit court granted Mr.
Lightbourne’s Motion to View the Execution Chamber and Witness a
Walk-Through. On August 10, 2007, the State filed a Petition
for Review of Non-Final Order in this Court. On August 20, 2007
this Court denied Petitioner’s Petition for Review of Non-Final
Order, but subjected the denial of the petition to “the trial
court determining factual issues regarding whether and when a
walk-though is currently scheduled and the details of the view
of the death chamber and a walk trough.”
4. The circuit court judge is on vacation the week of
August 20, 2007, and is not scheduled to return to court until
August 28, 2007. (T. 7/16/07 at 90-91).1 In the interest of
resolving issues in a timely and expedited fashion, counsel for
Mr. Lightbourne contacted counsel for the Department of

1 Additionally, last week when undersigned counsel attempted to
schedule a hearing on outstanding motions, Judge Angel’s
Judicial Assistant reminded counsel that Judge Angel would be on
vacation from August 20, 2007 to the morning of August 28, 2007.


Corrections on August 21, 2007 in order to see whether the
details of arranging for counsel for Mr. Lightbourne to view the
execution chamber and witness a walk-through. Counsel for the
Department of Corrections took the position that there are in
fact details that require judicial determination before counsel
for Mr. Lightbourne may view the execution chamber and witness a
walk-through.
5. Despite the circuit court’s order granting Mr.
Lightbourne’s motion to allow his counsel to view the execution
chamber and view a walk-through, despite this Court’s order that
the circuit court order does not depart from the essential
requirements of the law, and despite this Court’s, the State’s,
and the Department of Corrections’ position that there are
factual determinations that need to be made by the circuit court
before counsel may view the execution chamber and witness a
walk-through, Mr. Lightbourne has no access to the circuit court
for this entire week.2 In fact, Mr. Lightbourne will not have an

2 Additionally, undersigned counsel made every effort to schedule
a hearing before the circuit court on outstanding motions last
week, the week of August 13, 2007, but due to Assistant Attorney
General Kenneth Nunnelley’s complete unavailability and
inability to arrange for substitute counsel to attend a hearing,
no hearing occurred. As a result, the circuit court denied all
but one of Mr. Lightbourne’s motions and public records demands
without the opportunity for Mr. Lightbourne to be heard. The
circuit court did, however, grant Mr. Lightbourne’s public
records demand to the Florida Department of Law Enforcement.
Those records are still outstanding.


opportunity to be heard by the circuit court until the first
morning of the final hearing in this case, August 28, 2007.
6. Petitioner has repeatedly stated that a walk-through
is not scheduled for the week of August 28, 2007. Because of
these assertions, Mr. Lightbourne was concerned that a walk-
through, or routine training exercise, would be conducted this
week, thereby preventing Mr. Lightbourne the opportunity to
attend a walk-through before the end of the relinquishment
period. In fact, Department of Corrections counsel confirmed
that a training exercise is scheduled for today, August 22,
2007, but could not tell undersigned if any additional walk-
throughs are scheduled.
7. As a direct result of this Court’s August 6, 2007
Order that the July 18, 2007 scheduling order would govern this
case, the circuit court moved the date of the hearing to August
28, 2007 and limited the defense presentation of witnesses to
two days at the State’s insistence. Therefore, due to the time
constraints, Mr. Lightbourne may not only be precluded from
attending a walk-through, but may well have to choose between
asking the circuit court to make factual determinations
regarding details of counsel’s viewing of the execution chamber
and witnessing of a walk-through or presenting evidence.3

3 Additionally, on the morning of August 28, 2007, before
commencing witness testimony, numerous motions filed by the


8. Due to circumstances beyond his control, Mr.
Lightbourne has been effectively denied access to the court for
two full weeks. This Court has arbitrarily placed Mr.
Lightbourne under the same time constraints as those in another,
completely unrelated case in which a death warrant has been
signed.4 Given these time constraints, the result of Mr.
Lightbourne’s denial of access to the court is severe prejudice
to Mr. Lightbourne’s rights to due process and a full and fair
hearing.
9. Due process requires a reasonable opportunity to be
heard in a full and fair adversarial proceeding. Cleveland Bd.
Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“essential
principle of due process is that a deprivation of life...be
preceded by notice and opportunity for hearing appropriate to
the nature of the case”)(emphasis added). Additional time for
the completion of the hearing on remand is required to conclude
the proceedings and for the trial court to enter a final order.
As a result of the expedited process and truncated briefing
schedule, Mr. Lightbourne is being denied his right to make the
record he feels is “necessary for the full and fair

State will need to be addressed including motions to quash
subpoenas and motions for protective orders.

4 A death warrant was signed for Mark Dean Schwab on July 18,
2007, and the execution is scheduled for November 15, 2007.


consideration of the merits of the case.” Taylor v. Crawford,
445 F. 3d 1095 (8th Cir. 2006).

14. As Mr. Lightbourne previously argued, there is simply
no basis for this case to be rushed along to the detriment of
Mr. Lightbourne’s due process rights and a sound reasoned
decision-making process. In Taylor v. Crawford, Mr. Taylor
alleged that the expedited and truncated hearing in the district
court denied him due process and argued that the State’s
interest in carrying out an execution was elevated above the his
interest in properly presenting his constitutional claim. The
Eighth Circuit agreed to remand the case for a full hearing on
the issues “[i]n view of the existing record, the importance of
the issue to this plaintiff as well as others, and the
likelihood of the recurrence of these identical issues. . .”
Taylor, 445 F. 3d at 1099.

15. Petitioner Lightbourne has the right to access to the
court, a full and fair hearing, due process, and to be free from
cruel and unusual punishment under the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution as well
as the corresponding provisions of the Florida Constitution.
Based on these interests, Mr. Lightbourne’s motion is based on
good faith and not for the purpose of delay.


WHEREFORE, Petitioner Lightbourne respectfully requests
that this Court grant this Motion and vacate the current
scheduling order and extend the relinquishment period.

Respectfully submitted,

____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

ANNA-LIISA NIXON

Staff Attorney

Florida Bar No. 0026283

OFFICE OF THE CAPITAL

COLLATERAL REGIONAL COUNSEL

101 N.E. 3rd Ave., Suite 400

Ft. Lauderdale, FL 33301

(954) 713-1284

COUNSEL FOR MR. LIGHTBOURNE


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U.S. Mail and facsimile to
Kenneth S. Nunnelley, Assistant Attorney General, 444 Seabreeze
Blvd, 5th Floor, Daytona Beach, FL 32118; Rock E. Hooker,
Assistant State Attorney, 19 NW Pine Avenue, Ocala, FL 34475;
Maximillian J. Changus, Assistant General Counsel, Florida
Department of Corrections, 2601 Blair Stone Road, Tallahassee,
FL 32399; and the Honorable Carven D. Angel, Circuit Court
Judge, Marion County Judicial Center, 110 NW First Avenue,
Ocala, FL 34475 on this ___ day of August, 2007.

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177