MOTION TO CONTINUE ORAL ARGUMENT AND TO HOLD PROCEEDINGS IN ABEYANCE

http://www.oranous.com/florida/IanLightbourne/motiontocontinue.htm

http://www.oranous.com/florida/IanLightbourne/Filed_10-08-2007_Motion_Continue.pdf

IN THE SUPREME COURT OF FLORIDA

IAN DECO LIGHTBOURNE,

Appellant,

Case No. SC06-2391

v.

BILL McCOLLUM, ET AL.,

Appellees.

____________________________/

MOTION TO CONTINUE ORAL ARGUMENT AND

TO HOLD PROCEEDINGS IN ABEYANCE

THE APPELLANT, IAN DECO LIGHTBOURNE, by and through undersigned counsel, hereby requests that this Court grant this Motion to Continue Oral Argument and to Hold Proceedings in Abeyance pending the United States Supreme Court’s decision in Baze v. Rees, ___ S.Ct.___, 2007 U.S. LEXIS 9066 (granting writ of certiorari). Mr. Lightbourne filed his Initial brief on September 19, 2007; the State filed its Answer Brief on September 26, 2007; and Mr. Lightbourne filed his Reply Brief on September 28, 2007. Oral argument is scheduled on October 11, 2007. This motion is being filed because the issues that the United States Supreme Court will address in Baze bear directly on the issues raised in Mr. Lightbourne’s Initial Brief.

1. The United States Supreme Court has granted certiorari following the denial of relief in a challenge to the State of Kentucky’s lethal injection procedures. Baze v. Rees,___ S.Ct.___, 2007 U.S. LEXIS 9066 (September 25, 2007). Baze will determine the threshold question as to what legal standard should be applied in evaluating an Eighth Amendment claim challenging the method of execution in a capital case. Baze presented the following questions for review:

I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?

II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?

III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?

(See Pet. for Writ of Certiorari, p. ii-iii).1 First and foremost, Mr. Baze is seeking a determination as to what standard should be applied in evaluating an Eighth Amendment challenge to a method of execution—a question that must necessarily be answered by this Court before Mr. Lightbourne’s case can be decided. But the questions presented also seek answers to specific and detailed questions concerning the utilization and application of the specific chemicals involved in carrying out executions by lethal injection—the very same chemicals which are utilized in Florida’s lethal injection protocol. Thus, the issues before the high court are much broader in scope than described by the State in its Answer Brief.

2. The procedural similarities between Baze and the instant case are important to how this Court chooses to proceed. Baze was litigated and appealed in the Kentucky state court system "without the constraints of an impending execution and with a fully developed record

^{1 On October 3, 2007, the United States Supreme Court issued an order specifying that "The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition." Order, Baze v. Rees, Case No. 07-5439 (U.S. Oct. 3, 2007). The fourth question presented by Petitioner Baze was "When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?" Pet. at ii-iii.}

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stemming from a 20-witness trial." (Pet. at ii). Mr. Lightbourne’s case is before this Court absent the exigencies of a pending warrant and following evidentiary development in the state circuit court.2

^{2 Mr. Lightbourne was denied the opportunity to fully develop the record due to the expedited and truncated schedule.}

^{3 The State of Texas was permitted to execute inmate Michael Wayne Richards but it is improper to deduce any legal significance from the United States Supreme Court's denial of a petition for writ of certiorari. See Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 912-920 (1950) (Frankfurter, J., respecting denial of certiorari). Texas executed Michael Richards on the evening of September 25, 2007, the day the U.S. Supreme Court granted certiorari in the Baze case, after defense attorneys failed to meet a deadline for filing an appeal on the lethal injection issue with the Texas Court of Criminal Appeals due to a computer crash. The U.S. Supreme Court then declined to issue a stay because the Texas court had not made a ruling on it. Ralph Blumenthal and Linda Greenhouse, Texas Planning New Execution Despite Ruling, N.Y. Times (Sept. 29, 2007).}

3. The United States Supreme Court granted a stay of execution to Texas inmate Carlton Turner, pending the disposition of the petition for writ of certiorari in that case. Turner v. Texas, __ S.Ct. __, Order No. 07A272 (September 27, 2007).3 A number of courts around the country have followed suit in response to the United States Supreme Court’s grant of certiorari in Baze by postponing proceedings. The Texas Court of Criminal Appeals has granted a stay of execution to Heliberto Chi, who was scheduled to be executed October 3, 2007. Order, In Re Heliberto Chi, Case No. WR-61,600-02 (Texas Ct. Crim. App. Oct. 2, 2007)(granting a stay of execution in order for Respondent to address the question of whether the current method of administering lethal injection in Texas constitutes cruel and unusual punishment such that the respondent would violate the Eighth Amendment if he complied with the Warrant of Execution). A federal court judge in Delaware issued an order postponing a trial regarding a lethal injection challenge due to the grant of certiorari in Baze. Jackson v. Danberg, Case No. 1:06-cv-00300-SLR (D. Del. Sept. 26, 2007)(order postponing trial). The Attorney General of Oklahoma asked the Oklahoma Court of Criminal Appeals to delay scheduling executions in Oklahoma until the

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^{4 In this appeal, Mr. Lightbourne challenged Judge Angel’s reliance on the reasoning expressed by the circuit court in the Schwab case which misconstrued the standard by stating: "the mere possibility of human error in the process of execution does not render the current protocol inadequate." Order dated 17 August 2007 in State v. Schwab, in the Circuit Court for the Eighteenth Judicial Circuit in and for Brevard County, Florida, Case No. 05-1991-7249-}

United States Supreme Court defines what constitutes cruel and unusual punishment in execution procedures, explaining that "[W]e think it prudent and in the state’s best interests to ask our court to delay the setting of an execution date until the Supreme Court issues its ruling." News Release, AG Asks Court to Delay Issuing Execution Date, Oct. 3, 2007, available at http://www.oag.state.ok.us/oagweb.nsf/news.html (last visited Oct. 4, 2007); see also Notice of Exhaustion of State and Federal Appeals, Terry Lyn Short v. State of Oklahoma, Case No. D-97-540 (Okla. Ct. Crim. App., Oct. 3, 2007). Although the Fourth Circuit Court of Appeals has declined to stay the execution of Virginia inmate Christopher Scott Emmett, the United States Supreme Court has yet to consider the matter. Emmett v. Johnson, Case No. 07-18 (4th Cir. Oct. 5, 2007).

4. The substantive questions—including the threshold issue—to be decided in Mr. Lightbourne’s case are virtually indistinguishable from the issues presented in the Kentucky case. As Petitioner Baze aptly pointed out, the United States Supreme Court has left the lower courts with no guidance as to the legal standard in an Eighth Amendment challenge to lethal injection. Mr. Lightbourne argued to the lower court that Florida’s August 1, 2007 protocols for carrying out lethal injection presented a foreseeable risk of gratuitous and unnecessary pain in violation of the Eighth Amendment. (R. 6498). He further explained how the events of the Diaz execution presented evidence of deliberate indifference on the part of DOC officials and call the reasoning underlying this Court’s decision in Sims v. State, 753 So. 2d 66 (Fla. 2000), into question.4 The State accused Mr. Lightbourne of "blending" the legal standards to be applied.

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AXXX. Initial Brief at 70. Mr. Lightbourne also questioned the lower court’s focus on the fact that "a risk of accident" would not render procedures unconstitutional in light of the fact that this challenge is not simply about a "risk of accident." Initial Brief at 62.

certiorari should be granted, in part, because "lower courts are struggling - - with little to no mass of legal challenges arguing that a particular aspect of a method of execution is cruel and Regardless of the argument in Mr. Lightbourne’s Initial Brief, any quibbling over the confusion of the standard for assessing an Eighth Amendment claim is moot. The U.S. Supreme Court has granted certiorari to determine precisely this issue. The petitioner in Baze v. Rees asserted that guidance from this Court since 1878 - - to determine the legal standard applicable to the sudden unusual punishment." The fact that the standard by which courts should address Eighth Amendment method of execution claims is up in the air makes argument on the issues Mr. Lightbourne has raised in his Initial Brief difficult at best.

5. Furthermore, Mr. Lightbourne first raised an Eighth Amendment challenge to the use of the three-drug cocktail employed by the State of Florida in his Rule 3.851 motion filed on February 27, 2006. Lightbourne v. State, Circuit Court for the Fifth Judicial Circuit, Case No. 81-170-CF. Mr. Lightbourne specifically set out the risks associated with the use of each of the drugs and included a challenge to the unnecessary use of the paralytic agent, pancuronium bromide, as presenting a substantial risk of agonizing pain. (Rule 3.851 motion, p. 18-25.) There was testimony and evidence concerning the use of the three drugs presented at the evidentiary hearing. Florida employs the use of the same three-drug cocktail that Kentucky employs in carrying out executions by lethal injection. The issues currently before this Court fall squarely into the questions presented within the four corners of the petition for certiorari.

6. Mr. Lightbourne submits that the best course of action here is to hold these proceedings in abeyance pending the United State Supreme Court’s resolution of the questions

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presented in Baze v. Rees, ___ S.Ct.___, 2007 U.S. LEXIS 9066 (September 25, 2007). See Bottoson v. Moore, 833 So. 2d 693, 695 (Fla. 2002)("The United States Supreme Court in February 2002 stayed Bottoson’s execution and placed the present case in abeyance while it decided Ring."), citing Bottoson v. Florida, 534 U.S. 1121 (2002); King v. Moore, 831 So. 2d 143 (Fla. 2002)(same), citing King v. Florida, 534 U.S. 1118 (2002). Just as the United States Supreme Court’s opinion in Ring v. Arizona, 536 U.S. 584 (2002), had potential implications for Florida’s entire death penalty scheme, the Court’s decision in Baze may have significant implications for the constitutionality of Florida’s method of lethal injection, and will certainly affect how this Court addresses Eighth Amendment method of execution claims. In short, the ultimate decision in Baze will affect the issues raised in Mr. Lightbourne’s Initial Brief. Mr. Lightbourne—and this Court—should be afforded the opportunity to meaningfully, deliberately, and reflectively analyze the United States Supreme Court’s decision in Baze and its effect on Mr. Lightbourne’s case before argument is heard on the case and before a decision is reached. After the United States Supreme Court issued its opinion in Ring, this Court further stayed Mr. Bottoson’s execution date in order to afford an opportunity for appropriate consideration of the multiple important issues generated by the decision. Bottoson v. Moore, 824 So. 2d 115 (Fla. 2002). Unlike Bottoson and King, Mr. Lightbourne is not under an active death warrant. There is no compelling reason for this Court to hear argument and decide Mr. Lightbourne’s appeal while Baze is pending before the United States Supreme Court. Any argument or decision regarding Mr. Lightbourne’s claims would be premature.

7. Mr. Lightbourne maintains that he was denied a full and fair hearing on his claim that Florida’s lethal injection procedures are unconstitutional (Initial Brief at 14-29), and still seeks an evidentiary hearing that comports with the requirements of due process.

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WHEREFORE, Mr. Lightbourne respectfully requests that this Honorable Court grant his motion to hold the proceedings before this Court in abeyance pending the United States Supreme Court’s resolution of the questions presented in Baze v. Rees, ___ S.Ct.___, 2007 U.S. LEXIS 9066 (September 25, 2007).

Respectfully submitted,

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

ROSEANNE ECKERT

Assistant CCRC

Florida Bar No. 082491

ANNA-LIISA NIXON

Staff Attorney

Florida Bar No. 26283

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

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail and e-mail to Kenneth S. Nunnelley, Assistant Attorney General, 444 Seabreeze Blvd, 5th Floor, Daytona Beach, FL 32118, and Rock E. Hooker, Assistant State Attorney, 19 NW Pine Avenue, Ocala, FL 34475 on this 5th day of October, 2007.

_____________________________

SUZANNE MYERS KEFFER

Assistant CCRC

Florida Bar No. 0150177

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