UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
MARK DEAN SCHWAB,
v. CASE NO. 6:07-cv-1798-Orl-22KRS
JAMES R. MCDONOUGH, et al,
This case is before the Court on the emergency motion to stay execution (Doc. No.
2, filed November 13, 2007) filed by Mark Dean Schwab, a death-sentenced prisoner in state
I. PROCEDURAL BACKGROUND
On May 14, 1991, Plaintiff was charged by indictment with one count of first-degree
murder, one count of sexual battery upon a child, and one count of kidnaping a child under
thirteen. After a bench trial, Plaintiff was found guilty as charged on all counts in the
indictment. Plaintiff waived his right to a jury at the penalty phase proceedings, and the
state trial judge sentenced him to death on the first degree murder count, followed by
consecutive life sentences on the other two counts. The Florida Supreme Court affirmed
the convictions and sentences, Schwab v. State, 636 So. 2d 3 (Fla. 1994), and the United States
Supreme Court denied his petition for writ of certiorari. Schwab v. Florida, 513 U.S. 950
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Plaintiff filed a motion for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850 raising a variety of claims. The state trial court ultimately denied
each of the claims, and the Florida Supreme Court affirmed the denial. Schwab v. State, 814
So. 2d 402 (Fla. 2002). In the same order, the Florida Supreme Court also denied Plaintiff’s
Petition for Writ of Habeas Corpus. Id.
Plaintiff filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254,
which this Court denied. See Case Number 6:03-cv-536-Orl-22JGG, Doc. Nos. 1 & 29. The
Eleventh Circuit Court of Appeals affirmed the denial, Schwab v. Crosby, 451 F.3d 1308 (11th
Cir. 2006), and the United States Supreme Court denied the petition for writ of certiorari,
Schwab v. McDonough, 127 S.Ct. 1126 (2007).
On July 18, 2007, the Governor signed a death warrant scheduling Plaintiff’s
execution for 6:00 p.m., November 15, 2007.
On August 15, 2007, Plaintiff filed a motion to vacate sentence or stay execution
pursuant to Florida Rule of Criminal Procedure 3.851(c)(2) raising two claims: (1) Florida’s
lethal injection method of execution violated the Eighth and Fourteenth Amendments and
corresponding provisions of the Florida Constitution, and (2) newly discovered evidence
revealed that Mr. Schwab suffers from neurological brain impairment which makes his
sentence of death constitutionally unreliable. The state trial court denied relief as to both
claims without conducting an evidentiary hearing, and the Florida Supreme Court affirmed
the denial. Schwab v. State, No. SC07-1603, 2007 WL 3196523 (Fla. November 1, 2007).
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Plaintiff subsequently sought permission from the Eleventh Circuit Court of
Appeals to file a second or successive federal habeas corpus petition. The only claim
Plaintiff sought to raise in his second petition involved the constitutionality of Florida’s
lethal injection procedures and protocols. The application was denied. In re: Mark Dean
Schwab, No. 07-15258, 2007 WL 3317601 (11th Cir. November 9, 2007).
Plaintiff next filed a successive Rule 3.851 motion to vacate sentence or stay
execution in the state trial court raising two claims of newly discovered evidence, one
regarding the testimony of the State’s expert at the penalty phase and one challenging
Florida’s method of lethal injection based on notes from mock execution training conducted
in July of 2007. An evidentiary hearing was conducted on November 13, 2007, after which
the state trial judge denied Plaintiff’s motion.
On November 13, 2007, Plaintiff initiated the instant action by filing a civil rights
complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1) and an emergency motion to stay
execution (Doc. No. 2).
II. SUMMARY OF THE COMPLAINT
At this time, the Court is only considering the merits of the emergency motion to
stay; however, a review of the allegations in the complaint is necessary for a complete
analysis. In the complaint, Plaintiff seeks declaratory and injunctive relief to prevent
Defendants from using Florida’s current lethal injection procedures to execute him.
According to Plaintiff, the current protocols violate his right to be free from cruel and
unusual punishment under the Eighth and Fourteenth Amendments. Plaintiff’s challenge
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is multi-faceted: first, he argues that the combination of drugs unlawfully risks subjecting
him to an excruciatingly painful and tortuous death; second, he contends that the
anesthesia procedures lack medically necessary safeguards; third, he avers that the existing
procedures do not require personnel who have minimum qualifications or expertise; and
fourth, he asserts that Defendants do not have appropriate procedures or equipment to
deal with emergencies.
III. MERITS OF THE EMERGENCY MOTION TO STAY EXECUTION
“Filing an action that can proceed under § 1983 does not entitle the complainant to
an order staying an execution as a matter of course.” Hill v. McDonough, 126 S.Ct. 2096,
2104 (2006). “[A] stay of execution is an equitable remedy; [i]t is not available as a matter
of right.” Id. In considering whether to grant a stay, a court should consider the following
factors: (1) “the State’s strong interest in enforcing its criminal judgments without undue
interference from the federal courts”; (2) whether the inmate has satisfied “all of the
requirements for a stay, including a showing of a significant possibility of success on the
merits”; (3) the “strong equitable presumption” against issuing a stay when the inmate
could have brought the claim earlier and thereby avoided the need for a stay; and (4)
protecting the State from “dilatory or speculative suits.” Id.
Applying these criteria to the present application, the Court concludes that a stay
is warranted. The overriding consideration in this case is that some of the very same issues
Plaintiff presents here are currently pending for decision before the Supreme Court of the
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United States. In the case of Baze v. Rees, 128 S.Ct. 372 (Oct. 3, 2007), the Supreme Court
granted review to consider the following questions:
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
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
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
Petition for Writ of Cert. at ii-iii, Baze v. Rees, No. 07-5439 (U.S. July 11, 2007), 2007 WL
As is evident from this statement of the issues, not only is the Supreme Court poised
to clarify the standard by which the Eighth Amendment is to be interpreted in death cases,
but the high court also has before it the constitutionality of using the very chemicals
employed in this State as a means of carrying out the death sentence and challenged in the
instant action. Simply put, the Court would not issue this stay absent the Supreme Court’s
grant of certiorari in Baze. However, the fact that the Supreme Court has elected to grant
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1The Court notes that since the granting of certiorari in the Baze case, the United
States Supreme Court has stayed at least two other cases involving challenges to the lethal
injection process. See Berry v. Epps, No. 07-7348 (07A367), 2007 WL 3156229 (Oct. 30, 2007)
(granting stay of execution after Court of Appeals denied the motion for stay as dilatory);
Emmett v. Johnson, No. 07A304, 2007 WL 3018923 (Oct. 17, 2007) (granting stay of execution
pending Court of Appeals’ final disposition of appeal of summary judgment in favor of
defendants in §1983 action challenging the lethal injection process). In addition, several
lower courts across the nation have similarly granted stays. See Nooner v. Norris, No.
5:06CV00110 SWW, 2007 WL 3232083 (E.D. Ark. October 30, 2007) (granting stay of
execution in § 1983 action challenging the State’s protocol for lethal injections); In re:
Heliberto Chi, No. WR-61600-03 (Tex. Ct. Crim. App. Oct. 2, 2007) (granting stay of
execution to consider whether the current method of lethal injection in Texas violates the
Eighth Amendment). Plaintiff cites to a number of other unpublished cases, but has failed
to attach copies of the opinions. Given the short timeframe afforded this Court to resolve
this matter, Plaintiff’s failure to provide copies of the opinions precludes this Court from
considering such cases.
review in that case suggests that Plaintiff faces the prospect of a significant possibility of
success on the merits of his claims.1
Considering the other relevant factors, the State of Florida has an unquestionable
interest in proceeding with Plaintiff’s execution without undue interference. However, the
key word is “undue.” Postponing the execution process for a relatively short time until
Baze is decided does not constitute impermissible interference with Florida’s execution
process. Turning to the subject of Plaintiff’s diligence, certainly an argument can be made
that he delayed too long in bringing this suit. Ordinarily, that consideration alone might
warrant denial of a stay. However, the Court cannot consider this case in a vacuum, and
the fact that Baze is now before the Supreme Court is an extraordinary circumstance that
overmatches considerations of delay, at least insofar as a stay is concerned. This feature
sets this case apart from others in which the Court of Appeals for the Eleventh Circuit has
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2The United States Supreme Court recently granted a stay of execution in a case that
was rejected by the Court of Appeals as constituting an unjustifiable delay. See Berry v.
Epps, No. 07-7348 (07A367), 2007 WL 3156229 (Oct. 30, 2007). On October 26, 2007, four
days before Berry’s execution, the Fifth Circuit Court of Appeals rejected his reliance on
Baze and denied his request for a stay as dilatory. On the day of the scheduled execution,
the Supreme Court granted a stay of Berry’s execution.
3On June 12, 2006, the Supreme Court of the United States clarified in Hill that an
inmate’s constitutional challenge to the manner of execution must be brought pursuant to
§ 1983, rather than via the mechanism of habeas corpus. Hill, 126 S.Ct. at 2101-04. Since
Hill issued, the Eleventh Circuit has considered a number of appeals involving § 1983
challenges in death cases. Siebert v. Allen, No. 07-14956, 2007 WL 3244633 (11th Cir. Nov.
5, 2007); Arthur v. King, 500 F.3d 1335 (11th Cir. 2007), pet. for cert. filed, 76 USLW 3169 (Sept.
25, 2007) (No. 07-397); Arthur v. Allen, No. 07-13929, 2007 WL 2709942 (11th Cir. Sept. 17,
2007), pet. for cert. filed, 76 USLW 3169 (Sept. 22, 2007) (No. 07-395); Williams v. Allen, 496
F.3d 1210 (11th Cir.), cert. dismissed, 128 S.Ct. 370 (2007); Grayson v. Allen, 491 F.3d 1318
upheld dismissal of an execution challenge based on unjustifiable delay. See, e.g., Arthur
v. King, 500 F.3d 1335 (11th Cir. Sept. 21, 2007), pet. for cert. filed, 76 USLW 3169 (Sept. 25,
2007) (No. 07-397).2 Finally, the fact that the Supreme Court has granted review to consider
some of the very same issues Plaintiff raises here belies the notion that his claims are
Considering the totality of the circumstances, then, the Court concludes that
Plaintiff’s execution must be stayed for a relatively short time until the Supreme Court
renders its decision in Baze. The irreversible consequences of execution compel this result.
Again, the question here is not whether Plaintiff’s conviction and sentence should stand
(after all, this Court is among those that have upheld his convictions and death sentence),
or whether Florida can execute him; rather, insofar as a stay is concerned, it is whether the
State should be allowed to do so before the Supreme Court decides Baze.3
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(11th Cir.), cert. denied, 128 S.Ct. 6 (2007); Jones v. Allen, 485 F.3d 635 (11th Cir.), cert. denied,
127 S.Ct. 2160 (2007); Diaz v. McDonough, 472 F.3d 849 (11th Cir.), cert. denied, 127 S.Ct. 851
(2006); Hutcherson v. Riley, 468 F.3d 750 (11th Cir.), cert. denied, 127 S.Ct. 467 (2006);
Rutherford v. McDonough, 466 F.3d 970, reh’g denied, 467 F.3d 1297 (11th Cir.), cert. denied, 127
S.Ct. 465 (2006); Hill v. McDonough, 464 F.3d 1256 (11th Cir.), cert. denied 127 S.Ct. 465 (2006).
Based on the quick review permitted since the filing of this case, it appears that in every
decision but Siebert, the Eleventh Circuit affirmed the denial of relief. However, all of the
decisions affirming the denial of relief predated the Supreme Court’s grant of certiorari in
Baze. In Siebert, the appellate court reversed the lower court’s denial of a stay on the basis
that the inmate had shown a substantial likelihood of success on his as-applied challenge
to Alabama’s lethal injection procedure. However, the Eleventh Circuit did not cite Baze
in Siebert. In any event, Siebert is factually distinguishable - indeed, unique - because the
inmate there had recently been diagnosed with hepatitis C and pancreatic cancer, and
therefore argued that the physical manifestations of those diseases would greatly
complicate the execution procedure as applied to him.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. Plaintiff’s emergency motion to stay execution (Doc. No. 2) is GRANTED.
This Court stays the execution of Plaintiff pending a final decision by the United States
Supreme Court in the Baze case.
2. This case (6:07-cv-1798-Orl-22KRS) is also STAYED pending resolution of the
3. The Clerk of the Court is directed to administratively close this case
4. Plaintiff shall file a motion to reopen this case within thirty (30) days after a
final decision has been rendered in the Baze case. The failure to do so will result in the
dismissal of this case without further notice.
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DONE AND ORDERED at Orlando, Florida, this 14th day of November, 2007.
Counsel of Record
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