The federal order for stay in Mark Schwab

http://www.oranous.com/florida/MarkSchwab/federalstayorder.htm

http://www.oranous.com/florida/MarkSchwab/federalorder.pdf

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MARK DEAN SCHWAB,

Plaintiff,

v. CASE NO. 6:07-cv-1798-Orl-22KRS

JAMES R. MCDONOUGH, et al,

Defendants.

ORDER

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

custody.

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

(1994).

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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

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?

Petition for Writ of Cert. at ii-iii, Baze v. Rees, No. 07-5439 (U.S. July 11, 2007), 2007 WL

2781088.

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.

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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

(continued...)

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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

impermissibly speculative.

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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3(...continued)

(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.

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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

Baze case.

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.

Copies to:

sa 11/14

Counsel of Record

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