Initial brief filed in Richard Henyard

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC08-222

RICHARD HENYARD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL
CIRCUIT FOR LAKE COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

Mark S. Gruber

Florida Bar No. 0330541

Maria Perinetti

Florida Bar No. 0013837

CAPITAL COLLATERAL REGIONAL
COUNSEL-MIDDLE REGION

3801 Corporex Park Drive, Suite 210
Tampa, Florida 33619

813-740-3544

Counsel for Appellant

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................ i

TABLE OF AUTHORITIES .................................................................................... ii

STATEMENT OF THE CASE .................................................................................. 1

JURISDICTION ......................................................................................................... 3

STANDARD OF REVIEW ....................................................................................... 3

SUMMARY OF ARGUMENT ................................................................................. 4

ARGUMENT I

NEWLY DISCOVERED EVIDENCE SHOWS THAT FLORIDA=S
LETHAL INJECTION METHOD OF EXECUTION VIOLATES
THE EIGHTH AMENDMENT....................................................................... 5

ARGUMENT II

FLA. STAT. '945.10 (2006) AS IMPLEMENTED BY THE
PROTOCOLS, WHICH CONCEALS THE IDENTITY OF THE
PARTICIPANTS IN AN EXECUTION, IS UNCONSTITUTIONAL ........ 13

ARGUMENT III

FLA. STAT. '27.702, WHICH AS INTERPRETED BY THIS
COURT PROHIBITS CCRC FROM FILING A '1983 FEDERAL
RIGHTS SUIT CHALLENGING LETHAL INJECTION, IS
UNCONSTITUTIONAL ............................................................................... 16

CONCLUSION AND RELIEF SOUGHT .............................................................. 22

CERTIFICATE OF SERVICE ................................................................................ 23

CERTIFICATE OF COMPLIANCE ....................................................................... 24

TABLE OF AUTHORITIES

Baze v. Rees,

551 U.S. ---- (U.S. No. 07-5439, April 16, 2008) ..................................... 2, 10

Bryan v. State,

73 So. 2d 1244 (Fla. 2000) ............................................................................ 15

California First Amendment Coalition v. Woodford,

299 F.3d 868 (C.A. 9 2002) ........................................................................... 13

Diaz v. State,

945 So. 2d 1136 (Fla. 2006) .......................................................................... 16

Hodges v. State,

885 So. 2d 338 (Fla. 2004) .............................................................................. 4

Jones v. State,

701 So. 2d 76 (Fla. 1997) ................................................................................ 8

Lightbourne v. McCollum,

969 So. 2d 326 (Fla. 2007) .......................................................................... 2, 8

Louisiana ex rel. Francis v. Resweber,

329 U.S. 459 (1947)......................................................................................... 9

McLin v. State,

827 So. 2d 948 (Fla. 2002) .............................................................................. 4

Pell v. U.S. Procunier,

417 U.S. 817 (1974)....................................................................................... 13

Schwab v. Secretary, Dept. Of Corrections,

507 F.3d 1297 (11th Cir. (Fla.) Nov. 15, 2007) ............................................. 21

Schwab v. State,

---So. 2d----, (NO. SC07-2138) slip op. At 4-5 (Fla. Jan. 24, 2008) ............ 10

Schwab v. State,

969 So. 2d 318 (Fla. 2007) .......................................................................... 2, 8

Schwab v. State,

973 So. 2d 427 (Fla. 2007) ............................................................................ 18

Sims v. State,

754 So. 2d 657 (Fla. 2000) ............................................................................ 11

State v. Kilgore,

976 So. 2d 1066 (Fla. 2007) .......................................................................... 21

State ex rel. Butterworth v. Kenny,

714 So. 2d 404 (Fla. 1998) ............................................................................ 16

Travaglia v. Dept. of Corrections,

699 A.2d 1317 (Pa. Commw. Ct. 1997) ........................................................ 14

STATEMENT OF THE CASE

The Appellant was convicted of two counts of first degree murder, three
counts of armed kidnapping, one count of attempted first degree murder, and
sexual battery. On August 19, 1994, Henyard was sentenced to death on two
counts of first degree murder consecutive to life sentences on all other charges.
The judgment and sentence were affirmed on direct appeal. Henyard v. State, 689
So.2d 239 (Fla. 1996), cert. denied, Henyard v. Florida, 522 U.S. 846, 118 S.Ct
130, 139 L.Ed.2d 80 (U.S. Fla. Oct 06, 1997). He then filed a motion for
postconviction relief, followed by an amended Rule 3.850 motion. The trial
court’s denial of postconviction relief was affirmed in Henyard v. State, 883 So. 2d
753 (Fla. 2004). Thereafter, Henyard filed a petition for a writ of habeas corpus in
federal court, which was denied. Henyard v. Crosby, 2005 WL 1862694 (M.D.
Fla. 2005). The United States Court of Appeals Eleventh Circuit granted a
Certificate of Appealability on two issues and denied relief. Henyard v.
McDonough, 459 F.3d 1217 (11th Cir. 2006). The United States Supreme Court
denied certiorari. Henyard v. McDonough, 127 S.Ct. 1818 (2007). A first
successive postconviction motion based primarily on the United States Supreme
Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005) was denied by the trial
court, and the denial was affirmed on appeal. Henyard v. State, 929 So.2d 1052

(Fla. 2006).

This case is one of a large number of challenges to Florida=s lethal injection
method of execution brought by death row inmates after the Diaz execution in
December of 2006. During the proceedings before the Governor=s Commission on
the Administration of Lethal Injection and the subsequent litigation in Lightbourne
v. McCollum, 969 So.2d 326 (Fla. 2007) and Schwab v. State, 969 So.2d 318 (Fla.
2007) the Appellee has successfully urged that the trial courts take a wait and see
approach to cases like this, arguing that Lightbourne was the Alead case@ on the
subject of lethal injection in Florida. In the meantime, the United States Supreme
Court took up the lethal injection issue in Baze v. Rees, 551 U.S. ---- (U.S. No. 07-
5439, April 16, 2008). The State successfully opposed arguments by Lightbourne
and Schwab that their cases should be delayed until after the Supreme Court=s
decision in Baze, and this Court eventually decided those cases in the State=s favor
while Baze was still pending. Thereafter, the State has, for the most part
successfully, taken a hurry-up posture in the lethal injections cases that remained
around the state.

In the instant case, Henyard filed a successive motion on October 16, 2007.
The motion, which was eventually summarily denied, contained four claims, three
of which are asserted here. Rearranged, they are: 1) Newly discovered evidence

shows that Florida=s lethal injection method of execution violates the Eighth
Amendment; 2) Fla. Stat. '945.10 (2006) as implemented by the protocols, which
conceals the identity of the participants in an execution, is unconstitutional; and 3)
Fla. Stat. '27.702, which as interpreted by this Court prohibits CCRC from filing a
'1983 federal rights suit challenging lethal injection, is unconstitutional. The trial
court summarily denied these claims on January 8, 2008 and Henyard took this
appeal.

On May 19, 2008, Henyard filed a motion to relinquish jurisdiction to the
trial court for further consideration of his lethal injection claims in light of some
aspects of the recent decision in Baze v. Rees, decided on April 16, 2008. That
motion is still pending before this Court at the time this brief is being submitted.
Should the Court grant the motion, Henyard will seek leave to file supplemental
briefing on the relinquishment proceeding.

JURISDICTION

This Court has jurisdiction. Art. V, ' 3(b)(1) Fla. Const.

STANDARD OF REVIEW

Henyard requested an evidentiary hearing on his lethal injection claims. See
PC-R Vol. I, 3. Fla.R. Crim.P. 3.851(f)(5)(B) provides that a defendant is entitled
to an evidentiary hearing on postconviction claims for relief unless the motion,

files, and records in the case conclusively show that the movant is entitled to no
relief. In reviewing a trial court's summary denial of postconviction relief without
an evidentiary hearing, this Court must accept all allegations in the motion as true
to the extent they are not conclusively rebutted by the record. To uphold the trial
court's summary denial, the claims must be either facially invalid or conclusively
refuted by the record. Hodges v. State, 885 So.2d 338 (Fla. 2004); McLin v. State,
827 So.2d 948 (Fla. 2002).

SUMMARY OF ARGUMENT

Baze v. Rees announces a standard for evaluating the constitutionality of
lethal injection procedures that embraces the concept of risk, unlike the inherent
cruelty standard that this Court established in Jones and has since applied to
Florida=s lethal injection method of execution in Sims, Schwab and Lightbourne.
Because the lower court was bound by Lightbourne, and because the lower court
erroneously acceded to the State=s rush to judgment argument, the pending motion
to relinquish jurisdiction to consider Henyard’s specific allegations about the
DOC=s proposed method of execution should be granted, or the lower court=s
summary denial of relief should be reversed and remanded. Henyard’s case is in a
different and less urgent procedural posture than Schwab and Lightbourne.

In part because a risk standard requires greater scrutiny of DOC procedures,

Fla. Stat. '945.10 (2006), which conceals the identity of the participants in an
execution, is unconstitutional.

Fla. Stat. '27.702 and 27.7001, which, as interpreted by this Court in Diaz,
prevent CCRC attorneys from filing civil rights challenges to Florida=s lethal
injection method of execution by way of 42 U.S.C. '1983, are unconstitutional.
The Court=s rationale in Diaz, which was that CCRC clients seeking to file an
action challenging lethal injection may do so by way of a petition for a writ of
habeas corpus under 28 U.S.C. ' 2254, has been undermined by the recent decision
in which the U.S. Eleventh Circuit Court of Appeals rejected Mark Schwab=s
application to file a ' 2254 petition challenging lethal injection.

ARGUMENT I

NEWLY DISCOVERED EVIDENCE SHOWS
THAT FLORIDA=S LETHAL INJECTION
METHOD OF EXECUTION VIOLATES THE
EIGHTH AMENDMENT

The newly discovered evidence Henyard relies on has come to light since
the Diaz execution in December of 2006 and its aftermath. As stated in the
motion, it comes from the following sources:

October 2006 when the Florida Department of
Corrections' (hereinafter FDOC) secret protocol was
made public; December 2006, when news reports carried
accounts of Angel Diaz's execution; evidence made
public in 2007 about FDOC procedures, training and

implementation of lethal injection and the undue risks of
the procedures and practice presented to The Governor's
Commission on the Administration of Lethal Injection
(hereinafter Commission) and contained in their Report;
the May 9, 2007 protocols issued by FDOC, the August
1, 2007 protocols issued by FDOC; FDOC's 2007
response to the Commission's report and testimony
presented at hearings conducted by the Honorable Judge
Carven Angel, 5th Judicial Circuit, Marion County, in the
matter of Lightbourne v. State.

Moreover, an enormous fund of factual information about lethal injection has
emerged over the past year that is available through traditional research sources
such as law review articles, case authority and the like. Henyard alleged with
specificity, inter alia, that the current (August 1, 2007) FDOC protocols and their
proposed implementation were defective in that:

The executioner need merely be an adult who has
undergone a criminal background check and who is
sufficiently trained to administer the lethal chemicals. . .
The new protocols do not require the "team warden" to
obtain the employment records, error rates, and
proficiency testing of the execution team members . . .
The August 1, 2007 protocols require evidence of written
quarterly training sessions but do not specify what should
be included in the written record or specify what training
was received . . . while the new protocols do require
some written records of activities, there is still no written
record of when the lethal chemicals begin to flow, nor is
there a written printout of the data from the heart
monitors . . .clothing and other apparatus used to conceal
the identities of the executioners and medically qualified
personnel . . . impair the executioners and medically
qualified personnel's ability to monitor intravenous

infiltration and other potential problems. Deficiencies in
the design and set up of the chamber . . . include but are
not limited to: inadequate lighting, the placement of the
team member administering the lethal chemicals, the
length of tubing necessary because of the chamber
decision which creates an undue risk that the
executioners will fail to detect difficulty or problems
with anesthetic consciousness or intravenous access.
Additionally, the syringes are kept in a syringe holder,
which is a departure from clinical practice. . . FDOC has
also failed to obtain or require the use of a bispectral
index monitor to monitor anesthetic depth . . . there is
nothing in the new protocols that defines a procedure for
notification to the inmate or the inmate's counsel should
the medical examination reveal any potential
complications with venous access or any other aspect of
the lethal injection other than to say that the "team
warden" will "resolve the issue." The August 2007
protocols do not address the possible remedies for
complications noted in the medical examinations that
take place a week prior to the execution. The protocols
merely state that the "team warden" will consult with the
other team members that performed the evaluation and
"conclude what is the more suitable method for venous
access (peripheral or femoral) for the lethal injection
process given the individual circumstances of the
condemned. Additionally, there is no provision for the
inmate to have his own designated independent physician
or medically qualified professional present for the
examination . . . The provision for Periodic Review and
Certificate from the Secretary is insufficient to insure that
there will not be a risk of unnecessary pain during the
execution procedure. For example, all that is required is
that the Secretary of the Department of Corrections
certify to the Governor that "the Department is
adequately prepared to carry out executions by lethal
injection." The Certification is not required to contain
how the lethal injection procedure was reviewed, what

aspects the Secretary considered in his review of the
procedures, or how the Secretary verified that he does in
fact have all the "necessary procedures, equipment,
facilities, and personnel in place..." In addition, the
Certification is to be provided to the inmate and the
inmate's counsel, after the review has been completed.
There is no provision for the inmate or the inmate's
counsel to be present during the actual reviewing process
and certification . . . the consciousness assessment
required by the protocols falls far short of medical
standards. The warden, who is charged with making the
consciousness assessment, has no medical expertise
beyond that required of a law enforcement officer . . .

Henyard also alleged that the protocols and their proposed implementation were
defective for failure to draw on the well established fields of risk analysis, quality
assurance and medical auditing.

The trial court summarily denied relief. The court noted that since Henyard
had filed his 3.851 motion, this Court decided Lightbourne v. McCollum, 969 So.
2d 326 (Fla. 2007) and Schwab v. State, 969 So.2d 318 (Fla. 2007). The court
stated that “[i]n these two cases, the Florida Supreme Court fully considered and
rejected the same arguments raised by the Defendant in Claim I of the
postconviction motion.” PC-R Vol. I, 57. The order of denial is dated January 8,
2008.

The Schwab and Lightbourne decisions relied on by the trial court
reaffirmed this Court=s Ainherent cruelty@ standard previously articulated in Jones v.

State, 701 So.2d 76 (Fla. 1997), where the Court reasoned that the Acruelty against
which the Constitution protects a convicted man is cruelty inherent in the method
of punishment.@ Jones, id., citing Louisiana ex rel. Francis v. Resweber, 329 U.S.
459 (1947).

The Lightbourne decision did contain an additional paragraph to the effect
that the Court would have denied relief even under some proposed standards
involving a measure of Arisk@ of cruelty rather than Ainherent cruelty@ which were
being urged by Schwab and Lightbourne as well as by other death row prisoners
around the country. However, in a subsequent case initiated by Schwab, the Court
unequivocally reaffirmed its adherence to an inherent cruelty standard:

Even taking Schwab's allegations as true, Schwab has not
met the standard that this Court set forth in Jones v. State,
701 So. 2d 76, 79 (Fla.1997):In order for a punishment to
constitute cruel or unusual punishment, it must involve
"torture or a lingering death" or the infliction of
"unnecessary and wanton pain." Gregg v. Georgia, 428
U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67
S.Ct. 374, 91 L.Ed. 422 (1947). As the Court observed in
Resweber: "The cruelty against which the Constitution
protects a convicted man is cruelty inherent in the
method of punishment, not the necessary suffering
involved in any method employed to extinguish life
humanely." Id. at 464, 67 S.Ct. at 376. See also
Lightbourne v. McCollum, 969 So. 2d 326, 32 Fla. L.
Weekly S687 (Fla. Nov. 1, 2007) (reaffirming the
standard announced in Jones, 701 So. 2d at 79).

Schwab v. State, --- So.2d ----, (NO. SC07-2138) slip op. at 4-5 (Fla. Jan. 24,

2008).

On April 16, 2008, the United States Supreme Court decided Baze v. Rees,
551 U.S. ---- (2007) No. 07-5439. The Baze Court addressed the issue of what
constitutional standard should be applied to method of execution cases. In fact,
four standards emerged from the various opinions with only two having at least
three justices joining. The opinion by Chief Justice Roberts, joined by Justices
Kennedy and Alito articulated the standard as a "substantial risk of serious harm".
Three other Justices, Breyer, Ginsburg and Souter, proposed a standard that
requires a showing of an "untoward, readily avoidable risk of inflicting severe and
unnecessary pain.” Baze v. Rees, Slip Op. at 11 (Ginsburg, J., dissenting); Baze, at
1 (Breyer, J., concurring). At any rate, seven justices adopted some sort of
standard involving the concept of risk. The inherent cruelty standard was
embraced only by Justices Thomas and Scalia, who concurred in the judgment only
because in their view the plurality standard, Aalong with petitioners= proposed
>unnecessary risk= standard and the dissent=s >untoward risk= standard= were not
supported Ain the original understanding of the Cruel and Unusual Punishments
Clause.@ Id. J. Thomas joined by J Scalia concurring in judgment only. This
Court=s reaffirmation of the Jones inherent cruelty standard in Schwab and

Lightbourne, on which the court below expressly relied, is now in conflict with the
plurality opinion in Baze and with the position taken by all but two of the members
of the Supreme Court.

Schwab and Lightbourne also reaffirmed this Court=s decision in Sims v.
State, 754 So.2d 657 (Fla. 2000), in which the Court accorded heavy deference to
the DOC with regard to virtually every aspect of the lethal injection protocols and
the way they are implemented. Justice Thomas declined to join the plurality
opinion in Baze in part because, in his view, comparative risk standards Arequire
courts to resolve medical and scientific controversies@ that he felt were Abeyond
judicial ken,@ and the judiciary should not, as he put it, Amicromanage the State=s
administration of the death penalty in this manner.@ The language and reasoning
he employed are strikingly similar to that expressed by this Court in Sims,
Lightbourne and Schwab. Since those views now represent the losing side,
presumably the courts must resolve at least some medical and scientific
controversies and engage in at least some management of the administration of the
death penalty. A standard that requires the court to assess the risk of severe pain
involved in a procedure that admittedly will not cause unconstitutional pain if
executed flawlessly necessarily requires the court to exercise greater scrutiny of the
DOC=s practices than a standard that merely requires determining whether a

proposed method of execution is inherently cruel in the abstract.

The lower court did not assess the allegations before it in light of the risk
standards announced in the Baze decision because it was bound by Lightbourne
and Schwab and because Baze had not been decided yet. Given the circumstances,
the court did not address Henyard’s factual allegations with any specificity at all.
However, the court did accede to the State=s urging that the case be rushed to
judgment. Henyard argued that the case should be held in abeyance for what
could only be a short period of time until Baze was decided. See PC-R Vol. I, 90.
The State argued otherwise and won. Id. at 90-92. The result is that the trial
court=s decision is error, because Article I, section 17 of the Florida Constitution,
the conformity clause, provides that: AThe prohibition against cruel or unusual
punishment, and the prohibition against cruel and unusual punishment, shall be
construed in conformity with decisions of the United States Supreme Court which
interpret the prohibition against cruel and unusual punishment provided in the
Eighth Amendment to the United States Constitution.@

Henyard’s position is different from that of Schwab or Lightbourne in that
there has not been a denial of certiorari by the Supreme Court regarding lethal
injection in his case. His claims are timely because of the recent, fast-paced
emergence of factual and legal developments regarding lethal injection in Florida

and elsewhere. This case should be remanded, or in the alternative proceedings in
this Court stayed and jurisdiction relinquished to the trial court for consideration of
the detailed factual allegations set out in Henyard’s motion in light of the
applicable risk standards of Baze.

ARGUMENT II

FLA. STAT. '945.10 (2006) AS IMPLEMENTED BY
THE PROTOCOLS, WHICH CONCEALS THE
IDENTITY OF THE PARTICIPANTS IN AN
EXECUTION, IS UNCONSTITUTIONAL

Section 945.10, Fla. Stat. (2006) exempts from disclosure under Section
24(a), Article I of the Florida Constitution (the right to access public records):

(g) Information which identifies an executioner, or a person
prescribing, preparing, compounding, dispensing, or administering a
lethal injection.

Access to prisons by the press and public is a constitutional right. Pell v.
U.S. Procunier, 417 U.S. 817 (1974). This access to prisons has been found to
include access to view executions as well, based upon both historical traditions and
the functional importance of public access to executions. California First
Amendment Coalition v. Woodford, 299 F.3d 868 (C.A.9 2002). The right to view
executions includes all parts of the execution, including the manner in which
intravenous lines are injected. Id. at 883. The court held that limitations on what
parts of the execution were viewed by the public based on safety concerns for the

prison staff members involved were not justified. Id. at 880. The court found that
the concern that execution team members would be publicly identified and
retaliated against was "an overreaction, supported only by questionable
speculation." Id. Importantly, the court pointed out that numerous high profile
individuals are involved with the implementation of executions, including a
warden, a governor and judges, and there is a significant history of safety around
these publicly known officials. Id. at 882. Pennsylvania courts have likewise
found safety concerns as a basis for protecting the identity of execution witnesses
as wholly unsupported speculation. Travaglia v. Dept. of Corrections, 699 A.2d
1317, 1323 n.5 (Pa. Commw. Ct. 1997).

The litany of problems in administering lethal injections to condemned
inmates in several states requires the disclosure of the identity of the members of
the execution team. Executions carried out by anonymous team members put
inmates at unnecessary or foreseeable risk of infliction of pain and violate Due
Process. The burden to show Eighth Amendment violations in capital punishment
cases is on the condemned. Without access to the identities of the team members,
Henyard is unconstitutionally deprived of his ability to establish a violation. To
deprive him of this information violates his rights under the Fifth, Sixth, Eighth
and Fourteenth Amendments to ensure his punishment is not cruel and unusual.

Likewise, safety concerns for the members of the execution team are purely
speculation and run counter to the evidence that far more prominent individuals
involved in executions, such as judges, governors, and wardens, have not been the
target of any serious or widespread harm. Finally, the cases in Missouri and North
Carolina show that merely requiring the involvement of medical personnel is not a
sufficient protection. Without access to the identities of these individuals, there is
no way for a condemned to determine whether they are competent and qualified to
ensure the Eighth Amendment is not violated.

Since the identities of the members of the execution team are protected by
statute, there is no way for Henyard to determine whether the involvement of any
of these individuals creates a substantial risk of unnecessary pain during a lethal
injection procedure. With the mounting evidence of botched executions continuing
to grow, this statute deprives Henyard of his due process rights to ensure he is not
subject to cruel and unusual punishment and therefore this statue is
unconstitutional.

This argument was presented in Claim III of the motion for postconviction
relief and summarily denied on the merits. PC-R Vol. I, 58. The court relied on
Bryan v. State, 73 So.2d 1244 (Fla. 2000), in which this Court rejected a similar
argument. However, as argued above, the Court’s inherent cruelty standard for

evaluating the constitutionality of method of execution claims has been superseded
by the risk standard in Baze, which requires greater scrutiny of the DOC’s
methods. Bryan should therefore be re-evaluated in light of Baze.

ARGUMENT III

FLA. STAT. '27.702, WHICH AS INTERPRETED
BY THIS COURT PROHIBITS CCRC FROM
FILING A '1983 FEDERAL RIGHTS SUIT
CHALLENGING LETHAL INJECTION, IS
UNCONSTITUTIONAL.

Although the statutory scheme creating the CCRCs does not speak
specifically to actions brought pursuant to 42 U.S.C. '1983, this Court has held
that CCRC lawyers are prohibited from bringing such an action to challenge a
method of execution by (current) '27.7001 Fla. Stat. (prohibiting CCRC lawyers
from representing capital defendants in Aretrials, resentencings, proceedings
commenced under chapter 940 [executive clemency], or civil litigation.@) State ex
rel. Butterworth v. Kenny, 714 So.2d 404 (Fla. 1998). Fla. Stat. '27.702(1) states
that Athe CCRC counsel shall file only those postconviction or collateral actions
authorized by statute.@

In Diaz v. State, 945 So.2d 1136 (Fla. 2006) the Court addressed the
argument raised here and disposed of it this way:

Diaz has also filed a petition under the Court's
constitutional all writs authority, in which he claims that

section 27.702, Florida Statute (2006), is unconstitutional
both facially and as applied in his case. We find no merit
to this claim.

Section 27.702 specifies the duties of Capital Collateral
Regional Counsel in representing individuals convicted
and sentenced to death in Florida in Acollateral actions
challenging the legality of the judgment and sentence
imposed.@ Id. ' 27.702(1). Pursuant to the statute, CCRC
attorneys Ashall file only those postconviction or
collateral actions authorized by statute.@ This Court has
held that the Apostconviction or collateral actions
authorized by statute@ do not include civil rights actions
under 42 U.S.C. ' 1983 . State ex rel. Butterworth v.
Kenny, 714 So. 2d 404, 410 (Fla.1998).

Diaz contends that his due process rights have been
violated because his CCRC attorneys cannot file a
section 1983 action in federal court to challenge Florida's
lethal injection procedures and lethal injection as a
method of execution. Diaz further alleges that he has no
other avenue available to bring such a federal challenge
in light of the holding in Hill v. McDonough, ---U.S. ----,
126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). We conclude that
Diaz has misinterpreted the Hill decision.

In Hill, the defendant filed a federal action under section
1983 to challenge the lethal injection procedure as cruel
and unusual punishment. The federal district court and
the Eleventh Circuit Court of Appeals both denied Hill's
claim, holding that his section 1983 claim was the
functional equivalent of a habeas petition. Because Hill
had sought federal habeas relief earlier, his section 1983
action was deemed successive and thus procedurally
barred. Hill, 126 S.Ct. at 2097. However, the United
States Supreme Court reversed and held that a challenge
to the constitutionality of the lethal injection procedure
did not have to be brought in a habeas petition, but could

proceed under section 1983. Id. at 2098. However,
contrary to Diaz's assertions here, the United States
Supreme Court did not hold that a constitutional
challenge to lethal injection procedures could not be
brought under a habeas petition.

Accordingly, Diaz did have an alternative avenue for
challenging the lethal injection procedure in federal
court, but did not utilize it. In 1999, Diaz filed a federal
habeas petition in federal district court. The petition was
pending until January 2004. On January 14, 2000, section
922.105 was amended to provide for lethal injection as
the method of execution in Florida. See ch. 2000-2, ' 3,
at 4, Laws of Fla. Also, while his federal habeas petition
was pending, Diaz filed two habeas petitions in this
Court [citing Diaz v. Moore, 828 So. 2d 385 (Fla.2001);
Diaz v. Crosby, 869 So. 2d 538 (Fla.2003)].

Under 28 U.S.C. ' 2254, an application for a writ of
habeas corpus in a federal court may be granted if the
applicant has exhausted the remedies available in the
state courts. Thus, had Diaz raised a lethal injection claim
in either of his two state habeas petitions that were filed
after lethal injection was adopted as the method of
execution in Florida, he could have then raised the claim
in his initial federal habeas petition that was pending
from 1999 until 2004. However, Diaz did not utilize this
avenue that was available to him. Thus, it was due to his
own lack of diligence that he missed the opportunity to
challenge execution by lethal injection in a federal
habeas action. Accordingly, we find no violation of
Diaz's due process rights and no basis for striking down
section 27.702 as unconstitutional. We deny Diaz's
petition for all writs relief.

Id. (footnotes omitted).

After this Court denied a motion to stay his imminent execution in Schwab

v. State, 973 So.2d 427 (Fla., Nov. 7, 2007), Mark Schwab applied for leave to file
a successive ' 2254 petition challenging Florida=s lethal injection method of
execution. The Eleventh Circuit held:

Even if such a claim were properly cognizable in an
initial federal habeas petition, instead of in a 42 U.S.C. '
1983 proceeding, see generally Hill v. McDonough, 547
U.S. 573, 126 S.Ct. 2096, 2099, 165 L.Ed.2d 44 (2006);
Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158
L.Ed.2d 924 (2004), Rutherford v. McDonough, 466 F.3d
970, 973 (11th Cir. 2006) (observing that pre-Nelson
circuit law requiring challenges to lethal injection
procedures to be brought in a ' 2254 proceeding is "no
longer valid in light of the Supreme Court's Hill
decision"), this claim cannot serve as a proper basis for a
second or successive habeas petition. It cannot because it
neither relies on a new rule of constitutional law made
retroactive to cases on collateral review by the Supreme
Court, 28 U.S.C. ' 2244(b)(2)(A), nor involves facts
relating to guilt or innocence, see 28 U.S.C. '
2244(b)(2)(B)(ii).

In Re: Mark Dean Schwab, Petitioner, 506 F.3d 1369 (2007). While admittedly
the language, AEven if such a claim were properly cognizable in an initial federal
habeas petition . . .@ is equivocal, the indication is pretty clear that such an action
should be brought by way of a '1983 civil rights suit rather than through a ' 2254.
Thus this Court=s rationale for the Diaz decision appears to have been undermined.
Diaz should be reconsidered.

Schwab subsequently filed a '1983 action [which has since been denied

without prejudice on the ground that counsel B who had filed a motion to withdraw
from the case and have other counsel appointed (which has not been ruled on) B
had not complied with a requirement that he move to reopen the case after Baze
was decided] along with an application for a stay of execution on the premise that
In re Schwab, supra, undermined the rationale in Diaz, and that the latter was not
controlling in his case as to the authority of counsel to proceed. The application
for stay was initially granted by the district court, but soon thereafter vacated by
the Eleventh Circuit in part because it was sought too late under circuit law:

As the district court noted: ATurning 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.@
Schwab, No. 6:07cv1798, at 6. That observation
understates the law of this circuit concerning the extent to
which laches-like considerations may bar relief in this
type of case. See Williams v. Allen, 496 F.3d 1210, 1215
(11th Cir.), cert. dismissed, --- U.S. ----, 128 S.Ct. 370,
169 L.Ed.2d 4 (2007); Grayson v. Allen, 491 F.3d 1318,
1322 (11th Cir.), cert. denied, --- U.S. ----, 128 S.Ct. 6,
168 L.Ed.2d 784 (2007); Jones v. Allen, 485 F.3d 635,
639-40 (11th Cir.), cert. denied, --- U.S. ----, 127 S.Ct.
2160, 167 L.Ed.2d 887 (2007); Rutherford, 466 F.3d at
973-74; see also Hill, 126 S.Ct. at 2104 (AA court
considering a stay must also apply >a strong equitable
presumption against the grant of a stay where a claim
could have been brought at such a time as to allow
consideration of the merits without requiring entry of a
stay.= @ (citation omitted)); Nelson v. Campbell, 541 U.S.
637, 649-50, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924
(2004) ( A[B]efore granting a stay, a district court must

consider not only the likelihood of success on the merits
and the relative harms to the parties, but also the extent to
which the inmate has delayed unnecessarily in bringing
the claim.@). Under our precedent, Schwab's delay in
bringing his ' 1983 lawsuit mandates denial of a stay on
laches grounds. Laches is not an issue in the Baze case.

Schwab v. Secretary, Dept. of Corrections, 507 F.3d 1297 (11th Cir. 2007). The
time for Henyard to seek relief via '1983 and resolution of any attendant issues
regarding representation is now.

Since then, this Court has decided State v. Kilgore, 976 So.2d 1066 (Fla.
2007) (rehearing denied Feb 28, 2008). Although a different factual setting,
Kilgore may be informative in this case. A long-simmering issue has been whether
the restrictions in chapter 27 also prohibit CCRC lawyers from representing their
clients in postconviction challenges to noncapital cases which were used as
aggravators in the capital case. Certain categorical language in Kilgore appears to
say they do.

Kilgore is also notable in that it expressly recognized what appears to be a
per se right to counsel for capital defendants who seek to collaterally attack
noncapital convictions that were used as aggravators, although not necessarily to
the same counsel. Appointment of counsel in a case similar to Kilgore=s would be
for the purpose of litigation in the state court system. Thus the Kilgore court
avoided the argument raised in Diaz, that the Court=s restrictive interpretation of

chapter 27 would render the statutory scheme unconstitutional, because Kilgore
articulated a remedy for nonrepresentation by the CCRC which could be enforced
in the state court system, namely the appointment of other counsel. It is possible
that a similar resolution would work here, but any such scheme would succeed or
fail according to how the federal courts received it, meaning that the
constitutionality of chapter 27.702 would rest or fall on the result in the federal
courts. The mere fact that that may not be known until it is too late shows that
there is an irremediable gap in the provision for capital representation under the
current scheme.

CONCLUSION AND RELIEF SOUGHT

This case should be remanded, or in the alternative proceedings in this Court
stayed and jurisdiction relinquished to the trial court for consideration of the
detailed factual allegations set out in Henyard’s motion in light of the applicable
risk standards of Baze v. Rees.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Initial Brief of
Appellant has been furnished by United States Mail, first class postage prepaid, to
all counsel of record and the Defendant on July 1, 2008.

__________________________

MARK S. GRUBER

Florida Bar No. 0330541

Maria Perinetti

Florida Bar No. 0013837

Assistant CCRC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE REGION

3801 Corporex Park Drive, Suite 210

Tampa, Florida 33619

(813) 740-3544

Copies furnished to:

Stephen Ake

Assistant Attorney General

Concourse Center 4

3507 East Frontage Road, Suite 200

Tampa, FL 33607

William Gross

Assistant State Attorney

550 West Main Street

Tavares, FL 32778

Richard Henyard

DOC #225727

Union Correctional Institution

7819 NW 228th Street

Raiford, FL 32026

CERTIFICATE OF COMPLIANCE

I hereby certify that a true copy of the foregoing Initial Brief of Appellant,
was generated in Times New Roman, 14 point font, pursuant to Fla. R. App. 9.210.

____________________________

MARK S.GRUBER

Florida Bar No. 0330541

Maria Perinetti

Florida Bar No. 0013837

Assistant CCRC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE REGION

3801 Corporex Park Drive, Suite 210

Tampa, Florida 33619

(813) 740-3544

Counsel for Appellant