MOTION TO VACATE STAY OF EXECUTION - Florida

http://www.markschwab.us/legal/schwab-application.pdf

CASE NO. 07-10275
CAPITAL CASE

IN THE SUPREME COURT OF THE UNITED STATES

MARK DEAN SCHWAB
Petitioner,
v.
FLORIDA,
Respondent.

MOTION TO VACATE STAY OF EXECUTION

COMES NOW the State of Florida, and moves this Court to vacate
the stay of execution entered in this case on November 15, 2007. As
grounds for vacating that stay, the State submits the following:

1. On November 9, 2007, Schwab filed a motion for a stay of
his November 15, 2007, execution “pending the filing and
disposition of a petition for a writ of certiorari, or in the
alternative, pending the outcome of Baze v. Rees, 2008 WL 1733259
(U.S. Apr. 16, 2008).”
2. On November 15, 2007, this Court entered a stay “pending
the timely filing and disposition of a petition for a writ of
certiorari,” thus permitting Schwab the normal 90 day period within
which to file his petition, which was due on February 5, 2008.
3. On January 24, 2008, Schwab filed a motion for an extension
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of time for filing his petition for writ of certiorari so he could

address issues raised during the Baze oral argument, argued January

7, 2008. Implicit in that motion was the notion that Baze would

control the disposition of Schwab’s case.

4. This Court granted an extension of time for filing his
petition for writ of certiorari until April 5, 2008. The petition

was filed within the time allowed by the extension.

5. Schwab has at all times taken the position that this
Court’s decision in Baze will dictate the result in his case. That

decision has been issued. Under Baze, Schwab has no likelihood of

success on his constitutional claim, which is foreclosed by Baze,

which, of course, is binding precedent.

6. As this Court held in Baze:
A stay of execution may not be granted on grounds such as
those asserted here unless the condemned prisoner
establishes that the State’s lethal injection protocol
creates a demonstrated risk of severe pain. He must show
that the risk is substantial when compared to the known
and available alternatives. A State with a lethal
injection protocol substantially similar to the protocol
we uphold today would not create a risk that meets this
standard.

Baze v. Rees, ms. op., at 22. Schwab, just as Baze, cannot make

that showing. Further, as this Court held:

Kentucky has adopted a method of execution believed to be
the most humane available, one it shares with 35 other
States. Petitioners agree that, if administered as
intended, that procedure will result in a painless death.

The risks of maladministration they have suggested — such
as improper mixing of chemicals and improper setting of
IVs by trained and experienced personnel — cannot

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remotely be characterized as “objectively intolerable.”

Id., at 23. (emphasis added). Thus, any ancillary matters arguably
at issue in Schwab’s case are disposed of by Baze, as well.

7. Each delay in execution of a sentence of death is, for its
duration, a commutation of that sentence to one of life in prison.
See, Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983).
Schwab has delayed his execution since November 2007, based upon
the premise that the Baze decision would help his case. That result
did not come to pass, and, as Justice Rehnquist wrote, as Circuit
Justice:
There must come a time, even when so irreversible a
penalty as that of death has been imposed upon a
particular defendant, when the legal issues in the case
have been sufficiently litigated and relitigated that the
law must be allowed to run its course.

Evans v. Bennett, 440 U.S. 1301, 1303 (1979). That time has come in
this case.

WHEREFORE, based on the foregoing, the State submits that the
stay of execution entered on November 15, 2007, should be vacated
because, in light of Baze, there is nothing to justify its
continuation as evidenced by the accompanying State's response to
Schwab's petition for writ of certiorari.

Respectfully submitted,
BILL McCOLLUM
ATTORNEY GENERAL

KENNETH S. NUNNELLEY
Senior Assistant Attorney General

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Florida Bar #998818
444 Seabreeze Blvd., 5th Floor
Daytona Beach, FL 32118

(386) 238-4990
FAX (386) 226-0457
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above has
been furnished by e-mail and U.S. Mail to: Mark S. Gruber, gruber
@ccmr.state.fl.us, Assistant CCRC - Middle, 3801 Corporex Park Dr.,
Suite 210, Tampa, Florida 33619-1136, on this day of April,
2008.

Of Counsel

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