Clarence Hill

Florida Support - individuals who care

2006-09-21T07:28:00.000-07:00

http://www.floridasupport.us/

With Love From Johnny Robinson

2006-09-21T06:00:00.000-07:00

"The State of Florida took a lot from me but they couldn´t take away who I am.

I refuse to become the monster they wish to portray me as and that´s a victory in itself."~~ November 17, 2001 ~~

Johnny´s thought about the Death Row, written Oct 16, 2002

after the execution of Rigoberto Sanchez:

"This place tends to depress people to the point where they would rather be dead than continue attempting to exist under these conditions.

Couple that with the constant threat of death and the absolute certainty one has no other future to look forward to – getting it over with begins to look for better.

It´s bad when you´re taken away a man´s liberty and his dignity but this place can even take away one´s humanity and all senblance of hope.

It´s at that point one questions the sense in continuing the struggle".

http://www.johnnyrobinson.us/johnny's_words.htm

In memory of Amos and Clarence

2006-09-21T05:24:00.000-07:00

He who thinks this self a killer

and he who thinks it killed,

both fail to understand;

it does not kill, nor is it killed.

It is not born,

it does not die;

having been,

it will never not be;

unborn, enduring,

constant, and primordial,

it is not killed

when the body is killed.

http://www.amosking.com/

Court refuses to delay Hill execution - SCOTUS BLOG

2006-09-20T13:52:00.000-07:00

Wednesday, September 20, 2006

Court refuses to delay Hill execution - SCOTUS BLOG

http://www.scotusblog.com/movabletype/

03:24 PM Lyle Denniston Comments (0)

Dividing 5-4, the Supreme Court on Wednesday refused to delay the execution in Florida of Clarence E. Hill, thus clearing the way for the state to carry out the sentence around 6 p.m. this evening. The Court issued no opinion. The brief order noted that Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens would have granted a stay.

The Court acted on Hill's stay application alone (06-A-301), and thus took no action on his pending cert petition, Hill v. McDonough (06-6545). If the execution goes forward under a death warrant signed by Florida Gov. Jeb Bush, that will moot Hill's appeal since that seeks an opportunity to challenge the method of lethal injection.

By denying the stay request, the Court leaves Hill without a remedy that the Court last June had ruled he could pursue: a civil rights challenge to the lethal injection protocol used in Florida. At the time the Court issued that ruling, it was aware that he had filed his delay request shortly before an execution was scheduled -- the very issue that has now led the Eleventh Circuit Court to refuse to delay the execution further, after concluding that defense lawyers had engaged in delaying tactics.

Without an opinion from the Court, however, it is unclear whether the Court majority actually agreed with the Eleventh Circuit on its rationale. The practical result, though, was that the Eleventh Circuit denial of a stay stands, and the execution may now proceed.

It would have taken the votes of five Justices to grant a stay. An earlier post on HIll's plea to the Court can be found here, containing links to the application and the petition for review.

Serena and Clarence - We LOVE YOU

2006-09-20T13:50:00.000-07:00

We are all in this together

Love from Sissel

From Janneke with love ...

2006-09-20T07:05:00.000-07:00

From Clarence Hill with love ...

2006-09-20T06:30:00.000-07:00

Greetings from Clarence Hill

2006-09-20T06:14:00.000-07:00

More on Hill

2006-09-20T06:11:00.000-07:00

http://capitaldefenseweekly.com/

From Attorney Karl Keys BLOG :

Tuesday, September 19, 2006

More on Hill

Courtesy of the SCOTUSBlog, find the Clarence Hill stay application here. The petition for certiorari can be found here. The second question in the petition is pretty dead on and the petition does a fair job laying out the current state of the law. From that petition:
Yet despite the recognition by numerous states and circuits that lethal injection procedures merit review, executions have proceeded in other states - - states which have lethal injection protocols substantially similar, if not exactly the same, as states which have halted their executions. Texas, for example, has executed 21 people this year by lethal injection, fully half of all the executions in the country for 2006. www.deathpenaltyinfo.org (site last visited September 17, 2006). As one judge in a Tennessee capital case cogently observed regarding the wide disparity and arbitrary nature of court responses to lethal injection challenges and theirarbitrariness:

[T]he dysfunctional patchwork of stays and execution going on in this country further undermines the variousstates’ effectiveness and ability to properly carry out death sentences. We are currently operating under a system wherein condemned inmates are bringing near identical challenges to the lethal injection procedure. In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result.Alley v. Little, No. 06-5650 (6th Cir. May 16, 2006)(Martin, J., dissenting from denial of a rehearing en banc)(emphasis added).A review of lethal injection litigation around the country demonstrates that courts have developed essentially two methods to handle lethal injection claims. One approach, utilized by the Fourth, Fifth, and (now) Eleventh Circuits, is to deny both the claim and the stay based upon dilatoriness, without any examination of the merits in assessing the equities involved. (See, e.g., White v. Johnson, 429 F.3d 572, 573-74 (5th Cir. 2005); Harris v. Johnson, 376 F.3d 414, 417-18 (5th Cir. 2004), and Hill v. McDonough, Case No. 06-14927 (2006)). The second method, which has been used in the Eighth, Ninth, and Tenth Circuits, is that a stay is denied, but the case is not dismissed.

Rather, the case is permitted to proceed on a fasttrack basis, and if the plaintiff develops enough evidence, a stay is then granted. Patton v. Jones, 2006 U.S. Dist. LEXIS 54429 (Okla. W.D. Aug. 4, 2006) affirmed, stay denied, Patton v. Jones, 2006 U.S. App. LEXIS 22312 (10th Cir. Aug. 25, 2006), Patton v. Jones, petition denied, stay denied, 2006 U.S. LEXIS 5379 (Aug.29, 2006); Morales v. Hickman, 2006 WL 335427 (N.D. Cal., Feb. 14, 2006) reviewed at Morales v. Hickman, 2006 WL 391604 (9th Cir., 2006); Taylor v. Crawford, 445 F.3d 1095, 1097- 98 (8th Cir. 2006) on remand, Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, 22 (June 26, 2006). Thus, in Patton, Morales, and Taylor, a determination on the merits was made in a very limited amount of time, and enough discovery and testimony were adduced to allow meaningful consideration to be given to the plaintiffs’ claims. Clearly, these cases demonstrate that it is possible to litigate and resolve lethal injection issues quickly.

permalink comments links to this post

Quick roundup from

Quick look around the web, the various courthouses and media outlets:

SCOTUSBlog looks at Clarence Hills chances of cert a second time. The question presented in Hill's case will eventually be granted cert, the question is if not now, when, as their appears to be a fairly wide split among the lower courts on the questions presented although Courts on all sides of the question have been fairly discrete about not citing the splits.

Will Florida execute Clarence Hill today?

2006-09-20T06:07:00.000-07:00

http://sentencing.typepad.com/sentencing_law_and_policy/death_penalty_reforms/index.html

From the BLOG Sentencing, Law and Policy :

September 20, 2006

Will Florida execute Clarence Hill today?

Almost exactly nine months ago, at roughly 6pm on January 24, 2006, Clarence Hill was strapped to a gurney and IV lines were run into his arms as Florida's execution team awaited the expected denial of Hill's final appeal to the Supreme Court. After about an hour in which Hill lay on the gurney anticipating his execution, Justice Anthony Kennedy issued a stay to allow the Supreme Court more time to consider whether Hill could attack Florida's lethal injection protocol through a 1983 action.

Though Hill prevailed in the Supreme Court, as detailed in this newspaper article, Florida is poised in less than twelve hours to try again to kill Clarence Hill again. And the merits of his 1983 action have still never been considered. Capital Defense Weekly has more on Hill's final(?) appeal to the Supreme Court, and Human Rights Watch has this interesting open letter to Florida Governor Jeb Bush urging him to postpone Hill's execution.

As I have documented via many blog posts and this recent article, much has transpired in the death penalty world over the last nine months. However, for Clarence Hill, it appears that the story will have a particular Shakespearian quality: Hill's litigation tale seems likely to end up as one "full of sound and fury; signifying nothing."

Speaking of "sound and fury; signifying nothing," this newspaper article also spotlights Florida Governor Jeb Bush's unsurprising reaction to the massive ABA report criticizing Florida's death penalty (details here):

''I believe that the death penalty process here is protected, correctly so, by an appeals process that is extensive,'' Bush said, adding that if anything, it is unfair to crime victims and their families. ''It can go on for more than 10 years. For a lot of people, that is denial of justice,'' Bush said.

Some recent related posts:

Up and down the Hill again
Will Clarence Hill get another SCOTUS ex machina?
My lethal injection piece on SSRN
ABA produces mega-report assailing Florida's death penalty

Bush defends death penalty

2006-09-19T14:32:00.000-07:00

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20060919/CAPITOLNEWS06/60919009

Originally published September 19, 2006

Bush defends death penalty

By Jim Ash Capitol Bureau Chief

Governor Jeb Bush defended the death penalty this morning, two days after the American Bar Association released a harshly critical report on how the ultimate punishment is handed out in Florida, and a day before a Pensacola cop killer is scheduled to be executed.
"I believe that the death penalty process here is protected, correctly so, by an appeals process that is extensive," Bush said, adding that if anything, it is unfair to crime victims and their families.
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"It can go on for more than 10 years. For a lot of people, that is denial of justice," Bush said. The 454-page report, compiled by Florida attorneys who support and oppose the death penalty, found the process is racially biased and suggested that with an average of more than one exoneration for every three executions, there are not enough safeguards to protect the innocent.Florida has executed 60 inmates since the death penalty was reinstated in 1973. During the same time, 22 condemned prisoners were exonerated.Bush defended the rate, saying that inmates have their death sentences overturned for many reasons, not necessarily because they are innocent.Bush's comments come a day before 48-year-old Clarence Hill is scheduled to die by lethal injection for killing police Officer Stephen Taylor during the Oct. 22, 1982, robbery of a savings and loan in Pensacola.Bush predicted that Hill's latest arguments, that lethal injection is cruel and unusual punishment, will continue to be rejected by the courts. He pointed out that the method has been used 16 times in Florida, and survived numerous appeals."So my expectation is that the execution will go as planned," he said. Bush recently signed a law eliminating a deadline for condemned killers to prove their innocence through DNA testing. He said his office was studying the report, which recommends, among other things, the creation of a commission to study wrongful convictions and claims of innocence.He warned lawmakers to take a recent Florida Supreme Court ruling to heart that suggested Florida should require death penalty recommendations by juries be unanimous. A proposal to do just that was defeated earlier this year in the Legislature."I think it’s definitely worth consideration," Bush said. "When the Supreme Court sends a signal like that, it should be not just cast aside, because ultimately, they will have some say in how the death penalty will work."

Docket USSC No. 06A301 Application for stay - Clarence Hill

2006-09-19T12:40:00.000-07:00

http://www.supremecourtus.gov/docket/06a301.htm

No. 06A301

Title:
Clarence Edward Hill, Applicant
v.
James R. McDonough, Secretary, Florida Department of Corrections, et al.

Docketed:
Lower Ct:
United States Court of Appeals for the Eleventh Circuit
Case Nos.:
(06-14927)

~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Sep 18 2006
Application (06A301) for a stay pending the disposition of the petition for a writ of certiorari, submitted to Justice Thomas.

~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
D. Todd Doss
725 Southeast Baya Drive
(386) 755-9119
Suite 102
Lake City, FL 32025-6092
Party name: Clarence Edward Hill

Attorneys for Respondents:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: James R. McDonough, Secretary, Florida Department of Corrections, et al.

Docket USSC - No. 06-6545 - Clarence Hill

2006-09-19T12:36:00.000-07:00

No. 06-6545
*** CAPITAL CASE ***
Title:
Clarence Edward Hill, Petitioner
v.
James R. McDonough, Secretary, Florida Department of Corrections, et al.

Docketed:
September 18, 2006

Lower Ct:
United States Court of Appeals for the Eleventh Circuit
Case Nos.:
(06-14927)

Decision Date:
September 15, 2006

~~~Date~~~
~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Sep 18 2006
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due October 18, 2006)

Sep 18 2006
Application (06A301) for a stay pending the disposition of the petition for a writ of certiorari, submitted to Justice Thomas.

Sep 18 2006
Brief of respondent James R. McDonough, Secretary, Florida Department of Corrections, et al. in opposition filed. (Distributed)

~~Name~~~~~~~~~~~~~~~~~~~~~
~~~~~~~Address~~~~~~~~~~~~~~~~~~
~~Phone~~~
Attorneys for Petitioner:
D. Todd Doss
725 Southeast Baya Drive
(386) 755-9119
Suite 102
Lake City, FL 32025-6092
Party name: Clarence Edward Hill

Attorneys for Respondents:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: James R. McDonough, Secretary, Florida Department of Corrections, et al.

Before execution, be absolutely sure - Clarence Hill

2006-09-19T10:48:00.000-07:00

http://www.miami.com/mld/miamiherald/news/opinion/15552257.htm

September 19, 2006 Florida

Before execution, be absolutely sure
OUR OPINION: FLORIDA SHOULD REPAIR FLAWED DEATH-PENALTY SYSTEM
Miami Herald

Just as doctors take every precaution not to cause a wrongful death, so,t oo, should the state of Florida take every precaution not to execute an innocent person. To Florida's shame, though, the state is doing much less than it should be doing to prevent an innocent person from being wrongfully executed. The governor and state Legislature have the ability to change laws and tighten procedures to make it less likely that the wrong person will be killed by the state -- and they should do so promptly.

22 have been spared

State officials already know that Florida leads the nation in the number of exonerations of Death Row inmates. Since 1973, at least 22 inmates set to be executed have been spared, primarily based on their claims -- affirmed by appellate courts -- that they were innocent or wrongfully convicted. During this same period Florida executed 60 persons.

Now there is more evidence that Florida's death penalty is badly flawed. In an exhaustive report released Sunday, the American Bar Association found that the state's death penalty is ''fraught with problems,'' including continuing racial disparities.

The report compared Florida procedures with 93 ABA standards and found that Florida was in compliance with only eight. An ABA experts' panel unanimously recommended 11 changes, including requiring a unanimous verdict for death sentences; having qualified lawyers represent capital-case defendants; creating uniform statewide standards for deciding who is charged with a capital crime; and rewriting the rules forbidding death sentences and executions of persons with serious mental disabilities.

The panel also recommended that the state look into racial and geographical disparities, noting that since the death penalty was reinstated in 1972 no white defendant has been executed for killing a black person. The ABA's most-important recommendation is that Florida create a commission to study its wrongful convictions and develop an assessment of what can be done to prevent innocent people from being executed.

Save the innocent

It may be politically difficult for state lawmakers to take up this cause because being ''tough on crime'' is often a winner at the polls. But if Florida is going to execute those who commit heinous crimes, it should do all that it can to make sure the judicial system is fair and unfailingly accurate.

Gov. Jeb Bush's recent support of a law that eliminates the deadline for defendants claiming to be innocent to complete DNA tests certainly will be helpful. But no DNA evidence is available for most defendants who claim to be innocent. So it is up to the state to find and fill other gaps in the system that could result in the death of an innocent person.---Source : Miami Herald

http://www.miami.com/mld/miamiherald/news/opinion/15552257.htm

States Await Ruling on Use of Lethal Injection

2006-09-19T08:30:00.000-07:00

http://www.nytimes.com/2006/09/19/us/19death.html?_r=1&ref=us&oref=slogin

September 19, 2006 Florida/US

States Await Ruling on Use of Lethal Injection

By ABBY GOODNOUGH,
The New York Times

MIAMI - Clarence E. Hill was strapped to a gurney last winter, a few moments from death, when the United States Supreme Court halted his execution.

Mr. Hill had claimed that Florida's lethal injection method caused so muchpain that it violated the Constitution's ban on cruel and unusualpunishment. The Supreme Court said in June that the federal district court in Tallahassee had to consider the argument on procedural grounds. That cleared the way for death row inmates around the country to file lawsuits that would otherwise have been prohibited by tight restrictions on petitions for habeas corpus.

But last month, before the district court could review the case, Gov. Jeb Bush rescheduled Mr. Hill's death for Sept. 20. Then, to the surprise of death penalty opponents who thought the district court would take testimony on the state's lethal injection method, the court swiftly rejected the case again. In Atlanta, the United States Court of Appeals for the 11th Circuit upheld the decision last week.

Now, with Mr. Hill scheduled to die Wednesday, he has again appealed to the Supreme Court. And lawyers on both sides of the debate are waiting to see how his case may affect the way lethal drugs are administered in 37 states.

Courts in California and Missouri have allowed extensive hearings this year on the lethal injection process, delaying executions until they can study the question of just how painful the current methods are.

Oklahoma recently changed its protocol so that the condemned receive more anesthesia before they are killed, and a federal judge in North Carolina ordered that a brain monitor be used to make sure an inmate was unconscious when the final drug was given. South Dakota delayed its first execution in 59 years last month after Gov. Michael Rounds said lawmakers needed time to review lethal injection protocols.

Other states, including Texas and Virginia, have continued to execute inmates since the Supreme Court's ruling on the Hill case without holding evidentiary hearings on the specific procedures and combinations ofc hemicals used.

"Nationally there is an inconsistency in the review of lethal injection challenges," said Richard C. Dieter, executive director of the Death PenaltyInformation Center, a research group that opposes capital punishment. "If the Florida case was that serious for the Supreme Court, I would think at a minimum in Florida they would hold an evidentiary hearing to hear from both sides about whether there are particular problems."

The case of Mr. Hill, who killed a police officer in a 1982 robbery in Pensacola, is peaking days after the American Bar Association called for substantial changes in Florida's death penalty laws. In March, the Florida Supreme Court urged the Legislature to require jury decisions to be unanimous in capital cases. Florida is one of the few states without such arule.

Florida switched to lethal injection in 2000 after flames shot from an inmate's head during his execution by electric chair.

When he reinstated Mr. Hill's death warrant last month, Governor Bush said in a letter to prison officials that the stay from the Supreme Court had expired. But Mr. Hill's lawyer, D. Todd Doss, said Mr. Bush, a Republican who supports the death penalty, could instead have filed a motion to accelerate the rehearing of the case. On Monday, Mr. Bush said the delays in Mr. Hill's case had made "a mockery"of the judicial system.

"The challenges have been exhausted," he told reporters in Tallahassee."Unless there's other challenges, I have a duty to sign death warrants, and the system has a duty to carry out the sentence.

"Like most other death-penalty states, Florida uses a combination of three chemicals in lethal injection: one to anesthetize the inmate, a second to paralyze the body and a third to stop the heart. Mr. Hill, 48, has based his case on a 2005 study published in the British medical journal The Lancet that concluded that the anesthetic could wear off before an inmate died.

The Supreme Court ruled unanimously on Mr. Hill's case in June, saying that inmates facing execution by lethal injection could invoke a federal civil rights law to challenge the state's choice of drugs and the manner in which they are administered.

In rejecting Mr. Hill's civil rights claim a second time, a three-judge panel of the 11th Circuit court in Atlanta said he had waited too long to file it - he did so four days before he was to be executed in January - and was merely trying to stall.

Mr. Hill's complaint charged that Florida had adopted its lethal injection procedure without medical research or expertise; that "unqualified" prison officials carried it out; and that the drugs used would "create a dangerous likelihood that Mr. Hill will be conscious throughout the execution process and, as a result, will experience an excruciatingly painful and protracted death."

Mr. Doss, his lawyer, said he had hoped for a hearing in which witnesses could testify to whether Florida's method of lethal injection caused undue pain. But Carolyn M. Snurkowski, assistant deputy attorney general for Florida, said the Supreme Court had made no such guarantee.

"No one has thus far suggested that he is entitled to any kind of hearing,"Ms. Snurkowski said. "The Supreme Court said the equities lie with the state, and if he's too late in filing this, he might not have a vehicle by which he can get relief."

In California, a federal judge is to review the state's lethal injection method in a hearing scheduled to start next week and is to decide whether it presents an unacceptable risk of inflicting extreme pain in violation of the Eighth Amendment. And in Missouri, a federal judge ruled last week that a new protocol for lethal injection still fell short of providing constitutional protections, preventing executions there.

"Whether we win or lose," Mr. Doss said, "it's not going to go away. Each and every person coming up behind us is going to raise this issue."
---Source : The New York Times

http://www.nytimes.com/2006/09/19/us/19death.html?_r=1&ref=us&oref=slogin

Issue Remains As Clock Runs Out - Clarence Hill

2006-09-19T06:42:00.000-07:00

http://www.theledger.com/apps/pbcs.dll/article?AID=/20060919/NEWS/609190410/1039

RELATED ARTICLES

Group Calls for Changes in Death Penalty System Sep 17, 06
U.S. Court Rejects Death Row Appeal Jun 29, 06
Capital Statute Upheld Jun 27, 06
Execution Method Challenges OK'd Jun 13, 06
Justices Debate Lethal Injection Challenge Apr 27, 06
U.S. Justices Deny Death Row Appeal Mar 21, 06
Two Death Row Appeals Rejected Mar 10, 06

Published Tuesday, September 19, 2006

Issue Remains As Clock Runs Out

http://www.theledger.com/apps/pbcs.dll/article?AID=/20060919/NEWS/609190410/1039

By CHRIS TISCH
St. Petersburg Times

Eight months ago, the U.S. Supreme Court stunned legal scholars by delaying the execution of Florida death row inmate Clarence Hill with just minutes to spare.

The court ruled that Hill should be able to challenge his execution through a civil rights lawsuit, a move that some scholars thought would tie up executions for months or years.

But lower courts quickly dismissed Hill's claims that lethal injection amounted to cruel and unusual punishment, prompting Gov. Jeb Bush to reschedule Hill's execution for Wednesday evening.

Legal experts say it's unlikely that Hill will win another 11th-hour reprieve. Still, the case has left a lasting impression on death penalty law and gives other condemned inmates more standing to challenge lethal injection.

"The Hill case brought the lethal injection issue to the forefront," said Hill's lawyer, D. Todd Doss. "It surely opened the door to lethal injection litigation in Florida."

Hill, 48, is on death row for the 1982 murder of Pensacola police Officer Stephen Taylor. A jury convicted Hill of shooting Taylor during a bank robbery.

Hill claims that the three-drug cocktail used in Florida executions is cruel because it causes excruciating pain because a painkiller wears off before the process is complete.

On Jan. 24, Hill reportedly was strapped to a gurney, with lines attached to his arm, when Justice Anthony M. Kennedy stayed his execution.

The court then agreed to hear the argument that Hill could challenge lethal injection through a civil rights lawsuit -something the federal district court had not allowed.

The justices unanimously agreed that Hill could pursue that lawsuit, but gave no direction, however, as to how the lower courts should rule.

The U.S. District Court in Tallahassee turned Hill down, accusing him of using delaying tactics and filing his challenge too late.

On Friday, the 11th U.S. Circuit Court of Appeals in Atlanta also denied Hill.

The clock continued to tick toward execution."

All the U.S. Supreme Court said was that he had the ability to file the action," said Carolyn Snurkowski, an assistant Florida attorney general who handles death penalty appeals. "We've always maintained that he's too late in bringing this claim."

But veteran death penalty defense lawyer Martin McClain said that doesn't make sense. If the federal district court for years didn't allow the civil rights lawsuit and only accepted it after the U.S. Supreme Court ruling made them, how could they then accuse Hill of taking too long to file it?

"It's sort of like circular logic," McClain said. "They said you can't do it, but now that you've done it, even though we said you couldn't do it, you took too long to do it.

"The odds are always against getting the U.S. Supreme Court to intervene in one individual case," McClain added. "I don't know if they'll be troubled enough by the illogic in the 11th Circuit's ruling to take it or not."

Doss said it's unlikely the U.S. Supreme Court agreed to hear this case simply so a lower court could quickly deny the claim without so much as a hearing on whether lethal injection is unconstitutionally cruel.

"It's pretty hard to believe that when the Supreme Court remanded this case, that they did so with the thought that it would be summarily denied with nothing," he said.

Robert Batey, a professor at the Stetson University College of Law, said it makes the legal system look bad to execute someone before all the issues are resolved.

"I'm one who believes you should keep the defendant alive until you can resolve it, but the courts have become so frustrated with the delaying tactics of death row defendants that they simply refuse to grant stays any longer," he said.

Bush said Monday that it was his duty to set a date for Hill's execution."Mr. Hill has had ample time to go through the process to the point where there is a mockery made of the judicial system," Bush said.

Hill's dramatic story has unfolded as the death penalty has been under attack on several fronts in Florida and nationwide.

Lethal injection challenges have stalled executions in several states and botched executions have drawn negative publicity. Public support for the punishment has sagged.

In Florida, the state Supreme Court challenged lawmakers to make it harder for juries to impose the death penalty. Currently, it is easier for a jury to send someone to death row in Florida than in any other state, the opinion said.

And just this week, the American Bar Association issued a 400-page report that found a series of problems with the state's death penalty.

Florida Assessment Team

2006-09-19T04:14:00.000-07:00

http://www.abanet.org/moratorium/assessmentproject/florida.html#team

Florida Assessment Team

Professor Christopher Slobogin, Chair of the Florida Assessment Team, is the Stephen C. O’Connell Chair and Professor of Law at the University of Florida Fredric G. Levin College of Law. He is also Associate Director of the Center on Children and the Law and an Affiliate Professor of Psychiatry to the University of Florida School of Medicine. Professor Slobogin’s teaching and scholarship focus primarily on criminal law, criminal procedure, and mental health law. He has co-authored various books including Law and the Mental Health System: Civil and Criminal Aspects (2003) and Criminal Procedure: An Analysis of Cases and Concepts (2000), Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (1997), and has written numerous articles on the fourth amendment, the insanity defense, the admissibility of expert testimony, and preventative detection. Prior to his tenure at the University of Florida, Professor Slobogin was Director of the Western State Legal Aid Society as well as Director of the Virginia Forensic Psychiatry Training and Evaluation Center. Professor Slobogin received his undergraduate degree from Princeton University and his J.D. and LL.M. degrees from the University of Virginia.

Judge O.H. Eaton, Jr. is a judge on the 18th Judicial Circuit Court of Florida, where he has served in every division of the court including criminal, civil, family, juvenile, and probate. He served as Chief Judge from 1989 to 1991. Prior to his election to the court in 1986, Judge Eaton was in private practice from 1973 to 1986, and served as Assistant State Attorney from 1971 to 1973. Judge Eaton is a member of the Florida Bar Criminal Law Section Executive Council and the Supreme Court Criminal Court Steering Committee. He previously served as chair of the Florida Bar Criminal Procedure Rules Committee, and as chair of the Criminal Justice Section of the Florida Conference of Circuit Judges. He was also a member of the Florida Sentencing Commission. Judge Eaton has received numerous awards and honors including the State Attorney’s Victim’s Rights Award (1987), the Florida Council on Crime and Delinquency’s Distinguished Service Award for the Judiciary (1988), and the Williams/Johnson Outstanding Jurist Award (1998). Judge Eaton received both his undergraduate and law degrees from the University of Florida.

Dr. Mark R. Fondacaro is an Associate Professor of Psychology at the University of Florida and an Associate Director of the Levin College of Law’s Center on Children and Families. Dr. Fondacaro has a wide range of teaching and research interests—including procedural and distributive justice, ecological jurisprudence, and family conflict resolution. In addition to his faculty and administrative duties at the University of Florida, Dr. Fondacaro maintains a private clinical psychology and consulting practice in Gainsville, Florida. Before joining the University of Florida faculty in 1997, Dr. Fondacaro was a Research Assistant Professor at the University of Nebraska’s Center on Children, Families and the Law. He also previously practiced environmental law at Pillsbury, Madison & Sutro in San Francisco, California. Dr. Fondacaro received his B.A. from the State University of New York at Stony Brook and his Ph.D in Clinical Psychology from Indiana University-Bloomington. He received his post-doctoral training in Clinical and Community Psychology at Stanford University. Dr. Fondacaro is also a graduate of Columbia Law School.

Michael J. Minerva retired from the Florida Public Defender’s Office for the 2nd Judicial Circuit in 2001 after working there for approximately thirty years. Since his retirement, Mr. Minerva has served as a training consultant for the Public Defender of the Ninth Judicial Circuit in Orlando, and as a coach for the Florida State University mock trial team. While at the Public Defender’s Office, Mr. Minerva served as Assistant Public Defender and as Public Defender, as well as Director of the Office of Capital Collateral Representative of Florida, the state agency representing death sentenced individuals in post-conviction. Minerva was the 1992 recipient of the Craig Barnard Memorial Award from the Florida Public Defenders Association and the 2003 recipient of the Steven M. Goldstein Criminal Justice Award from the Florida Association of Criminal Defense Lawyers. Mr. Minerva is currently a member of the Tallahassee Bar Association and the Tallahassee Chapter of the Association of Criminal Defense Lawyers. Mr. Minerva received both his undergraduate and law degrees from the University of Florida.
Mark Schlakman serves as the Program Director for the Center for the Advancement of Human Rights’ Liberty in the Balance Project at the Florida State University. Prior to joining the Center’s staff, Mr. Schlakman held several government positions at the state and federal levels including, special counsel to Florida Governor Lawton Chiles; advisor to Governor Jeb Bush during his transition into office; senior advisor to Governor Kenneth H. “Buddy” McKay, Jr. during his tenure as President Clinton’s White House Special Envoy for the Americas, and as a special advisor to U.S. Senator Bob Graham of Florida. In addition to his numerous appointments, Mr. Schlakman also served as a foreign affairs officer for the U.S. Department of State. Mr. Schlakman is a graduate of the University of Miami and of the Georgetown University Law Center.

Justice Leander J. Shaw, Jr. is a former Justice on the Florida Supreme Court. He was appointed to the Supreme Court by Governor Bob Graham in 1983, where he served until his retirement in 2003. Prior to his appointment to the Supreme Court, Justice Shaw served on the First District Court of Appeals. Before his judicial appointments, Justice Shaw was appointed to the Florida Industrial Relations Board, and was in private practice at the Tallahassee law firm of Harrison, Finegold & Shaw. Justice Shaw served on Florida’s State Attorney’s Office’s staff, heading the Capital Crimes Division and serving as an adviser to the grand jury. Justice Shaw is a member of the American Bar Association and the National Bar Association, as well as the Florida Bar, the Florida Government Bar, and the Tallahassee Bar Associations. Justice Shaw received his undergraduate degree from West Virginia State College and his J.D. from Howard University Law School. He holds honorary Doctor of Law degrees from West Virginia State College, Nova University, and Washington and Lee University. Justice Shaw was also awarded an honorary Doctor of Public Affairs degree from Florida International University.

Harry L. Shorstein is the State Attorney for the Fourth Judicial Circuit of Florida. He was appointed State Attorney in 1991 by Governor Lawton Chiles. During his tenure as State Attorney, Mr. Shorstein has implemented a successful and highly acclaimed juvenile justice program that combines prevention with punishment and rehabilitation. The approach is based on early intervention for at-risk youth, incarceration for violent and repeat offenders, and extensive education and rehabilitation programs. Mr. Shorstein has experience in both the defense and prosecution of criminal cases. Prior to his appointment as State Attorney, Mr. Shorstein served as Division Head in the Office of the Public Defender, as well as Division Head and Chief Assistant State Attorney.He also worked in the General Counsel’s office for the City of Jacksonville, Florida. He also was in private practice in Jacksonville, Florida and was in provate practice in Jacksonville for fifteen years. Mr. Shorstein served as a captain in the Third Marine Division during the Vietnam Conflict for which he received numerous commendations, including a Bronze Star. Mr. Shorstein received both his undergraduate and law degrees from the University of Florida.

Sylvia H. Walbolt is a Shareholder with the Tampa law firm of Carlton Fields, where she specializes in federal and state appeals in all areas of litigation including tort, products liability, commercial, constitutional, and employment. At Carlton Fields, she is Chair of the Board of Directors and of the Appellate Practice Group. Ms. Walbolt was a charter member of the Florida Bar, and was named one the top 10 women litigators by the National Law Journal in 2001. She is a Fellow of the American College of Trial Lawyers, and a past president of the American Academy of Appellate Lawyers. Ms. Walbolt has received numerous awards including the Herbert G. Goldburg Outstanding Trial Lawyer of the Year Award in 1998, recognizing professionalism, ethics, and devotion to the practice of law. She was also the first woman recipient of the 2003 George C. Carr Memorial Award which was named after the late Judge Carr and is the highest award presented by the Federal Bar Association’s Tampa Bay Chapter. The award recognizes excellence in federal practice and distinguished service to the federal bar. Ms. Walbolt received both her undergraduate and law degrees from the University of Florida.

Resources on the Administration of the Death Penalty in Florida

Richard L. Rosenbaum, Child's Play No Longer: Children Charged and Tried as Adults in Florida-Ending up in Prison For Life Without Parole, 28 Nova L. Rev. 485 (2004).
L. Elizabeth Chamblee, Time for a Legislative Change: Florida's Stagnant Standard Governing Competency for Execution, 31 Fl. St. Univ. L. Rev. 335 (2004).
Catherine Arcabascio, Freeing the Innocent: Obtaining Post-Conviction DNA Testing in Florida, 28 Nova L. Rev. 61 (2003).
Benjamin F. Diamond, The Sixth Amendment: Where did the Jury Go Wrong? Florida's Flawed Sentencing in Death Penalty Cases, 55 Fla. L. Rev. 905 (2003).
Ken Driggs, Regulating the Five Steps to Death: A Study of Death Penalty Direct Appeals in the Florida Supreme Court, 1991-2000, 14 St. Thomas L. Rev. 759 (2002).
Case Histories: A Review of 24 Individuals Released from Death Row, Florida Commission on Capital Cases, Sept. 10, 2002.
Michael L. Radelet, Recent Developments in the Death Penalty in Florida, Feb. 2002, at www.fadp.org/pad/aresearch.html.
Sentencing Alternatives for Juveniles Indicted for Murder, Interim Project Report 2002-129, Florida Senate (2001).
Donna Buchholz, Modern Day Chateau D'If In Florida? Collecting Dust on the Shelves of Justice: Potentially Exculpatory DNA Evidence Waits For A Turn in the Florida Sunshine, 30 Stetson L. Rev. 391 (2000).
James E. Harrison, The Juvenile Death Penalty in Florida: Should Sixteen-Year-old Offenders be Subject to Capital Punishment, 1 Barry L. Rev. 159 (2000).
Lonn Lanza-Kaduce, Charles E. Frazier, and Donna M. Bishop, Juvenile Transfers in Florida: The Worst of the Worst?, 10 Univ. Fl. J. L. & Pub. Pol'y 277 (1999).
Henry George White, Charles E. Frazier, and Lonn Lanza-Kaduce, A Socio-Legal History of Florida's Juvenile Transfer Reforms, 10 Univ. Fl. J. L. & Pub. Pol'y 249 (1999).
Ken Driggs, The Most Aggravated and Least Mitigated Murders: Capital Proportionality Review in Florida, 11 St. Thomas L. Rev. 207 (1999).
Report to the Commission on the Administration of Justice in Capital Cases, Florida State University, prepared by Isabelle Potts and Gretchen Hirt, Jan. 1999, at www.fcc.state.fl.us/fcc/reports/fsu/fsuexsum.html.
Overview of Judicial Process from Arrest through Post-Conviction, Law Office of the Capital Collateral Regional Counsel Middle Region, Nov. 9, 1998, at www.fcc.state.fl.us/fcc/reports/appeals.html.
Michael Mello, Outlaw Executive 'Crazy Joe', The Hypnotized Witness, and the Mirage of Clemency in Florida, 23 J. Contemp. L. 1 (1997).
Gary Caldwell, Florida Capital Cases: July 1, 1994-June 30, 1995, 20 Nova L. Rev. 1255 (1996).
Juvenile Justice Transfer Legislation in Florida: Assessing the Impact on the Criminal Justice and Correctional Systems, Florida Corrections Commission (1993-94).
Analysis of Florida Felony Offenders Serving Sentences in County Jails, Corrections Commission (1994).
Gary Caldwell, Capital Crimes: 1993 Survey of Florida Law, 18 Nova L. Rev. 117 (1993).
Gary Caldwell, Capital Crime Decisions: 1992 Survey of Florida Law, 17 Nova L. Rev. 31 (1992).
Michael L. Radelet and Glenn L. Pierce, Choosing Those Who Will Die: Race and the Death Penalty in Florida, 43 Fl. L. Rev. 1 (1991).
William S. Geimer and Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J. Crim. L. 1 (1987/1988).
David W. Doyle, Life or Death in Florida: What Mitigating Evidence will the Judge Consider in Capital Cases?, 4 Cooley L. Rev. 693 (1987).
Linda A. Foley, Florida After the Furman Decision: The Effect of Extralegal Factors on the Processing of Capital Offense Cases, 5 Behav. Sci. & L. 457 (1987).
Michael L. Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida, 18 U.C. Davis L. Rev. 1409 (1985).
Michael Radelet and Margaret Vandiver, The Florida Supreme Court and Death Penalty Appeals, 74 J. Crim. L. & Criminology 913 (1983).
Hans Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv. L. Rev. 456 (1981).
Discrimination and Arbitrariness in Capital Punishment: An Analysis of Post-Furman Murder Cases in Dade County, Florida, 1973-1976, 33 Stan. L. Rev. 75 (1980).
Peter W. Lewis, Henry W. Mannle, Harry E. Allen, and Harold J. Vetter, A Post-Furman Profile of Florida's Condemned-A Question of Discrimination in Terms of the Race of the Victim and a Comment on Spenkelink v. Wainwright, IX Stetson L. Rev. 1 (1979).

Human Rights Watch Urges Governor Jeb Bush to Postpone the Execution of Clarence Hill

2006-09-19T03:34:00.000-07:00

http://www.allamericanpatriots.com/m-news+article+storyid-16412.html

U.S. :

Human Rights Watch Urges Governor Jeb Bush to Postpone the Execution of Clarence Hill

http://www.allamericanpatriots.com/m-news+article+storyid-16412.html

Human Rights Watch Urges Governor Jeb Bush to Postpone the Execution of Clarence Hill

Letter to the Governor's Office and the State of Florida:

"Governor Jeb Bush
The Capitol 400 South Monroe Street Tallahassee, FL 32399
September 18, 2006

Dear Governor Bush:

Clarence Hill is scheduled to be executed by lethal injection on Wednesday. Mr. Hill has repeatedly filed requests seeking details on the chemicals and procedures that will be used to kill him yet the state has refused to provide Mr. Hill—or the public—with the information he has requested. The information is important because it could indicate whether Mr. Hill will be executed by means that could inflict intense and extended pain during execution. We urge you to postpone Mr. Hill’s execution so that legitimate and well-founded concerns that Florida’s lethal injection protocol may result in cruel and unusual punishment can be examined. We also call on you to order public hearings to review Florida’s lethal injection protocol.

Other states have already taken such measures. Recently, South Dakota Governor Mike Rounds postponed the lethal injection of convicted murderer Elijah Page just days before his scheduled execution, citing concern about the state’s protocols. In California, a judge recently ordered hearings on California’s lethal injection protocol after logs from six recent executions revealed that prisoners’ chests were still moving regularly up and down long after the anesthetic component of the lethal injection should have stopped their breathing. These chest movements suggest the prisoners may have been awake and suffering.

Human Rights Watch has recently researched and documented why lethal injection protocols are increasingly viewed as causing unnecessary pain and suffering. Most people believe lethal injections to be painless. Yet mounting evidence from states across the country—and from Florida execution records—suggests that the current method of lethal injection may in fact be a very painful way to die.

Florida adopted lethal injection executions in 2000—in part because of pressure to do away with the electric chair after a prisoner’s head erupted in flames during a botched electrocution. Since then, Florida has executed sixteen prisoners by lethal injection. Most people believe lethal injections to be painless.

The three-drug lethal injection protocol used in Florida and every other lethal injection state works like this: the condemned prisoner is strapped to a gurney and injected with a massive dose of the anesthetic sodium pentothal, which should render him unconscious. Next he is injected with pancuronium bromide, a drug that paralyzes voluntary muscles, including the lungs and diaphragm. Finally, he is injected with potassium chloride, which should bring swift cardiac arrest.

The problem, however, is that if the anesthetic does not render the prisoner unconscious, he will experience tremendous pain—he will feel himself suffocating from the pancuronium bromide and will feel his veins burning up as the potassium chloride courses to his heart. Potassium Chloride is so painful that U.S. veterinarian guidelines prohibit its use on domestic animals unless a veterinarian first ensures they are deeply unconscious. No such safeguards are observed for human executions. Indeed to our knowledge, neither Florida – nor any of the other lethal injection states – has ever subjected its lethal injection protocol to scrutiny by independent pharmacologists or the public.

Some information on Florida lethal injections is public, despite the efforts of the Florida Department of Corrections. During the June 8, 2000 execution of Bennie Demps it took execution technicians thirty-three minutes to find suitable veins for the execution. In his final statement, Demps said: "They butchered me back there, I was in a lot of pain. They cut me in the groin; they cut me in the leg. I was bleeding profusely. This is a low-tech lynching by poison."

Autopsy reports from the lethal injections of Thomas Provenzano on June 21, 2000 and Robert Glock on January 11, 2001 indicate that executioners had a hard time finding and maintaining intravenous access to their veins—raising doubts about whether the condemned inmates received the lethal injection chemicals in the order and amount necessary to prevent intense suffering before death. Toxicology reports in Missouri and North Carolina also suggest some prisoners may have been inadequately anesthetized before they were killed.

As you know, Florida adopted lethal injection executions in 2000—in part because of pressure to do away with the electric chair after a prisoner’s head erupted in flames during a botched electrocution. Since then, Florida has executed sixteen prisoners by lethal injection. As governor of Florida, you have the responsibility and authority to ensure that the method of execution used does not subject the condemned prisoner to cruel and unusual punishment, such as through infliction of unnecessary and avoidable pain. Available evidence suggests Florida’s three drug protocol fails that test. In resisting court challenges, public information requests, and local and national media attention, Florida has gone to great lengths to keep its residents from knowing how it conducts lethal injections and what has actually happened during recent executions. If Florida believes that its protocols can withstand scrutiny, why the secrecy?

Human Rights Watch believes that all executions are inherently cruel. But if a state is going to have the death penalty, it cannot simply adopt an execution procedure because it looks good. By refusing thus far to subject their protocols to public scrutiny, Florida has failed its residents who entrust them with the awesome responsibility of executing prisoners. We urge you to postpone Clarence Hill’s execution, and order public hearings into Florida’s lethal injection protocols and procedures.

Sincerely,
Jamie Fellner Director,
U.S. Program"Source: Human Rights Watch

PETITION FOR A WRIT OF CERTIORARI - Clarence Hill

2006-09-18T14:51:00.000-07:00

http://www.clarencehill.us/legal/petcert11.htm

DOCKET NO. _______
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2006
444444444444444444444444444444444
CLARENCE EDWARD HILL
Petitioner,
vs.
WILLIAM McDONOUGH,
SECRETARY FLORIDA
DEPARTMENT OF CORRECTIONS;
AND
CHARLIE CRIST,
Florida Attorney General,
Respondent(s).
444444444444444444444444444444444
CAPITAL CASE
EXECUTION SCHEDULED FOR
SEPTEMBER 20, 2006, 6:00 P.M.
444444444444444444444444444444444444444
PETITION FOR A WRIT OF CERTIORARI
TO THE ELEVENTH CIRCUIT COURT OF APPEALS
444444444444444444444444444
D. TODD DOSS
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
COUNSEL FOR PETITIONER
-i-
QUESTIONS PRESENTED

continues here :

http://www.clarencehill.us/legal/petcert11.htm

APPLICATION FOR STAY OF EXECUTION - to USSC - Clarence Hill

2006-09-18T14:23:00.000-07:00

http://www.clarencehill.us/legal/applicationforstayUSSC.htm

DOCKET NO. _______
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2006
444444444444444444444444444444444
CLARENCE EDWARD HILL
Petitioner,
vs.
WILLIAM McDONOUGH,
SECRETARY FLORIDA
DEPARTMENT OF CORRECTIONS;
AND
CHARLIE CRIST,
Florida Attorney General,
Respondent(s).
444444444444444444444444444444444
CAPITAL CASE
EXECUTION SCHEDULED FOR
SEPTEMBER 20, 2006, 6:00 P.M.
444444444444444444444444444444444444444
APPLICATION FOR STAY OF EXECUTION
PENDING RESOLUTION OF PETITION
FOR A WRIT OF CERTIORARI TO THE
ELEVENTH CIRCUIT COURT OF APPEALS
444444444444444444444444444
D. TODD DOSS
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
COUNSEL FOR PETITIONER
-1-
REQUEST FOR STAY OF EXECUTION
Petitioner, Clarence Edward Hill, applies to this Court
pursuant to 28 U.S.C. § 2201(f) for a stay of his execution,
currently scheduled for September 20, 2006 at 6:00 p.m., and
states as follows:
1. On September 1, 2006, Mr. Hill filed an amended
complaint pursuant to 42 U.S.C. § 1983 in the United States
District Court, Northern District of Florida, Tallahassee
Division. Mr. Hill alleged violations of his right to be free
from cruel and unusual punishment under the Eighth and Fourteenth
Amendments to the United States Constitution. On that same date,
the district court denied Mr. Hill’s complaint for declaratory
and injunctive. Thereafter, the district court denied Mr. Hill’s
motion for reconsideration on September 11, 2006.
2. On September 13, 2006, Mr. Hill filed a Notice of
Appeal. On that same date, Mr. Hill filed in the Eleventh
Circuit an Application for a Stay of Execution and for Expedited
Appeal, which was denied on September 15, 2006.
3. Mr. Hill seeks an Order from this Court for a stay of
execution pursuant to 28 U.S.C. § 2201(f), which provides in
part:
In any case in which the final judgment or decree of
any court is subject to review by the Supreme Court on
writ of certiorari, the execution and enforcement of
such judgment or decree may be stayed for a reasonable
time to enable the party aggrieved to obtain a writ of
certiorari from the Supreme Court.
-2-
4. Mr. Hill asks this Court to stay his presently
scheduled execution to allow the Court adequate time to consider
the Petition.
5. This Court's authority to enter a stay of execution has
been analyzed by this Court as involving the following four-part
test:
whether the movant has made a showing of
likelihood of success on the merits and of
irreparable injury if the stay is not
granted; whether the stay would substantially
harm other parties, and whether granting the
stay would serve the public interest. Bundy
v. Wainwright, 808 F.2d 1410, 1421 (11th Cir.
1987). See also, Barefoot v. Estelle, 463
U.S. 880 (1983)
6. Mr. Hill has met the standards attendant to the
granting of a stay of his execution. Each of the criteria is
satisfied in this case.
A. IRREPARABLE INJURY
7. If the requested stay is not issued, Mr. Hill will be
executed at 6:00 p.m. on Wednesday, September 20, 2006. This
execution will carry an unacceptably high risk of being conducted
in a torturous manner in violation of Mr. Hill’s Eighth Amendment
right to be free from cruel and unusual punishment. This
constitutes irreparable injury. See, e.q., Evans v. Bennett, 440
U.S. 1301, 1306 (1979) (Rehnquist, Circuit Justice, granting a
stay of execution and noting the “obviously irreversible nature
of the death penalty”); O’Bryan v. Estelle, 691 F.2d 706, 708
-3-
(5th Cir. 1982) (the “irreversible nature of the death penalty”
constitutes irreparable injury and weighs heavily in favor of
granting a stay); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.
1996) (holding that continued pain and suffering resulting from
deliberate medical indifference is irreparable harm).
Additionally, the State’s violation of Mr. Hill’s Eighth
Amendment rights alone validates a presumption of irreparable
harm. See Associated General Contractor’s of California, Inc. v.
Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir.
1991) (an alleged constitutional infringement will often alone
constitute irreparable harm).
B. HARM TO OTHER PARTIES
8. There will be no harm to other parties if a stay of
execution is granted. Mr. Hill will remain in custody at Florida
State Prison, where he has been held since his conviction and,
most recently, since the stay of execution was entered by the
Supreme Court of the United States on January 25, 2006. A
relatively brief continuation of the status quo will cause
absolutely no harm to other parties. See Gomez v. U.S. Dist. Ct.
For Northern Dist. Of Cal., 966 F.2d 460, 462 (9th Cir. 1992)
(Noonan, J., dissenting from grant of writ of mandate) (“The
state will get its man in the end. In contrast, if persons are
put to death in a manner that is determined to be cruel, they
suffer injury that can never be undone, and the Constitution
-4-
suffers an injury that can never be repaired.”)
C. PUBLIC INTEREST
9. Although there are competing public interests,
ultimately one factor favors the issuance of the temporary relief
sought. Certainly, the public has an interest in the execution
of Mr. Hill pursuant to the judgment of the Florida Courts. More
importantly, however, it has an interest in determining that Mr.
Hill’s execution will be carried out consistent the with
requirements of the Eighth Amendment. Additionally, the State
has an interest in not subjecting Mr. Hill to the excruciating
and torturous pain likely involved in the lethal injection
process Florida intends upon utilizing. See Sims v. State, 754
So.2d 657 (Fla. 2000). It is therefore paramount that Mr. Hill’s
weighty constitutional claims be resolved on the merits.
10. Further, as set forth in his petition, by arbitrarily
setting an execution date while this case was awaiting remand,
the State has attempted to manipulate the process and deny Mr.
Hill his right to have this unconstitutional method of execution
reviewed on the merits. Certainly, it is in the public interest
not to permit the State to deprive Mr. Hill of his right to
pursue his claims, and thereby achieve its ultimate goal – to
prevent Florida’s lethal injection procedure from being subjected
to any meaningful scrutiny.
-5-
D. THE LIKELIHOOD THAT MR. HILL WILL PREVAIL ON THE MERITS
11. The likelihood that Mr. Hill will prevail on the merits
of his claims is demonstrated by the discussion presented in
detail in his Petition, which examines recent developments in
similarly situated cases where the merits have actually been
examined. Given the success in those cases, a stay of execution
and full and fair review are appropriate here.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished to Carolyn Snurkowski, Assistant
Attorney General, Office of the Attorney General, Plaza Level 1,
The Capitol, Tallahassee, FL 32399, this 18th day of September
2006.
/s/ D. Todd Doss
D. Todd Doss
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025
Telephone: 386-755-9119
Facsimile: 386-755-3181
Attorney for Mr. Hill

Will Clarence Hill get another SCOTUS ex machina?

2006-09-18T13:47:00.000-07:00

From the Blog Sentencing, Law and Policy

September 18, 2006

Will Clarence Hill get another SCOTUS ex machina?

http://sentencing.typepad.com/sentencing_law_and_policy/2006/09/will_clarence_h.html

I am not betting that the Supreme Court will intervene again to keep the state of Florida from executing Clarence Hill based on his Eighth Amendment claims against Florida's lethal injection protocols.

But, I would not have expected the first stay that SCOTUS issues back in January, which came after Hill was already strapped to a gurney with IV lines ready to start his execution. After the Eleventh Circuit's (bloodless?) dismissal of Hill's 1983 action late last week (details here),

I have no prediction about whether the Justices will care this time around. SCOTUSblog has some of the details here surrounding Hill's application for a stay of his scheduled execution.

Some recent related posts:

Up and down the Hill again
My lethal injection piece on SSRN
Missouri still struggling with its execution protocol
My take on the other side of Hill

Hill seeks delay of execution

2006-09-18T13:42:00.000-07:00

From Scotus Blog :

Monday, September 18, 2006

Hill seeks delay of execution

http://www.scotusblog.com/movabletype/archives/2006/09/hill_seeks_dela.html

Posted by Lyle Denniston at 02:45 PM

Clarence E. Hill, a Florida death row inmate who won a Supreme Court decision in June allowing him to pursue a challenge to the protocol used to carry out executions by lethal injection, on Monday asked the Supreme Court to delay his scheduled execution so that he can get a chance to make that very challenge. His attorney argued in the stay application: "By arbitrarily setting an execution date while this case was awaiting remand, the State has attempted to manipulate the process and deny Mr. Hill his right to have this unconstitutional method of execution reviewed on the merits." The attorneys accused the state of using tactics to prevent "any meaningful scrutiny" of its lethal injection procedure.

Hill's application ((06-A-301) sought a stay of the scheduled execution Wednesday evening, until the SCt acts on a new petition for review (06-6545), in the case of Hill v. McDonough. In that petition, Hill's lawyers are seeking to delay the execution so that his constitutional claim can go forward. The stay application can be found here. The petition for certiorari can be found here. The cert petition raises three somewhat complex questions; the second of these implies that the Circuit Court wrongly failed to issue the mandate in the case and only sent it back to the District Court after the Florida goveroer had re-set the execution date, "citing the lack of judicial activity." The questions are articulated in the front of the linked petition.

The Eleventh Circuit Court on Friday refused to stay Hill's execution; it did so without ruling on his challenge to Florida's lethal injection protocol. It said that his lawyers had been engaging in delaying tactics, and that it would not allow itself to be drawn into a "protracted, and ultimately futile," review of his case. It said it was "denying his request for an injunction based upon our independent analysis of the equities."

The Circuit Court said that, in the Supreme Court's June 12 decision sending Hill's case back to lower courts, the Supreme Court had said that federal courts should protect states from "dilatory or speculative suits" seeking to delay the enforcement of criminal sentences.

Comments

On the last page of its Hill opinion, the Supreme Court cites Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam), indicating it is still good law. Given that precedent, the Eleventh Circuit and the District Court are clearly correct. The cases are not distinguishable. A method-of-execution claim raising objections that have been known for years is raised at the eleventh hour to stop the execution. In Gomez, the Court lifted a stay issued by a lower court. I don't see the Court turning around and doing the opposite here.
Posted by: Kent Scheidegger at September 18, 2006 03:18 PM

Kudos to Jeb Bush for resetting the date. It's good to see states willing to test federal stays.
Posted by: federalist at September 18, 2006 03:43 PM

Up and down the Hill again

2006-09-18T13:38:00.000-07:00

September 15, 2006
Up and down the Hill again

http://sentencing.typepad.com/sentencing_law_and_policy/2006/09/up_and_down_the.html

Clarence Hill won a big battle a few month ago: in early June (as detailed here and here and here), the Supreme Court held that he could proceed with his § 1983 claim alleging that
Florida's lethal injection protocol is unconstitutional. But now it appears he is about to lose the war to avoid his execution.

Today, the Eleventh Circuit in Hill v. McDonough, No. 06-14972 (11th Cir. Sept. 15, 2006) (available here), denied Clarence Hill's request for a stay of execution so he could effectively appeal the district court's decision last week to dismiss his § 1983 claim. As detailed in this newspaper article, it does not appear that Hill has even received an adjudication of his claim on the merits in the district court, and the Eleventh Circuit decision today never considers the substance of Hill's underlying Eighth Amendment claim.

Here is what it says instead:
In light of Hill's actions in this case, which can only be described as dilatory, we join our sister circuits in declining to allow further litigation of a § 1983 case filed essentially on the eve of execution.

It will be interesting to see if the Supreme Court might intervene yet again, or if Florida will finally get to execute Mr. Hill for the crimes he committed two decades ago.

Some recent related posts:

My lethal injection piece on SSRN
Missouri still struggling with its execution protocol
My take on the other side of Hill
Hill lethal injection case finally kicked back to district court
South Dakota Governor halts execution over lethal injection concerns
Lethal injection litigation creates de facto moratorium in Ohio and...

Amnesty International USA Condemns Florida's Rush to Execute

2006-09-18T13:21:00.000-07:00

AMNESTY INTERNATIONAL USAPRESS RELEASE

Monday, September 18, 2006

Amnesty International USA Condemns Florida's Rush to Execute

Clarence Hill Scheduled for Execution September 20,

Even Though Courts Still Have Not Fully Considered His Civil Rights Claim (Washington, DC) - Amnesty International USA (AIUSA) today urged Florida Governor Jeb Bush to issue a stay of execution to Clarence Hill, who is scheduled to be executed on Wednesday, September 20.

AIUSA Executive Director Larry Cox has written to Governor Bush, calling for a moratorium on all executions in the state.

Hill was originally scheduled to be executed on January 24 and was strapped
to the gurney, awaiting the administration of the lethal injection cocktail,
when the U.S. Supreme Court intervened in his case. The Court decided to
consider whether Hill was entitled to file a challenge to the
constitutionality of lethal injection under federal civil rights law.

This action by the Court set off a flurry of legal activity in more than adozen states regarding the constitutionality of lethal injection as it iscurrently administered. On June 22, 2006, the Justices ruled unanimously in
favor of Hill, allowing him to proceed with his challenge to the state'slethal injection process as a civil rights claim. Yet to date, no court has
granted the required thorough consideration of his claim. In an attempt to
spur the courts to act, Governor Bush announced in August that Hill'sexecution would proceed. This order directly contradicts the governor'sstatement earlier in the year that he would not sign a death warrant until
the issues raised in Hill's case were fully resolved.

"Governor Bush's about-face in this case is outrageous," said Sue
Gunawardena-Vaughn, the Director of AIUSA's Program to Abolish the DeathPenalty. "Allowing this execution to proceed without a single examination of
the numerous problems associated with Florida's administration of lethal
injection is an affront to common sense and common decency.

" This execution is scheduled at a time when other groups are raising
significant questions about Florida's death penalty system. Yesterday, a
blue-ribbon assessment panel appointed by the American Bar Association (ABA)revealed that Florida's capital punishment policies fail to meet basic
standards of fairness and justice. The nine-member assessment team's close
examination of eight key areas of death penalty administration found that
the state does not have adequate safeguards in place to prevent the
execution of an innocent person; 22 people have been released from death row
in Florida due to evidence of their wrongful conviction. In addition,Florida is the only state in the country that does not require a jury to be
unanimous in recommending the death penalty.

"Now is the time for citizens and policymakers to engage in a thoughtful and
honest assessment of our state's death penalty," said Mark Elliott, AIUSA'sFlorida Death Penalty Abolition Coordinator. "Now is not the time to rush to
execute Clarence Hill - or any other death row inmate for that matter. It is
stunning that we are proceeding with such haste at the very moment when our
state's death penalty system has been revealed to be so fundamentally
flawed."

Contact: AIUSA's Media Relations Unit, 202-544-0200, ext. 302 Mark Elliott, AIUSA's Death Penalty Abolition Coordinator for Florida,727-215-9646 (cell) ---Source : Amnesty Internationalhttp://www.amnestyusa.org/news/document.do?id=ENGUSA20060918001

Death row appeals - Capital offense?

2006-09-18T11:18:00.000-07:00

September 15, 2006
By: Jordana Mishory
Critics are questioning whether state officials timed the release of a recent critical report about the chief attorneys of the two Florida death penalty appeals offices to undermine the program and ensure that
the two men are not reappointed.

The report, by the Florida Department of Financial Services, headed by Republican Tom Gallagher, the state’s chief financial officer, was released
late last month. That was just days before the Florida Supreme Court
Judicial Nominating Commission began soliciting applications for
the Capital Collateral Regional Counsel posts for South and Central Florida.

The report alleged that the counsel for South Florida, Neal Dupree, mismanaged the agency and misspent state dollars. It said Dupree spent
more than $100,000 of state money lobbying to save the CCRC from
Gov. Jeb Bush’s effort to end the program. It also said the counsel for
Central Florida, Bill Jennings, spent $119,000 on a lobbyist for the same purpose. In addition, it said Dupree illegally sent two attorneys to Cuba
in 1999 to investigate a case and paid a recent hire before she started
working. Dupree denies all allegations of wrongdoing.

Dupree originally was appointed in 1998 by Gov. Lawton Chiles and was reappointed three times by Gov. Bush. Jennings was appointed by Bush in 2001 and reappointed once. The term of appointment is three years.

“I guess we represent our clients so well that it’s time to fire m e,” Dupree
said in an interview Wednesday.

Jennings declined to comment about the report.

Rejecting complaints that the report was released to coincide with the reappointment process, Tami Torres, a spokeswoman for the
Department of Financial Services, said the staff released the report
when they “were satisfied that the report was thorough and accurate.”

State Sen. Victor Crist, R-Tampa, who serves on the Commission on
Capital Cases — which oversees the CCRC program and the state’s
registry list of private lawyers who handle post-conviction petition cases
— said the commission will discuss the report’s finding at its meeting on Monday.

But Roger Maas, the commission’s executive director, said the report
would not be on the agenda. Maas said the governor’s office will be looking
into the report’s allegations. The governor’s office did not return a call for comment by deadline.

Supporters of the CCRC agency — whose 29 state-employed lawyers
represent death row inmates in post-conviction habeas corpus petitions
— said some of the allegations in the state report are erroneous. Crist said there’s nothing in state law that prohibits the CCRC offices from hiring lobbyists.

The report, which was triggered by whistle-blower complaints from former CCRC employees, urged Gallagher to recover the money spent on the
lobbyists from Dupree and Jennings personally

The CFO has not decided whether to ask Dupree and Jennings for the
money back as the report recomm ends.

CCRC supporters note that Gov. Bush and other conservative Republican leaders long have sought to kill the respected agency and switch to a
system of hiring private lawyers to represent defendants in the complex
habeas cases. Bush and his allies have fought to speed up the death penalty process, and have blamed the appellate process for delaying executions.

State Rep. Jack Seiler, D-Pompano Beach, said the timing of the report’s release was suspect because of its proximity to the reappointment
process. He noted that both Dupree and Jennings have been vocal
about their opposition to plans to disband or privatize the CCRC.
“My concern is that this report may be used as a death knell to
disband the southe rn and middle districts and try to go to the
registry program,” Seiler said.

Seiler said he plans to address some of these issues raised in the
report in the next legislative session. “If dollars are being misused
and wasted, those are things I intend to address,” he said. “This could
be a situation where we need to put some regulations in place and
add some accountability and transparency.” But, he added, if the
allegations are used to eliminate the CCRC program, it would be
like “killing an ant with a sledgehammer.”

CCRC’s fate on the line

The Legislature established CCRC offices in Fort Lauderdale, Tampa and Tallahassee in 1997.

Post-conviction petition appeals involve claims of
fresh evidence of innocence, prosecutorial misconduct or ineffective
counsel. Experts say such cases require experienced, skilled attorneys
and hundreds of hours of work.

The program became a national model
for other states in handling post-conviction petition work. Yet, just six
years after the creation, the agency was fighting for its survival.

Gov. Bush and other conservative Republicans proposed to close
the offices and outsource the work to attorneys on the private registry list.

Under a bill pushed through in 2003, the Legislature next year is slated to receive a report from the state auditor general comparing the cost-
effectiveness of representation by the CCRC and private attorneys on a
state registry. Lawmakers could decide whether to continue the CCRC or replace it with a privatized program. The 2003 law eliminated the
CCRC’s northern office in Tallahassee.

Both Republican and Democratic lawmakers and prominent members of the legal community have fought
to save the CCRC. Supporters say the CCRC has provided quality representation and saved the state money by ensuring that proceedings
didn’t need to be redone because of ineffective counsel.

Early last year,
Florida Supreme Court Justice Raoul G. Can tero III, a Bush appointee, criticized the general quality of work by private attorneys in post-conviction capital cases, saying the work of CCRC attorneys generally is superior.
A 2001 report by the Le gislature’s Office of Program Policy and
Government Accountability sharply criticized the state-run private
registry program.

Last month’s investigative report by the
Florida Department of Financial Services assailed Dupree and Jennings
for hiring lobbyists Martin McDonnell and Allen Higginbotham in
2003 to convince lawmakers to preserve their program.

According to the report, the CCRC offices are not allowed to hire lobbyists because a state statute prohibits members of the executive branch from using state
funds for lobbying. The report recommended that state CFO Gallagher
recover the funds paid to the lobb yists.

But Sen. Crist, who wrote the
bill that created the CCRCs, disputed that interpretation. He said the Legislature made sure that the CCRC was not part of the executive branch because that would pose a major conflict of interest in representing defendants.

He noted that the executive branch is headed by the governor,
who signs death warrants. Crist said it also would be a conflict to have the CCRC fall within the judicial branch, because the Florida Supreme Court decides whether to uphold or overturn death sentences.

An April advisory opinion from the Florida attorney general’s office stated that the CCRC is
not part of the executive branch.

The Department of Financial Services
report also contended that Dupree violated state and federal laws when
he sent two attorneys to Cuba to do investigative work on a case.

Dupree
said in an interview that the fact that a client is from Cuba shouldn’t
preclude the office from being able to do the in-depth investigation of his upbringing. He added that he doesn’t remember all the details of the
lawyers’ trip to Cuba because it occurred seven years ago.

The report
also said Dupree improperly spent public funds when he placed a new
hire on the state payroll before she began working full-time and that he purchased a home computer with office funds for his personal use.

Dupree complained that the report did n ot adequately incorporate his extensive responses to the charges. He also said the investigators interviewed him months before the report was released, but his comments were only
included as an addendum.

The main body of the report stated that Dupree repeatedly refused to be interviewed.

“By refusing to produce public
records and by refusing repeated requests for an interview, Mr. Dupree
himself impeded the department’s ability to complete the report,” DFS spokeswoman Torres said in an e-mail. She also said that the department
staff began to write the initial report when it appeared that they would be unable to interview Dupree.

“Rather than substantially re-write the initial report, the staff chose to address the Dupre e interview in an addendum,” Torres wrote. Dupree has hired attorney David Bogenschutz to represent
him. “The report is a one-sided hatchet job totally designed to mess with
our region and the middle region,” Dupree said .

Seeking reappointment

Despite the report, Dupree said he is reapplying for the CCRC post but
that he is apprehensive about his chances of being appointed. Rep.
Seiler also expressed concern about Dupree’s chances given the
release of the report.

In contrast, Bill Jennings said he is confident
that he will be reappointed.

A three-year study comparing the
performance of CCRC lawyers with private lawyers on the state registry
is due out in January. Dupree said he has been working closely with
the auditor general’s office on the study for the past two and a half years
.
Jim Dwyer, the audit manager, said the report will examine the
effectiveness of the CCRC versus the private registry program. He
declined to comment further.

Dupree said he fears that if he is not closely involved in the final part of the study, the CCRC program will not be
properly represented before the Legislature. His successor, he argued,
won’t be sufficiently familiar with the agency or the auditing process to
make the best case for the CCRC.

The chair of the Supreme C ourt JNC,
Tina McCain Matte, a Fort Myers publicist, said she has not yet
received any applications for the two CCRC positions, though she
has received a number of phone inquiries. Matte said she was unaware
that Dupree and Jennings planned to reapply. All nine members of the
JNC are Bush appointees.

Applications are due by Sept. 29, with
interviews scheduled for Oct. 6. The JNC will forward three names for
each position to the governor. Bush leaves office in January.

Both the
JNC and The Florida Bar have been promoting the application process
through e-mails targeted to potential candidates in the criminal defense
field as well as mailings to all members of the Bar.

Matte said that during
the last CCRC appointment proc ess three years ago, there were few
applicants. The annual salary for the position ranges between $75,000 and $133,000 and candidates must be a member of good standing in The Florida Bar for the preceding five years.

Matte said the JNC “has a responsibility to ensure that Gov. Bush has an excellent field of candidates to consider when making appointments from the applicants we recommend.”

A source who
did not want to be identified said Gov. Bush and other conservatives
strongly dislike the CCRC because it aggressively represents death row
inmates, while they favor speeding up the death penalty process.

“No one
likes providing legal counsel and spending money on people who committed the most heinous of crimes,” the sourc e said. “There are people who are in leadership positions that would like to see the CCRC not exist and never appreciated the fact that they had representatives in the legislative process fighting for the resources.”

U.S. Rep. Jim Davis of Tampa, the Democratic candidate for governor, said via e-mail that he hopes the Departm ent of Financial Services report was not politically motivated. But he said that any problems with the management or administration of the CCRC should be addressed.

“For several years, the CCRCs have played an important role
while serving as one of the state’s main safeguards against miscarriages of
justice in death penalty proceedings,” Davis said. “I look forward to
reviewing the auditor general’s report.”

Davis’ Republican opponent,
Attorney General Charlie Crist, did not return calls for comment.

Jordana Mishory can be reached at jmishory@alm.com
or at (954) 468-2616.
Neal Dupree photo by Melanie Bell

Death Penalty Appeal

2006-09-18T08:15:00.000-07:00

Death Penalty Appeal

http://cfn13.com/StoryHeadline.aspx?id=18697

A death row inmate is set to be executed on Wednesday, but an appeal before the federal courts could stay that execution again.

Clarence Hill is trying to fight his death sentence. He says Florida’s execution method of lethal injection is cruel and unusual punishment, a violation of the 8th Amendment.

Some studies show the anesthesia used in the lethal injection does not protect from excruciating pain.

Last June, the U.S. Supreme Court ruled that lower courts had to consider Hill's case as a civil rights violation.

Hill is accused of killing a Pensacola police officer during a bank robbery in 1982.

According to a new report by the American Bar Asscoiation, the Florida death penalty system needs a major overhaul. The report identified 11 problem areas in the state's death penalty system.

Some of those problems include:

the number of death row inmates who have been exonerated. There have been 22 since 1973, which is more than any other state in the country.

The report also found a significant amount of death sentences have been imposed on people with severe mental disabilities.

Jurors in Capital cases are routinely confused about the role they play when deciding whether a convict should get the death penalty.

Lack of transparency in the clemency system and in charging practices.

In addition, statistics show a suspect in Florida is more likely to get the death penalty for killing a white victim, than for killing a minority.

For more information tune to Central Florida News 13. Only on Bright House Networks.

Michael Peltier: All eyes on Florida for death penalty showdown

2006-09-18T07:58:00.000-07:00

http://www.naplesnews.com/news/2006/sep/18/michael_peltier_all_eyes_florida_death_penalty_sho/?local_news

Michael Peltier: All eyes on Florida for death penalty showdown

By Michael Peltier (Contact)

Monday, September 18, 2006

TALLAHASSEE — The eyes of the nation will turn to Florida this week as combatants in the longstanding debate over the death penalty watch to see who will blink in a showdown between Florida Gov. Jeb Bush and the U.S. Supreme Court.

In January, the nation's high court stepped in to stop the execution of Clarence Hill, who was moments away from being Florida's latest death row inmate to be put to death by lethal injection, the method of choice for most states that mete out the ultimate punishment.

Minutes before his scheduled demise, Justice Anthony Kennedy put a hold on the procedure. The conservative jurist was responding to an appeal by Hill's attorney that Florida's three-drug death cocktail — a process that puts an inmate to sleep, paralyzes the lungs, then triggers a heart attack — was cruel and unusual because the inmate may feel pain but be unable to respond.

Kennedy's ruling sent the case back to federal court to determine if further hearings were needed. Last month, Bush signed another death warrant for Hill, setting his execution date for 6 p.m. Wednesday.

Bush's decision put the ball back in the court's court. Last week, a federal judge in Tallahassee refused to take testimony on whether the procedure itself was flawed. The case is now before the 11th Circuit Court of Appeals, which could rule on the case as early as today.

Hill was sentenced to death more than two decades ago for the murder of a law enforcement officer in Pensacola. He has so far survived three death warrants.

What's pretty clear is that the case will return to the U.S. Supreme Court before Wednesday. What's less clear is whether the high court will allow the identical issue to come before them without any substantive hearings lower down the chain. The 376 inmates on Florida's death row will likely be paying attention.

Affordable housing meeting held in Tampa

Nearly 400 leaders from around the state converged on Tampa Bay last week to address the unmistakable need for affordable housing in Florida.

In an attempt to spur further legislative action when lawmakers return in March, the Florida Chamber of Commerce assembled a who's who of policymakers and industry leaders to look at ways to slow the loss of affordable housing in a state where service sector jobs dominate the economy.

"This is one instance where the failure to act means that the problem will fix itself – people will stop moving to Florida, growth will stop and as a result, housing prices will drop," said Frank Ryll, Florida Chamber Foundation president, in a prepared statement to open the summit.

"Or we can diversify our economy and bring an educated, trained work force to Florida and continue to grow as a state. We have a choice and by gathering the stakeholders here today we have agreed to address the issue and make sure that Florida progresses and grows."

Last session, lawmakers led by Rep. Mike Davis, R-Naples, and others pumped more than $500 million into affordable housing efforts. That was in addition to hundreds of millions more for hurricane repair and mitigation. Davis said the push would be a multi-year effort.

From lawyer Karl Keys blog - Clarence Hill

2006-09-18T02:59:00.000-07:00

http://www.capitaldefenseweekly.com/2006/09/first-look-at-week-that-was.html

From lawyer Karl Keys blog :

The lethal injection in litigation surrounding Clarence Hill is about to reach another crucial turning point, Hill v. McDonough.

The Eleventh Circuit denies relief on a narrow ground, that his petition should have been brought earlier. Hill, who is scheduled to be killed by Florida on the twentieth, was also denied a stay. The Court in Hill earlier addressed the issue of question of how a lethal injection challenge can be brought but not when, especially in light of the dueling concerns of undue delay vs. ripeness.

11 circuit order in Clarence Hill September 15, 2006

2006-09-18T02:49:00.000-07:00

http://www.clarencehill.us/legal/11circuitorder.htm

FILED

U.S. COURT OF APPEALS
ELEVENTH CIRCUIT

September 15, 2006

THOMAS K. KAHN
CLERK
[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________
No. 06-14927
_____________
D.C. Docket No. 06-00032-CV-SPM

CLARENCE E. HILL,
Plaintiff-Appellant,
versus
JAMES MCDONOUGH,
CHARLES CRIST,
Defendants-Appellants.

______________
Appeal from the United States District Court
for the Northern District of Florida
_____________
(September 15, 2006)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:

2
Petitioner Clarence E. Hill, currently an inmate on Florida’s death row,
moves this court for a stay of execution and expedited appeal of the dismissal of
his pending action pursuant to 42 U.S.C. § 1983, in which he alleges violations
and threatened violations of his rights under the Eighth and Fourteenth
Amendments to the U.S. Constitution. We find that Hill does not meet the
standard for injunctive relief, and accordingly we deny his petition.
The basic facts of the underlying case resulting in Hill’s death sentence are
set forth in the decision of the Florida Supreme Court affirming Hill’s conviction
and death sentence on direct appeal. Hill v. State, 515 So. 2d 176, 177 (Fla.
1987). Over the course of more than 20 years, Hill has pursued various
unsuccessful appeals and collateral proceedings seeking to have his conviction
and death sentence overturned. On January 24, 2006, four days before his
scheduled execution, Hill filed a civil complaint under 42 U.S.C. § 1983. In his
complaint, Hill alleged that the particular three-drug lethal injection method used
by Florida to carry out executions constituted cruel and unusual punishment in that
the administration of the first drug might insufficiently render the condemned
prisoner unconscious. Thus, a condemned prisoner might suffer severe pain
caused by the administration of the second and third drugs in the execution series.
3
The day after Hill filed his complaint, the district court dismissed his claims
for lack of jurisdiction, holding that Hill’s action was effectively a successive
petition for a writ of habeas corpus filed without leave and, thus, ran afoul of 28
U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL 167585, at
*2–*3 (N.D. Fla. Jan. 21, 2006). On appeal, this court affirmed, denying Hill’s
application for a stay. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006). The
Supreme Court stayed the execution, granted certiorari and reversed, holding that
Hill’s claim could properly be brought as a § 1983 action where it challenged only
the particular lethal injection protocol being used by the state, not the validity of
lethal injection sentences generally. Hill v. McDonough, 546 U.S. ---, 126 S. Ct.
1189, 1190, 163 L. Ed. 2d 1144 (2006) (mem.); 547 U.S. ---, 126 S. Ct. 2096,
2102, 165 L. Ed. 2d 44 (2006). On remand, we further remanded the case to the
district court for consideration on the merits. Hill v. McDonough, --- F.3d ---,
2006 WL 2472727, at *1 (11th Cir. Aug. 29, 2006).

Thereafter, in the course of one day – September 1, 2006 – Hill filed an
amended complaint and request for a preliminary injunction, the State filed a
response and motion to dismiss, and the district court issued an order denying the
injunction and dismissing the complaint. On September 5, 2006, Hill moved for
reconsideration, which motion was denied by the district court on September 11.
Although Hill generally characterizes his motion as one for a “stay of execution,” it is 1
apparent that he petitions this court for a preliminary injunction, not a stay of the district court’s
order. The action of the district court leaves nothing for this court to stay, as the dismissal of the
complaint and denial of reconsideration leave no further action to be taken by the district court.
Instead, we treat Hill’s motion as a request for an order temporarily enjoining the State from
carrying out Hill’s execution until his appeal in this case can be decided.

4
Now, Hill asks this court to stay his impending execution to allow for an expedited
appeal.1

At the outset, we note that we do not here review the district court’s order
denying Hill’s request for injunctive relief and dismissing his complaint. By his
current motion, Hill asks only that we delay the execution and expedite his appeal.
Were we to grant the relief that Hill seeks, we would only reach a review of the
district court’s decision after receiving the parties’ arguments via an accelerated
briefing schedule. With Hill’s execution scheduled to be carried out within a
matter of days from our receipt of the instant motion, we decline to engage in that
protracted, and ultimately futile, sequence of events.

Instead, we dispose of Hill’s motion by denying his request for an
injunction based upon our independent analysis of the equities. In its decision
remanding Hill’s action to this court, the Supreme Court noted that it did not rule
on whether a condemned § 1983 plaintiff challenging the method of execution
might be eligible for a stay of execution to allow him to pursue his suit, but that
“federal courts can and should protect States from dilatory or speculative suits” in
5
recognition of the “important interest in the timely enforcement of a sentence.”
Hill v. McDonough, 547 U.S. at ---, 126 S. Ct. at 2104. The Court further noted
that “a stay of execution is an equitable remedy. It is not available as a matter of
right, and equity must be sensitive to the State’s strong interest in enforcing its
criminal judgments.” Id. Thus, we consider Hill’s motion for injunctive relief
anew, but with the clear indication from the Supreme Court in this case that we
may deny Hill’s request if the equities demand that result.

As with any application for injunctive relief, our analysis turns in part on
the type of injunction being sought. Hill’s request for a preliminary injunction is
not predicated on any independent cause of action; instead, he requests the
injunction solely for the purpose of allowing time to pursue his appeal. As such,
the injunction sought is not a “traditional” injunction, but instead one grounded in
the authority of the federal courts under the All Writs Act, 28 U.S.C. § 1651(a),
which states, “The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law.” See Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1099–1100 (11th Cir. 2004) (explaining that
“[t]he Act does not create any substantive federal jurisdiction” and that the Act “is
a codification of the federal courts’ traditional, inherent power to protect the
Because we already have subject matter jurisdiction over Hill’s appeal of the dismissal 2
of his § 1983 action, this case is entirely different from In re: Clarence Edward Hill, 437 F.3d
1080, 1083 (11th Cir. 2006), where our jurisdiction ceased once we denied Hill’s application
under 28 U.S.C. § 2244(b)(3)(A) to file a successive petition for a writ of habeas corpus.
6
jurisdiction they already have, derived from some other source”). An injunction
under the All Writs Act “must simply point to some ongoing proceeding, or some
past order or judgment, the integrity of which is being threatened by someone
else’s action or behavior.” Id. (noting “a court’s traditional power to protect its
jurisdiction”). Such is clearly the case here. Hill has noticed his appeal of the
district court’s dismissal of his § 1983 complaint, and we clearly have jurisdiction
over that appeal. Were we to grant a preliminary injunction in order to allow time
to hear Hill’s appeal, we would be doing so to protect our appellate jurisdiction
from the impending act of the State of Florida to execute Hill.2

We find, however, that the equities do not support Hill’s request. Simply
put, Hill was the architect of the very trap from which he now seeks relief. At the
outset, Hill filed his § 1983 complaint four days before his previously scheduled
execution date of January 24, 2006, and just after the Florida Supreme Court
rejected his application for post-conviction relief on, among other grounds, his
challenge to the Florida lethal injection protocol. See Hill v. State, 921 So. 2d
579, 582–83 (Fla. 2006). Hill’s assertion of essentially the same lethal injection
The Florida Supreme Court relied on Sims in rejecting Hill’s lethal injection challenge 3
during post-conviction proceedings. Hill v. State, 921 So. 2d at 582–83.
7
challenge in the Florida courts reveals that he was aware of the grounds for the
claim much earlier than the date on which he actually filed his § 1983 action in
federal district court. But we need not rely on that inference alone to determine
that Hill unreasonably delayed in filing his federal complaint. The Florida
Supreme Court considered a challenge to the Florida lethal injection protocols on
similar grounds as early as 2000. Sims v. State, 754 So. 2d 657, 666–68 (Fla.
2000). Although it is unclear from the procedural history whether Hill addressed 3
the Sims precedent in his post-conviction proceedings after 2000, the fact remains
that, during the pendency of his various collateral challenges, Florida had
considered the same type of claim upon which Hill now seeks relief. In light of
this context, Hill cannot claim that it was impossible for him to initiate his federal
suit any earlier.

Further, with regard to more recent procedural history, Hill has again
demonstrated his intent to delay proceedings in order to necessitate a stay. After
the district court denied his request for injunctive relief and dismissed his
complaint, Hill moved for reconsideration and, again, for a stay of execution. The
district court denied his motions on September 11, 2006, noting that “Hill’s
8
emotionally-laden arguments raise no new evidence. . . . [I]t appears that Hill is
engaging in dilatory tactics to delay a death sentence.” Order Denying Motion for
Reconsideration and Motion for Stay at 2–3, Hill v. McDonough, No. 4:06-CV-
032-SPM (N.D. Fla. Sept. 11, 2006). By moving for reconsideration, Hill only
further delayed this court’s receipt of his case on appeal, bringing us within days
of his scheduled execution before he filed the instant motion for a stay and
expedited appeal.

In light of Hill’s actions in this case, which can only be described as
dilatory, we join our sister circuits in declining to allow further litigation of a §
1983 case filed essentially on the eve of execution. See White v. Johnson, 429
F.3d 572, 573–74 (5th Cir. 2005) (holding that even if the condemned inmate’s §
1983 action was cognizable, “‘he is not entitled to the equitable relief he seeks’
due to his dilatory filing” (citations omitted)); Harris v. Johnson, 376 F.3d 414,
417–18 (5th Cir. 2004) (condemned inmate who filed § 1983 action ten weeks
before his scheduled execution “leaves little doubt that the real purpose behind his
claim is to seek a delay of his execution, not merely to effect an alteration of the
manner in which it is carried out”); see generally Hicks v. Taft, 431 F.3d 916 (6th
Cir. 2005); Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004). This holding is
consistent with the Supreme Court’s instruction in its remand of Hill’s case that
9
“[a] 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 time as
to allow consideration of the merits without requiring entry of a stay.’” Hill v.
McDonough, 547 U.S. at ---, 126 S. Ct. at 2104 (citation omitted).

Accordingly, Hill’s motion for a stay of execution and expedited appeal is
DENIED.

Backgrounds of Execution Team Criticized

2006-09-17T05:05:00.000-07:00

http://kcbs.com/pages/84157.php?contentType=4&contentId=206646

Posted: Saturday, 16 September 2006 5:05PM

Backgrounds of Execution Team Criticized

San Francisco, Calif. (KCBS) --

The constitutionality of California's execution by lethal injection will be heard this month in a Federal District Court room in San Jose.

Newly released court records reveal the backgrounds of some of the San Quentin officials charged with handling the procedure.

The documents, obtained by newspapers including the San Francisco Chronicle, cite drug possession, DUI's, post traumatic stress disorder and depression in the personal history of some members of the state's so-called execution team.

Court papers also revealed a lack of training in the mixing of the drugs used in the execution procedure. The competency of the administration of lethal injection goes to the heart of the claim that it is unconstitutional under the Eight Amendment, prohibiting cruel and unusual punishment.

KCBS' Jane McMillan reported that federal judge Jeremy Fogel said during the four-day hearing set for the 26th of this month, he wants to determine whether or not there is a constitutional means of carrying out an execution in the state of California.

He said his concern with the overall legality of the lethal injection lies more in systemic problems and training. There have been no executions in California since attorneys for condemned killer Michael Morales, convicted for the 1981 rape and murder of a Lodi teenager, claimed the practice constituted "cruel and unusual punishment." They said pain killers prior to the lethal injections are not properly administered.

U.S. District Judge Jeremy Fogel has a four-day hearing set for the 26th of this month in San Jose to determine if the procedure can be executed competently.

In a related case, a Florida inmate who made a similar claim is scheduled to die on Wednesday.
The U.S. Supreme Court allowed Clarence Hill to petition his district Federal court, which rejected it.

The court in that case ruled that the claim should have been filed six years ago when Florida first implemented lethal injection.

For third time, Hill faces death

2006-09-17T03:29:00.000-07:00

Published - September, 17, 2006

For third time, Hill faces death

Paul Flemming

http://www.pensacolanewsjournal.com/apps/pbcs.dll/article?AID=/20060917/NEWS01/609170332/1006

News Journal capital bureau
TALLAHASSEE

Twenty-four years after the murder that brought Clarence Hill a death sentence, he's again scheduled for execution on Wednesday and his appeal is again winding its way through federal courts.

Gov. Jeb Bush set a new execution date for Hill last month. Hill's remaining appeal, kicked back by the U.S. Supreme Court in June, is now before the 11th Circuit U.S. Court of Appeals.

He faces death for the murder of Stephen Taylor, a Pensacola police officer shot by Hill in the midst of a daytime bank robbery attempt in 1982.

It's the third time Hill has faced an execution date -- the first in 1989; the second, earlier this year.

Thus far, the result of Hill's appeal in court has been much the same as it was back in January when the 43-year-old condemned man was cinched down on a gurney with needles in his arm ready to deliver the deadly cocktail of drugs that would kill him.

At the last moment, Supreme Court Justice Anthony Kennedy granted a stay.

Last week, U.S. District Judge Stephan Mickle dismissed Hill's request to delay his execution and refused to conduct hearings on whether Florida's execution methods are unconstitutional.

"Hill's emotionally laden arguments raise no new evidence," Mickle wrote in a Thursday order that denied a rehearing on his earlier rejection of Hill's motion for a stay.

In June, the U.S. Supreme Court ruled in Hill's favor and said lower courts should consider as a civil rights claim his appeal that Florida's way of delivering lethal injections could be cruel and unusual punishment.

It was a procedural decision that nonetheless gave Hill hope that he could get a full hearing that delivery of a three-drug cocktail that anesthetizes, paralyzes and then stops the heart could cause him unconstitutional suffering.

Death penalty opponents heralded the Supreme Court decision as a chance to review Florida's lethal injection methods, as has taken place in California and Missouri cases that are similar to Hill's.

But the federal district court continued last week to decide Hill's appeal on legal grounds that haven't considered the merits of the argument that lethal injection is cruel and unusual.

"The judge at the district court essentially didn't change anything (from January) and simply refused to litigate the case," said Mark Elliott, spokesman for Floridians for Alternatives to the Death Penalty

.Opponents also hoped the court's decision meant a moratorium on executions for the 376 inmates on Florida's Death Row.

But when Bush renewed Hill's existing death warrant last month, that hope ended. The courts rolled into action and, thus far, have gone the state's way.

Elliott said a review of the state's methods are merited.

"Whenever elected officials say there's no problem, but don't look here, that should raise red flags and the public should be looking there," Elliott said. "Our motto is 'In God We Trust,' not In Gov We Trust.

"The state has argued that the Hill's argument does not offer any new information from what's already been tried before in Florida and that Hill has sought the review too late.

"He's complaining about the fact that you're going to execute me, without really considering the complaint," said Carolyn Snurkowski, assistant deputy attorney general for the state.

She said the Supreme Court decision meant only that Hill's appeal had to be considered by the courts as a civil rights claim.

"There's no guarantee you get a stay, no guarantee of anything.

"Hill's attorney, Todd Doss, said there is new material about the drugs Florida uses to execute prisoners since the 2000 case that the courts have said settled the issue.

Futhermore, Doss said, testimony offered in Missouri and California cases has revealed relevant material that the anesthesia used in the executions can fail to protect the condemned from excruciating pain.

Mickle has "never held a hearing to take any evidence, no discovery whatsoever," Doss said. "Even absent a stay, we should be able to proceed (with hearings).

"Doss and Snurkowski said they expect a decision from the federal appellate court on Monday. Doss said that however that goes he expects the loser to appeal to the U.S. Supreme Court.

But for now, Hill remains scheduled to die at 6 p.m. Wednesday at Florida State Prison outside Starke.

Lawyer: Hill's death sentence could be carried out

2006-09-15T12:30:00.000-07:00

September 15, 2006

Florida Lawyer: Hill's death sentence could be carried out

By RON WORD, Associated Press

Condemned police killer Clarence Hill faces execution next week after federal courts have refused to once again stop his death based on his claims that Florida's lethal injection process is unconstitutional.

Hill was strapped to a gurney with lines running into his arms in January, when the U.S. Supreme Court stayed his execution for the 1982 shooting death. In June, the high court ruled unanimously that he could ask federal courts to decide whether the injection chemicals are too painful and amount to cruel and unusual punishment.

But so far, federal courts haven't ruled on whether the chemicals should be used, and have agreed with the state's arguments that Hill should have challenged the use of the chemicals when the state switched to lethal injection in 2000. Gov. Jeb Bush has rescheduled the execution for 6 p.m.Wednesday.

"By arbitrarily setting an execution date ... the state has attempted to manipulate the process and kill Mr. Hill before its unconstitutional method of execution is reviewed on its merits," defense attorney D. Todd Doss argued in court documents before the U.S. District Court in Tallahassee.

But on Monday, U.S. District Judge Stephan P. Mickle refused to grant a stay to Hill's execution and accused Hill in court documents of engaging in delaying tactics to halt his execution. Doss challenged that ruling Thursday with the 11th U.S. Circuit Court of Appeals in Atlanta, which has previously turned him down.

Hill, 48, has argued that the three chemicals used in Florida executions and by many other states - sodium pentothal, pancuronium bromide and potassiumchloride - can cause excruciating pain. The first drug is a painkiller. The second one paralyzes the inmate and the third causes a fatal heart attack.

A 2005 study published in the Lancet medical journal questioned whether a painkiller administered at the start of an execution can wear off before a prisoner dies, causing the inmate severe pain. Hill based his legal claims on that study.

Carolyn Snurkowski, an attorney handling death penalty cases for Florida Attorney General Charlie Crist, said Hill is not entitled to challenge the chemicals used. She also said Hill shouldn't have waited until four days before his scheduled execution in January to challenge them. Doss, however, said he could not file the challenge until the death warrant was signed last November.

The Supreme Court only allowed him the right to file his claims, not "an automatic license for an evidentiary hearing," Snurkowski said.

Deborah W. Denno, a professor at Fordham Law School and an expert on the death penalty, was surprised that Hill has not received a court hearing to determine the merits of his claims.

"The problems in Florida are shared with other states - the chemicals used, poor training, the environment in which injections are done and the secrecy of the process," Denno said.

Doss said the only court hearing since Hill received the stay was his appearance before the Supreme Court, which didn't decide whether the injections were cruel and unusual punishment.

Supreme Court Justice Anthony M. Kennedy said in June that while Hill and other inmates can file special appeals under a federal civil rights law after exhausting regular appeals, they will not always be entitled to delays in their executions.

Mark Elliott, a spokesman for Floridians for Alternatives to the Death Penalty, believes Hill should receive his day in court."With so many unanswered questions about Florida's method of execution, this action by the lower courts is a ghoulish abuse of the legal system," Elliott said. "What is hidden behind the killing room curtain."

Hill was condemned for killing police Officer Stephen Taylor during the Oct.22, 1982, robbery of a savings and loan in Pensacola. Taylor's relatives traveled to Starke in January to see Hill die and were disappointed with a stay. They want it to happen this time.

Jack Taylor, of Pensacola, said there is no doubt that Hill shot and killed his brother and he is unhappy with the fight over whether Hill might feel pain when he is executed.

"When it comes to the fact that he will be uncomfortable when he dies, that is bull," Taylor said.-

--Source : Associated Press

http://www.gainesville.com/apps/pbcs.dll/article?AID=/20060915/APN/609151755

Do Not Execute Clarence Edward Hill!

2006-09-12T06:25:00.000-07:00

Clarence Edward Hill, FL September 20, 2006

Do Not Execute Clarence Edward Hill!

Clarence Edward Hill

September 20, 2006

Florida

Clarence Edward Hill, a black man, faces execution in Florida for the murder of a police officer during a robbery in Pensacola, Florida. Hill and his accomplice Cliff Jackson stole a car and a gun and then attempted to rob a savings and loan association. When officers arrived, Jackson ran out the front door and was apprehended, while Hill ran out the back. Hill then came to the front of the building to shoot the officers that were subduing Jackson.

Hill was 23 at the time and there is evidence to suggest that Jackson masterminded the crime. Regardless of this evidence, Jackson was able to plea bargain for a life sentence while Hill received a death sentence. There is also evidence to suggest that Hill was under the influence of cocaine at the time of the crime.

Furthermore, evidence and testimony show that Hill was known by his neighbors and family to be a caring and nonviolent person and that he had a trouble free-history throughout his years in school and in the neighborhood where he lived. In addition, Hill held a steady job from ninth grade until he became involved with drugs at age 23. Hill used money from work to help support his large family of 14 children. He also contributed time to helping raise his younger siblings. Also, although Hill remained in school until the 12th grade he never progressed beyond a fifth-grade reading level.

Clearly Hill is not the worst of the worst and therefore the death penalty is not appropriate for Clarence Edward Hill.

Please write to Gov. Jeb Bush on behalf of Clarence Hill!

HISTORY update 9-11-06 Clarence Hill

2006-09-11T14:04:00.000-07:00

http://www.clarencehill.us/legal/history091106.htm

39
Filed & Entered:
09/01/2006
Order

41
Filed & Entered:
09/05/2006
Terminated:

09/06/2006
Motion for Reconsideration
--
Filed & Entered:
09/06/2006
Action Required by Chambers
43

Filed & Entered:
09/06/2006
Terminated:
09/11/2006
Motion for Reconsideration

44
Filed & Entered:
09/06/2006
Terminated:
09/11/2006
Motion for Miscellaneous Relief

45
Filed & Entered:
09/06/2006
Docket Annotation

46
Filed & Entered:
09/06/2006
Response in Opposition to Motion
--
Filed & Entered:
09/07/2006
Action Required by Chambers

47
Filed & Entered:
09/11/2006
Order on Motion for Reconsideration

Docket update federal court 09-11-06- Clarence Hill

2006-09-11T14:03:00.000-07:00

http://www.clarencehill.us/legal/docket-09-11-06.htm

09/01/2006
39
ORDER re 34 Response filed by JAMES V CROSBY, JR, 37 Amended Complaint filed by CLARENCE E HILL, Motion to Dismiss Granted, Amended Complaint Dismissed. No stay of execution will issue in this case. Signed by Judge STEPHAN P MICKLE on 09/01/2006. (pao, Gainesville) (Entered: 09/01/2006)

09/05/2006
41
MOTION for Reconsideration re 39 Order, Dismissing Complaint by CLARENCE E HILL. (Attachments: # 1 Appendix)(DOSS, D) Modified on 9/7/2006 (llt, Gainesville). (Entered: 09/05/2006)

09/06/2006
43
CORRECTED MOTION for Reconsideration re 39 Order, Dismissing Complaint by CLARENCE E HILL. (Attachments: # 1)(DOSS, D) (Correcting 41 Motion for Reconsideration re: 39 Order) Modified on 9/6/2006 to clarify text(llt, Gainesville). (Entered: 09/06/2006)

09/06/2006
44
MOTION to Accept "Plaintiff's Motion for Temporary Injunction to Stay His Execution Scheduled for September 20, 2006 at 6:00 p.m." as Timely Filed by CLARENCE E HILL. (Attachments: # 1 Attachment)(DOSS, D) (Entered: 09/06/2006)

09/06/2006
45
DOCKET ANNOTATION BY COURT: Re 41 MOTION for Reconsideration re 39 Order, Dismissing Complaint filed by CLARENCE E HILL, and re: 43 CORRECTED MOTION for Reconsideration re 39 Order, Dismissing Complaint filed by CLARENCE E HILL; Doc 41 was refiled per request by Chambers as it was unsigned; Also, 44 MOTION to Accept "Plaintiff's Motion for Temporary Injunction to Stay His Execution Scheduled for September 20, 2006 at 6:00 p.m." as Timely Filed filed by CLARENCE E HILL, was improperly attached to Doc 41 and is now posted separately per request by Chambers, (llt, Gainesville) (Entered: 09/06/2006)
09/06/2006

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 44 MOTION to Accept "Plaintiff's Motion for Temporary Injunction to Stay His Execution Scheduled for September 20, 2006 at 6:00 p.m." as Timely Filed, and 43 Corrected MOTION for Reconsideration re 39 Order, Dismissing Complaint (llt, Gainesville) (Entered: 09/06/2006)
09/06/2006
46
RESPONSE in Opposition re 44 MOTION to Accept "Plaintiff's Motion for Temporary Injunction to Stay His Execution Scheduled for September 20, 2006 at 6:00 p.m." as Timely Filed, 43 MOTION for Reconsideration re 39 Order, Dismissing Complaint filed by JAMES V CROSBY, JR. (SNURKOWSKI, CAROLYN) (Entered: 09/06/2006)
09/07/2006

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 44 MOTION to Accept "Plaintiff's Motion for Temporary Injunction to Stay His Execution Scheduled for September 20, 2006 at 6:00 p.m." as Timely Filed, 43 MOTION for Reconsideration re 39 Order, Dismissing Complaint, and 46 Response in Opposition to 43 and 44 Motions, (llt, Gainesville) (Entered: 09/07/2006)

09/11/2006
47
ORDER denying 43 Motion for Reconsideration filed by CLARENCE E HILL and denying 44 Motion to Stay; signed by Judge STEPHAN P MICKLE. (tss, Gainesville) (Entered: 09/11/2006)

ORDER DENYING MOTION FOR RECONSIDERATION

2006-09-11T13:59:00.000-07:00

http://www.clarencehill.us/legal/show_case_doc_47,41522,,,,,182,1.pdf - PDF

http://www.clarencehill.us/legal/order9-11-06.htm - HTML

Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

CLARENCE HILL,
Plaintiff,

***CAPITAL***
vs. CASE NO. 4:06-CV-032-SPM

JAMES McDONOUGH and
CHARLIE CRIST,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION
AND MOTION FOR STAY

THIS CAUSE
comes before the Court upon Plaintiff Hill’s “Corrected
Motion for Reconsideration and Setting Aside of Order Dismissing Complaint and
Denying Preliminary Temporary Injunction” (doc. 43); the Government’s
response in opposition (doc. 46); and the “Plaintiff’s Motion for Temporary
Injunction to Stay His Execution Scheduled for September 20, 2006 at 6:00 p.m.”
(att. 1 to doc. 44), all filed September 6, 2006. For the reasons set forth below,
the Court finds the motion should be denied.

Hill does not specify whether his motion for reconsideration is brought
pursuant to Federal Rule of Civil Procedure 59 or 60. The major distinction
between the two is that Rule 59 “applies to motions for reconsideration of matters
encompassed in a decision on the merits of the dispute, and not matters
collateral to the merits.” Lucas v. Fla. Power & Light Co., 729 F.2d 1300, 1301

Page 2 of 3

1 The only point raised by Hill that bears mention is his insistence that he could not have
brought his § 1983 action until his death warrant was signed, because it was only then that he
could determine the specific means by which the State would carry out his execution. This point
necessarily assumes that the State arbitrarily and capriciously (or secretly) changes its chemical
cocktail on a regular basis. Even assuming that Hill was not previously aware of Florida’s
procedures for lethal injection, the 1999 Sims case detailed the procedure from beginning to end,
thus providing Hill with the information necessary to bring his case at that time. His decision to
wait until four days before his execution to file his motion does not entitle him either to a stay or to
a reconsideration of this Court’s previous rulings.
(11th Cir. 1984).

Because Hill argues that this Court has “misapprehended and
mistaken several issues of law and fact” (doc. 43-1 at 2), he is attacking “matters
encompassed in a decision on the merits of the dispute”; thus, his motion for
reconsideration will be treated as one arising under Rule 59(e).
“The only grounds for granting a [Rule 59(e)] motion are newly-discovered
evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116, 1119
(11th Cir. 1999). This rule “may not be used to relitigate a claim.” Fry v.
Hillsborough County Sch. Bd., 2006 WL 2034967 at *7 (11th Cir. Jul. 20,
2006)(citing Mincey v. Head, 206 F.3d 1106, 1137 n. 69 (11th Cir.2000)).

Hill’s emotionally-laden arguments raise no new evidence, instead making
complaints under headings such as the following: “Truncated Consideration by
This Court Did Not Provide Mr. Hill Due Process in Litigating His § 1983 Claim.”1
Hill insinuates that this Court’s timeliness in rendering an order indicates
insufficient deliberation on the issues presented. However, Hill filed his original
motion for preliminary injunction in January of 2006. This Court has kept current
since that time (and before) with opinions issued by our nation’s courts on the
question of Eighth Amendment concerns in the context of lethal injection.

The Court has thoroughly examined relevant opinions, both state and federal, and

Page 3 of 3
applied them in a consistent manner to the facts presented in this case. All
parties should rest assured that this Court has given careful and searching
consideration to these weighty matters in rendering its decisions.
Hill has simply not made any showing of manifest error of law or fact in the
Court’s order; rather, it appears that Hill is engaging in dilatory tactics to delay a
death sentence that was imposed for a second time in 1986—two decades ago.
As the United States Supreme Court stated in Hill v. McDonough, “The federal
courts can and should protect States from dilatory or speculative suits.” Hill, 126
S.Ct. at 2104.

Based on the foregoing, it is
ORDERED AND ADJUDGED

that Plaintiff’s motion for reconsideration
(doc. 43) and motion for stay (attachment 1 to doc. 44) are hereby denied.

DONE AND ORDERED this eleventh day of September, 2006.

s/ Stephan P. Mickle
Stephan P. Mickle
United States District Judge

Capital punishment is costly, immoral

2006-09-09T06:14:00.000-07:00

http://www.alligator.org/pt2/060908column.php

USA/FLORIDA:

Capital punishment is costly, immoral

The word "capital" in capital punishment comes from the Latin for head,"caput." Capital punishment therefore refers directly to "losing yourhead." I think it's fair to say that any state government still enforcingcapital punishment has indeed lost its head.

One month ago, Gov. Jeb Bush signed another death warrant for convicted murderer Clarence Hill. Hill was supposed to be executed in January, but the Supreme Court stayed his execution.

They ruled that Hill and others on death row had the right to challenge the use of lethal injection as amethod of execution.

Lethal injection has come under suspicion recently based on research done right here in the state of Florida, at the University of Miami. A UM study found that in 43 of 49 investigated cases, condemned prisoners did not receive enough sodium thiopental to induce a quick and effective state of unconsciousness. That means they were awake while being executed.

Is that not cruel and unusual punishment?

Besides, who gave us humans the right to take another human's life in the first place?I don't see where the popular support for capital punishment comes from.

88 countries have abolished capital punishment, whereas only 69 retain it. Of those 69 countries, 29 have not executed a condemned prisoner in thelast 10 years. Clearly, the United States is lagging.America is a mostly Christian country.

Isn't God's message to love unconditionally - even your enemies?
Yes, in the Bible, God takes revenge countless times. But we are not God.

How can one be pro-life and pro-death penalty at the same time?

You may argue that a fetus is innocent, whereas a criminal is not. But how can we judge the nature and nurture that steered the course of a criminal's life with enough certainty to execute him?

As much as capital punishment is a moral issue, it is also an economic one.

The National Bureau of Economic Research estimates that between 1982 and 1997, the cost of capital punishment trials was $1.6 billion.

Florida would save $51 million a year by punishing all first-degree murderers with life in prison.

Capital trials are long and expensive - and in cases like Clarence Hill's, in which constant appeals burden the justice system, the cost of actually executing a condemned prisoner is outrageous. So why not save our tax dollars for education and address the problem of criminals at its foundation? Perhaps the most effective argument in favor of the death penalty is,

"What if someone killed a person you love?" My answer is that I, of course, would go insane - meaning I would be in no place to make a sane decision regarding the criminal's life.

We cannot, as sane voters, allow politicians like Jeb Bush to act as demigods, meting out life and death.

With gubernatorial candidates Charlie Crist and Jim Davis - both supporters of capital punishment - running against each other in the upcoming election, there isn't much room to turn. But if we as voters want to see justice carried out with human decency -and our tax dollars put to good use - we're going to have to speak up

(source: Todd Portnowitz is an English junior. His column appears onFridays; (The University of Florida) Independent Florida Alligator)

RESPONSE TO MOTION FOR RECONSIDERATION OF ORDER DISMISSING - Clarence Hill

2006-09-07T10:30:00.000-07:00

http://www.clarencehill.us/legal/stateresponsetoreconsideration.htm

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

CLARENCE EDWARD HILL,

Petitioner,

v. CASE NO. 4:06cv32-SPM

JAMES R. MCDONOUGH, JR., Secretary,
Florida Dept. of Corrections, et al.
in his official capacity,
Respondent.
/
RESPONSE TO MOTION FOR RECONSIDERATION OF ORDER DISMISSING
COMPLAINT AND RESPONSE AND MEMORANDUM OF LAW TO RENEWED REQUEST
FOR STAY OR INJUNCTION

COMES NOW Respondent, by and through undersigned counsel, and
responds to Hill’s Motion for Reconsideration of Order dated
September 1, 2006, Dismissing Complaint, presumably filed pursuant
to Fed.R.Civ.P. 59(e), and response to renewed request for stay or
injunction and would show:

1. Hill seeks reconsideration of this Court’s Order
dismissing his action brought pursuant to 42 U.S.C. §1983,
asserting that the Court “misapprehended and mistaken several
issues of law and fact”, specifically that he has not been
“dilatory”, and that this Court “has conflated and confused the
legal significance of dilatoriness and the corresponding analyses

1 Interestingly, Hill has failed to identify the rule upon
which he seeks reconsideration.

2
applicable to the motion to dismiss and a stay of execution.” He
again reargues that he is entitled to injunctive relief based on
the identical facts and law submitted previously.

2. Respondent specifically denies all allegations set forth
in Hill’s motion for reconsideration, and demands strict proof of
each, since the burden rests with the losing party to assert a
basis for further consideration. Respondent has never waived any
possible defenses under the applicable civil rules and would
require strict compliance by Hill with regard to any burden.
1
A. Motion For Reconsideration Should Be Denied

3. A “post-judgment motion” may be treated as either a
Fed.R.Civ.P. 59 or 60 motion, regardless of how the motion is
styled by the movant, depending on the type of relief sought. See
Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir. 1997). A
motion that is filed within 10 business days of the entry of
judgment and that asks for reconsideration of matters encompassed
in the judgment, such as in the instant case, is normally
considered a motion under Rule 59(e). See Finch v. City of Vernon,
845 F.2d 256, 258-59 (11th Cir. 1988).

4. The Eleventh Circuit has held that “[T]he only grounds for
granting a Rule 59(e) motion are newly-discovered evidence or
manifest errors of law or fact." In re Kellogg, 197 F.3d 1116,

3
1119 (11th Cir. 1999); Mincey v. Head, 206 F.3d 1106, 1137 n. 69
(11th Cir. 2001), wherein the court held:
The decision whether to alter or amend a judgment
pursuant to Rule 59(e) is "committed to the sound
discretion of the district judge." American Home
Assurance Co. v. Glenn Estess & Assocs., 763 F.2d 1237,
1238-39 (11th Cir.1985).69
____________________
69 The petitioner's burden of showing an abuse of
discretion is a "difficult" one. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 408, 110 S. Ct. 2447, 2462,
110 L. Ed. 2d 359 (1990). We have stated that "an abuse
of discretion occurs if the judge fails to apply the
proper legal standard or to follow proper procedures in
making the determination, or ... [makes] findings of fact
that are clearly erroneous." Hatcher v. Miller (In re
Red Carpet Corp.), 902 F.2d 883, 890 (11th Cir.1990).

"The function of a motion to alter or amend a judgment is
not to serve as a vehicle to relitigate old matters or
present the case under a new legal theory ... [or] to
give the moving party another 'bite at the apple' by
permitting the arguing of issues and procedures that
could and should have been raised prior to judgment." In
re Halko, 203 B.R. 668, 671-72 (Bankr.N.D.Ill.1996)
(internal quotation marks and citations omitted). Thus,
it is not an abuse of the court's discretion to deny a
Rule 59(e) motion that requests an amendment that relates
to a matter "that could have been raised before the
judgment was entered." Bannister v. Armontrout, 4 F.3d
1434, 1445 (8th Cir.1993).

Moreover, the moving party
will not prevail on a Rule 59(e) motion that introduces
previously unsubmitted evidence absent a showing that the
evidence was unavailable at the time of the judgment.
See Mays v. United States Postal Serv., 122 F.3d 43, 46
(11th Cir.1997).

Additionally, “[m]otions for reconsideration should not be used to
raise legal arguments which could and should have been made before
the judgment was issued." Sanderlin v. Seminole Tribe of Florida,
243 F.3d 1282, 1292 (11th Cir. 2001). Hill's Rule 59(e) motion has
not identified any meritorious errors of law or fact. Hill's

2 A Rule 60(b) motion may only be granted under 6
circumstances: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment.

3
Inquiry is limited to “whether one of the specified
circumstances exists in which Hill is entitled to reopen his
underlying claims." Feathers v. Chevron, 141 F.3d 264, 268 (6th Cir
1998).. A movant under Rule 60(b) fails to demonstrate entitlement
to relief under any subsection when he simply rephrases his prior
allegations. Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th
Cir. 2004). Hill merely reiterates the claims he made in his
complaint in his motion for reconsideration; accordingly, he has

4
factual and legal arguments do not present any “newly discovered"
or “previously unavailable" evidence. Therefore Hill's Rule 59(e)
motion must be denied.

5. The arguments and allegations in Hill’s motion for
reconsideration mirror those in his original complaint, which this
Court has already considered and dismissed. A district court will
not have abused its discretion in denying any motion for
reconsideration. See Zerman v. Jacobs, 751 F.2d 82, 85 (2nd Cir.
1984), the denial of a Rule 60(b) motion is appropriate where a
movant “continues to relitigate the same issue(s) that the court
already decided”, regardless of whether Hill's motion is construed
as one pursuant to Federal Rule of Civil Procedure 59(e), or Rule
60(b).2 Hill has not demonstrated any entitlement to relief.3

not demonstrated entitlement to relief under any of the subsections
of Rule 60(b).

5
B. Dilatory Litigation In Raising §1983 Complaint

6. The Court, in dismissing Hill’s §1983 complaint, found not
only had Hill provided no basis for not litigating his complaint
timely, but also found the very facts supporting his
reconsideration were available to Hill.

The Court observed:
In addition to the Lancet study, Hill contends in his
amended complaint that ‘new and critical’ information has
surfaced since his original complaint. This information
is recent case law from other federal jurisdictions in
which evidentiary hearings were held and discovery
conducted with regard to the various states' lethal
injection protocols and procedures. Hill cites Taylor v.
Crawford, 2006 WL 1779035 (W.D. Mo. Jun. 26, 2006),
Morales v. Hickman, 438 F.3d 926 (9th Cir. Feb. 19,
2006), and Cooey v. Taft, 430 F.Supp.2d 702 (Apr. 28,
2006).

These cases are not binding on this Court and
they can be distinguished significantly from Hill's case.
In each of these cases, the inmate brought his §1983
action either prior to having an execution date set or in
a timely enough manner that the court was able to
adequately develop a factual record.7 The courts in
Cooey and Morales specifically found that the inmates
were diligent in filing their §1983 actions;8 thus, those
courts were not bound by the precedent which this Court
must follow. Hill’s unnecessary delay in bringing this
action forecloses the relief which he seeks.
______________________
7 The Court notes that in Cooey v. Taft, 430 F. Supp. 2d
702 (Apr. 28, 2006), one of the plaintiffs was allowed to
intervene in the §1983 action prior to his execution date
being set; thus the district court granted an injunction
staying his execution once scheduled. The court
specifically found that the plaintiff had not
unnecessarily delayed in bringing an action under §1983.
The court stated, “. . . Plaintiff [Jeffery] Hill was not
within days of his execution. He did not sit on his
laurels. He did not wait until the State had set or even
requested an execution date.” See id, at 706.
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 5 of 27
4 “Our data suggest that anaesthesia methods in lethal
injection in the USA are flawed. Failures in protocol design,
implementation, monitoring and review might have led to the
unnecessary suffering of at least some of those executed. Because
participation of doctors in protocol design or execution is
ethically prohibited, adequate anaesthesia cannot be certain.
Therefore, to prevent unnecessary cruelty and suffering, cessation
and public review of lethal injections is warranted." Leonidas G.
Koniaris et al., Inadequate Anaesthesia in Lethal Injection for
Execution, 365 Lancet 1412, 1414 (2005)(Emphasis added).
5 In a Missouri capital case in the Eighth Circuit, Brown
brought an identical 42 U.S.C. §1983 action, where the court
rejected Dr. Lubarsky's THE LANCET paper, Brown v. Crawford, 408
F.3d 1027 (8th Cir. May 17, 2005), cert. denied Brown v. Crawford,
162 L.Ed.2d 310, 125 S.Ct. 2927, 2005 U.S. LEXIS 4806 (June 13,
6
8 See id. Also, the Ninth Circuit Court of Appeals, in
Morales v. Hickman, 438 F.3d 926, 930 (Feb. 19, 2006),
stated “Morales’ diligence allowed the court to more
thoroughly consider the relevant legal and factual issues
that ultimately bore on its conclusion.”
(Order September 1, 2006, p 9-10.)
7. Hill’s complaint has predominantly centered around the
April 2005 research paper in THE LANCET, which “hypothesizes that
this dose may not be administered properly or is possibly being
administered in a way that prevents it from having its intended
effect. See Koniaris et al., supra, at 1413. The study ultimately
concludes that ‘public review of lethal injection is warranted.’
Id. at 1414.”4
8. Hill had the ability to file his complaint prior to the
date his execution was set, indeed, defendants nationwide were
arguing permutations of THE LANCET article in federal courts,
albeit without much success.5
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 6 of 27
2005). In his dissent, Circuit Judge Bye states that the issue in
Brown “challenges the chemical protocol used by Missouri to carry
out lethal injections. He contends the three-chemical sequence
used by Missouri - sodium pentothal, pancuronium bromide, and
potassium chloride - creates a foreseeable risk of the gratuitous
infliction of unnecessary pain and suffering in violation of the
Eighth Amendment.” Hill all but abandoned any reference to THE
LANCET article by the time he arrived in the United States Supreme
Court on the merits in Hill.

7

9. The Court held in its January 21, 2006, order in Hill,
that:

Plaintiff’s claim of “newly-discovered evidence” is
insufficient to overcome the procedural bar in this case.
Plaintiff cites the Lancet article as conclusive proof
that inmates do feel pain during the lethal injection
procedure. He details the injection process, noting that
sodium pentothal is first administered as an anesthetic,
followed by pancuronium bromide, a paralytic agent which
prevents the inmate from moving or otherwise showing pain
or discomfort. The final chemical to be injected is
potassium chloride, which causes the actual death by
stopping all movement of the heart and suffocating the
inmate.

The Lancet researchers found that toxicology
reports in their case studies demonstrated that
insufficient amounts of anesthetic were injected,
permitting the inmates to experience the feelings of
being suffocated and having a heart attack, yet remaining
paralyzed by the pancuronium. While Florida’s procedure
was not examined in the study, Plaintiff argues that
Florida’s practice is “substantially similar” and thus
poses the same risk to inmates.

These exact issues were raised and disposed of in
Robinson, in which the Eleventh Circuit referred to
affidavits in that case addressing “the effects of the
drugs used during lethal injection, how they each cause
pain and suffering, and particularly how the pancuronium
bromide chemical paralyzes the person and masks the pain
and suffering being incurred.” Id. at 1285 n.4. An
additional affidavit “[discussed] how the level of
potassium chloride being used in the lethal injection
context may not cause actual cardiac arrest but may

6 See: Arizona Minority Coalition for Fair Redistricting v.
Arizona Independent Redistricting Commission, 366 F. Supp. 2d 887,
908 Arizona DC 2005)(“n19 “While Rule 8(c) of the Federal Rules of
Civil Procedure provides that laches shall be set forth as an
affirmative defense, where the elements of laches are apparent on
the face of a complaint, it may be asserted on a motion to dismiss

8
result in death by suffocation due to lack of oxygen.”
Id.
While the Lancet article itself may be new, having just
been published last year, the factual basis of
Plaintiff’s claim has certainly been raised and disposed
of in numerous cases, both in Florida and in other
states. Plaintiff has made no showing that he could not
have discovered these underlying predicates through the
exercise of due diligence. See In re Provenzano, 215
F.3d 1233, 1236-37 (11th Cir. 2000).1
__________________
1 The Supreme Court of Florida also noted in its opinion
that

[a]cross the nation, courts have rejected claims that The
Lancet study requires a new evaluation of the
constitutionality of lethal injection. See Brown v.
Crawford, 408 F.3d 1027 (8th Cir. 2005) (dismissing an
appellant’s motion for a stay of execution despite the
fact that the appellant based his claim under 42 U.S.C.
§1983 in part on The Lancet study at issue here);
Beighler v. State, 839 N.E.2d 691 (Ind. 2005) (finding
The Lancet study was not sufficient to establish “a
reasonable probability that Indiana’s method of execution
violates the federal or state constitution”).
2006 WL at *6.
Order p. 3-6 (Emphasis added).

10. Then, as now, this Court pointed out that Hill offered
“no reason for his delay in bringing this action just days before
his scheduled execution and, if properly before that court, would
have dismissed Hill’s complaint as a successive habeas based on
timeliness.”6 While granting Hill the ability to proceed with any
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 8 of 27
for failure to state a claim upon which relief may be granted)."
Russell v. Thomas, 129 F. Supp. 605, 605-06 (D.C. Cal. 1955); see
also 2 Moore's Federal Practice, §12.34[4][b] (Matthew Bender ed.
2003) (“Dismissal under Rule 12(b)(6) may also be appropriate when
a successful affirmative defense or other bar to relief appears on
the face of the complaint, such as the absolute immunity of a
defendant, claim preclusion, or the statute of limitations.")”. A
laches argument is two pronged -- unnecessary delay and prejudice
-- both extant here. Respondent asserted Hill failed to state a
cause of action upon which relief could be granted.

7 The Court however did reemphasize the need for the federal
courts to “protect States from dilatory or speculative suits”, even
under a §1983 lawsuit. Note: In Ex parte Aguilar, 2006 WL 1412666,
*2 (Tex. Cr. App. May 22, 2006)(unpublished)(Cochran, J.,
concurring) the court noted that there are serious problems with
the study including that (1) it is a research letter, which is
“akin to a letter to the editor”, not a peer-reviewed scientific
study; (2) the study was conceived by and based upon data supplied
by the attorney who represented death row inmates which “is hardly
a mark of scientific objectivity”, and (3) the “suggested

9
§1983 lawsuit, the Supreme Court, in Hill, did not address the
“equities and merits of Hill’s underlying action” because they were
not before that Court. To the extent that Hill argues all portions
of this Court’s January 21, 2006, Order are no longer valid, such
a conclusion is in error. Moreover, this Court’s superseding Order
of September 1, 2006, provides a valid basis to again conclude that
Hill was too long in seeking §1983 relief.

11. Unnecessary delays in bringing a claim about Florida’s
lethal injection procedures does not entitle a defendant to
“injunctive relief in a last minute §1983 action”, Gomez v. United
States Dist. Court for N. Dist. of Cal, 503 U.S. 633 (1992), and
Nelson v. Campbell, supra. This case raises no true issues of
“newly discovered evidence,”7 and Hill has offered no reason for

conclusion is so extraordinary that it challenges simple logic.”).

Indeed, Hill attempts to change the basis for §1983 review to
recent decisions in Morales v. Hackman, 415 F.Supp.2d 1037 (Cal.
Dist. Ct. 2006), and Cooey v. Taft, 430 F.Supp.2d 702 (Ohio Dist
Ct. 2006), set forth in footnote 1 of his August 25, 2006, Motion
for Immediate Remand [filed in the Eleventh Circuit and denied as
moot on August 29, 2006] are clear evidence that any §1983 action
is dilatory and dismissible as such.
The speculation as to the
impact of the three drugs used in Florida’s execution are no
different than the drugs used in Texas or North Carolina or
Virginia or California, and have always been the potential “subject
of litigation” as a condition of confinement. The fact that THE
LANCET article has found disfavor and has been rejected, and now
the issue de jour, is one that has been argued in the appellate
courts and rejected previously, does not resurrect an otherwise
untimely §1983. See: Brown v. Livingston, 2006 U.S. App. LEXIS
18163 (5th Cir. July 19, 2006) cert. denied, 2006 U.S. LEXIS 5247
(2006); Brown v. Beck, supra; Harris v. Johnson, supra; LeGrand v.
Stewart, 133 F.3d 1253 (9th Cir. 1998), and finally, Heckler v.
Chaney, 470 U.S. 821 (1985), to name a few cases previously
litigating “all manner of permutations” regarding any lethal
injection challenge.

8 Hill argues that he has not been able to secure the
information regarding the three drug cocktail that will be used
during any execution. He bottoms this argument on the fact that he
attempted to secure public records during the state post conviction
litigation and was thwarted because of Florida’s refusal to make an
exception to the public records rule governing last minute
litigation in active warrant cases. In fact, however, he had a
mechanism within which to secure information from the Department of
Corrections through either a grievance procedure or the securing of
public records via Fla.R.Crim.P. 3.853(i) entitled Limitations on
Post-production Request for Additional Records, which permits
exceptions to secure records. He never availed himself of that
rule. Fla.R.Crim.P. 3.852(i) provides a means to secure additional
records which Hill did not do prior to the activation of the
November 29, 2005 warrant. See Tompkins v. State, 872 So.2d 230,
244 (Fla. 2003)(“...although a request for public records under
rule 3.852(h)(3) is contingent upon the signing of a death warrant,
rule 3.852(i) "allows collateral counsel to obtain additional
records at any time if collateral counsel can establish that a
diligent search of the records repository has been made and 'the
additional public records are either relevant to the subject matter
of the postconviction proceeding or are reasonably calculated to
10
his delay in bringing a §1983 action until just days8 before his

lead to the discovery of admissible evidence.'" Sims, 753 So. 2d at
70-71 (quoting rule 3.852(i)(1)). Accordingly, Tompkins was not
required to wait until the death warrant was signed to make an
additional public records request, provided he could have made the
required showing under rule 3.852(i).”)

9 Other circuits have concluded that while challenges to the
three-chemical lethal injection procedure support a cognizable
claim under §1983; injunctive relief is not warranted if the delays
in filing of a §1983 action for equitable relief are just before a
scheduled execution. White v. Johnson, 429 F.3d 572, 573-74 (5th
Cir. 2005), White v. Livingston, __ U.S. __, 126 S.Ct. 601, 163
L.Ed.2d 502 (2005)(affirming the dismissal of White's §1983 action
for injunctive relief and emphasizing that White delayed until the
eleventh hour to file his challenge to the state's lethal injection
with the three chemicals in issue); Cooper v. Rimmer, 379 F.3d
1029, 1031-33 (9th Cir. 2004) (affirming the denial of last-minute
equitable relief in §1983 action challenging state's three-chemical
protocol for execution by lethal injection); Harris v. Johnson, 376
F.3d 414, 416-18 (5th Cir. 2004) (concluding that petitioner was not
entitled to equitable relief in §1983 action challenging the
state's three-chemical protocol for execution by lethal injection
where he had unnecessarily delayed in bringing his claim); Bieghler
v. Donahue, No. 1:06-cv-00136-LJM-TAB, 2006 U.S. Dist. LEXIS 6751
(S.D. Ind. Jan. 26, 2006) (relying on Nelson and denying TRO and
preliminary injunction in plaintiff's last-minute §1983 action
challenging the state's three-chemical method of lethal injection
and dismissing the §1983 action), stay of execution granted, No.
06-1300, 163 Fed. Appx. 419 (7th Cir. Jan. 26, 2006) (unpublished
order), stay of execution vacated, No. 05A684,___ U.S. ___, 126
S.Ct. 1190, 163 L.Ed.2d 1144 (2006).

11
scheduled execution.9

12. The Supreme Court did nothing to disturb the “timeliness”
of any §1983 complaint, therefore Hill’s “lethal injection claim
under §1983”, no matter what appellation given it by the district
court, was properly dismissed, Hill v. McDonough, “After Nelson, a
number of federal courts have invoked their equitable powers to
dismiss suits they saw as speculative or filed too late in the day.

12
See, e.g., Hicks v. Taft, 431 F.3d 916 (CA6 2005); White v.
Johnson, 429 F.3d 572 (CA5 2005); Boyd v. Beck, 404 F.Supp. 2d 879
(EDNC 2005).” Hill 126 S.Ct. at 2104.
13. Post Hill, in Alley v. Little, 2006 U.S. App. LEXIS 16605
(CA6 2006), rehearing en banc denied, 2006 U.S. App. LEXIS 16071,
cert. denied, 2006 U.S. LEXIS 5180 (June 27, 2006), the Sixth
Circuit, citing the Supreme Court’s opinion in Hill, held:
The Court noted that federal courts weighing petitioners'
§1983 challenges to lethal injection should continue to
consider various features of a filing when locating the
proper balance of equities. These include "a showing of
a significant possibility of success on the merits" and
the timeliness of the appeal. Timeliness is particularly
relevant when an appeal is brought in the strongly
disfavored circumstance in which its full consideration
would necessitate a stay of execution. Id. at 10 (citing
Barefoot v. Estelle, 463 U.S. 880, 895-96, 103 S.Ct.
3383, 77 L.Ed.2d 1090 (1983), and Nelson, 541 U.S. at
650).
14. And, post Hill, in Lenz v. Johnson, 2006 U.S. Dist. LEXIS
50659 (E.D. Va., July 25, 2006), the Court, the day of Lenz’s
execution, held:
Turning to the facts before the Court, the timing of
Lenz's §1983 Complaint--filed almost exactly one month
before his scheduled execution date--gives rise to the
presumption that Lenz is engaging in disruptive, dilatory
tactics for the sole purpose of unjustifiably delaying
the execution of his death sentence that was imposed
nearly six years ago. In an effort to obfuscate what is
reasonably clear, Lenz argues that he could not have
filed his Complaint earlier, because Defendants are free
to unilaterally alter the lethal injection protocol. As
such, Lenz states that he needed to wait until his
execution date had been officially set. This, of course,
sounds plausible in theory but is purely specious in
reality. The lethal injection protocol in Virginia is no
secret. Courts have discussed it in great detail, see,
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 12 of 27
13
e.g., Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va.
2004), and death row inmates can undoubtedly inform
themselves, through counsel or using other means, of the
material details in advance of the [fifteen-day statutory
cut-off for selecting a method of execution. It is
disingenuous at best to represent that Lenz was prevented
from making an informed decision before the decision was
made for him by default.
Lenz, 2006 U.S. Dist. LEXIS at * 22-23. (Opinion attached). See
also Reid v. Johnson, 333 F.Supp. 543 (E.D. Va. 2004), cert.
denied, 542 U.S. 963 (2004).
15. The Court, in Lenz, observed that nothing in Hill v.
McDonough, supra, changed the Fourth Circuit’s prior decisions
handling any issues involving Virginia’s lethal injection
protocols. The Court concluded even if there were a basis to
overcome the untimeliness of Lenz’s complaint, under Blackwelder
Furniture Co. v. Seilig Mfg. Co., 550 F. 2d 1189, 194-96 (4th Cir.
1977), Lenz would be entitled to no relief under his burden of
proof that by a clear showing a balancing of the equities would
fall in his favor. “A court must consider the likelihood of
irreparable injury to the plaintiff if the preliminary injunction
were denied; the likelihood of harm to the defendant if the request
were granted; the likelihood that the plaintiff will prevail on the
merits; and the public interest.” Lenz, 2006 U.S. Dist. LEXIS at
*23.
The Court found that:
First, Lenz cannot establish the likelihood that he would
sustain irreparable injury if the preliminary injunction
request were denied. As courts have noted, the potential
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 13 of 27
14
injury must be actual and imminent, and not theoretical
or speculative. See In re Microsoft Corp. Antitrust
Litigation, 333 F.3d 517, 530 (4th Cir. 2003). The Court
in Reid found that the chance that an inmate would be
conscious and able to feel pain during the administration
of the final two chemicals is less than 6/1000 of one
percent. There is simply no way that Lenz can reconcile
that scientific fact with a "likelihood" of irreparable
harm.
Second, the harm to Defendants if the preliminary
injunction were granted is easy to grasp. The Supreme
Court in Hill acknowledged the interest states have in
enforcing their criminal judgments, and the Court was
emphatic in stating that "[t]he federal courts can and
should protect [s]tates from dilatory or speculative
suits." 126 S.Ct. 2096, 2104, 165 L.Ed.2d 44 (2006).
Allowing illegitimate obstructions to the orderly
administration of justice would certainly harm Defendants
as they try to fulfill their public duties. Moreover,
states have a recognized interest in ensuring the timely
execution of death sentences. See Calderon v. Thompson,
523 U.S. 538, 556-57, 118 S.Ct. 1489, 140 L.Ed.2d 728
(1998).
Third, given the clear weight of case law in this
jurisdiction (discussed supra and infra), Lenz is not
likely to prevail on the merits of his Complaint.
Finally, with respect to the public interest, society's
interest in retribution for criminal activity would erode
rapidly if patently dilatory suits were permitted to
derail the administration of justice time and time again.
Lenz has been facing a sentence of death for almost six
years. He has exhausted all state and federal avenues
for challenging his sentence and the underlying
conviction, yet, curiously, Lenz has raised these lethal
injection arguments for the very first time in the
instant §1983 Complaint, filed shortly before his
scheduled execution date. This area of law is not new,
and Virginia's lethal injection protocol has not been an
ever-changing mystery--certainly not in recent years.
The motivation behind Lenz's last-minute Complaint is
obviously to unjustifiably delay the inevitable. The
Court finds that the equities weigh heavily in favor of
denying Lenz's request for injunctive relief.
This finding is consistent with other recent rulings in
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 14 of 27
10 Hill must allege a risk of injury and show that the
possibility of injury is imminent or “certainly pending.” Adarand
15
this Court and in the Fourth Circuit. As already
discussed, the Court in Reid and Vinson rejected
virtually the same arguments now before the Court.
Notably, the Fourth Circuit affirmed the denial of a stay
in each of those cases. Perhaps even more persuasive,
though, is the Walker case. Even if the Court permitted
only a limited challenge to the lethal injection protocol
in Reid, this Court undoubtedly permitted a full
challenge in Walker, exploring evidence of the types of
chemicals used, training and qualification of personnel,
administration methods, and other factors.
Notwithstanding the arguably more comprehensive
presentation of facts in Walker, the Court, nevertheless,
struck the case from its docket shortly after hearing
summary judgment arguments.
Finally, in Walton v. Johnson, No. 2:06cv258 (E.D. Va.),
this Court did grant a stay of execution. Significantly,
though, when the §1983 defendants promptly appealed to
the Fourth Circuit, the appellate court vacated the stay
of execution the very same day on which the stay was
imposed--June 7, 2006. It is difficult to contemplate a
clearer indicator of the Fourth Circuit's stance toward
last-minute §1983 complaints posing challenges to the
lethal injection method of execution in Virginia.
Accordingly, and upon consideration of the merits of
Lenz's Complaint, n4 the Court will grant Defendant's
Motion to Dismiss.
n4 Because this case can be properly dismissed on the
merits, potential procedural bars, such as the failure to
exhaust administrative remedies, need not be discussed.
Lenz, 2006 U.S. Dist. LEXIS at *24-26.
16. Clearly, the district court was likewise correct in
finding that Hill had not provided a basis for justifying any delay
in filing his §1983 complaint.
17. There are additional reasons why dismissal is also
warranted. Hill lacked standing to file any §1983 complaint,10
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 15 of 27
Constructors v. Pena, 115 S.Ct. 2097, 2105 (1995); Shotz v. Cates,
256 F.3d 1077 (11th Cir. 2001) (immediate threat of future harm
required to confer standing); Bowen v. First Family Financial
Services Inc., 233 F.3d 1331, 1340 (11th Cir. 2000) (“A plaintiff
has standing to seek declaratory or injunctive relief only when he
‘allege[s] facts from which it appears there is a substantial
likelihood that he will suffer injury in the future.’”)(Emphasis
added).
Hill cannot demonstrate a basis for standing to bring his §1983
action since he cannot overcome his burden of showing he has facts
from “which it appears there is a substantial likelihood that he
will suffer injury in the future.” See: Abdur’ Rahman v. Bredesen,
181 S.W.3d 292 (Tenn. 2005) cert. denied, __ U.S. __, 126 S.Ct.
2288, 164 L.Ed.2d 813 (2006), wherein, following an evidentiary
hearing on the three drug cocktail, the court found that method did
not violate the Eighth Amendment.
11 Any postconviction litigation that occurred of course would
not qualify as exhaustion of administrative remedies but would also
bar any §1983 action. Muhammad v. Close, 540 U.S. 749 (2004).
12 Moreover when the judgment of the Supreme Court issued to
the Eleventh Circuit on July 14, 2006, Hill still took no
opportunity to attempt to exhaust any state administrative remedies
albeit he should have known about the Ngo decision which was
decided on June 22, 2006, days after Hill v. McDonough, supra. See
Hollingsworth v. Brown, 788 So.2d 1078, 1081 (1st DCA 2001)(The
Florida Administrative Code has a procedure in place through which
Hollingsworth may grieve his claim. Under §944.09(1)(d), Florida
Statutes (1999), and §944.331, Florida Statutes (1999), the
legislature directed the Department of Corrections to adopt rules
pertaining to inmate grievance procedures that conform to 42 U.S.C.
§1997e, which the Department has promulgated in Chapter 33-103.);
and prior to the 1999 administrative changes, Morris v. Wainwright,
409 So.2d 1161 (Fla. 1st DCA 1982)(“Petitioner alleges that his gain
time has been improperly calculated, in violation of Weaver v.
Graham, 450 U.S. 24, 67 L.Ed.2d 17, 101 S.Ct. 960 (1981). However,
he has not shown that he has exhausted his administrative remedies
and timely filed for review of final agency action in this Court,
pursuant to §120.68(1), Fla.Stat. (1979). Rule 33.3.07, Fla.
Admin. Code, dictates a two-step review process within the
Department of Corrections, prior to judicial review of the order of
the Secretary or his representative. This Court has no
jurisdiction over petitioner's case because he fails to show that
16
failed to exhaust11 [or even attempt to exhaust]12 available state
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 16 of 27
he filed this petition within 30 days of the Secretary's response
to an inmate grievance appeal.” “...the petition for writ of
mandamus is denied for failure to allege and show exhaustion of
administrative remedies.”); Sutton v. Strickland, 485 So.2d 25
(Fla. 1st DCA 1986) (holding that a petitioner's challenge to his
confinement status through writ of habeas corpus was subject to
dismissal where the petitioner failed to exhaust administrative
remedies through the Department of Corrections' inmate grievance
procedure).
13 In Hill’s Amended Verified Complaint For Declaratory and
Injunctive Relief, filed September 1, 2006, he admits he
misrepresented that he exhausted state administrative remedies when
he contends he first argues that he has “no administrative remedy
available” because the “lethal injection procedure” is
“prospective,” but then notes that he is precluded from bringing
any state administrative challenges because he elected to litigate
the lethal injection procedure via the state courts. See 42 U.S.C.
§1997e(a).
Finally, the ability to bring a §1983 claim, rather than
a habeas application, does not entirely free inmates from
substantive or procedural limitations. The Prison
Litigation Reform Act of 1995 (Act) imposes limits on the
scope and duration of preliminary and permanent
injunctive relief, including a requirement that, before
issuing such relief, "[a] court shall give substantial
weight to any adverse impact on . . . the operation of a
criminal justice system caused by the relief." 18 U.S.C.
§3626(a)(1) [18 USCS §3626(a)(1)]; accord, §3626(a)(2).
It requires that inmates exhaust available state
administrative remedies before bringing a §1983 action
challenging the conditions of their confinement. 110 Stat
1321-71, 42 U.S.C. §1997e(a) [42 USCS §1997e(a)] ("No
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies
as are available are exhausted"). The Act mandates that
a district court "shall," on its own motion, dismiss "any
action brought with respect to prison conditions under
section 1983 of this title . . . if the court is
satisfied that the action is frivolous, malicious, fails
to state a claim upon which relief can be granted, or
seeks monetary relief from a defendant who is immune from
17
administrative remedies,13 and was barred due to “issue preclusion”14
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 17 of 27
relief." §1997e(c)(1). Indeed, if the claim is frivolous
on its face, a district court may dismiss the suit before
the plaintiff has exhausted his state remedies.
§1997e(c)(2).
Nelson v. Campbell, 541 U.S. 649 (Emphasis added).
Hill’s state administrative remedies have been known and
available to him since 2000, when Florida changed it method of
execution and, as such, he was required to exhaust them prior to
any §1983 filing. See Woodford v. Ngo,__U.S. __, 126 S.Ct. 2378,
74 USLW 4404, 165 L.Ed.2d 368 (June 22, 2006)(Prison Litigation
Reform Act of 1995 (PLRA), “PLRA strengthened this exhaustion
provision”...exhaustion is mandatory, Booth v. Churned, 532 U.S.
731, 739 (2001), thus “exhaustion of available administrative
remedies is required for any suit challenging prison conditions
(the crux of Hill’s §1983 claim), not just suits under §1983.
Nussle, supra, at 524, 122 S.Ct. 983.”). Ngo, 126 S.Ct. at 2382-
83.
14 Hill raised, as part of his December 15, 2005, successive
state court postconviction litigation, the issue of whether “new
evidence” has come to light based on “research letters” published
in THE LANCET, that evidenced empirical data that execution by
lethal injection might be flawed. The state trial court and
Florida Supreme Court rejected the very argument made herein in his
federal action.
Collateral estoppel, or issue preclusion, prevents relitigation
of all "issues of fact or law that were actually
litigated and necessarily decided in a prior proceeding against the
party who seeks to relitigate the issues.” Hawkins v. Risley, 984
F.2d 321, 325 (9th Cir. 1993). Federal courts give preclusive
effect to issues decided by state courts when a party from a prior
state court proceeding attempts to re-litigate identical issues in
a subsequent federal proceeding. Allen v. McCurry, 449 U.S. 90,
96, 66 L.Ed.2d 308, 101 S.Ct. 411 (1980). This deference "promotes
the comity between state and federal courts that has been
recognized as a bulwark of the federal system." McCurry, 449 U.S.
at 95-96 (citing Younger v. Harris, 401 U.S. 37, 43-45, 27 L.Ed.2d
669, 91 S.Ct. 746 (1971)). See San Remo Hotel, L.P. v. City and
county of San Franscico, California, 545 U.S. 323, 332-33 (2005).
A state postconviction proceeding decided on the merits can be
the basis for precluding a §1983 action in federal court if the
state court afforded a “full and fair opportunity for the issue to
18
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 18 of 27
be heard and determined under federal standards." Blohm v. C.I.R.,
994 F.2d 1542, 1553 (11th Cir. 1993); McGowan v. Commissioner of
Internal Revenue, 2006 U.S. App. LEXIS 16534 (11th Cir. June 28,
2006). Federal courts must give preclusive effect to state court
judgments, and the scope of the preclusive effect is governed by
the law of the state from which the prior judgment emerged. See
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 79
L.Ed.2d 56, 104 S.Ct. 892 (1984). Issue preclusion applies under
Florida law when: (1) the issue in the present action is identical
to the issue decided in the prior adjudication; (2) the prior
adjudication resulted in judgment on the merits; (3) the party
against whom issue preclusion is asserted was a party or is in
privity with a party to the prior adjudication; and (4) the party
against whom collateral estoppel is asserted had a full and fair
opportunity to litigate the issue in the prior suit.
15 The Rooker-Feldman doctrine limits the subject-matter
jurisdiction of federal district courts and courts of appeal over
certain matters related to previous state court litigation. See
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); Dist. of
Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983).
Under this doctrine, federal courts, other than the Supreme Court,
“have no authority to review the final judgments of state courts"
which involve the same parties as the parties in the federal
action, and this jurisdictional bar “extends not only to
constitutional claims presented or adjudicated by a state court,
but also to claims that are 'inextricably intertwined' with a state
court judgment." Goodman ex. rel Goodman v. Sipos, 259 F.3d 1327,
1332 (11th Cir. 2001); see also Amos v. Glynn County Bd. of Tax
Assessors, 347 F.3d 1249, 1266 n.11 (11th Cir. 2003). “A federal
claim is inextricably intertwined with a state court judgment if
the federal claim succeeds only to the extent that the state court
wrongly decided the issues before it." Goodman, 259 F.3d at 1332.
Nevertheless, “even if a claim is 'inextricably intertwined' with
the state court's judgment, the doctrine does not apply if the
plaintiff had no 'reasonable opportunity to raise his federal claim
in state proceedings.'" Id. (internal citation omitted).
Incorvaia v. Incorvaia, 154 Fed. Appx. 127, 128 (11th Cir. 2005).
19
or the Rooker-Feldman doctrine,15 in maintaining any §1983 action.
While the Court did not rule on these alternative grounds, each are
equally as valid a basis to dismiss as the timeliness basis for
dismissing.
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 19 of 27
20
C. Hill Is Not Entitled To Stay Or Injunctive Relief
1. Stay
18. As expressed in Hill v. McDonough, supra, Hill is not
entitled to a stay of execution here:
Filing an action that can proceed under §1983 does not
entitle the complainant to an order staying an execution
as a matter of course. Both the State and the victims of
crime have an important interest in the timely
enforcement of a sentence. Calderon v. Thompson, 523
U.S. 538, 556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998).
Our conclusions today do not diminish that interest, nor
do they deprive federal courts of the means to protect
it.
We state again, as we did in Nelson, that a stay of
execution is an equitable remedy. It is not available as
a matter of right, and equity must be sensitive to the
State's strong interest in enforcing its criminal
judgments without undue interference from the federal
courts. 541 U.S., at 649-650, 124 S.Ct. 2117, 158
L.Ed.2d 924. See In re Blodgett, 502 U.S. 236, 239-240,
112 S.Ct. 674, 116 L.Ed.2d 669 (1992) (per curiam); Delo
v. Stokes, 495 U.S. 320, 323, 110 S.Ct. 1880, 109 L.Ed.2d
325 (1990) (per curiam) (KENNEDY, J., concurring). Thus,
like other stay applicants, inmates seeking time to
challenge the manner in which the State plans to execute
them must satisfy all of the requirements for a stay,
including a showing of a significant possibility of
success on the merits. See Barefoot v. Estelle, 463 U.S.
880, 895-896, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). See
also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct.
1865, 138 L.Ed.2d 162 (1997) (per curiam) (preliminary
injunction not granted unless the movant, by a clear
showing, carries the burden of persuasion).
A 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." Nelson, supra, at 650, 124 S.Ct. 2117, 158
L.Ed.2d 924. See also Gomez v. United States Dist. Court
for Northern Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct.
1652, 118 L.Ed.2d 293 (1992) (per curiam) (noting that
the “last-minute nature of an application" or an
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 20 of 27
21
applicant's "attempt at manipulation" of the judicial
process may be grounds for denial of a stay).
Hill, 126 S.Ct at 2104.
See Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) (equitable
relief not warranted where delay in bringing action challenging
method of execution post-Nelson); White v. Johnson, 429 F.3d 572
(5th Cir. 2005) (same). In the instant case, Hill’s “action” should
be dismissed. See Alley v. Little, supra, wherein the Sixth
Circuit Court also provided:
... The Court took note of two cases, one from this
circuit, in which "federal courts have invoked their
equitable powers to dismiss suits they saw as speculative
or filed too late in the day." Ibid. In Hicks v. Taft,
431 F.3d 916 (6th Cir. 2005), we ruled that a last-minute
petition by a death row inmate, filed six days before his
scheduled execution, did not warrant a stay of the
execution even though the district court had permitted
him to intervene in a fellow inmate's §1983 challenge to
the constitutionality of Ohio's lethal injection
protocol. We held the "district court . . . did not
abuse its discretion in weighing the criteria for the
granting of a stay . . . and denying the relief
requested, primarily because the motion was untimely."
(citing Nelson, 541 U.S. at 649, and quoting the phrase
"a court may consider the last minute nature of an
application to stay execution in deciding whether to
grant equitable relief"). In White v. Johnson, 429 F.3d
572 (5th Cir. 2005), the Fifth Circuit affirmed the
dismissal of a condemned's "last-minute" §1983 challenge
to Texas's lethal injection protocol on the grounds that
it was "dilatory." Justice Kennedy wrote the "federal
courts can and should protect States from dilatory or
speculative suits . . . ." Hill [WL] at 10.
19. Likewise, in Reese v. Livingston, 2006 U.S. LEXIS 4890
(5th Cir. June 20, 2006), Reese filed a §1983 challenge to Texas's
lethal injection protocol on May 25, 2006, less than one month
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 21 of 27
22
before his scheduled execution on June 20th. In considering
Reese's petition, the Fifth Circuit cited Hill for the proposition
that “a plaintiff cannot wait until a stay must be granted to
enable it [sic] to develop facts and take the case to trial-not
when there is no satisfactory explanation for the delay." The
court denied Reese's request for a stay of execution during the
pendency of his §1983 challenge to the lethal injection protocol.
The Supreme Court, in Reese v. Livingston, 2006 U.S. LEXIS 4889
(2006), acting that same day, denied a stay and denied Reese's
petition for a writ of certiorari. Reese was executed. See also
Wilson v. Livingston, 2006 U.S. App. LEXIS 10958 (5th Cir. 2006)
(“district court denied, sua sponte, injunctive relief for failure
to state a claim upon which relief may be granted,” citing Harris
v. Johnson, 376 F.3d 414 (5th Cir. 2004), Wilson's filing was
dilatory, because Wilson has been sentenced to death for
approximately 12 years and failed to file his complaint until more
than two years after the Supreme Court denied certiorari for his
federal habeas petition....[w]e deny his request for injunctive
relief without reaching the merits of his §1983 claim. Id. at 417;
see also Smith v. Johnson, 440 F.3d 262 (5th Cir.), stay denied, 126
S.Ct. 1294, 163 L.Ed.2d 1146 (2006); White v. Johnson, 429 F.3d 572
(5th Cir.), stay denied, 126 S.Ct. 601, 163 L.Ed.2d 502 (2005).);
Lenz v. Johnson, 2006 U.S. Dist. LEXIS at *21-22, (relying on Hill
v. McDonough, held “The Fourth Circuit has been equally transparent
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 22 of 27
16 This is one of many cases in which inmates throughout the
country have sought to challenge lethal injection protocols for
judicial executions. See, e.g., Morales v. Hickman, 415 F.Supp.2d
1037 (N.D. Cal. 2006); Smith v. Johnson, No. 4:06-CV-450, 2006 WL
644424 (S.D. Tex. Feb. 13, 2006), aff'd, 440 F.3d 262 (5th Cir.
2006); Evans v. Saar, 412 F.Supp.2d 519 (D. Md. 2006); Anderson v.
Evans, No. 5:05-CV-0825-F, 2006 WL 83093 (W.D. Okla. Jan. 11,
2006); Ross v. Rell, 392 F.Supp.2d 224 (D. Conn. 2005); Beardslee
v. Woodford, No. 5:04-CV-5381-JF, 2005 WL 40073 (N.D. Cal. Jan. 7,
2005), aff'd, 395 F.3d 1064 (9th Cir. 2005) ; Reid v. Johnson, 333
23
in expressing its views. See, e.g., Stockton v. Angelone, 70 F.3d
12, 13 (4th Cir. 1995) ("[L]ast minute stays . . . represent an
interference with the orderly processes of justice which should be
avoided in all but the most extraordinary of circumstances.");
Jones v. Murray, 976 F.2d 169, 171 (4th Cir. 1992)(citing "yet
another example of a petitioner who has waited until the eve of his
execution to . . . [seek relief] without a justifiable excuse for
the delay").” And most recently Flippen v. Beck, Case. No. 5:06-
CT-3062-H, Order denying injunctive relief and stay of execution
based on attack on North Carolina’s drug protocols), Flippen v.
Beck, __U.S. App. LEXIS __ (4th Cir. August 16, 2006)(Motion for
injunctive relief and stay denied), cert. denied Flippen v. Beck,
2006 U.S. 5315 (August 18, 2006).
2. Injunction
20. Moreover, as to any injunctive relief, the standard for
issuance of a preliminary injunction within the court’s discretion,
is dictated by four factors:
a. A substantial likelihood of success on the
merits;16
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 23 of 27
F.Supp.2d 543 (E.D. 2006); Harris v. Johnson, 323 F.Supp.2d 797
(S.D. Tex. 2004), vacated, 376 F.3d 414 (5th Cir. 2004); Oken v.
Sizer, 321 F.Supp.2d 658 (D. Md.), vacated, 542 U.S. 916 (2004);
Cooper v. Rimer, No. 5:04-CV-436-JF, 2004 WL 231325 (N.D. Cal. Feb.
6, 2004), aff'd, 379 F.3d 1029 (9th Cir. 2004); Bieghler v. Indiana,
839 N.E.2d 691 (Ind. 2005), cert. denied, 126 S.Ct. 1190 (2006);
Abdur'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 20051, cert.
denied, 126 S.Ct. 2288 (2006).
The Courts have concluded that there has been a failure to
demonstrate a likelihood of irreparable harm or a likelihood of
success on the merits in many of these case.
17 Other circuits have concluded that while challenges to the
three-chemical lethal injection procedure support a cognizable
claim under §1983; injunctive relief is not warranted if the delays
in filing of a §1983 action for equitable relief are just before a
scheduled execution. White v. Johnson, 429 F.3d 572, 573-74 (5th
Cir. 2005), White v. Livingston, __ U.S. __, 126 S.Ct. 601, 163
L.Ed.2d 502 (2005)(affirming the dismissal of White's §1983 action
for injunctive relief and emphasizing that White delayed until the
eleventh hour to file his challenge to the state's lethal injection
with the three chemicals in issue); Cooper v. Rimmer, 379 F.3d
1029, 1031-33 (9th Cir. 2004) (affirming the denial of last-minute
equitable relief in §1983 action challenging state's three-chemical
protocol for execution by lethal injection); Harris v. Johnson, 376
F.3d 414, 416-18 (5th Cir. 2004) (concluding that petitioner was not
entitled to equitable relief in §1983 action challenging the
state's three-chemical protocol for execution by lethal injection
where he had unnecessarily delayed in bringing his claim); Bieghler
v. Donahue, No. 1:06-cv-00136-LJM-TAB, 2006 U.S. Dist. LEXIS 6751
(S.D. Ind. Jan. 26, 2006) (relying on Nelson and denying TRO and
preliminary injunction in plaintiff's last-minute §1983 action
challenging the state's three-chemical method of lethal injection
and dismissing the §1983 action), stay of execution granted, No.
06-1300, 163 Fed. Appx. 419 (7th Cir. Jan. 26, 2006) (unpublished
order), stay of execution vacated, No. 05A684,___ U.S. ___, 126
S.Ct. 1190, 163 L.Ed.2d 1144 (2006).
24
b. Whether the plaintiff will suffer irreparable
injury if the injunction is not issued;17
c. Whether the threatened injury to the plaintiff
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 24 of 27
18 See Hill v. McDonough, supra, citing “Mazurek v. Armstrong,
520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (per
curiam) (preliminary injunction not granted unless the movant, by
a clear showing, carries the burden of persuasion).”
19 Hill v. McDonough, supra., and Nelson, v. Campbell, supra..
25
outweighs the potential harm to the opposing party;18 and
d. Whether the injunction, if issued, will be
adverse to the public interest.19
Alabama v. United States Army Corps of Eng'Rs, 424 F.3d 1117, 1128
(11th Cir. 2005); American Red Cross v. Palm Beach Bloos Bank Inc.,
143 F.3d 1407, 1410 (11th Cir. 1998); Haitian Refugee Center Inc.
v. Nelson, 872 F.2d 1555, 1561-1562 (11th Cir. 1989), aff’d, 111
S.Ct. 888 (1991).
21. Hill has the burden of showing these factors, not the
defendants. Alabama v. United States Army Corps of Eng'Rs, 424
F.3d at 1136. While weighing these factors, the court should keep
in mind that a preliminary injunction is “‘ an extraordinary and
drastic remedy [which is] the exception rather than the rule, and
the plaintiff must carry the burden of persuasion.’” United States
v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983); McDonald’s Corp. v.
Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). And, such a
drastic remedy is not routinely granted. Haitian Refugee Center v.
Baker, 789 F.Supp. 1552, 1558 (S.D. Fla. 1991). To warrant entry
of preliminary relief, the movant must “clearly” carry his burden
of persuasion on all four factors. Church v. City of Huntsville,
30 F.3d 1332, 1342 (11th Cir. 1994). See Nnadie v. Richter, 976
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 25 of 27
26
F.2d 672, 690 (11th Cir. 1992)(Court must find for the movant on all
four factors, it is an abuse of discretion for the court to enter
a preliminary injunction when the movant has failed to demonstrate
all four factors.) Of the four factors, irreparable harm is the
most important. Northeastern Florida Chapter v. Jacksonville,
Florida, 896 F.2d 1283, 1285 (11th Cir. 1990), reversed on other
grounds, 111 S.Ct. 2297 (1993); Lambert, 695 F.2d at 540
(demonstrating a substantial likelihood of success on the merits
still requires a movant to show irreparable harm to warrant
issuance of a preliminary injunction). Clearly, based on the
plethora of cases resolving the instant claim whether based on The
LANCET article or some alternative challenge, no relief is
warranted.
22. Hill has failed to establish that the facts warrant the
exercise of this Court's injunctive powers. The likelihood of
irreparable harm to Respondent is greater than the likelihood
ofirreparable harm to Hill. Moreover, Hill has not demonstrated a
likelihood of success on the merits of his claim. These factors,
balanced together with the public interest, counsel against the
issuance of a preliminary injunction in this case. Any motion for
a preliminary injunction should be denied.
Respectfully submitted,
CHARLES J. CRIST, JR.
ATTORNEY GENERAL
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 26 of 27
27
/s/ Carolyn M. Snurkowski
CAROLYN M. SNURKOWSKI
Assistant Deputy Attorney General
Florida Bar No. 158541
OFFICE OF THE ATTORNEY GENERAL
The Capitol
Tallahassee, FL 32399-1050
(850) 414-3300
COUNSEL FOR RESPONDENT
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by electronic filing and U.S. Mail to Mr. Todd
Doss, 725 SE Baya Drive, Suite 102, Lake City, Florida 32026, this
6th day of September, 2006.
/s/ Carolyn M. Snurkowski
CAROLYN M. SNURKOWSKI
Case 4:06-cv-00032-SPM Document 46 Filed 09/06/2006 Page 27 of 27

RESPONSE TO MOTION FOR RECONSIDERATION OF ORDER DISMISSING - Clarence Hill

2006-09-07T07:49:00.000-07:00

http://www.clarencehill.us/legal/correctionrecondieration.htm

1 Mr. Hill files this motion to correct the lack of an electronic
signature in his original Motion for Reconsideration and Setting
Aside of Order Dismissing Complaint and Denying Preliminary
Temporary Injunction. Doc. 41.
-1-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
CASE NO. 4:06-cv-00032-SPM
CLARENCE EDWARD HILL, )
)
Plaintiff, )
)
v. )
)
JAMES MCDONOUGH, SECRETARY OF )
THE FLORIDA DEPARTMENT OF ) EMERGENCY APPLICATION:
CORRECTIONS, ) CAPITAL CASE, DEATH
in his official capacity; ) WARRANT SIGNED; EXECUTION
) IMMINENT. September 20,
) 2006 at 6:00 p.m.
and )
)
CHARLES J. CRIST, JR., ATTORNEY )
GENERAL, )
in his official capacity )
)
Defendant(s). )
___________________________________)
RESPONSE TO MOTION FOR RECONSIDERATION OF ORDER DISMISSING
COMPLAINT AND RESPONSE AND MEMORANDUM OF LAW TO RENEWED REQUEST
FOR STAY OR INJUNCTION
COMES NOW the Plaintiff, Clarence Hill, and moves this Court
to reconsider its Order Dismissing Complaint rendered September
1, 2006. Plaintiff respectfully argues that this Court has
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 1 of 24
2 Mr. Hill in an abundance of caution has attached Plaintiff’s
Motion for Temporary Injunction to Stay His Execution Scheduled
for September 20, 2006 at 6:00 p.m. filed Friday, August 31,
2006. Undersigned in reviewing the CM/ECF website prior to the
filing of this motion inexplicably could not locate the document
on the docket report.
-2-
misapprehended and mistaken several issues of law and fact that
led to an erroneous ruling when it dismissed Mr. Hill’s Amended
Verified Complaint for Declaratory and Injunctive Relief,
Plaintiff’s Motion for Temporary Injunction to Stay His Execution
Scheduled for September 20, 2006 at 6:00 p.m.2, and granted
Defendant(s) Amended Motion to Dismiss.
Mr. Hill will contend in this motion that several errors
were present and concerns raised in this Court’s Order Dismissing
Complaint. Mr. Hill presents argument that although Mr. Hill has
not been dilatory, this Court has conflated and confused the
legal significance of dilatoriness and the corresponding analyses
applicable to the motion to dismiss and a stay of execution.
Further argument is provided that Mr. Hill should be allowed to
litigate the merits of his claims - even if a stay of execution
is not granted - an opportunity that has proved valuable and
meaningful in other jurisdictions. Additionally, Mr. Hill notes
at this point he still has not been specifically informed as to
the procedure that will be utilized to execute him. In support of
his position, Mr. Hill states:
I. PLAINTIFF’S DILIGENCE IN PURSUING HIS CLAIM
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 2 of 24
-3-
In denying Mr. Hill relief this Court found that “Moreover,
Florida’s lethal injection methods were subjected to a full
evidentiary hearing in 2000 in Sims v. State, 754 So.2d 657 (Fla.
2000), and Hill could have challenged the procedure after the
Sims decision was rendered.” Order Dismissing Complaint, at 7.
This Court then goes on to state, “Hill has offered no reason for
his delay in bringing a §1983 action until just days before his
execution. Therefore, under the authority of Gomez, Nelson, and
Hill, this Court finds that Hill has delayed unnecessarily in
bringing his §1983 challenge of Florida’s lethal injection
procedure, and his complaint must be dismissed.” Order Dismissing
Complaint at 7-8 (citations omitted).
This Court’s analysis of Mr. Hill’s perceived delay in
bringing his claim is erroneous and incomplete. Mr. Hill did not
unduly delay in bringing his claim. Rather, as is explained in
his motion for temporary injunction, Mr. Hill could not have
brought his claim prior to the time his execution date was set.
In support of this position, Mr. Hill stated as follows:
E. NO UNNECESSARY DELAY IN BRINGING MR.
HILL’S CLAIM
Mr. Hill diligently pursued his claim as
soon as it ripened. His claim became ripe
when his death warrant issued, because it was
only at that point that he could ascertain
the specific means by which the State would
carry out his lethal injection. See
Worthington v. Missouri, 166 S.W. 3d 566, 583
n.3 (Mo. 2005). That is so because the
Department of Corrections retains complete
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 3 of 24
3 In contrast, Florida prescribes, with careful detail, the
chemicals to be used in animal euthanasia and the chemicals
that are prohibited for such use (including any neuromuscular
blocking agent); a strict “order of preference” for the manner
in which the lethal solution is to be administered; the
qualifications that a person administering the lethal solution
must possess; and a 16-hour “euthanasia technician course”
that anyone administering the lethal solution must have taken.
See Fla. Stat. 828.058. The statute goes on to detail the
minimum topics that the certification course must cover
(including pharmacology, proper administration and storage of
euthanasia solutions) and the manner in which the curriculum
for the course is to be approved (by the Board of Veterinary
Medicine). See id. at 828.058(4)(a).
-4-
discretion over how lethal injections will be
carried out, and shrouds its intentions in
secrecy.
No Florida statute provides the chemical
sequence to be used, the procedures for
administering it, any qualifications or
training required for persons engaged in
administering the chemicals and monitoring
the execution, or the means of venous
access.3 Nor does any Florida statute even
require that such procedures be devised
through rule-making process, or in
consultation with medical experts. Compare
Fla. Stat. § 828.055 (requiring Board of
Pharmacy to adopt rules for the issuance of
permits authorizing the use of chemicals in
animal euthanasia, which “shall set forth
guidelines for the proper storage and
handling” of the chemicals); 828.058
(requiring training for animal euthanasia
technicians involving a curriculum approved
by the Board of Veterinary Medicine). And
the Department has not itself decided to
publish any definitive set of procedures
through rule-making or otherwise. The
Department, therefore, retains total
discretion to change the chemical sequence,
the manner of administration, the
qualifications and training of the execution
team, and any safeguards to ensure proper
administration and adequate anesthetic depth
at any time and with respect to any
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 4 of 24
4 The State of Florida has denied Mr. Hill any access whatsoever
to records, policies, procedures, or any other information
concerning its lethal injection protocols and procedures.
-5-
particular execution. The State has never
disputed that the Department has total
discretion in this regard. The “central
concern” of the ripeness doctrine “is whether
the case involves uncertain or contingent
future events that may not occur as
anticipated.” Charles Alan Wright et al.,
13A Federal Practice and Procedure § 3532, at
112. Accordingly, the ripeness inquiry looks
to whether a sufficiently concrete and
definitive agency policy or practice exists.
Otherwise, judicial intervention would
“den[y] the agency an opportunity to correct
is own mistakes and to apply its expertise.”
Federal Trade Comm’n v. Standard Oil Co., 449
U.S. 232, 242 (1980). As the Supreme Court
of the United States has explained in the
analogous context of federal administrative
review,
[T]he ripeness requirement is designed
“to prevent the courts, through avoidance
of premature adjudication, from
entangling themselves in abstract
disagreements over administrative
policies, and also to protect the
agencies from judicial interference until
an administrative decision has been
formalized and its effects felt in a
concrete way by the challenging parties.”
Ohio Forestry Association, Inc. v. Sierra
Club, 523 U.S. 726,
732-33 (1983).
Here, rather than promulgate a definitive
policy, DOC has retained total discretion
over its process of lethal injection. For
this reason, it was only when Mr. Hill’s
execution was imminent that he could
ascertain what execution procedures would be
applied to him. The State cannot fight tooth
and nail to resist publication of any
definitive protocol4, and then accuse the
condemned person of inequitable conduct
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 5 of 24
5 Although Mr. Hill was not required to exhaust state-court
remedies prior to bringing his federal-court action under
§ 1983, see Wilkinson v. Dotson, 125 S. Ct. 1242, 1249 (2005),
he did so out of an abundance of caution, recognizing that if
the district court were to construe his complaint as a habeas
filing, he would have had to exhaust those judicial remedies,
see 48 U.S.C. § 2254(b)(1)(A). The State of Florida raises the
issue of the PLRA exhaustion requirements in its motion to
dismiss. Doc. 34, at 8-16. Notably, Mr. Hill’s complaint alleged
that no administrative remedies were available to him. See
Complaint at 17-18 and in his Amended Complaint. The PLRA’s
exhaustion requirement is not a rule of pleading the plaintiff
must satisfy. It is an affirmative defense the defendant must
plead and prove, not appropriate for consideration under a
Fed.R.Civ.P. 12(b)(6) motion where all facts must be construed
in the light most favorable to the Plaintiff. See Anderson, 407
F.3d at 681; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2003); Casanova v. Dubois, 304 F.3d 75, 77 (1st Cir. 2002); Ray
v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Foulk v. Charrier,
262 F.3d 687, 697 (8th Cir. 2001); Massey v. Helman, 196 F.3d
-6-
because he must wait until his death warrant
is issued to ascertain the particular
procedures that will be used in his
execution.
Instead, the State can secure an earlier
disposition of such suits simply by
prescribing definitive practices or the
orderly adoption of rules, as it already has
done to regulate animal euthanasia. The
Department, moreover, need only implement the
familiar process of agency rule-making to
ensure that the question whether its chosen
procedures for administering lethal injection
violates the Eighth Amendment ripens before
the inmate’s date of execution is set.
Given the lack of any constraints on the
Department’s discretion and of any definitive
practices that would have provided the courts
with a sufficiently concrete policy to
review, Mr. Hill’s claim did not ripen until
the execution warrant issued. From the
moment that Mr. Hill’s challenge ripened, he
has diligently pursued his claim. Mr. Hill
initially filed suit in state court, in order
to defend against an argument that he had
failed to exhaust state remedies.5 As soon
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 6 of 24
727, 735 (7th Cir. 1999); Jenkins v. Haubert, 179 F.3d 19, 28-29
(2d Cir. 1999); see also Johnson v. California, 543 U.S. 499
(2005) (assuming that the PLRA’s exhaustion requirement is
waivable); id. at 528 n.1 (Thomas, J., dissenting) (pointing out
assumption); Jackson v. District of Columbia, 254 F.3d 262, 267
(D.C. Cir. 2001) (suggesting that exhaustion is an affirmative
defense). Even if this Court construes the PLRA exhaustion
requirement as a special matter that must be pled, Fed.R.Civ.P.
9(c) allows Mr. Hill to plead generally that the condition was
satisfied and a denial of performance or occurrence must be
specifically pled with particularity.
6 Mr. Hill’s claim is no different than in cases where new
scientific DNA techniques were developed after those cases had
concluded. Just as in those cases where courts are reconsidering
prior rulings in light of subsequent scientific research, so
should Mr. Hill’s claim be considered in light of new scientific
evidence.
-7-
as his action was dismissed on procedural
grounds in state court, he filed his § 1983
action.
Plaintiff’s Motion for Temporary Injunction
to Stay His Execution Scheduled for September
20, 2006 at 6:00 p.m. at 28-31.
Clearly, Mr. Hill was diligent in filing his §1983 claim.
This Court’s order failed to acknowledge or specifically consider
the facts presented.
Of further note is that the study relied upon by Mr. Hill
was not published until April 2005, five years after the Sims
decision. This study is new. It is post-Sims.6 In addition,
Taylor and Morales are recent decisions which demonstrate
examples of how reality vastly differs from theory when grappling
with lethal injection issues. The discovery in these cases
exposed the Missouri and California procedures to be much more
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 7 of 24
-8-
inadequate than ever imagined. As none of this information was
available at the time Sims was decided, certainly Mr. Hill cannot
be faulted for failing to raise the issue.
Prior to Hill v. McDonough, Eleventh Circuit precedent
refused to recognize and thereby notice condemned prisoners that
a §1983 action could be used to challenge “[m]ethod of execution”
under the Eighth Amendment. In fact, the Eleventh Circuit had
consistently ruled that Mr. Hill, and others on Florida’s death
row, “could [not] have brought” the claim contained in the
pending §1983 action. As well, the Court’s clear holding in
Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004),
precluded such a lawsuit. Indeed, this Court initially dismissed
Mr. Hill’s claim based upon that precedent, stating that there
was no subject matter jurisdiction for this Court to consider the
claim. It was only on January 24, 2006 – when the United States
Supreme Court granted certiorari review in Hill v. Crosby to
determine whether the Eleventh Circuit Court’s determination that
district courts lack jurisdiction to consider claims like Mr.
Hill’s was correct – that the validity of this precedent was
called into question.
The Eleventh Circuit Court’s precedent was succinctly
explained in Hill v. Crosby:
It is clear to us that the district court lacked
jurisdiction to consider appellant’s claim because it
is the functional equivalent of a successive habeas
petition and he failed to obtain leave of this court to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 8 of 24
7 Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004); White v.
Johnson, 429 F.3d 572, 574 (5th Cir. 2005); White v. Livingston,
126 S.Ct. 601 (2005); Patton v. Jones, 2006 WL 2468312 (10th Cir.
Aug. 25, 2006); Reese v. Livingston, 453 F.3d 289, 291 (5th Cir.
June 20, 2006).
-9-
file it. See 28 U.S.C. § 2244(b)(3)(A). And as the
panel observed in Robinson, “such an application to
file a successive petition would be due to be denied in
any event. See In re Provanzano, 215 F.3d 1233, 1235-
36 (11th Cir. 2000), cert. denied, 530 U.S. 1256, 120
S.Ct. 2710, 147 L.Ed.2d 979 (2000) (concluding that a
claim that lethal injection constitutes cruel and
unusual punishment does not meet the requirements of 28
U.S.C. § 2244(b)(2)(A) or (B)).”
437 F.3d 1084, 1085 (11th Cir. 2006)
Thus, unlike the situation in the bevy of circuit court
cases cited by this Court7, or even in Gomez v. U.S. Dist. Ct.
For N. Dist. Cal. 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293
(1992)(per curiam), there is “good reason” in this case for the
failure to present this claim previously. According to the
binding precedent of this Court when the Lancet study came out in
April of 2005, Mr. Hill could neither file a successive habeas
petition challenging the protocol employed by the State of
Florida for carrying out a lethal injection execution, nor a
§1983 complaint.
This precedent has now been definitively overruled.
However, it should have been considered by this Court as to
timeliness in evaluating the equities in determining whether to
enter a stay of execution under Gomez. This Court’s failure to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 9 of 24
-10-
properly consider this precedent is in error, and relief is
warranted.
Seemingly, in its consideration of the timeliness of Mr.
Hill’s action, this Court has improperly conflated two key issues
and the appropriate analysis for each: (1) the question of
dismissal pursuant to Rule 12(b)(6); and (2) the question of
whether to temporarily enjoin (stay) Mr. Hill’s execution. The
State of Florida based their motion to dismiss upon Rule
12(b)(6). As this Court is well aware, Rule 12(b)(6) is an
appropriate vehicle for dismissal only when the Plaintiff fails
to state a claim upon which relief can be granted. Yet the
entire procedural history of this case has been about whether Mr.
Hill has stated a viable claim under §1983. See Hill v.
McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006);
Hill v. Crosby, 437 F.3d 1084 (11th Cir. 2006).
Clearly, the United States Supreme Court found that Mr. Hill
stated a viable claim, or it would not have remanded this cause.
All that is required from Mr. Hill at this juncture is a short,
concise statement of facts. See Rule 8. The Supreme Court
specifically held that there are no heightened pleading
requirements in Mr. Hill’s §1983 action. See Hill at **53. And
the Supreme Court clearly contemplated that ripeness was not a
hinderance to Mr. Hill’s cause. As Justice Breyer stated in his
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 10 of 24
-11-
questioning of the State of Florida during oral argument in this
cause:
And so [Mr. Hill] thinks, up until the last minute,
that maybe Florida will just do it, and lo and behold,
when the death warrant is actually executed, it now
begins to appear that they won't. And therefore, at
that time, he brings the case. Now, I've spun out a
story which seems probable, that if it's true, it would
be very understandable why this wasn't ripe before the
execution warrant is issued and thereafter it is.
Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44
(2006), Oral Argument transcript at 29.
Mr. Hill’s complaint is timely as long as he files it within
the statute of limitations, so there is no dilatoriness or
untimeliness in the filing of the lawsuit. As the district court
stated in Cooey v. Taft, it is illogical to require a deathsentenced
plaintiff to file a §1983 action any earlier than when
his execution is “imminent”:
[Because] it appears that the [lethal injection]
protocol is subject to alteration until the time of
execution . . . requiring a death-sentenced plaintiff
to file his method-of-execution challenge any sooner
[than when his death is imminent] strikes this Court as
potentially wasteful and possibly absurd, given the
possibility that, prior to his execution becoming
imminent, a plaintiff could see his conviction or death
sentence reversed, or the alteration of the precise
execution protocol that plaintiff might seek to
challenge as unconstitutional. Cooey v. Taft, No. 2:04-
cv-1156(Doc.14, at 11).
The timeliness issue is only relevant to the propriety of a
stay under Gomez, Nelson, and Hill. In terms of the viability of
Mr. Hill’s §1983 action, there is no question that Mr. Hill was
diligent, timely, and acting in accordance with established
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 11 of 24
-12-
precedent as he pursued this claim through the courts.
Therefore, this Court is clearly in error in dismissing Mr.
Hill’s claim on the basis of timeliness.
II. EQUITIES SHIFTED WHEN STATE OF FLORIDA MANIPULATED THE
EXECUTION DATE FOR STRATEGIC ADVANTAGE
The analysis under Gomez changed when the original execution
date was stayed on January 25, 2006. In contrast to when the
Supreme Court of the United States voted unanimously to stay this
cause and grant certiorari, after the remand in January of 2006
Mr. Hill was not initially operating under an imminent execution
date. Thirty-four days after the remand, the Governor of Florida
set an execution date to “get things going in the courts,” rather
than filing a motion for remand. This action presents a different
set of equities than what this Court considered when denying Mr.
Hill’s request to stay his execution. The State of Florida’s
action, not Mr. Hill’s, abrogated Mr. Hill’s ability to
adequately develop a factual record as requested in this cause.
The State’s actions should not unduly prejudice Mr. Hill by
preventing him from pursuing his constitutional claim to the
fullest extent of the law.
Per Governor Bush’s orders, the State of Florida did not
proceed with any further death warrants while Mr. Hill’s case was
pending. The State’s “strong interest in enforcing its criminal
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 12 of 24
-13-
judgments . . .” (See Hill v. McDonough at 2104) was voluntarily
and volitionally decided to be of less importance than the issues
surrounding lethal injection. However, by now resetting Mr.
Hill’s execution date, while continuing to hold all other
warrants in abeyance, the intent of the State of Florida is
obvious – kill Mr. Hill, and prevent a reasoned review of the
torturous lethal injection process currently in place.
This new execution date changes the equitable analysis when
determining whether Mr. Hill’s claim should go forward. The
State of Florida’s conduct has only served to delay and obstruct
the proper resolution of Mr. Hill’s claims. By setting an
execution date for Mr. Hill, Florida has short-circuited the
normal course of litigation – a course of litigation which was
anticipated by the United States Supreme Court when it stayed Mr.
Hill’s execution and remanded this case. The State’s action
belies its publicly stated intent of awaiting a judicial
resolution of this matter, and evinces its true intent of not
allowing a judicial review of its lethal injection procedure.
It should be noted, however, that two Supreme Court justices
recognized that the State has a responsibility to ensure that its
execution method comports with the Constitution. As Justice
Kennedy stated in oral argument in Hill v. McDonough, “This --
this is a death case. . . . Doesn't the State have some minimal
obligation under the Eighth Amendment to do the necessary
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 13 of 24
-14-
research to assure that this is the most humane method possible?
Doesn't the State have a minimal obligation on its own to do
that?" Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165
L.Ed.2d 44 (2006), Oral Argument transcript at 29.
Similarly, Justice Souter queried the assistant solicitor
general on what he believed to be the State’s duty to
investigate:
[T]he Lancet article has been out there for a while,
and it certainly is enough to suggest. . .that there is
something problematic about the manner in which Florida
proposes to do this. And yet, we have not heard a word
that Florida has made any effort whatsoever to find an
alternative or, for that matter, to – to disprove what
the Lancet article suggests. Id. at 48.
By ordering Mr. Hill to be executed on September 20, 2006, the
State of Florida is willfully disregarding the very real
possibility that Mr. Hill will be executed cruelly, painfully,
and unconstitutionally. The State’s blatant attempt to avoid
addressing this serious constitutional and civil rights issue
significantly lessens the equitable weight that would generally
be afforded a State when an execution date is imminent. This
Court should re-weigh the equities accordingly, and find that
equitable process mandates an evidentiary hearing in this cause.
III. TRUNCATED CONSIDERATION BY THIS COURT DID NOT PROVIDE MR.
HILL DUE PROCESS IN LITIGATING HIS §1983 CLAIM
This Court originally had Mr. Hill’s case under warrant in
January 2006. Mr. Hill filed his claim on Friday, January 20,
2006, and the State of Florida filed their response the same day.
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 14 of 24
-15-
The next day, Saturday, January 21, 2006, this Court dismissed
Mr. Hill’s claim, re-characterizing the claim as a successive
habeas petition and then dismissing under AEDPA. Essentially,
this Court entertained Mr. Hill’s claim in one day.
This cause was remanded to this Court pursuant to Hill v.
McDonough, 126 S.Ct. 2096 (June 12, 2006) and Hill v. McDonough,
No. 06-10621 (11th Cir. Aug. 29, 2006), on Thursday, August 31,
2006. The CM/ECF notification of the remand occurred at 12:12
p.m. on that date. Subsequently, this Court’s staff contacted
the office of undersigned counsel at approximately 1:45 p.m. to
order that all pleadings in this matter be submitted by the
following day at noon. Undersigned counsel was at the prison
visiting death row clients, including Mr. Hill, and returned
around 5:00 p.m. to receive this Court’s order. This allowed
undersigned counsel a mere 19 hours, if he chose not to sleep, to
comply with this Court’s request. The parties complied with this
Court’s order and filed their pleadings by noon on September 1,
2006. In less than seven hours, this Court denied Mr. Hill’s
request for a preliminary temporary injunction staying the
execution – even though the execution was still nineteen days
away. This Court’s consideration and rejection of Mr. Hill’s
claims in such a short time span is not the process which Mr.
Hill is due.
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 15 of 24
-16-
The guarantee that no person shall be deprived of life,
liberty or property without due process of law is a fundamental
constitutional right that applies to both federal and state
governmental actors through the Fifth and Fourteenth Amendments
to the U.S. Constitution. The Due Process Clause applies to
federal courts, Dusenberry v. United States, 534 U.S. 161, 165
(2002), and it applies in civil as well as criminal proceedings,
e.g. Honda Motor Co. V. Oberg, 512 U.S. 415, 430-435 (1994). It
has been long established that “[a]n elementary and fundamental
requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the
circumstances, to apprise the interested parties of the pendency
of the action and to afford them an opportunity” to present their
case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950). Mr. Hill has been unjustly denied an opportunity to
present his case. The process which he is due would allow him to
present his evidence and demonstrated the unconstitutionally
cruel punishment which he faces, not a summary dismissal.
The Supreme Court of the United States contemplated more
when it held that district courts should decide the equities of a
stay in the first instance. See Gomez, 503 U.S. 653, 112 S.Ct.
1652, 118 L.Ed.2d 293 (1992)(per curiam); Nelson v. Campbell, 541
U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); Hill v.
McDonough, 126 S.Ct. 2096 (June 12, 2006). In this case, the
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 16 of 24
-17-
efficacy of a stay would have been more appropriately determined
after assessing the discovery requests submitted by Mr. Hill
subject to the expediting of the discovery process. Instead,
this Court gave the parties less than twenty-four hours to
present their claims, and then rendered judgment on the pleadings
without the benefit of discovery. This truncated process was
utilized even though nineteen days were left before Mr. Hill’s
scheduled execution.
The nature of Mr. Hill’s case demands that he be granted a
full and fair evidentiary hearing both as to the efficacy of the
stay and the merits of his claims. An evidentiary hearing is
necessary to make certain that Mr. Hill will not be subjected to
an unconstitutionally cruel punishment, as well as to ensure
public legitimacy as the State of Florida carries out his
sentence. The highly specific factual claims advanced by Mr.
Hill plainly cannot be properly litigated without a meaningful
opportunity for discovery. This Court’s order dismissing Mr.
Hill’s claims effectively prejudges Mr. Hill’s claims as
factually meritless. That type of prejudging is highly improper
in any case, but is even more inappropriate in an Eighth
Amendment challenge to a specific means of execution.
IV. THIS CLAIM SHOULD HAVE GONE FORWARD EVEN IF STAY NOT GRANTED
Absent the unique and unusual circumstances of these
proceedings, Mr. Hill would indisputably have been entitled to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 17 of 24
-18-
more time to prepare and present his case. As a result of this
Court’s ruling, Mr. Hill has been denied the opportunity to
utilize the tools of discovery, as well as the opportunity to
conduct further factual investigation into such matters as
whether Florida has a history of botched executions similar to
California. See Morales v. Hickman, 2006 WL 335427 (N.D. Cal.,
Feb. 14, 2006) reviewed at Morales v. Hickman, 2006 WL 391604
(9th Cir., 2006); Taylor v. Crawford, 2006 U.S. Dist. LEXIS
42949, 22 (June 26, 2006). In any lawsuit, much less one that is
as intensely specific and factually intensive as a challenge to
the State’s manner of execution, a rush to judgment runs contrary
to the basic dictates of due process.
Dismissal of a claim is the harshest of remedies and should
not have been ordered in this cause. Mr. Hill should have been
allowed to continue in his claim to the point of his execution,
even if this Court chose not to enter a stay. Mr. Hill could
have proceeded with his requested discovery and presumably
discovered information further supporting his claim and changing
the equities relative to a stay. At this point Mr. Hill has been
unjustly denied that opportunity.
Mr. Hill promptly sought discovery upon remand by filing
numerous discovery requests within twenty-four hours of this
cause being remanded, i.e. admissions, production,
interrogatories, etc. Additionally, he promptly sought a stay of
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 18 of 24
-19-
his execution from this Court, again within twenty-four hours, in
an attempt to ensure his ability to participate in discovery.
This Court’s order that all pleadings be submitted in this
cause within twenty-four hours of the remand, and its subsequent
dismissal of this cause the same day, eliminated Mr. Hill’s
ability to participate in discovery. The prejudice inuring from
this Court’s action is manifest. If Mr. Hill had been given even
minimal discovery and the opportunity to obtain the execution
logs and other key records, he presumably could have produced
direct evidence to prove his claims. The Morales case proves
instructive in this regard. In Morales, records regarding lethal
injection procedures in California documented a pattern of
mistakes, complications and blunders that discredited
California’s claim that five grams of thiopental would quickly
render an inmate unconscious. See Morales at 2006 WL 335427 at
*6 (“[E]vidence from Defendants’ own execution logs [shows] that
the inmates’ breathing may not have ceased as expected in at
least six out of thirteen executions by lethal injection in
California.”). As a result of Morales’ opportunity for discovery
and the presentation of evidence, he was able to discount the
testimony about the theoretical efficacy of thiopental in the
face of real world evidence. Id. at *5-6.
Mr. Hill was seeking, and would have obtained, the same type
of information regarding execution protocols. Florida’s margin
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 19 of 24
-20-
for error is significantly lower then California’s, as the State
Department of Corrections purportedly uses only two grams of
thiopental. See Sims v. State, 754 So.2d 657 (Fla. 2000).
Therefore, it is even more likely that real world mistakes,
mishaps, and complications would belie Florida’s assertions as to
the legitimacy and constitutionality of its lethal injection
procedure. A prisoner need not take on faith the statement by
prison officials that his execution will be constitutionally
compliant, and a condemned prisoner has the right to know how his
execution will be conducted. “Fundamental fairness, if not due
process, requires that the execution protocol that will regulate
an inmate’s death be forwarded to him in a prompt and timely
fashion.” Oken v. Sizer, 321 F.Supp. 658, 664 (D. Md.
2004)(considering rights of condemned inmate to review suddenly
changed protocol)(considering constitutionality of lethal
injection protocols in Maryland and collecting case), stay
vacated, 124 S.Ct. 2868 (2004); cf. Lankford v. Idaho, 500 U.S.
110, 126 n.22 (1991)(noting that when the threatened loss is
great, as when death is the result, the need for notice is even
more pronounced than in other settings). For that right to have
meaning, Mr. Hill must be allowed to challenge an execution
protocol that will subject him to the unconscionable likelihood
that he will suffer unnecessarily and inhumanely. Cf. Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950).
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 20 of 24
-21-
No injustice would have occurred had this Court allowed a
sufficiently brief period of time for discovery and an
adjudication of Mr. Hill’s claims. On the contrary, permitting
Mr. Hill the opportunity for expedited discovery and time to
fully develop his claims would have only increased the legitimacy
of these proceedings and allowed this Court to make a decision
after a full and fair hearing. Florida’s acknowledged interest
in promptly carrying out Mr. Hill’s sentence cannot override the
fundamental due process requirement that a litigant such as Mr.
Hill be given a basic adequate opportunity to develop and present
his claims. Mr. Hill is entitled to die with dignity, consistent
with the requirements of the Eighth Amendment. Neither the State
of Florida nor this Court can deny Mr. Hill a meaningful
opportunity to make his case.
This Court could have easily denied the stay and allowed Mr.
Hill’s claim to proceed with expedited discovery as he requested.
The case of Patton v. Jones is illustrative of the efficacy and
value of this process, as are Morales and Taylor. See Patton v.
Jones, 2006 U.S. Dist. LEXIS 54429 (Okla. W.D. Aug. 4, 2006)
affirmed, stay denied, Patton v. Jones, 2006 U.S. App. LEXIS
22312 (10th Cir. Aug. 25, 2006), Patton v. Jones, petition
denied, stay denied, 2006 U.S. LEXIS 5379 (Aug.29, 2006);
Morales v. Hickman, 2006 WL 335427 (N.D. Cal., Feb. 14, 2006)
reviewed at Morales v. Hickman, 2006 WL 391604 (9th Cir., 2006);
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 21 of 24
-22-
Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, 22 (June 26,
2006). All of these cases are recent and involved lethal
injection claims where the courts denied a stay and allowed the
proceedings to continue. In these cases a determination on the
merits was made in a very limited amount of time, and enough
discovery and testimony were adduced to allow meaningful
consideration to be given to the plaintiffs’ claims.
For example, the docket sheet in Patton reveals that the
plaintiff filed a motion for preliminary injunction on July 28,
2006, and a hearing on that motion was held on August 8, 2006.
At the hearing, the State of Oklahoma introduced a new protocol
in response to plaintiff’s claims, and the Court ruled that the
protocol extant at the time the lawsuit was filed was
unconstitutional; however, the new protocol was ruled to have
sufficiently addressed plaintiff’s concerns regarding the
constitutionality of the method of execution. See Patton v.
Jones, Case No. 5:06-cv-00591-F, Docket Report & Doc. 25.
Mr. Hill previously detailed the proceedings in Taylor and
Morales in his request for a preliminary temporary injunction and
will incorporate those facts by reference. Clearly, these cases
demonstrate that it is possible to litigate and resolve lethal
injection issues quickly. It is incorrect for this Court to
assume that the parties cannot address Mr. Hill’s claims prior to
his September 20, 2006 execution date. Most importantly, it is a
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 22 of 24
-23-
blatant denial of due process to not even attempt to allow him to
present his claims.
WHEREFORE, Mr. Hill respectfully requests this Court
reconsider its Order Dismissing Complaint, deny Defendant’s
Amended Motion to Dismiss for Failure to State a Cause of Action
Upon Which Relief Can Be Granted; and Response and Memorandum of
Law to Request for Stay or Injunction, issue a temporary
injunction staying Mr. Hill’s execution, order expedited
discovery, and allow Mr. Hill’s § 1983 action to be fully and
fairly litigated without an imminent execution date looming.
Respectfully submitted,
/s/ D. Todd Doss
D. TODD DOSS
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Facsimile (386) 755-3181
COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document has been served
on the following counsel via electronic filing on this 5th day of
September 2006.
/s/ D. Todd Doss
D. TODD DOSS
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 23 of 24
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Copies furnished to:
Carolyn Snurkowski
Assistant Attorney General
Office of the Attorney General
Plaza Level 1
The Capitol
Tallahassee, FL 32399
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 24 of 24

CORRECTED MOTION FOR RECONSIDERATION AND SETTING ASIDE OF ORDER - Clarence Hill

2006-09-07T07:30:00.000-07:00

http://www.clarencehill.us/legal/correctionrecondieration.htm

1 Mr. Hill files this motion to correct the lack of an electronic
signature in his original Motion for Reconsideration and Setting
Aside of Order Dismissing Complaint and Denying Preliminary
Temporary Injunction. Doc. 41.

-1-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
CASE NO. 4:06-cv-00032-SPM

CLARENCE EDWARD HILL,

Plaintiff,

v.

JAMES MCDONOUGH, SECRETARY OF
THE FLORIDA DEPARTMENT OF EMERGENCY APPLICATION:
CORRECTIONS, CAPITAL CASE, DEATH
in his official capacity; WARRANT SIGNED; EXECUTION
IMMINENT. September 20,
2006 at 6:00 p.m.
and

CHARLES J. CRIST, JR., ATTORNEY
GENERAL,
in his official capacity

Defendant(s).
CORRECTED MOTION FOR RECONSIDERATION AND SETTING ASIDE OF ORDER
DISMISSING COMPLAINT AND DENYING PRELIMINARY TEMPORARY
INJUNCTION1

COMES NOW the Plaintiff, Clarence Hill, and moves this Court
to reconsider its Order Dismissing Complaint rendered September
1, 2006. Plaintiff respectfully argues that this Court has
C
2 Mr. Hill in an abundance of caution has attached Plaintiff’s
Motion for Temporary Injunction to Stay His Execution Scheduled
for September 20, 2006 at 6:00 p.m. filed Friday, August 31,
2006.

Undersigned in reviewing the CM/ECF website prior to the
filing of this motion inexplicably could not locate the document
on the docket report.
-2-
misapprehended and mistaken several issues of law and fact that
led to an erroneous ruling when it dismissed Mr. Hill’s Amended
Verified Complaint for Declaratory and Injunctive Relief,
Plaintiff’s Motion for Temporary Injunction to Stay His Execution
Scheduled for September 20, 2006 at 6:00 p.m.2, and granted
Defendant(s) Amended Motion to Dismiss.

Mr. Hill will contend in this motion that several errors
were present and concerns raised in this Court’s Order Dismissing
Complaint. Mr. Hill presents argument that although Mr. Hill has
not been dilatory, this Court has conflated and confused the
legal significance of dilatoriness and the corresponding analyses
applicable to the motion to dismiss and a stay of execution.

Further argument is provided that Mr. Hill should be allowed to
litigate the merits of his claims - even if a stay of execution
is not granted - an opportunity that has proved valuable and
meaningful in other jurisdictions.

Additionally, Mr. Hill notes
at this point he still has not been specifically informed as to
the procedure that will be utilized to execute him. In support of
his position, Mr. Hill states:

I. PLAINTIFF’S DILIGENCE IN PURSUING HIS CLAIM

-3-
In denying Mr. Hill relief this Court found that “Moreover,
Florida’s lethal injection methods were subjected to a full
evidentiary hearing in 2000 in Sims v. State, 754 So.2d 657 (Fla.
2000), and Hill could have challenged the procedure after the
Sims decision was rendered.” Order Dismissing Complaint, at 7.
This Court then goes on to state, “Hill has offered no reason for
his delay in bringing a §1983 action until just days before his
execution. Therefore, under the authority of Gomez, Nelson, and
Hill, this Court finds that Hill has delayed unnecessarily in
bringing his §1983 challenge of Florida’s lethal injection
procedure, and his complaint must be dismissed.” Order Dismissing
Complaint at 7-8 (citations omitted).

This Court’s analysis of Mr. Hill’s perceived delay in
bringing his claim is erroneous and incomplete. Mr. Hill did not
unduly delay in bringing his claim. Rather, as is explained in
his motion for temporary injunction, Mr. Hill could not have
brought his claim prior to the time his execution date was set.

In support of this position, Mr. Hill stated as follows:

E. NO UNNECESSARY DELAY IN BRINGING MR.
HILL’S CLAIM
Mr. Hill diligently pursued his claim as
soon as it ripened. His claim became ripe
when his death warrant issued, because it was
only at that point that he could ascertain
the specific means by which the State would
carry out his lethal injection. See
Worthington v. Missouri, 166 S.W. 3d 566, 583
n.3 (Mo. 2005). That is so because the
Department of Corrections retains complete

3 In contrast, Florida prescribes, with careful detail, the
chemicals to be used in animal euthanasia and the chemicals
that are prohibited for such use (including any neuromuscular
blocking agent); a strict “order of preference” for the manner
in which the lethal solution is to be administered; the
qualifications that a person administering the lethal solution
must possess; and a 16-hour “euthanasia technician course”
that anyone administering the lethal solution must have taken.
See Fla. Stat. 828.058. The statute goes on to detail the
minimum topics that the certification course must cover
(including pharmacology, proper administration and storage of
euthanasia solutions) and the manner in which the curriculum
for the course is to be approved (by the Board of Veterinary
Medicine). See id. at 828.058(4)(a).

-4-
discretion over how lethal injections will be
carried out, and shrouds its intentions in
secrecy.

No Florida statute provides the chemical
sequence to be used, the procedures for
administering it, any qualifications or
training required for persons engaged in
administering the chemicals and monitoring
the execution, or the means of venous
access.3

Nor does any Florida statute even
require that such procedures be devised
through rule-making process, or in
consultation with medical experts. Compare
Fla. Stat. § 828.055 (requiring Board of
Pharmacy to adopt rules for the issuance of
permits authorizing the use of chemicals in
animal euthanasia, which “shall set forth
guidelines for the proper storage and
handling” of the chemicals); 828.058
(requiring training for animal euthanasia
technicians involving a curriculum approved
by the Board of Veterinary Medicine). And
the Department has not itself decided to
publish any definitive set of procedures
through rule-making or otherwise. The
Department, therefore, retains total
discretion to change the chemical sequence,
the manner of administration, the
qualifications and training of the execution
team, and any safeguards to ensure proper
administration and adequate anesthetic depth
at any time and with respect to any

4 The State of Florida has denied Mr. Hill any access whatsoever
to records, policies, procedures, or any other information
concerning its lethal injection protocols and procedures.

-5-
particular execution. The State has never
disputed that the Department has total
discretion in this regard. The “central
concern” of the ripeness doctrine “is whether
the case involves uncertain or contingent
future events that may not occur as
anticipated.” Charles Alan Wright et al.,
13A Federal Practice and Procedure § 3532, at
112. Accordingly, the ripeness inquiry looks
to whether a sufficiently concrete and
definitive agency policy or practice exists.
Otherwise, judicial intervention would
“den[y] the agency an opportunity to correct
is own mistakes and to apply its expertise.”
Federal Trade Comm’n v. Standard Oil Co., 449
U.S. 232, 242 (1980). As the Supreme Court
of the United States has explained in the
analogous context of federal administrative
review,

[T]he ripeness requirement is designed
“to prevent the courts, through avoidance
of premature adjudication, from
entangling themselves in abstract
disagreements over administrative
policies, and also to protect the
agencies from judicial interference until
an administrative decision has been
formalized and its effects felt in a
concrete way by the challenging parties.”
Ohio Forestry Association, Inc. v. Sierra
Club, 523 U.S. 726,
732-33 (1983).

Here, rather than promulgate a definitive
policy, DOC has retained total discretion
over its process of lethal injection. For
this reason, it was only when Mr. Hill’s
execution was imminent that he could
ascertain what execution procedures would be
applied to him. The State cannot fight tooth
and nail to resist publication of any
definitive protocol4, and then accuse the
condemned person of inequitable conduct

5 Although Mr. Hill was not required to exhaust state-court
remedies prior to bringing his federal-court action under
§ 1983, see Wilkinson v. Dotson, 125 S. Ct. 1242, 1249 (2005),
he did so out of an abundance of caution, recognizing that if
the district court were to construe his complaint as a habeas
filing, he would have had to exhaust those judicial remedies,
see 48 U.S.C. § 2254(b)(1)(A). The State of Florida raises the
issue of the PLRA exhaustion requirements in its motion to
dismiss. Doc. 34, at 8-16. Notably, Mr. Hill’s complaint alleged
that no administrative remedies were available to him. See
Complaint at 17-18 and in his Amended Complaint. The PLRA’s
exhaustion requirement is not a rule of pleading the plaintiff
must satisfy.
It is an affirmative defense the defendant must
plead and prove, not appropriate for consideration under a
Fed.R.Civ.P. 12(b)(6) motion where all facts must be construed
in the light most favorable to the Plaintiff. See Anderson, 407
F.3d at 681; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2003); Casanova v. Dubois, 304 F.3d 75, 77 (1st Cir. 2002); Ray
v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Foulk v. Charrier,
262 F.3d 687, 697 (8th Cir. 2001); Massey v. Helman, 196 F.3d
-6-
because he must wait until his death warrant
is issued to ascertain the particular
procedures that will be used in his
execution.
Instead, the State can secure an earlier
disposition of such suits simply by
prescribing definitive practices or the
orderly adoption of rules, as it already has
done to regulate animal euthanasia. The
Department, moreover, need only implement the
familiar process of agency rule-making to
ensure that the question whether its chosen
procedures for administering lethal injection
violates the Eighth Amendment ripens before
the inmate’s date of execution is set.
Given the lack of any constraints on the
Department’s discretion and of any definitive
practices that would have provided the courts
with a sufficiently concrete policy to
review, Mr. Hill’s claim did not ripen until
the execution warrant issued. From the
moment that Mr. Hill’s challenge ripened, he
has diligently pursued his claim. Mr. Hill
initially filed suit in state court, in order
to defend against an argument that he had
failed to exhaust state remedies.5 As soon
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 6 of 24
727, 735 (7th Cir. 1999); Jenkins v. Haubert, 179 F.3d 19, 28-29
(2d Cir. 1999); see also Johnson v. California, 543 U.S. 499
(2005) (assuming that the PLRA’s exhaustion requirement is
waivable); id. at 528 n.1 (Thomas, J., dissenting) (pointing out
assumption); Jackson v. District of Columbia, 254 F.3d 262, 267
(D.C. Cir. 2001) (suggesting that exhaustion is an affirmative
defense). Even if this Court construes the PLRA exhaustion
requirement as a special matter that must be pled, Fed.R.Civ.P.
9(c) allows Mr. Hill to plead generally that the condition was
satisfied and a denial of performance or occurrence must be
specifically pled with particularity.
6 Mr. Hill’s claim is no different than in cases where new
scientific DNA techniques were developed after those cases had
concluded. Just as in those cases where courts are reconsidering
prior rulings in light of subsequent scientific research, so
should Mr. Hill’s claim be considered in light of new scientific
evidence.
-7-
as his action was dismissed on procedural
grounds in state court, he filed his § 1983
action.
Plaintiff’s Motion for Temporary Injunction
to Stay His Execution Scheduled for September
20, 2006 at 6:00 p.m. at 28-31.
Clearly, Mr. Hill was diligent in filing his §1983 claim.
This Court’s order failed to acknowledge or specifically consider
the facts presented.
Of further note is that the study relied upon by Mr. Hill
was not published until April 2005, five years after the Sims
decision. This study is new. It is post-Sims.6 In addition,
Taylor and Morales are recent decisions which demonstrate
examples of how reality vastly differs from theory when grappling
with lethal injection issues. The discovery in these cases
exposed the Missouri and California procedures to be much more
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 7 of 24
-8-
inadequate than ever imagined. As none of this information was
available at the time Sims was decided, certainly Mr. Hill cannot
be faulted for failing to raise the issue.
Prior to Hill v. McDonough, Eleventh Circuit precedent
refused to recognize and thereby notice condemned prisoners that
a §1983 action could be used to challenge “[m]ethod of execution”
under the Eighth Amendment. In fact, the Eleventh Circuit had
consistently ruled that Mr. Hill, and others on Florida’s death
row, “could [not] have brought” the claim contained in the
pending §1983 action. As well, the Court’s clear holding in
Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004),
precluded such a lawsuit. Indeed, this Court initially dismissed
Mr. Hill’s claim based upon that precedent, stating that there
was no subject matter jurisdiction for this Court to consider the
claim. It was only on January 24, 2006 – when the United States
Supreme Court granted certiorari review in Hill v. Crosby to
determine whether the Eleventh Circuit Court’s determination that
district courts lack jurisdiction to consider claims like Mr.
Hill’s was correct – that the validity of this precedent was
called into question.
The Eleventh Circuit Court’s precedent was succinctly
explained in Hill v. Crosby:
It is clear to us that the district court lacked
jurisdiction to consider appellant’s claim because it
is the functional equivalent of a successive habeas
petition and he failed to obtain leave of this court to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 8 of 24
7 Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004); White v.
Johnson, 429 F.3d 572, 574 (5th Cir. 2005); White v. Livingston,
126 S.Ct. 601 (2005); Patton v. Jones, 2006 WL 2468312 (10th Cir.
Aug. 25, 2006); Reese v. Livingston, 453 F.3d 289, 291 (5th Cir.
June 20, 2006).
-9-
file it. See 28 U.S.C. § 2244(b)(3)(A). And as the
panel observed in Robinson, “such an application to
file a successive petition would be due to be denied in
any event. See In re Provanzano, 215 F.3d 1233, 1235-
36 (11th Cir. 2000), cert. denied, 530 U.S. 1256, 120
S.Ct. 2710, 147 L.Ed.2d 979 (2000) (concluding that a
claim that lethal injection constitutes cruel and
unusual punishment does not meet the requirements of 28
U.S.C. § 2244(b)(2)(A) or (B)).”
437 F.3d 1084, 1085 (11th Cir. 2006)
Thus, unlike the situation in the bevy of circuit court
cases cited by this Court7, or even in Gomez v. U.S. Dist. Ct.
For N. Dist. Cal. 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293
(1992)(per curiam), there is “good reason” in this case for the
failure to present this claim previously. According to the
binding precedent of this Court when the Lancet study came out in
April of 2005, Mr. Hill could neither file a successive habeas
petition challenging the protocol employed by the State of
Florida for carrying out a lethal injection execution, nor a
§1983 complaint.
This precedent has now been definitively overruled.
However, it should have been considered by this Court as to
timeliness in evaluating the equities in determining whether to
enter a stay of execution under Gomez. This Court’s failure to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 9 of 24
-10-
properly consider this precedent is in error, and relief is
warranted.
Seemingly, in its consideration of the timeliness of Mr.
Hill’s action, this Court has improperly conflated two key issues
and the appropriate analysis for each: (1) the question of
dismissal pursuant to Rule 12(b)(6); and (2) the question of
whether to temporarily enjoin (stay) Mr. Hill’s execution. The
State of Florida based their motion to dismiss upon Rule
12(b)(6). As this Court is well aware, Rule 12(b)(6) is an
appropriate vehicle for dismissal only when the Plaintiff fails
to state a claim upon which relief can be granted. Yet the
entire procedural history of this case has been about whether Mr.
Hill has stated a viable claim under §1983. See Hill v.
McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006);
Hill v. Crosby, 437 F.3d 1084 (11th Cir. 2006).
Clearly, the United States Supreme Court found that Mr. Hill
stated a viable claim, or it would not have remanded this cause.
All that is required from Mr. Hill at this juncture is a short,
concise statement of facts. See Rule 8. The Supreme Court
specifically held that there are no heightened pleading
requirements in Mr. Hill’s §1983 action. See Hill at **53. And
the Supreme Court clearly contemplated that ripeness was not a
hinderance to Mr. Hill’s cause. As Justice Breyer stated in his
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 10 of 24
-11-
questioning of the State of Florida during oral argument in this
cause:
And so [Mr. Hill] thinks, up until the last minute,
that maybe Florida will just do it, and lo and behold,
when the death warrant is actually executed, it now
begins to appear that they won't. And therefore, at
that time, he brings the case. Now, I've spun out a
story which seems probable, that if it's true, it would
be very understandable why this wasn't ripe before the
execution warrant is issued and thereafter it is.
Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44
(2006), Oral Argument transcript at 29.
Mr. Hill’s complaint is timely as long as he files it within
the statute of limitations, so there is no dilatoriness or
untimeliness in the filing of the lawsuit. As the district court
stated in Cooey v. Taft, it is illogical to require a deathsentenced
plaintiff to file a §1983 action any earlier than when
his execution is “imminent”:
[Because] it appears that the [lethal injection]
protocol is subject to alteration until the time of
execution . . . requiring a death-sentenced plaintiff
to file his method-of-execution challenge any sooner
[than when his death is imminent] strikes this Court as
potentially wasteful and possibly absurd, given the
possibility that, prior to his execution becoming
imminent, a plaintiff could see his conviction or death
sentence reversed, or the alteration of the precise
execution protocol that plaintiff might seek to
challenge as unconstitutional. Cooey v. Taft, No. 2:04-
cv-1156(Doc.14, at 11).
The timeliness issue is only relevant to the propriety of a
stay under Gomez, Nelson, and Hill. In terms of the viability of
Mr. Hill’s §1983 action, there is no question that Mr. Hill was
diligent, timely, and acting in accordance with established
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 11 of 24
-12-
precedent as he pursued this claim through the courts.
Therefore, this Court is clearly in error in dismissing Mr.
Hill’s claim on the basis of timeliness.
II. EQUITIES SHIFTED WHEN STATE OF FLORIDA MANIPULATED THE
EXECUTION DATE FOR STRATEGIC ADVANTAGE
The analysis under Gomez changed when the original execution
date was stayed on January 25, 2006. In contrast to when the
Supreme Court of the United States voted unanimously to stay this
cause and grant certiorari, after the remand in January of 2006
Mr. Hill was not initially operating under an imminent execution
date. Thirty-four days after the remand, the Governor of Florida
set an execution date to “get things going in the courts,” rather
than filing a motion for remand. This action presents a different
set of equities than what this Court considered when denying Mr.
Hill’s request to stay his execution. The State of Florida’s
action, not Mr. Hill’s, abrogated Mr. Hill’s ability to
adequately develop a factual record as requested in this cause.
The State’s actions should not unduly prejudice Mr. Hill by
preventing him from pursuing his constitutional claim to the
fullest extent of the law.
Per Governor Bush’s orders, the State of Florida did not
proceed with any further death warrants while Mr. Hill’s case was
pending. The State’s “strong interest in enforcing its criminal
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 12 of 24
-13-
judgments . . .” (See Hill v. McDonough at 2104) was voluntarily
and volitionally decided to be of less importance than the issues
surrounding lethal injection. However, by now resetting Mr.
Hill’s execution date, while continuing to hold all other
warrants in abeyance, the intent of the State of Florida is
obvious – kill Mr. Hill, and prevent a reasoned review of the
torturous lethal injection process currently in place.
This new execution date changes the equitable analysis when
determining whether Mr. Hill’s claim should go forward. The
State of Florida’s conduct has only served to delay and obstruct
the proper resolution of Mr. Hill’s claims. By setting an
execution date for Mr. Hill, Florida has short-circuited the
normal course of litigation – a course of litigation which was
anticipated by the United States Supreme Court when it stayed Mr.
Hill’s execution and remanded this case. The State’s action
belies its publicly stated intent of awaiting a judicial
resolution of this matter, and evinces its true intent of not
allowing a judicial review of its lethal injection procedure.
It should be noted, however, that two Supreme Court justices
recognized that the State has a responsibility to ensure that its
execution method comports with the Constitution. As Justice
Kennedy stated in oral argument in Hill v. McDonough, “This --
this is a death case. . . . Doesn't the State have some minimal
obligation under the Eighth Amendment to do the necessary
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 13 of 24
-14-
research to assure that this is the most humane method possible?
Doesn't the State have a minimal obligation on its own to do
that?" Hill v. McDonough, 547 U.S. ___, 126 S.Ct. 2096, 165
L.Ed.2d 44 (2006), Oral Argument transcript at 29.
Similarly, Justice Souter queried the assistant solicitor
general on what he believed to be the State’s duty to
investigate:
[T]he Lancet article has been out there for a while,
and it certainly is enough to suggest. . .that there is
something problematic about the manner in which Florida
proposes to do this. And yet, we have not heard a word
that Florida has made any effort whatsoever to find an
alternative or, for that matter, to – to disprove what
the Lancet article suggests. Id. at 48.
By ordering Mr. Hill to be executed on September 20, 2006, the
State of Florida is willfully disregarding the very real
possibility that Mr. Hill will be executed cruelly, painfully,
and unconstitutionally. The State’s blatant attempt to avoid
addressing this serious constitutional and civil rights issue
significantly lessens the equitable weight that would generally
be afforded a State when an execution date is imminent. This
Court should re-weigh the equities accordingly, and find that
equitable process mandates an evidentiary hearing in this cause.
III. TRUNCATED CONSIDERATION BY THIS COURT DID NOT PROVIDE MR.
HILL DUE PROCESS IN LITIGATING HIS §1983 CLAIM
This Court originally had Mr. Hill’s case under warrant in
January 2006. Mr. Hill filed his claim on Friday, January 20,
2006, and the State of Florida filed their response the same day.
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 14 of 24
-15-
The next day, Saturday, January 21, 2006, this Court dismissed
Mr. Hill’s claim, re-characterizing the claim as a successive
habeas petition and then dismissing under AEDPA. Essentially,
this Court entertained Mr. Hill’s claim in one day.
This cause was remanded to this Court pursuant to Hill v.
McDonough, 126 S.Ct. 2096 (June 12, 2006) and Hill v. McDonough,
No. 06-10621 (11th Cir. Aug. 29, 2006), on Thursday, August 31,
2006. The CM/ECF notification of the remand occurred at 12:12
p.m. on that date. Subsequently, this Court’s staff contacted
the office of undersigned counsel at approximately 1:45 p.m. to
order that all pleadings in this matter be submitted by the
following day at noon. Undersigned counsel was at the prison
visiting death row clients, including Mr. Hill, and returned
around 5:00 p.m. to receive this Court’s order. This allowed
undersigned counsel a mere 19 hours, if he chose not to sleep, to
comply with this Court’s request. The parties complied with this
Court’s order and filed their pleadings by noon on September 1,
2006. In less than seven hours, this Court denied Mr. Hill’s
request for a preliminary temporary injunction staying the
execution – even though the execution was still nineteen days
away. This Court’s consideration and rejection of Mr. Hill’s
claims in such a short time span is not the process which Mr.
Hill is due.
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 15 of 24
-16-
The guarantee that no person shall be deprived of life,
liberty or property without due process of law is a fundamental
constitutional right that applies to both federal and state
governmental actors through the Fifth and Fourteenth Amendments
to the U.S. Constitution. The Due Process Clause applies to
federal courts, Dusenberry v. United States, 534 U.S. 161, 165
(2002), and it applies in civil as well as criminal proceedings,
e.g. Honda Motor Co. V. Oberg, 512 U.S. 415, 430-435 (1994). It
has been long established that “[a]n elementary and fundamental
requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the
circumstances, to apprise the interested parties of the pendency
of the action and to afford them an opportunity” to present their
case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950). Mr. Hill has been unjustly denied an opportunity to
present his case. The process which he is due would allow him to
present his evidence and demonstrated the unconstitutionally
cruel punishment which he faces, not a summary dismissal.
The Supreme Court of the United States contemplated more
when it held that district courts should decide the equities of a
stay in the first instance. See Gomez, 503 U.S. 653, 112 S.Ct.
1652, 118 L.Ed.2d 293 (1992)(per curiam); Nelson v. Campbell, 541
U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); Hill v.
McDonough, 126 S.Ct. 2096 (June 12, 2006). In this case, the
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 16 of 24
-17-
efficacy of a stay would have been more appropriately determined
after assessing the discovery requests submitted by Mr. Hill
subject to the expediting of the discovery process. Instead,
this Court gave the parties less than twenty-four hours to
present their claims, and then rendered judgment on the pleadings
without the benefit of discovery. This truncated process was
utilized even though nineteen days were left before Mr. Hill’s
scheduled execution.
The nature of Mr. Hill’s case demands that he be granted a
full and fair evidentiary hearing both as to the efficacy of the
stay and the merits of his claims. An evidentiary hearing is
necessary to make certain that Mr. Hill will not be subjected to
an unconstitutionally cruel punishment, as well as to ensure
public legitimacy as the State of Florida carries out his
sentence. The highly specific factual claims advanced by Mr.
Hill plainly cannot be properly litigated without a meaningful
opportunity for discovery. This Court’s order dismissing Mr.
Hill’s claims effectively prejudges Mr. Hill’s claims as
factually meritless. That type of prejudging is highly improper
in any case, but is even more inappropriate in an Eighth
Amendment challenge to a specific means of execution.
IV. THIS CLAIM SHOULD HAVE GONE FORWARD EVEN IF STAY NOT GRANTED
Absent the unique and unusual circumstances of these
proceedings, Mr. Hill would indisputably have been entitled to
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 17 of 24
-18-
more time to prepare and present his case. As a result of this
Court’s ruling, Mr. Hill has been denied the opportunity to
utilize the tools of discovery, as well as the opportunity to
conduct further factual investigation into such matters as
whether Florida has a history of botched executions similar to
California. See Morales v. Hickman, 2006 WL 335427 (N.D. Cal.,
Feb. 14, 2006) reviewed at Morales v. Hickman, 2006 WL 391604
(9th Cir., 2006); Taylor v. Crawford, 2006 U.S. Dist. LEXIS
42949, 22 (June 26, 2006). In any lawsuit, much less one that is
as intensely specific and factually intensive as a challenge to
the State’s manner of execution, a rush to judgment runs contrary
to the basic dictates of due process.
Dismissal of a claim is the harshest of remedies and should
not have been ordered in this cause. Mr. Hill should have been
allowed to continue in his claim to the point of his execution,
even if this Court chose not to enter a stay. Mr. Hill could
have proceeded with his requested discovery and presumably
discovered information further supporting his claim and changing
the equities relative to a stay. At this point Mr. Hill has been
unjustly denied that opportunity.
Mr. Hill promptly sought discovery upon remand by filing
numerous discovery requests within twenty-four hours of this
cause being remanded, i.e. admissions, production,
interrogatories, etc. Additionally, he promptly sought a stay of
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 18 of 24
-19-
his execution from this Court, again within twenty-four hours, in
an attempt to ensure his ability to participate in discovery.
This Court’s order that all pleadings be submitted in this
cause within twenty-four hours of the remand, and its subsequent
dismissal of this cause the same day, eliminated Mr. Hill’s
ability to participate in discovery. The prejudice inuring from
this Court’s action is manifest. If Mr. Hill had been given even
minimal discovery and the opportunity to obtain the execution
logs and other key records, he presumably could have produced
direct evidence to prove his claims. The Morales case proves
instructive in this regard. In Morales, records regarding lethal
injection procedures in California documented a pattern of
mistakes, complications and blunders that discredited
California’s claim that five grams of thiopental would quickly
render an inmate unconscious. See Morales at 2006 WL 335427 at
*6 (“[E]vidence from Defendants’ own execution logs [shows] that
the inmates’ breathing may not have ceased as expected in at
least six out of thirteen executions by lethal injection in
California.”). As a result of Morales’ opportunity for discovery
and the presentation of evidence, he was able to discount the
testimony about the theoretical efficacy of thiopental in the
face of real world evidence. Id. at *5-6.
Mr. Hill was seeking, and would have obtained, the same type
of information regarding execution protocols. Florida’s margin
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for error is significantly lower then California’s, as the State
Department of Corrections purportedly uses only two grams of
thiopental. See Sims v. State, 754 So.2d 657 (Fla. 2000).
Therefore, it is even more likely that real world mistakes,
mishaps, and complications would belie Florida’s assertions as to
the legitimacy and constitutionality of its lethal injection
procedure. A prisoner need not take on faith the statement by
prison officials that his execution will be constitutionally
compliant, and a condemned prisoner has the right to know how his
execution will be conducted. “Fundamental fairness, if not due
process, requires that the execution protocol that will regulate
an inmate’s death be forwarded to him in a prompt and timely
fashion.” Oken v. Sizer, 321 F.Supp. 658, 664 (D. Md.
2004)(considering rights of condemned inmate to review suddenly
changed protocol)(considering constitutionality of lethal
injection protocols in Maryland and collecting case), stay
vacated, 124 S.Ct. 2868 (2004); cf. Lankford v. Idaho, 500 U.S.
110, 126 n.22 (1991)(noting that when the threatened loss is
great, as when death is the result, the need for notice is even
more pronounced than in other settings). For that right to have
meaning, Mr. Hill must be allowed to challenge an execution
protocol that will subject him to the unconscionable likelihood
that he will suffer unnecessarily and inhumanely. Cf. Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14 (1950).
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 20 of 24
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No injustice would have occurred had this Court allowed a
sufficiently brief period of time for discovery and an
adjudication of Mr. Hill’s claims. On the contrary, permitting
Mr. Hill the opportunity for expedited discovery and time to
fully develop his claims would have only increased the legitimacy
of these proceedings and allowed this Court to make a decision
after a full and fair hearing. Florida’s acknowledged interest
in promptly carrying out Mr. Hill’s sentence cannot override the
fundamental due process requirement that a litigant such as Mr.
Hill be given a basic adequate opportunity to develop and present
his claims. Mr. Hill is entitled to die with dignity, consistent
with the requirements of the Eighth Amendment. Neither the State
of Florida nor this Court can deny Mr. Hill a meaningful
opportunity to make his case.
This Court could have easily denied the stay and allowed Mr.
Hill’s claim to proceed with expedited discovery as he requested.
The case of Patton v. Jones is illustrative of the efficacy and
value of this process, as are Morales and Taylor. See Patton v.
Jones, 2006 U.S. Dist. LEXIS 54429 (Okla. W.D. Aug. 4, 2006)
affirmed, stay denied, Patton v. Jones, 2006 U.S. App. LEXIS
22312 (10th Cir. Aug. 25, 2006), Patton v. Jones, petition
denied, stay denied, 2006 U.S. LEXIS 5379 (Aug.29, 2006);
Morales v. Hickman, 2006 WL 335427 (N.D. Cal., Feb. 14, 2006)
reviewed at Morales v. Hickman, 2006 WL 391604 (9th Cir., 2006);
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 21 of 24
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Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, 22 (June 26,
2006). All of these cases are recent and involved lethal
injection claims where the courts denied a stay and allowed the
proceedings to continue. In these cases a determination on the
merits was made in a very limited amount of time, and enough
discovery and testimony were adduced to allow meaningful
consideration to be given to the plaintiffs’ claims.
For example, the docket sheet in Patton reveals that the
plaintiff filed a motion for preliminary injunction on July 28,
2006, and a hearing on that motion was held on August 8, 2006.
At the hearing, the State of Oklahoma introduced a new protocol
in response to plaintiff’s claims, and the Court ruled that the
protocol extant at the time the lawsuit was filed was
unconstitutional; however, the new protocol was ruled to have
sufficiently addressed plaintiff’s concerns regarding the
constitutionality of the method of execution. See Patton v.
Jones, Case No. 5:06-cv-00591-F, Docket Report & Doc. 25.
Mr. Hill previously detailed the proceedings in Taylor and
Morales in his request for a preliminary temporary injunction and
will incorporate those facts by reference. Clearly, these cases
demonstrate that it is possible to litigate and resolve lethal
injection issues quickly. It is incorrect for this Court to
assume that the parties cannot address Mr. Hill’s claims prior to
his September 20, 2006 execution date. Most importantly, it is a
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 22 of 24
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blatant denial of due process to not even attempt to allow him to
present his claims.
WHEREFORE, Mr. Hill respectfully requests this Court
reconsider its Order Dismissing Complaint, deny Defendant’s
Amended Motion to Dismiss for Failure to State a Cause of Action
Upon Which Relief Can Be Granted; and Response and Memorandum of
Law to Request for Stay or Injunction, issue a temporary
injunction staying Mr. Hill’s execution, order expedited
discovery, and allow Mr. Hill’s § 1983 action to be fully and
fairly litigated without an imminent execution date looming.
Respectfully submitted,
/s/ D. Todd Doss
D. TODD DOSS
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Facsimile (386) 755-3181
COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document has been served
on the following counsel via electronic filing on this 5th day of
September 2006.
/s/ D. Todd Doss
D. TODD DOSS
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 23 of 24
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Copies furnished to:
Carolyn Snurkowski
Assistant Attorney General
Office of the Attorney General
Plaza Level 1
The Capitol
Tallahassee, FL 32399
Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 24 of 24

PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION TO STAY HIS EXECUTION - Clarence Hill

2006-09-07T06:48:00.000-07:00

http://www.clarencehill.us/legal/motionforstaynew.htm

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA

CASE NO. 4:06-cv-00032-SPM
CLARENCE EDWARD HILL,

Plaintiff,

v.

JAMES MCDONOUGH, SECRETARY OF
THE FLORIDA DEPARTMENT OF EMERGENCY APPLICATION:
CORRECTIONS, CAPITAL CASE, DEATH
in his official capacity; WARRANT SIGNED;
EXECUTION IMMINENT.
September 20, 2006 at 6:00 p.m.
and

CHARLES J. CRIST, JR., ATTORNEY
GENERAL,
in his official capacity

Defendant(s).

___________________________________
PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION TO STAY HIS EXECUTION
SCHEDULED FOR SEPTEMBER 20, 2006 AT 6:00 p.m.

COMES now the Plaintiff, CLARENCE HILL, through undersigned
counsel and respectfully moves for a temporary injunction staying
his execution in the manner currently intended. Mr. Hill’s
execution is presently scheduled for September 20, 2006 at 6:00
p.m. In support Mr. Hill states:

I. PROCEDURAL HISTORY
Plaintiff, Clarence Hill, was convicted of first degree
murder in 1983. On appeal, his conviction was affirmed, but his

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sentence was vacated. Following a second sentencing proceeding,
Mr. Hill was again sentenced to death, and the Florida Supreme
Court affirmed. Hill v. State, 515 So.2d 176 (Fla. 1987), cert.
denied, Hill v. State, 108 S.Ct. 1302 (1988).

On November 9, 1989, the Governor of Florida signed a death
warrant scheduling Mr. Hill’s execution for January 25, 1990.
Mr. Hill filed an expedited postconviction motion, which was
denied on January 18, 1990. On appeal, the Florida Supreme Court
denied relief. Hill v. State, 556 So. 2d 1385 (Fla. 1990).

Mr. Hill subsequently filed a Motion to Stay Execution and a
Petition for Writ of Habeas Corpus in the United States District
Court for the Northern District of Florida on January 27, 1990.
After granting a stay of execution, on August 31, 1992, the
district court granted relief to Mr. Hill on a sentencing issue.
On remand, the Florida Supreme Court again denied relief.
Hill v. State, 643 So. 2d 1071 (Fla. 1995). Mr. Hill’s
subsequent state and federal applications, including his federal
Petition for Writ of Habeas Corpus, were unsuccessful. See Hill
v. Moore, 175 F.3d 915 (11th Cir. 1999), Hill v. State, 528 U.S.
1087 (2000), Hill v. State, 2006 Fla. LEXIS 8 (January 17, 2006).

On Friday, January 20, 2006, Mr. Hill brought an action
pursuant to 42 U.S.C. § 1983 in the United States District Court,
Northern District of Florida, Tallahassee Division. Mr. Hill
alleged violations of his right to be free from cruel and unusual

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punishment under the Eighth and Fourteenth Amendments to the
United States Constitution. On Saturday, January 21, 2006, the
district court dismissed Mr. Hill’s complaint for declaratory and
injunctive relief for lack of jurisdiction. Thereafter, on
Monday, January 23, 2006, Mr. Hill filed a Notice of Appeal and
by separate pleading an application for stay of execution. On
January 24, 2006, the United States Court of Appeals for the
Eleventh Circuit denied his application for stay. The Eleventh
Circuit Court went on to hold that Mr. Hill’s action was a
successive petition for a writ of habeas corpus and that any
application for leave to file a successive petition would be
denied under § 2244(b)(2). Hill v. Crosby, 437 F.3rd 1084, 2006
U.S. App. LEXIS 1674 (11th Cir. Fla., 2006).

Mr. Hill then filed a petition for certiorari review and an
application for stay by separate pleading in the Supreme Court of
the United States. At 7:00 p.m., January 24, 2006, Justice
Kennedy issued a stay until the full court could consider Mr.
Hill’s pleadings. The following day, January 25, 2006, the full
court granted Mr. Hill a stay and granted certiorari. The stay
was to remain in effect until the Supreme Court of the United
States rendered a decision in the case. Hill v. Crosby, 126 S.Ct.
1189, 163 L.Ed.2d 1144, 2006 U.S. LEXIS 1074 (January 25, 2006).
Subsequently, the Court rendered a 9-0 decision that reversed and
remanded the cause back to the Eleventh Circuit Court for

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proceedings consistent with the opinion. Hill v. McDonough, 126
S.Ct 2096, 165 L.Ed.2d 44, 2006 U.S. LEXIS 4674 (June 12, 2006).
The Court held that Mr. Hill’s claim under 42 U.S.C. § 1983 was
essentially comparable to that brought in Nelson v. Campbell, 541
U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) and Mr. Hill
should be allowed to proceed under § 1983. See Hill v. McDonough,
126 S.Ct 2096, 165 L.Ed.2d 44, 2006 U.S. LEXIS 4674 (June 12,
2006).
The Supreme Court decision became final on July 14, 2006.
The Eleventh Circuit Court panel received the case on remand
on July 18, 2006. On August 17, 2006, the State of Florida
arbitrarily scheduled Mr. Hill for execution on September 20,
2006. After waiting for the Eleventh Circuit to remand to this
Court, Mr. Hill filed his Motion for Immediate Remand of This
Cause to the District Court via overnight mail on August 23,
2006. The Eleventh Circuit then remanded this cause on August 29,
2006 to this Court with the mandate being received on August 30,
2006.
Undersigned counsel’s office was contacted by this Court by
telephone yesterday, August 31, 2006. At the time of the call,
undersigned counsel was out of town conducting attorney visits
with clients on Florida’s Death Row, including Mr. Hill.
Undersigned counsel then arrived back at his office at
approximately 5:00 p.m. At this time, undersigned learned
through his assistant of this Court’s directive that all
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 4 of 32
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pleadings in this matter were to be filed by the parties prior to
12:00 p.m., today, September 1, 2006. Undersigned counsel, a
sole practitioner, then had less than twenty-four hours to comply
with this Court’s order.

II. BASIS FOR STAY OF EXECUTION
In Hill the U.S. Supreme Court stated that the requirements
for a stay of execution stated in Nelson and Gomez v. United
States Dist. Court for Northern Dist. Of Cal., 503 U.S. 653, 654,
122 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam) should be
followed. Hill v. McDonough, 126 S.Ct 2096, *2104 165 L.Ed.2d 44,
**54, 2006 U.S. LEXIS 4674, ***21 (2006). The Eleventh Circuit
Court of Appeals has in the past utilized a four-part test in
determining whether a stay of execution should be granted that
generally comports with Gomez:
whether the movant has made a showing of likelihood of
success on the merits and of irreparable injury if the
stay is not granted, whether the stay would
substantially harm other parties, and whether granting
the stay would serve the public interest.
Bundy v. Wainwright, 808 F. 2d 1410, 1421 (11th Cir. 1987). Mr.
Hill has met the standards attendant to the granting of a stay of
his execution. The Supreme Court of the United States considered
these same factors when granting Mr. Hill a stay to consider the
case which eventually led to its reversing this Court’s decision
and remanding it back for consideration consistent with its
opinion. Each of the Gomez criteria are satisfied in this case.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 5 of 32
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A. IRREPARABLE INJURY
If the requested temporary injunction is not issued, Mr.
Hill will be executed by lethal injection in a torturous manner
in violation of his Eighth Amendment right to be free from cruel
and unusual punishment at the Florida State Prison on Wednesday,
September 20, 2006, at 6:00 p.m. This constitutes irreparable
injury. See, e.q., Evans v. Bennett, 440 U.S. 1301, 1306 (1979)
(Rehnquist, Circuit Justice, granting a stay of execution and
noting the “obviously irreversible nature of the death penalty”);
O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982) (the
“irreversible nature of the death penalty” constitutes
irreparable injury and weighs heavily in favor of granting a
stay); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)
(holding that continued pain and suffering resulting from
deliberate medical indifference is irreparable harm). Further
harm will result from Mr. Hill’s torturous execution because he
will no longer have any meaningful remedy, because he will be
dead. Additionally, the State’s violation of Mr. Hill’s Eighth
Amendment rights alone validates a presumption of irreparable
harm. See Associated General Contractor’s of California, Inc. v.
Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir.
1991) (an alleged constitutional infringement will often alone
constitute irreparable harm).
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 6 of 32
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B. HARM TO OTHER PARTIES
There will be no harm to other parties if a stay of
execution is granted. Mr. Hill will remain in the custody at
Florida State Prison, where he has been held since his conviction
and, most recently, since the stay of execution was entered by
the Supreme Court of the United States on January 25, 2006. A
relatively brief continuation of the status quo will cause
absolutely no harm to other parties. See Gomez v. U.S. Dist. Ct.
For Northern Dist. Of Cal., 966 F.2d 460, 462 (9th Cir. 1992)
(Noonan, J., dissenting from grant of writ of mandate) (“The
state will get its man in the end. In contrast, if persons are
put to death in a manner that is determined to be cruel, they
suffer injury that can never be undone, and the Constitution
suffers an injury that can never be repaired.”)
C. PUBLIC INTEREST
Although there are competing public interests, ultimately
one factor favors the issuance of the temporary relief sought.
Certainly, the public has an interest in the execution of Mr.
Hill pursuant to the judgment of the Florida Courts. More
importantly, however, it has an interest in having no execution
take place until it is determined that Mr. Hill’s execution will
be carried out consistent the with requirements of the Eighth
Amendment and him not being subjected to the excruciating and
torturous pain likely involved in the lethal injection process
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 7 of 32
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Florida intends upon utilizing. See Sims v. State, 754 So.2d 657
(Fla. 2000). It is therefore paramount that Mr. Hill’s weighty
constitutional claims be resolved on the merits.
By arbitrarily setting an execution date while this case was
awaiting remand, the State has attempted to manipulate the
process and kill Mr. Hill before their unconstitutional method of
execution is reviewed on the merits. The temporary delay in
carrying out the execution, which will be necessitated by review
and consideration of the merits of Mr. Hill’s case, is a small
price to pay to assure fairness in this critical aspect of
carrying out Mr. Hill’s sentence.
The State of Florida created the current supposed time bind
by setting an execution date rather than simply moving to remand
this cause to the district court for a full and fair hearing. See
Appendix A & B. In letters exchanged between the Office of the
Governor and the Attorney General, the letter written by Attorney
General Crist states in reference to this cause, “The case has
been remanded to the Eleventh Circuit Court of Appeals on the
complaint filed pursuant to 42 U.S.C. § 1983, however no further
action has occurred.” Appendix B at 2. This letter was penned a
mere thirty-four days after the Eleventh Circuit Court received
the remand from the Supreme Court of the United States. Mr. Hill
was anticipating that the Eleventh Circuit Court would remand
this cause to the district court very soon and was simply waiting
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 8 of 32
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for notification of such remand. Mr. Hill was shocked that the
Governor of Florida would set an execution date without this
cause being fully litigated in light of the problems being
exposed in the lethal injection process in cases around the
country and the likelihood he will experience a torturous death
under Florida’s current lethal injection procedure.
A more obvious purpose of the setting of the new execution
date is to deprive Mr. Hill of his right to pursue his claims and
prevent Florida’s lethal injection procedure from being subjected
to any meaningful scrutiny. The State of Florida has rescheduled
Mr. Hill’s execution in order to obtain a strategic advantage in
this § 1983 action. The equities have now certainly been reversed
from when this cause was entertained by this Court in January.
Instead of Mr. Hill filing his lawsuit when his execution was
imminent, the State of Florida now has scheduled his execution
after his lawsuit was allowed to go forward in an apparent
attempt to preclude judicial resolution.
In light of the litigation concerning lethal injection
around the country, the fear of scrutiny is most likely
justified. Each State where the lethal injection procedure was
scrutinized was forced to face the fact that their procedures
were woefully inadequate and that the danger of subjecting a
condemned person to a torturous death was more likely than even
the Plaintiffs alleged.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 9 of 32
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If this Court allows the State of Florida to avoid a full
and fair examination of their lethal injection procedure, the
issue will be a recurring problem never subject to review because
each condemned person who files a § 1983 claim similar to Mr.
Hill’s would be executed before the claim was heard on the
merits. This issue should be considered now in this case. One of
two outcomes will result, either the State of Florida’s execution
procedure will withstand constitutional scrutiny and remain in
place or, more likely, will crumble under constitutional scrutiny
and be modified to prevent the State of Florida from torturously
executing the condemned.
D. THE LIKELIHOOD THAT MR. HILL WILL PREVAIL ON THE MERITS
The likelihood that Mr. Hill will prevail on the merits of
his claims is demonstrated by recent developments in litigation
surrounding lethal injection and the fact that there is now
empirical, scientific evidence establishing that the chemical
process for lethal injection utilized in accordance with the
Florida Department of Correction’s protocol, creates a
foreseeable risk of the gratuitous and unnecessary infliction of
pain on a person being executed.
1. Empirical, scientific evidence establishing that the
chemical process for lethal injection utilized in
accordance with the Florida Department of Correction’s
protocol, creates a foreseeable risk of the gratuitous
and unnecessary infliction of pain on a person being
executed.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 10 of 32
1Dr. Lubarski has noted that each of the opinions set forth in
the Lancet study reflects his opinion to a reasonable degree of
scientific certainty. (Complaint, Att. A).
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The likelihood that Mr. Hill will prevail on the merits of
his claims is demonstrated by empirical, scientific evidence
establishing that the chemical process for lethal injection
utilized in accordance with the Florida Department of
Correction’s (Department) protocol, creates a foreseeable risk of
the gratuitous and unnecessary infliction of pain on a person
being executed.
A recent study published in the world-renowned medical
journal THE LANCET by Dr. David A. Lubarsky (whose declaration
was attached to Mr. Hill’s Complaint) and three co-authors
detailed the results of their research on the effects of
chemicals in lethal injections. See Koniaris L.G., Zimmers T.A.,
Lubarski D.A., Sheldon J.P., Inadequate anaesthesia in lethal
injection for execution, Vol 365, THE LANCET 1412-14 (April 16,
2005). This study confirmed, through the analysis of empirical
after-the-fact data, that the scientific critique of the use of
sodium pentothal, pancuronium bromide, and potassium chloride
creates a foreseeable risk of the gratuitous and unnecessary
infliction of pain on a person being executed.1 The authors
found that in toxicology reports in the cases they studied, postmortem
concentrations of thiopental in the blood were lower than
that required for surgery in 43 of 49 executed inmates (88%).
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 11 of 32
2As noted in Mr. Hill’s Complaint, the chemical process utilized
in executions in Florida is identical to that identified in the
study.
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Moreover, 21 of the 49 executed inmates (43%) had concentrations
consistent with awareness, as the inmates had an inadequate
amount of sodium pentothal in their bloodstream to provide
anesthesia. (Complaint, Att. B). In other words, in close to
half of the cases, the prisoner felt the suffering of suffocation
from pancuronium bromide, and the burning through the veins
followed by the heart attack caused by the potassium chloride.2
As explained in the declaration of Dr. Lubarsky, sodium
pentothal is an ultra-short acting substance which produces
shallow anesthesia. (Complaint, Att. A). Health-care
professionals use it as an initial anesthetic in preparation for
surgery while they set up a breathing tube in the patient and use
different drugs to bring the patient to a “surgical plane” of
anesthesia that will last through the operation and will block
the stimuli of surgery which would otherwise cause pain. Sodium
pentothal is intended to be defeasible by stimuli associated with
errors in setting up the breathing tube and initiating the
long-run, deep anesthesia; the patient is supposed to be able to
wake up and signal the staff that something is wrong.
The second chemical used in lethal injections in Florida is
pancuronium bromide, sometimes referred to simply as pancuronium.
It is not an anesthetic. It is a paralytic agent, which stops the
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 12 of 32
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breathing. It has two contradictory effects: first, it causes the
person to whom it is applied to suffer suffocation when the lungs
stop moving; second, it prevents the person from manifesting this
suffering, or any other sensation, by facial expression, hand
movement, or speech. (Complaint, Att. A). Pancuronium bromide is
unnecessary to bring about the death of a person being executed
by lethal injection. (Complaint, Att. A).
The third chemical is potassium chloride, which is the
substance that causes the death of the prisoner. It burns
intensely as it courses through the veins toward the heart. It
also causes massive muscle cramping before causing cardiac
arrest. (Complaint, Att. A). When the potassium chloride reaches
the heart, it causes a heart attack. If the anesthesia has worn
off by that time, the condemned feels the pain of a heart attack.
However, in this case, Mr. Hill will be unable to communicate his
pain because the pancuronium bromide has paralyzed his face, his
arms, and his entire body so that he cannot express himself
either verbally or otherwise. (Complaint, Att. A).
Doctors and physicians who entered Mr. Hill’s case as Amici
Curae before the Supreme Court of the United States concluded as
follows:
The combination of chemicals administered by the state
of Florida to executing condemned inmates -- i.e., the
sequential intravenous administration of sodium
thiopental, pancuronium bromide and potassium chloride --
is widely used by the United States jurisdictions that
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 13 of 32
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execute condemned inmates by lethal injection. See
Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 307 (Tenn.
2005) (“the undisputed evidence before the Chancellor was
that only two states do not use some combination” of
these chemicals in lethal injection). If improperly
administered, this combination of chemicals will cause
inhuman suffering on the part of the inmate prior to his
death. And the procedures by which lethal injection is
administered in jurisdictions across the country create
a significant likelihood that the three-drug procedure
will be administered in a manner that causes such
suffering on the part of at least some inmates prior to
their death.
Both sodium thiopental and pancuronium bromide can
cause respiratory arrest and be lethal, but the injection
of potassium chloride shortly after the injection of
sodium thiopental and pancuronium bromide normally
ensures that death occurs by cardiac arrest before
respiratory arrest occurs. Thus, in all lethal injection
jurisdictions, potassium chloride is the agent intended
to bring about the inmate’s death. Sodium thiopental is
administered as an anesthetic, and pancuronium bromide is
administered for “cosmetic” or “aesthetic” reasons; i.e.,
to make the prisoner appear serene.
In the doses and concentrations in which it is
administered in the lethal injection process, potassium
chloride is - absent adequate anesthesia – indescribably
painful. It “scours the nerve fibers lining [the
inmate’s] veins,” Evans v. Saar, 2006 WL 274476 (D. Md.
February 1, 2006), and interrupts the heart’s signaling
function, interfering with its rhythmic contractions and
causing a massive coronary arrest. Administering this
quantity of potassium chloride to a conscious individual
would, in addition to precipitating a painful coronary
arrest, result in an excruciating burning pain, extending
from the site of the injection (normally an arm, hand,
leg or foot) to the heart, and would constitute the most
severe form of torture.
The administration of pancuronium bromide during the
lethal injection process greatly increases the likelihood
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 14 of 32
1 Pancuronium bromide is used to prevent involuntary movement
by certain surgical patients, who are anesthetized and whose
breathing and ventilation are accomplished artificially.
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that the inmate will suffer agonizing pain. Although it
makes the inmate incapable of any voluntary movement, and
even of breathing, pancuronium bromide has no effect
whatsoever on awareness, cognition or sensation.1 As a
result, an individual to whom pancuronium bromide has
been administered, but who is not properly anesthetized,
will endure the terror of conscious paralysis, with no
ability to struggle or communicate to anyone else that he
is conscious and feels pain. An inmate undergoing lethal
injection to whom pancuronium bromide has been
administered, and who is not properly anesthetized, would
suffocate while experiencing (consciously) the blinding
pain of an injection of potassium chloride and a massive
heart attack, while onlookers believed him to be
unconscious and insensitive to any pain.
Although an inmate who is properly anesthetized will
not consciously experience the pain and terror associated
with injections of pancuronium bromide and potassium
chloride, their injection into the veins of an individual
who is not sufficiently anesthetized would cause horrible
suffering. Therefore, unless the inmate is brought to an
appropriate anesthetic depth by the injection of sodium
thiopental, and unless that depth is maintained
throughout the lethal injection process, the inmate will
endure savage torment.
However, achieving and maintaining an appropriate
anesthetic depth is an extraordinarily complex endeavor,
which requires specialized training and procedures, and
equipment. If adequately trained personnel, appropriate
procedures and proper equipment are not employed
throughout the lethal injection process, there is a great
likelihood that tremendous agony will be inflicted upon
some inmates in the course of any significant number of
executions.
See Brief of Amici Curae Physicians for Human Rights, Global
lawyers and Physicians, Lawrence D. Egbert, M.D., and Andrew Gumbs,
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 15 of 32
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M.D., pp. 5-7, Hill v. McDonough, 126 S.Ct 2096, 165 L.Ed.2d 44,
2006 U.S. LEXIS 4674 (June 12, 2006).
As explained by Dr. Lubarsky, because Florida’s practices
are substantially similar to those of the lethal-injection
jurisdictions which conducted autopsies and toxicology reports,
which kept records of them, and which disclosed them to the
LANCET scholars, there is at least the same risk (43%) as in
those jurisdictions that Mr. Hill will not be anesthetized at the
time of his death. (Complaint, Att. A).
Here, the appellees are acting under color of Florida law by
using a succession of three chemicals that will cause unnecessary
pain in the execution of a sentence of death, which they have
admitted to be their practice, which is unnecessary as a means of
employing lethal injection, and which creates a foreseeable risk
of inflicting unnecessary and wanton infliction of pain contrary
to contemporary standards of decency.
The Eighth Amendment “proscribes more than physically
barbarous punishments.” Estelle v. Gamble, 429 U.S. 97, 102
(1976). It prohibits the risk of punishments that “involve the
unnecessary and wanton infliction of pain,” or “torture or a
lingering death,” Gregg v. Georgia, 428 U.S. 153, 173 (1976);
Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).
“Among the ‘unnecessary and wanton’ inflictions of pain are those
that are ‘totally without penological justification.’” Rhodes v.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 16 of 32
2As will be discussed herein, these recent developments also
demonstrate the necessity of a stay of execution and the
granting of discovery.
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Chapman, 452 U.S. 337, 346 (1981). The Eighth Amendment reaches
“exercises of cruelty by laws other than those which inflict
bodily pain or mutilation.” Weems v. United States, 217 U.S. 349,
373 (1909). It forbids laws subjecting a person to
“circumstance[s] of degradation,” Id. at 366, or to
“circumstances of terror, pain, or disgrace” “superadded” to a
sentence of death. Id. at 370 (emphasis added).
Under the present circumstances, given the fact that Mr.
Hill possesses scientific evidence proving his claim, he will
likely succeed on the merits of the issue; that is, he will be
unnecessarily subjected to a substantial risk of wanton
infliction of pain, in violation of the Eighth Amendment.
2. Recent developments in litigation surrounding
lethal injection since the Supreme Court of the
United States stayed Mr. Hill’s execution on
January 25, 2006 demonstrate a likelihood that Mr.
Hill will prevail on the merits.2
Since the stay in Hill v. McDonough, 126 S.Ct. 1189, 163
L.Ed2d 1144, 2006 U.S. LEXIS 1074 (January 25, 2006), in
Missouri, an evidentiary hearing was held and discovery conducted
regarding Missouri’s recent executions. The case involved Michael
Taylor, a condemned inmate challenging the lethal injection
protocol used in Missouri executions. Information was revealed
that showed that “unacceptable” risks existed in Missouri’s
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 17 of 32
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execution procedures that may cause a condemned inmate
unconstitutional pain and suffering. Taylor v. Crawford, 2006
U.S. Dist. LEXIS 42949, 22 (June 26, 2006). The Court succinctly
summarized the value of the discovery materials in Taylor as
follows:
After learning more about how executions are
carried out in Missouri, through the interrogatories
submitted to the John Doe defendants, reviewing the
chemical dispensary logs, reviewing the videotape of
the execution chamber and listening to the testimony of
John Doe I, and to the testimony of the other expert
witnesses at the June 12-13, 2006 hearing, it is
apparent that there are numerous problems. Id. at *19.
These problems included:
1) no written protocol existed describing which drugs were
administered, the dosage to be used, and the method of
administration;
2) the State had misrepresented the amount of sodium
thiopental that had been administered in recent executions; five
(5) grams was to have been administered, but only two and a half
(2.5) grams were actually administered;
3) the doctor overseeing the executions was not an
anesthesiologist, but rather a surgeon, who was not well versed
in mixing and dissolving the chemicals used in the execution
protocol and who believed he could modify the amount of chemicals
and/or protocol at his discretion;
4) there is no means to monitor the anesthetic depth of the
condemned during the execution procedure.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 18 of 32
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5) there are no checks and balances or oversight at any
point in the process. Id. at 19-21.
The Court observed, “It is obvious that the protocol as it
currently exists is not carried out consistently and is subject
to change at a moments notice.” Id. at *19.
Of particular note to Mr. Hill’s case is that the District
Court in Taylor was concerned that the amount of sodium pentothal
had been decreased from five (5) grams to two and a half (2.5)
grams, which is still more than the State of Florida intends to
administer in Mr. Hill’s execution. Further, Taylor shows the
importance of being provided discovery about execution procedures
as well as information about recent executions – information to
which Mr. Hill has been completely denied.
The procedural history in Mr. Taylor’s case is instructive
as to the perils of attempting to litigate lethal injection
claims at a moment’s notice when a state arbitrarily sets an
execution date to gain an advantage in a §1983 lethal injection
case. During the pendency of Mr. Taylor’s lethal injection
challenge the State of Missouri arbitrarily set an execution date
on January 3, 2006 for February 1, 2006. See Taylor v. Crawford,
445 F.3d 1095, 1097 (8th Cir. 2006). The district court then
stayed the execution and set an evidentiary hearing on Mr.
Taylor’s claims for February 21, 2006. The district court’s
stated reason for the stay was that it could not accommodate a
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 19 of 32
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hearing in Mr. Taylor’s case prior to February 21, 2006 due to
its full calendar. Id.
The State of Missouri appealed the issuance of a stay and
the Eighth Circuit vacated the stay and remanded to the district
court on January 29, 2006 with instructions to assign a district
court judge that could immediately hold a hearing and issue a
ruling prior to the scheduled February 1, 2006 execution. See
Order, No. 06-1278. Eighth Cir. Jan. 29, 2006; see also Taylor v.
Crawford, 445 F.3d 1095, 1097-98 (8th Cir. 2006).
On remand the district court judge immediately conducted a
hearing on January 30 and 31, 2006, while making it clear the
hearing would be conducted in accord with the Eighth Circuit’s
timeline. Id. at 1098. Taylor was unable to conduct any further
discovery and unable to procure the attendance of his need
witnesses due to the untenable time constraints. Id. “Taylor
immediately appealed the district court’s adverse order,
asserting that the expedited and truncated hearing before the
district court denied him due process. . .” Id. Mr. Taylor also
asserted error regarding his inability to call necessary
witnesses, the denial of his claims on the merits. Id. He also
moved for a stay which the panel denied. Id. The same day an en
banc panel granted Taylor’s request for a stay, his motion for
rehearing, and returned the case to the panel for briefing and
oral argument. Id.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 20 of 32
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The panel’s observation after briefing and oral argument is
enlightening:
Having reviewed the record made before the
district court, we now realize the burdensome
strain that our order imposed upon the district
court as well as upon the parties as they made
extraordinary efforts to comply. We herby offer
our mea culpa . . . We simply asked the district
court and the parties to do too much in too little
time. Id. at 1099.
The case of Michael Morales is a case study in why a factual
record must be fully developed to allow a court to properly
review an Eighth Amendment challenge to a state’s lethal
injection procedures. The facts developed in Morales v. Hickman,
2006 WL 335427 (N.D. Cal., Feb. 14, 2006) reviewed at Morales v.
Hickman, 2006 WL 391604 (9th Cir., 2006), furnish a powerful
example of why this Court should stay Mr. Hill’s execution and
afford him the opportunity to discover and present evidence
challenging Florida’s lethal injection procedure. The record
developed in Mr. Morales case demonstrates that California’s
lethal injection procedure created an unjustifiable likelihood
that he would endure excruciating pain if executed by lethal
injection.
Florida and California’s execution protocols are similar in
that they both use the same three chemicals and similar methods
to dispense the chemicals. Both employ machines to inject the
drugs, rather than utilize a traditional syringe, and the same
three drugs (sodium thiopental, pancuronium bromide, and
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 21 of 32
3As the Ninth Circuit observed: “There is no dispute that in the
absence of a properly administered anesthetic, Morales would
experience the sensation of suffocation as a result of the
pancuronium bromide and excruciating pain from the potassium
chloride activating nerve endings in Morale’s veins.” Morales v.
Hickman, 2006 WL 391604 at *2.
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potassium chloride) are utilized. Morales’ challenge is
essentially that some element or interaction of the elements of
the lethal injection procedure will result in him not being
properly anesthetized by the sodium thiopental and the injection
of the other chemicals will subject him to torturous pain.3
Morales also argued that there were recurrent, critical
problems with equipment and personnel used in the lethal
injection procedure. The permitted factual development was
critical to Morales demonstrating that prison personnel were not
properly trained to insert intravenous lines and that the
execution team deviated from their protocol by administering
multiple doses of chemicals and the these irregularities were not
reported in execution records.
In at least three of the executions reviewed in the Morales
litigation intravenous line placement was a problem. News reports
detailed problems with the line placement during the execution of
Stanlet “Tookie” Williams. Kevin Fagan, The Execution of Stanley
“Tookie” Williams Eyewitness: Prisoner Did Not Die Meekly,
Quietly, S.F. CHRON., Dec. 14, 2005, at A12. The first line was
placed quickly, although it spurted blood, and then the staff
struggled to insert the second line. The line placement took long
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 22 of 32
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enough that “[b]y 12:10 a.m., the medical tech’s lips were tight
and white and sweat was pooling on her forehead as she probed
William’s arm.” Id. More importantly, the execution log showed
that one of the intravenous lines failed. This illustrative
experience demonstrates that properly trained and experienced
personnel are critical for this difficult process.
The district court in Morales cogently observed as to the
administration of multiple doses of potassium chloride:
[E]vidence in the present record raises additional
concerns as to the manner in which the drugs used in
the lethal-injection protocol are administered. For
example it is unclear why some inmates - including
Clarence Ray Allen, who had a long history of coronary
artery disease and suffered a heart attack less than
five months before he was executed, ... – have required
second doses of potassium chloride to stop promptly the
beating of their hearts. Morales v. Hickman, 2006 WL
335427 at *6(N.D. Cal., Feb. 14, 2006).
Morales also received the detailed execution logs from
several of the recent executions in the State of California. Id.
The logs suggest that, contrary to the theoretical principle that
a high dose of sodium pentothal causes a condemned’s loss of
consciousness and respiration to cease within a minute, in many
executions respiration and consciousness do not cease until
several minutes after the administration of sodium pentothal. Id.
at 1044-1045. In Morales, the District Court noted the following
pertinent details about the execution logs:
Jaturun Siripongs, executed February 9, 1999: The
administration of sodium thiopental began at 12:04 a.m.
and the administration of pancuronium bromide began at
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 23 of 32
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12:08 a.m., yet respirations did not cease until 12:09
a.m., four minutes after the administration of sodium
thiopental began and one minute after the
administration of pancuronium bromide began.
Manuel Babbitt, executed May 4, 1999: The
administration of sodium thiopental began at 12:28 a.m.
and the administration of pancuronium bromide began at
12:31 a.m., yet respirations did not cease until 12:33
a.m., five minutes after the administration of sodium
thiopental began and two minutes after the
administration of pancuronium bromide began. In
addition, brief spasmodic movements were observed in
the upper chest at 12:32 a.m.
Darrell Keith Rich, executed March 15, 2000: The
administration of sodium thiopental began at 12:06 a.m.
and the administration of pancuronium bromide began at
12:08 a.m., yet respirations did not cease until 12:08
a.m., when pancuronium bromide was injected, two
minutes after the administration of sodium thiopental
began. Chest movements were observed from 12:09 a.m. to
12:10 a.m.
Stephen Wayne Anderson, executed January 29, 2002:
The administration of sodium thiopental began at 12:17
a.m. and the administration of pancuronium bromide
began at 12:19 a.m., yet respirations did not cease
until 12:22 a.m., five minutes after the administration
of sodium thiopental began and three minutes after the
administration of pancuronium bromide began.
Stanley Tookie Williams, executed December 13,
2005: The administration of sodium thiopental began at
12:22 a.m., the administration of pancuronium bromide
began at 12:28 a.m., and the administration of
potassium chloride began at 12:32 a.m. or 12:34 a.m.,
yet respirations did not cease until either 12:28 a.m.
or 12:34 a.m. -- that is, either six or twelve minutes
after the administration of sodium thiopental began,
either when or six minutes after the administration of
pancuronium bromide began, and either four minutes
before or when the administration of potassium chloride
began.
Clarence Ray Allen, executed January 17, 2006: The
administration of sodium thiopental began at 12:18
a.m., yet respirations did not cease until 12:27 a.m.,
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 24 of 32
4Ohio, like Florida, requires two (2) grams of sodium pentothal
be administered. Cooey v. Taft, et. al, 430 F.Supp 2d 702 (2006);
2006 U.S. Dist. LEXIS 24496, 13.
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when pancuronium bromide was injected, nine minutes
after the administration of sodium thiopental began.
Morales v. Hickman, 415 F.Supp. 2d at 1044-1045 (footnotes
omitted).
The discovery and factual development in Morales was ample
enough to render the district court capable of determining that
California’s execution protocol was rife with grievous problems
that threatened to produce gratuitous, wanton, torturous pain
unless the protocol was substantially modified. The evidence
demonstrated a highly significant difference between the painless
way the protocol was to work in theory and the torturous way it
actually operated.
Indeed, following the evidence that surfaced after discovery
was disclosed about the recent executions in California, a
District Court in Ohio granted a condemned inmate’s request for
preliminary injunction based on a challenge to the chemicals and
the amount of chemicals used in the execution procedures in
Ohio.4 The District Court stated:
this Court would be remiss if it did not take note
of the evidence that the district courts in Morales and
Brown considered. And that evidence raises grave
concerns about whether a condemned inmate would be
sufficiently anesthetized under Ohio’s lethal-injection
protocol prior to and while being executed, especially
considering that the dose of sodium thiopental
prescribed under Ohio’s lethal-injection protocol (2
grams) is less than that prescribed under California’s
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 25 of 32
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protocol (5 grams) and that prescribed under North
Carolina’s protocol (3000 mg).”
Cooey v. Taft, et. al, 430 F.Supp 2d 702 (2006); 2006
U.S. Dist. LEXIS 24496, 13. The District Court referenced
the execution logs disclosed in Morales, as well as other
affidavits and information.
In regards to the evidence submitted in Brown v. Beck, the
Cooey Court also noted the autopsy results that showed the postmortem
levels of sodium pentothal being less than what would be
expected. Id. at 11-12. And, again, in Brown, evidence was
submitted from witnesses present at recent executions who had
seen condemned inmates writhing and convulsing after the
administration of the sodium pentothal, which was inconsistent
with the notion that the inmates had lost consciousness. Thus,
the information submitted in Brown v. Beck is entirely consistent
and supports the recent scientific research published in the
Lancet article.
In issuing the preliminary injunction in Cooey, the District
Court found: “Given the evidence that has begun to emerge calling
this and other conclusions by Dr. Dershwitz into question, the
Court is persuaded that there is an unacceptable and unnecessary
risk that Plaintiff Hill will be irreparably harmed absent the
injunction, i.e., that Plaintiff Hill could suffer unnecessary
and excruciating pain while being executed in violation of his
Eighth Amendment right not to be subjected to cruel and unusual
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 26 of 32
5 In addition to the recent developments mentioned above, on
August 21, 2006, the Associated Press reported that in light of
testimony during a recent hearing on lethal injection in
Oklahoma, that state “has changed the way it administers fatal
drugs during executions.” According to the article, Oklahoma
changed the way it had administered the fatal drugs in 2005, but
will now administer a double dose of the sedative, thiopental,
before administering the sodium chloride to stop the heart.
Additionally, Oklahoma will also insert two intravenous lines so
that there is a back-up in case one of the lines fails. When
Florida adopted lethal injection as a method of execution, the
protocol was modeled after the protocol that was used in Oklahoma
in 2000 – a protocol which has been changed in order to reduce
the chance that a condemned inmate would not be sufficiently
sedated.
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punishment.” Id. at 15. Further, the District Court in Cooey
found that “[i]n view of the lack of development of the record in
this case, this Court does not feel that it is in a position to
avoid the issuance of a preliminary injunction by fashioning a
remedy by which Ohio could carry out the execution of Plaintiff
Hill within the confines of the Eighth Amendment.” Id. at 19.
Since the United States Supreme Court granted Mr. Hill a
stay of execution and rendered its decision, new, critical
information has surfaced that undermines the theories that
originally supported the current lethal injection protocols used
in states, including Florida.5 This new information demonstrates
the flaws in Florida’s current lethal injection protocols and
supports Mr. Hill’s claim that under the current Florida lethal
injection protocol he will suffer unnecessary and excruciating
pain while being executed in violation of his Eighth Amendment
right not to be subjected to cruel and unusual punishment.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 27 of 32
6 In contrast, Florida prescribes, with careful detail, the
chemicals to be used in animal euthanasia and the chemicals
that are prohibited for such use (including any neuromuscular
blocking agent); a strict “order of preference” for the manner
in which the lethal solution is to be administered; the
qualifications that a person administering the lethal solution
must possess; and a 16-hour “euthanasia technician course”
that anyone administering the lethal solution must have taken.
See Fla. Stat. 828.058. The statute goes on to detail the
minimum topics that the certification course must cover
(including pharmacology, proper administration and storage of
euthanasia solutions) and the manner in which the curriculum
for the course is to be approved (by the Board of Veterinary
Medicine). See id. at 828.058(4)(a).
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E. NO UNNECESSARY DELAY IN BRINGING MR. HILL’S CLAIM
Mr. Hill diligently pursued his claim as soon as it ripened.
His claim became ripe when his death warrant issued, because it
was only at that point that he could ascertain the specific means
by which the State would carry out his lethal injection. See
Worthington v. Missouri, 166 S.W. 3d 566, 583 n.3 (Mo. 2005).
That is so because the Department of Corrections retains complete
discretion over how lethal injections will be carried out, and
shrouds its intentions in secrecy.
No Florida statute provides the chemical sequence to be
used, the procedures for administering it, any qualifications or
training required for persons engaged in administering the
chemicals and monitoring the execution, or the means of venous
access.6 Nor does any Florida statute even require that such
procedures be devised through rule-making process, or in
consultation with medical experts. Compare Fla. Stat. § 828.055
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 28 of 32
-29-
(requiring Board of Pharmacy to adopt rules for the issuance of
permits authorizing the use of chemicals in animal euthanasia,
which “shall set forth guidelines for the proper storage and
handling” of the chemicals); 828.058 (requiring training for
animal euthanasia technicians involving a curriculum approved by
the Board of Veterinary Medicine). And the Department has not
itself decided to publish any definitive set of procedures
through rule-making or otherwise. The Department, therefore,
retains total discretion to change the chemical sequence, the
manner of administration, the qualifications and training of the
execution team, and any safeguards to ensure proper
administration and adequate anesthetic depth at any time and with
respect to any particular execution. The State has never disputed
that the Department has total discretion in this regard.
The “central concern” of the ripeness doctrine “is whether
the case involves uncertain or contingent future events that may
not occur as anticipated.” Charles Alan Wright et al., 13A
Federal Practice and Procedure § 3532, at 112. Accordingly, the
ripeness inquiry looks to whether a sufficiently concrete and
definitive agency policy or practice exists. Otherwise, judicial
intervention would “den[y] the agency an opportunity to correct
is own mistakes and to apply its expertise.” Federal Trade
Comm’n v. Standard Oil Co., 449 U.S. 232, 242 (1980). As the
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 29 of 32
7 The State of Florida has denied Mr. Hill any access whatsoever
to records, policies, procedures, or any other information
concerning its lethal injection protocols and procedures.
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Supreme Court of the United States has explained in the analogous
context of federal administrative review,
[T]he ripeness requirement is designed “to prevent
the courts, through avoidance of premature
adjudication, from entangling themselves in
abstract disagreements over administrative
policies, and also to protect the agencies from
judicial interference until an administrative
decision has been formalized and its effects felt
in a concrete way by the challenging parties.”
Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726,
732-33 (1983).
Here, rather than promulgate a definitive policy, DOC has
retained total discretion over its process of lethal injection.
For this reason, it was only when Mr. Hill’s execution was
imminent that he could ascertain what execution procedures would
be applied to him. The State cannot fight tooth and nail to
resist publication of any definitive protocol7, and then accuse
the condemned person of inequitable conduct because he must wait
until his death warrant is issued to ascertain the particular
procedures that will be used in his execution.
Instead, the State can secure an earlier disposition of such
suits simply by prescribing definitive practices or the orderly
adoption of rules, as it already has done to regulate animal
euthanasia. The Department, moreover, need only implement the
familiar process of agency rule-making to ensure that the
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 30 of 32
8 Although Mr. Hill was not required to exhaust state-court
remedies prior to bringing his federal-court action under
§ 1983, see Wilkinson v. Dotson, 125 S. Ct. 1242,
1249 (2005), he did so out of an abundance of caution,
recognizing that if the district court were to construe his
complaint as a habeas filing, he would have had to exhaust
those judicial remedies, see 48 U.S.C. § 2254(b)(1)(A).
-31-
question whether its chosen procedures for administering lethal
injection violates the Eighth Amendment ripens before the
inmate’s date of execution is set.
Given the lack of any constraints on the Department’s
discretion and of any definitive practices that would have
provided the courts with a sufficiently concrete policy to
review, Mr. Hill’s claim did not ripen until the execution
warrant issued. From the moment that Mr. Hill’s challenge
ripened, he has diligently pursued his claim. Mr. Hill initially
filed suit in state court, in order to defend against an argument
that he had failed to exhaust state remedies.8 As soon as his
action was dismissed on procedural grounds in state court, he
filed his § 1983 action.
WHEREFORE, Mr. Hill respectfully requests this Court issue a
temporary injunction staying Mr. Hill’s execution and allow Mr.
Hill’s § 1983 action to be fully and fairly litigated without an
imminent execution date looming.
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 31 of 32
-32-
Respectfully submitted,
/s/ D. Todd Doss
D. TODD DOSS
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Facsimile (386) 755-3181
COUNSEL FOR APPELLANT
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document has been served on
the following counsel via electronic filing on this 1st day of
September 2006.
/s/ D. Todd Doss
D. TODD DOSS
Copies furnished to:
Carolyn Snurkowski
Assistant Attorney General
Office of the Attorney General
Plaza Level 1
The Capitol
Tallahassee, FL 32399
Case 4:06-cv-00032-SPM Document 41-2 Filed 09/05/2006 Page 32 of 32

MOTION TO ACCEPT “PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION TO STAY - Clarence Hill

2006-09-07T06:34:00.000-07:00

http://www.clarencehill.us/legal/motiontoaccept.htm

-1-
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA

CASE NO. 4:06-cv-00032-SPM

CLARENCE EDWARD HILL,

Plaintiff,

v.

JAMES MCDONOUGH, SECRETARY OF
THE FLORIDA DEPARTMENT OF EMERGENCY APPLICATION:
CORRECTIONS, CAPITAL CASE, DEATH
in his official capacity; WARRANT SIGNED;
EXECUTION IMMINENT.
September 20, 2006 at 6:00 p.m.
and

CHARLES J. CRIST, JR., ATTORNEY
GENERAL,
in his official capacity

Defendant(s).

MOTION TO ACCEPT “PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION TO
STAY HIS EXECUTION SCHEDULED FOR SEPTEMBER 20, 2006 AT 6:00 p.m.”

AS TIMELY FILED

COMES NOW
THE PLAINTIFF, CLARENCE HILL, by and through
undersigned counsel, and files this Motion to Accept “Motion for
Temporary Injunction to Stay His Execution Scheduled for
September 20, 2006 at 6:00 p.m.” as Timely Filed. In support
thereof, Mr. Hill states:

1. On the afternoon of Thursday, August 30, 2006, this
Honorable Court directed counsel for both parties by verbal order
1Undersigned was in the prison, in Raiford, Florida, on
August 30th, visiting clients and thus, did not receive the
message regarding this Court’s order until after 4:00 p.m. Upon
receiving word of this Court’s order, undersigned traveled
directly to his office to begin working on the various motions in
order to comply with the Court’s order, but did not arrive at his
office until after 5:00 p.m.
-2-

to file all pleadings in this cause by noon the following day.1

2. Undersigned complied and filed the following documents:

a. Motion to Expedite Discovery, Doc. 31;
b. First Request for Admissions, Doc. 32;
c. First Request for Production of Documents,
Doc. 33;
d. First Set of Interrogatories, Doc. 35
e. Motion to Amend Complaint, Doc. 36;
f. First Amended Complaint, Doc. 37;

3. It was undersigned counsel’s intention and undersigned
believed that he filed Plaintiff’s Motion for Temporary
Injunction to Stay His Execution Scheduled for September 20, 2006
at 6:00 p.m., with the other pleadings that were filed on August
31, 2006. See Attachment.

4. On August 31, 2006, at approximately 6:45 p.m.,
undersigned received this Court’s order dismissing Plaintiff’s
Complaint and First Amended Complaint.

5. Over the weekend, undersigned began to prepare a motion
for reconsideration. During this process, while editing and
filling in the docket numbers of the various pleadings,

-3-
undersigned discovered, that Plaintiff’s Motion for Temporary
Injunction to Stay His Execution Scheduled for September 20, 2006
at 6:00 p.m., did not appear on the docket report in the abovestyled
cause.

6. Upon learning of the fact that Plaintiff’s Motion for
Temporary Injunction to Stay His Execution Scheduled for
September 20, 2006, at 6:00 p.m., was not listed on the docket
sheet, undersigned counsel attached the motion to his motion for
reconsideration and filed same.

7. This morning, this Court’s law clerk contacted
undersigned counsel and informed undersigned that neither the
Clerk’s Office nor the Court had a record of the pleading having
been filed. Apparently, either there was an error in
transmission or inexplicably undersigned counsel, fatigued from
working all night to meet the Court’s deadline, overlooked filing
the motion.

8. As this Court’s deadline was sua sponte imposed by the
Court and not imposed pursuant to any rule, statute, or code,
Plaintiff respectfully requests this Court consider Plaintiff’s
Motion for Temporary Injunction to Stay His Execution Scheduled
for September 20, 2006 at 6:00 p.m., as timely filed and
reconsider the propriety of a stay in this matter for the reasons
contained in that pleading and in Plaintiff’s Corrected Motion
for Reconsideration and Setting Aside of Order Dismissing

-4-
Complaint and Denying Preliminary Temporary Injunction as if
argued herein.

WHEREFORE, Mr. Hill, by and through the undersigned counsel,
respectfully requests that this Court grant his Motion to Accept
“Motion for Temporary Injunction to Stay His Execution Scheduled
for September 20, 2006 at 6:00 p.m.” as Timely Filed.

Respectfully submitted,
/s/ D. Todd Doss

D. TODD DOSS
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Facsimile (386) 755-3181
COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document has been served
on the following counsel via electronic filing on this 6th day of
September 2006.

/s/ D. Todd Doss
D. TODD DOSS

-5-
Copies furnished to:
Carolyn Snurkowski
Assistant Attorney General
Office of the Attorney General
Plaza Level 1
The Capitol
Tallahassee, FL 32399

My take on the other side of Hill - Clarence Hill

2006-09-07T06:28:00.000-07:00

http://www.clarencehill.us/legal/bickelgold.htm

From BLOG Sentencing, Law and policy - Doug Berman here :

http://sentencing.typepad.com/sentencing_law_and_policy/2006/09/my_take_on_the_.html

September 6, 2006
My take on the other side of Hill

The folks at The Cato Institute were kind enough to invite me to contribute a piece to their annual Cato Supreme Court Review. (That review will be released here next week in conjunction with this Cato conference entitled, The Supreme Court: Past and Prologue; A Look at the October 2005 and October 2006 Terms.")

My piece is entitled "Finding Bickel Gold in a Hill of Beans," and you will have to downloaded the piece (available below) to understand what the heck I mean. To whet your appetite, here is my opening paragraph:

"First, do no harm," is a common aphorism for the medical profession. If the Supreme Court was judged by this principle, its work in Hill v. McDonough might lead some to urge revoking the justices' licenses. The Court's decision to consider Clarence Hill's challenge to Florida's lethal injection protocol resulted in widespread legal confusion and the disruption of executions nationwide. The Court's subsequent ruling in Hill raised more legal questions than it answered and ensured that death row defendants would continue to disrupt scheduled executions by pursuing litigation over lethal injections protocols.

Download final_cato_article_on_hill.pdf

Docket update September 6, 2006 - Clarence Hill

2006-09-07T06:08:00.000-07:00

You can read the docket of Clarence Hill in Federal Court Northern District of Florida
by September 6, 2006 here :

http://www.clarencehill.us/legal/docketfederal090506.htm

HISTORY update September 6, 2006 - Clarence Hill

2006-09-07T05:50:00.000-07:00

You can find the History update from Federal District Court in Florida, Northern District here :

http://www.clarencehill.us/legal/history090506.htm

Latest info :

39
Filed & Entered:
09/01/2006
Order

41
Filed & Entered:
09/05/2006
Motion for Reconsideration

--
Filed & Entered:
09/06/2006
Action Required by Chambers

43
Filed & Entered:
09/06/2006
Motion for Reconsideration

44
Filed & Entered:
09/06/2006
Motion for Miscellaneous Relief

45
Filed & Entered:
09/06/2006
Docket Annotation

46
Filed & Entered:
09/06/2006
Response in Opposition to Motion

Resources Regarding Challenges to Lethal Injection - Florida

2006-09-04T13:00:00.000-07:00

Resources Regarding Challenges to Lethal Injection - Florida

http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Resource%20Pages/resources.fl.html

http://www.clarencehill.us/legal/Hillfiles.htm

Pleadings in the Clarence Edward Hill Litigation (pdf)

Hill's SCOTUS cert petition (January 24, 2006)
Brief in Opposition to cert petition (January 24, 2006)
Hill's Opening SCOTUS Brief (March 6, 2006)
Amicus Brief of Veterinary Amici in Support of Hill (March 3, 2006)
Amicus Brief of Human Rights Advocates, et al. in Support of Hill (March 3, 2006)
Amicus Brief of Physicians for Human Rights, et al. in Support of Hill (March 6, 2006)
Amicus Brief of Habeas Corpus Resource Center in Support of Hill (March 6, 2006)
Amicus Brief of New Jerseyans Against the Death Penalty in Support of Hill (March 6, 2006)
Amicus Brief of Darick Demorris Walker in Support of Hill (March 6, 2006)
Amicus Brief of Bradley MacLean and William Redick in Support of Hill (March 6, 2006)
Florida's Brief on the Merits (April 2006)
United States' Amicus Brief in Support of Florida (April 2006)
State of Alabama (and other States) Amicus Brief in Support of Florida (April 2006)
Appendix to Alabama's Brief
Criminal Justice Legal Foundation (CJLF) Amicus Brief in Support of Florida (April 2006)
Hill's Reply Brief (April 17, 2006)
Opinion of the U.S. Supreme Court (June 12, 2006)

Lethal Injection on Labor Day

2006-09-04T12:56:00.000-07:00

From Capital Defense Weekly

http://www.capitaldefenseweekly.com/2006/09/lethal-injection-on-labor-day.html

Monday, September 04, 2006

Lethal Injection on Labor Day

Two quick updates on the current lethal injection litigation situation. Most importantly, in the national sense, is the continued expansion of the collection of lethal injection materials by the good folks at Boalt Hall. The other is the Clarence Hill blog by Florida Support which is attempting to collect everything relating to Hill lethal injection litigation and his currently scheduled execution date.

Will execution Bush wants take place? - Clarence Hill

2006-09-04T05:07:00.000-07:00

http://www.gainesville.com/apps/pbcs.dll/article?AID=/20060904/LOCAL/209040318/1078/news

Will execution Bush wants take place?

By NATHAN CRABBE
Sun staff writer

September 04. 2006 6:01AM

While Gov. Jeb Bush has started signing death warrants again in Florida, don't expect serial killer Danny Rolling or other Death Row inmates to be executed anytime soon.
Some death penalty experts say executions in the state are likely to be delayed until the courts decide whether the lethal injection method is cruel and unusual punishment. The courts face complicated questions over the chemicals used in the procedure, the people giving those chemicals and oversight of executions, said Deborah Denno, a Fordham University law professor and expert on lethal injection.

"There are many aspects of the procedure that are problematic," she said.

Bush last month signed a death warrant for convicted cop killer Clarence Hill, setting his execution date for Sept. 20. A spokeswoman for Bush said he wanted to spur the courts into deciding Hill's challenge of the lethal injection method of execution.

Hill was strapped to a gurney waiting to be injected with lethal chemicals when the U.S. Supreme Court stayed his execution. The court then ruled in June that Hill may challenge the state's execution method, leading Bush to declare he wouldn't sign another death warrant until the case was resolved.

Bush's decision to later sign another warrant had questionable timing, said Todd Doss, a Lake City attorney representing Hill.

"To put it into motion like that seems to be designed to prevent Mr. Hill's claim from going forward," Doss said.

Last week, the case was sent to the U.S. District Court to be heard. The state then filed a motion asking the case be dismissed and any additional stay of execution be denied.

Florida's lethal injection method doesn't have the problems seen in some other states, said Carolyn Snurkowski, assistant deputy attorney general.

"There's a whole list of issues out there . . . that seem to be unique to other states," she said.

The state Department of Corrections refuses to comment on the execution method, referring reporters to a 2000 legal filing that provided some information about the procedure. According to the filing, the inmate is first injected with an anesthetic, followed by a drug to paralyze the muscles. Potassium chloride is then injected to stop the inmate's heart.

Doss said said the procedure appears to use less anesthetic than in California, where the courts determined levels were too low in ordering changes.

"It looks like we have even more problems" than other states, he said.

Hill and inmates around the country have cited a study by University of Miami physicians in their challenges.

The study found post-death blood concentrations of anesthetic were lower than required for surgery in 43 of 49 executed inmates in other states, suggesting the procedure could allow inmates to wake and feel pain.

Bill Cervone, state attorney for the district that includes Gainesville, called such challenges "a sham" and said they are merely a stalling method.

He lamented the resulting delay in the execution of Rolling, who was sentenced to death for killing five Gainesville college students in 1990 and has exhausted his appeals.

"I don't think that many people are concerned that Danny Rolling might experience some discomfort through the execution process," he said.

He said he would be surprised if Hill's case forced major changes in the execution method."I just can't believe they are going to micromanage the issue to that extreme," he said.

Florida's political leaders are unlikely to make changes to the death penalty on their own, said Dan Smith, a political science professor at the University of Florida.

A new governor from either party likely won't do something "unless we have some high-profile miscarriage of justice," he said. He said the election of Republican Charlie Crist or Democrat Rod Smith - gubernatorial candidates with backgrounds prosecuting criminal cases, including the Rolling case - would make such changes even less likely.

"Neither of them are going to back down in their support of the death penalty," he said.

Denno said the state would face a dilemma if the courts forced more medical oversight of the lethal injection method.

She pointed to cases in Missouri and California, where courts required physicians be involved in the procedures but had problems finding any who would take part.

"The issue becomes: Who's going to be doing these kind of injections?" she said.

Florida faced a situation similar to the current debate in the 1990s, after its electric chair caused flames to shoot from an inmate's head during an execution.

The U.S. Supreme Court was poised to rule on whether the method was cruel and unusual when the state allowed lethal injection as an alternate method, eliminating the basis of the challenge.

Denno said the state lacks another alternative method that would allow it to escape the new legal challenges.

"Florida's sort of backed into a new corner," she said.

Nathan Crabbe can be reached at 352-338-3176 or crabben@gvillesun.com

Clarence Hill - History - 4:06-cv-00032-SPM HILL v. CROSBY et al

2006-09-02T15:44:00.000-07:00

http://www.clarencehill.us/legal/history1.htm

4:06-cv-00032-SPM HILL v. CROSBY et al STEPHAN P MICKLE, presiding
Date filed: 01/20/2006
Date terminated: 01/23/2006
Date of last filing: 09/01/2006

History
Doc.No.
Dates
Description
--
Filed & Entered:
01/20/2006
Set Deadlines/Hearings:

Filed & Entered:
01/20/2006
Action Required by Chambers

1
Filed & Entered:
01/20/2006
Notice (Other)

2
Filed & Entered:
01/20/2006
Complaint

3
Filed & Entered:
01/20/2006
Civil Cover Sheet

4
Filed & Entered:
01/20/2006
Docket Annotation

5
Filed & Entered:
01/20/2006
Docket Annotation

6
Filed & Entered:
01/20/2006
Answer to Complaint

7
Filed & Entered:
01/21/2006
Order

Filed & Entered:
01/23/2006
Action Required by Chambers

9
Filed & Entered:
01/23/2006
Notice (Other)

10
Filed & Entered:
01/23/2006

Terminated:
01/24/2006
Motion to Appoint Counsel

11
Filed & Entered:
01/23/2006
Terminated:
01/24/2006
Motion for Leave to Appeal in forma pauperis

12
Filed & Entered:
01/23/2006
Terminated:
01/24/2006
Motion for Leave to Proceed in forma pauperis

13
Filed & Entered:
01/23/2006
Financial Affidavit

14
Filed & Entered:
01/23/2006
Terminated:
08/31/2006
Notice of Appeal

15
Filed & Entered:
01/23/2006
Terminated:
01/27/2006
Transmission of Notice of Appeal and Docket Sheet to USCA

16
Filed & Entered:
01/24/2006
Order on Motion to Appoint Counsel

17
Filed & Entered:
01/24/2006
Terminated:
01/27/2006
USDC Letter Transmitting

18
Filed & Entered:
01/27/2006
Terminated:
01/27/2006
USCA Order

19
Filed & Entered:
01/27/2006
USCA Order in Lieu of Mandate

20
Filed:
02/02/2006
Entered:
02/03/2006
USCA Case Number

21
Filed:
02/02/2006
Entered:
02/03/2006
Acknowledgement

22
Filed:
02/14/2006
Entered:
02/17/2006
Order

23
Filed:
03/17/2006
Entered:
03/20/2006
Request/Demand

24
Filed & Entered:
03/22/2006
Appeal Record Sent to USCA

25
Filed:
03/28/2006
Entered:
03/31/2006
Original Papers Returned from USCA

26
Filed & Entered:
03/31/2006
Original Papers to USCA

27
Filed:
08/21/2006
Entered:
08/22/2006
Notice (Other)
--
Filed & Entered:
08/31/2006
Action Required by Chambers

28
Filed & Entered:
08/31/2006
USCA Mandate

29
Filed & Entered:
08/31/2006
Order

30
Filed & Entered:
08/31/2006
Letter
--
Filed & Entered:
09/01/2006
Action Required by Chambers

31
Filed & Entered:
09/01/2006
Terminated:
09/01/2006
Motion to Expedite

32
Filed & Entered:
09/01/2006
Request/Demand

33
Filed & Entered:
09/01/2006
Request/Demand

34
Filed & Entered:
09/01/2006
Response

35
Filed & Entered:
09/01/2006
Request/Demand

36
Filed & Entered:
09/01/2006
Terminated:
09/01/2006
Motion to Amend/Correct

37
Filed & Entered:
09/01/2006
Amended Complaint

38
Filed & Entered:
09/01/2006
Discovery Advisory

39
Filed & Entered:
09/01/2006
Order

Clarence Hill - CIVIL DOCKET FOR CASE #: 4:06-cv-00032-SPM

2006-09-02T15:42:00.000-07:00

http://www.clarencehill.us/legal/Docketfederal.htm

CLERK_1, CLOSED, DEATH, JYDMD

U.S. District CourtNorthern District of Florida - District Version 2.5 (Tallahassee)
CIVIL DOCKET FOR CASE #: 4:06-cv-00032-SPM

HILL v. CROSBY et al Assigned to: JUDGE STEPHAN P MICKLE
Cause: 42:1983 Prisoner Civil Rights
Date Filed: 01/20/2006
Jury Demand: NoneNature of Suit: 440 Civil Rights:
OtherJurisdiction: Federal Question

Plaintiff
CLARENCE E HILL

represented by
D TODD DOSS D TODD DOSS ESQ
LAKE CITY FL 725 SE BAYA DR STE 102
LAKE CITY, FL 32025 US
386-755-9119 Fax: 386-755-3181
Email: dosslaw@bizsea.rr.com
LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Defendant
JAMES V CROSBY, JR

represented by
CAROLYN M SNURKOWSKI
ATTORNEY GENERAL STATE OF FL -
TALLAHASSEE FL STATE OF FLORIDA PL 01 THE CAPITOL TALLAHASSEE,
FL 32399-1050
850-414-3566
Fax: 850-487-0997
Email: Carolyn_Snurkowski@oag.state.fl.us
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
CHARLIE CRIST
represented by
CAROLYN M SNURKOWSKI
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed
#
Docket Text
01/20/2006
1
DEATH WARRANT FOR CLARENCE HILL SIGNED BY GOVERNOR BUSH. EXECUTION SET FOR 1/24/06 AT 6:00 P.M. (cda, Gainesville) (Entered: 01/20/2006)
01/20/2006

2
COMPLAINT (re DEATH WARRANT) against JAMES V CROSBY, JR, CHARLIE CRIST , filed by CLARENCE E HILL. (No filing fee paid, no IFP motion filed.) (Attachments: #1 Attachment A, #2 Attachment B, #3 Attachment C, #4 Appendix A)(cda, Gainesville) (Entered: 01/20/2006)
01/20/2006

3
CIVIL COVER SHEET. (cda, Gainesville) (Entered: 01/20/2006)
01/20/2006

4
DOCKET ANNOTATION BY COURT: Case forwarded to Florida Supreme Court via UPS on 1/5/2006. Box #1
Miscellaneous Deadline - Clerk to monitor case for return of record to archive once closed by 3/6/2006. (cda, Gainesville) (Entered: 01/20/2006)
01/20/2006

5
DOCKET ANNOTATION BY COURT: United States Court of Appeals, Eleventh Circuit notified of filing of complaint. Contact person at USCA Joyce Pope, to be notified of any and all orders or stays entered by this court immediately. (cda, Gainesville) (Entered: 01/20/2006)
01/20/2006

Set Deadlines: Miscellaneous Deadline - Clerk to monitor status of case by 1/23/2006. (cda, Gainesville) (Entered: 01/20/2006)
01/20/2006

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 2 Complaint (re 1 Death Warrant). (cda, Gainesville) (Entered: 01/20/2006)
01/20/2006

6
RESPONSE TO REQUEST FOR PERMANENT INJUNCTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION ANSWER to Complaint by JAMES V CROSBY, JR.(SNURKOWSKI, CAROLYN) (Entered: 01/20/2006)
01/21/2006

7
ORDER Dismissing re 2 Complaint/Motion for Declaratory and Injunctive Relief filed by CLARENCE E HILL, for lack of jurisdiction. No stay of execution will issue in this case. Signed by Judge STEPHAN P MICKLE on 01/21/2006. (pao, Gainesville) (Entered: 01/21/2006)
01/23/2006

9
NOTICE of Appeal of Order Dismissing Complaint for Declaratory and Injunctive Relief by CLARENCE E HILL (DOSS, D) (Entered: 01/23/2006)
01/23/2006

10
MOTION to Appoint Counsel by CLARENCE E HILL. (DOSS, D) (Entered: 01/23/2006)
01/23/2006

11
MOTION for Leave to Appeal in forma pauperis by CLARENCE E HILL. (DOSS, D) (Entered: 01/23/2006)
01/23/2006

12
MOTION for Leave to Proceed in forma pauperis by CLARENCE E HILL. (DOSS, D) (Entered: 01/23/2006)
01/23/2006

13
FINANCIAL AFFIDAVIT by CLARENCE E HILL. (DOSS, D) (Entered: 01/23/2006)
01/23/2006

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 10 MOTION to Appoint Counsel, 11 MOTION for Leave to Appeal in forma pauperis, 12 MOTION for Leave to Proceed in forma pauperis, 13 Financial Affidavit (cda, Gainesville) (Entered: 01/23/2006)
01/23/2006

14
NOTICE OF APPEAL as to 7 Order by CLARENCE E HILL. (Clerk reposted to reflect correct event. Please see 9 NOTICE of Appeal of Order Dismissing Complaint for Declaratory and Injunctive Relief for PDF.) Certificate of Readiness due by 2/6/2006.(cda, Gainesville) Additional attachment(s) added on 1/24/2006 (cda, Gainesville). (Entered: 01/23/2006)
01/23/2006

15
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 14 Notice of Appeal. (cda, Gainesville) (Entered: 01/23/2006)
01/24/2006

16
ORDER denying 9 Certificate of Appealability, denying as moot 10 Motion to Appoint Counsel, and denying 11 Motion for Leave to Appeal in forma pauperis; signed by Judge STEPHAN P MICKLE. (tss, Gainesville) (Entered: 01/24/2006)
01/24/2006

17
USDC LETTER Transmitting 16 ORDER denying 9 Certificate of Appealability, denying as moot 10 Motion to Appoint Counsel, and denying 11 Motion for Leave to Appeal in forma pauperis(cda, Gainesville) (Entered: 01/24/2006)
01/27/2006

18
ORDER of USCA as to 14 Notice of Appeal, filed by CLARENCE E HILL. Petitioner's motion for appointment of counsel pursuant to the Criminal Justice Act is GRANTED. (cda, Gainesville) (Entered: 01/27/2006)
01/27/2006

19
USCA ORDER IN LIEU OF MANDATE as to 14 Notice of Appeal, filed by CLARENCE E HILL. Appellant's application for stay of execution pending appeal is DENIED. (cda, Gainesville) (Entered: 01/27/2006)
02/02/2006

20
USCA Case Number 06-10621-P for 14 NOTICE OF APPEAL as to 7 Order by CLARENCE E HILL. (cda, Gainesville) (Entered: 02/03/2006)
02/02/2006

21
ACKNOWLEDGEMENT re 17 USDC LETTER Transmitting 16 ORDER denying 9 Certificate of Appealability, denying as moot 10 Motion to Appoint Counsel, and denying 11 Motion for Leave to Appeal in forma pauperis. Received by USCA on 1/26/2006. USCA #06-10621-P. (cda, Gainesville) (Entered: 02/03/2006)
02/14/2006

22
USCA ORDER #06-10621-P granting appellant's motion for leave to proceed on appeal in forma pauperis. (atm, Gainesville) (Entered: 02/17/2006)
03/17/2006

23
USCA #06-10621-P REQUEST for record on appeal. (atm, Gainesville) (Entered: 03/20/2006) 03/22/2006

24
Certified and Transmitted Record on Appeal to US Supreme Court re 14 Notice of Appeal, USCA #06-10621-P, copy of transmittal to USCA. (atm, Gainesville) (Entered: 03/22/2006)
03/28/2006

25
ORIGINAL PAPERS returned from Florida Supreme Court re 14 Notice of Appeal, Number of Boxes: 3; (atm, Gainesville) (Entered: 03/31/2006)
03/31/2006

26
ORIGINAL PAPERS to US Supreme Court re 14 Notice of Appeal, Number of Boxes: 3; USCA # 06-10621-P (atm, Gainesville) (Entered: 03/31/2006)
08/21/2006

27
NOTICE by US Supreme Court returning original record and any exhibits (3 boxes) re 26 Original Papers to US Supreme Court re 14 Notice of Appeal, Number of Boxes: 3; USCA # 06-10621-P (llt, Gainesville) (Entered: 08/22/2006)
08/31/2006

28
MANDATE of USCA as to 14 Notice of Appeal, filed by CLARENCE E HILL, USCA #06-10621-P, remanding this case to the district court for further proceedings. (llt, Gainesville) (Entered: 08/31/2006)
08/31/2006

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 28 USCA Mandate as to 14 Notice of Appeal, filed by CLARENCE E HILL, USCA #06-10621-P, remanding this case to the district court for further proceedings. (llt, Gainesville) (Entered: 08/31/2006)
08/31/2006

29
USCA ORDER denying as moot appellant's motion for immediate remand of this cause to the district court, USCA #06-10621-P (llt, Gainesville) (Entered: 08/31/2006)
08/31/2006

30
USCA Letter to William McCool, Clerk of Court with copy of court's decision in the appeal #06-10621P on remand from the US Supreme Court (as posted 28 USCA Mandate) (llt, Gainesville) (Entered: 08/31/2006)
09/01/2006

31
MOTION to Expedite Discovery by CLARENCE E HILL. (DOSS, D) (Entered: 09/01/2006)
09/01/2006

32
First Request for Admissions by CLARENCE E HILL. (DOSS, D) (Entered: 09/01/2006)
09/01/2006

33
First Request for Production of Documents by CLARENCE E HILL. (DOSS, D) (Entered: 09/01/2006)
09/01/2006

34
RESPONSE to Motion for Stay or Injunction and Motion to Dismiss by JAMES V CROSBY, JR. (SNURKOWSKI, CAROLYN) (Entered: 09/01/2006)
09/01/2006

35
First Set of Interrogatories by CLARENCE E HILL. (DOSS, D) (Entered: 09/01/2006)
09/01/2006

36
First MOTION to Amend/Correct 2 Complaint by CLARENCE E HILL. (DOSS, D) (Entered: 09/01/2006)
09/01/2006

37
First AMENDED COMPLAINT against all defendants all defendants., filed by CLARENCE E HILL.(DOSS, D) (Entered: 09/01/2006)
09/01/2006

38
DISCOVERY ADVISORY: Re 35 Request/Demand filed by CLARENCE E HILL,, 32 Request/Demand filed by CLARENCE E HILL,, 33 Request/Demand filed by CLARENCE E HILL, Counsels attention is directed to Federal Rule of Civil Procedure 5(d), which prohibits the filing of discovery materials (including notices of deposition, deposition transcripts, interrogatories and interrogatory responses and notices thereof, production requests and responses and notices thereof, and admissions requests and responses and notices thereof) and disclosures under Rules 26(a)(1) and 26(a)(2), unless and until needed for consideration of pending motions by the court. This advisory serves as notice that no further discovery materials should be filed and all discovery posting options have been removed from CMECF. (deb, Gainesville) (Entered: 09/01/2006)
09/01/2006

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P Mickle notified that action is needed Re: 34 Response, 36 First MOTION to Amend/Correct 2 Complaint, 31 MOTION to Expedite Discovery (deb, Gainesville) (Entered: 09/01/2006)
09/01/2006

39
ORDER re 34 Response filed by JAMES V CROSBY, JR, 37 Amended Complaint filed by CLARENCE E HILL, Motion to Dismiss Granted, Amended Complaint Dismissed. No stay of execution will issue in this case. Signed by Judge STEPHAN P MICKLE on 09/01/2006. (pao, Gainesville) (Entered: 09/01/2006)