DOCSLIB.ORG

Supreme Court of Florida

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Supreme Court of Florida Supreme Court of Florida ____________ No. SC08-992 ____________ WAYNE TOMPKINS, Appellant, vs. STATE OF FLORIDA, Appellee. ____________ No. SC08-1979 ____________ WAYNE TOMPKINS, Appellant, vs. STATE OF FLORIDA, Appellee. ____________ No. SC08-2000 ____________ WAYNE TOMPKINS, Petitioner, vs. STATE OF FLORIDA, Respondent. [November 7, 2008] PER CURIAM. Tompkins, a prisoner under sentence of death and under an active death warrant, appeals from the trial court’s orders denying motions to vacate his sentence under Florida Rule of Criminal Procedure 3.851.1 Tompkins also petitions to invoke this Court’s authority to issue all writs necessary to complete the exercise of its jurisdiction, or alternatively to issue a writ of habeas corpus, or both. Because the orders concern postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. Additionally, we have jurisdiction over the petition under article V, sections 3(b)(7) and 3(b)(9), Florida Constitution. For the reasons stated in this 1. On October 2, 2008, Governor Charlie Crist reset Tompkins’s execution for October 28, 2008, at 6:00 p.m., based on Tompkins’s third death warrant, signed by former Governor Jeb Bush on March 22, 2001. However, this Court entered an order staying execution until November 18, 2008, because Tompkins’s appeal of the trial court’s denial of his fourth postconviction motion was pending and briefing had not yet been completed. The first death warrant was issued on March 30, 1989, followed by a second death warrant on November 9, 1989. - 2 - opinion, we affirm the trial court’s orders and deny Tompkins’s petition for all writs and habeas relief. FACTS AND PROCEDURAL HISTORY In 1985, Wayne Tompkins was convicted of the 1983 first-degree murder of fifteen-year-old Lisa DeCarr and was sentenced to death on the recommendation of a unanimous jury. This case has a long procedural history. The conviction and death sentence have been reviewed and affirmed on direct appeal and have been the subject of multiple postconviction proceedings, including five postconviction motions, all of which have resulted in a total of eight opinions issued by this Court and federal courts.2 The facts of this case are set forth in this Court’s opinion in Tompkins’s direct appeal of his conviction and sentence: The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on March 24, 1983. In June 1984, the victim’s skeletal remains were found in a shallow grave under the house along with her pink bathrobe and jewelry. Based upon a ligature (apparently the sash 2. These opinions include this opinion and the following: Tompkins v. State, 502 So. 2d 415, 417-18 (Fla. 1986) (“Tompkins I”), cert. denied, 483 U.S. 1033 (1987); Tompkins v. Dugger, 549 So. 2d 1370, 1372 (Fla. 1989) (“Tompkins II”), cert. denied, 493 U.S. 1093 (1990); Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999) (“Tompkins III”), cert. denied, 531 U.S. 861 (2000); Tompkins v. State, 872 So. 2d 230 (Fla. 2003) (“Tompkins IV”); Tompkins v. State, 894 So. 2d 857, 859 (Fla. 2005) (“Tompkins V”); Tompkins v. State, 980 So. 2d 451, 455 (Fla. 2007) (“Tompkins VI”), cert. denied, 128 S. Ct. 895 (2008); and Tompkins v. Singletary, No. 89-1638-CIV-T-99B, 1998 U.S. Dist. LEXIS 22582 (M.D. Fla. Apr. 17, 1998). - 3 - of her bathrobe) that was found tied tightly around her neck bones, the medical examiner determined that Lisa had been strangled to death. In September 1984, Wayne Tompkins, the victim’s mother’s boyfriend, was charged with the murder. At trial, the state’s three key witnesses testified as follows. Barbara DeCarr, the victim’s mother, testified that she left the house on the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins at his mother’s house a few blocks away. Some time that morning, she sent Tompkins back to her house to get some newspapers for packing. When Tompkins returned, he told Barbara that Lisa was watching television in her robe. Tompkins then left his mother’s house again, and Barbara did not see or speak to him again until approximately 3 o’clock that afternoon. At that time, Tompkins told Barbara that Lisa had run away. He said the last time he saw Lisa, she was going to the store and was wearing jeans and a blouse. Barbara returned to the Osborne Street house where she found Lisa’s pocketbook and robe missing but not the clothes described by Tompkins. Barbara then called the police. The state’s next witness, Kathy Stevens, a close friend of the victim, testified that she had gone to Lisa DeCarr’s house at approximately 9 a.m. on the morning of March 24, 1983. After hearing a loud crash, Stevens opened the front door and saw Lisa on the couch struggling and hitting Tompkins who was on top of her attempting to remove her clothing. Lisa asked her to call the police. At that point, Stevens left the house but did not call the police. When Stevens returned later to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins had made sexual advances towards Lisa on two prior occasions. Kenneth Turco, the final key state’s witness, testified that Tompkins confided details of the murder to him while they were cellmates in June 1985. Turco testified that Tompkins told him that Lisa was on the sofa when he returned to the house to get some newspapers for packing. When Tompkins tried to force himself on her, Lisa kicked him in the groin. Tompkins then strangled her and buried her under the house along with her pocketbook and some clothing (jeans and a top) to make it appear as if she had run away. After the state rested its case, the trial court denied Tompkins’ motion for acquittal, finding that the evidence was sufficient to prove - 4 - premeditation and that the state had established a prima facie case. The defense rested after the close of the state’s case without presenting any additional evidence. The jury found Tompkins guilty as charged. At the penalty phase, the state presented evidence from three witnesses to show that Tompkins had been convicted of kidnapping and rape stemming from two separate incidents in Pasco County which occurred after Lisa DeCarr’s disappearance. The defense presented testimony from three witnesses regarding Tompkins’ good work record, shy and nonviolent personality, and honesty. The trial judge, finding three aggravating circumstances (previous conviction of felonies involving the use or threat of violence to the person; murder committed while the defendant was engaged in an attempt to commit sexual battery; murder was especially heinous, atrocious, or cruel) and one statutory mitigating circumstance (defendant’s age at the time of the crime), followed the jury’s recommendation and sentenced Tompkins to death. Tompkins I, 502 So. 2d at 417-18 (footnotes omitted). The complex procedural history of this case is detailed in our most recent opinion, and we therefore do not repeat it in this opinion. See Tompkins VI, 980 So. 2d at 452-56. In Tompkins VI, we reviewed the trial court’s denial of Tompkins’s third postconviction motion, in which he alleged that new information provided by James Davis, Lisa DeCarr’s boyfriend at the time of her disappearance, significantly impeached the testimony of Kathy Stevens and required reversal of the conviction and death sentence. 980 So. 2d at 455.3 3. In August 2002, while Tompkins’s previous appeal to this Court in Tompkins IV was pending, Tompkins filed a motion to relinquish jurisdiction to allow the trial court to consider this newly discovered evidence claim. This Court denied the motion and Tompkins filed his third postconviction motion in the trial court. The trial court dismissed the motion for lack of jurisdiction due to the - 5 - Specifically, Davis stated that he did not see Stevens at the corner store on the morning Stevens witnessed Tompkins assaulting Lisa, contrary to Stevens’s testimony. Tompkins VI, 980 So. 2d at 455. The trial court evaluated Tompkins’s claim as one of newly discovered evidence and denied the claim. Id. at 456. This Court affirmed the trial court’s denial of the claim. This Court concluded that although the impeachment evidence could not be viewed as insignificant, when considered with the other evidence presented at trial, it was not of such nature that it would probably produce an acquittal on retrial. Id. at 458 (citing Jones v. State, 591 So. 2d 911, 915 (Fla. 1991)). This Court engaged in an extensive analysis to reach this conclusion: In this case, Davis’s affidavit contradicts Stevens’ testimony regarding her encounter with Davis at the corner store, which Stevens indicated was part of the reason she did not call the police. However, his statements do not address Stevens’ testimony that she saw Tompkins attacking Lisa. Further, Stevens, who was fifteen when she witnessed the assault and seventeen at the time of trial, was significantly impeached by defense counsel. She waited almost a year to come forward after Lisa’s body was discovered and made previous statements to the prosecutor and Mrs. DeCarr that she had no information about Lisa’s disappearance. The State’s argument to the jury regarding Stevens’ credibility in the face of this impeachment was that Stevens had no pending appeal.
Load more

Recommended publications
  • Florida Bishops Want End to Death Penalty, Halt of July 1 Execution
    Florida bishops want end to death penalty, halt of July 1 execution ORLANDO, Fla. – Florida’s Catholic bishops have called on Gov. Charlie Christ to “set a new standard of respect for life” in the state by ending the use of the death penalty, beginning by halting the July 1 scheduled execution of Mark Dean Schwab. Schwab, 39, is on death row for the April 18, 1991, rape and murder of 11-year-old Junny Rios-Martinez of Cocoa. In a letter to Christ dated June 25, the bishops said they are praying for the victim and know they are unable to fully grasp the pain experienced by his family. They lamented, though, that taking the life of another who has killed perpetuates violence as a solution. “The Lord commands us to forgive, just as our heavenly Father has forgiven us. It is only through the process of forgiveness that we are healed and our suffering can be alleviated,” said Bishop Victor B. Galeone of St. Augustine. The bishop’s statement was in a press release issued by the Florida Catholic Conference in Tallahassee. He is the episcopal moderator for the State Pro-Life Coordinating Committee of the conference, the public policy arm of the state’s bishops. Schwab was scheduled to die by lethal injection Nov. 15, 2007, but the execution was blocked a day earlier by the U.S. Supreme Court while the court considered a Kentucky case on the constitutionality of lethal injection as a method of execution. Schwab’s was the first execution to be scheduled in Florida since the high court’s April 16 ruling this year which said the use of the three-drug cocktail is not cruel and unusual punishment.
    [Show full text]
  • 1 in the Supreme Court of Florida Case No. 08-1199
    IN THE SUPREME COURT OF FLORIDA CASE NO. 08-1199 MARK DEAN SCHWAB, Appellant, Death Warrant Signed Execution July 1, 2008 STATE OF FLORIDA Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT FOR BREVARD COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT MARK S. GRUBER Fla. Bar No. 0330541 PETER J. CANNON Fla. Bar No. 0109710 DAPHNEY GAYLORD Fla. Bar No. 0136298 Capital Collateral Regional Counsel-Middle Region 3801 Corporex Park Drive Suite 210 Tampa, FL 33619-1136 (813) 740-3544 COUNSEL FOR APPELLANT 1 TABLE OF CONTENTS Page TABLE OF CONTENTS...............................................i TABLE OF AUTHORITIES...........................................ii STATEMENT OF THE CASE...........................................2 STANDARD OF REVIEW..............................................5 SUMMARY OF ARGUMENT.............................................5 ARGUMENT........................................................8 THE LOWER COURT ERRED WHEN IT SUMMARILY DENIED MR. SCHWAB’S CHALLENGE TO FLORIDA’S LETHAL INJECTION PROCEDURES AND PROFICIENCY OF THE FLORIDA DEPARTMENT OF CORRECTIONS IN ADMINISTERING LETHAL INJECTIONS IN CONFORMITY WITH THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AS INTERPRETED BY THE UNITED STATES SUPREME COURT IN BAZE V. REES AND CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION CONCLUSION.....................................................46 CERTIFICATE OF SERVICE.........................................46 CERTIFICATE OF COMPLIANCE......................................47 2 TABLE OF AUTHORITIES Baze v. Rees, (April 16, 2008) ................................31 Foster v. Moore, 810 So.2d 910 (Fla. 2002) .....................5 Hill v. McDonough, 126 S.Ct 2096 (2006) ........................4 Hodges v. State, 885 So.2d 338 (Fla. 2004) .................5, 15 Jones v. State, 591 So.2d 911 (Fla. 1991) ..................6, 27 Jones v. State, 709 So.2d 512 (Fla. 1998) .....................20 McLin v. State, 827 So.2d 948 (Fla. 2002) ......................5 Mendoza v.
    [Show full text]
  • In the Supreme Court of Florida Mark Dean Schwab
    IN THE SUPREME COURT OF FLORIDA MARK DEAN SCHWAB, Petitioner, v. CASE NO. SC00-1629 MICHAEL W. MOORE,Secretary, Florida Department of Corrections, Respondent. / RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS ROBERT A. BUTTERWORTH ATTORNEY GENERAL KENNETH S. NUNNELLEY ASSISTANT ATTORNEY GENERAL Fla. Bar #0998818 444 Seabreeze Blvd. 5th FL Daytona Beach, FL 32118 (904) 238-4990 Fax - (904) 226-0457 CERTIFICATE OF FONT This brief is typed in Courier New 12 point. i TABLE OF CONTENTS TABLE OF CONTENTS . ii TABLE OF AUTHORITIES . iii RESPONSE TO INTRODUCTION . 1 RESPONSE TO JURISDICTIONAL STATEMENT . 3 RESPONSE TO GROUNDS FOR RELIEF . 3 I. THE JUDICIAL BIAS CLAIM . 3 II. THE INCOMPLETE RECORD CLAIM . 6 CONCLUSION . 9 CERTIFICATE OF SERVICE . 10 ii TABLE OF AUTHORITIES CASES Barwick v. State, 660 So.2d 685 (Fla.1995) ................ 6 Campbell v. State, 577 So.2d 932 (Fla. 1991) ............... 2 Martinez-Villareal v. Stewart, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) .. 9 Gleason v. Title Guar. Co., 300 F.2d 813 (5th Cir. 1962) .............. 8 Heath v. Jones, 941 F.2d 1126 (11th Cir. 1991) ............. 9 Huff v. State, 569 So.2d 1247 (Fla. 1990) . 6 Jackson v. State, 599 So.2d 103 (Fla. 1992) ............... 6 King v. Dugger, 555 So.2d 355 (Fla. 1990) ............... 4 Martinez-Villareal v. Stewart, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) .. 9 Quince v. State, 732 So.2d 1059 (Fla. 1999) ............... 6 Rogers v. State, 511 So.2d 526 (Fla. 1987), cert. denied, 484 U.S.
    [Show full text]
  • Execution by Lethal Injection: a Quarter Century of State Poisoning
    Execution by lethal injection – a quarter century of state poisoning Introduction ............................................................................................................ 1 Background ............................................................................................................ 4 Botched executions ................................................................................................ 6 Developments in the past decade: country by country ........................................ 10 USA .................................................................................................................. 10 China ................................................................................................................ 16 Guatemala ........................................................................................................ 19 Philippines ........................................................................................................ 20 Thailand ........................................................................................................... 21 Taiwan .............................................................................................................. 21 India ................................................................................................................. 22 Papua New Guinea ........................................................................................... 23 Vietnam ...........................................................................................................
    [Show full text]
  • In the Supreme Court of Florida Case No. Sc08-1986 Billy Leon
    IN THE SUPREME COURT OF FLORIDA CASE NO. SC08-1986 ______________________________________________________________ BILLY LEON KEARSE, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR ST. LUCIE COUNTY, FLORIDA ______________________________________________________________ INITIAL BRIEF OF APPELLANT ______________________________________________________________ NEAL A. DUPREE Capital Collateral Regional Counsel - South PAUL KALIL Florida Bar No. 0174114 Assistant CCRC-South CAPITAL COLLATERAL REGIONAL COUNSEL – SOUTH 101 N.E. 3rd Avenue Suite 400 Fort Lauderdale, Florida 33301 (954) 713-1284 COUNSEL FOR APPELLANT PRELIMINARY STATEMENT This proceeding involves an appeal of the circuit court's summary denial of relief on Mr. Kearse’s successive motion for post-conviction relief filed pursuant to Fla. R. Crim. P. 3.851. This appeal involves an Eighth Amendment challenge to Florida’s method of execution. The following symbols will be used to designate references to the record in this appeal: "R._____" -- record on direct appeal to this Court; "PCR._____" -- record on postconviction appeal; “PCR2._____” – record on successive postconviction appeal. ii REQUEST FOR ORAL ARGUMENT Mr. Kearse has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar posture. A full opportunity to air the issues through oral argument
    [Show full text]
  • 350 Prolonged Somnolence and Recovery, Sneezing, Coughing, Mg)
    Capital Punishment by Lethal Injection We’ve come a long way, baby – or have we? “Old Sparky” The “Botched” Lethal Injection of Clayton Lockett Presented by: David M. Benjamin, Ph.D., FCLM, FCP, F-AAFS “The Electric Chair” at Sing Sing Prison Which one of you wants to “pull the switch” on Dr. Benjamin? Where the “Deed” is Done! Answer: There’s a group of people lined up to do it! The Texas execution chamber in Huntsville, TX. (Headline: Mark Berman, Photo: Pat Sullivan/AP, Washington Post, March 13, 2016) Lethal Injection ■ Lethal injection is the practice of injecting a person with a fatal dose of drugs (typically a barbiturate, paralytic (i.e., curare-like drug), and potassium solution) for the express purpose of causing immediate, painless (?), death. But ■ Often, it’s not lethal. ■ Often it’s not immediate ■ Often it’s not painless ■ Medical doctors often are not part of the team 1 History of Lethal Injection History of Lethal Injection ■ On May 11, 1977, Oklahoma's state medical examiner, ■ Since then, until 2004, 37 of the 38 states using Jay Chapman, proposed a new, less painful method of execution, known as Chapman's Protocol: capital punishment introduced lethal injection ■ "An intravenous saline drip shall be started in the prisoner's statutes. arm, into which shall be introduced a lethal injection ■ On August 29, 1977, Texas adopted the new consisting of an ultra-short-acting barbiturate in combination with a chemical paralytic." method of execution, switching to lethal ■ After the procedure was approved by anesthesiologist Stanley injection from electrocution.
    [Show full text]
  • Schwab V. Florida
    969 So.2d 318 (2007) Mark Dean SCHWAB, Appellant, v. STATE of Florida, Appellee. No. SC07-1603. Supreme Court of Florida. November 1, 2007. Rehearing Denied November 7, 2007. 320 *320 Bill Jennings, Capital Collateral Regional Counsel, Mark S. Gruber, Peter J. Cannon, and Daphney Gaylord, Assistant CCRC, Middle Region, Tampa, FL, for Appellant. Bill McCollum, Attorney General, Tallahassee, FL, Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee. PER CURIAM. Mark Dean Schwab, a prisoner under sentence of death and under an active death warrant, appeals the circuit court's order denying his successive motion for postconviction relief, which was filed pursuant to Florida Rule of 321 Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of *321 death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the postconviction court's order denying relief. This case involves the kidnapping and murder of eleven-year-old Junny Rios-Martinez in April 1991. Schwab was convicted of first-degree murder, sexual battery of a child, and kidnapping, and was sentenced to death. The factual background and procedural history of this case are detailed in this Court's opinion on Schwab's direct appeal. See Schwab v. State, 636 So.2d 3 (Fla.1994). After we affirmed his conviction and sentence of death, Schwab unsuccessfully sought postconviction relief, both before this Court and before the federal courts. See Schwab v. State, 814 So.2d 402 (Fla.2002) (affirming circuit court's denial of motion for postconviction relief and denying petition for writ of habeas corpus); Schwab v.
    [Show full text]
  • Schwab's Execution Can Go Forward
    Florida attorney general says child killer's execution can go forward Mark Dean Schwab (Florida Department of Corrections) Brendan Farrington | The Associated Press 4:48 PM EDT, April 16, 2008 TALLAHASSEE - Attorney General Bill McCollum asked the U.S. Supreme Court on Wednesday to allow Florida to proceed with the execution of child killer Mark Dean Schwab, shortly after the high court ruled that lethal injection is not cruel and unusual punishment. Meanwhile, Gov. Charlie Crist asked for a "very short list" of the worst death row inmates so he can sign his next death warrant. In a 7-2 vote, the Supreme Court upheld Kentucky's use of lethal injection to execute condemned killers, and McCollum said that should clear the way for executions in Florida because the states have nearly identical procedures. The court had stopped the Schwab execution, and McCollum's office filed paperwork Wednesday afternoon seeking to get the order lifted. "In the most heinous of cases, the death penalty should be carried out," McCollum said. "Schwab is a very heinous case." Related links • Junny Rios-Martinez Schwab, 40, a Merritt Island High School dropout and convicted sex offender, was slated to be executed last November for raping and murdering 11-year-old Junny Rios-Martinez of Cocoa in 1991. He was sentenced to death in July 1992. But the Supreme Court stayed his execution on Nov. 15 -- four hours before he was scheduled to die -- so the court could hear related arguments in the Kentucky case. McCollum said he was gratified that the victim's family would see justice and that his belief that Florida's executions "are constitutionally sound has been upheld by the highest legal authority in the nation." Crist had said that he would wait until the high court's decision before moving ahead with other executions.
    [Show full text]
  • STOP CARERS KILLING! Introduction
    Public AI Index: ACT 50/009/2007 ---------------------------- Amnesty International International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom To: Health professionals From: Health and human rights team Date: 27 September 2007 STOP CARERS KILLING ! This action accompanies the report Execution by lethal injection: a quarter century of state poisoning (ACT 50/007/2007) to be launched on 4 October 2007. PLEASE NOTE that all public materials associated with this action are embargoed until 4 October. They can then be made public and freely distributed. Introduction: AI considers the death penalty to be the ultimate, cruel, inhuman and degrading punishment, and works for an end to executions and the abolition of the death penalty everywhere. This action focuses upon the participation of health professionals in executions, particularly by lethal injection. AI is against the use of the death penalty irrespective of the method of execution, but lethal injection is a method that raises particular concerns. These concerns include: • The promotion of a misunderstanding of the cruel, inhuman or degrading nature of execution. By focusing on the presumed reduction in pain suffered during the lethal injection execution, proponents of this method disregard the suffering inflicted on prisoners through the entire death penalty process. (For example, the threat of execution is used by torturers to inflict suffering on detainees.) • The potential for this method to cause physical suffering. A number of cases in the USA have been botched and caused visible suffering. In addition, a number of recent court challenges have been based on inherent potential problems with the method, notably that the use of a paralysing agent in the lethal mixture could mask any suffering caused to the prisoner during the execution since he or she would be immobilised and unable to signal any discomfort or pain.
    [Show full text]
  • Initial Brief of Appellant 11/28/07
    IN THE SUPREME COURT OF FLORIDA CASE NO. SC07-2138 MARK DEAN SCHWAB, Appellant, Death Warrant Signed Execution Stayed STATE OF FLORIDA Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT FOR BREVARD COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT MARK S. GRUBER Fla. Bar No. 0330541 PETER J. CANNON Fla. Bar No. 0109710 DAPHNEY GAYLORD Fla. Bar No. 0136298 Capital Collateral Regional Counsel-Middle Region 3801 Corporex Park Drive Suite 210 Tampa, FL 33619-1136 (813) 740-3544 COUNSEL FOR APPELLANT 1 TABLE OF CONTENTS Page TABLE OF CONTENTS...............................................i TABLE OF AUTHORITIES...........................................ii STATEMENT OF THE CASE...........................................2 STANDARD OF REVIEW..............................................5 SUMMARY OF ARGUMENT.............................................5 ARGUMENT........................................................6 Argument I: THE LOWER COURT ERRED WHEN IT DENIED MR. SCHWAB’S NEWLY DISCOVERED EVIDENCE CLAIM OF DR. SAMEK’S CLARIFICATION OF HIS ORIGINAL TESTIMONY. THIS EVIDENCE MAKES MR. SCHWAB’S SENTENCE OF DEATH FUNDAMENTALLY UNRELIABLE IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION. .6 ARGUMENT II: THE LOWER COURT ERRED WHEN IT DENIED MR. SCHWAB’S NEWLY DISCOVERED EVIDENCE OF THE DEPARTMENT OF CORRECTION’S TRAINING LOGS AND FDLE MOCK EXECUTION TRAINING NOTES. THIS EVIDENCE CLEARLY REVEAL THAT FLORIDA’S LETHAL INJECTION METHOD OF EXECUTION VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS AND CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION . 26 CONCLUSION.....................................................35 CERTIFICATE OF SERVICE.........................................35 CERTIFICATE OF COMPLIANCE......................................37 i TABLE OF AUTHORITIES Page Asay v. State, 769 So.2d 974 (Fla. 2000) ......................16 Baze v. Rees, 76 U.S.L.W.
    [Show full text]
  • [Publish] in the United States Court Of
    [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 07-15329 November 15, 2007 THOMAS K. KAHN D.C. Docket No. 07-01798-CV-ACC-KRS CLERK MARK DEAN SCHWAB, Plaintiff-Appellee, versus SECRETARY, DEPARTMENT OF CORRECTIONS, OTHER UNKNOWN EMPLOYEES AND AGENTS, Florida Department of Corrections, Defendants-Appellants. -------------------------- Appeal from the United States District Court for the Middle District of Florida -------------------------- (November 15, 2007) Before DUBINA, CARNES, and HULL, Circuit Judges. PER CURIAM: We have before us a motion filed by the State of Florida, through the Secretary of its Department of Corrections, asking that we vacate a stay of execution the district court entered early yesterday afternoon on behalf of Mark Dean Schwab. That court entered the stay in response to Schwab’s emergency motion for one in connection with his last-minute filing of a 42 U.S.C. § 1983 lawsuit challenging the manner in which the state’s lethal injection procedures are designed and carried out.1 The district court made it clear that the Supreme Court’s grant of certiorari in Baze v. Rees, 128 S. Ct. 34, amended, 128 S. Ct. 372 (2007), was the only reason it entered the stay. Schwab v. McDonough, No. 6:07cv1798, at 5 (M.D. Fla. Nov. 14, 2007) (“Simply put, the Court would not issue this stay absent the Supreme Court’s grant of certiorari in Baze.”). The district court’s action in granting the stay is contrary to the unequivocal law of this circuit that because grants of certiorari do not themselves change the law, they must not be used by courts of this circuit as a basis for granting a stay of execution that would otherwise be denied.
    [Show full text]
  • Case No. 07-10275 Capital Case in the Supreme Court of The
    CASE NO. 07-10275 CAPITAL CASE IN THE SUPREME COURT OF THE UNITED STATES MARK DEAN SCHWAB Petitioner, v. FLORIDA, Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA BILL McCOLLUM ATTORNEY GENERAL KENNETH S. NUNNELLEY SENIOR ASSISTANT ATTORNEY GENERAL Fla. Bar #998818 444 Seabreeze Blvd., 5th FL Daytona Beach, FL 32118 (386) 238-4990 Fax # (386) 226-0457 COUNSEL FOR RESPONDENTS QUESTIONS PRESENTED [Capital Case] Respondents state the questions presented in the following way: Whether this Court should exercise its certiorari jurisdiction to review a claim that is foreclosed by binding precedent, and that, alternatively, does not present a federal question in the context of the case, and that was decided correctly by the State courts. i TABLE OF CONTENTS QUESTION PRESENTED FOR REVIEW .................i TABLE OF CONTENTS ...................... ii TABLE OF AUTHORITIES ....................iii CITATION TO OPINION BELOW ...................2 RESPONSE TO STATEMENT OF JURISDICTION ............2 RESPONSE TO CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . 3 STATEMENT OF THE CASE .....................3 REASONS FOR DENYING THE WRIT ................ 14 CONCLUSION ......................... 20 CERTIFICATE OF SERVICE ................... 20 ii TABLE OF AUTHORITIES CASES Baze v. Rees, 2008 WL 1733259 (U.S. Apr. 16, 2008) ...........1 Buenoano v. State, 565 So. 2d 309 (Fla. 1990) ................5 Hill v. State, 921 So. 2d 579 (Fla. 2006) ................7 Lightbourne v. McCollum, Case No. 07-10265 ................... 16 Lightbourne v. McCollum, 2007 Fla. LEXIS 2255 (Fla. Nov. 1, 2007) .........6 Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) ............. passim Medellin v. Texas, 170 L. Ed. 2d 190 (2008) ................ 17 Rolling v. State, 944 So. 2d 176 (Fla.
    [Show full text]