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In the Supreme Court of Florida Case No. Sc08-1986 Billy Leon

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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 would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Kearse, through counsel, accordingly urges that the Court permit oral argument. iii TABLE OF CONTENTS PRELIMINARY STATEMENT..........................................ii REQUEST FOR ORAL ARGUMENT.....................................iii TABLE OF CONTENTS..............................................iv STATEMENT OF THE CASE AND FACTS.................................1 SUMMARY OF ARGUMENT.............................................9 ARGUMENT I.....................................................10 THE CIRCUIT COURT ERRED IN DENYING MR. KEARSE AN EVIDENTIARY HEARING ON HIS CLAIM THAT FLORIDA’S LETHAL INJECTION STATUTE AND THE EXISTING LETHAL INJECTION PROCEDURES VIOLATE THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 17 AND ARTICLE II, SECTION 3 OF THE FLORIDA CONSTITUTION; THE STATUTE AND PROCEDURES CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT. ..........10 A. Mr. Kearse is entitled to an evidentiary hearing. .......10 B. Florida is not Kentucky. ................................21 ARGUMENT II....................................................26 THE DENIAL OF ACCESS TO PUBLIC RECORDS UNDER FLA. R. CRIM. P. 3.852 WAS ERROR AND VIOLATED MR. KEARSE’S RIGHTS TO DUE PROCESS. .....................................................26 CONCLUSION AND RELIEF SOUGHT...................................38 CERTIFICATE OF SERVICE.........................................39 CERTIFICATE OF COMPLIANCE......................................39 iv TABLE OF AUTHORITIES Cases Baze v. Rees, 128 S. Ct. 1520 (2008)...................... passim Baze v. Rees, 128 S. Ct. 34 (2007)............................. 3 Booker v. State, 969 So. 2d 186 (Fla. 2007)................... 10 Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985)...... 15 Davis v. Florida, 742 So. 2d 233 (Fla. 1999).................. 24 Farmer v. Brennan, 511 U.S. 825 (1994)....................... 25 Ford v. Wainwright, 477 U.S. 399 (1986)....................... 16 Hill v. State, 921 So. 2d 579 (Fla. 2006)..................... 27 Kearse v. State, 2007 Fla. LEXIS 1534; 32 Fla. L. Weekly S 525 (Fla. 2007)........................................... 3 Kearse v. State, 662 So. 2d 677 (Fla. 1995).................... 1 Kearse v. State, 770 So. 2d 1119 (Fla. 2000)................... 1 Lightbourne et al. v. McCollum, SC06-2391 (February 9, 2007)..................................................... 2 Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007)....... passim Lightbourne v. State, 549 So. 2d 1364 (Fla. 1989)............. 11 Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006)....... 28 Muehleman v. Dugger, 623 So. 2d 480 (Fla. 1993)............... 26 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)................................................... 16 Porter v. State, 653 So. 2d 375 (Fla. 1995)................... 26 Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999)............... 24 Schwab v. State, 969 So. 2d 318 (Fla. 2007)............... passim State v. Coney, 845 So. 2d 120 (Fla. 2003).................... 10 v State v. Kokal, 562 So. 2d 324 (Fla. 1990).................... 26 Taylor v. Crawford, 487 F. 3d 1072 (8th Cir. 2007)............ 27 Teffeteller v. Dugger, 676 So. 2d 369 (Fla. 1996)......... 16, 17 Walton v. Dugger, 643 So. 2d 1059 (Fla. 1993)................. 26 Rules Amendments to Fla. R. Crim. Pro. 3.851, 772 So. 2d 488 Fla. 2000).................................................... 10 Fla. R. Crim. P. 3.851......................................... 3 Fla. R. Crim. P. 3.852(i)...................................... 4 Fla. R. Crim. P. 3.852(i)(2).................................. 31 Constitutional Provisions Fla. Const. Art. I, Sec. 17................................... 10 Fla. Const. Art. II, Sec. 3................................... 10 U.S. Const. Amend. VIII.................................... 9, 10 vi STATEMENT OF THE CASE AND FACTS The Circuit Court for the Nineteenth Judicial Circuit, in and for St. Lucie County, Florida, entered the judgment of conviction and sentences of death. Mr. Kearse was found guilty of first degree murder and robbery with a firearm in October, 1991. The jury voted 11 to 1 in favor of death. The Court sentenced Mr. Kearse to die in the electric chair. This Court affirmed the conviction but vacated the death sentence and remanded for resentencing because of errors relating to the penalty phase instructions and the improper doubling of aggravating circumstances. Kearse v. State, 662 So. 2d 677 (Fla. 1995). Upon resentencing, Mr. Kearse was again sentenced to death. This Court upheld that sentence on direct appeal. Kearse v. State, 770 So. 2d 1119 (Fla. 2000). Mr. Kearse timely petitioned the United States Supreme Court for certiorari. This petition was denied on March 26, 2001. On March 1, 2004, Mr. Kearse filed an amended motion to vacate judgments of conviction and sentence raising several issues. The circuit court denied Mr. Kearse’s motion as to all claims. Mr. Kearse appealed to this Court, and filed a Petition for Writ of Habeas Corpus challenging the constitutionality of Florida’s lethal injection procedures on May 12, 2006. 1 On December 13, 2006, while Mr. Kearse’s habeas petition was pending in this Court, the State of Florida botched the execution of death row inmate Angel Nieves Diaz. On December 14, 2006, Mr. Kearse joined in a petition filed in this Court challenging Florida’s lethal injection procedures under the Eighth Amendment to the U.S. Constitution and the corresponding provision of the Florida Constitution (PCR2. 1809). Mr. Kearse’s interest in the petition was dismissed without prejudice. Lightbourne et al. v. McCollum, SC06-2391 (February 9, 2007). At that time, Mr. Kearse’s habeas corpus petition was still pending in this Court. On May 9, 2007, the Florida Department of Corrections (DOC) issued new or revised protocols for carrying out the death penalty. After eleven days of testimony and evidence regarding the Diaz execution and Florida’s intended method for carrying out lethal injection, Marion County Circuit Court Judge Carven Angel recognized the new lethal injection procedures to be constitutionally deficient. On July 22, 2007, Judge Angel issued a temporary stay against the setting of an execution date in Petitioner Lightbourne’s case. Just over a week later, on August 1, 2007, the Department of Corrections issued yet another new Execution by Lethal Injection Procedure (PCR2. 449). This Court denied Mr. Kearse’s petition for writ of habeas 2 corpus on August 30, 2007, but did not consider Mr. Kearse’s lethal injection claim: As a result of the execution of Angel Diaz, litigation concerning the constitutionality of Florida’s lethal injection procedures is ongoing in Lightbourne v. McCollum, No. SC06-2391 (Fla. petition filed Dec. 14, 2006). We do not consider those issues here and express no opinion regarding the merits of any subsequent challenge Kearse may bring related to lethal injection. Kearse v. State, 2007 Fla. LEXIS 1534; 32 Fla. L. Weekly S 525 (Fla. 2007). Mr. Kearse’s Motion for Rehearing was denied on November 30, 2007. The Mandate issued on December 17, 2007. While Mr. Kearse’s habeas petition was pending in this Court, on September 25, 2007, the United States Supreme Court granted a petition for writ of certiorari in the case of Baze v. 1 Rees, 128 S. Ct. 34 (2007), to review the constitutionality of the lethal injection procedures used in Kentucky. The Kentucky lethal injection protocol involves the same three-drug cocktail as Florida’s protocol. Based on the foregoing, two days after this Court issued its Mandate, on December 19, 2007, Mr. Kearse filed a Successive Motion to Vacate Judgments and Sentence pursuant to Fla. R. Crim. P. 3.851 (PCR2. 2-109). On January 3, 2008, Mr. Kearse 1 The U.S. Supreme Court subsequently upheld Kentucky’s lethal injection procedures and set out the legal standard that governs Eighth Amendment
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