DISTRICT COURT NORTHERN DISTRICT OF TALLAHASSEE DIVISION

BOBBY JOE LONG, Plaintiff, CIVIL ACTION NO.______

v.

RON DESANTIS, Governor, EMERGENCY in his official capacity; INJUNCTIVE RELIEF SOUGHT

JIMMY PATRONIS, EXECUTION OF STATE DEATH Chief Financial Officer, SENTENCE SCHEDULED FOR in his official capacity; MAY 23, 2019, AT 6:00 P.M.

ASHLEY MOODY, Attorney General, in her official capacity;

NIKKI FRIED, Commissioner of Agriculture, in her official capacity;

JULIA McCALL, Coordinator, Office of Executive Clemency, in her official capacity;

MELINDA COONROD, Chairman, Commissioner, Florida Commission on Offender Review, in her official capacity;

SUSAN MICHELLE WHITWORTH, a/k/a S. Michelle Whitworth a/k/a Michelle Whitworth, Commission Investigator Supervisor, Florida Commission on Offender Review, in her official capacity.

42 U.S.C. § 1983 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I. NATURE OF ACTION

1. This is a civil action brought under 42 U.S.C. § 1983 for violations of Plaintiff

Bobby Joe Long’s federal statutory rights under 18 U.S.C. § 3599 and for

violations of his constitutional rights to have meaningful counsel present for

a critical stage of his legal case unique to death-sentenced individuals in the

State of Florida: executive clemency. While clemency is not itself a

constitutional right, it is a necessary step under Florida’s statutory scheme for

carrying out a death-sentenced individual’s execution. Florida’s creation of

this critical stage in litigation unique to death-sentenced persons requires

meaningful counsel under the Sixth Amendment. Mr. Long specifically

asserts that his rights have been violated under 18 U.S.C. § 3599 and the Sixth

and Fourteenth Amendments to the United States Constitution.

2. Mr. Long seeks injunctive relief in the form of a stay of his scheduled May 23,

2019, execution pending the completion of an executive clemency process

that comports with federal law, and declaratory relief that the defendants

violated his federal rights.

II. PARTIES TO THE COMPLAINT

PLAINTIFF

3. Bobby Joe Long is a prisoner on Florida’s death row, pursuant to his 1989

death sentence originating from Hillsborough County, Florida. Long v. State,

2

610 So. 2d 1268 (Fla. 1992), cert denied, Long v. Florida, 510 U.S. 832

(1993). He is a citizen of the United States and a resident of the State of

Florida. Governor Ron DeSantis informed Mr. Long that his clemency was

denied, and on April 23, 2019, signed a warrant for Mr. Long’s execution,

setting it for May 23, 2019, at 6:00 p.m. at , in Raiford,

Florida.

DEFENDANTS

4. Defendant Ron DeSantis is the Governor of Florida and the head of the

Clemency Board. He is sued in his official capacity.

5. Defendant Jimmy Patronis is the Chief Financial Officer of Florida and thus a

member of the Clemency Board. He is sued in his official capacity.

6. Defendant Ashley Moody is the Attorney General of Florida and thus a

member of the Clemency Board. She is sued in her official capacity.

7. Defendant Nikki Fried is the Commissioner of Agriculture of Florida and thus

a member of the Clemency Board. She is sued in her official capacity.

8. Defendant Julia McCall is the Coordinator of the Office of Executive

Clemency. She is responsible, in part, for contracting with state clemency

counsel. She is sued in her official capacity.

9. Defendant Melinda Coonrod is the Chairman of the Florida Commission on

Offender Review, the agency that facilitates the clemency process on behalf

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of the Clemency Board, including the private contracting of clemency

counsel. She is sued in her official capacity.

10. Defendant Susan Michelle Whitworth (also known as S. Michelle Whitworth

and Michelle Whitworth) is the Commission Investigator Supervisor of the

Florida Commission on Offender Review. Ms. Whitworth is the primary

source of communication, and seemingly, decision-making for capital

clemency purposes, acting on behalf of the Florida Commission on Offender

Review and the Clemency Board. She is sued in her official capacity.

II. JURISDICTION AND VENUE

JURISDICTION

11. This action arises under federal statute and the United States Constitution,

and presents a federal question within this Court's jurisdiction under Article

III of the Constitution and 28 U.S.C. § 1331 and § 1343(a)(3). This action is

brought pursuant to 42 U.S.C. § 1983. This Court has the authority to grant

declaratory and injunctive relief pursuant to 28 U.S.C. § 2201(a), § 2202, and

Federal Rule of Civil Procedure 65.

VENUE

12. Pursuant to 28 U.S.C. § 1391(b), venue is appropriate in the Northern District

of Florida because the majority of defendants live and work in this District,

and the actions and decisions giving rise to this suit occurred in this District.

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III. STATEMENT OF FACTS1

13. This complaint concerns the clemency proceedings of Bobby Joe Long, a

death-sentenced individual in the State of Florida. Clemency has long been

regarded as the ultimate act of grace or mercy, and in the capital context, it is

the difference between life and death. Given the gravity of the clemency

process for Mr. Long and the tremendous deficiencies in his clemency

presentation—including the absence of many of the basic facts about his

life—a brief recitation of his life history is warranted prior to the specific facts

giving rise to the violations of his rights this action concerns.

A. Bobby Joe Long’s Life

14. Bobby Joe Long was born on October 14, 1953, in West Virginia, to Joe Long

and seventeen-year-old Luella Long. Joe was a violent man who drank heavily

in front of his young son, Mr. Long.

15. Before and after Mr. Long’s birth, his parents had a turbulent relationship.

They divorced twice after Mr. Long was born and remarried three times.

When his parents lived together, they fought constantly. Luella was frightened

of Joe.

1 In addition to providing this statement of facts, Mr. Long submits simultaneously with this complaint an appendix of relevant documents. Materials in this appendix will be cited to as “App. at [page].” 5

16. Joe sometimes grabbed Luella by the hair, almost pulling it out. He also

violently grabbed her breast and twisted it. Other times, Joe threatened Luella

with a pistol. The family lived in a tiny home then, and Mr. Long either

directly witnessed this violence or was close by in another room and heard his

mother’s cries. Sometimes Joe directed his violence toward Mr. Long and

threw things at his son.

17. When Mr. Long was eight months old, Luella Long divorced Joe Long for

the first time. She started dating other men and went out around town with

them. Joe started driving up next to Luella and her dates as they were walking

down the street. He would force Luella into his car. Then he would drive

Luella out to the countryside or a lumberyard and her.

18. One time when Luella arrived home, she discovered Joe had climbed through

the window and was waiting for her in her room with a knife. He tried to rape

her at knifepoint. Though he was unsuccessful, he held her prisoner the entire

night. Luella told her mother about the abuse, and her mother twice called the

police on Luella’s behalf. There were “at least six episodes where [Joe] had

either abducted [Luella], taken her out to the fields, beaten her up . . . , or

waited for her with a weapon.”

19. In part due to Joe Long’s violent stalking, Luella Long and Mr. Long moved

in with Luella’s aunt in another West Virginia town. Joe became less involved

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in Mr. Long’s life. Joe and Luella remarried later in Mr. Long’s life, but, when

Mr. Long was growing up, his father lived with him for two to four years total.

About two years after she left Joe, Luella moved with her son to ,

Florida.

20. Luella moved around frequently, which resulted in Mr. Long changing

schools every year. Sometimes he transferred schools two or three times in a

single school year. This affected Mr. Long’s ability to learn. Despite having

high average intelligence, Mr. Long failed first grade. He had problems

paying attention and settling down.

21. Mr. Long suffered numerous pediatric head injuries. Mr. Long’s first head

injury was when he was about 4 or 5 and fell off a swing. He was knocked

unconscious for several minutes and awakened to find a stick stuck in his left

eyelid. He still bears a scar there. Around the same age, he was hit by the side

of the door and busted his head open. Soon after that, he fell off his bike. A

few years later, he fell down the stairs. On that occasion, he was unconscious

for 15 or 20 minutes, and his mother had to call a rescue squad.

22. When Mr. Long was seven years old, he was hit by a car. The car hit him in

the head, tearing off parts of his face and busting his jaws. Mr. Long suffered

extensive damage to his mouth, and some of his teeth smashed into his gums.

Mr. Long was hospitalized for a week. He was left with a broken jaw.

7

23. A year later, Mr. Long fell down another set of stairs, this time at his

grandmother’s apartment building. There was a big flight of stairs in the

building, and Mr. Long fell all the way to the bottom. He was knocked out for

several minutes again, but this time his family did not seek medical attention.

24. When Mr. Long was 11 or 12, he was riding a horse at a cousin’s house when

the horse threw him off. He hit the front of his head and was unconscious for

several minutes. He vomited when he regained consciousness. Mr. Long later

fell off a fence and injured the left side of his head, requiring stitches. When

he was 17, a girl swung her handbag around and hit him in the head.

25. By age 13, Mr. Long started performing poorly in school. He also started

dating Cynthia Bartlett, a classmate who would later become his wife. Other

than one yearlong break-up, they stayed together until their eventual divorce

later in Mr. Long’s life.

26. Mr. Long’s difficulties at school continued. Ms. Bartlett remembers that Mr.

Long had average grades and often got bored in school.

27. At age 15, Mr. Long dropped out of school. One of his mom’s husbands had

taught Mr. Long how to do electrical work, and Mr. Long started working full

time as an electrician. He did electrician work until he enlisted in the military.

28. Luella Long paid so little attention to her son that she did not notice when he

dropped out of school. The school tried contacting her, but she never received

8

the messages. After two months of Mr. Long’s absence from school, the

school finally called Luella’s neighbor, who told Luella to call the school.

29. Mr. Long and Ms. Bartlett married in 1974. By then, Mr. Long joined the

U.S. Army. Ms. Bartlett and Mr. Long moved to Plantation, Florida, where

they bought a bigger house to make room for their first child. By all

appearances, Mr. Long had overcome his troubled childhood and had the

potential for a more stable life going forward.

30. In March 1974, two and a half months into the marriage and while on active

duty with the Army, Mr. Long got into a devastating motorcycle collision in

Miami. Mr. Long was riding his motorcycle when he was hit by a car and

thrown over the car head first. Mr. Long fractured part of his skull. He almost

lost his left foot, and his ankle bone came out of the skin. This wreck

undermined all of the progress Mr. Long had made—including building a

family and healthy home life and embarking on military service.

31. As soon as Ms. Bartlett heard about the accident, she rushed to the hospital.

Mr. Long was already in surgery. Mr. Long had been wearing a helmet during

the collision, and Ms. Bartlett saw the condition of the helmet:

The helmet was cracked by one — I believe it was, the left temple area around to the back mid-section of the helmet, and the metal framing around the helmet was torn off, and there was [sic] road burns in the top part of the helmet.

9

32. Following the accident, Mr. Long realized the wreck was “when his life was

starting increasingly to fall apart.” He continued to have doctor visits and

operations, and it took him almost a year to reach any semblance of recovery.

He was physically disabled for a significant period of time and felt a sense of

powerlessness and lack of control. He had to stay at home. Just after the birth

of his son, the military medically discharged him, under honorable conditions

due to severe brain injury and a leg injury. Since Mr. Long was no longer

working, he and his wife could not afford the new home they had just

purchased. The house was repossessed.

33. The effect of the accident on Mr. Long was immediately apparent to his loved

ones, as his behavior markedly changed. One of the most noticeable changes

to Ms. Bartlett was that Mr. Long’s sexual appetite increased dramatically.

34. Mr. Long’s mood was unpredictable. His temper changed and became

explosive. He was no longer able to control it and would get upset about little

things. His family could not predict his moods, and he started throwing temper

tantrums. Mr. Long, who had never before been violent with his mother or

wife, had physical incidents with both of them.

35. Mr. Long also suffered memory loss after the accident. He developed memory

problems and forgot significant moments in his life, including his mother’s

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marriage to the electrician. Mr. Long had attended the wedding, but did not

remember it. He no longer remembered the year his daughter was born.

36. Mr. Long had bad headaches after the accident. They occurred almost daily.

They were so bad that it was visibly apparent when he would have them. He

would go through multiple bottles of Tylenol a week.

37. After the accident, Mr. Long had a low tolerance for noise. He would not let

his children play with toys that made noise. He quickly got irritated when the

children cried, and he had to keep the volume on the TV and radio very low.

He grew more reclusive and stayed in his room for several days at a time.

38. Mr. Long also started having problems with his balance. He would stumble

when walking. It looked like he was drunk, even though he was not drinking.

He sometimes had insomnia and stayed up all night.

39. Six and a half years after the accident, in the early 1980s, Mr. Long still had

not returned to his pre-collision ways; he still had not returned to normal. He

continued suffering constant headaches and severe mood changes. It was too

much for his marriage, and he and Ms. Bartlett divorced. Subsequent to these

events, Mr. Long’s criminal behavior, which ultimately lead to him being

sentenced to death, began.

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B. Procedural History of Mr. Long’s Underlying Death Sentence

40. Mr. Long was convicted of in Hillsborough County, Florida in 1985.

Following a resentencing hearing, Mr. Long received a death sentence in

1989. The state court imposed the death sentence, which was affirmed by the

Florida Supreme Court on direct appeal. Long v. State, 610 So. 2d 1268 (Fla.

1992), cert denied, Long v. Florida, 510 U.S. 832 (1993).

41. Following the denial of his direct appeal, Mr. Long pursued and was denied

state postconviction relief. Long v. State, 118 So. 3d 798 (Fla. 2013). In 2013,

Mr. Long filed a petition for federal habeas corpus relief under 28 U.S.C. §

2254 in the District Court for the Middle District of Florida. Long v. Sec’y,

Fla. Dep’t of Corr., No. 8:13-cv-02069-JDW, ECF No. 1 (M.D. Fla.). The

District Court denied the petition, id. at ECF No. 21, and the Eleventh Circuit

denied Petitioner a certificate of appealability. Long v. Sec’y, Fla. Dep’t of

Corr., No. 16-16259 (11th Cir.).

42. In the aforementioned appeals and postconviction proceedings, Mr. Long

raised legal challenges to events from his trial and resentencing proceedings

that were denied. But subsequent decisions by the United States Supreme

Court, in other cases, showed that the issues Mr. Long had raised did in fact

run afoul of the constitution. Because of procedural rules, however, Mr. Long

was repeatedly precluded from obtaining relief on these issues. 12

43. For example, at his resentencing and on direct appeal, Mr. Long

unsuccessfully raised challenges under Caldwell v. Mississippi, 472 U.S. 320

(1985), contending that the jury’s sense of responsibility was

unconstitutionally diminished by repeated jury instructions, prosecutorial

argument, and multiple State and court comments that the jury’s decision

would only be a “recommendation” and “advisory.” Long v. State, 610 So. 2d

1268, 1275 (Fla. 1992). Now, of course, there is no question that Mr. Long’s

death sentence was obtained in violation of the Sixth Amendment. Hurst v.

Florida, 136 S. Ct. 616 (2016) (“We hold [Florida’s capital] sentencing

scheme unconstitutional. The Sixth Amendment requires a jury, not a judge,

to find each fact necessary to impose a sentence of death. A jury’s mere

recommendation is not enough.”). In Mr. Long’s case, the “advisory” jury

recommended the death penalty, but did not make findings of fact or otherwise

specify the factual basis for its recommendation. Long, 610 So. 2d at 1272.

The trial judge, not the jury, then made the findings of fact required to impose

a death sentence under Florida law. See Fla. Stat. § 921.141(3) (1992),

invalidated by Hurst, 136 S. Ct. at 624. Despite the unambiguous Sixth

Amendment violation at the foundation of his death sentence, Mr. Long has

been cut out of Hurst relief. The Florida Supreme Court has decided that Hurst

applies retroactively on collateral review, but only to prisoners whose death

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sentences became final on direct appeal after the decision of Ring v. Arizona,

536 U.S. 584 (2002). Hitchcock v. State, 226 So. 3d 216, 217 (Fla. 2017). The

Florida courts specifically declined to vacate Mr. Long’s sentence under

Hurst. Long v. State, 235 So. 3d 293 (Fla. 2018), cert denied, 139 S. Ct. 162

(Oct. 1, 2018).

44. Similarly, at his resentencing and on direct appeal, Mr. Long unsuccessfully

raised Sixth and Eighth Amendment challenges regarding the admission of

hearsay evidence. Two detectives testified to details provided by victims of

two prior for which Mr. Long had been convicted; neither victim

testified, and neither was determined to be unavailable. Long, 610 So. 2d at

1274-75 (holding that the hearsay was admissible). Several years after the

Florida Supreme Court affirmed Mr. Long’s death sentence, the United States

Supreme Court held that the admission of hearsay evidence violates the

Confrontation Clause. Crawford v. Washington, 541 U.S. 36 (2004). The

Supreme Court spoke on this issue too late for Mr. Long to benefit from

Crawford. Although Mr. Long was denied his constitutional right to confront

the actual witnesses against him, he was sentenced to death based on the

statements of those witnesses in 1989.

45.The Governor of Florida—through Florida Commission on Offender Review

and pursuant to Florida’s executive clemency scheme—initiated clemency

14

proceedings for Mr. Long in March 2018. Mr. Long was notified that

clemency was denied with the signing of his death warrant on April 23, 2019.

C. Professional Guidelines and Standards For Capital Clemency Counsel

46. In 2003, the American Bar Association (ABA) promulgated the Guidelines

for the Appointment & Performance of Defense Counsel in Death Penalty

Cases,2 which have since been recognized as a guide on reasonable

representation for death-sentenced individuals. See, e.g., Wiggins v. Smith,

539 U.S. 510, 523 (2003) (“[W]e have long referred [to the ABA standards]

as guides to determining what is reasonable.”). Guideline 10.15.2 specifically

notes that attorneys representing individuals in capital clemency proceedings

should undertake, minimally, the following duties:

A. Clemency counsel should be familiar with the procedures for and permissible substantive content of a request for clemency. B. Clemency counsel should conduct an investigation in accordance with Guideline 10.7. C. Clemency counsel should ensure that clemency is sought in as timely and persuasive a manner as possible, tailoring the presentation to the characteristics of the particular client, case and jurisdiction. D. Clemency counsel should ensure that the process governing consideration of the client’s application is substantively and procedurally just, and, if it is not, should seek appropriate redress.

2 Available at: https://www.americanbar.org/groups/committees/death_penalty_representation/res ources/aba_guidelines/2003-guidelines/ (last visited May 8, 2019). 15

See Guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases 10.15.2 (Duties of Clemency Counsel), p. 176 (2003).

47. Under the ABA’s clemency counsel guideline, 10.15.2(B), clemency counsel

is directed to conduct an investigation pursuant to Guideline 10.7. Guideline

10.7 states:

A. Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty. 1. The investigation regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented. 2. The investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented. B. 1. Counsel at every stage have an obligation to conduct a full examination of the defense provided to the client at all prior phases of the case. This obligation includes at minimum interviewing prior counsel and members of the defense team and examining the files of prior counsel. 2. Counsel at every stage have an obligation to satisfy themselves independently that the official record of the proceedings is complete and to supplement it as appropriate.

Guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases 10.7 (Investigation), p. 103 (2003).

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48. Additionally, in the commentary to the guideline on the Duties of Clemency

Counsel, the ABA specifically notes, “[a]s Subsection B emphasizes, further

investigation is critical at this phase.” Commentary, Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases

10.15.2, p. 177 (2003). Further, the commentary emphasizes discovering and

utilizing “personal characteristics of the condemned, such as youth, mental

illness, spousal abuse, or cultural barriers” to convince clemency decision-

makers that clemency is appropriate in a particular case. Id.

49. Apart from the ABA Guidelines, other professional guidance exists for the

representation of capital clients in the clemency process. In 2018, the ABA’s

Capital Clemency Resource Initiative (CCRI) released a guide entitled

Representing Death-Sentenced Prisoners in Clemency, in which there is

specific guidance for clemency attorneys who did not serve as prior counsel,

which states,

As a newly appointed attorney in a capital clemency case, you will need to do considerable catching up on your client’s life history, details of the crime, and the procedural history of the case before you will feel comfortable deciding which aspects are most important to present in clemency . . . it is vital to familiarize yourself with your client’s case record and the unique traits of the jurisdiction in which you are operating as soon as possible[.]

Representing Death-Sentenced Prisoners in Clemency, p. 32 (2018). This

guide also directs clemency attorneys to the importance of investigation

17

pursuant to Guideline 10.7, see p. 35, and for clemency attorneys to carefully

consider such investigative steps like Defense-Initiated Victim Outreach

(DIVO), see p. 69, speaking with jurors where applicable, see p. 78,

interviewing a client’s family, friends, teachers or former classmates,

religious leaders or other prisoners they have been incarcerated with, see 93-

94. It also provides specific guidance on clemency presentations and petitions

involving specific legal or forensic issues in a client’s case, and for client-

specific characteristics like mental illness or intellectual disability, see p. 125-

130.

50. With respect to developing clemency presentations for clients with mental

illness, this guide says specifically: “Because the scientific, medical

understanding of many mental illnesses and disabilities is changing rapidly—

and because many clients arrive at clemency with less-than-perfect prior

representation—you also should not assume that the relationship between

your client’s mental illness or disability and the crime has been effectively

explored. . . . . In representing a client with mental illness or disability at

clemency, remember that this phase of the case is your last opportunity to

present the most comprehensive, up-to-date, and holistic picture of your client

and to explore the impact that mental illness or other disability has had on his

life.” See id. at p. 127 (emphasis added).

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51. The CCRI specifically advises Florida clemency counsel to consider whether

their client was sentenced under a jury-recommendation and judge-sentencing

scheme. “An argument during clemency that your client was sentenced under

a statute that has since been found unconstitutional, or under circumstances

that would not have resulted in a death sentence today, may be extremely

compelling and may . . . go directly to questions of fairness, arbitrariness, and

proportionality in the imposition of a death sentence have often resonated with

decision makers in considering clemency.” See id. at p. 86

52. In addition, CCRI also provides on its website a wealth of information and

professional guidance for attorneys on meaningfully representing death-

sentenced individuals in clemency proceedings.3

D. Rules and Statutes Governing Clemency Proceedings For Death-Sentenced Individuals in Florida

53. Clemency in Florida is derived both from the Constitution of the State of

Florida and state statute. See Fla. Const. Art. IV, sec. 8(a) (“Except in cases

of treason and in cases where impeachment results in , the governor

may . . . with the approval of two members of the cabinet . . . commute

punishment . . . .”); Fla. Stat. 940.01 (same). All clemency in governed by the

3 See https://www.capitalclemency.org/ (last visited May 3, 2019). 19

Rules of Executive Clemency,4 which was created by the Clemency Board,

and was last amended in 2011. The Clemency Board is comprised of the

Florida Governor and members of the Governor’s Cabinet. Presently, the

Clemency Board is comprised of Florida Governor Ron DeSantis, Chief

Financial Officer Jimmy Patronis, Attorney General Ashley Moody, and

Commissioner of Agriculture Nikki Fried.

54. Within the Rules of Executive Clemency, there are 19 rules. However, only

a select few apply to clemency for capital inmates. See Rule 15, Rules of

Executive Clemency (2011) (“This Rule applies to all cases where the

sentence of death has been imposed. The Rules of Executive Clemency,

except Rules 1, 2, 3, 4, 15 and 16 are inapplicable to cases where inmates are

sentenced to death.”). The rules that apply to capital clemency include Rule 1

(“Statement of Policy”), Rule 2 (“Administration”), Rule 3 (“ and

Probation”), Rule 4 (“Clemency”), Rule 15 (“Commutation of Death

Sentences”) and Rule 16 (“Confidentiality of Records and Documents”).

55. Rule 15 is the operative rule for the mechanics of clemency for capital inmates

in Florida. Rule 15 provides that in all cases in which death has been imposed,

the Florida Parole Commission (now known as the Florida Commission on

4 Available at: https://www.flgov.com/wp-content/uploads/2011/03/2011- Amended-Rules-for-Executive-Clemency.final_.3-9.pdf (last visited on April 30, 2019). 20

Offender Review (FCOR)), conducts an “investigation into all factors relevant

to the issue of clemency and provide[s] a final report to the Clemency Board.”

See Rule 15(B). This investigation begins “at such time as designated by the

Governor” or if there has been “no such designation . . . immediately after the

defendant’s initial petition for writ of habeas corpus, filed in the appropriate

federal district court, has been denied by the 11th Circuit Court of Appeals . .

. .” Rule 15(C).

56. The rules provide for FCOR’s investigation:

The investigation shall include, but not be limited to, (1) an interview with the inmate, who may have clemency counsel present, by the Commission; (2) an interview, if possible, with the trial attorneys who prosecuted the case and defended the inmate; (3) an interview, if possible, with the presiding judge and; (4) an interview, if possible, with the defendant’s family.

Rule 15(B). When a clemency investigation is initiated, FCOR also provides

notice to the Office of the Attorney General’s Bureau of Advocacy and

Grants, which in turn solicits “written comments from the victims of record.”

Rule 15(B).

57. Rule 15 additionally provides that “[c]ases investigated under previous

administrations may be reinvestigated at the Governor’s discretion.” Rule

15(C).

58. Under Rule 15, after an investigation is “concluded,” FCOR prepares a “final

report on their findings and conclusions,” which must include: “(1) any 21

statements made by the defendant, and defendant’s counsel, during the course

of the investigation; (2) a detailed summary from each Commissioner who

interviewed the inmate; and (3) information gathered during the course of the

investigation.” Rule 15(D). This report is then sent to “all members of the

Clemency Board within 120 days of the commencement of the investigation,

unless the time period is extended by the Governor.” Rule 15(D).

59. While a capital inmate is given the opportunity for a clemency “interview”

before FCOR, see Rule 15(B), the inmate is not entitled to a clemency

“hearing” before the Clemency Board. Rule 15(E). A clemency hearing is

only set if “any member of the Clemency Board requests a hearing within 20

days of the transmittal of the final report to the Clemency Board,” Rule 15(E),

or if the Governor sets such a hearing, Rule 15(F). A capital clemency inmate,

upon request, is entitled to a copy of the transcript of the clemency interview.

Rule 15(G).

60. Apart from the transcript of the clemency interview, a capital inmate is not

entitled to see any other materials generated in the clemency process,

including statements given by their former attorney at trial, their trial

prosecutor, their trial judge, their own family members, or the victim’s family

members, which are gathered as part of the clemency investigation conducted

22

by FCOR (see Rule 15(B)). Likewise, capital inmates are not entitled to see

the final report generated by FCOR and presented to the Clemency Board.

61. By statute, the Clemency Board “may appoint private counsel to represent a

person sentenced to death for relief by executive clemency . . . .” Fla. Stat. §

940.031(1). This statute went into effect on July 1, 2014. The statute provides

that private counsel retained by the Clemency Board can be compensated at

an amount “not to exceed $10,000, for attorney fees and costs incurred in

representing the person for relief by executive clemency . . . .” Fla. Stat. §

940.031(2). This compensation is “paid out of the General Revenue Fund

from funds budgeted to [FCOR].” Fla. Stat. § 940.031(2). The statute states

it “does not create a statutory right to counsel” in clemency proceedings. Fla.

Stat. § 940.031(3).

62. While § 940.031, Fla. Stat. provides for a method of retaining and

compensating attorneys who represent individuals in capital clemency

proceedings, it does not prescribe any qualifications for such attorneys.

Indeed, pursuant to a public records request under Florida law, on April 25,

2018, an official solicitation for capital clemency counsel was obtained from

FCOR, in addition to a “Clemency Counsel Appointment” application for

capital clemency. See App. at 22-27. The application, which is less than two

23 pages in length, asks only for biographical information and for the applicant to check all that apply from the following list:

 I am a member in good standing with the Florida Bar.  I have read the qualifications herein and agree to these qualifications.  I am familiar with the fees, costs and expense provisions set by law, including the fee limitations prescribed in § 940.031, Fla. Stat.  I will not solicit compensation from the inmate I am appointed to represent.  I will notify the Clemency Coordinator of any formal complaint filed by the Florida Bar against me, any non- confidential agreements entered into between myself and the Florida Bar, and any claim of ineffective assistance of counsel that has been set for a hearing before a judge or magistrate.  I agree to be readily accessible to the inmate and to meet the inmate in person, prepare for and attend the Clemency interview before the Parole Commission at death row, file a clemency petition on behalf of the inmate, and attend a clemency hearing before the Governor and Cabinet, if scheduled.  I am familiar with the Rules of Executive Clemency, including Rule 15 as it related to Commutation of Death Sentences, and I will adhere to the Rules.  I will cooperate and abide by the contract entered into between the Florida Parole Commission and me for performance of services under this agreement.  I agree to continue representing the inmate until my services are no longer required by the Board of Executive Clemency.

App. at 26-27. No other qualifications exist for capital clemency representation, either by statute in Florida or by practice in the contracting conducted by the Office of Executive Clemency or FCOR.

24

63. To qualify as capital clemency counsel in Florida, attorneys are neither

required to be qualified under Fla. Stat. § 27.710, which provides for the

“certification of minimum requirements” of attorneys permitted to represent

death-sentenced individuals in postconviction and collateral proceedings

(along with Fla. Stat. § 27.704(2)), nor are they required to be qualified under

the Florida Rules of Criminal Procedure, Rule 3.112(k), which describes the

qualifications for lead counsel in postconviction proceedings for individuals

facing the death penalty. In fact, Florida law actually prohibits such qualified

counsel who are actively representing a death-sentenced client in

postconviction to participate in capital clemency. See Fla. Stat. § 27.711(11)

(“An attorney appointed under s. 27.710 to represent a capital defendant may

not represent the capital defendant during a retrial, a resentencing proceeding,

a proceeding commenced under chapter 940 [Executive Clemency], a

proceeding challenging a conviction or sentence other than the conviction and

sentence of death for which the appointment was made, or any civil litigation

other than habeas corpus proceedings.”). Indeed, no qualifications exist for

attorneys permitted to represent individuals in capital clemency that require

them to have any knowledge of criminal law or the law surrounding the death

penalty. Further, they are not required to complete any training or continuing

legal education, and they need not have ever represented any client in a civil

25

or criminal matter before undertaking the representation of a death-sentenced

individual.

64. While clemency is an executive function in Florida, the Florida legislature

has statutorily prescribed that an individual’s death sentence cannot be carried

out without the undertaking of the “clemency process.” Specifically, although

the legislature has empowered the Governor to initiate, with the signing of a

warrant, the execution of a death-sentenced individual, the Governor is only

permitted to issue such a warrant if “the executive clemency process has

concluded . . . .” See Fla. Stat. § 922.052(b), (c).

E. Mr. Long’s Clemency Proceeding

65. On approximately March 8, 2018, S. Michelle Whitworth, on behalf of

FCOR, called attorney William McClellan, and inquired whether he would be

willing to be retained by FCOR to represent Bobby Joe Long in clemency

proceedings. See App. at 2. Mr. McClellan is a private practitioner. He is not

qualified to represent death-sentenced individuals in postconviction

proceedings pursuant to the criteria prescribed by Florida law. App. at 2.

66. On March 13, 2018, Julia McCall, using her official email address

([email protected]), sent Mr. McClellan a contract to be retained to

represent Mr. Long in clemency proceedings. App. at 2. Mr. McClellan signed

this contract for Mr. Long’s clemency representation before he met with Mr.

26

Long and before he was given any materials on Mr. Long’s case or his related

medical and mental health issues. App. at 3. Prior to signing the contract, Mr.

McClellan knew nothing about Mr. Long, his case, or his present legal status

or representation, apart from what he could surmise on the internet. App. at 3-

4.

67. This contract required that Mr. McClellan agree to waive any compensation

in excess of the $10,000 provided by Fla. Stat. § 940.031. See App. at 15.

Payment of the $10,000, under the terms of the contract, were to be entitled

to Mr. McClellan upon his performance of the only three requirements of

clemency representation in Florida: “A statement advising of the date and

location of the in-person meeting with the client . . . $2,000; A statement

advising that Attorney/Legal Entity personally attended the clemency

interview and provided legal representation to the Client . . . $5,000; [and] A

written statement, brief or memorandum . . . $3,000.” App. at 13. Nothing in

the contract required or directed Mr. McClellan to know, comply, or be bound

by professional standards in clemency representation, such as those

promulgated by the ABA.

68. On March 22, 2018, Mr. McClellan was sent a copy of the fully executed

contract for Mr. Long’s clemency representation via email. App. at 2.

27

69. Mr. Long was first notified by a letter, dated March 13, 2018, from the FCOR

that clemency proceedings had been initiated against him. In that same letter,

he was informed that his clemency counsel would be Mr. McClellan. Mr.

Long was never informed prior to this letter that clemency counsel was being

“appointed” or privately retained on his behalf.

70. Sometime after Mr. Long was notified of the clemency proceedings initiated

against him, and that clemency counsel was retained by FCOR for him, his

longtime postconviction and 18 U.S.C. § 3599 counsel, Robert Norgard,

learned of the initiation of clemency proceedings for Mr. Long. Mr. Norgard

was not informed of the initiation of clemency proceedings prior to the

appointment or private retention of attorney William McClellan. Mr. Norgard

has been appointed as counsel for Mr. Long in state court, pursuant to the Fla.

Stat. § 27.711 (as state “Registry Counsel”), and in federal court, pursuant to

18 U.S.C. § 3599. See Order, Long v. Sec’y, Fla. Dept. of Corr., No. 8:13-cv-

02069, ECF No. 9 (M.D. Fla. Oct. 8, 2013).

71. On June 1, 2018, Mr. Norgard filed a motion to appoint co-counsel, the

Capital Habeas Unit of the Federal Public Defender’s Office for the Northern

District of Florida (CHU-ND), to Mr. Long’s case. See Order, Long v. Sec’y,

Fla. Dept. of Corr., No. 8:13-cv-02069, ECF No. 26 (M.D. Fla. June 1, 2018).

In his motion, Mr. Norgard noted that Mr. Long was in the midst of clemency

28

proceedings, after which he would be eligible for a death warrant, and he

needed the CHU-ND’s assistance as a result. See id., ECF No. 26 at 1.

72. On June 21, 2018, United States District Judge for the Middle District of

Florida, Judge James Whittemore, granted Mr. Norgard’s motion to appoint

co-counsel, CHU-ND, pursuant to 18 U.S.C. § 3599. See Order, Long v. Sec’y,

Fla. Dept. of Corr., No. 8:13-cv-02069, ECF No. 28 (M.D. Fla. June 21,

2018). In his order, Judge Whittemore specifically noted, “Petitioner’s state

clemency proceedings will be held over the next few months, and if clemency

is not granted, Petitioner will become eligible for a death warrant.” Id., ECF

No. 28 at 1.

73. On August 17, 2018, Mr. Norgard submitted a letter to FCOR requesting the

following: (1) that Mr. Long be permitted to have an attorney or defense

mental health expert present during any mental health examination conducted

by the Clemency Board, (2) that Mr. Norgard receive a copy of any written

assessment following such evaluation, (3) that the clemency interview be

continued for sixty to ninety days to permit counsel to evaluate and obtain

further mental health information for the Clemency Board, and (4) that Mr.

Norgard be permitted to attend the clemency interview with clemency counsel

Mr. McClellan. These requests were made jointly by Mr. Norgard, Mr.

McClellan, and the CHU-ND. App. at 28-31.

29

74. On August 24, 2018, S. Michelle Whitworth, using her official FCOR email

address ([email protected]), emailed Mr. Norgard, Mr.

McClellan, and the CHU-ND (through then-Chief, attorney Billy Nolas),

stating that “[e]ach of the four request [sic] you made have been considered

and are denied.” In this same email, Ms. Whitworth stated: “Mr. McClellan,

The Commission request [sic] that any future request regarding clemency

proceeding [sic] for inmate [Mr.] Long be submitted directly from yourself

[sic] as you have been retained to represent inmate [Mr.] Long in his clemency

proceeding.” App. at 32.

75. After Ms. Whitworth of FCOR communicated that the August 24, 2018, joint

requests were denied, Mr. McClellan consulted with Mr. Long concerning his

clemency interview. Mr. McClellan acknowledged:

After the denials from the August 24, 2018, letter were received, I consulted with Mr. Long about his clemency interview. Mr. Long informed me that he would not attend his clemency interview without the presence of Mr. Norgard and the CHU-ND. Mr. Long made this decision on the advice of Mr. Norgard.

App. at 5.

76. On August 27, 2018, Mr. McClellan submitted a letter to FCOR, reiterating

that he agreed with the requests of Mr. Norgard and CHU-ND as outlined in

the August 17, 2018 letter. App. at 5; 33.

30

77. On August 30, 2018, Mr. McClellan wrote a letter to FCOR, explaining that

he had consulted with Mr. Norgard, who had been “involved in representing

Mr. Long for a considerable period of time.” App. at 34. Mr. McClellan

informed FCOR and the Clemency Board that, in light of the denials on

August 24, 2018, received via email from Ms. Whitworth, concerning Mr.

Norgard and the CHU-ND’s inability to participate in the clemency interview,

Mr. Long would not be participating on the advice of his counsel, Mr.

Norgard. App. at 34. Mr. McClellan specifically noted: “Mr. Long was very

clear that he trusts Mr. Norgard and, deferring to Mr. Norgard’s legal advice,

Mr. Long will not attend the clemency interview, currently scheduled for

September 13, 2018.” App. at 34. Mr. McClellan further notified FCOR and

the Clemency Board in this same letter that he was not able to locate a legible

copy of Mr. Long’s resentencing proceedings that resulted in his death

sentence. Mr. McClellan specifically noted: “Without the transcripts, I am

hindered in my efforts to adequately represent Mr. Long in these clemency

proceedings.” App. at 34.

78. On September 4, 2018, Ms. Whitworth, using her official FCOR email

address ([email protected]), emailed Mr. McClellan and

noted that in reference to obtaining a copy of Mr. Long’s critical resentencing

transcript that “all record’s [sic] received or obtained by FCOR are

31

confidential.” App. at 35. Ms. Whitworth then directed Mr. McClellan to the

Archives of Florida, which maintains the Capital Collateral Postconviction

Records Repository (“Repository”), and indicated that there should be a copy

of Mr. Long’s resentencing transcript there. App. at 35.

79. On September 7, 2018, Mr. McClellan again submitted a letter to FCOR,

notifying them that the resentencing transcript at the Repository was illegible.

App. at 38. Mr. McClellan then made a second request that FCOR provide

him with the critical transcript, and noted, “I need the transcript to adequately

prepare Mr. Long’s clemency presentation.” App. at 38.

80. On September 11, 2018, Mr. McClellan submitted another letter to FCOR

and the Clemency Board. In this letter, Mr. McClellan again notified FCOR

that “the State Archives does not possess a legible copy of the transcripts from

Mr. Long’s resentencing proceedings,” and also noted that the CHU-ND

personally went to the State Archives and confirmed that the State Archives

did not have a legible copy. App. at 41. Mr. McClellan then requested that

Mr. Long’s clemency proceedings and September 13, 2018 interview, be

“postponed for 60 days,” stating: “My hope is that the court reporter can assist

me in obtaining a legible copy of the transcript in the next couple of months.”

App. at 42. Additionally, Mr. McClellan requested that FCOR formally

recognize and permit Mr. Norgard and the CHU-ND to serve as Mr. Long’s

32

clemency co-counsel and attend the clemency interview. App. at 42-43.

Specifically, Mr. McClellan told FCOR:

Mr. Long wants Mr. Norgard and the CHU to continue to represent him. I would benefit from their support and knowledge of the pertinent issues, and I believe FCOR would be in a better position to give meaningful consideration to Mr. Long’s request for clemency were all of his lawyers to be involved. As Mr. Long’s lawyers, neither Mr. Norgard nor the CHU can divorce themselves from the clemency process. They have a duty to continue to advocate for and protect Mr. Long. They also have extensive information about his case and life history and have a meaningful relationship with him. I have relied on Mr. Norgard and the CHU throughout my work on this case. I believe their continued involvement and participation in the clemency presentation later this week is necessary. Mr. Long also wants Mr. Norgard and the CHU to serve as co-counsel during these clemency proceedings.

App. at 42. Mr. McClellan specifically noted that 18 U.S.C. § 3599 authorized

clemency representation, and interpreting case law obligated the CHU-ND to

participate. App. at 43.

81. However, on September 12, 2018, Ms. Whitworth, using her official FCOR

email address ([email protected]), emailed Mr. McClellan,

and said that his request to postpone the clemency interview, which was

proceeding without Mr. McClellan having ever seen or read a complete and

legible copy of the resentencing proceeding that generated Mr. Long’s death

sentence, was “considered and is denied.” App. at 44. Likewise, Ms.

Whitworth noted in her email that Mr. McClellan’s request for Mr. Norgard

33

and the CHU-ND to be permitted to appear at the clemency interview was

“also denied.” App. at 44. No reasoning was given for either denial.

82. The following day, on September 13, 2018, FCOR and Mr. McClellan

appeared at Union Correctional Institution, where Mr. Long was incarcerated,

to conduct the clemency interview. Mr. Long declined to be present on the

advice of his counsel, Mr. Norgard. In attendance at the clemency interview,

apart from Mr. McClellan, were several representatives of the State: Melinda

Coonrod, Chairman, Commissioner, FCOR; David Wyant, Commissioner,

FCOR; S. Michelle Whitworth, Commission Investigator Supervisor, FCOR;

Wendy Schulte, Commission Investigator, FCOR; and Rana Wallace, General

Counsel, FCOR. App. at 46. At the start of the clemency interview, Ms.

Coonrod said: “[Mr. Long] has declined to appear for the purpose of making

a statement, thereby forfeiting this interview today as well as any further

interviews.” App. at 49 (emphasis added).

83. Mr. McClellan began his presentation by noting that he did not have “any

experience” making a clemency presentation to FCOR or the Clemency

Board, who typically ask questions of the client. App. at 48. Mr. McClellan

then made a presentation to FCOR that included a historical overview of how

the Florida clemency process had become more secretive over time, and an

overview of Mr. Long’s mental health and some of his brain injuries that are

34

discussed throughout Mr. Long’s court records. App. at 50-52. Mr. McClellan

noted that he asked the Board and FCOR to continue Mr. Long’s case for two

reasons: because he had gotten more than 30 boxes worth of information about

Mr. Long’s case from Mr. Norgard to review, and because the CHU-ND could

facilitate updated testing and understanding of Mr. Long’s traumatic brain

injuries and mental health, which Mr. McClellan had no funding to explore or

present meaningfully. App. at 52-53. FCOR’s purposeful exclusion of Mr.

Long’s § 3599 counsels—Mr. Norgard and the CHU-ND—hamstrung Mr.

McClellan and prompted his request that FCOR continue Mr. Long’s

clemency proceedings, presentation, and interview. The entire September 13,

2018, proceeding, according to the court reporter’s transcript, lasted twenty

minutes. App. at 46.

84. On October 26, 2018, Mr. Norgard and CHU-ND submitted a joint letter to

FCOR and the Clemency Board regarding Mr. Long’s clemency proceedings.

App. at 63. In this letter, Mr. Norgard and the CHU-ND objected to FCOR

and the Clemency Board barring them from meaningfully representing Mr.

Long in his clemency proceedings and noted Mr. Long’s constitutional and

federal statutory rights were violated by FCOR and Clemency Board’s actions

in doing so. App. at 63-64. Further, the letter noted that the clemency

interview and presentation was deficient because Mr. Long could not

35 participate without the presence of his counsel, Mr. Norgard and the CHU-

ND, and because his FCOR-retained clemency counsel, Mr. McClellan, was forced to make the presentation without a legible copy of the transcript of the proceeding that resulted in Mr. Long’s death sentence, and because a competent clemency presentation, which would include expert assistance concerning Mr. Long’s brain injuries and mental illness, had not been completed. App. at 66-67. Additionally, the letter noted that the CHU-ND had been working with psychiatrist Dr. Julie Kessel, who preliminarily determined

Mr. Long suffered from organic brain damage and likely brain deterioration.

App. at 66. The CHU-ND had also been working with Dr. Natalie Novick-

Brown on these issues as well, to create a meaningful presentation for clemency, the opportunity to do which was denied to the CHU-ND and Mr.

Norgard. App. at 66-67. The letter then implored FCOR and the Clemency

Board to hold a supplemental clemency proceeding that did not violate Mr.

Long’s rights and would allow his § 3599 counsel to represent him and have the necessary time to develop the mental health information needed to make a meaningful clemency presentation. App. at 67. The letter specifically noted:

“At this point, the information before the Clemency Board is but a sliver of critical, compelling information about Mr. Long . . . . We urge you all to

36

consider a supplemental clemency interview at which Mr. Norgard and the

CHU[-ND] may advocate on Mr. Long’s behalf.” App. at 67.

85. On November 2, 2018, Mr. McClellan submitted his Memorandum in

Support of Clemency on behalf of Mr. Long to FCOR. See App. at 68. Mr.

McClellan again informed the Clemency Board that without a continuance of

his clemency proceedings, Mr. Long’s clemency presentation was woefully

deficient. Mr. McClellan wrote to FCOR and the Clemency Board:

What harm would such a continuance in this case cause? There is no need for a rush to judgment. Mr. Long has been on death row since 1989. Does six months to a year make a difference? When I was appointed to this matter, I was initially unaware of the documents involved in this case. I was provided approximately 30 boxes of material from prior counsel [Mr. Norgard], discs of information from the Department of Corrections and my own research on Mr. Long and his history . . . . There was also the concern over the funding of such hiring and testing when no such funding is available through the Florida Commission on Offender Review, the Department of Corrections or the State of Florida. There is also a concern about an equal protection denial in a clemency proceeding as a result of the funding problems to do such testing and evaluations on a client such as Mr. Long where it is clear that such action should be taken. In Mr. Long’s case, there was an unusual circumstance, his trial and post-conviction counsel offered to help in all aspects of this clemency. Robert Norgard contacted my office and offered this help. . . . The due process and equal protection concerns were being addressed and resolutions were being developed, but the decision to not provide additional time thwarted those efforts.

App. at 70-73. To this letter, Mr. McClellan attached a portion of a transcript

from one of Mr. Long’s court proceedings, various academic and news articles 37

on traumatic brain injury and veterans, the CVs of the two experts he

contacted but could not retain, and all the correspondence between Mr.

McClellan, Mr. Norgard, CHU-ND, and FCOR. App. at 76-211. Mr.

McClellan did not hire an investigator or reinvestigate Mr. Long’s case in any

way. He did not retain or use the services of any experts in preparing Mr.

Long’s clemency presentation. He did not contact or attempt to contact

anyone who knew Mr. Long and could speak on his behalf for clemency

purposes, nor did he speak to or attempt to speak to anyone about Mr. Long’s

positive adjustment or changes since he had been incarcerated.

86. FCOR and the Clemency Board did not respond to Mr. Norgard and the CHU-

ND’s request for a new clemency proceeding that would comply with Mr.

Long’s federal statutory and constitutional rights. They likewise did not

respond to the concerns raised in Mr. McClellan’s November 2, 2018,

Memorandum in Support of Clemency.

87. On April 23, 2019, Mr. McClellan was notified by letter from Julia R. McCall,

Coordinator of the Office of Executive Clemency, that “the Governor” denied

clemency for Mr. Long.5 App. at 212.

5 It is unclear when the denial formally occurred, and thus whether Governor DeSantis, or his predecessor, former Governor Rick Scott, is responsible for the denial. Clemency proceedings were initiated for Mr. Long under former Governor Scott’s administration. 38

88. On April 23, 2019, the Governor of Florida, Ron DeSantis, signed a warrant

for Mr. Long’s execution, setting it for May 23, 2019. App. at 213-216.

IV. CAUSES OF ACTION6

FIRST CAUSE OF ACTION: Defendants violated Mr. Long’s federal statutory right to representation in state clemency proceedings under 18 U.S.C. § 3599.

89. Mr. Long hereby incorporates the facts in paragraphs 13 – 88, and 104 – 113

of this complaint.

90. This cause of action is supported by and incorporates by specific reference

Mr. Long’s Memorandum of Law, submitted simultaneously with this

complaint, and the arguments and authority set forth therein.

91. A federal statutory right exists where Congress speaks with a clear voice and

manifests an unambiguous intent. Gonzaga Univ. v. Doe, 536 U.S. 273

(2002).

92. 18 U.S.C. § 3599 creates a federal statutory right to counsel. See 18 U.S.C. §

3599(2) (“In any post conviction proceeding under section 2254 or 2255 of

title 28, United States Code, seeking to vacate or set aside a death sentence,

any defendant who is or becomes financially unable to obtain adequate

6 This complaint provides the factual background and basis for the causes of action herein. Simultaneously with this complaint, Mr. Long has filed a separate memorandum of law, outlining the legal support for his positions, in addition to a motion for a stay of execution, so that this Court may consider the same. 39

representation or investigative, expert, or other reasonably necessary services

shall be entitled to the appointment of one or more attorneys and the

furnishing of such other services . . . .”) (emphasis added).

93. Once § 3599 counsel is appointed, they are statutorily mandated to continue

in the representation of their death-sentenced client “[u]nless replaced by

similarly qualified counsel upon the attorney’s own motion or upon motion of

the defendant . . . .” 18 U.S.C. § 3599(e). Counsel’s representation under §

3599 includes:

[E]very subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.

18 U.S.C. § 3599(e) (emphasis added).

94. The United States Supreme Court has already spoken on the question of

whether § 3599 authorizes participation in state clemency proceedings: by its

plain text, it clearly does. Harbison v. Bell, 556 U.S. 180, 186-87 (2009).

95. Mr. Long first had counsel appointed under 18 U.S.C. § 3599 by the District

Court for the Middle District of Florida on October 8, 2013, when the Court

appointed Mr. Norgard to represent Mr. Long pursuant to that federal statute.

40

See supra ¶ 70; Order, Long v. Sec’y, Dept. of Corr., No. 8:13-cv-02069, ECF

No. 9 (M.D. Fla. Oct. 8, 2013). Mr. Long had additional counsel appointed

under 18 U.S.C. § 3599 on June 1, 2018, when the district court appointed the

CHU-ND. See supra ¶ 71; Order, Long v. Sec’y, Fla. Dept. of Corr., No. 8:13-

cv-02069, ECF No. 26 (M.D. Fla. June 1, 2018).

96. Thus, Mr. Long had § 3599 counsel for nearly five years7 prior to the initiation

of clemency proceedings against him, which began in March 2018. See supra

¶¶ 65-70. Mr. Long also had supplemental § 3599 counsel appointed months

before his scheduled clemency interview and thus prior to the submission of

any written materials to the Clemency Board. See Rule 15(D), Rules of

Executive Clemency (2011) (“After the investigation is concluded, the

Commissioners who personally interviewed the inmate shall prepare and issue

a final report on their findings and conclusions.”).

97. Defendants, specifically the Clemency Board, the Office of Executive

Clemency, and FCOR, actually or constructively knew of Mr. Long’s § 3599

counsel prior to their private retaining of clemency counsel, Mr. McClellan.

By their own rules, FCOR is charged with specifically tracking the cases of

7 While Mr. Norgard was only appointed under 18 U.S.C. § 3599 in 2013, when Mr. Long’s case proceeded into federal habeas, it is important to remember that his representation of Mr. Long began more than 20 years prior to his § 3599 appointment, under the appointment of Florida courts. 41

death-sentenced individuals, including in the appropriate federal district court

and the Eleventh Circuit Court of Appeals. See Rule 15(C), Rules of Executive

Clemency (2011) (“[FCOR’s] Research Specialist shall

routinely monitor and track death penalty cases beyond direct appeal for this

purpose.”). Defendants FCOR and/or the Office of Executive Clemency,

acting on behalf of the Clemency Board, retained private clemency counsel

without first notifying or consulting with Mr. Long, Mr. Norgard, or the CHU-

ND. See supra ¶¶ 65-70.

98. 18 U.S.C. § 3599, which entitled Mr. Long to Mr. Norgard and the CHU-

ND’s participation in state clemency proceedings, prescribes specifically that

Mr. Norgard and the CHU-ND not only can participate in such representation,

but must, until either Mr. Long or § 3599 counsel files a motion for

substitution. See 18 U.S.C. § 3599 (e); see also Harbison, 556 U.S. at 188.

No such substitution motion has ever been filed by Mr. Norgard, and one was

only filed to substitute the CHU-ND on November 26, 2018, long after Mr.

Long’s clemency interview and the submission of his final clemency

materials.8

8 At the time of Mr. Norgard’s motion and the CHU-ND’s appointment, the CHU-ND was the only Capital Habeas Unit in Florida, until October 2018 when the Federal Public Defender’s Office for the Middle District of Florida opened a CHU (CHU-MD). Following the opening of CHU-MD, CHU-ND requested that the district court permit the CHU-MD to substitute in as counsel, which the district court 42

99. Defendants, through the responses given by Ms. Whitworth of FCOR, denied

repeated requests for Mr. Long’s § 3599 counsel to participate, attend, and

correspond with FCOR and the Clemency Board on behalf of Mr. Long in Mr.

Long’s clemency proceedings. See supra ¶¶ 65-88.

100. As a result of Defendants’ actions, Mr. Long was denied his federal statutory

right to participation of his § 3599 counsel in his state clemency proceedings,

which are a statutorily required precursor to the carrying out of his death

sentence under Florida law. See Fla. Stat. § 922.052.

101. The refusal to allow § 3599 counsel’s representation had a grievous effect

on Mr. Long’s clemency proceedings. Mr. Long was forced to proceed in this

critical stage of his death-sentence litigation without counsel that had

represented him for more than 20 years and with alternate counsel that plainly

acknowledged he was provided voluminous materials he could not have

possibly reviewed in time for his clemency presentation. See supra ¶ 85

(Excerpt of Mr. McClellan’s Final Memorandum in Support of Clemency).

102. Further, Mr. Long’s clemency presentation was plainly deficient under

professional standards for such representation. See supra ¶ 85.

granted on December 3, 2018. See Order, Long v. Sec’y, Fla. Dept. of Corr., No. 8:13-cv-02069, ECF No. 32 (M.D. Fla. Dec. 3, 2018). The CHU-ND has continued to consult with and assist the CHU-MD in its representation of Mr. Long. 43

103. In this impossible position and on the advice of § 3599 counsel, Mr. Long

chose to forgo his right to participate in his clemency interview, specifically

because his § 3599 counsel—the only counsel who had the resources, ability,

case familiarity, and professional relationship with Mr. Long to provide

adequate, meaningful, individualized advocacy in clemency proceedings—

was denied the ability to represent Mr. Long. See supra ¶¶ 74, 81. No death-

sentenced individual, pleading for mercy for their life, should have to make

that choice. Moreover, FCOR, on behalf of the Clemency Board, through

Chairman Coonrod, has now announced that his decision to forgo this

interview bars him from any interview of presentation in the future. See supra

¶ 82. As discussed further in the second cause of action, the defendants’

actions that barred Mr. Long’s 3599 counsel from participating in his

clemency proceedings had a grievous effect, and resulted in a clemency

proceeding that was woefully deficient. See supra ¶¶ 104-113. Defendants’

collective actions frustrated the purpose of § 3599 and ultimately denied Mr.

Long vindication of his federal statutory right.

SECOND CAUSE OF ACTION: Defendants violated Mr. Long’s federal constitutional rights under the Sixth and Fourteenth Amendments to meaningful counsel during a critical stage of his legal proceeding under Florida state law: Florida’s executive clemency for death-sentenced individuals.

104. Mr. Long incorporates the facts in paragraphs 13 – 103 of this petition.

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105. This cause of action is supported by and incorporates by specific reference

Mr. Long’s Memorandum of Law, submitted simultaneously with this

complaint, and the arguments and authority set forth therein.

106. There is no recognized constitutional right to state clemency or a state

clemency hearing. Where a state does have a clemency process, because there

is no constitutional right to the proceeding, generally the Sixth Amendment

does not independently provide a right to counsel in such a process. This cause

of action does not disturb these rulings.

107. As discussed further in his memorandum of law, submitted simultaneously

with this complaint, Mr. Long asserts that executive clemency in Florida is a

‘critical stage’ of his proceedings, and that the Sixth Amendment attached to

this proceeding as a result.

108. The Defendants thwarted Mr. Long’s Sixth Amendment rights in this case

through their actions that directly resulted in Mr. Long not having meaningful

or effective counsel in his clemency proceedings. Mr. Long was provided

counsel, Mr. McClellan, who would not have been qualified to represent him

in any other postconviction proceeding in the state of Florida. See supra ¶ 65.

109. Mr. Long was also only allowed counsel who, under the contract executed

by FCOR and Mr. McClellan, was necessarily financially conflicted with

properly representing Mr. Long. See supra ¶¶ 67, 85. In particular, before ever

45 reviewing Mr. Long’s case or legal materials, to enter into a contract with

FCOR, Mr. McClellan had to agree to waive any compensation in excess of the $10,000 provided by Fla. Stat. § 940.031 and entitled to him under the terms of the contract upon his performance of the only three requirements of clemency representation in Florida: “A statement advising of the date and location of the in-person meeting with the client . . . $2,000; A statement advising that Attorney/Legal Entity personally attended the clemency interview and provided legal representation to the Client . . . $5,000; [and] A written statement, brief or memorandum . . . $3,000.” Supra ¶¶ 66, 67. Thus, because the terms of the contract prescribe that upon those three events, Mr.

Long’s clemency counsel was entitled to the entire statutory amount and because clemency counsel agreed to waive any further compensation before knowing anything about Mr. Long’s case, any expense or cost associated with meaningful clemency representation would have had to come from clemency counsel himself and out of his profits. Indeed, this understanding is supported by Mr. McClellan’s actual clemency presentation, in which he describes believing he has no funding for experts who would have been able to provide meaningful support to his clemency presentation. See supra ¶¶ 84, 85. This is further supported by Mr. McClellan’s own declaration, submitted as part of the appendix to this action, in which Mr. McClellan notes:

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After learning of Mr. Long’s mental health and head injuries issues, I contacted six doctors to see if they could assist me in explaining Mr. Long’s head injuries, particularly in light of the ongoing research concerning traumatic brain injuries. I was only able to speak with two of these doctors about Mr. Long without the issue of costs coming up. I did not retain any of these doctors, and neither doctor I spoke with testified at Mr. Long’s interview, as no funding was available.

App. at 7-8 (emphasis added). Mr. McClellan had an actual conflict with Mr.

Long, and Mr. Long was denied meaningful representation under the Sixth

Amendment for this critical stage of his legal proceedings.

110. Further, Defendants forced Mr. Long to proceed with his clemency even

after his counsel informed them that he required more time to prepare, supra

¶¶ 80, 83, and that he did not have a legible copy of the proceeding that

resulted in Mr. Long’s death sentence, supra ¶¶ 77, 79, 80. And as Mr.

McClellan told FCOR, he could not adequately prepare, as Mr. Long’s case

included a long and complicated history of traumatic brain injury and mental

illness and he could not review all the materials necessary in time, supra ¶¶

85, and that he did not have funding or time to make a meaningful mental

health presentation on Mr. Long’s behalf, supra ¶ 85.

111. Because of the actions of the defendants detailed above throughout Mr.

Long’s clemency process, Mr. Long had a woefully deficient clemency

presentation. His clemency attorney, Mr. McClellan, did no independent

investigation of his case or life history, and acknowledges this fact and the 47

resulting deficiencies in his clemency presentation himself. Further, many of

the basic facts of Mr. Long’s life, including his traumatic and troubled

childhood, his remarkable efforts to better himself and his young family’s life

before his horrific motorcycle accident that forever changed the course of his

life, and his self-improvement over the last 34 years since his 1985

incarceration on Florida’s death row, did not make it into his clemency

presentation. See, e.g., supra ¶¶ 14-39 (brief history of Mr. Long’s life).

112. Further, Mr. McClellan did not conduct an investigation, hire an

investigator, or interview anyone related to Mr. Long. See supra ¶ 85.

113. Defendants’ collective actions, as detailed above, denied Mr. Long his Sixth

Amendment right to meaningful counsel in his executive clemency

proceedings in the State of Florida.

V. REQUEST FOR RELIEF

114. Plaintiff, Mr. Long, requests that this Court declare that the Defendants

interfered with his right to be represented in clemency proceedings by his

existing counsel appointed under 18 U.S.C. § 3599.

115. Mr. Long further requests that this Court declare that the Defendants

violated his Sixth Amendment right to be represented by counsel during

clemency, which in Florida is an essential stage of capital proceedings.

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116. Mr. Long requests that this Court issue a preliminary injunction, prohibiting

the Defendants from executing him until this Court has had the opportunity to

fully consider this complaint.

117. Mr. Long requests that this Court grant a permanent injunction, barring the

Defendants from executing him until a clemency proceeding that complies

with federal law occurs.

VI. CERTIFICATION

118. I, Gregory Brown, attorney for Plaintiff in the above-entitled action, being

duly sworn, state that to the best of my knowledge and belief, the facts sets

forth in this Complaint are true and correct.

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Respectfully submitted, Bobby Joe Long By Counsel

/s/ Gregory Brown Gregory Brown, Fla. Bar No. 86437 Tennie Martin, Esq. Federal Public Defender’s Office 400 N. Tampa St., Suite 2700 Tampa, FL 33602 (813) 228-2715 [email protected] [email protected] Federal counsel for Mr. Long

Robert Norgard, Fla. Bar No. 322059 Norgard, Norgard, & Chastang 310 East Main Street Bartow, Florida 33830 (863) 354-0508 [email protected] Federal counsel for Mr. Long

CERTIFICATE OF SERVICE

I hereby certify that the forgoing complaint was electronically served on this date, May 8, 2019, to the defendants in this matter through the ECF system.

/s/ Gregory Brown Gregory Brown

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