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In the Supreme Court of Florida Case No. Sc08-564

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In the Supreme Court of Florida Case No. Sc08-564 IN THE SUPREME COURT OF FLORIDA CASE NO. SC08-564 MARTIN GROSSMAN Appellant, v. STATE OF FLORIDA Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT FOR PINELLAS COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT Ali A. Shakoor Florida Bar No. 669830 Assistant CCRC-Middle CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION 3801 Corporex Park Drive Suite 210 Tampa, FL 33619 (813) 740-3544 COUNSEL FOR APPELLANT TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................ i TABLE OF AUTHORITIES .................................................................................... ii STANDARD OF REVIEW ....................................................................................... 1 REQUEST FOR ORAL ARGUMENT ..................................................................... 1 PROCEDURAL HISTORY ....................................................................................... 1 SUMMARY OF THE ARGUMENTS ...................................................................... 3 ARGUMENT I NEWLY DISCOVERED EVIDENCE PROVES EXECUTION BY LETHAL INJECTION VIOLATES THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND THEREFOR MR. GROSSMAN=S SENTENCE OF DEATH IS UNCONSTITUTIONAL. ................................................................................ 4 ARGUMENT II THE FLORIDA STATUTE WHICH PROHIBITS MR. GROSSMAN=S COUNSEL FROM FILING A SECTION 1983 CLAIM ON HIS BEHALF DEPRIVES MR. GROSSMAN OF DUE PROCESS AND EQUAL PROTECTION IN VIOLATION OF THE FLORIDA AND FEDERAL CONSTITUTION .......................................................................................... 33 ARGUMENT III THE NEW ABA REPORT DEMONSTRATES THAT THE FLORIDA DEATH PENALTY SYSTEM IS INTRINSICALLY FLAWED AND UNCONSTITUTIONAL IN ITS CURRENT STATE ................................. 34 CONCLUSION AND RELIEF SOUGHT .............................................................. 43 CERTIFICATE OF SERVICE ................................................................................ 45 CERTIFICATE OF COMPLIANCE ....................................................................... 46 ii TABLE OF AUTHORITIES Allen v Butterworth, 756 So.2d 52 (Fla. 2000) ............................................................................... 39 Baze v. Rees, 128 S. Ct. 1520 (2008) ................................................................................... 17 Baze v. Rees, No. 07-5439, (April 16, 2008) ..................................................................... 30 Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir.2004) ................................................................. 4 Diaz v. State, 945 So.2d 1136 (2006) ................................................................... 18,18,33,35 Gregg v. Georgia, 428 U.S. 153, 173 (1976) ............................................................................. 4,5 Grossman v. Florida, 489 U.S. 1071 (1989) ...................................................................................... 1 Grossman v. State, 525 So.2d 833 (Fla. 1988) ............................................................................... 1 Grossman v. Dugger, 708 So.2d 249 (Fla. 1997) .............................................................................. 2 Hill v. State, 921 So.2d 579 (Fla.2006) .............................................................................. 19 Hill v. McDonough, 126 S.Ct. 2096 (2006) .................................................................................... 32 In re Kemmler, 136 U.S. 436, 447 (1890) ................................................................................ 5 Jones v. State, 709 So. 2d 512, 519-20, 525 (Fla. 1998) ....................................................... 40 LaGrand v. Lewis, 883 F.Supp. 469 (D.Ariz.1995), aff'd, 133 F.3d 1253 (9th Cir.1998) .................................................................................................................. 24 Medina v. State, 573 So.2d 293, 295 (Fla. 1990) .................................................................... 39 Morales v. Tilton, 465 F.Supp.2d 972, 973 (N.D.Cal.2006) ....................................................... 26 Allen v Butterworth, 756 So.2d 52 (Fla. 2000) ............................................................................... 38 Nelson v. State, iii 875 So.2d 579 (Fla. 2004) ............................................................................ 39 Ring v. Arizona, 536 U.S. 584 (2002).................................................................................... 2,41 Roper v. Simmons, 543 U.S. 551, 561 (2005) ................................................................................ 5 Rutherford v. State, 940 So.2d 1112, (Fla. 2006) ......................................................................... 35 Schawb v. State, 969 So.2d 318,( Fla. 2007) ............................................................................ 17 Sims v. State, 754 So.2d 657 (Fla.2000) ......................................................................... 18,24 State v. Carey, 273 Neb. 495, 730 N.W. 2d 563, (2007) ....................................................... 17 Stephens v. State, 748 So.2d 1028 (1999) ................................................................................... 1 Swafford v. State, 828 So. 2d 966, 977-78 (Fla. 2002) ............................................................... 41 Trop v. Dulles, 356 U.S. 86, 100-01 (1958) ............................................................................. 5 Wiggins v. Smith, 539 U.S. 510 (2003) ..................................................................................... 42 Other Authorities Darling v. State, --- So.2d ----, 2007 WL 2002499, 32 Fla. L. Weekly S486, (Fla. July 12, 2007) ........................................................................................................... 18 F.S. 922.105 ............................................................................................................. 17 LEXIS 4273 (U.S. May 19, 2008) ........................................................................... 17 Lightbourne v. McCollom, SC06-2391, 2007 WL 3196533 (Fla. Nov. 1, 2007) ..................................... 17 Schwab v. State, 2008 WL 190575, (Fla. Jan. 24, 2008) .......................................................... 31 Section 27.702, Florida Statute (2006) .................................................................... 33 28 U.S.C. section 1983 ............................................................................................ 33 F.S. Section 27.702 .................................................................................................. 33 F.S.922.11(2) …………………………………………………………………... 23 iv v STANDARD OF REVIEW Mr. Grossman=s appeal involves mixed issues of law and fact and are to be reviewed de novo by this Court. Stephens v. State, 748 So.2d 1028 (1999). REQUEST FOR ORAL ARGUMENT The resolution of the issues in this action will determine whether Mr. Grossman lives or dies. This Court has allowed oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be appropriate in this case, given the seriousness of the claims involved and the fact that a life is at stake. Mr. Grossman accordingly requests that this Court permit oral argument. I. PROCEDURAL HISTORY Mr. Grossman was convicted of First Degree Murder as charged after a trial held October 22-31, 1985. Following the penalty phase, a jury recommended the death penalty. On March 19, 1986, the trial judge entered his written order in support of the death sentence. Mr. Grossman appealed his conviction to the Florida Supreme Court which affirmed his conviction and sentence in Grossman v. State, 525 So.2d 833 (Fla. 1988). Included in Mr. Grossman=s direct appeal for review was the denial of the motion to sever. Mr. Grossman sought review in the United States Supreme Court which denied the petition for writ of certiorari. Grossman v. Florida, 1 489 U.S. 1071 (1989). A death warrant was signed on March 8, 1990. The execution was stayed by the Florida Supreme Court on April 5, 1990. Mr. Grossman filed his Rule 3.850 Motion to Vacate Judgment of Conviction and Sentence in state court. Included in the motion were claims of ineffective assistance of counsel in penalty phase and the failure of the state to disclose exculpatory, material evidence. After an evidentiary hearing on May 31 - June 2, 1994, the state trial court denied the Rule 3.850 motion on October 2, 1995. Mr. Grossman appealed the state court denial of the Rule 3.850 post-conviction relief motion to the Florida Supreme Court. The Florida Supreme Court affirmed the denial of Rule 3.850 relief. Grossman v. Dugger, 708 So.2d 249 (Fla. 1997). Mr. Grossman then timely filed a federal Petition for Writ of Habeas Corpus on September 18, 1998. That petition was stricken and returned to Mr. Grossman. The order striking the petition was modified and Mr. Grossman filed a petition in response to that modified order. Respondent filed a response to that petition on February 25, 2002, and Mr. Grossman filed a reply on March 21, 2002. On July 22, 2002, the case was administratively closed pending the outcome of two Florida cases that raised Ring v. Arizona, 536 U.S. 584 (2002) issues. On 2 August 14, 2003, Mr. Grossman filed a successive state habeas petition. The Florida Supreme Court rejected the petition in a one-sentence
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