Supreme Court of Florida

MONDAY, NOVEMBER 18, 2013

CASE NO.: SC13-2105

Lower Tribunal No(s).: 80-341-CFA ASKARI ABDULLAH MUHAMMAD F/K/A THOMAS KNIGHT Appellant(s) vs. STATE OF FLORIDA

Appellee(s)

Askari Abdullah Muhammad (f/k/a Thomas Knight), a prisoner under sentence of death and for whom a death warrant has been signed, appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. On October 21, 2013, the Governor signed a death warrant, and Muhammads execution was set for December 3, 2013. Muhammad sought postconviction relief in the circuit court, raising several claims, including a challenge to the September 9, 2013, protocol for lethal injection issued by the Florida Department of Corrections (DOC), which replaced the first drug in its three-drug protocol, pentobarbital, with another drug, midazolam hydrochloride. Among other things, Muhammad challenged the efficacy of midazolam hydrochloride as an anesthetic to induce unconsciousness. As we explained in Lightbourne v. McCollum, 969 So. 2d 326, 351 (Fla. 2007), [i]f the inmate is not fully unconscious when either pancuronium bromide or potassium chloride [the second and third drugs in the protocol] is injected, or when either of the chemicals begins to take effect, the prisoner will suffer pain. The Court has determined that Muhammads claim as to the use of midazolam hydrochloride as an anesthetic in the amount prescribed by Floridas protocol warrants an evidentiary hearing. We conclude based on the allegations in Muhammads 3.851 motion that he has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Floridas lethal injection protocol will subject him to a substantial risk of serious harm. Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion). In order to carefully consider this claim, we grant Muhammads motion for stay, in part. This matter is stayed until 5:00 p.m., Friday, December 27, 2013, absent further order of the Court. Accordingly, we hereby temporarily relinquish jurisdiction to the Circuit Court of the Eighth Judicial Circuit, Bradford County, until Tuesday, November 26, 2013, for the narrow purpose of holding an evidentiary hearing solely on Muhammads claim regarding the efficacy of midazolam hydrochloride as

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Page Two an anesthetic in the amount prescribed by Floridas protocol. This includes factual allegations raised in Muhammads 3.851 motion. We further direct the DOC to produce correspondence and documents it has received from the manufacturer of midazolam hydrochloride concerning the drugs use in executions or otherwise, including those addressing any safety and efficacy issues. In this relinquishment proceeding, Muhammad shall not be permitted to relitigate or raise any other claims. Upon the conclusion of the evidentiary hearing, the circuit court shall enter a written order as to Muhammads claim on the efficacy of midazolam hydrochloride as an anesthetic. The hearing shall be concluded and the order entered no later than 2:00 p.m., Tuesday, November 26, 2013. Upon issuance of the circuit courts order, the circuit court clerk shall immediately transmit a copy of the order to this Court. The circuit court clerk shall file a record of the entire relinquishment proceeding, including transcripts, with this Court no later than 2:00 p.m., Wednesday, December 3, 2013. The record resulting from the above relinquishment proceeding shall reflect supplemental record volume III, etc. and page numbering should start with page 51 and run consecutively. Per this Courts Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, the court reporters are directed to transmit a copy of any transcripts, in addition to paper copies, in an electronic format as required by the provisions of that order. An electronic version of the circuit courts order and the transcripts shall be submitted to the following e-mail address: warrant@flcourts.org. Thereafter, the parties are directed to file supplemental briefs limited solely to issues raised during the relinquishment proceedings regarding the efficacy of midazolam hydrochloride as an anesthetic in the amount prescribed by Floridas protocol. The supplement initial brief shall be filed no later than 2:00 p.m., Thursday, December 5, 2013. The supplemental initial brief shall be limited to 50 pages. The supplemental answer brief shall be filed no later than 2:00 p.m., Tuesday, December 10, 2013. The supplemental answer brief shall be limited to 50 pages. The supplemental reply brief shall be filed no later than 2:00 p.m., Thursday, December 12, 2013. The supplemental reply brief shall be limited to 25 pages. NO MOTION FOR ENLARGEMENT OF THE BRIEFS SHALL BE CONSIDERED. Filing of the above briefs to this Court and to opposing counsel

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Page Three

shall be via e-mail to the following address: warrant@flcourts.org. Oral argument, if necessary, shall be held on Wednesday, December 18, 2013, at 9:00 a.m. PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

CANADY, J., dissenting. I dissent from the majoritys decision to stay this case and remand for an evidentiary hearing on Muhammads claim that Floridas lethal injection protocol is unconstitutional. To state a claim under Article I, section 17 of the Florida Constitution or the Eighth Amendment to the United States Constitution, a defendant must show that the lethal injection protocol is sure or very likely to cause serious illness and needless suffering. Brewer v. Landrigan, 131 S. Ct. 445, 445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion)). Because Muhammad has not alleged a prima facie claim that Floridas protocol is sure or very likely to cause needless suffering, the postconviction court did not err in summarily denying that portion of his successive postconviction motion. In his motion and on appeal, Muhammad argues that because midazolam hydrochloride is not as fast acting and does not last as long as the barbiturates sodium thiopental and pentobarbitalrequired by prior protocols, the revision requiring the use of midazolam hydrochloride as the first drug of the three-drug protocol creates a risk that Muhammad will feel pain during his execution. Muhammad relies on newspaper articles that reported that recently executed inmate William Happ remained conscious for a longer period of time than inmates executed under prior protocols and that Happs head moved after he failed to respond to a consciousness check. Like the defendant in Valle v. State, 70 So. 3d 525 (Fla. 2011), Muhammad has presented, at most, conclusory and speculative allegations that do not address the safeguards built into the protocol that ensure that an inmate is unconscious before the execution proceeds. Under the current protocol, if the injections of midazolam hydrochloride do not promptly render Muhammad unconscious, the execution will be suspended and Muhammad will not be injected with the second and third drugs until he is unconscious. Muhammad does not allege that the Florida Department of Corrections revised these safeguards, nor does he allege any reason to suspect that the movement of Happs head was a voluntary expression of pain, rather than an involuntary movement made while unconscious.

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Page Four Muhammads allegations do not raise a material issue of fact that must be resolved in order to rule on his claim. I therefore dissent from the majoritys decision to stay the death warrant and remand for an evidentiary hearing on Muhammads claim that Floridas lethal injection protocol is unconstitutional. POLSTON, C.J., concurs. A True Copy Test:

tw Served: LINDA MCDERMOTT SANDRA SUE JAGGARD HON. RAY NORMAN, CLERK HON. PHYLLIS M. ROSIER, JUDGE ROBERT ELLIOTT FOLSOM