IN THE SUPREME COURT OF FLORIDA

NO. SC68706

_________________________________________________________

CLARENCE EDWARD HILL,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

__________________________________________________________

___________________________________________

INITIAL BRIEF

___________________________________________

D. Todd Doss

Florida Bar No. 0910384

725 Southeast Baya Drive

Suite 102

Lake City, FL 32025

(386) 755-9119

COUNSEL FOR APPELLANT

i

PRELIMINARY STATEMENT

This proceeding involves the appeal of an summarily denying

will be used to designate references to the record in this

appeal:

denial in 1990.

REQUEST FOR ORAL ARGUMENT

Mr. Hill is presently under a death warrant with an

execution scheduled for January 24, 2006 at 6:00 p.m. This Court

has not hesitated to allow oral argument in other warrant cases

in a similar procedural 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, as well

urges that the Court permit oral argument.

ii

TABLE OF CONTENTS

Preliminary Statement

........................................................... i

Request for Oral Argument

........................................................... i

Table of Contents

........................................................... ii

Table of Authorities

........................................................... ii

Statement of the Case and Facts

........................................................... 1

Summary of Argument

........................................................... 5

Standard of Review

........................................................... 9

Argument I

THE LOWER COURT ERRED IN DENYING AN EVIDENTIARY HEARING

STATE OF FLORIDA UTILIZES FOR LETHAL INJECTION VIOLATES

THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS

IT CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.

........................................................... 9

ARGUMENT II

MR. HILL IS EXEMPT FROM EXECUTION UNDER THE EIGHTH

AMENDMENT BECAUSE HE IS MENTALLY RETARDED AND/OR

SUFFERING FROM SUCH SEVERE BRAIN DAMAGE AND

OTHER MENTAL LIMITATIONS THAT DEATH COULD NEVER BE

AN APPROPRIATE PUNISHMENT.

........................................................... 19

iii

A. Brain Damaged and Intellectually Impaired

Persons Such as Mr. Hill Warrant the Same

Protections as the Mentally Retarded, Based

Upon the Logic of the Atkins Court.

................................................. 21

B. The Standard Used by the State of Florida for

Determining Mental Retardation is Arbitrary and Does

Not Comport With Equal Protection and Due Process

Guarantees.

................................................. 24

C. Mr. Hill Should Be Permitted to Demonstrate

at an Evidentiary Hearing That He Has

Significant Intellectual and Adaptive

Functioning Deficiencies Which Render Him

Categorically Exempt From Execution, Per Atkins.

................................................. 33

Claim To Be Procedurally Barred, and in Denying Mr.

Hill an Opportunity to Prove This Claim at an

Evidentiary Hearing.

E. Conclusion

ARGUMENT III

THE EXECUTION OF CLARENCE HILL, A BRAIN DAMAGED,

MENTALLY IMPAIRED INDIVIDUAL, WOULD CONSTITUTE

CRUEL AND UNUSUAL PUNISHMENT UNDER THE CONSTITUTIONS

OF THE STATE OF FLORIDA AND THE UNITED STATES.

........................................................... 45

ARGUMENT IV

FOR PUBLIC RECORDS PURSUANT TO CHAPTER 119, FLORIDA

STATUTES, FLA. R. CRIM. P. 3.852, THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,

........................................................... 52

ARGUMENT V

iv

HIS CO-DEFENDANT, CLIFFORD JACKSON IN SHACKLES

DURING THE PENALTY PHASE VIOLATED THE FIFTH, EIGHTH

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION UNDER DECK V. MISSOURI.

........................................................... 57

ARGUMENT VI

MOTION FOR POSTCONVICTION RELIEF ERRED BY DENYING

THE MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING,

AND WITHOUT ATTACHING AND/OR CITING TO SPECIFIC

PORTIONS OF THE RECORD WHICH CONCLUSIVELY DEMONSTRATED

THAT HE WAS ENTITLED TO NO RELIEF, THUS DENYING MR.

RIGHT TO DUE PROCESS UNDER THE UNITED STATES

AND FLORIDA CONSTITUTIONS.

........................................................... 68

CONCLUSION

........................................................... 73

CERTIFICATE OF SERVICE

........................................................... 74

CERTIFICATE OF FONT

........................................................... 74

TABLE OF AUTHORITIES

CONSTITUTIONAL AUTHORITY

Eighth Amendment to the United States Constitution

...................... 5-6, 9-10, 12, 18-20, 22, 46, 48-52, 58

Fourteenth Amendment to the United States Constitution

........................................ 7, 20, 46, 53, 58, 71

........................................................... 53

v

........................................................... 53

CASES

Atkins v. Virginia, 122 S.Ct 2242 (2002)

Beck v. Alabama, 447 U.S. 625 (1980)

........................................................... 61

Brown v. Louisiana, 447 U.S. 323, 328 (1980)

........................................................... 68

California v. Brown, 107 S. Ct. 837 (1987)

........................................................... 51

California v. Ramos, 463 U.S. 992, 1014, 77 L. Ed. 2d 1171, 103

S. Ct. 3446 (1983)

Coker v. Georgia, 433 U.S. 584 (1977)

........................................................... 65

Cowell v. Leapley, 458 N.W.2d 514, 517 (S.D. 1990)

Deck V. Missouri, 125 S.ct. 2007 (2005)

................................................. 7, 58-66, 68

Desist v. United States, 394 U.S. 244 (1969)

........................................................... 67

Diaz v. Dugger, 719 So.2d 865 (1998)

Eberheart v. Georgia, 433 U.S. 917 (1977)

Elledge v. State, 408 So.2d 102 (Fla. 1981)

....................................................... 17, 61

vi

Enmund v. Florida, 458 U.S. 782 (1982)

....................................................... 50, 52

Estelle v. Gamble, 429 U.S. 97, 102 (1976)

........................................................... 18

Estelle v. Williams, 425 U.S. 501 (1976)

........................................................... 58

........................................................... 61

Ford v. Wainwright, 477 U.S. 399 (1986)

Freeman v. State, 761 So. 2d 1055 (Fla. 2000)

Glock v. Moore, 776 So. 2d 243, 253-4 (Fla. 2001)

Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct.

1759 (1980)

Gregg v. Georgia, 428 U.S. 153, 183, 49 L. Ed. 2d 859,

96 S. Ct. 2909 (1976)

Gudinas v. State, 879 So.2d 616 (Fla. 2004)

........................................................... 61

Hamilton v. State, 875 So.2d 586 (Fla. 2004)

Hill v. Dugger, 556 So.2d 1385 (Fla. 1990)

........................................................... 4

Hill v. State, 477 So.2d 533 (Fla. 1985)

........................................................... 1

Hill v. State, 515 So.2d 176 (Fla. 1987)

........................................................... 2

vii

Hill v. State, 643 So.2d 1071 (Fla. 1995)

Hoffman v. State, 571 So.2d 449 (Fla. 1990)

....................................................... 71, 74

Holbrook v. Flynn, 475 U.S. 560 (1986)

........................................................ 58-59

Jacobs v. State, 880 So.2d 548 (Fla. 2004)

................................................. 44-45, 73-74

Johnson v. Texas, 113 S. Ct. 2658, 2668 (1993)

........................................................... 48

Johnson v. State, 904 So. 2d 400 (Fla. 2005)

....................................................... 17, 65

Knight v. State, Palm Beach County Case No. 97-05175

........................................................... 18

Lemon v. State, 498 So.2d 923 (Fla. 1986)

Linkletter v. Walker, 381 U.S. 618 (1965)

Lockett v. Ohio, 438 U.S. 586, 605 (1978)

Maharaj v. State, 684 So.2dd 726

Parker v. Dugger, 498 U.S. 308, 321 (1991)

Peede v. State, 748 So. 2d 253 (Fla. 1999)

ix

Penry v. Lynaugh, 492 U.S. 302 (1989)

........................................................... 20

Pinillos v. Cedars of Lebanon Hosp. Corp.,

403 So. 2d 365 (Fla. 1981)

Roper v. Simmons, 125 S.Ct. 1183 (March 1, 2005)

Sandin v. Conner, 515 U.S. 472, 132 L.Ed. 2d 418,

115 S. Ct. 2293 (1995)

............................................................72

Sims v. State, 754 So. 2d 657 (Fla. 2000)

State v. Callaway, 658 So. 2d 983 (Fla. 1995)

........................................................... 67

Stovall v. Denno, 388 U.S. 293 (1967)

....................................................... 66, 67

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,

103 L. Ed. 2d 334 (1989)

Thompson v. Oklahoma, 487 U.S. 815, 836 (1988)

Tison v. Arizona, 107 U.S. 1676, 1685 (1987)

Trop v. Dulles, 356 U.S. 86 (1958)

........................................................... 46

Weems v. United States, 217 U.S. 349, 371 (1910)

....................................................... 19, 50

Williams v. United States, 401 U.S. 646 (1971)

........................................................... 68

Witt v. State, 387 So. 2d 922 (Fla. 1980)

.................................................... 61, 65-68

STATUTORY AUTHORITY

CHAPTER 119

............................................................ 53

............................................................ 46

PROCEDURAL RULES

Fla. R. Crim. P. 3.203

..................................................... 30-31, 33

Fla. R. Crim. P. 3.850

............................. 4, 8-11, 20, 24, 40-44, 54, 69-75

Fla. R. Crim. P. 3.851

........................................ 19, 40, 43, 53, 58, 62

Fla. R. Crim. Pro. 3.852

............................................... 5, 7, 53-55, 57

Rule 65B-4.032 of the Florida Administrative Code

........................................................... 31

TREATISES

Koniaris L.G., Zimmers T.A., Lubarski D.A., Sheldon J.P.,

Inadequate anaesthesia in lethal injection for execution, Vol

365, THE LANCET 1412-14 (April 16,

2005)...................................................... 13

........................................................... 26

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders, (4th ed. 1994)(DSM-IV)

........................................................ 31-33

Department of Psychology, University of Alabama at Birmingham

(Complete article can be found at

........................................................... 27

STATEMENT OF THE CASE AND THE FACTS

The Circuit Court for the First Judicial Circuit, in and for

Escambia County, Florida entered the judgment of convictions and

death sentence at issue.

Mr. Hill was indicted by the grand jury in Escambia County,

Florida on November 2, 1982. (R. 1440-41). He was charged with

one count of first degree murder, one count of attempted first

degree murder, three counts of armed robbery, and possession of a

firearm during the commission of a felony. Following a trial

which commenced on April 27, 1983, the jury found Mr. Hill guilty

of all the crimes charged. (R. 1662). The penalty phase began on

April 29, 1983, and the jury rendered an advisory sentence

recommending death by a vote of ten to two. (R. 1665).

On May 27, 1983, the trial court sentenced Mr. Hill to death

as to the first degree murder conviction and consecutive life

sentences as to the attempted murder and armed robbery

convictions. No sentence was imposed for the possession of a

firearm conviction. (R. 1689-1690). The trial court entered its

written findings at the sentencing hearing. (R. 1668-69).

Mr. Hill appealed his conviction to the Florida Supreme

Court, which found that the trial court erred in denying Mr.

mind. The Court remanded the case for a new penalty phase with a

new jury. Hill v. State, 477 So. 2d 553 (Fla. 1985).

a vote of eleven to one, the jury issued an advisory opinion for

sentenced Mr. Hill to death on April 2, 1986. (RS. 835). Mr.

Hill was also sentenced to life imprisonment for the attempted

murder conviction, the armed robbery conviction, and for

possessing a firearm during the commission of a felony.

Mr. Hill filed an appeal with the Florida Supreme Court,

So.2d 176 (Fla. 1987). Mr. Hill then filed a Petition for a Writ

of Certiorari before the U.S. Supreme Court, which was denied.

On November 9, 1989, the Governor of Florida signed a death

of Convictions and Sentences with Special Emergency Request for

Leave to Amend on December 11, 1989. (PCR. 1-128). On January

18, 1990, the circuit court refused to grant Mr. Hill an

Vacate Judgment of Conviction and Sentence with Special Emergency

Request for Leave to Amend.

On January 22, 1990, Mr. Hill filed a notice of appeal of

the order from the circuit court. (PCR. 387). Mr. Hill also

filed a habeas corpus petition with the Florida Supreme Court.

On January 26, 1990, the Florida Supreme Court denied all relief.

Mr. Hill subsequently filed a Motion to Stay Execution and a

Petition for Writ of Habeas Corpus in the U.S. District Court for

the Northern District of Florida on January 27, 1990. The U.S.

District Court granted a stay on January 28, 1990. On August 31,

1992, the U.S. District Court granted relief to Mr. Hill on the

grounds that the circuit court and the Florida Supreme Court

failed to conduct a proper harmless error test when re-weighing

the aggravating factors after eliminating the cold, calculating,

and premeditating aggravator. Furthermore, the trial judge failed

to find certain nonstatutory mitigating facts even though

mitigation was established by the record. The U.S. District

Court made no recommendation as to whether a new sentencing

hearing had to be conducted. (Order p. 85).

1990 at 7:01 a.m.

Upon remand, Mr. Hill filed a motion to reopen his direct

appeal to address the issues cited by the U.S. District Court.

The Florida Supreme Court granted the motion, but upon reweighing

the four remaining aggravating factors against the one

non-statutory mitigating factors that were not previously

considered, the Court resentenced Mr. Hill to death. Hill v.

State, 643 So. 2d 1071 (Fla. 1995).

Mr. Hill then filed an amended habeas corpus petition before

the U.S. District Court challenging the decision of the Florida

Supreme Court. The U.S. District Court denied relief on the

grounds that the Florida Supreme Court satisfied the dictates of

Parker v. Dugger, 498 U.S. 308 (1991). Mr. Hill appealed this

decision to the Eleventh Circuit Court of Appeals, which found

subsequently filed a Petition for Writ of Certiorari before the

U.S. Supreme Court, which was denied. See, 528 U.S. 1087 (2000).

Mr. Hill filed a successive Rule 3.850 motion on June 20,

denied said motion on May 26, 2004, and denied the motion for

rehearing on June 21, 2004. Mr. Hill timely filed his appeal to

the Florida Supreme Court, which was denied on May 13, 2005.

On November 29, 2005, Governor Jeb Bush signed a death

warrant setting an execution date of January 24, 2006 at 6:00

p.m. Mr. Hill filed a successive 3.850 motion on December 15,

2005. Following a case management conference on December 19,

2005, the lower court orally denied Mr. Hill an evidentiary

hearing on his claims for relief. A written order was issued on

briefing schedule, Mr. Hill herein timely files his Initial

Brief.

SUMMARY OF THE ARGUMENT

The lower court erred in denying an evidentiary hearing on

unusual punishments secured to him by the Eighth Amendment to the

U.S. Constitution, by executing him using the sequence of three

chemicals, which is unnecessary as a means of employing lethal

injection, and which creates a foreseeable risk of inflicting

unnecessary and wanton infliction of pain contrary to

contemporary standards of decency.

yet to be ruled on by the lower court.

is in the same class of persons as contemplated in Atkins v.

Virginia, 122 S. Ct. 2242 (2002), and therefore the State is

barred from executing him. Specifically, Mr. Hill contends that

the holding in Atkins applies not only to the mentally retarded,

but also to brain damaged individuals. People with brain damage

encompass the same class of people protected by Atkins and, as a

result, any failure to include Mr. Hill within this class of

persons constitutionally exempt from execution would constitute a

violation of his right to equal protection. Additionally, Mr.

Hill argues that the standards relied upon by the State of

Florida to determine mental retardation are arbitrary and result

in bias to persons whose impairments render them the functional

equivalent of a mentally retarded individual. Mr. Hill also

contends that he is entitled to an evidentiary hearing in order

to demonstrate that his significant intellectual and adaptive

impairments render him incapable of execution under the standards

outlined by Atkins. Finally, Mr. Hill argues that the lower

court erred both in finding this claim procedurally barred, and

in arbitrarily denying him an evidentiary hearing, in violation

precedents regarding postconviction proceedings.

The execution of Clarence Hill, a brain damaged, mentally

impaired individual, would constitute cruel and unusual

punishment under the Constitutions of the State of Florida and

the United States. Mr. Hill suffers from a low IQ, brain damage,

and a mental and emotional age of less than eighteen years, which

renders the application of the death penalty in his case cruel

and unusual. His execution would therefore offend the evolving

standards of decency of a civilized society, would serve no

legitimate penological goal, and would violate the Eighth and

Fourteenth Amendments.

Effective collateral representation has been denied Mr. Hill

because the circuit court denied access to public records from

several state agencies. In denying these public records

requests, the lower court has essentially established standards

not in conformity with Rule 3.852 (h)(3). Despite the fact that

fall squarely within the confines of Rule 3.852 (h)(3), the lower

addendums to Rule 3.852 (h)(3), are not only improper, but also

light of recent empirical evidence, constitutes cruel and unusual

punishment, is a colorable claim for relief.

Mr. Hill and his, co-defendant, Clifford Jackson were

shackled and handcuffed during his penalty phase testimony

without any mention of such on the record and without objection

by defense counsel. The trial court did not express any concern

violation of Deck v. Missouri, 125 S.CT. 2007 (2005); nor did the

makes clear that there are indisputably good reasons for

proceedings in 1989-1990, the circuit court summarily denied Mr.

court issued a cursory, two-page order which neither cited to the

record nor attached specific portions of the record in support of

violation of the requirements of Fla. R. Crim. Pro. 3.850, as

well as the caselaw of this Court. The files and records in this

any attached (and/or cited to) portions of the record

demonstrating that Mr. Hill is not entitled to relief, and

have been granted in the previous death warrant proceedings.

Though this issue was raised in the appeal from the denial of

Rule 3.850 relief, this Court never addressed it in its opinion

So.2d 1385 (1990).

evidentiary hearing on his fact-based claims.

The State of Florida has created a protected liberty

interest under the Due Process Clause given the integral role

that Rule 3.850 plays in its overall scheme of death penalty

rise to a protected liberty interest in fair proceedings to be

conducted under the rule. Where, as here, the circuit court

utterly failed in its duty to demonstrate specifically that a

defendant is not entitled to a hearing on the merits of his

claims, that court has denied the defendant his due process right

to a fair post-conviction proceeding.

STANDARD OF REVIEW

The constitutional arguments advanced in this brief present

mixed questions of fact and law. As such, this Court is required

to give deference to the factual conclusions of the lower court.

The legal conclusions of the lower court are to be reviewed

independently. See Ornelas v. U.S., 517 U.S. 690 (1996);

Stephens v. State, 748 So.2d 1028 (Fla. 1999).

The lower court denied an evidentiary hearing, and therefore

the facts presented in this appeal must be taken as true. Peede

v. State, 748 So. 2d 253, 257 (Fla. 1999); Gaskin v. State, 737

So. 2d 509, 516 (Fla. 1999).

ARGUMENT I

THE LOWER COURT ERRED IN DENYING AN EVIDENTIARY HEARING ON MR.

FLORIDA UTILIZES FOR LETHAL INJECTION VIOLATES THE EIGHTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AS IT CONSTITUTES

CRUEL AND UNUSUAL PUNISHMENT.

In his 3.850 motion, Mr. Hill argued that in light of new

scientific evidence that was not previously available to the

Florida Supreme Court in Sims v. State, 754 So. 2d 657 (Fla.

2000), it is now clear that the existing procedure for lethal

injection that the State of Florida uses in executions violates

the Eighth Amendment to the United States Constitution, as it

will inflict upon Mr. Hill cruel and unusual punishment.

In denying an evidentiary hearing on this issue, the lower

court stated:

The Court notes that this is the first time Defendant

has raised the instant issue. Defendant has provided

no convincing reason to the Court why this claim could

motion filed in 2003. Although Defendant alleges that

the instant information regarding lethal injection is

the study in question was that anaesthesia methods in

lethal injection are flawed, in that failures in

protocol design, implementation, monitoring, and review

suggests that because doctors may not participate in

protocol design or executions, the administration of

case, the Court considered evidence detailing examples

of what errors could occur during lethal injection and

regarding the administration of lethal injection by

personnel who were not physicians. See Sims, 754 So.2d

evidence is not so unique as to shed new light on the

issue of lethal injection and overcome the procedural

bar. Therefore, because the constitutionality of

lethal injection has been fully litigated, and because

Defendant has provided no convincing reason as to why

this claim could not have been raised previously, the

instant claim is procedurally barred.

Order at 5-6.

the procedural bar which the lower court imposes because Mr.

Hill failed to raise this issue in 2003, it is clear that the

Hill did not raise this claim in 2003 precisely because, until

unique as to shed new light on the issue of lethal injection and

what could go wrong, but rather what actually is going wrong

during executions by lethal injection. This Court did not have

the benefit of a comprehensive scientific study, or any study at

all, when finding that the protocols used in 2000 were

constitutional. Therefore, the reliance on Sims is misplaced.

As Mr. Hill argued in his 3.850 motion, in Sims, 754 So. 2d

at 668, in denying a lethal injection challenge, this Court

scientific DNA techniques were developed after those cases had

concluded. Just as in those cases where courts are reconsidering

prior rulings in light of subsequent scientific research, so

evidence.

also have been found to be procedurally barred.

determined that the possibility of mishaps during the lethal

injection process was insufficient to support a finding of cruel

and unusual punishment:

testimony concerning the list of horribles that could

happen if a mishap occurs during the execution does not

sufficiently demonstrate that the procedures currently

in place are not adequate to accomplish the intended

result in a painless manner. Other than demonstrating a

failure to reduce every aspect of the procedure to

writing, Sims has not shown that the DOC procedures

will subject him to pain or degradation if carried out

happen if something goes wrong. From our review of the

record, we find that the DOC has established procedures

to be followed in administering the lethal injection

and we rely on the accuracy of the testimony by the DOC

personnel who explained such procedures at the hearing

below. Thus, we conclude that the procedures for

administering the lethal injection as attested do not

cruel and unusual punishment. n20

(note omitted). Subsequent to this opinion, and contrary to the

that the infliction of cruel and unusual punishment and the

wanton infliction of pain is no longer speculative.

A recent study published in the world-renowned medical

journal THE LANCET by Dr. David A. Lubarsky (whose declaration

the results of their research on the effects of chemicals in

autopsies and prepared toxicology reports, and which made such

data available to these scholars. (Att. B).

D.A., Sheldon J.P., Inadequate anaesthesia in lethal injection

for execution, Vol 365, THE LANCET 1412-14 (April 16, 2005).

This study confirmed, through the analysis of empirical

after-the-fact data, that the scientific critique of the use of

sodium pentothal, pancuronium bromide, and potassium chloride

creates a foreseeable risk of the gratuitous and unnecessary

found that in toxicology reports in the cases they studied, postmortem

concentrations of thiopental in the blood were lower than

that required for surgery in 43 of 49 executed inmates (88%).

Moreover, 21 of the 49 executed inmates (43%) had concentrations

consistent with awareness, as the inmates had an inadequate

amount of sodium pentothal in their bloodstream to provide

anesthesia. (Att. B). In other words, in close to half of the

cases, the prisoner felt the suffering of suffocation from

pancuronium bromide, and the burning through the veins followed

by the heart attack caused by the potassium chloride.

The chemical process utilized in executions in Florida is

identical to that identified in the study:

in the Lancet study reflects his opinion to a reasonable degree

of scientific certainty. (Att. B).

In all, a total of eight syringes will be used, each of

which will be injected in a consecutive order into the

IV tube attached to the inmate. The first two syringes

renders the inmate unconscious. The third syringe will

contain a saline solution to act as a flushing agent.

The fourth and fifth syringes will contain no less than

fifty milligrams of pancuronium bromide, which

paralyzes the muscles. The sixth syringe will contain

saline, again as a flushing agent. Finally, the seventh

and eighth syringes will contain no less than onehundred-

fifty milliequivalents of potassium chloride,

which stops the heart from beating.

As set forth in greater detail in the declaration of

anesthesiologist, David A. Lubarsky, M.D. (Att. B), the use of

assume that 2 to 3 grams of sodium thiopental will assure loss of

sensation, especially considering that personnel administering it

are unskilled, that the execution could last up to 10 minutes,

and that people on death row are extremely anxious and their

bodies are flooded with adrenaline, thus necessitating more of

the drug to render them unconscious. (Att. B).

Department of Corrections, the Court denied this request. Thus,

at the present time, Mr. Hill can only assume that the Florida

Department of Corrections has not changed this chemical process

since the Sims opinion.

this succession of chemicals (sodium pentothal, pancuronium

bromide, and potassium chloride) in judicial executions by lethal

injection creates a foreseeable risk of the unnecessary

infliction of pain and suffering.

Sodium pentothal, also known as thiopental, is an

ultra-short acting substance which produces shallow anesthesia.

(Att. B). Health-care professionals use it as an initial

anesthetic in preparation for surgery while they set up a

breathing tube in the patient and use different drugs to bring

through the operation and will block the stimuli of surgery which

would otherwise cause pain. Sodium pentothal is intended to be

defeasible by stimuli associated with errors in setting up the

breathing tube and initiating the long-run, deep anesthesia; the

The second chemical used in lethal injections in Florida is

pancuronium bromide, sometimes referred to simply as pancuronium.

It is not an anesthetic. It is a paralytic agent, which stops the

breathing. It has two contradictory effects: first, it causes the

person to whom it is applied to suffer suffocation when the lungs

mixed up and applied in a way that requires the expertise

associated with licensed health-care professionals who cannot by

law and professional ethics participate in executions.

stop moving; second, it prevents the person from manifesting this

suffering, or any other sensation, by facial expression, hand

movement, or speech. (Att. B).

Pancuronium bromide is unnecessary to bring about the death

of a person being executed by lethal injection. (Att. B). Its

only relevant function is to prevent the media and the Department

worn off and the prisoner is suffering from suffocation or from

the administration of the third chemical.

The third chemical is potassium chloride, which is the

substance that causes the death of the prisoner. It burns

intensely as it courses through the veins toward the heart. It

also causes massive muscle cramping before causing cardiac

arrest. (Att. B). When the potassium chloride reaches the heart,

it causes a heart attack. If the anesthesia has worn off by that

time, the condemned feels the pain of a heart attack. However,

in this case, Mr. Hill will be unable to communicate his pain

because the pancuronium bromide has paralyzed his face, his arms,

and his entire body so that he cannot express himself either

verbally or otherwise. (Att. B).

Significant is the fact that the American Veterinary Medical

Association (AVMA) panel on euthanasia specifically prohibits the

use of pentobarbital with a neuromuscular blocking agent to kill

animals. (Att. B). Additionally, 19 states have expressly or

implicitly prohibited the use of neuromuscular blocking agents in

animal euthanasia because of the risk of unrecognized

consciousness. (Att. B).

those of the lethal-injection jurisdictions which conducted

autopsies and toxicology reports, which kept records of them, and

which disclosed them to the LANCET scholars, there is at least

the same risk (43%) as in those jurisdictions that Mr. Hill will

not be anesthetized at the time of his death. (Att. B).

It is no wonder that the chemicals used in lethal injection

are inadequate and to a reasonable degree of medical certainty

cause pain and torture to condemned inmates. When the chemicals

Oklahoma. (Att. D). There were no studies conducted on the use

of the chemicals, the potential pain that an inmate might suffer

or what alternative chemicals could be used. (Att. D). Likewise,

no testing was conducted prior to the adoption of the chemicals

In denying an evidentiary hearing, the lower court

execution by lethal injection is constitutional has been fully

litigated in postconviction proceedings in Florida and decided in

the affirmative. See Elledge v. State, 911 So.2d 57, 78-79 (Fla.

2005); Johnson v. State, 904 So.2d 400, 412 (Fla. 2005); Parker

First, in none of the cases which the lower court refers to was

the issue of lethal injection fully litigated. Contrary to the

Johnson, and Parker were summarily denied without evidentiary

hearings. Further, in none of these cases did the appellant rely

will be presenting this new scientific evidence, an evidentiary

hearing has been ordered. See Knight v. State, Palm Beach County

Case No. 97-05175.

is not challenging the statutory provision which allows for

lethal injection as a method of execution. Rather, he is

challenging the use of specific chemicals and the quantity of

chemicals used, based upon recent scientific evidence, that the

Department of Corrections uses to carry out executions. Under

right to be free of cruel and unusual punishments secured to him

by the Eighth Amendment to the U.S. Constitution, by executing

him using the sequence of three chemicals (sodium pentothal a/k/a

thiopental, pancuronium bromide, and potassium chloride) which

they have admitted to be their practice, which is unnecessary as

a means of employing lethal injection, and which creates a

foreseeable risk of inflicting unnecessary and wanton infliction

of pain contrary to contemporary standards of decency.

Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).

Chapman, 452 U.S. 337, 346 (1981). The Eighth Amendment reaches

373 (1909). It forbids laws subjecting a person to

Id. at 370 (emphasis added). Under the present circumstances,

Mr. Hill will be unnecessarily subjected the wanton infliction of

pain, in violation of the Eighth Amendment.

Here, the lower court erred in denying Mr. Hill an

evidentiary hearing on this issue as he has presented facts that

were not known at the time the Florida Supreme Court decided Sims

v. State, 754 So. 2d 657 (Fla. 2000), and the motion, files and

records in this action fail to conclusively show that Mr. Hill is

(Fla. 1986); Fl. R. Crim. P. 3.851(f)(5)(B). Accordingly, an

evidentiary hearing is required.

ARGUMENT II

MR. HILL IS EXEMPT FROM EXECUTION UNDER THE EIGHTH AMENDMENT

BECAUSE HE IS MENTALLY RETARDED AND/OR SUFFERING FROM SUCH SEVERE

BRAIN DAMAGE AND OTHER MENTAL LIMITATIONS THAT DEATH COULD NEVER BE

AN APPROPRIATE PUNISHMENT.

The lower court erred in denying this claim as it has been

established that Mr. Hill is in the same class of persons as

contemplated in Atkins v. Virginia, 122 S. Ct. 2242 (2002), and

therefore the State is barred from executing him. Atkins

established that executing the mentally retarded violates the

Eighth and Fourteenth Amendments of the United States

Constitution and bars states from executing the mentally

retarded. See 122 S. Ct. 2242. Atkins overruled a 13 year-old

Constitutional parameters of mental retardation. See id. at

further consideration.

Specifically, Mr. Hill contends that the holding in Atkins

applies not only to the mentally retarded, but also to brain

damaged individuals. People with brain damage encompass the same

class of people protected by Atkins and, as a result, any failure

to include Mr. Hill within this class of persons constitutionally

exempt from execution would constitute a violation of his right

to equal protection. Additionally, Mr. Hill argues that the

standards relied upon by the State of Florida to determine mental

retardation are arbitrary and result in bias to persons whose

impairments render them the functional equivalent of a mentally

retarded individual. Mr. Hill also contends that he is entitled

to an evidentiary hearing in order to demonstrate that his

significant intellectual and adaptive impairments render him

incapable of execution under the standards outlined by Atkins.

Finally, Mr. Hill argues that the lower court erred both in

finding this claim procedurally barred, and in arbitrarily

denying him an evidentiary hearing, in violation of the rules of

regarding postconviction proceedings.

A. Brain Damaged and Intellectually Impaired Persons Such

as Mr. Hill Warrant the Same Protections as the Mentally

Retarded, Based Upon the Logic of the Atkins Court.

The Atkins standard is based upon a particular mental

from being eligible for the death penalty. At the outset of the

Atkins opinion, Justice Stevens stated:

Those mentally retarded persons who meet the law's

requirements for criminal responsibility should be

their disabilities in areas of reasoning, judgment, and

control of their impulses, however, they do not act

with the level of moral culpability that characterizes

the most serious adult criminal conduct. Moreover,

their impairments can jeopardize the reliability and

fairness of capital proceedings against mentally

retarded defendants.

Id. at 306 (emphasis added). Due to his combination of low

intelligence and brain damage, Mr. Hill has the same kinds of

which exclude them from those groups of persons who can

constitutionally be executed. Id.

The Eighth Amendment requires a meaningful basis for

Dugger, 498 U.S. 308, 321 (1991). A sentence of death for a

severely mentally limited individual is inconsistent with either

retribution and deterrence of capital crimes by prospective

(internal quotations and citations omitted); see also Atkins at

349-350.

With respect to retribution, the Atkins Court found that

legislative trend against imposition of the death penalty on

those suffering mental retardation means that society finds the

mentally retarded less culpable. Atkins at 2250. Since Gregg v.

Georgia, the Court has consistently narrowed the category of

crimes to which the death penalty applies and sought to apply the

death penalty only to those who most deserve the sentence. Id.

at 2251. Therefore, imposition of the death penalty on a group

that is considered categorically less culpable, like the mentally

retarded and/or severely mentally impaired, is unconstitutional.

The Atkins Court also found that as a result of the

limitations on the ability of a person with mental retardation to

reason and control himself, the death penalty would have no

deterrent effect on his actions. Id. at 2251. Specifically, the

ability to understand and process information, to learn from

experience, to engage in logical reasoning, or to control

to avoid the possibility of execution. Id.

The Court in Atkins additionally found that the mentally

retarded face an increased risk of being wrongfully sentenced to

death, due to a greater risk of false or coerced confessions, a

lesser ability to put on an effective presentation of mitigating

evidence, and a diminished ability to provide meaningful

assistance to counsel. Id. In many cases the mentally retarded

are poor witnesses and appear to the jury to feel no remorse for

their crimes. Id. at 2252. Categorically, the mentally retarded

face significant risks of wrongly being executed and the Court

concluded that this risk justified exempting them from the death

penalty. Id.

Certainly, based upon the logic applied by the United States

Supreme Court in Atkins, there is no acceptable reason why the

damaged individuals have similar disabilities in the areas of

does to the mentally retarded individual. Hence, the application

of Atkins must also be applied to persons whose brain damage

renders them so impaired in intellectual and adaptive functioning

that they are essentially in the same class of persons as the

B. The Standard Used by the State of Florida for

Determining Mental Retardation is Arbitrary and Does

Not Comport With Equal Protection and Due Process

Guarantees.

The Atkins Court used clinical definitions of mental

retardation to distinguish a group of individuals who are

substantial limitation in present functioning. It is

characterized by significantly subaverage intellectual

functioning, existing concurrently with related limitations in

two or more of the following adaptive skill areas: communication,

self-care, home living, social skills, community use, selfdirection,

health and safety, functional academics, leisure, and

work. Mental retardation manifests before age 18.

relating to this argument which deserve an evidentiary hearing.

its determination that Mr. Hill was not entitled to an

evidentiary hearing on this fact-based, properly pled claim.

Id. at 2245, n.3 (quoting the definition of the American

Association also defines mental retardation with three primary

characteristics: significant subaverage general intellectual

functioning, significant limitations in adaptive function (in at

least two specified skill areas), and onset before age eighteen.

determine the factual issue of mental retardation in order to

properly identify those ineligible for the death penalty. Atkins

at 2242 (quoting Ford v. Wainwright, 477 U.S. 399 (1986)).

mental retardation are not identical but generally conform to

n.22.

mentally retarded individuals a substantive right not to be

enforcing the constitutional restrictions upon executing the

mentally retarded. Atkins at 2249. As demonstrated by the

following, it is not.

Of particular concern is the basis for an IQ level of below

70 as the defining cutoff score for mental retardation. As the

research and history indicates, the American Association on

Mental Deficiency established this arbitrary number (Retardation)

in 1973. An instructive analysis of the arbitrary nature of the

scoring boundaries for mental retardation can be found in the

the Department of Psychology, University of Alabama at Birmingham

(Complete article can be found at www.uab.edu/cogdev/mentreta.

htm). A relevant portion of the article states as follows:

considering a Florida statute precluding the execution of the

inescapable that Florida positive law has created a protected

As a result of the conflicting views and

definitions of mental retardation, a growing

number of labels used to refer to individuals with

mental retardation, and a change in emphasis from

a genetic or constitutional focus to a desire for

a function-based definition, the American

Association on Mental Deficiency (Retardation)

proposed and adopted a three-part definition in

1959. "Mental retardation refers to subaverage

general intellectual functioning which originates

in the developmental period and is associated with

impairment in adaptive behavior" (Heber, 1961).

Although this definition included the three

components of low IQ (<85), impaired adaptive

behavior, and origination before age 16, only IQ

and age of onset were measurable with the existing

psychometric techniques. Deficits in adaptive

behavior were generally based on subjective

interpretations by individual evaluators even

though the Vineland Social Maturity Scale was

available (Sheerenberger, 1983). In addition to

the revised definition, a five level

classification scheme was introduced replacing the

previous three level system which had acquired a

very negative connotation. The generic terms of

borderline (IQ 67-83), mild (IQ 50-66), moderate

(IQ 33-49), severe (16-32), and profound (IQ <16)

were adopted.

Due to concern about the over or misidentification

of mental retardation, particularly in minority

populations, the definition was revised in 1973

(Grossman, 1973) eliminating the borderline

classification from the interpretation of

significant, subaverage, general intellectual

functioning. The upper IQ boundary changed from

<85 to < 70. This change significantly reduced the

number of individuals who were previously

identified as mentally retarded impacting the

eligibility criteria for special school services

have benefitted from special assistance were now

ineligible for such help. A 1977 revision

(Grossman, 1977) modified the upper IQ limit to 70

- 75 to account for measurement error. IQ

performance resulting in scores of 71 through 75

were only consistent with mental retardation when

significant deficits in adaptive behavior were

present.

The most recent change in the definition of mental

retardation was adopted in 1992 by the American

Association on Mental Retardation. "Mental

retardation refers to substantial limitations in

present functioning. It is characterized by

significantly subaverage intellectual functioning,

existing concurrently with related limitations in

two or more of the following applicable adaptive

skill areas: communication, self-care, home

living, social skills, community use,

self-direction, health and safety, functional

academics, leisure, and work. Mental retardation

manifests before age 18" (American Association on

Mental Retardation, 1992). On the surface, this

latest definition does not appear much different

than its recent predecessors. However, the focus

on the functional status of the individual with

mental retardation is much more delineated and

critical in this definition. There is also a focus

on the impact of environmental influences on

adaptive skills development that was absent in

previous definitions. Finally, this revision

eliminated the severity level classification

scheme in favor of one that addresses the type and

intensity of support needed: intermittent,

limited, extensive, or pervasive. Practically, a

child under age 18 must have an IQ < 75 and

deficits in at least 2 of the adaptive behavior

domains indicated in the definition to obtain a

diagnosis of mental retardation.

Id. (emphasis added).

Assuming the authors of the article are correct as to why

the definition changed in 1972, the implication is that social,

racial, and financial motives were at play, rather than a

standards for determining mental retardation. However, it is

legislation when affecting a Constitutional right. In Pinillos

v. Cedars of Lebanon Hosp. Corp., 403 So. 2d 365 (Fla. 1981), the

Florida Supreme Court stated:

Since no suspect class or fundamental right expressly

or impliedly protected by the constitution is

implicated by section 768.50, we find that the rational

basis test rather than the strict scrutiny test should

be employed in evaluating this statute against

plaintiffs' equal protection challenge. The rational

basis test requires that a statute bear a reasonable

relationship to a legitimate state interest, and the

burden is on the challenger to prove that a statute

does not rest on any reasonable basis or that it is

arbitrary.

Assuming no suspect class is indicated, Mr. Hill contends that

while the State has a right to establish mental retardation

qualifications, the State must, at a minimum, establish a

reasonable basis for such standards. This is especially critical

in death penalty cases, as execution is a permanent result.

National consensus within the mental health community should not

be adopted as the standard, when that standard was created for

social, racial, and financial purposes. Courts, in general, have

juries have inherently inquired into explanations for expert

opinions and have frequently disregarded those opinions. Florida

Rule of Criminal Procedure 3.203 and Section 921.137(1) of the

Florida Statutes do not rest on any reasonable basis and are

medical reasoning behind those standards can be adequately

determined.

and protection of mentally retarded persons do not adequately

safeguard the constitutional rights of the protected class of

individuals established by Atkins. For instance, Florida Rule of

Criminal Procedure 3.203 defines mental retardation as follows:

(b) Definition of Mental Retardation. As used in this

subaverage general intellectual functioning existing

concurrently with deficits in adaptive behavior and

manifested during the period from conception to age 18.

The term "significantly subaverage general intellectual

functioning," for the purpose of this rule, means

performance that is two or more standard deviations

from the mean score on a standardized intelligence test

authorized by the Department of Children and Family

Services in rule 65B-4.032 of the Florida

Administrative Code. The term "adaptive behavior," for

the purpose of this rule, means the effectiveness or

degree with which an individual meets the standards of

personal independence and social responsibility

expected of his or her age, cultural group, and

community.

While Fla. R. Crim. P. 3.203 and Sec. 921.137(1), Fla.

results, they fail to consider the fallibility of the tests, as

expounded upon above. The Rule also fails to explain any

adaptive behavior. However, as the American Psychiatric

Association, Diagnostic and Statistical Manual of Mental

Disorders, (4th ed. 1994)(DSM-IV) explains, understanding this

interrelationship is crucial:

General intellectual functioning is defined by the

intelligence quotient (IQ or equivalent) obtained

by

assessment with one or more of the standardized,

individual administered intelligence tests (e.g.

Wechsler Intelligence Scales for Children-Revised,

Stanford-Binet, Kaufman Assessment Battery for

Children). Significantly sub-average intellectual

functioning is defined as an IQ of about 70 or

below (approximately 2 standard deviations below

the mean). It should be noted that there is a

measurement error of approximately 5 points in

assessing IQ, although this may vary instrument to

instrument (e.g., a Wechsler IQ of 70 is

it is possible to diagnose Mental Retardation in

individuals with IQs between 70 and 75 who exhibit

significant deficit in adaptive behavior.

Conversely, Mental Retardation would not be

diagnosed in an individual with an IQ lower than

70 if there are no significant deficits or

of testing instruments and interpretation of

results should take into account factors that may

socio-cultural background, native language, and

associated communicative, motor, and sensory

significant scatter in the subtest scores, the

profile of strengths and weaknesses, rather than

the mathematically derived full-scale IQ, will

abilities. When there is a marked discrepancy

across verbal and performance scores, averaging to

obtain a full-scale IQ score can be misleading.

DSM IV at 40-41 (emphasis added).

Atkins protection is warranted. According to the DSM-IV, when

scattered scores occur, the sub-test scores are more reliable

than the full-scale score. Mr. Hill had significant scatter in

his sub-test scores, which indicates substantial intellectual and

functional difficulties. See Attachment AA at 5. Testing by two

Attachments C & AA.

retardation does not adequately protect persons like Mr. Hill,

whose most recent full-scale IQ score technically places him out

Nevertheless, his significant sub-test scatter, low IQ, and brain

damage are indicative of substantial mental and adaptive

functioning impairments which render him the functional

equivalent of a mentally retarded individual and therefore worthy

C. Mr. Hill Should Be Permitted to Demonstrate at an

Evidentiary Hearing That He Has Significant

Intellectual and Adaptive Functioning Deficiencies

Which Render Him Categorically Exempt From Execution,

Per Atkins.

However, it should be noted that before Mr. Hill turned 18, he

tested with a full-scale IQ score of 59 on the California

mentally retarded under both the standards of that time, as well

Attachment Z.

At the time of trial and at the original postconviction

proceedings, Atkins had not been decided and there was no

exemption from execution for mentally retarded individuals.

However, some testimony was presented at trial and in documentary

form at the original post-conviction proceedings which

adaptive skills during childhood and adolescence, as well as his

low intelligence. According to the DSM-IV, the second prong in

functioning - is more important than using IQ scores as a

significant adaptive functioning limitations will demonstrate

even more fully that he is constitutionally exempt from execution

per Atkins. Mr. Hill should be allowed to fully develop this

part of his claim at an evidentiary hearing.

Mr. Hill is a mentally retarded, and/or brain-damaged,

mentally disabled man who has significant limitations in adaptive

skills such as communication, self care, and self-direction.

processing and judgment are disrupted. Neuropsychologist Dr. Pat

disabled, and his behavior at the time of the offense was marked

by impulsivity, lack of judgment, inability to foresee

ability to analyze situations and draw the proper conclusions.

Since early childhood, Mr. Hill has suffered from organic

adaptive functioning. The facts as stated in these affidavits

brain damage and mental deficiencies which have diminished his

ability to understand and process information, to learn from

experience, to engage in logical reasoning, or to control his

Mr. Hill was functioning under the combined effects of drugs,

brain damage, impulsivity, dependency, and the need for

Eisenstein, recently evaluated Mr. Hill and had the following

findings:

that is the subject of the instant appeal.

history of head trauma, are significant for brain

damage. In all probability, his brain damage is

left hemispheric, long standing, and developmental

remained consistent as evaluated over the years of

Mr. Hill was in the Educable or Mild Mental

has benefitted from the structure, focus, and

rehabilitative aspects of his imprisonment. This

has given him the opportunity to acquire new

knowledge and skills that otherwise would not have

been available. As a result, his I.Q. scores have

increased, however, his true pre-morbid level of

intellectual functioning was in the Borderline to

adaptive functioning, or degree to which he was

able to maintain himself independently was

extremely concrete, slow and simplistic. He is

unable to abstract and figure out alternative

limited, with social withdrawal and isolation.

His limited basic skill level would have made it

difficult to function independently and

Dr. Eisenstein Report (December 2005), Attachment AA at 13-14

(emphasis added).

incapable of independent thought, and highly susceptible to the

influence of others. His co-defendant, Clifford Jackson, was the

leader and dominated the planning and the committing of the

combination of deficits, including drug abuse and brain damage,

incapable of appropriate or sensible behavior. See Attachment C.

Dr. Fleming opined:

The crime was not consistent with his previous

behavior. Prior to his association with more

aggressive friends, he was never described as violent,

hostile, or aggressive. Clarence previously

compensated for his deficits by withdrawing the (sic)

playing with his toys, not in antisocial behavior. The

drug and alcohol abuse and the leadership of friends .

. . apparently led him to exhibit atypical behavior. .

. . The combined effects of brain damage and drug abuse

It would affect his ability to think clearly, process

information, and control behavior, and control impulses

and emotions.

In Florida, the guideline IQ score sufficient for showing

subaverage intellectual functioning is 75 or below. Mr. Hill

does not technically meet this requirement, as expert testimony

indicates his IQ to be between 84 and 87. See Attachments C and

AA. However, one must also take into account that these scores

demonstrated by poor grades and significant academic

underachievement throughout his classes. Mr. Hill was then, and

continues to be to this day, an extremely slow learner. Dr.

Fleming observed that Mr. Hill performed in a substandard manner

in school and detailed his low IQ scores and performance

difficulties. See Attachment C at 3. Clearly, he had a great

deal of difficulty in acquiring and utilizing new information.

Specifically, Mr. Hill had problems taking in information and

applying it in problem-solving situations. Dr. Fleming also

was about the second grade level, spelling at about the third

actually a range in the .08 percentile. That means that roughly

better than 99 out of 100 people are able to process this better

Attachment AA.

Other significant medical and legally recognized indicia of

who have tested and assessed Mr. Hill have noted over and over

his substantial impairments in intellectual and adaptive

functioning, or degree to which he was able to maintain himself

Attachment AA at 13. In addition, Mr. Hill has had extremely

poor communication skills throughout his life, as demonstrated by

communication skills is also exhibited by his low verbal IQ

scores, which include a 71 on the test administered by Dr.

Eisenstein in December 2005, and a 76 on the test administered by

Dr. Fleming in December 1989. See Attachments AA & C. In

addition to his difficulties communicating, Mr. Hill has always

had poor social adaptation and life skills. Since childhood, Mr.

Hill has had poor social, interpersonal, and self-care skills.

Family members reported that Mr. Hill had a significant lack of

maturity in his relationships with others. He was

extraordinarily quiet and always wanted to be by himself. All of

present before the age of 18. See Attachments E-W.

Finally, it is crucial to note that before Mr. Hill turned

definition of mentally retarded by the American Association on

Mental Deficiency (Retardation). According to his Mobile County,

Alabama school records, Mr. Hill attained a full-scale IQ score

of 59 on the California Achievement Test while attending Gorgas

Elementary School - a score which clearly qualified Mr. Hill as

mentally retarded under both the standards of the time, as well

constitutionally protected from execution because the death

penalty is an unconstitutionally excessive punishment for Mr.

Hill for all the reasons delineated in Atkins. First, with

respect to retribution, imposing the death penalty on Mr. Hill is

contrary to evolving standards of decency because those who are

severely mentally limited are categorically less culpable.

Second, because his mental retardation and/or severe brain damage

and severe mental limitations have left Mr. Hill with a

diminished ability to process information, to learn from

experience, to engage in logical reasoning, and particularly to

control his impulses, imposition of the death penalty could not

possibly have a deterrent effect on his actions. In addition,

incapable of independent thought, and highly prone to fall under

the influence of others. Finally, Mr. Hill has demonstrated that

he only mimics what he hears from others, and is unable to

contribute in any way to his own defense.

evidentiary hearing is required upon this claim. Thereafter, a

stay and a bar of the execution should be entered.

Claim To Be Procedurally Barred, and in Denying Mr.

Hill an Opportunity to Prove This Claim at an

Evidentiary Hearing.

eligibility issue which absolutely precludes the application of

the death penalty to anyone in the class protected by Atkins. It

is impossible for an eligibility claim to be procedurally barred,

as the issue of whether an individual is a member of a class

constitutionally exempt from execution can never be waived.

The lower court also erred in summarily denying Mr. Hill the

opportunity to prove this claim at an evidentiary hearing. The

belief that allegations pled in a Rule 3.850/3.851 motion to

vacate must proven before an evidentiary hearing can be granted.

Rather, the clearly established standard according to Rule 3.850

Fla. R. Crim. Pro. 3.850(d). As this Court ruled in Gaskin v.

State, 737 So.2d 509 (Fla. 1999),

While the post-conviction defendant has the burden of

pleading a sufficient factual basis for relief, an

evidentiary hearing is presumed necessary absent a

conclusive demonstration that the defendant is entitled

to no relief. In essence, the burden is upon the State

to demonstrate that the motion is legally flawed or

that the record conclusively demonstrates no

entitlement to relief.

* * *

The rule was never intended to become a hindrance to

obtaining a hearing or to permit the trial court to

resolve disputed issues in a summary fashion.

Gaskin, 737 So.2d at 516.

claims, which are neither in dispute nor conclusively refuted by

the records in this case. The lower court erred as a matter of

law and fact in denying Mr. Hill an evidentiary hearing on his

claims, thereby precluding him from proving at an evidentiary

hearing what he alleged in his post-conviction motion.

The lower court seemingly applied a stricter standard than

required in assessing whether an evidentiary hearing was

motion alone without hearing the evidence that would have proven

the claims. At an evidentiary hearing Mr. Hill would certainly

have the burden to prove his claims, but he is in no way required

to meet that same burden in his pleadings alone. If this were

the case, there would never be a need to have evidentiary

hearings.

Interestingly, Rule 3.850 states that:

. . . (C) Contents of Motion. The motion shall be under

oath and include:

* * *

relied on in support of the motion.

Fla. R. Crim. Pro. 3.850 (C)(6) (emphasis added). At the end of

the Florida Rules of Criminal Procedure, the Court illustrates

the intent of the rule by providing a form motion for filing a

Rule 3.850 motion. See Fla. R. Crim. Pro. 3.987. In that form

the following instructions are given:

facts supporting each ground.

Fla. R. Crim Pro. 3.987 (emphasis added). The commentary then

outlines a list of grounds that a movant may choose from that are

properly raised in a Rule 3.850 motion. A form is offered for

use:

A. Ground

1. __________________________________________________

__________________________________________________

__________________________________________________

Supporting FACTS (tell your story briefly without citing

cases or law):

__________________________________________________

__________________________________________________

__________________________________________________.

Fla. R. Crim. Pro. 3.987.

In each instance, the Rules regarding postconviction motions

highlight brevity in pleading the facts. Brevity is at a higher

premium in a successive motion to vacate, as a page limitation is

set at twenty-five pages. See Fla. R. Crim. Pro. 3.851. As a

result, pleading more than one claim in a successive motion

requires economy and conciseness of pleading. Therefore, as

required by the rules, Mr. Hill provided a brief, concise

pleading of this claim which entitles him to relief, as the facts

alleged are not conclusively refuted by the record, nor is the

issue procedurally barred.

This Court has specifically rejected the reasoning applied

by the lower court in this case regarding the sufficiency of

3.850 pleadings. See e.g., Ventura v. State, 673 So.2d 479 (Fla.

1996); Mills v. Dugger, 559 So.2d 578, 578-579 (Fla. 1990);

Harvey v. Dugger, 656 So.2d 1253, 1257 (Fla. 1995); Thompson v.

they are not conclusively refuted by the record. See Lemon v.

sufficient and not conclusively refuted by the record. See

Hamilton v. State, 875 So.2d 586 (Fla. 2004); Freeman v. State,

761 So. 2d 1055 (Fla. 2000); and Peede v. State, 748 So. 2d 253

this Court once again gave a detailed description of what the

trial court is required to perform under Fla. R. Crim. P. 3.850:

Under these comprehensive provisions a trial court's

of possible steps: First, a trial court must determine

whether the motion is facially sufficient, i.e., whether it

sets out a cognizable claim for relief based upon the legal

and factual grounds asserted. It would logically follow

that if no valid claim is alleged, the court may deny the

motion outright, and the court need not examine the record.

Second, if the court determines that the motion is facially

sufficient, the court may then review the record. If the

record conclusively refutes the alleged claim, the claim may

be denied. In doing so, the court is required to attach

those portions of the record that conclusively refute the

claim to its order of denial. Third, if the court

determines that the motion is facially sufficient and that

there are no files or records conclusively showing that the

movant is not entitled to relief, the court may order the

state attorney's office to file a response to the

defendant's motion. The state attorney must respond to the

allegations of the motion, state whether the movant has

pursued any other available remedies (including any other

postconviction motions), and state whether the defendant

received an evidentiary hearing. Fourth, after the state

attorney has filed the required response, the trial judge

must determine whether the claims alleged in the motion have

been denied at a previous stage in the proceedings.

Finally, if the claims presented in the motion have not been

denied previously, the judge shall then determine whether an

evidentiary hearing is required in order to resolve the

claims alleged in the motion. Thus, if the trial court

right.

E. Conclusion

Mr. Hill is entitled to an evidentiary hearing on whether he

qualifies as mentally retarded and/or whether execution of brain

damaged individuals such as he are functionally in the same class

of persons protected by Atkins such that execution would violate

his equal protection rights under the United States and Florida

Constitutions.

finds that the motion is facially sufficient, that the claim

is not conclusively refuted by the record, and that the

claim is not otherwise procedurally barred, the trial court

should hold an evidentiary hearing to resolve the claim.

Jacobs, 880 So.2d at 550-51.

Even if this Court determines that Mr. Hill does not meet

the standards of mental retardation, the record is undisputed

that he suffers from brain damage and that these deficits in

adaptive functioning preceded his eighteenth birthday.

Individuals who are brain damaged suffer many of the same

deficits as mental retardation and should be treated similarly

under the law. The protections established in Atkins, and the

reasoning behind it, support the exclusion of Mr. Hill, a braindamaged,

mentally impaired, low-functioning individual, from

those class of persons who may constitutionally subjected to

language of "significantly sub-average general intellectual

functioning existing concurrently with deficits in adaptive

behavior and manifested during the period from conception to age

equivalence of mental retardation under the language of Atkins.

Thus, it is clear that under the United States Constitution, the

Florida Constitution, and under Florida Statutes, the State

ARGUMENT III

THE EXECUTION OF CLARENCE HILL, A BRAIN DAMAGED, MENTALLY

IMPAIRED INDIVIDUAL, WOULD CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT UNDER THE CONSTITUTIONS OF THE STATE OF FLORIDA AND

THE UNITED STATES.

Mr. Hill suffers from a low IQ, brain damage, and a mental

and emotional age of less than eighteen years, which renders the

application of the death penalty in his case cruel and unusual.

His execution would therefore offend the evolving standards of

decency of a civilized society, See Trop v. Dulles, 356 U.S. 86

(1958), would serve no legitimate penological goal, See Gregg v.

Georgia, 428 U.S. 153, 183 (1976), and would violate the Eighth

and Fourteenth Amendments to the United States Constitution. See

Roper v. Simmons, 125 S.Ct. 1183 (March 1, 2005). As the Supreme

Court recently held in Simmons,

Three general differences between juveniles under 18

and adults demonstrate that juvenile offenders cannot

with reliability be classified among the worst

underdeveloped sense of responsibility are found in

youth more often than in adults and are more

understandable among the young. These qualities often

result in impetuous and ill-considered actions and

that juveniles are more vulnerable or susceptible to

negative influences and outside pressures, including

peer pressure. This is explained in part by the

prevailing circumstance that juveniles have less

control, or less experience with control, over their

own environment. * * * The third broad difference is

that the character of a juvenile is not as well formed

as that of an adult. * * * These differences render

suspect any conclusion that a juvenile falls among the

would be misguided to equate the failings of a minor

with those of an adult, for a greater possibility

reformed.

Slip Op. at 15-16 (citations omitted; emphasis added).

cause occurred. The aforementioned abuse, brain damage, and life

history resulted in Mr. Hill operating at a mental and emotional

age significantly below his chronological age at the time of the

homicide. In 1989, Dr. Fleming rendered a report that stated Mr.

expert psychological testimony was available to establish that

Mr. Hill fell within the three general differences the U.S.

lack of maturity and an underdeveloped sense of responsibility;

influences and outside pressures, including peer pressure; and

(3) a character which was not as well formed as that of an adult,

and was more transitory and less fixed. See Simmons at 15-16.

In this case, it is mental and emotional age that warrants

Eighth Amendment relief. "There is no dispute that a defendant's

youth is a relevant mitigating circumstance that must be within

the effective reach of a capital sentencing jury if a death

sentence is to meet the requirements of Lockett and Eddings."

Johnson v. Texas, 113 S. Ct. 2658, 2668 (1993) (citations

omitted). The kinds of characteristics attributed to youthful

offenders, "a lack of maturity and an underdeveloped sense of

responsibility" Id. at 2668-2669, are precisely those

characteristics attributable to Mr. Hill. And it is these very

same traits that "often result in impetuous and ill-considered

actions and decisions." Id. at 2669.

barred by stating,

presented no reason why he could not have raised the

instant claim in an earlier motion. Indeed, Defendant

points in the instant motion to the 1989 report of Dr.

[footnote omitted]. Assuming this fact to be true,

Defendant could have raised the same claim under

Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687,

101 L. Ed. 2d 702 (1988), which rendered

unconstitutional, for many of the same reasons

expressed in Roper, the execution of any offender who

was under the age of 16 at the time of his offense.

Since Defendant has not demonstrated why the instant

claim could not have been raised previously, the Court

barred.

Order at 8-9.

Mr. Hill submits that his Eighth Amendment right to be free from

cruel and unusual punishment cannot be subject to a procedural

bar, as this is an eligibility issue which precludes the death

penalty for anyone under eighteen years of age.

Capital punishment should not be imposed where a defendant

lacks the requisite "highly culpable mental state." Tison, 107

S. Ct. at 1684. Mr. Hill lacked such a mental state. The

background of the defendant reflects "factors which may call for

a less severe penalty," Lockett v. Ohio, 438 U.S. 586, 605

(1978). An individual with neurological handicaps, such as Mr.

Hill, is the very opposite of the kind of offender whose "highly

culpable mental state" has been held to warrant imposition of the

death penalty. Simmons & Tison.

The Eighth Amendment prohibits "all punishments which by

their excessive length or severity are greatly disproportionate

to the offenses charged." Weems v. United States, 217 U.S. 349,

371 (1910) (citation omitted). In furtherance of this principle,

the Supreme Court's Eighth Amendment decisions have made clear

that "a criminal sentence must relate directly to the personal

culpability of the criminal offender." Tison v. Arizona, 107

U.S. 1676, 1685 (1987). These decisions have also considered "a

defendant's intention -- and therefore his moral guilt -- to be

critical to the degree of criminal culpability." Enmund v.

Florida, 458 U.S. 782, 800 (1982); accord Tison, 107 S. Ct. at

1687("Deeply ingrained in our legal tradition is the idea that

the more purposeful is the criminal conduct, the more serious is

the offense, and therefore, the more severely it ought to be

punished").

Because capital punishment is our society's ultimate

sanction, "unique in its severity and irrevocability," Gregg, 428

U.S. at 187, it may be imposed only when a defendant is found to

have "a highly culpable mental state." Tison, 107 S. Ct. at 1684;

see also id. at 1687 ("A critical facet of the individualized

determination of culpability required in a capital case is the

mental state with which the defendant commits the crime");

Godfrey v. Georgia, 446 U.S. 420, 443 (holding capital punishment

is inappropriate unless the crime "reflected a consciousness

materially more depraved than that of any person guilty of

murder").

Because Eighth Amendment proportionality principles forbid

the imposition of capital punishment where a defendant lacks the

requisite "highly culpable mental state," the Constitution

background and character combined with the circumstances of the

offense to determine whether there exist "factors which may call

for a less severe penalty." Lockett v. Ohio, 438 U.S. 586, 605

(1978). As Justice O'Connor explained:

[E]vidence about the defendant's background and

character is relevant because of the belief, long held

by this society, that defendants who commit criminal

acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be

less culpable than defendants who have no such excuse.

California v. Brown, 107 S. Ct. 837, 841 (1987)(O'Connor, J.,

concurring)(emphasis added).

Generally, the proportionality required by the Eighth

Amendment has been understood to require individualized, case-bycase

assessment of the factors that may diminish culpability.

See Eddings; Lockett. The Supreme Court has, however, made