signature in his original Motion for Reconsideration and Setting

Aside of Order Dismissing Complaint and Denying Preliminary

Temporary Injunction. Doc. 41.

-1-

to reconsider its Order Dismissing Complaint rendered September

1, 2006. Plaintiff respectfully argues that this Court has

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 1 of 24

Motion for Temporary Injunction to Stay His Execution Scheduled

for September 20, 2006 at 6:00 p.m. filed Friday, August 31,

2006. Undersigned in reviewing the CM/ECF website prior to the

filing of this motion inexplicably could not locate the document

on the docket report.

-2-

misapprehended and mistaken several issues of law and fact that

led to an erroneous ruling when it dismissed Mr. Hill’s Amended

Verified Complaint for Declaratory and Injunctive Relief,

Plaintiff’s Motion for Temporary Injunction to Stay His Execution

Defendant(s) Amended Motion to Dismiss.

Mr. Hill will contend in this motion that several errors

were present and concerns raised in this Court’s Order Dismissing

Complaint. Mr. Hill presents argument that although Mr. Hill has

not been dilatory, this Court has conflated and confused the

legal significance of dilatoriness and the corresponding analyses

applicable to the motion to dismiss and a stay of execution.

Further argument is provided that Mr. Hill should be allowed to

litigate the merits of his claims - even if a stay of execution

is not granted - an opportunity that has proved valuable and

meaningful in other jurisdictions. Additionally, Mr. Hill notes

at this point he still has not been specifically informed as to

the procedure that will be utilized to execute him. In support of

his position, Mr. Hill states:

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 2 of 24

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In denying Mr. Hill relief this Court found that “Moreover,

Florida’s lethal injection methods were subjected to a full

2000), and Hill could have challenged the procedure after the

This Court then goes on to state, “Hill has offered no reason for

his delay in bringing a §1983 action until just days before his

bringing his §1983 challenge of Florida’s lethal injection

procedure, and his complaint must be dismissed.” Order Dismissing

Complaint at 7-8 (citations omitted).

bringing his claim is erroneous and incomplete. Mr. Hill did not

unduly delay in bringing his claim. Rather, as is explained in

his motion for temporary injunction, Mr. Hill could not have

brought his claim prior to the time his execution date was set.

In support of this position, Mr. Hill stated as follows:

Mr. Hill diligently pursued his claim as

soon as it ripened. His claim became ripe

when his death warrant issued, because it was

only at that point that he could ascertain

the specific means by which the State would

n.3 (Mo. 2005). That is so because the

Department of Corrections retains complete

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 3 of 24

chemicals to be used in animal euthanasia and the chemicals

that are prohibited for such use (including any neuromuscular

blocking agent); a strict “order of preference” for the manner

in which the lethal solution is to be administered; the

qualifications that a person administering the lethal solution

must possess; and a 16-hour “euthanasia technician course”

that anyone administering the lethal solution must have taken.

minimum topics that the certification course must cover

(including pharmacology, proper administration and storage of

euthanasia solutions) and the manner in which the curriculum

for the course is to be approved (by the Board of Veterinary

-4-

discretion over how lethal injections will be

carried out, and shrouds its intentions in

secrecy.

No Florida statute provides the chemical

sequence to be used, the procedures for

administering it, any qualifications or

training required for persons engaged in

administering the chemicals and monitoring

the execution, or the means of venous

require that such procedures be devised

through rule-making process, or in

Fla. Stat. § 828.055 (requiring Board of

Pharmacy to adopt rules for the issuance of

permits authorizing the use of chemicals in

animal euthanasia, which “shall set forth

guidelines for the proper storage and

handling” of the chemicals); 828.058

(requiring training for animal euthanasia

technicians involving a curriculum approved

by the Board of Veterinary Medicine). And

the Department has not itself decided to

publish any definitive set of procedures

through rule-making or otherwise. The

Department, therefore, retains total

discretion to change the chemical sequence,

the manner of administration, the

qualifications and training of the execution

team, and any safeguards to ensure proper

administration and adequate anesthetic depth

at any time and with respect to any

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 4 of 24

to records, policies, procedures, or any other information

concerning its lethal injection protocols and procedures.

-5-

particular execution. The State has never

disputed that the Department has total

discretion in this regard. The “central

concern” of the ripeness doctrine “is whether

the case involves uncertain or contingent

future events that may not occur as

anticipated.” Charles Alan Wright et al.,

112. Accordingly, the ripeness inquiry looks

to whether a sufficiently concrete and

definitive agency policy or practice exists.

Otherwise, judicial intervention would

“den[y] the agency an opportunity to correct

is own mistakes and to apply its expertise.”

U.S. 232, 242 (1980). As the Supreme Court

of the United States has explained in the

analogous context of federal administrative

review,

[T]he ripeness requirement is designed

“to prevent the courts, through avoidance

of premature adjudication, from

entangling themselves in abstract

disagreements over administrative

policies, and also to protect the

agencies from judicial interference until

an administrative decision has been

formalized and its effects felt in a

concrete way by the challenging parties.”

732-33 (1983).

Here, rather than promulgate a definitive

policy, DOC has retained total discretion

over its process of lethal injection. For

this reason, it was only when Mr. Hill’s

execution was imminent that he could

ascertain what execution procedures would be

applied to him. The State cannot fight tooth

and nail to resist publication of any

condemned person of inequitable conduct

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 5 of 24

remedies prior to bringing his federal-court action under

he did so out of an abundance of caution, recognizing that if

the district court were to construe his complaint as a habeas

issue of the PLRA exhaustion requirements in its motion to

dismiss. Doc. 34, at 8-16. Notably, Mr. Hill’s complaint alleged

Complaint at 17-18 and in his Amended Complaint. The PLRA’s

exhaustion requirement is not a rule of pleading the plaintiff

plead and prove, not appropriate for consideration under a

Fed.R.Civ.P. 12(b)(6) motion where all facts must be construed

-6-

because he must wait until his death warrant

is issued to ascertain the particular

procedures that will be used in his

execution.

Instead, the State can secure an earlier

disposition of such suits simply by

prescribing definitive practices or the

orderly adoption of rules, as it already has

done to regulate animal euthanasia. The

Department, moreover, need only implement the

familiar process of agency rule-making to

ensure that the question whether its chosen

procedures for administering lethal injection

violates the Eighth Amendment ripens before

the inmate’s date of execution is set.

Department’s discretion and of any definitive

practices that would have provided the courts

with a sufficiently concrete policy to

review, Mr. Hill’s claim did not ripen until

the execution warrant issued. From the

moment that Mr. Hill’s challenge ripened, he

has diligently pursued his claim. Mr. Hill

initially filed suit in state court, in order

to defend against an argument that he had

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 6 of 24

(2005) (assuming that the PLRA’s exhaustion requirement is

(D.C. Cir. 2001) (suggesting that exhaustion is an affirmative

defense). Even if this Court construes the PLRA exhaustion

requirement as a special matter that must be pled, Fed.R.Civ.P.

9(c) allows Mr. Hill to plead generally that the condition was

satisfied and a denial of performance or occurrence must be

specifically pled with particularity.

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

should Mr. Hill’s claim be considered in light of new scientific

evidence.

-7-

as his action was dismissed on procedural

grounds in state court, he filed his § 1983

action.

Plaintiff’s Motion for Temporary Injunction

to Stay His Execution Scheduled for September

20, 2006 at 6:00 p.m. at 28-31.

Clearly, Mr. Hill was diligent in filing his §1983 claim.

This Court’s order failed to acknowledge or specifically consider

the facts presented.

Of further note is that the study relied upon by Mr. Hill

examples of how reality vastly differs from theory when grappling

with lethal injection issues. The discovery in these cases

exposed the Missouri and California procedures to be much more

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 7 of 24

-8-

inadequate than ever imagined. As none of this information was

be faulted for failing to raise the issue.

refused to recognize and thereby notice condemned prisoners that

a §1983 action could be used to challenge “[m]ethod of execution”

under the Eighth Amendment. In fact, the Eleventh Circuit had

consistently ruled that Mr. Hill, and others on Florida’s death

row, “could [not] have brought” the claim contained in the

pending §1983 action. As well, the Court’s clear holding in

precluded such a lawsuit. Indeed, this Court initially dismissed

Mr. Hill’s claim based upon that precedent, stating that there

was no subject matter jurisdiction for this Court to consider the

claim. It was only on January 24, 2006 – when the United States

determine whether the Eleventh Circuit Court’s determination that

district courts lack jurisdiction to consider claims like Mr.

Hill’s was correct – that the validity of this precedent was

called into question.

The Eleventh Circuit Court’s precedent was succinctly

It is clear to us that the district court lacked

jurisdiction to consider appellant’s claim because it

is the functional equivalent of a successive habeas

petition and he failed to obtain leave of this court to

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 8 of 24

June 20, 2006).

-9-

file a successive petition would be due to be denied in

S.Ct. 2710, 147 L.Ed.2d 979 (2000) (concluding that a

claim that lethal injection constitutes cruel and

unusual punishment does not meet the requirements of 28

U.S.C. § 2244(b)(2)(A) or (B)).”

Thus, unlike the situation in the bevy of circuit court

(1992)(per curiam), there is “good reason” in this case for the

failure to present this claim previously. According to the

April of 2005, Mr. Hill could neither file a successive habeas

petition challenging the protocol employed by the State of

Florida for carrying out a lethal injection execution, nor a

§1983 complaint.

This precedent has now been definitively overruled.

However, it should have been considered by this Court as to

timeliness in evaluating the equities in determining whether to

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 9 of 24

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properly consider this precedent is in error, and relief is

warranted.

Seemingly, in its consideration of the timeliness of Mr.

Hill’s action, this Court has improperly conflated two key issues

and the appropriate analysis for each: (1) the question of

dismissal pursuant to Rule 12(b)(6); and (2) the question of

whether to temporarily enjoin (stay) Mr. Hill’s execution. The

State of Florida based their motion to dismiss upon Rule

12(b)(6). As this Court is well aware, Rule 12(b)(6) is an

appropriate vehicle for dismissal only when the Plaintiff fails

to state a claim upon which relief can be granted. Yet the

entire procedural history of this case has been about whether Mr.

Clearly, the United States Supreme Court found that Mr. Hill

All that is required from Mr. Hill at this juncture is a short,

specifically held that there are no heightened pleading

the Supreme Court clearly contemplated that ripeness was not a

hinderance to Mr. Hill’s cause. As Justice Breyer stated in his

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 10 of 24

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questioning of the State of Florida during oral argument in this

cause:

And so [Mr. Hill] thinks, up until the last minute,

that maybe Florida will just do it, and lo and behold,

when the death warrant is actually executed, it now

begins to appear that they won't. And therefore, at

that time, he brings the case. Now, I've spun out a

story which seems probable, that if it's true, it would

be very understandable why this wasn't ripe before the

execution warrant is issued and thereafter it is.

(2006), Oral Argument transcript at 29.

Mr. Hill’s complaint is timely as long as he files it within

the statute of limitations, so there is no dilatoriness or

untimeliness in the filing of the lawsuit. As the district court

plaintiff to file a §1983 action any earlier than when

his execution is “imminent”:

[Because] it appears that the [lethal injection]

protocol is subject to alteration until the time of

execution . . . requiring a death-sentenced plaintiff

to file his method-of-execution challenge any sooner

[than when his death is imminent] strikes this Court as

potentially wasteful and possibly absurd, given the

possibility that, prior to his execution becoming

imminent, a plaintiff could see his conviction or death

sentence reversed, or the alteration of the precise

execution protocol that plaintiff might seek to

cv-1156(Doc.14, at 11).

The timeliness issue is only relevant to the propriety of a

Mr. Hill’s §1983 action, there is no question that Mr. Hill was

diligent, timely, and acting in accordance with established

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 11 of 24

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precedent as he pursued this claim through the courts.

Therefore, this Court is clearly in error in dismissing Mr.

Hill’s claim on the basis of timeliness.

date was stayed on January 25, 2006. In contrast to when the

Supreme Court of the United States voted unanimously to stay this

Mr. Hill was not initially operating under an imminent execution

date. Thirty-four days after the remand, the Governor of Florida

set an execution date to “get things going in the courts,” rather

than filing a motion for remand. This action presents a different

set of equities than what this Court considered when denying Mr.

Hill’s request to stay his execution. The State of Florida’s

action, not Mr. Hill’s, abrogated Mr. Hill’s ability to

adequately develop a factual record as requested in this cause.

The State’s actions should not unduly prejudice Mr. Hill by

preventing him from pursuing his constitutional claim to the

fullest extent of the law.

Per Governor Bush’s orders, the State of Florida did not

proceed with any further death warrants while Mr. Hill’s case was

pending. The State’s “strong interest in enforcing its criminal

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 12 of 24

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and volitionally decided to be of less importance than the issues

surrounding lethal injection. However, by now resetting Mr.

Hill’s execution date, while continuing to hold all other

warrants in abeyance, the intent of the State of Florida is

obvious – kill Mr. Hill, and prevent a reasoned review of the

torturous lethal injection process currently in place.

This new execution date changes the equitable analysis when

determining whether Mr. Hill’s claim should go forward. The

State of Florida’s conduct has only served to delay and obstruct

the proper resolution of Mr. Hill’s claims. By setting an

execution date for Mr. Hill, Florida has short-circuited the

normal course of litigation – a course of litigation which was

anticipated by the United States Supreme Court when it stayed Mr.

Hill’s execution and remanded this case. The State’s action

belies its publicly stated intent of awaiting a judicial

resolution of this matter, and evinces its true intent of not

allowing a judicial review of its lethal injection procedure.

It should be noted, however, that two Supreme Court justices

recognized that the State has a responsibility to ensure that its

execution method comports with the Constitution. As Justice

this is a death case. . . . Doesn't the State have some minimal

obligation under the Eighth Amendment to do the necessary

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 13 of 24

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research to assure that this is the most humane method possible?

Doesn't the State have a minimal obligation on its own to do

L.Ed.2d 44 (2006), Oral Argument transcript at 29.

Similarly, Justice Souter queried the assistant solicitor

general on what he believed to be the State’s duty to

investigate:

[T]he Lancet article has been out there for a while,

and it certainly is enough to suggest. . .that there is

something problematic about the manner in which Florida

proposes to do this. And yet, we have not heard a word

that Florida has made any effort whatsoever to find an

alternative or, for that matter, to – to disprove what

By ordering Mr. Hill to be executed on September 20, 2006, the

State of Florida is willfully disregarding the very real

possibility that Mr. Hill will be executed cruelly, painfully,

and unconstitutionally. The State’s blatant attempt to avoid

addressing this serious constitutional and civil rights issue

significantly lessens the equitable weight that would generally

be afforded a State when an execution date is imminent. This

Court should re-weigh the equities accordingly, and find that

equitable process mandates an evidentiary hearing in this cause.

This Court originally had Mr. Hill’s case under warrant in

January 2006. Mr. Hill filed his claim on Friday, January 20,

2006, and the State of Florida filed their response the same day.

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 14 of 24

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The next day, Saturday, January 21, 2006, this Court dismissed

Mr. Hill’s claim, re-characterizing the claim as a successive

habeas petition and then dismissing under AEDPA. Essentially,

this Court entertained Mr. Hill’s claim in one day.

2006. The CM/ECF notification of the remand occurred at 12:12

p.m. on that date. Subsequently, this Court’s staff contacted

the office of undersigned counsel at approximately 1:45 p.m. to

order that all pleadings in this matter be submitted by the

following day at noon. Undersigned counsel was at the prison

visiting death row clients, including Mr. Hill, and returned

around 5:00 p.m. to receive this Court’s order. This allowed

undersigned counsel a mere 19 hours, if he chose not to sleep, to

comply with this Court’s request. The parties complied with this

Court’s order and filed their pleadings by noon on September 1,

2006. In less than seven hours, this Court denied Mr. Hill’s

request for a preliminary temporary injunction staying the

execution – even though the execution was still nineteen days

away. This Court’s consideration and rejection of Mr. Hill’s

claims in such a short time span is not the process which Mr.

Hill is due.

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 15 of 24

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The guarantee that no person shall be deprived of life,

liberty or property without due process of law is a fundamental

constitutional right that applies to both federal and state

governmental actors through the Fifth and Fourteenth Amendments

to the U.S. Constitution. The Due Process Clause applies to

(2002), and it applies in civil as well as criminal proceedings,

has been long established that “[a]n elementary and fundamental

requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the

circumstances, to apprise the interested parties of the pendency

of the action and to afford them an opportunity” to present their

314 (1950). Mr. Hill has been unjustly denied an opportunity to

present his case. The process which he is due would allow him to

present his evidence and demonstrated the unconstitutionally

cruel punishment which he faces, not a summary dismissal.

The Supreme Court of the United States contemplated more

when it held that district courts should decide the equities of a

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 16 of 24

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efficacy of a stay would have been more appropriately determined

after assessing the discovery requests submitted by Mr. Hill

subject to the expediting of the discovery process. Instead,

this Court gave the parties less than twenty-four hours to

present their claims, and then rendered judgment on the pleadings

without the benefit of discovery. This truncated process was

utilized even though nineteen days were left before Mr. Hill’s

scheduled execution.

The nature of Mr. Hill’s case demands that he be granted a

full and fair evidentiary hearing both as to the efficacy of the

stay and the merits of his claims. An evidentiary hearing is

necessary to make certain that Mr. Hill will not be subjected to

an unconstitutionally cruel punishment, as well as to ensure

public legitimacy as the State of Florida carries out his

sentence. The highly specific factual claims advanced by Mr.

Hill plainly cannot be properly litigated without a meaningful

opportunity for discovery. This Court’s order dismissing Mr.

Hill’s claims effectively prejudges Mr. Hill’s claims as

factually meritless. That type of prejudging is highly improper

in any case, but is even more inappropriate in an Eighth

Amendment challenge to a specific means of execution.

Absent the unique and unusual circumstances of these

proceedings, Mr. Hill would indisputably have been entitled to

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 17 of 24

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more time to prepare and present his case. As a result of this

Court’s ruling, Mr. Hill has been denied the opportunity to

utilize the tools of discovery, as well as the opportunity to

conduct further factual investigation into such matters as

whether Florida has a history of botched executions similar to

42949, 22 (June 26, 2006). In any lawsuit, much less one that is

as intensely specific and factually intensive as a challenge to

the State’s manner of execution, a rush to judgment runs contrary

to the basic dictates of due process.

Dismissal of a claim is the harshest of remedies and should

not have been ordered in this cause. Mr. Hill should have been

allowed to continue in his claim to the point of his execution,

even if this Court chose not to enter a stay. Mr. Hill could

have proceeded with his requested discovery and presumably

discovered information further supporting his claim and changing

the equities relative to a stay. At this point Mr. Hill has been

unjustly denied that opportunity.

Mr. Hill promptly sought discovery upon remand by filing

numerous discovery requests within twenty-four hours of this

cause being remanded, i.e. admissions, production,

interrogatories, etc. Additionally, he promptly sought a stay of

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 18 of 24

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his execution from this Court, again within twenty-four hours, in

an attempt to ensure his ability to participate in discovery.

This Court’s order that all pleadings be submitted in this

cause within twenty-four hours of the remand, and its subsequent

dismissal of this cause the same day, eliminated Mr. Hill’s

ability to participate in discovery. The prejudice inuring from

this Court’s action is manifest. If Mr. Hill had been given even

minimal discovery and the opportunity to obtain the execution

logs and other key records, he presumably could have produced

injection procedures in California documented a pattern of

mistakes, complications and blunders that discredited

California’s claim that five grams of thiopental would quickly

*6 (“[E]vidence from Defendants’ own execution logs [shows] that

the inmates’ breathing may not have ceased as expected in at

least six out of thirteen executions by lethal injection in

California.”). As a result of Morales’ opportunity for discovery

and the presentation of evidence, he was able to discount the

testimony about the theoretical efficacy of thiopental in the

Mr. Hill was seeking, and would have obtained, the same type

of information regarding execution protocols. Florida’s margin

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 19 of 24

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for error is significantly lower then California’s, as the State

Department of Corrections purportedly uses only two grams of

Therefore, it is even more likely that real world mistakes,

mishaps, and complications would belie Florida’s assertions as to

the legitimacy and constitutionality of its lethal injection

procedure. A prisoner need not take on faith the statement by

prison officials that his execution will be constitutionally

compliant, and a condemned prisoner has the right to know how his

execution will be conducted. “Fundamental fairness, if not due

process, requires that the execution protocol that will regulate

an inmate’s death be forwarded to him in a prompt and timely

2004)(considering rights of condemned inmate to review suddenly

changed protocol)(considering constitutionality of lethal

110, 126 n.22 (1991)(noting that when the threatened loss is

great, as when death is the result, the need for notice is even

more pronounced than in other settings). For that right to have

meaning, Mr. Hill must be allowed to challenge an execution

protocol that will subject him to the unconscionable likelihood

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 20 of 24

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No injustice would have occurred had this Court allowed a

sufficiently brief period of time for discovery and an

adjudication of Mr. Hill’s claims. On the contrary, permitting

Mr. Hill the opportunity for expedited discovery and time to

fully develop his claims would have only increased the legitimacy

of these proceedings and allowed this Court to make a decision

after a full and fair hearing. Florida’s acknowledged interest

in promptly carrying out Mr. Hill’s sentence cannot override the

fundamental due process requirement that a litigant such as Mr.

Hill be given a basic adequate opportunity to develop and present

his claims. Mr. Hill is entitled to die with dignity, consistent

with the requirements of the Eighth Amendment. Neither the State

of Florida nor this Court can deny Mr. Hill a meaningful

opportunity to make his case.

This Court could have easily denied the stay and allowed Mr.

Hill’s claim to proceed with expedited discovery as he requested.

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 21 of 24

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2006). All of these cases are recent and involved lethal

injection claims where the courts denied a stay and allowed the

proceedings to continue. In these cases a determination on the

merits was made in a very limited amount of time, and enough

discovery and testimony were adduced to allow meaningful

consideration to be given to the plaintiffs’ claims.

plaintiff filed a motion for preliminary injunction on July 28,

2006, and a hearing on that motion was held on August 8, 2006.

At the hearing, the State of Oklahoma introduced a new protocol

in response to plaintiff’s claims, and the Court ruled that the

protocol extant at the time the lawsuit was filed was

unconstitutional; however, the new protocol was ruled to have

sufficiently addressed plaintiff’s concerns regarding the

will incorporate those facts by reference. Clearly, these cases

demonstrate that it is possible to litigate and resolve lethal

injection issues quickly. It is incorrect for this Court to

assume that the parties cannot address Mr. Hill’s claims prior to

his September 20, 2006 execution date. Most importantly, it is a

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 22 of 24

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blatant denial of due process to not even attempt to allow him to

present his claims.

reconsider its Order Dismissing Complaint, deny Defendant’s

Amended Motion to Dismiss for Failure to State a Cause of Action

Upon Which Relief Can Be Granted; and Response and Memorandum of

Law to Request for Stay or Injunction, issue a temporary

injunction staying Mr. Hill’s execution, order expedited

discovery, and allow Mr. Hill’s § 1983 action to be fully and

fairly litigated without an imminent execution date looming.

Respectfully submitted,

/s/ D. Todd Doss

D. TODD DOSS

Florida Bar No. 0910384

725 Southeast Baya Drive

Suite 102

Lake City, FL 32025-6092

Telephone (386) 755-9119

Facsimile (386) 755-3181

COUNSEL FOR APPELLANT

I certify that a copy of the foregoing document has been served

September 2006.

/s/ D. Todd Doss

D. TODD DOSS

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 23 of 24

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Copies furnished to:

Carolyn Snurkowski

Assistant Attorney General

Office of the Attorney General

Plaza Level 1

The Capitol

Tallahassee, FL 32399

Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 24 of 24