DOCKET NO. _______

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2006

444444444444444444444444444444444

CLARENCE EDWARD HILL

Petitioner,

vs.

WILLIAM McDONOUGH,

SECRETARY FLORIDA

DEPARTMENT OF CORRECTIONS;

AND

CHARLIE CRIST,

Florida Attorney General,

Respondent(s).

444444444444444444444444444444444

CAPITAL CASE

EXECUTION SCHEDULED FOR

SEPTEMBER 20, 2006, 6:00 P.M.

444444444444444444444444444444444444444

PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

444444444444444444444444444

D. TODD DOSS

Florida Bar No. 0910384

725 Southeast Baya Drive

Suite 102

Lake City, FL 32025-6092

Telephone (386) 755-9119

COUNSEL FOR PETITIONER

-i-

QUESTIONS PRESENTED

1. When considering whether to “invoke their equitable

powers” to grant injunctive relief or to dismiss a suit as “filed

too late in the day,” were the federal district court and the

Eleventh Circuit Court of Appeals required to consider the fact

that the Eleventh Circuit’s own controlling precedent indicated

that the district court lacked jurisdiction to hear Petitioner’s

§ 1983 action challenging Florida’s use of lethal injection as

the method of carrying out a death sentence at all relevant times

2096, 2104 (2006)?

2. When undertaking to weigh the equities in deciding

whether to grant injunctive relief, were the federal district

court and the Eleventh Circuit of Appeals required to consider

the Eleventh Circuit’s inaction when it failed to issue the

mandate and only returned jurisdiction to the district court for

further proceedings after the Governor of Florida rescheduled

Petitioner’s execution for August 17, 2006, citing the lack of

June 12, 2006, the Eleventh Circuit did not remand to the

district court until August 29, 2006), thereby depriving

Petitioner of the opportunity to proceed on his § 1983 action

during that two month time period when no execution date was set?

-ii-

3. When undertaking to weigh the equities in deciding

whether to grant injunctive relief or to dismiss a § 1983

challenging a method of execution, is a federal court required to

consider any aspect of the merits of the § 1983 and/or the

actions of the State in scheduling the execution and its

prerogative to alter the method or the protocol up until the

execution, or is the equitable analysis to be solely concerned

with the timing of Petitioner’s initiation of the action?

-iii-

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED.......................................... i

TABLE OF CONTENTS............................................ iii

TABLE OF AUTHORITIES......................................... iv

CITATION TO OPINIONS BELOW................................... 2

STATEMENT OF JURISDICTION.................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............. 2

PROCEDURAL HISTORY........................................... 3

FACTS RELEVANT TO QUESTIONS PRESENTED........................ 7

THE FEDERAL COURTS’ RULINGS.................................. 15

REASONS FOR GRANTING THE WRIT................................ 17

THIS COURT SHOULD REVIEW THE ISSUES SURROUNDING

THE FEDERAL COURTS’ CONSIDERATION OF EQUITIES

IN DENYING MR. HILL A STAY OF EXECUTION AND A

TEMPORARY INJUNCTION.

A. Equities consideration after remand 17

B. Equities have been changed by circumstances 21

C. Merits review in equities consideration 27

CONCLUSION................................................... 33

-iv-

TABLE OF AUTHORITIES

CASES PAGE

2006 U.S. Dist. LEXIS 60084, (E.D. N.C. 2006)..... 13,14,29

379 F.3d 1029 (9th Cir. 2004) ....................... 18,23

430 F.Supp 2d 702 (2006) ............................ 13,14

534 U.S. 161 (2002) .................................... 22

503 U.S. 653 (1992) ................................. 20,23

431 F.3d 916 (6th Cir. 2005) ........................ 18,23

126 S.Ct. 1189, 163 L.Ed.2d 1144 (January 25, 2006) .. 6,23

126 S.Ct. 2096, 165 L.Ed.2d 44 (June 12, 2006) . i,6,8,18,24

Case No. 4:06-cv-032-SPM (N.D. Fla. 2006) .. 3,16,17,28,34

-v-

515 So. 2d 176 (Fla. 1987).............................. 4

108 S.Ct. 1302 (1988)................................... 4

556 So. 2d 1385 (Fla. 1990)............................. 4

643 So. 2d 1071 (Fla. 1995)............................. 4

528 U.S. 1087 (2000).................................... 4

2006 Fla. LEXIS 8 (January 17, 2006).................... 4

921 So.2d 579 (Fla. 2006) ........................... 16,17

512 U.S. 415 (1994) ................................... 21

2006 WL 335427 (N.D. Cal., Feb. 14, 2006),

415 F.Supp 2d 1037 (N.D. Cal. 2006) .................. 9,11

Case No. C06-219-JF & C06-926-JF-RS (N.D. Cal. 2006) ... 27

339 U.S. 306 (1950) .................................... 21

541 U.S. 637 (2004)................................ 5,17-19

Case No. 5:06-cv-110 (E.D. Ark.) ....................... 28

-vi-

2006 U.S. Dist. LEXIS 54429 (Okla. W.D. Aug. 4, 2006)

(Aug.29, 2006) ......................................... 30

Case No. CIV-06-591-F (W.D. Okla.)................... 28,30

754 So. 2d 657 (Fla. 2000) .......................... 10,16

2006 U.S. Dist. LEXIS 42949, 22 (June 26, 2006) ..... 13,30

Case No. 2:05-cv-04173-FJG (W.D. Mo.) .................. 27

429 F.3d 572 (5th Cir. 2005) ..................... 16,22,29

125 S. Ct. 1242 (2005) ................................. 26

126 S.Ct. 601 (2005) ................................... 22

-i-

166 S.W. 3d 566 (Mo. 2005) ............................ 23

STATUTES

42 U.S.C. § 1983 ......... i,ii,3-5,7-9.11,14-21,23,26-28,31,33

48 U.S.C. § 2254(b)(1)(A)................................... 26

Fla. Stat. § 828.055 ....................................... 24

Fla. Stat. § 828.058 ....................................... 24

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)............................................... 8,11,13,23

Charles Alan Wright et al.,

WEBSITES

last visited September 17, 2006........................ 29

-1-

DOCKET NO. _______

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2006

444444444444444444444444444444444

CLARENCE EDWARD HILL

Petitioner,

vs.

WILLIAM McDONOUGH,

SECRETARY FLORIDA

DEPARTMENT OF CORRECTIONS;

AND

CHARLIE CRIST,

Florida Attorney General,

Respondent(s).

444444444444444444444444444444444

CAPITAL CASE

EXECUTION SCHEDULED FOR

SEPTEMBER 20, 2006, 6:00 P.M.

444444444444444444444444444444444444444

PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT COURT OF APPEALS

444444444444444444444444444

the State of Florida. Petitioner respectfully urges that this

Honorable Court issue its writ of certiorari to review Order of

the Eleventh Circuit Court of Appeals.

-2-

CITATION TO OPINIONS BELOW

The decision of the Eleventh Circuit Court of Appeals in

Cir. 2006), and is attached to this petition as Appendix A. The

decision of the United States District Court, Northern District

Case No. 4:06-cv-032-SPM, (N.D. Fla. 2006) and is attached to

this petition as Appendix B.

STATEMENT OF JURISDICTION

Petitioner invokes this Court’s jurisdiction to grant the

Petition for a Writ of Certiorari to the Eleventh Circuit Court

of Appeals on the basis of 28 U.S.C. Section 1257. The Eleventh

Circuit Court of Appeals issued an opinion denying relief on

September 15, 2006.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

[N]or be deprived of life, liberty, or property, without due

process of law U.S. Const. amend. V.

[N]or [shall] cruel and unusual punishments [be] inflicted.

No State shall . . . deprive any person of life [or]

liberty . . . without due process of law; nor deny to

any person within its jurisdiction the equal protection

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

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to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983

PROCEDURAL HISTORY

Appellant, Clarence Hill, was convicted of first degree

murder in 1983. On appeal, his conviction was affirmed, but his

sentence was vacated. Following a second sentencing proceeding,

Mr. Hill was again sentenced to death, and the Florida Supreme

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

warrant scheduling Mr. Hill’s execution for January 25, 1990.

Mr. Hill filed an expedited postconviction motion, which was

denied on January 18, 1990. On appeal, the Florida Supreme Court

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

Petition for Writ of Habeas Corpus in the United States District

Court for the Northern District of Florida on January 27, 1990.

After granting a stay of execution, on August 31, 1992, the

district court granted relief to Mr. Hill on a sentencing issue.

On remand, the Florida Supreme Court again denied relief.

subsequent state and federal applications, including his federal

On Friday, January 20, 2006, Mr. Hill brought an action

pursuant to 42 U.S.C. § 1983 in the United States District Court,

Northern District of Florida, Tallahassee Division. Mr. Hill

alleged violations of his right to be free from cruel and unusual

punishment under the Eighth and Fourteenth Amendments to the

United States Constitution. On Saturday, January 21, 2006, the

district court dismissed Mr. Hill’s complaint for declaratory and

injunctive relief for lack of jurisdiction. Thereafter, on

Monday, January 23, 2006, Mr. Hill filed a Notice of Appeal and

by separate pleading an application for stay of execution. On

January 24, 2006, the Eleventh Circuit Court of Appeals denied

his application for stay. The Eleventh Circuit went on to hold

that Mr. Hill’s action was a successive petition for a writ of

habeas corpus and that any application for leave to file a

Mr. Hill then filed a petition for certiorari review and an

application for stay by separate pleading in the Supreme Court of

the United States. At 7:00 p.m., January 24, 2006, Justice

Kennedy issued a stay until the full court could consider Mr.

Hill’s pleadings. The following day, January 25, 2006, the full

court granted Mr. Hill a stay and granted certiorari. The stay

-5-

was to remain in effect until the Supreme Court of the United

S.Ct. 1189 (2006). Subsequently, on June 12, 2006, the Court

rendered a 9-0 decision that reversed and remanded the cause back

to the Eleventh Circuit for proceedings consistent with the

Court held that Mr. Hill’s claim under 42 U.S.C. § 1983 was

S.Ct. 2117 (2004), and that Mr. Hill should be allowed to proceed

Supreme Court’s decision became final on July 14, 2006.

A panel of the Eleventh Circuit received the case on remand

on July 18, 2006. On August 17, 2006, the State of Florida

arbitrarily scheduled Mr. Hill’s execution date for September 20,

2006. Thereafter, Mr. Hill filed in the Eleventh Circuit his

Motion for Immediate Remand of This Cause to the District Court,

via overnight mail on August 23, 2006. The Eleventh Circuit then

remanded this cause on August 29, 2006 to the district court,

with the mandate being received on August 31, 2006.

Undersigned counsel’s office was contacted by telephone by

the district court on August 31, 2006. At the time of the call,

undersigned counsel was out of town conducting attorney visits

with clients on Florida’s Death Row, including Mr. Hill.

Undersigned counsel then arrived back at his office at

-6-

approximately 5:00 p.m. At this time, undersigned learned

through his assistant of the district court’s directive that all

pleadings in this matter were to be filed by the parties prior to

12:00 p.m., September 1, 2006. Undersigned counsel, a sole

practitioner, then had less than twenty-four hours to comply with

the district court’s order. Subsequently, Mr. Hill filed a motion

to file an amended complaint, an amended complaint, a motion for

expedited discovery, propounded interrogatories, requested

admissions, requested production, and moved for a temporary

injunction staying Mr. Hill’s execution. On that very same date,

September 1, 2006, the district court entered its Order

Dismissing Complaint. The following business day, September 5,

2006, Mr. Hill filed his motion for reconsideration and his

motion for temporary injunction. The motion for temporary

injunction was intended upon being filed electronically on

September 1, 2006; however, either due to an error in

transmission or counsel’s error due to fatigue from working all

night to comply with the district’s court order the motion was

not docketed until September 5, 2006. On September 11, 2006, the

district court issued an Order Denying Motion for Reconsideration

and Motion for Stay.

Petitioner then filed his Application for Stay of Execution

and for Expedited Appeal on September 13, 2006 before the

September 12, 2006 because counsel for Mr. Hill was arguing

-7-

response in opposition on September 14, 2006. On September 15,

2006, the Eleventh Circuit denied the stay, denied the request

for expedited briefing and refused to hear Mr. Hill’s appeal

based upon its determination that Mr. Hill was dilatory in

seeking relief. This petition for certiorari follows the Eleventh

Circuit’s erroneous ruling.

FACTS RELEVANT TO QUESTIONS PRESENTED

2096 (2006), the Eleventh Circuit Court of Appeals received the

remand on July 18, 2006. Subsequently, in an apparent response

to the fact that thirty days passed without any action by the

Eleventh Circuit, on August 17, 2006 Florida’s Governor reset Mr.

Hill’s execution date for Wednesday, September 20, 2006. See

Appendix C, Letter from Attorney General Charlie Crist to

Governor Bush dated August 17, 2006.

Despite the action by the Governor, the Eleventh Circuit

refrained from remanding Mr. Hill’s case back to the district

court for consideration of his § 1983 action. Only after Mr. Hill

filed a motion for immediate remand did the circuit court remand

-8-

On remand to the district court, in his amended complaint

filed under 42 U.S.C. § 1983, Mr. Hill challenged the three drug

protocol used by the State of Florida in its lethal injection

procedure. The challenge was premised on the study published in

the medical journal THE LANCET. The study was published in

April, 2005, and detailed the results of research on the effects

of chemicals in lethal injections. See 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). 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 infliction of pain on a person being executed. The

authors found that in toxicology reports in the cases they

studied, post-mortem 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. In other words, in close to half of the

cases, the prisoner felt the suffering of suffocation from

utilized in executions in Florida to the best of Mr. Hill’s

knowledge is identical to that identified in the study.

-9-

pancuronium bromide, and the burning through the veins followed

Mr. Hill also amended his complaint to reflect new

developments that had occurred subsequent to the granting of

certiorari by this Court. Further, Mr. Hill argued that these

developments clearly supported his request for discovery. For

example, in California, shortly before his execution date was

scheduled, Michael Morales filed a challenge to the lethal

injection protocol used by the State of California in its

(N.D. Cal. 2006). Specifically, like Mr. Hill, Morales

challenged the amount of sodium pentothal used and the use of

California, a condemned inmate is administered five (5) grams of

sodium pentothal, whereas in Florida a condemned inmate is

administered "‘no less than’ two grams of sodium pentothal, an

ultra-short-acting barbiturate which renders the inmate

After the United States Supreme Court stayed Mr. Hill’s

execution, a district court judge in California granted Morales

discovery. Thus, Morales received the detailed execution logs

from several of the recent executions in the State of California.

-10-

that a high dose of sodium pentothal causes a condemned’s loss of

consciousness and respiration to cease within a minute, in many

executions respiration and consciousness do not cease several

pertinent details about the execution logs:

Jaturun Siripongs, executed February 9, 1999: The

administration of sodium thiopental began at 12:04 a.m.

and the administration of pancuronium bromide began at

12:08 a.m., yet respirations did not cease until 12:09

a.m., four minutes after the administration of sodium

thiopental began and one minute after the

administration of pancuronium bromide began.

Manuel Babbitt, executed May 4, 1999: The

administration of sodium thiopental began at 12:28 a.m.

and the administration of pancuronium bromide began at

12:31 a.m., yet respirations did not cease until 12:33

a.m., five minutes after the administration of sodium

thiopental began and two minutes after the

administration of pancuronium bromide began. In

addition, brief spasmodic movements were observed in

the upper chest at 12:32 a.m.

Darrell Keith Rich, executed March 15, 2000: The

administration of sodium thiopental began at 12:06 a.m.

and the administration of pancuronium bromide began at

12:08 a.m., yet respirations did not cease until 12:08

a.m., when pancuronium bromide was injected, two

minutes after the administration of sodium thiopental

began. Chest movements were observed from 12:09 a.m. to

12:10 a.m.

Stephen Wayne Anderson, executed January 29, 2002: The

administration of sodium thiopental began at 12:17 a.m.

and the administration of pancuronium bromide began at

12:19 a.m., yet respirations did not cease until 12:22

a.m., five minutes after the administration of sodium

thiopental began and three minutes after the

administration of pancuronium bromide began.

potassium chloride were required to stop the beating of the

the district court noted the evidence from the eyewitnesses

“tending to show that many inmates continue to breathe long after

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Stanley Tookie Williams, executed December 13, 2005:

The administration of sodium thiopental began at 12:22

a.m., the administration of pancuronium bromide began

at 12:28 a.m., and the administration of potassium

chloride began at 12:32 a.m. or 12:34 a.m., yet

respirations did not cease until either 12:28 a.m. or

12:34 a.m. -- that is, either six or twelve minutes

after the administration of sodium thiopental began,

either when or six minutes after the administration of

pancuronium bromide began, and either four minutes

before or when the administration of potassium chloride

began.

Clarence Ray Allen, executed January 17, 2006: The

administration of sodium thiopental began at 12:18

a.m., yet respirations did not cease until 12:27 a.m.,

when pancuronium bromide was injected, nine minutes

after the administration of sodium thiopental began.

The recent evidence that has surfaced in California, only

after discovery was received, and after Mr. Hill’s case was

stayed by this Court, supports and corroborates the newly

discovered evidence contained in the Lancet article, upon which

Mr. Hill relied in his § 1983 action.

Indeed, following the evidence that surfaced after discovery

was disclosed about the recent executions in California, a

district court in Ohio granted a condemned inmate’s request for

2006 U.S. Dist. LEXIS 24496, 13.

-12-

preliminary injunction based on a challenge to the chemicals and

the amount of chemicals used in the execution procedures in

this Court would be remiss if it did not take note of

concerns about whether a condemned inmate would be

sufficiently anesthetized under Ohio’s lethal-injection

protocol prior to and while being executed, especially

considering that the dose of sodium thiopental

prescribed under Ohio’s lethal-injection protocol (2

grams) is less than that prescribed under California’s

protocol (5 grams) and that prescribed under North

Carolina’s protocol (3000 mg).”

LEXIS 24496, 13. The district court referenced the execution logs

information.

levels of sodium pentothal being less than what would be

submitted from witnesses present at recent executions who had

seen condemned inmates writhing and convulsing after the

administration of the sodium pentothal, which was inconsistent

with the notion that the inmates had lost consciousness.

-13-

consistent and supports the recent scientific research published

in the Lancet article.

court found: “Given the evidence that has begun to emerge calling

this and other conclusions by Dr. Dershwitz into question, the

Court is persuaded that there is an unacceptable and unnecessary

risk that Plaintiff Hill will be irreparably harmed absent the

injunction, i.e., that Plaintiff Hill could suffer unnecessary

and excruciating pain while being executed in violation of his

found that “[i]n view of the lack of development of the record in

this case, this Court does not feel that it is in a position to

avoid the issuance of a preliminary injunction by fashioning a

remedy by which Ohio could carry out the execution of Plaintiff

Also, recently in Missouri, an evidentiary hearing was held

and discovery regarding Missouri’s recent executions was

disclosed to Michael Taylor, a condemned inmate challenging the

lethal injection protocol used in executions. Information was

revealed that showed that “unacceptable” risks existed in

Missouri’s execution procedures that may cause a condemned inmate

U.S. Dist. LEXIS 42949, 22 (June 26, 2006). That information

-14-

included: 1) no written protocol existed; 2) that the State had

misrepresented the amount of sodium thiopental that had been

administered in recent executions; five (5) grams was to have

been administered, but only two and a half (2.5) grams were

actually administered; 3) the doctor overseeing the executions

was not an anesthesiologist, but rather a surgeon, who was not

well versed in mixing and dissolving the chemicals used in the

execution protocol and who believed he could modify the amount of

chemicals and/or protocol at his discretion; and 4) there is no

means to monitor the anesthetic depth of the condemned during the

Of particular note to Mr. Hill’s case is that the district

had been decreased from five (5) grams to two and a half (2.5)

grams, which is still more than the State of Florida intends to

importance of being provided discovery about execution procedures

as well as information about recent executions – information to

which Mr. Hill has been completely denied.

Thus, as Mr. Hill explained in his amended § 1983 action,

since this Court granted Mr. Hill a stay of execution, new,

critical information has surfaced that undermines the theories

that originally supported the current lethal injection protocols

used in states, including Florida. This new information

-15-

demonstrates the flaws in Florida’s current lethal injection

protocols and at a minimum supports Mr. Hill’s claim that under

the current Florida lethal injection protocol he will suffer

unnecessary and excruciating pain while being executed in

violation of his Eighth Amendment right not to be subjected to

cruel and unusual punishment.

THE FEDERAL COURTS’ RULINGS

The district court granted the State of Florida’s amended

motion to dismiss, declined to issue a stay of execution, and

dismissed Mr. Hill’s Amended Verified Complaint for Declaratory

032-SPM, (N.D. Fla. 2006) . The district court then denied Mr.

In denying Mr. Hill’s motion for a stay of execution and for

expedited appeal, the Eleventh Circuit determined that the

equities did not support Hill’s request:

Simply put, Hill was the architect of the very trap

from which he now seeks relief. At the outset, Hill

filed his § 1983 complaint four days before his

previously scheduled execution date of January 24,

2006, and just after the Florida Supreme Court rejected

his application for post-conviction relief on, among

other grounds, his challenge to the Florida lethal

injection protocol. See Hill v. State, 921 So. 2d 579,

582–83 (Fla. 2006). Hill’s assertion of essentially

the same lethal injection challenge in the Florida

courts reveals that he was aware of the grounds for the

claim much earlier than the date on which he actually

filed his § 1983 action in federal district court. But

we need not rely on that inference alone to determine

lethal injection challenge during post-conviction proceedings.

-16-

that Hill unreasonably delayed in filing his federal

complaint. The Florida Supreme Court considered a

challenge to the Florida lethal injection protocols on

similar grounds as early as 2000. Sims v. State, 754

unclear from the procedural history whether Hill

addressed the Sims precedent in his post-conviction

proceedings after 2000, the fact remains that, during

the pendency of his various collateral challenges,

Florida had considered the same type of claim upon

which Hill now seeks relief. In light of this context,

Hill cannot claim that it was impossible for him to

initiate his federal suit any earlier.

Further, with regard to more recent procedural

history, Hill has again demonstrated his intent to

delay proceedings in order to necessitate a stay.

After the district court denied his request for

injunctive relief and dismissed his complaint, Hill

moved for reconsideration and, again, for a stay of

execution. The district court denied his motions on

September 11, 2006, noting that “Hill’s emotionallyladen

arguments raise no new evidence. . . . [I]t

appears that Hill is engaging in dilatory tactics to

delay a death sentence.” Order Denying Motion for

Reconsideration and Motion for Stay at 2–3, Hill v.

McDonough, No. 4:06-CV-032-SPM (N.D. Fla. Sept. 11,

2006). By moving for reconsideration, Hill only

further delayed this court’s receipt of his case on

appeal, bringing us within days of his scheduled

execution before he filed the instant motion for a stay

and expedited appeal.

In light of Hill’s actions in this case, which can

only be described as dilatory, we join our sister

circuits in declining to allow further litigation of a

§ 1983 case filed essentially on the eve of execution.

See White v. Johnson, 429 F.3d 572, 573–74 (5th Cir.

2005) (holding that even if the condemned inmate’s §

1983 action was cognizable, “‘he is not entitled to the

equitable relief he seeks’ due to his dilatory filing”

(citations omitted)); Harris v. Johnson, 376 F.3d 414,

417–18 (5th Cir. 2004) (condemned inmate who filed §

1983 action ten weeks before his scheduled execution

“leaves little doubt that the real purpose behind his

-17-

claim is to seek a delay of his execution, not merely

to effect an alteration of the manner in which it is

carried out”); see generally Hicks v. Taft, 431 F.3d

916 (6th Cir. 2005); Cooper v. Rimmer, 379 F.3d 1029

(9th Cir. 2004). This holding is consistent with the

Supreme Court’s instruction in its remand of Hill’s

case that “[a] court considering a stay must also apply

‘a strong equitable presumption against the grant of a

stay where a claim could have been brought at such time

as to allow consideration of the merits without

requiring entry of a stay.’” Hill v. McDonough, 547

U.S. at ---, 126 S. Ct. at 2104 (citation omitted).

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD REVIEW THE ISSUES SURROUNDING THE FEDERAL

COURTS’ CONSIDERATION OF EQUITIES IN DENYING MR. HILL A

STAY OF EXECUTION AND A TEMPORARY INJUNCTION.

A. Equities consideration after remand

held that Mr. Hill’s claim under 42 U.S.C. § 1983 was

124 S.Ct. 2117 (2004), and that Mr. Hill should be allowed to

proceed under § 1983.

This Court also noted that a stay of execution is an

seeking time to challenge the manner in which the State plans to

execute them must satisfy all of the requirements for a stay,

including a showing of a significant possibility of success on

stay must also apply ‘a strong equitable presumption against the

grant of a stay where a claim could have been brought at such a

-18-

time as to allow consideration of the merits without requiring

In denying Mr. Hill’s requested relief, the Eleventh

Circuit determined that Hill was dilatory by filing his original

§ 1983 complaint four days before his execution and by filing a

motion for reconsideration after the denial of his amended

Eleventh Circuit concluded that “In light of Hill’s actions in

this case, which can only be described as dilatory, we join our

sister circuits in declining to allow further litigation of a §

(citations omitted).

In making this determination, the Eleventh Circuit ignores

the fact that it “was the architect of the very trap from which

[Hill][] now seeks relief.” When Mr. Hill’s case was remanded by

execution was no longer imminent. This change in circumstances,

not only changed the equities, it rendered an analysis of the

equities moot because the equities are to be considered in

an inmate states a cognizable § 1983 claim does not warrant the

(1992)(“A court may consider the last minute nature of an

application to stay an execution whether to grant equitable

relief.”).

whether a §1983 plaintiff was entitled to a stay of execution

during the pendency of the lawsuit. This Court explained, “the

mere fact that an inmate states a cognizable §1983 claim does

not warrant the entry of a stay as a matter of right.” As to

This claim could have been brought more than a decade

ago. There is no good reason for this abusive delay,

which has been compounded by last-minute attempts to

manipulate the judicial process. A court may consider

the last-minute nature of an application to stay

execution in deciding whether to grant equitable

relief.

However, since there was no scheduled execution at the time

Ultimately, Mr. Hill was not permitted to proceed on his § 1983

action without a looming execution date solely because of the

actions by the State and the court. Despite this Court’s remand

on July 14, 2006, the Eleventh Circuit failed to take any action

on Mr. Hill’s case. Thirty days passed without any instruction

from the Eleventh Circuit and, significantly, without any

execution date having been scheduled by the State of Florida.

Then, in an apparent response to the inaction by the Eleventh

Circuit, on August 17, 2006 Florida’s Governor reset Mr. Hill’s

execution date for Wednesday, September 20, 2006. See Appendix

C, Letter from Attorney General Charlie Crist to Governor Bush

dated August 17, 2006.

Despite the action by the Governor, the Eleventh Circuit

still refrained from remanding Mr. Hill’s case back to the

district court for consideration of his § 1983 action. Only

after Mr. Hill filed a motion for immediate remand did the

Clearly, the scheduling of Mr. Hill’s execution was enacted

in order to obtain a strategic advantage in the § 1983

proceedings, to change the balance of equities. This was done

to preclude judicial resolution and violated Mr. Hill’s right to

due process. 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

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

-21-

be penalized because the lower court and the State forced him to

proceed on his § 1983 “on the eve” of execution.

B. Equities have been changed by circumstances

In faulting Mr. Hill for not raising his original § 1983

action at an earlier time, the Eleventh Circuit fails to

precedent 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 originally dismissed Mr. Hill’s claim based upon that

precedent. It was only on January 24, 2006 – when this Court

the Eleventh Circuit’s determination that district courts lack

June 20, 2006).

Cir. 2004).

-22-

jurisdiction to consider claims like Mr. Hill’s was correct –

that the validity of this precedent was called into question.

Prior Eleventh Circuit precedent was succinctly explained

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

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 cases cited by

curiam), there is “good reason” in this case for the failure to

present this claim previously. According to the binding

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.

transcript at 29.

-23-

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

habeas petition challenging the protocol employed by the State

of Florida for carrying out a lethal injection execution, nor a

§1983 complaint.

The Eleventh Circuit is incorrect in asserting that Mr.

Hill could have brought his claim in the years preceding the

date his execution was scheduled. Not only did the court’s

binding case law preclude it, Mr. Hill’s challenge could not

have become ripe before his death warrant issued, because it was

only at that time that the Florida Department of Corrections

(“DOC”) was obliged to begin planning to conduct his execution,

and only at that point that Mr. Hill could attempt to ascertain

the specific means by which the State meant to carry out his

DOC retains complete discretion over how lethal injections will

-24-

be carried out, and it 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

access. Nor does any Florida statute even require that such

procedures be devised through rule-making process, or in

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. DOC,

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 particular execution. The State has

never disputed that DOC 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

whatsoever to records, policies, procedures, or any other

information concerning its lethal injection protocols and

procedures.

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.

-25-

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

the condemned person of inequitable conduct because he must wait

until his death warrant is issued to ascertain the particular

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

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

§ 2254(b)(1)(A).

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.

-26-

court, in order to defend against an argument that he had failed

on procedural grounds in state court, he filed his § 1983

action. The aforementioned facts establish that Mr. Hill was

diligent in filing his §1983 claim. Unfortunately, the district

court’s order nor the Eleventh Circuit’s order 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 inadequate than ever imagined. As none of this information

-27-

cannot be faulted for failing to raise the issue.

C. Merits review in equities consideration

L.Ed.2d 1144, 2006 U.S. LEXIS 1074 (January 25, 2006),the

outcome of §1983 lethal injection around the country has been

random and arbitrary. Condemned inmates in similar positions to

Mr. Hill have been permitted stays of execution, and some have

been allowed to pursue litigation in order to have the merits of

their claim reviewed. In other circuits, however, inmates with

the exact same constitutional challenge have been executed

without consideration of their claims, despite the fact that

such an analysis is required in order to assess the equities

involved in granting a stay and/or a temporary injunction.

The disparity in the circuits’ approach to lethal injection

challenges is widespread and striking. Executions have been put

on hold pending extensive hearings on the lethal injection issue

C06-926-JF-RS (N.D. Cal. 2006). Similarly, in Missouri, a

federal district judge has ordered a new lethal injection

protocol and halted executions in that state until at least

(W.D. Mo.), Docs. 195, 213. Federal judges in Arkansas and

modeled upon Oklahoma’s, which was altered in response to the

Cir.). In South Dakota, the governor halted an execution at the

last minute amid concerns regarding the state’s lethal injection

procedure and asked the state legislature to amend the statute

on lethal injections.

Likewise, in Oklahoma, the state voluntarily changed its

Carolina revised their lethal injection procedures in response

60084 (E.D. N.C. 2006).

Yet despite the recognition by numerous states and circuits

that lethal injection procedures merit review, executions have

proceeded in other states - - states which have lethal injection

protocols substantially similar, if not exactly the same, as

states which have halted their executions. Texas, for example,

has executed 21 people this year by lethal injection, fully half

of all the executions in the country for 2006.

As one judge in a Tennessee capital case cogently observed

regarding the wide disparity and arbitrary nature of court

-29-

responses to lethal injection challenges and their

arbitrariness:

[T]he dysfunctional patchwork of stays and executions

going on in this country further undermines the various

states’ effectiveness and ability to properly carry out

system wherein condemned inmates are bringing near

identical challenges to the lethal injection procedure.

In some instances stays are granted, while in others

they are not and the defendants are executed, with no

principled distinction to justify such a result.

2006)(Martin, J., dissenting from denial of a rehearing

en banc)(emphasis added).

A review of lethal injection litigation around the country

demonstrates that courts have developed essentially two methods

to handle lethal injection claims. One approach, utilized by the

Fourth, Fifth, and (now) Eleventh Circuits, is to deny both the

claim and the stay based upon dilatoriness, without any

examination of the merits in assessing the equities involved.

method, which has been used in the Eighth, Ninth, and Tenth

Circuits, is that a stay is denied, but the case is not

dismissed. Rather, the case is permitted to proceed on a fasttrack

basis, and if the plaintiff develops enough evidence, a

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

Circuit to assume that the parties could not address Mr. Hill’s

claims prior to his September 20, 2006 execution date.

-30-

amount of time, and enough discovery and testimony were adduced

to allow meaningful consideration to be given to the plaintiffs’

claims. Clearly, these cases demonstrate that it is possible to

Yet there is no doubt that with an issue as grave and

weighty as lethal injection, the courts should permit thorough

and meaningful litigation. The procedural history in Mr. Taylor’s

case is instructive as to the perils of attempting to litigate

lethal injection claims at a moment’s notice when a state

-31-

arbitrarily sets an execution date to gain an advantage in a

§1983 lethal injection case. During the pendency of Mr. Taylor’s

lethal injection challenge the State of Missouri arbitrarily set

district court then stayed the execution and set an evidentiary

hearing on Mr. Taylor’s claims for February 21, 2006. The

district court’s stated reason for the stay was that it could not

accommodate a hearing in Mr. Taylor’s case prior to February 21,

The State of Missouri appealed the issuance of a stay and

the Eighth Circuit vacated the stay and remanded to the district

court on January 29, 2006 with instructions to assign a district

court judge that could immediately hold a hearing and issue a

ruling prior to the scheduled February 1, 2006 execution. See

On remand the district court judge immediately conducted a

hearing on January 30 and 31, 2006, while making it clear the

hearing would be conducted in accord with the Eighth Circuit’s

discovery and unable to procure the attendance of indispensable

immediately appealed the district court’s adverse order,

location, depending upon the outcome of these proceedings, he may

be executed pursuant to a lethal injection procedure strikingly

similar to Missouri’s.

-32-

asserting that “the expedited and truncated hearing before the

district court denied him due process” and that it was erroneous

for the court to preclude him from calling necessary witnesses

Taylor’s request for a stay and his motion for rehearing, and

returned the case to the panel for briefing and oral argument.

is enlightening:

Having reviewed the record made before the

district court, we now realize the burdensome

strain that our order imposed upon the district

court as well as upon the parties as they made

extraordinary efforts to comply. We herby offer

court and the parties to do too much in too little

time.

After remand, Mr. Taylor was able to engage in meaningful

discovery that exposed serious flaws in Missouri’s execution

procedures resulting in the district court judge ruling their

Unfortunately for Mr. Hill, despite this Court’s ruling in

-33-

his timely and good faith efforts to pursue his §1983 claim, he

was never given the opportunity for any kind of discovery or

evidentiary hearing whatsoever. The merits of his claim were

never examined in any meaningful capacity.

The procedural history of Mr. Hill’s § 1983 challenge has

placed the Eleventh Circuit squarely in conflict with the Sixth,

Eighth, Ninth, and Tenth Circuits. This conflict, and the

arbitrary disparity around the country which seemingly depends

upon nothing but geography, now unconstitutionally imperils Mr.

Hill’s life. Mr. Hill should have been allowed to pursue

discovery and present evidence in support of his claim and

receive a judicial resolution on the merits. Instead, at this

point this litigation is no further along than when this Court

granted certiorari on January 25, 2006. It is difficult to

believe that is the outcome this Court contemplated when it

CONCLUSION

Petitioner, Clarence Edward Hill, requests that certiorari

review be granted.

-34-

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 PETITIONER

Copies furnished to:

Carolyn Snurkowski

Assistant Attorney General

Office of the Attorney General

Plaza Level 1

The Capitol

Tallahassee, FL 32399