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B. Ventura's Lethal-Injection Claim











i. Ventura has Merely Reiterated the Claims Presented by Lightbourne and



Schwab






We have repeatedly and consistently rejected Eighth Amendment4 challenges to Florida's current lethal-injection protocol. See Tompkins v. State, 994 So. 2d 1072, 1080-82 (Fla. 2008); Power v. State, 992 So. 2d 218, 220-21 (Fla. 2008); ***ton v. State, 33 Fla. L. Weekly S686, S691 (Fla. Sept. 18, 2008); Schwab v. State, 995 So. 2d 922, 924-33 (Fla. 2008); Woodel v. State, 985 So. 2d 524, 533-34 (Fla. 2008), cert. denied, 129 S. Ct. 607 (2008); Lebron v. State, 982 So. 2d 649, 666 (Fla. 2008); Schwab v. State, 982 So. 2d 1158, 1159-60 (Fla. 2008); Lightbourne v. McCollum, 969 So. 2d 326, 350-53 (Fla. 2007). In his postconviction motion and brief to this Court, Ventura has simply re-alleged the criticisms of Florida's revised protocol that Lightbourne and his expert, Dr. Heath, presented in 2007. See Lightbourne, 969 So. 2d at 347-49. Ventura has not presented any allegations beyond those of Lightbourne and Schwab (who predicated his claims upon those of Lightbourne).















4. The prohibition against "cruel or unusual punishment" present in the Florida Constitution "shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution." Art. I, § 17, Fla. Const.







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This Court has thus previously rejected each of these challenges to Florida's lethal-injection protocol and--based upon the sound principle of stare decisis--we continue the same course here. See, e.g., Lightbourne, 969 So. 2d at 349-53; Schwab, 969 So. 2d at 321-25. As we stated in Schwab, "Given the record in Lightbourne and our extensive analysis in our opinion in Lightbourne v. McCollum, we reject the conclusion that lethal injection as applied in Florida is unconstitutional." Schwab, 969 So. 2d at 325.


ii. Baze Does Not Require Reconsideration of Lightbourne and Related



Decisions








The only "new" contention Ventura presents is that our recent lethal- injection decisions, including Lightbourne, have not applied the standard articulated by the Baze plurality. However, Ventura overlooks that we explicitly held in Lightbourne:


In light of the[] additional safeguards [present in the August 2007 lethal-injection protocol] and the amount of the sodium pentothal used, which is a lethal dose in itself, we conclude that [the petitioner] has not shown a substantial, foreseeable or unnecessary risk of pain in the DOC's procedures for carrying out the death penalty through lethal injection that would violate the Eighth Amendment . . . .


969 So. 2d at 352-53 (footnote omitted) (emphasis supplied). Our analysis thus provided that Florida's current lethal-injection protocol is constitutional under either a substantial-risk, foreseeable-risk, or unnecessary-risk standard. This Court also recently observed in Tompkins that "we have rejected contentions that Baze







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set a different or higher standard for lethal injection claims than Lightbourne." 994 So. 2d at 1081. We now take this occasion to explain why this is so.


The disjunctive phrasing of our holding in Lightbourne has proven prescient because the United States Supreme Court has not yet adopted a majority standard for determining the constitutionality of a mode of execution. See generally Baze v. Rees, 128 S. Ct. 1520 (2008). Specifically, the Baze plurality adopted a version of the substantial-risk standard,5 while Justice Breyer, concurring in the judgment, and Justices Ginsburg and Souter, dissenting, adopted a version of the












5. In relevant part, the plurality stated:




[A]n inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the State's legitimate interest in carrying out a sentence of death in a timely manner. . . .


. . . A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard. . . .


. . . State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to "objectively intolerable risk," Farmer[



v. Brennan], 511 U.S. [825, 846,] and n.9 [(1994)], not simply the possibility of pain.



Baze, 128 S. Ct. at 1537 (Roberts, C.J., joined by Kennedy and Alito, JJ.) (emphasis supplied).








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unnecessary-risk standard. See id. at 1525-38 (Roberts, C.J., joined by Kennedy and Alito, JJ.); id. at 1563-67 (Breyer, J., concurring in the judgment);6 id. at 1567- 72 (Ginsburg, J., dissenting, joined by Souter, J.). In contrast, Justices Thomas and Scalia renounced any risk-based standard in favor of a rule of law that would uphold any method of execution which does not involve the purposeful7 infliction of "pain and suffering beyond that necessary to cause death." Id. at 1556-63 (Thomas, J., concurring in the judgment, joined by Scalia, J.). Justice Stevens did not provide a separate standard but, instead, expressed general disagreement with




(1) the death penalty based upon his long experience with these cases and the purported erosion of the penalty's theoretical underpinnings (deterrence, incapacitation, and retribution), and (2) the allegedly unnecessary use of the paralytic drug pancuronium bromide. See id. at 1542-52 (Stevens, J., concurring in the judgment).


Hence, the Baze Court did not provide a majority opinion or decision. In turn, this lack of consensus has complicated our duty to interpret article I, section












6. Justice Breyer prefaced his concurrence in the judgment by stating: "In respect to how a court should review such a claim, I agree with Justice Ginsburg. She highlights the relevant question, whether the method creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering." Baze, 128 S.


Ct. at 1563 (Breyer, J., concurring in the judgment) (citing Justice Ginsburg's dissent at 1572) (some emphasis supplied).








7.



See Black's Law Dictionary 1272 (8th ed. 2004) ("purposeful, adj. Done with a specific purpose in mind; DELIBERATE.").







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17 of the Florida Constitution "in conformity with the decisions of the United States Supreme Court"8 concerning the Eighth Amendment's bar against "cruel and unusual punishments." Under normal circumstances, we would resort to the "narrowest grounds" analysis presented in Marks v. United States, 430 U.S. 188, 193 (1977), which provides that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)). However, there are no reliable means of determining the "narrowest grounds" presented in Baze because three blocks of Justices provided three separate standards for determining the constitutionality of a mode of execution. We addressed this issue in Henyard




v. State, 992 So. 2d 120 (Fla. 2008):


We have previously concluded in Lightbourne and Schwab that the Florida protocols do not violate any of the possible standards, and that holding cannot conflict with the narrow holding in Baze. Furthermore, we have specifically rejected the argument that Florida's current lethal injection protocol carries "a substantial, foreseeable, or unnecessary risk of pain." Lightbourne, 969 So. 2d at 353.


Accordingly, we reject [appellant's] argument [that we should reconsider Lightbourne and Schwab in light of Baze].
















8. Art. I, § 17, Fla. Const. (emphasis supplied).







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Id. at 130 (emphasis supplied). Consequently, Florida's current lethal-injection protocol passes muster under any of the risk-based standards considered by the Baze Court (and would also easily satisfy the intent-based standard advocated by Justices Thomas and Scalia).




We also recently upheld and adopted a trial court's analysis concluding that Florida's lethal-injection protocol is "substantially similar" to that of Kentucky.


See Schwab, 995 So. 2d at 924-33. This holding brings Florida's lethal-injection protocol squarely within the safe harbor created by the Baze plurality. Baze, 128




S. Ct. at 1537 (Roberts, C.J., joined by Kennedy and Alito, JJ.) ("A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard." (emphasis supplied)); see also Baze, 128 S. Ct. at 1569-71 (Ginsburg, J., dissenting, joined by Souter, J.) (favorably contrasting Florida's consciousness assessment with that of Kentucky and strongly indicating that even the Baze dissenters would have approved Florida's current lethal-injection protocol under an Eighth Amendment analysis).


In its current form, Florida's lethal-injection protocol ensures unconsciousness through a pause between the injection of a lethal dose of sodium pentothal (a potent coma-inducing barbiturate) and the injection of the second and third drugs, during which time the warden engages in a thorough consciousness assessment (brushing the condemned's eye lashes, calling the condemned's name,







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and shaking the condemned). Further, we have held that the condemned inmate's lack of consciousness is the focus of the constitutional inquiry. See generally Lightbourne, 969 So. 2d 326 (repeatedly stressing the significance of the undisputed fact that a sufficient dose of sodium pentothal renders the condemned unconscious and that this lack of consciousness precludes the perception of any pain associated with the later injection of pancuronium bromide and potassium chloride).


Accordingly, in light of Ventura's failure to comply with rule 3.851(e)(2)(C) and the meritless nature of his lethal-injection claim, we affirm the circuit court's summary denial of his most recent successive postconviction motion.





C. Ventura's All-Writs Petition






Following Ventura's appeal from the summary denial of his most recent postconviction motion, he filed a pro se petition seeking to invoke our all-writs jurisdiction under article V, section 3(b)(7) of the Florida Constitution.9 Through this petition, Ventura requests that we:












9. Any exercise of jurisdiction with regard to Ventura's pro se all-writs petition would necessarily aid this tribunal in the "complete exercise of its jurisdiction" concerning this capital case. Art. V, § 3(b)(7), Fla. Const.; see also art. V, § 3(b)(1), Fla. Const.; Williams v. State, 913 So. 2d 541, 543 (Fla. 2005) ("[T]he all writs provision [of article V, section 3(b)(7)] does not constitute a separate source of original or appellate jurisdiction. Rather, it operates in furtherance of the Court's `ultimate jurisdiction,' conferred elsewhere in the



[C]onstitution." (emphasis supplied)); State v. Fourth Dist. Court of Appeal, 697 So. 2d 70, 71 (Fla. 1997) ("[W]e now hold that in addition to our appellate







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(1) Conduct a hearing under section 27.711(12), Florida Statutes (2007), to determine whether his appointed CCRC attorney incompetently and untimely filed his reply brief in the underlying postconviction appeal;




(2) Grant him the opportunity to file a new rule 3.851 postconviction motion with the relevant circuit court; and




(3) Appoint new postconviction counsel to represent him during this successive postconviction litigation.



We deny this petition as meritless. Ventura invokes our supervisory authority under section 27.711(12) to monitor whether postconviction counsel is providing "quality representation." As previously stated, Ventura contends that his CCRC attorney untimely filed his reply brief in this case. However, Ventura is mistaken because appointed counsel timely served and filed the reply brief during August 2008.


On February 29, 2008, we entered a briefing order requiring that Ventura serve his reply brief upon the State within forty days following service of the State's answer brief. After an intervening motion for extension of time (which we granted), and the filing of Ventura's initial brief, the State served its answer brief by U.S. mail upon Ventura's CCRC attorney on June 18, 2008. Florida Rule of


jurisdiction over sentences of death, we have exclusive jurisdiction to review all types of collateral proceedings in death penalty cases." (emphasis supplied)); Coleman v. State, 930 So. 2d 580, 580-81 (Fla. 2006) (considering allegations with regard to the performance of assigned postconviction counsel under section



27.711(12), Florida Statutes (2005), and remanding to the circuit court with instructions for the assigned attorney to respond to these allegations).







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Appellate Procedure 9.420(e)--"Additional Time After Service by Mail"-- provides as follows:


If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period.



(Emphasis supplied.) Consequently, because (1) the time period for service of Ventura's reply brief was dependent upon service of the State's answer brief, and




(2) the State served its brief by mail, Ventura had forty-five days following June 18, 2008,10 in which to serve his reply brief. Forty-five days from Wednesday, June 18, 2008, was Saturday, August 2, 2008. However, pursuant to rule 9.420(f) a Saturday, Sunday, or enumerated legal holiday may not serve as the final day of the applicable time period. Instead, "the period shall run until the end of the next day that is neither a Saturday, Sunday, nor holiday," which, in this case, was Monday, August 4, 2008. Ventura's CCRC attorney served the reply brief upon the State by U.S. mail on August 1, 2008, and the clerk's office stamped the reply brief as filed on August 4, 2008.











10. "In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included." Fla. R. App. P. 9.420(f) (emphasis supplied).
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