IN THE SUPREME COURT OF FLORIDA
EMERGENCY CAPITAL CASE, DEATH WARRANT SIGNED;
EXECUTION SCHEDULED FOR DECEMBER 13, 2006 AT 6:00 P.M.
ANGEL NIEVES DIAZ,
STATE OF FLORIDA,
MOTION FOR OPPORTUNITY TO BE HEARD
COMES NOW, ANGEL NIEVES DIAZ, Petitioner, by and through
undersigned counsel and moves this Court to allow him the opportunity to be heard and
as grounds therefore asserts:
1. Mr. Diaz is presently scheduled to be executed on December 13, 2006, at
2. On December 5, 2006, Mr. Diaz filed a Petition Seeking to Invoke this
Court’s All Writs Jurisdiction, arguing that this Court’s decision in Butterworth v. Kenny,
714 So. 2d 404 (1998), improperly denies Mr. Diaz due process in that it precludes his
collateral counsel from raising an Eighth Amendment claim challenging the method of
his execution in federal court via the only avenue that a federal court has jurisdiction at
this juncture to consider.
3. This Court entered an order requiring Respondents to respond by 9:00
a.m. on December 6, 2006, but precluding Mr. Diaz from filing a reply..4.
Just before 9:00 a.m., undersigned received the Respondent’s Response to
Mr. Diaz’s Petition. This Response raises new matters and issues, and contains blatantly
deceptive assertions and arguments. Denying Mr. Diaz an opportunity to address these
matters violates Mr. Diaz’s due process rights, specifically the right to fair notice and
reasonable opportunity to be heard.
5. For example, in the Response the State advances the argument that the
Petition improperly seeks a declaratory judgment.1 Of course, the State made a similar
argument in Jones v. Butterworth, 691 So. 2d 481 (Fla. 1997), when it asserted that Mr.
Jones was seeking a declaratory judgment that electrocution was unconstitutional.
However, the State’s position was rejected.
Now, in its current Response, the State has
developed amnesia as to what occurred in Jones, and instead argues that this Court
implicitly treated that claim as a habeas corpus claim.
However, this Court has
repeatedly said that claims which warrant evidentiary development may not be presented
in a habeas petition, but must be presented in a Rule 3.850 motion.
6. Moreover after Jones, this Court exercised its all writs jurisdiction to
entertain Mr. Provenzano’s claim that electrocution was unconstitutional when he
petitioned this Court the day after Allen Davis’ execution.
This Court also exercised its
all writs jurisdiction earlier this year when it entertained the all writs petition filed by
A.D. Rutherford, compelling the State to disclose the newly adopted execution protocol.
1 Respondent does not explain why a challenge to this Court’s ruling in Butterworth v.
Kenny constitutes a request for a declaratory judgment.
This Court’s decision in
Butterworth occurred in quo warranto proceeding, and this Court at the Attorney General’s
request construed the statute creating CCRC-South.
Since this Court had jurisdiction to
address the issue of statutory construction and construed the statute in a fashion that Mr.
Diaz now argues violates his due process rights, surely this Court has jurisdiction to
reconsider its decision in light of the United States Supreme Court’s recent decision in Hill..
In none of these cases did the Petitioners bring a habeas petition. In fact, in each of these
instances, the Petitioners were precluded from presenting the issue in a habeas petition.
Accordingly, the statement in the Response that "the action that [Mr. Diaz] is attempting
to bring is not a habeas petition; it is a declaratory judgment action," (Response at 2-3)
completely misses the point - this statement ostensibly also applied to Mr. Jones, Mr.
Provenzano, and to Mr. Rutherford; and yet in each of those cases, this Court entertained
the all writs petition and decided the matter on the merits.
Implicit in such actions was
this Court’s determination that it had jurisdiction.2
Accordingly, Mr. Diaz relies upon
this Court’s action in those cases as establishing that this Court has jurisdiction to hear
and decide his petition.3
2 This Court had the jurisdiction to construe the statute in an original quo warranto
proceeding in Butterworth v. Kenny.
Apparently, it is the Attorney General’s position that
this Court has jurisdiction to construe the statute when he requests, but not when a capital
defendant requests that the adopted construction no longer comports with due process
because of changes in federal procedure adopted by the United States Supreme Court. The
Attorney General’s position that the playing field should not be level, may be
understandable in that he wants the field slanted in his favor; however, to so slant the
playing field is itself a violation of due process.
3 Interestingly, the State’s position seems to be advocating that Mr. Diaz, while the death
warrant is pending, should follow the procedure for securing a declaratory judgment.
position reflects opposing counsel’s knee jerk reaction to oppose whatever a collateral
attorney files without thought as to the ramifications. It is not unlike years ago when the
State argued that a capital defendant should go to the jurisdiction where public records were
held to challenge a failure to comply with Chapter 119. The State was successful in
convincing this Court in Hoffman v. State that its position was correct, only to spend years
regretting the delay caused by the cumbersome and time consuming process. So too here,
the potential for delay in seeking declaratory judgments will threaten the entire capital
Further, to the extent that the State argues that a declaratory judgment is required, the
State’s position surely must be a concession that CCRC-South may file a declaratory
judgment action, Butterworth v. Kenny notwithstanding; otherwise Mr. Diaz lacks counsel
to pursue the action in any manner other than the all writs route.
Mr. Diaz, as well as all of
CCRC-South’s other clients, certainly can seek a declaratory judgment and the cumbersome
process that obtaining one entails..6.
Moreover, Mr. Diaz needs the opportunity under due process to
demonstrate the serious inconsistencies inherent in the State’s position.
For example, the
State’s claims that this Court has jurisdiction in a habeas petition to hear a challenge to
the method by which an execution is to be carried out. However, this position contradicts
the remainder of the Response, wherein the State asserts that a method of execution
challenge does "not challenge the fact of his execution or the State’s ability to conduct
the execution by lethal injection." Response at 6.
Though the United States Supreme
Court did reach this conclusion in Hill in justifying the procedural ruling there, it was
over the State’s strenuous argument that a challenge to the method was a challenge to the
sentence. Since its position in Hill was rejected, the State has not eschewed this
argument it advanced there in any state court proceedings or before this Court.
the State of Florida has never argued that a method of execution challenge may not be
presented in a Rule 3.850 motion because it does not go to the constitutionality of either
the judgment or the sentence. In the Response, the State talks out of two sides of its
7. Such inconsistencies exemplify how the State’s entire Response is
premised on the failure to recognize the difference between a substantive constitutional
claim and the procedure for litigating that claim.
Certainly, the State does not contest
that Mr. Diaz has the right to have his state-paid collateral counsel present the substantive
claim challenging the method of his execution. In fact, the entire thrust of the Response
is a concession on this point.
However, the procedural rules adopted by this Court
concerning the manner in which such a substantive constitutional claim may be
presented, and the procedural rules adopted by the United States Supreme Court in Hill.concerning how those claims may be presented, are critically different.
This Court has no
more right to dictate to the United States Supreme Court the procedural rules to be
followed in federal court, than the United States Supreme Court has to dictate to this
Court the procedural rules to be utilized in state court.
The simple truth of the matter,
which State’s counsel ignores in the Response, is that Mr. Diaz has a means of presenting
his substantive claim to the federal courts – he can file a section 1983 action.4
the State attempts to get this Court to uphold its previous decision in Butterworth v.
Kenny, which was rendered at a time before the United States Supreme Court recognized
that the substantive Eighth Amendment claim (which this Court has found cognizable in
a Rule 3.850 motion) may be presented in a section 1983, even at a time when Congress
has precluded its presentation in a federal habeas petition.
When Butterworth v. Kenny
was decided, the result in Hill could not and was not anticipated. After Hill, that decision
appears to be an effort to dictate procedure in federal court. As such, it violates Mr.
Diaz’s due process rights, his right to access to the courts, and his right to equal
8. Further, the State’s position that the attorneys for Mr. Hill and Mr.
Rutherford were precluded from filing a section 1983 on behalf of their clients overlooks
one important fact – THEY WERE NOT PRECLUDED FROM FILING A SECTION
1983 ACTION ON BEHALF OF THEIR CLIENTS. The United States Supreme Court
heard their cases and addressed their claims. That fact is the controlling fact as to
4 If the State is so sure that Mr. Diaz has previously had the opportunity to present his
eighth amendment challenge to the August 16, 2006, lethal injection protocol why is it
attempting to preclude the filing of an action under Hill. Aren’t the arguments made in the
Response on this point, the arguments that the State should be making to the federal court?
If it is so confident of prevailing, why deny Mr. Diaz the opportunity to be heard by the
federal court..whether there is an equal protection violation in Mr. Diaz’s case, and clearly
demonstrates such an equal protection violation.
9. Finally, the State inexplicably argues that Mr. Diaz is not being denied
access to the courts because he previously has had access to the courts.
the Hill decision, which completely altered the legal landscape, and since the disclosure
that a new lethal injection protocol has been adopted, Mr. Diaz has NOT had access to
the federal courts.
A wealth of new factual and legal developments have occurred
regarding the constitutionality of the lethal injection protocol that Mr. Diaz has not had
the opportunity to present to the federal courts.
These include the new evidence that has
surfaced regarding the substantial Eighth Amendment problems inherent in the lethal
injection procedures first discussed in THE LANCET article, the litigation in Morales v.
Hickman, and the similar litigation in Ohio federal court, etc. The State’s argument that
Mr. Diaz has had the opportunity to litigate these new facts in light of the new law is
10. Mr. Diaz respectfully requests that this Court allow him the opportunity to
be heard (a basic component of due process) as to the State’s arguments and false
assertions presented in the Response when it contends that this Court does not have
jurisdiction to hear Mr. Diaz’s petition.
Mr. Diaz must be given an opportunity to
respond to the incorrect factual assertions made by Respondent.
11. At its core, due process means that a party has an opportunity to be heard.
In light of the State’s new arguments submitted this morning, Mr. Diaz must be permitted
to file a reply to the State’s Response..
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished via
facsimile Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650
Miami, Florida 33131 this 6th day of December 2006.
SUZANNE MYERS KEFFER
Florida Bar No. 0150177
BARBARA L. COSTA
Florida Bar No. 0014244
Capital Collateral Regional
Counsel - South
101 NE Third Avenue, Suite 400
Ft. Lauderdale, FL 33301
Counsel for Defendant