MOTION FOR OPPORTUNITY TO BE HEARD

IN THE SUPREME COURT OF FLORIDA

NO. SC06-2325

EMERGENCY CAPITAL CASE, DEATH WARRANT SIGNED;

EXECUTION SCHEDULED FOR DECEMBER 13, 2006 AT 6:00 P.M.

ANGEL NIEVES DIAZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

__________________________/

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

6:00 p.m.

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.

The

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

process.

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.

In fact,

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

mouth.

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

Instead,

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

protection.

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.

However, since

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

simply false.

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

Assistant CCRC

Florida Bar No. 0150177

BARBARA L. COSTA

Staff Attorney

Florida Bar No. 0014244

Capital Collateral Regional

Counsel - South

101 NE Third Avenue, Suite 400

Ft. Lauderdale, FL 33301

(954) 713-1284

Counsel for Defendant