IN THE SUPREME COURT OF FLORIDA
NO. SC 06-2325
ANGEL NIEVES DIAZ,
STATE OF FLORIDA,
DEATH WARRANT SIGNED, EXECUTION SET
FOR December 13, 2006 AT 6:00 P.M.
PETITION SEEKING TO INVOKE THIS COURT’S ALL WRITS JURISDICTION
SUZANNE MYERS KEFFER
Assistant CCRC Florida Bar No. 0150177
Florida Bar No. 0150177
BARBARA L. COSTA Staff Attorney Florida Bar No. 0014244 Capital Collateral Regional Counsel - South 101 NE Third Avenue, Ste. 400 Ft. Lauderdale, FL 33301 (954) 713-1284 Counsel for Petitioner
BARBARA L. COSTA
Florida Bar No. 0014244
Capital Collateral Regional Counsel - South
101 NE Third Avenue, Ste. 400
Ft. Lauderdale, FL 33301
Counsel for Petitioner
Angel Nieves Diaz, through undersigned counsel, petitions this Court to invoke its All Writs jurisdiction and address whether 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 contesting the method of the pending execution in federal court via the only avenue that a federal court has jurisdiction at this juncture to consider. See Hill v. McDonough, 126 S.Ct. 2096 (June 12, 2006).
Providing collateral counsel to litigate Mr. Diaz’s Eighth Amendment challenges to his sentence of death and the State’s method of execution, but limiting the means of presenting a viable method of execution claim in federal court in such a fashion as to guarantee that the claim will not be heard and adjudicated on the merits, violates due process and equal protection of the law. See Steele v. Kehoe, 747 So. 2d 931, 934 (Fla. 1999).
This Court’s All Writs jurisdiction has been previously recognized as a proper means of raising a challenge to a method of execution. See Jones v. Butterworth, 691 So.2d 481 (Fla. 1997).
A petition to invoke this Court’s All Writs jurisdiction is an original proceeding in this Court governed by Fla. R. App. P. 9.100. This Court has original jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const.
REQUEST FOR ORAL ARGUMENT
Mr. Diaz requests oral argument on this petition.
STATEMENT OF THE CASE AND FACTS
On December 21 1985, Mr. Diaz was convicted of first-degree murder and related offenses in the Circuit Court of the Eleventh Judicial Circuit, Dade County (R. 252-261) and on January 24, 1986, he was sentenced to death (R. 300-309). The judge’s sentencing order, drafted by the state prosecutor, was entered on February 14, 1986 (R. 319-330).
Mr. Diaz’s convictions and sentence of death were affirmed on direct appeal and throughout all subsequent state post-conviction and federal post-conviction proceedings. See Diaz v. State, 513 So. 2d 1045 (Fla. 1987), cert. denied, 484 U.S. 1079 (1988); Diaz v. Dugger, 719 So. 2d 865 (Fla. 1998), cert. denied, 526 U.S. 1100 (1999); Diaz v. Moore, 797 So. 2d. 588 (Fla. 2001); Diaz v. State, 869 So. 2d 538 (Fla. 2003), cert. denied Diaz v. Crosby, 543 U.S. 854 (U.S., Oct. 4, 2004); Diaz v. Secretary of Department of Corrections, 402 F.3d 1136 (11th Cir. 2005) cert. denied Diaz v. Crosby, 126 S. Ct. 803 (U.S., Dec. 5, 2005).
Mr. Diaz filed a 3.851 motion in the Circuit Court for the Eleventh Judicial Circuit on September 25, 2006, challenging the constitutionality of Florida’s lethal injection statute and procedure. On November 9, 2006, Mr. Diaz filed an amended
Rule 3.851 motion that included a claim challenging the State’s refusal to disclose public records necessary to fully and fairly present the lethal injection claim.
On November 14, 2006, while the lethal injection claim and related public records demands were still pending in the circuit court, the Governor’s Office signed a death warrant for Mr. Diaz, setting the execution for December 13, 2006.
On November 21, 2006, the circuit court denied Mr. Diaz’s 3.851 motion challenging Florida’s lethal injection procedures under the Eighth Amendment.
On November 22, 2006, Mr. Diaz timely filed his appeal to this Court.
CLAIM FOR RELIEF
SEC. 27.702, FLORIDA STATUTES, IS UNCONSTITUTIONAL FACIALLY AND AS APPLIED, AS ITS RESTRICTION PRECLUDING THE OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL ("CCRC") FROM REPRESENTING ITS CLIENTS IN CIVIL ACTIONS VIOLATES THE RIGHTS OF CCRC-REPRESENTED INMATES TO DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT.
In Hill v. McDonough, 126 S.Ct. 2096 (June 12, 2006), the United States Supreme Court unanimously held that death row inmates seeking to challenge the lethal injection method of execution may pursue the issue in proceedings under 42 U.S.C. § 1983, and are not required to present the claim in a § 2254 federal habeas petition.
Therefore, the Court held, the federal courts had jurisdiction to hear Mr. Hill’s lethal injection challenge under § 1983, even though the federal courts did not have jurisdiction to entertain the same claim in a successive federal habeas
, 358 F.3d 1281, 1284 (11petition. In so holding, the Court reversed Eleventh Circuit precedent holding that the only vehicle for raising a lethal injection claim in federal court was a § 2254 habeas corpus petition, and that any pleading that included such a claim no matter how it was styled was in fact a § 2254 habeas corpus petition.1 See, e.g., Robinson v. Crosbyth Cir. 2004).
Angel Nieves Diaz is a death-sentenced inmate who is represented by attorneys from Capital Collateral Regional Counsel – South ("CCRC-S"). The Office of the Capital Collateral Regional Counsel ("CCRC") is described in § 27.702, F.S., is charged with representing death-sentenced inmates, as follows
Duties of the capital collateral regional counsel […]
(1) The capital collateral regional counsel shall represent each person convicted and sentenced to death in this state for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court. The capital collateral regional counsel and the attorneys appointed pursuant to s. 27.710 shall file only those postconviction or collateral actions authorized by statute.
(Emphasis added). This Court has previously held that the "postconviction or collateral actions authorized by statute" do not include civil rights actions under § 1983. Butterworth v. Kenny, 714 So. 2d 404 (1998). However, that decision issued long before the ruling in Hill v. McDonough, in which the United States
1 As a result, attorneys around the country have instituted § 1983 actions on behalf of their death-sentenced clients.
Supreme Court held that a claim challenging a method of execution as violative of the Eighth Amendment could be presented in a § 1983 action, as opposed to a successor habeas petition that a federal court lacked jurisdiction to hear.
2 There really can be no question that CCRC-South as Mr. Diaz’s collateral counsel is entitled to challenge the method of execution under the Eighth Amendment, as this Court has heard many such challenges filed by state-provided counsel in collateral proceedings.
Since the claim has been one recognized as properly made by state-provided counsel, the manner in which the claim is to be presented in federal court should not preclude state-provided counsel’s ability to present the claim, nor should the State be permitted to require the claim to be presented only in a federal proceedings that guarantees the federal court lacks jurisdiction to address the claim
Prior to the Hill decision, the Court’s ruling in Butterworth v. Kenny did not deny CCRC clients the means of raising a claim challenging the method of execution in federal court. However, this has changed by virtue of the Hill decision.
Counsel for Mr. Diaz is now statutorily precluded from raising a challenge to the manner of his execution through the only means Mr. Diaz has at this point for presenting such a challenge in federal court. By restricting collateral counsel in such a manner, the State of Florida is denying Mr. Diaz due process.2
Mr. Diaz has instructed undersigned counsel to file a federal challenge to the method of his execution. However, because the federal courts lack jurisdiction to hear the claim in a § 2254 proceeding, this means the only avenue to present the claim and have it heard by a federal court is in a § 1983 action. See Hill v. McDonough.
Counsel is currently (and unconstitutionally) precluded from
3 In addition, the statutes precluding CCRC from filing a § 1983 action on behalf of Mr. Diaz is in violation of the requirements for competent post-conviction counsel, as established by the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. 3 See ABA Guidelines, Commentary to Guidelines 1.1; 10.8; 10.15.1. The United States Supreme Court recently recognized that the ABA had promulgated a set of guidelines devoted to setting forth the obligations of defense counsel in capital cases, and found that those guidelines served as a necessary and reliable benchmark in furthering the goal of obtaining a constitutionally adequate adversarial testing. See Rompilla v. Beard, 545 U.S. 374 (2005).
presenting this recognized collateral claim as a § 1983 action. This violates Mr. Diaz’s right to due process. In Steele v. Kehoe, 747 So.2d 931 (Fla. 1999), this Court found due process violated when a non-capital defendant lost his ability to collaterally challenge his conviction because the attorney he hired to file the collateral challenge failed to file it in a timely fashion.
This Court stated: "if a prisoner is denied the opportunity to challenge his conviction under an appropriate rule only because of the negligence of his attorney, then due process requires a belated filing procedure similar to that allowed in belated appeals." Id. at 933.
Similarly in this case, collateral counsel is charged with presenting Mr. Diaz’s collateral challenges, but is precluded from presenting a challenge to the method of his execution in federal court in the only manner in which that claim may now be presented.
Like the defendant in Steele, Mr. Diaz is confronted with the untenable choice of having a right, but no way to seek a remedy, due to the limitations of his post-conviction attorney.3 Providing Mr. Diaz with counsel, but then stripping counsel of the means of presenting a legitimate and recognized
challenge to his the method of his execution in federal court, violates due process under Steele
Because Mr. Diaz is represented by CCRC rather than private registry counsel, his attorneys are prohibited from filing a § 1983 action on his behalf in contrast to Mr. Hill by virtue of this Court’s decision in Butterworth v. Kenny.
Such a distinction implicates the equal protection clause of the U.S. Constitution.
Mr. Diaz, through undersigned counsel, respectfully requests this Court to declare the laws unconstitutional and grant Mr. Diaz the right to pursue his challenge to the method of his pending execution in federal court in the only manner which currently provides the federal courts with jurisdiction to hear the claim.
For all of the reasons discussed herein, Mr. Diaz respectfully urges the
Court to exercise its All Writs jurisdiction, declare that the limitation upon his collateral counsel’s ability to present his challenge to the method of his execution in federal court is in violation of due process and equal protection, and authorize counsel to litigate the claim in the only fashion currently open to him in federal court under Hill v. McDonough.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by US Mail to Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650, Miami, Florida 33131, this ____ day of December, 2006.
Respectfully Submitted, 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
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 (954) 713-1284
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this petition is typed in Times New Roman 14 point font, in compliance with Fla. R. App. P. 9.210(a)(2).
SUZANNE MYERS KEFFER