John Henry - Florida response to stay request

8/12/2019 John Henry - Florida response to stay request

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CASE NOS. 13-10608/13A1255

IN THE UNITED STATES SUPREME COURT

JOHN RUTHELL HENRY,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARITO THE FLORIDA SUPREME COURT

RESPONDENTSBRIEF IN OPPOSITION TOPETITION FOR WRIT OF CERTIORARI

EXECUTION SCHEDULEDJUNE 18, 2014

PAMELA JO BONDI

ATTORNEY GENERALTallahassee, Florida

*CANDANCE M. SABELLAChief Assistant Attorney GeneralFlorida Bar No. [email protected] M. DITTMARSenior Assistant Attorney GeneralFlorida Bar No. [email protected]

Office of the Attorney GeneralConcourse Center 43507 East Frontage Road, Suite 200Tampa, Florida 33607Telephone: (813) 287-7910Facsimile: (813) 281-5501*Counsel of Record for Respondent


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QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Whether this Court has jurisdiction to grantcertiorari to review the Florida Supreme Courts

rejection of Petitioners challenge to his eligibility

for execution based upon Hall v. Florida, 134 S. Ct.1986 (2014) where petitioner never raised a Ford v.Wainwright claim and affirmatively relied on thefindings of the panel he now challenges in support ofhis claim?

Whether this Court has jurisdiction to review adecision of the Florida Supreme Court on a question ofthe retroactive application of Hall v. Florida, when

that decision applied Hall to the facts of this casewithout any consideration of retroactivity?


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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW................................. iTABLE OF CONTENTS............................................. iiTABLE OF CITATIONS........................................... iiiCITATION TO OPINION BELOW...................................... 1STATEMENT OF THE CASE AND FACTS................................ 1REASONS FOR DENYING THE WRIT.................................. 14

I. ......................................................... 14This Court does not have jurisdiction to grant certiorarito review the Florida Supreme Courts rejection ofPetitioners challenge to his eligibility for execution

based upon Hall v. Florida, 134 S. Ct. 1986 (2014) wherepetitioner never raised a Ford v. Wainwright claim andaffirmatively relied on the findings of the panel. ......... 14II ......................................................... 29This Court does not have jurisdiction to review a decisionof the Florida Supreme Court on a question of theretroactive application of Hall v. Florida, when thatdecision applied Hallto the facts of this case without any

consideration of retroactivity. ............................ 29DENIAL OF STAY OF EXECUTION................................... 30CONCLUSION.................................................... 33CERTIFICATE OF SERVICE........................................ 34

APPENDIX.................................................. A1-A29


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TABLE OF CITATIONS

Federal CasesAtkins v. Virginia,536 U.S. 304 (2002) .............................. 7, 26, 27, 28

Barefoot v. Estelle,463 U.S. 880 (1983) ......................................... 30

Bowersox v. Williams,517 U.S. 345 (1996) ......................................... 30

Coleman v. Thompson,501 U.S. 722 (1991) ......................................... 30

Delo v. Stokes,495 U.S. 320 (1990) ......................................... 30

District Attorneys Office for the Third

Judicial District v. Osborne,___ U.S. ___, 129 S. Ct. 2308 (2009) .................... 20, 21

Ford v. Wainwright,477 U.S. 399 (1986) ..................................... passim

Hall v. Florida,134 S. Ct. 1986 (2014) .................................. passim

Henry v. Secretary, Dept. of Corrections,490 F.3d 835 (11th Cir. 2007) ................................ 3

Hill v. McDonough,

547 U.S. 573 (2006) ......................................... 31Illinois v. Gates,462 U.S. 213 (1983) .................................. 1, 15, 29

In Re John RuthellHenry,Case No. 14-12623 (11th Cir. June 17, 2014) .................. 7

Rockford Life Ins. Co. v. Illinois Dept of Revenue,482 U.S. 182 (1987) ......................................... 22

Street v. New York,394 U.S. 576 (1969) .................................. 1, 15, 29

Townsend v. Sain,372 U.S. 293 (1963) ..................................... 16, 17

Webb v. Webb,451 U.S. 493 (1981) .................................. 1, 15, 29


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CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review

is reported at Henry v. State, 2014 WL 2609114 (Fla. June 12,

2014).

STATEMENT OF JURISDICTION

The Petition cites 28 U.S.C. 1257 as the basis of

jurisdiction in this case. That provision governs this Courts

jurisdiction over final judgments rendered by the highest court

of a State where a federal constitutional right is at issue.

However, this Courts jurisdiction is limited to only those

federal constitutional issues which were actually presented to,

and considered by, the state court below. Illinois v. Gates, 462

U.S. 213, 217-19 (1983); Webb v. Webb, 451 U.S. 493, 496-97

(1981); Street v. New York, 394 U.S. 576, 581-82 (1969) As will

be addressed more fully in the argument section of this brief,

this Court does not have jurisdiction over the questions

presented in this petition because it was not asserted in his

appellate brief to the court below, which is attached hereto as

Appendix A.

STATEMENT OF THE CASE AND FACTS

Defendant, John Henry, is a Florida inmate under a death

sentence imposed October 18, 1991. His execution is scheduled

for June 18, 2014 at 6:00 p.m.


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Trial and Direct Appeal Proceedings

The Grand Jury for the Sixth Judicial Circuit, in and for

Pasco County, Florida, indicted Defendant, John Ruthell Henry,

for Murder in the First Degree on January 16, 1986. (DAR1

V8/1253-1254; DAR2 V7/867-868) Defendant was convicted and

sentenced to death. The Florida Supreme Court overturned his

conviction and remanded the case for a new trial. See Henry v.

State, 574 So. 2d 73 (Fla. 1991). Henrys conviction and

sentence of death after retrial was affirmed by the Florida

Supreme Court. Henry v. State, 649 So. 2d 1366 (Fla. 1994),

cert. denied, 515 U.S. 1148, 115 S.Ct. 2591 (1995).

Postconviction Proceedings

Henry then sought postconviction relief asserting

ineffective assistance of counsel for failing to present more

mitigating evidence concerning Henrys mental illnesses through

lay witnesses and expert testimony in both guilt and innocence

phases. Postconviction relief was denied after an evidentiary

hearing and was affirmed by the Florida Supreme Court. Henry v.

State, 862 So. 2d 679 (Fla. 2003).

Federal Habeas Proceedings

Defendant filed suit under 28 U.S.C. 2254 in the United

State Middle District Court of Appeals on March 29, 2004. The

district court denied relief on May 24, 2006. Defendant appealed


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the decision as to his claims on counsels performance during

the penalty phase. Defendant sought reversal because trial

counsel failed to call two mental health experts, Drs. Afield

and Berland, who could have presented additional mitigating

evidence to the jury and countered the States expert testimony.

The Eleventh Circuit denied relief. Henry v. Secretary, Dept. of

Corrections, 490 F.3d 835, 838 (11th Cir. 2007).

Upon the conclusion of this litigation, Governor Rick Scott

signed a death warrant on May 2, 2014, denying clemency and

setting Henrys execution for June 18, 2014 at 6:00 p.m.

Counsel sought and obtained a stay from the Governor on May

12, 2014 pursuant to Florida Statute 922.07. (Supp 2R. 114-16)

The Governor then created a Commission, appointing Drs. Werner,

Taylor and Myers, who evaluated Henry on Friday, May 16, 2014.

The stay was dissolved after the Commission completed its

examination of Henry and concluded that Henry has the mental

capacity to understand the nature of the death penalty and the

reasons why it was imposed on him. (Supp. 2R. 113) In conducting

the evaluation, the doctors also considered Henrys prior IQ

score of 78 and concluded, based on their clinical interview,

review of records, and interviews with two correctional

officers, that with reasonable medical certainty Henry does not

suffer from any DSM-5 psychiatric illness or intellectual


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disability (formerly referred to as mental retardation). (Supp.

2R. 113Henry did not seek review of that finding in state court

under Florida Rule of Criminal Procedure 3.811 and 3.812.

Rather, following this Courtsdecision in Hall v. Florida,

134 S. Ct. 1986 (2014), Henry then raised a claim under Florida

Rule of Criminal Procedure 3.203, asserting for the first time

that he cannot be executed because he is intellectually

disabled, and requesting the appointment of experts to determine

his mental functioning. (Supp. R. 140-50) Without response from

the State, the lower court summarily denied the motion as

untimely. The court also noted that it was possibly without

jurisdiction. (Supp. R. 151-52). Henry appealed to the Florida

Supreme Court. After briefing, the court denied relief on the

merits nearly a week ago, on June 12, 2014. The court concluded

that Henry was not entitled to any relief because he had not

demonstrated a facially sufficient claim of intellectual

disability:

Beyond Henrys assertion of a single test score, hehas not alleged any deficits in adaptive functioningor onset prior to age 18. Indeed, having examined therecord in this cause, we agree with the State that notone doctor over all the years of litigation has ever

opined that Henry was mentally retarded orintellectually disabled. Moreover, three doctorsrecently evaluated Henry to determine his competencyunder section 922.07 and concluded as follows:

Mr. Henry was fully oriented and his memory andconcentration were intact. His clinical


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presentation during the evaluation was consistentwith intellectual functioning at or above whatwould be predicted based on his prior IQ testresult of 78 (7th percentile). For instance, hewas able to discuss the legal process accurately

in reasonable depth. Moreover, he correctlyserially subtracted seven from 100 on four offive steps (100-93-79-73-56).

Mr. Henry was administered the Mini-Mental StateExamination-2, a neuropsychiatric test used toassess for cognitive impairment. It covers theareas of orientation, attention, calculationability, recall (recent memory), naming,repetition, comprehension, reading, writing, andvisual-spatial skills. Mr. Henry scored a 25/30(T score-51; 54th percentile), in the averagerange per age group and educational level norms.The nature and effect of the death penalty andwhy it is to be imposed on him was discussed withMr. Henry. He communicated that he had been triedfor and convicted of first degree murder and hissentence was the death penalty. Additionally, henoted that his victims were his wife and stepson.He provided the general facts surrounding theirdeaths. In his words, the execution is carriedout by lethal injection, a shot, and is to

occur on June 18th at 6:00 p.m.

In summary, based on our clinical interview,review of records, and interviews with twocorrectional officers, it is our opinion withreasonable medical certainty that: (1) Mr. Henrydoes not suffer from any DSM-5 psychiatricillness or intellectual disability (formerlyreferred to as mental retardation in DSM-IV), and(2) understands the nature and effect of thedeath penalty and why it is to be imposed on him.

Letter from Dr. Wade C. Myers, M.D., Dr. DonaldTaylor, M.D., and Tonia Werner, M.D., to Rick Scott,Governor of Florida (dated May 16, 2014) (Henry mentalcompetency determination). Although this evaluationwas for mental competencynot intellectual disabilitythe observations and conclusions further support our


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determination that Henry has not established any factsthat would entitle him to relief under Hall.

Finally, we consider that, rather than showingdeficits in adaptive functioning, the record

demonstrates the opposite. As the State points out inits Answer Brief, the record demonstrates that Henryengaged in typical, adult activities. Henry was ableto drive a car, develop personal relationships,participate in financial transactions, discuss adultconcepts, and engage in goal-directed behavior. Inaddition, his pro se pleadings and his oral advocacyfurther refute any claim that he has concurrentdeficits in adaptive functioning or onset before age18. They demonstrate Henrys effective communication

skills, both oral and written, and his understandingof the law. Answer Brief at 24. In its Answer Brief,at 9-10, the State provides an example of Henrys prose advocacy at his first trial, when he moved forappointment of new counsel, as follows:

MR. HENRY: Good morning. Yeah, I would like tobring it to the Courts attention that as of this

moment I feel I am not properly being representedand I wish to ask the Court to remove Mr. Fochtfrom being my attorney and I would like to be, ifits possible, to be recommended to another

attorney because I feel that theres things

thats not being brought to the Courts attentionconcerning me that hes not bringing up, goinginto details concerning witnesses in my behalf.Some of the witnesses have not brought forwardthat I felt that would have came forward if ithad been brought to their attention.

Also, theres things that havent been brought upthat I have requested my attorney to bring upthat he have failed to bring up and I feel that,also, in this case, that it being partiality

shown towards the victim. My main concern is thatmyself and Mr. Focht, the things that I haverequested of him to bring up and he just havent.And I just feel like Im not being properly

represented.


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In light of the foregoing, we affirm thedismissal of Henrys claim on the basis that Henry has

not demonstrated a facially sufficient claim ofintellectual disability.

Henry, 2014 WL 2609114.

Henry then filed an Emergency Motion For Leave To File

Second Or Successive Petition For Writ Of Habeas Corpus And

Request For Stay Of Execution in the Eleventh Circuit Court of

Appeals. That court also denied relief, finding that Henry could

not satisfy the statutory standard for filing a successive

petition since Halldid not recognize a new constitutional right

which was retroactive; that any claim of intellectual disability

would have been available at the time of Henrys initial

petition, which was filed well after Atkins v. Virginia, 536

U.S. 304 (2002), had been decided; and that Henry did not

demonstrate any likelihood of success on the merits because the

record affirmatively refuted any intellectual disability such as

would preclude execution under the Eighth Amendment. In Re John

RuthellHenry, Case No. 14-12623 (11th Cir. June 17, 2014).

Petitioner then filed the instant petition seeking review

of the Florida Supreme Courts denial of his claim.

Relevant to the issue before this Court, the files and

records from Henrys first and second trials and his post-

conviction proceedings show that Henry has been examined by

numerous mental health professionals, including Doctors Fesler,


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Afield, Berland, Sprehe and Mosman, as well as the Commission

doctors, Doctors Werner, Taylor and Myers. Psychologist Dr.

Robert Berland, however, is the only one who has performed an IQ

test. He evaluated John Henry in October of 1986 and

administered the Minnesota Multiphasic Personality Inventory

(MMPI); the Wechsler Adult Intelligence Scale (WAIS); the

Bender-Gestalt; and the Rorschach or ink blot test. Dr.

Berlands report reflects that Henrys IQ was 78 based on the

1986 WAIS test. (PCR V3/424-30)

Dr. Berland also testified at Henrys first trial in Pasco

County. (DAR1 V6/875-934) He described the defendant as having

anti-social problems and psychotic thinking, but noted he was

capable of recognizing and producing conventional thinking.

(DAR1 V6/887-88) He found no clear support for brain damage. Dr.

Berland confirmed his finding of a 78 IQ score which he noted

was in the middle of the 70-85 range. He also noted that the

range for intellectual disability was 70 or below. (DAR1 V6/889)

He said that Henry possibly suffered from schizo-affective

disorder or bi-polar disorder. (DAR1 V6/892)

Dr. Walter Afield, a specialist in neurology and

psychiatry, relied upon this testing in his evaluation of the

defendant. He first examined John Henry in December of 1986.

(DAR1 V6/987) Dr. Afield testified that Henry had a very serious


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and severe drug and alcohol addiction, and had deteriorated. His

diagnosis was chronic paranoia and drug and alcohol abuse. (DAR1

V6/940-47) Dr. Afield noted that records which showed Henry had

a very low IQ, almost in a retarded kind of area reinforced

his opinion. (DAR1 V6/948)

Dr. James Fesler examined Henry in 1987 after being court

appointed to do a sanity evaluation. In his report he describes

Henry as having probably low intelligence, but with a clear

understanding of the charges and possible consequences. (PCR

V3/437-440) He also testified at trial. (DAR1 V5/770-93; DAR2

V6/715-34) During the second penalty phase he told the jury that

Henry gave a pretty good representative history of the events of

December 22nd and 23rd of 1985. Henry was alert, pleasant to

talk to, maintained his composure throughout the interview, and

gave very clear, relevant answers to questions. (DAR2 V6/719)

Henry told Dr. Fesler that there had been some preceding history

between he and his wife; they had separated two weeks

previously. Henry said he intended to go over that day to talk

to her about some Christmas gifts for his stepson or her son. He

told the doctor that in the course of going over there, he had

stopped in an area that he was familiar with, that in the area

had bought some crack cocaine, and had smoked some of it. He

said he borrowed a car from a friend to drive to her house. Dr.


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Fesler asked him how he was feeling on the way over there. He

said he was, basically, feeling okay. He didnt feel like he

was in anymessed up in the mind at the time. He stated that

he arrived there and began to talk to Suzanne, but, according to

Henry, she became upset and angry and was questioning him about

involvement with a girlfriend she felt that he had. He said she

became more angry and asked him to leave. He was not initially

in the mood to leave. He said she got a knife from somewhere in

the house and started to come towards him with the knife. He

said that she had tried to get him with the knife and he

received some small cuts. Henry told the doctor that he got the

knife away, lost control and just starting stabbing her. (DAR2

V6/720-21)

Henry also provided Fesler with his history. Henry reported

beginning drinking around age ten. He also claimed that he

started hearing voices occasionally around age fifteen. Dr.

Fesler noted these times usually coincided with heavy drug or

alcohol use. (DAR2 V6/728)

Dr. Daniel Sprehe also was appointed to determine

competency and sanity. He issued a report in 1987 which was

introduced during the postconviction proceedings. He found Henry

was able to appreciate the nature, consequences and wrongfulness

of his actions at the time of the murder of Suzanne Henry. He


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found Henry suffered from long-standing anti-social personality

and drug abuse syndrome. (DAR2 V6/437-440) Sprehe also testified

that in his opinion, Henry was competent at that time, suffering

from no psychotic illness and able to proceed with trial. (DAR2

V6/739-40) He did not find any evidence that Henry was

schizophrenic. (DAR2 V6/741)

Rosa Mae and Stephanie Thomas testified for the defense

that the defendant lived with them at the time of Suzanne

Henrys murder. (DAR2 V6/749-73) Rosa had gone to school with

him and dated him when she was a teenager. (DAR2 V6/758) He

moved in with her about six months prior to Suzanne Henrys

death on December 22nd of 1985. (DAR2 V6/759) Rosa described

incidents where John Henry would threaten to call the police on

Suzanne if she would not leave his house; that he did not want

her anymore. She said Henry was a good provider; he made sure

everything was done around the house and they had a good

relationship. (DAR2 V6/762) Her daughter, Stephanie described

him as always being very nice to her and her brother; that he

always went out of his way to get them whatever they wanted.

(DAR2 V6/752) Both Rosa and Stephanie testified that Henry

worked at a glass company in Zephyrhills. (DAR2 V6/756, 768)

Rosa also testified that Henry sold jewelry to get money to buy

drugs. (DAR1 V6/861)


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Rosa had also testified during the guilt phase that after

committing the murders of Suzanne and Eugene Henry, John Henry

came to her house. He told her he needed to go stay at a motel

and to get him some extra clothes. (DAR1 V4/568-69; DAR2 V4/452)

When they got to the motel, Henry paid for the room; they went

in, Rosa took a nap and when she woke up Henry had taken a

shower and changed out of the clothes he had been wearing at the

time of the murder. (DAR2 V4/453-54)

Another childhood friend of Henrys, Nathan Giles,

testified that he saw Henry on the day of the murder. Henry

offered to give him a ride in exchange for payment. After Giles

paid him, Henry bought drugs with the money, then borrowed a car

to give him a ride. (DAR1 V6/843-45)

Dr. Bill Mosman testified at the post conviction hearing on

behalf of the defense. He noted that the defendant should have

qualified for the age mitigator because his ability to

understand, analyze, make judgments, process, was equal to a 13-

year, 11 month old child because he had an IQ of 78. (PCR V6/

1025)

Henrys trial counsel, Richard A. Howard, Circuit Judge in

and for the Fifth Judicial Circuit, testified that at the time

he undertook representation of Henry he had available to him all

of the files and records from Henrys first trials. (PCR


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V6/1064) He was aware that a number of mental-health

professionals, both psychiatric and psychological, had examined

Henry. He had their reports, depositions and trial testimony. He

also had conversations on the phone with some of them. (PCR

V6/1065) He was aware that this evidence had been presented in

both the Hillsborough and prior Pasco trials and that the jury

recommended death in both cases. (PCR V6/1066) He was also aware

of Henrys childhood and developmental years. (PCR V6/1066) He

also disagreed with Dr. Mosmans assessment that Henry

functioned at the level of a 13-14 year-old. He was able to

discuss adult concepts with Henry. (PCR V6/1097)

The record also shows that Henry has repeatedly complained

to the court, orally and by writing letters and filing pro se

pleadings complaining about his various lawyers throughout his

litigation. (e.g. DAR1 V6/873-874, DAR2 V7/872-874, 981-82;

Supp. 2R. 126)

Any additional facts necessary for consideration of this

petition will be discussed in the argument, infra.


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REASONS FOR DENYING THE WRIT

I.

This Court does not have jurisdiction to grantcertiorari to review the Florida Supreme Courts

rejection of Petitioners challenge to his eligibilityfor execution based upon Hall v. Florida, 134 S. Ct.1986 (2014) where petitioner never raised a Ford v.Wainwright claim and affirmatively relied on thefindings of the panel.

Petitioner seeks this Courts review of the Florida Supreme

Court opinion affirming the denial of a successive motion for

postconviction relief filed after his death warrant was signed.

After twentyeight years of litigating numerous issues related

to his purported mental illnesses, Henry for the first time

asserted a claim that he is intellectually disabled so as to

preclude execution under the Eighth Amendment. He based his

claim on this Courts recent decision in Hall v. Florida, ___

U.S. ___, 134 S. Ct. 1986 (2014), and his performance in 1987 on

the Wechsler Adult Intelligence Scale (WAIS) that demonstrated

that he had an IQ of 78. The Florida Supreme Court rejected

Henrys intellectual disability claim, specifically finding that

Henrys claim was facially insufficient and refuted by the

record.

Henry now claims that the Florida Supreme Courts

determination that the files and records refuted his claims

violated this Courts decision in Ford v. Wainwright, 477 U.S.

399, 40910 (1986), by relying upon findings of the Florida


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Even if there were no jurisdictional hurdles for petitioner

to overcome, the petition does not compel certiorari review.

Henrys extensive reliance on Ford v. Wainwright, 477 U.S. 399

(1986), is misplaced. In that case, this Court considered the

adequacy of the procedures offered under Florida law for

determining a prisoners competency to be executed. At that

time, Florida provided for a competency evaluation by a panel of

psychiatrists appointed by the Governor, but there was no avenue

of judicial review available. In Ford, this Court affirmatively

recognized that the Eighth Amendment prohibits execution of the

insane. Ford, 477 U.S. at 409.

However, Forddid not consider or address whether Floridas

procedures for protecting the insane from execution were

constitutionally adequate. The relevant issue in Ford, which

arose in the context of a denial of habeas corpus relief, was

whether the federal district court could deny the opportunity

for evidentiary development on a claim that Fords insanity

precluded execution. The criticisms of Floridas procedures

noted in Henrys petition (pp. 19-20) were not constitutional

deficiencies, but were deficiencies which precluded reliance on

the State of Floridas determination of sanity in opposing

Fords habeas insanity claim. In Townsend v. Sain, 372 U.S. 293

(1963), this Court outlined the requirements for obtaining an


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evidentiary hearing in a federal habeas proceeding, and Ford

considered no more than whether Floridas procedures for

determination of sanity at the time of execution satisfied the

Townsend standard for habeas factfinding. This Court concluded

that Floridas limited procedure, where the executive branch

exclusively considered the issue without any input from the

prisoner or counsel and without any judicial review, was

inadequate to insure the necessary factfinding and, accordingly,

Ford was entitled to an evidentiary hearing in federal district

court on his habeas claim. This conclusion did not rely on any

constitutional provision and does not support Henrys current

claim that Floridas procedures for the determination of

insanity or intellectual disability are constitutionally

inadequate.

In response to Ford, Florida adopted new procedures

affording a judicial proceeding to subject the Governors

commission to adversarial testing to ensure reliability of the

result. In Florida once the Governor of Florida, has determined

the prisoner is sane to be executed, counsel for the prisoner

may move for a stay of execution and a hearing based on the

prisoners insanity to be executed pursuant to Fla. R. Crim. P.

Rule 3.811. A hearing on the motion is provided for by Fla. R.

Crim. P. Rule 3.812. The hearing on the prisoners insanity to


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be executed is not be a review of the Governors determination,

but, rather, is a de novo proceeding where the court may also

appoint no more than 3 disinterested mental health experts to

examine the prisoner with respect to the criteria for insanity

to be executed and to report their findings and conclusions to

the court. Fla. R. Crim. P. Rule 3.812. The court may also admit

such evidence as the court deems relevant to the issues,

including but not limited to the reports of expert witnesses.

The court is not be strictly bound by the rules of evidence in

making this determination. Fla. R. Crim. P. Rule 3.812. The

findings of the circuit court are then subject to appellate

review. See e.g. Gore v. State, 120 So. 3d 554 (Fla. 2013)

(competent, substantial evidence exited to support the circuit

courts determination that prisoner was sane to be executed.);

Ferguson v. State, 112 So. 3d 1154 (Fla. 2012) (evidence was

sufficient to support circuit courts finding that defendant

understood connection between his crime and punishment he was to

receive for it, and defendant was not deprived of full and fair

hearing on issue of whether he was sane to be executed.)

Petitioner Henry did not avail himself of that opportunity.

Instead he raised a claim of intellectual disability. As

previously noted, in support of his argument, he relied upon the

findings in the Governors commission report in urging the


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Florida Supreme Court to find him intellectually disabled.

Additionally, by virtue of a joint stipulation between counsel

for Petitioner and the State of Florida, that report was made a

part of the record on appeal. The Florida Supreme Court promptly

sealed the report directing that unless otherwise ordered by

the Court, these record portions shall remain sealed in the

Clerks office, except when in use by the Court, and may only be

reviewed by the parties or their attorneys. (attached as

Appendix B)

Upon denying relief, the Florida Supreme Court, thoroughly

analyzed all of the facts contained in the files and records,

which included not only the commission report but the reports of

all the doctors1who had evaluated Henry through the years, the

testimony of witnesses who knew him and had observed him

throughout his life and Henrys own actions throughout the

course of his lengthy life. The fact that the Florida Supreme

Court provided judicial review of this issue distinguishes this

case from Ford and demonstrates that the state courts did not

violate due process in the rejection of Henrys claim.

In addition, this Court has acknowledged that very little

process is actually due in collateral challenges to state

1Robert Berland, Ph.D., James Fesler, M.D., Daniel Sprehe, M.D.,Walter E. Afield, M.D., William Mosman, Ph.D., Wade C. Myers,M.D., Donald Taylor, M.D. and Tonia Werner, M.D.


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criminal proceedings. Contrary to Henrys claim that due process

or the Eighth Amendment requires that the states provide

unrestricted evidentiary development of a claim of intellectual

disability prior to an execution, this Court has repeatedly

declined to impose such procedural requirements in state

collateral criminal proceedings. In District Attorneys Office

for the Third Judicial District v. Osborne, 557 U.S. 52 (2009),

this Court addressed the requirements of due process in the

context of a civil rights action filed under 42 U.S.C. 1983

with regard to a request for DNA testing by a state inmate. In

Osborne, this Court specifically considered whether Alaskas

procedures for postconviction relief violated Osbornes federal

right to due process of law. In reversing the Ninth Circuit

Court of Appeals finding that Osbornes rights had been

violated by the state court procedures, this Court outlined the

appropriate considerations and analysis:

A criminal defendant proved guilty after a fairtrial does not have the same liberty interests as afree man. At trial, the defendant is presumed innocentand may demand that the government prove its casebeyond reasonable doubt. But [o]nce a defendant has

been afforded a fair trial and convicted of theoffense for which he was charged, the presumption of

innocence disappears. Herrera v. Collins, 506 U.S.390, 399, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).Given a valid conviction, the criminal defendant has

been constitutionally deprived of his liberty.

Dumschat, supra, at 464, 101 S.Ct. 2460 (internalquotation marks and alterations omitted).


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The State accordingly has more flexibility indeciding what procedures are needed in the context ofpostconviction relief. [W]hen a State chooses to

offer help to those seeking relief from convictions,

due process does not dictat[e] the exact form suchassistance must assume. Pennsylvania v. Finley

, 481U.S. 551, 559, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).Osbornes right to due process is not parallel to a

trial right, but rather must be analyzed in light ofthe fact that he has already been found guilty at afair trial, and has only a limited interest inpostconviction relief. Bradyis the wrong framework.

Instead, the question is whether consideration ofOsbornes claim within the framework of the States

procedures for postconviction relief offends someprinciple of justice so rooted in the traditions andconscience of our people as to be ranked asfundamental, or transgresses any recognized

principle of fundamental fairness in operation.

Medina v. California, 505 U.S. 437, 446, 448, 112S.Ct. 2572, 120 L.Ed.2d 353 (1992) (internal quotationmarks omitted); see Herrera, supra, at 407-408, 113S.Ct. 853 (applying Medina to postconviction relieffor actual innocence); Finley, supra, at 556, 107S.Ct. 1990 (postconviction relief procedures areconstitutional if they compor[t] with fundamental

fairness). Federal courts may upset a States

postconviction relief procedures only if they arefundamentally inadequate to vindicate the substantiverights provided.

Osborne, 557 U.S. at 68-69.

Accordingly, this Court rejected Osbornes plea to take

the development of rules and procedures in this area out of the

hands of legislatures and state courts shaping policy in a

focused manner and turn it over to federal courts applying the

broad parameters of the Due Process Clause. Osborne, 557 U.S.

at 56. Similarly, there is no basis in this case to analyze


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whether Floridas procedures for challenging intellectual

disability, which Henry did not seek to invoke until the eve of

his execution, satisfy due process.

This case involves neither conflict nor unsettled federal

law. SeeSupreme Court Rule 10. Henrys claim of conflict with

Ford is meritless, as the only Eighth Amendment principle

involved in Fordis the recognition that a state cannot execute

an insane prisoner. Although the failure to meet the

considerations set forth in Rule 10 is not controlling, this

Court has noted that cases which have not divided the federal or

state courts or presented important, unsettled questions of

federal law do not usually merit certiorari review. Rockford

Life Ins. Co. v. Illinois Dept of Revenue, 482 U.S. 182, 184

n.3 (1987).

There is no support for Henrys contention that this

document could not be relied upon when in fact, Henry himself

urged it and there is nothing about the report that is

unreliable. The three psychiatrists, Drs. Werner, Myers and

Taylor, who were appointed by Governor Rick Scott to assess

Henrys competency for execution, interviewed Henry after

extensively reviewing his records. The experts expressly

considered whether Henry met the standard for intellectual

disability as defined by the Diagnostic and Statistical Manual


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of Mental Disorders [DSM-5], an authority noted with approval in

Hall, 134 S. Ct. at 1990. They observed that his clinical

presentation during the evaluation was consistent with

intellectual functioning at or above what would be predicted

based on his prior IQ test result of 78 and that he was able to

discuss the legal process accurately in reasonable depth. The

doctors administered the Mini-Mental State Examination-2, a

neuropsychiatric test used to assess for cognitive impairment

which covers the areas of orientation, attention, calculation

ability, recall, naming, repetition, comprehension, reading,

writing, and visual-spatial skills. Henry scored in the average

range per age group and educational level norms. (Supp. 2R. 111-

13)

The Commission report expressly notes that the doctors

considered and rejected the possibility of an intellectual

disability by applying the definition of intellectual disability

set forth in the DSM-5, a definition clearly meeting the Hall

standard. Thus, it has already been determined that Henry is not

intellectually disabled so as to preclude execution under the

Eighth Amendment to the United States Constitution. Moreover,

the report refutes Henrys claim that no evaluation has been

done beyond reliance solely on a raw IQ score as the Commission

clearly considered all of the DSM-5 criteria.


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However, even if the court could not consider the latest

findings of the commission, the record before the court was

replete with other compelling evidence that it considered in

rejecting the claim. Additionally, the Florida Supreme Court

properly identified the requirements of establishing an

intellectual disability claim as, significantly subaverage

general intellectual functioning, existing concurrently with

deficits in adaptive behavior and manifested during the period

from conception to age 18. Henry v. State, 2014 WL 2609114

(Fla. June 12, 2014). The court then found that beyond Henrys

assertion of a single test score, he has not alleged any

deficits in adaptive functioning or onset prior to age 18 and

that Henry has not established any facts that would entitle him

to relief under Hall. Henry, 2014 WL 2609114.

The Florida Supreme Court then noted that, rather than

showing deficits in adaptive functioning, the record

demonstrates the opposite. The court found that the record

demonstrates that Henry engaged in typical, adult activities.

Henry was able to drive a car, develop personal relationships,

participate in financial transactions, discuss adult concepts,

and engage in goal-directed behavior. In addition, his pro se

pleadings and his oral advocacy further refute any claim that he

has concurrent deficits in adaptive functioning or onset before


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age 18. They demonstrate Henrys effective communication skills,

both oral and written, and his understanding of the law. Id.An

example of Henryspro seadvocacy at his first trial was then

quoted at length:

MR. HENRY: Good morning. Yeah, I would like tobring it to the Courts attention that as of thismoment I feel I am not properly being representedand I wish to ask the Court to remove Mr. Fochtfrom being my attorney and I would like to be, ifits possible, to be recommended to anotherattorney because I feel that theres thingsthatsnot being brought to the Courts attentionconcerning me that hes not bringing up, goinginto details concerning witnesses in my behalf.Some of the witnesses have not brought forwardthat I felt that would have came forward if ithad been brought to their attention.

Also, theres things that havent been brought up

that I have requested my attorney to bring upthat he have failed to bring up and I feel that,also, in this case, that it being partialityshown towards the victim. My main concern is thatmyself and Mr. Focht, the things that I have

requested of him to bring up and he just havent.And I just feel like Im not being properly

represented.

Henry, 2014 WL 2609114.

As the state court recognized, out of all the doctors who

have evaluated Henry through the years, none have diagnosed him

as intellectually disabled and counsel does not allege that such

a diagnosis exists.

Even following Halls instruction to adjust the lowest IQ

score to reflect a possible measurement error, Henry


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acknowledged that his lowest score remained above 70. This

establishes that his intellect functions above the level

necessary for a finding of intellectual disability that

precludes execution under Atkins. In Hall, this Court considered

a case where the SEM-adjusted score was 66, so the Hallopinion

does not speak directly to the situation in Henrys case, where

the SEM-adjusted score is no lower than 73.2In fact, this Court

expressly observes that jurisdictions where a rigid cutoff score

of 75 had been adopted were not at issue, and weighed those

jurisdictions as contrary to Floridas rule in concluding that

Floridas cutoff of 70 violated evolving societalstandards. See

Hall, 134 S. Ct. at 1996. Indeed, even after the issuance of

Hall, this Court declined review of a petition where the

defendant could not show that even an adjusted score reached

within the range adopted by the DSM-IV. Quince v. State, 2012 WL

6197458, *1 (Fla. 2012), cert. denied, 2014 WL 2440792. (The

three IQ tests taken by Quince-each the current version of the

Wechsler Adult Intelligence Scale when administered-produced

2In his dissenting opinion in Hall v. Florida, 134 S. Ct. 1986,2010 (2014, (Alito, J., dissenting,) Justice Alito noted that:

SEMs, however, vary by IQ test and test-taker, andthere is no reason to assume a SEM of 5 points;indeed, it appears that the SEM is generallyestimated to be three to five points for well-standardized IQ tests. AAMR 10th ed.57. And we knowthat the SEM for Halls most recent IQ test was 2.16

less than half of this Courts estimate of 5.


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In addition to Dr. Berlands score of 78, the evidence in

this case demonstrates that Henry has adequate adaptive

functioning. Henry lived a typical adult life, able to drive a

car, (DAR1 V5/797) maintain employment, (DAR2 V6/756, 768)

develop personal relationships, participate in financial

transactions, (DAR2 V6/762) and engage in goal directed

behavior. His communication skills are demonstrated by the

cogent arguments in his numerouspro seattempts to have counsel

replaced and new counsel substituted. (DAR1 V6/873-874; DAR2

V7/872-874, 981-82) His actions do not reflect the necessary

adaptive impairments to support a finding of intellectual

disability as required by Atkins. To the contrary, Henrys

history reflects the types of activities frequently cited in

finding adequate adaptive functioning to defeat a claim of

intellectual disability.

Accordingly, Henrys petition for writ of certiorari must

be denied.


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II

This Court does not have jurisdiction to review adecision of the Florida Supreme Court on a question ofthe retroactive application of Hall v. Florida, whenthat decision applied Hall to the facts of this casewithout any consideration of retroactivity.

Relying on the decision of the Eleventh Circuit Court of

Appeals denying his request to file a successive habeas

petition, while acknowledging that the Florida Supreme Court

clearly applied the holding in Hallin evaluating whether he was

entitled to relief, Henry urges that an important federal

question is presented that should be settled by this Court.

Henrys problem is that the question is not presented in an

opinion that is properly before this Court. This Courts

jurisdiction is limited to only those federal constitutional

issues which were actually presented to, and considered by, the

state court below. Illinois v. Gates, 462 U.S. 213, 217-19

(1983); Webb v. Webb, 451 U.S. 493, 496-97 (1981); Street v. New

York, 394 U.S. 576, 581-82 (1969). As Henry acknowledges the

Florida Supreme Court applied Hall and did not consider the

issue of retroactivity, this Court is clearly without

jurisdiction. The inclusion of this issue is merely an attempt

by counsel of obtaining review of a non-appealable order.

Further, as explained previously, the Florida Supreme Court

clearly applied Hall and found within the dictates of that


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Moreover, this Court has stated in Hill v. McDonough, 547

U.S. 573, 583-84 (2006), that:

a stay of execution is an equitable remedy. It is not

available as a matter of right, and equity must besensitive to the States strong interest in enforcingits criminal judgments without undue interference fromthe federal courts.

* * * *

A court considering a stay must also apply a strongequitable presumption against the grant of a staywhere a claim could have been brought at such a timeas to allow consideration of the merits withoutrequiring entry of a stay.

Here, this principle applies to this petition. Henry waited

to file his claim of intellectual disability until after his

death warrant was signed. Henry then raised the claim in state

court, but then waited six days following the Florida Supreme

Court opinion and now seeks review on the day of his scheduled

execution to raise to claims that were not addressed by the

state court. As such, Henrys dilatory actions should preclude a

stay under Hill.

[E]quity must be sensitive to the States strong interest

in enforcing its criminal judgments without undue interference

from the federal courts. Hill, 547 U.S. at 584. Here, the

States strong interest in the timely enforcement of a sentence

is not outweighed by the unlikely possibility that Henrys

petition for certiorari will be granted by this Court. The


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equities in this case tilt decidedly against Henry in favor of

the State and the victims family members. Accordingly, the

State respectfully requests that this Court deny the instant

application for a stay of execution.


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CONCLUSION

Based on the foregoing, Respondent respectfully requests

that this Honorable Court DENY the petition for writ of

certiorari and request for stay.

Respectfully submitted,

PAMELA JO BONDIATTORNEY GENERALTallahassee, Florida

/s/ Candance M. Sabella*CANDANCE M. SABELLA

Chief Assistant Attorney GeneralFlorida Bar No. [email protected]@myfloridalegal.com

CAROL M. DITTMARSenior Assistant Attorney GeneralFlorida Bar No. [email protected]@myfloridalegal.comOffice of the Attorney GeneralConcourse Center 43507 East Frontage Road, Suite 200Tampa, Florida 33607-7013Telephone: (813) 287-7910Facsimile: (813) 281-5501*Counsel of Record of Respondent


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished electronically to Baya Harrison

III, Esquire, P.O. Box 102, Monticello, Florida 32345-0102

([email protected]); Manuel Garcia, Assistant State Attorney,

38053 Live Oak Ave., Dade City, Florida 33525-3881

([email protected]); Damien Kraebel, Assistant State

Attorney, P.O. Box 5028, Clearwater, Florida 33538-5028

([email protected]); and to the Florida Supreme Court

[email protected], on this 12th day of June 2014.

/s/ Candance M. SabellaCOUNSEL FOR RESPONDENT

Documents

John Henry - Florida response to stay request