Breaking News! On Thursday March 9, the Florida Supreme Court denied my long pending appeal and specifically lifted the previous “stay of execution,” effectively setting the stage for Governor Rick Scott to reschedule my execution within the near future.
As most reading this already know, all executions in Florida have been on hold since the state supreme court granted me a stay of execution on February 2, 2016 to consider whether the US Supreme Court’s January 2016 decision in Hurst v Florida applied to all previously imposed death sentence, such as mine.
Subsequently, in December 2016, the Florida court issued a decision in Mark Asay v State in which the court recognized that in light of the Hurst v Florida decision there was no question that anyone who was condemned to death by less than a unanimous jury vote was unconstitutionally sentenced.
However, in Asay v State, and its companion case of John Mosley v State, a marginal majority of the court ruled that they would only grant relief from illegally imposed death sentences to those whose sentences were imposed and final, after June 2002 (when the US Supreme Court issued its earlier decision that formed the foundation for the Hurst v Florida decision).
That meant that those illegally sentenced after 2002 would have their death sentences thrown out, but those whose sentences were “final” on their first direct appeal prior to June 2002 would not get relief.
Many in the media and elsewhere have since publicly questioned this finding, arguing that it is fundamentally unfair and makes no sense. That the court would recognize that the death sentences were unquestionably illegal, but that it would allow those sentenced prior to 2002 to be executed, while those sentenced after 2002 would be granted relief.
This point will undoubtedly be argued before the US Supreme Court. What must be emphasized is that what the Florida court did in arbitrarily cutting off retroactive relief at 2002 is clearly unprecedented. No other court has ever held that once a substantive new rule of law entitles to retroactive relief, they would only apply it so some, but not to others. A new rule of law is either retroactive or it is not.
The question now is whether the Supreme Court will accept review of this issue quickly. The Court accepts very few cases each year - and whether or not they accept a review is completely within their own discretion.
For this reason, it took 14 years (and 47 illegal executions) before the Court finally agreed to review a case that argued that under Ring v Arizona (2002) those sentenced to death were entitled to relief. When the Court did finally grant review in Hurst v Florida, they all but unanimously agree that Florida was illegally sentencing all of us to death.
It’s all but certain that the Court will eventually accept review of the recent Florida Supreme Court ruling of partial retroactivity — but it could take another 14 years and many more executions, and by that time I may be long dead.
In the recent decision denying my appeal and lifting the stay of execution, the Florida court did grant leave to file a motion for rehearing, so within 15 days (no later than March 24) my lawyers will file a Motion for Rehearing challenging this ruling, but it will almost certainly be denied within a matter of days, and I expect that the governor will most likely reschedule my execution before the end of this month. When that is done, the date will probably be set for some time around the end of April.
However, let me emphasize that although this Hurst issue has been getting all the attention, this is not the only legal issue being pursued in my case, and I do have other appeals pending. In the decision denying me relief they also (again) denied my request for DNA testing of evidence that would support my claim of actual innocence. This denial will be pursued further.
Additionally, separate from this state court appeal, in 2015 my lawyers filed a comprehensive appeal in the federal courts arguing that I am constitutionally entitled to have full review of the readily available evidence sustaining my actual innocence and that appeal remains pending before the Federal Court of Appeals (Lambrix v Secretary, Dept of Corrections, Eleventh Circuit case no. 16-10251).
Recently, the Supreme Court issued a decision in a Texas Capital case (Buck v Davis) that provides strong support for my claim of entitlement to full federal court reviews of my substantiated innocence claim and I remain hopeful that, based on the case, my federal appeal will not be formally re-opened, and fully reviewed. If this is done, I am confident that my convictions will be thrown out and I will be legally exonerated.
Because lawyers who represented me many years ago did not “timely” present my substantiated claim of innocence to the state courts in my original post-conviction appeal (in 1988), under politically manufactures rules designed to speed up executions, all evidence substantiating my innocence has been “procedurally barred” from review before both the state and federal courts. But the 2012 USSC case of Martinez v Ryan opened the door to finally overcome that procedural bar and have my innocence claim heard.
But the federal courts in Florida and Texas have categorically refused to allow death sentenced prisoners to reopen their federal appeals under this 2012 Martinez rule. The recent USSC ruling in Buck v Davis should now force these pro death penalty judges who control the Florida federal courts to now reopen my case and allow the evidence substantiating my innocence to be heard — at least I hope so.
But for now, I’m going to have to dance with death again, soon.
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