RICHARD HENYARD v. STATE OF FLORIDA
CASE NOS. SC08-222; SC08-1544

FLORIDA SUPREME COURT
MONDAY, SEPTEMBER 08, 2008

>> PLEASE RISE.
HEAR YE HEAR YE HEAR YE.
THE SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL WHO HAVE CALL PLEASE DRAW
NEAR, GIVE ATTENTION AND YOU
SHALL BE HEARD.
GOD SAVE THE UNITED STATES,
THIS GREAT STATE OF FLORIDA,
AND THIS HONORABLE COURT.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING AND WELCOME TO
THE FLORIDA SUPREME COURT, ORAL
ARGUMENT SESSION.
FOR MONDAY, SEPTEMBER 8th.
WE WOULD FIRST LIKE TO WELCOME
OUR NEW COLLEAGUES --
COLLEAGUE, JUSTICE CANADY.
AND THE CASE ON THE DOCKET THIS
MORNING IS RICHARD HENYARD
VERSUS STATE OF FLORIDA.
ARE THE PARTIES READY TO
PROCEED?
ALL RIGHT.
YOU MAY PROCEED.
>> PLEASE THE COURT, MARK
GRUBER STAFF COUNSEL ON BEHALF
OF RICHARD HENYARD.
THE ISSUE I HAVE -- RATHER
URGENTLY LIKE TO ADDRESS THIS
MORNING IS WHAT I CALL THE
27702 ISSUE, DEALING WITH
CCRC'S ABILITY OR INABILITY TO
PROCEED UNDER 1983, WITH REGARD
TO METHOD OF EXECUTION CLAIMS.

>> ARE YOU CLAIMING THAT THERE
IS SOME ISSUE AFFECTING THE
CRIMINAL CONVICTION OR SENTENCE
THAT YOU ARE UNABLE LEGALLY TO
ADDRESS, IN THE FEDERAL COURTS?

>> YES, YOUR HONOR.
AS -- UNDER DIAZ -- WELL, I'LL
JUMP RIGHT TO THAT.
ONE THING THAT IS STRIKING HERE
IS THAT.
IS THAT -- IF YOU LOOK AT THE
TREATMENT OF THE CLAIM, IN THE
DIAZ DECISION IN DECEMBER OF
2006, COMPARED TO THE
RUTHERFORD DECISION OF OCTOBER
2006, THAT I HAVE ALSO CITED
AND LAY THEM SIDE BY SIDE AND
GO DOWN INTO THE VERBIAGE IS
ALMOST IDENTICAL, THERE IS THE
REFERENCE TO THE HILL DECISION.

AND EFFORTS TO FILE A 19 --
>> WELL, WHAT DECISION
EXPLICITLY HOLDS THAT YOU CAN'T
RAISE THIS BY A HABEAS IN THE
FEDERAL COURT?
>> WELL, THE --
>> THE CHALLENGE, TALKING ABOUT
THE CHALLENGE TO THE METHOD OF
EXECUTION.
>> YES, SIR.
>> AND WHAT FEDERAL DECISION
HOLDS THAT YOU ARE UNABLE -- WE
ALL RECOGNIZE THAT YOU CAN'T
REPRESENT THIS DEFENDANT IN A
HABEAS PROCEEDINGS, IN THE
FEDERAL COURT.
RIGHT?
>> YES, SIR.
>> AND THE STATE DOESN'T
DISPUTE THAT.
WHAT DECISION IS IT THAT HOLDS
THAT THIS ISSUE CANNOT BE
RAISED BY A STATE DEFENDANT AND
-- IN FEDERAL COURT, THROUGH A
HABEAS PROCEEDING?
>> I UNDERSTAND THE QUESTION,
AND IT IS TRUE THAT A
CATEGORICAL DECISION WHERE THE
ISSUE HAS BEEN SQUARELY BROUGHT
BEFORE THE COURT, BY THAT I
MEAN THE FEDERAL COURT, 11TH
CIRCUIT, AND THAT THE 11th
CIRCUIT HAS SAID THAT YOU
CANNOT PROCEED BY WAY OF AN
ORIGINAL 2254, I MEAN, THAT
CATEGORICAL HOLDING DOES NOT
EXIST.
ON THIS OTHER HAND, THE
RUTHERFORD DECISION I JUST
REFERRED TO, OF COURSE WAS
CITED IN THE SCHWAB DECISION
LAST NOVEMBER, WHERE WE
ATTEMPTED TO DO THE SAME THING
THE DIAZ ATTORNEYS DID AND AS
WE ATTEMPTED TO FILE A
SUCCESSIVE 2254 AND OF COURSE
THAT IS -- AND THAT WAS
ESSENTIALLY DOOMED BECAUSE OF
THE SUCCESSIVE MOTION.
BUT, THE COURT INCLUDED THE
LANGUAGE THAT EVEN IF SUCH A
CLAIM OR -- WERE COGNIZABLE
IN A 2254, AND UNDER THE
CIRCUMSTANCES WOULD BE DENIED
BUT AT THE END OF THAT
PARTICULAR CLAUSE, WHICH I
CITED IN THE PLEAD, REPEATEDLY,
THERE IS A STRING CITATION, TO
HILL, TO NELSON AND THEN THERE
IS A SPECIFIC REFERENCE TO
RUTHERFORD, AND IT WAS
PRECISELY THE LANGUAGE I WAS
GETTING AT, WHERE THE
RUTHERFORD DECISION SAID THAT
LAW THAT SAID THAT THESE CITES
OF CLAIMS SHOULD BE PURSUED BY
2254, IS NO LONGER VALID.
>> LET ME ASK YOU A MORE BASIC
QUESTION.
WE'RE HERE WITH MR.^HENYARD'S
EXECUTION IMPENDINGING AND YOU
ARE CHOOSING TO SPEND YOUR TIME
IN THIS ORAL ARGUMENT STATING
THERE IS SOME PARTICULAR WAY
THAT YOU CANNOT PURSUE A METHOD
OF EXECUTION CLAIM IN THE
FEDERAL COURTS, IS THAT
CORRECT.
>> YES, YOUR HONOR.
>> ALL RIGHT.
AND IF THIS COURT DENIES YOUR
CLAIM THAT LETHAL INJECTION IS
UNCONSTITUTIONAL UNDER THE 8th
AMENDMENT, FOR ANY OF THE
REASONS YOU HAVE RAISED, YOU
CAN DIRECTLY PETITION TO THE
UNITED STATES SUPREME COURT FOR
RELIEF ON THAT CLAIM.
>> WHICH --
>> NOW, HOW IS IT, JUST IN
TERMS OF -- SO WE MAKE SURE WE
ARE DEALING WITH SUBSTANCE AND
NOT JUST FORM, HOW IS IT THAT
EVEN IF WE SAY, NO, YOU CAN'T
-- THE STATUTE SAYS WHAT IT
SAYS AND THE JUSTICE SAYS YOU
-- IT DOESN'T SAY YOU CAN'T
RAISE BY THE HABEAS, HOW IS
MR.^HENYARD PREJUDICED OR HOW
IS -- IN TERMS OF THIS
PARTICULAR CLAIM, IN TERMS OF
IT NOT BEING CONSIDERED BY THE
SPECIFIC PROCEDURAL ROUTE THAT
YOU ARE ALLEGING?
>> WELL, WE CAN SEEK RUIN THIS
U.S. SUPREME COURT BUT
HISTORICALLY THE REVIEW IS NOT
GRANTED VERY OFTEN.
WE CAN -- WISH TO BE ABLE TO
SEEK IT IN THE INTERMEDIATE
FEDERAL COURTS WHICH WE ARE
PROHIBITED FROM DOING BECAUSE
OF WHAT I BELIEVE IS A DECISION
FROM THIS COURT IN DIAZ, THAT
WOULD HAVE BEEN RIGHT IF IT HAD
BEEN RELEASED A COUPLE OF
MONTHS PRIOR, BUT THAT IS NO
LONGER CONSISTENT WITH FEDERAL
LAW, THE FEDERAL LAW,
PROCEDURAL LAW IS TURNED ON ITS
HEAD, SO IT HAS DIRECT IMPACT
ON WHAT WE ARE GOING TO BE
DOING.
AND AS I'VE ALREADY INDICATED
IF THE COURT DENIES RELIEF ON
OUR LETHAL INJECTION CLAIMS AND
OUR OTHER CLAIMS WEISS, NO
DOUBT, WILL SEEK -- CERT.
>> THAT IS THE QUESTION,
THOUGH, IT BREAKS DOWN, TO HOW
ARE YOU DENIED DUE PROCESS?
YOU HAVE AN OPPORTUNITY TO
BRING YOUR CLAIMS IN STATE
COURT.
YOU HAVE AN OPPORTUNITY TO
BRING IT IN FEDERAL COURT IF
YOU BRING IT OTHER THAN AS AN
-- A SUCCESSIVE MOTION.
YOU HAVE AN OPPORTUNITY TO TAKE
IT TO THE UNITED STATES SUPREME
COURT.
SO, WHERE IS THE DENIAL OF DUE
PROCESS?
>> BY DENIAL OF ACCESS TO THE
INTERMEDIATE FEDERAL COURTS, I
HAVE --
>> BUT YOU DON'T REALLY HAVE
THAT DENIAL, BECAUSE IF YOU
BRING IT IN YOUR FIRST
PETITION, UNDER 2254, YOU CAN
ACTUALLY BRING THAT CLAIM IN
FEDERAL COURT, CAN'T YOU?
>> WELL, WHAT I AM -- AND I
BELIEVE THAT IS THE ORIGINAL
QUESTION FROM JUSTICE AM STEAD,
THERE IS A CATEGORY -- AND SAID
STEAD, IS THERE A CATEGORICAL
DECISION FROM THE 11th CIRCUIT,
WE NO LONGER CAN AND NO, IT
DOESN'T EXIST BUT I AM
-- SCHWAB AND
RUTHERFORD DECISION, BUT THE
SCHWAB DECISION IN PARTICULAR
FROM LAST NOVEMBER WAS A
PROVERBIAL SHOT ACROSS THE BOW
THAT THERE -- TECHNICALLY THE
LANGUAGE WAS DICTA.
EVEN IF SUCH A CLAIM COULD BE
BROUGHT BY WAY OF AN ORIGINAL
2254, BUT WITH THE DIRECT
CITATION AND THE QUOTATION FROM
RUTHERFORD, AND THE TRAJECTORY
OF THE CASES SINCE THEN, THERE
HAS BEEN CROW AND McNAIR THAT I
HAVE CITED AND IN FACT HAS A
REFERENCE TO SCHWAB AND
RECENTLY IN THE AULDER MAN
CASE, 1983 CASES THAT HAVE BEEN
BROUGHT THROUGH THE FEDERAL
COURTS AND HAVE BEEN HEARD AND
ULTIMATELY, EXPOSED OF ON
STATUTE OF LIMITATIONS GROUNDS,
SO I'M SAYING THE MESSAGE FROM
THE 11th CIRCUIT IS CLEAR AND
WE HAVE TO BRING THE CLAIMS BY
WAY OF 1938, NOT BY WAY OF AN
ORIGINAL 2254 AND NOT BY 2254
AT ALL AND OUR ACCESS TO THE
INTERMEDIATE FEDERAL COURTS,
I'M CLAIMING, CURRENTLY HAS
BEEN CUT OFF, BY WHAT I AM --
BY A DECISION THAT THIS COURT
SHOULD NOW RECEDE FROM IN LIGHT
OF THE CHANGE IN FEDERAL LAW.
>> YOU ARE ASKING US TO ALLOW
CCRC ATTORNEYS TO BRING CIVIL
ACTIONS ....
>> NOT THAT BROUGHT BY ANY
STRETCH.
>> 1983 ACTION IS A CIVIL
ACTION.
>> WELL, IN -- YES, AND IN
THEORY, EVERYTHING WE DO BY
HISTORICAL ORIGIN IS A CIVIL
ACTION.
THAT'S WHY THE COURT IN
BUTTERWORTH HAD TO CONSTRUE THE
STATUTE TO SOME EXTENT, BECAUSE
ON ONE HAND, IT TELLS US TO
PROCEED AND CHALLENGES TO THE
JUDGMENT AND SENTENCE AND ON
THE OTHER HAND, EVERY, SINGLE
CHALLENGE WE DO AT LEAST
HISTORICALLY, AS I SAID IS A
CIVIL ACTION.
SO, THE WAY THE COURT ADDRESSED
THE MATTER, IS ALSO CONSISTENT
WITH WHAT I'M ARGUING NOW, THE
COURT RECEIVED TO THOSE
TRADITIONAL TYPES OF ACTIONS
THAT HAD BEEN BROUGHT, THAT
COLLATERAL REALLY CHALLENGED
THE JUDGMENT AND SENTENCE AND
SAID WE WERE AUTHORIZED TO DO
THOSE.
NOW UP UNTIL THE LATTER PART OF
2006, A TRADITIONAL TYPE OF
ACTION THAT WOULD CHALLENGE THE
JUDGMENT AND SENTENCE IN
FEDERAL COURT, WOULD HAVE TO BE
BROUGHT, ACTUALLY BY WAY OF A
2254 AND BY WAY OF 1983, AND
THE JURISPRUDENCE WAS
CONSISTENT WITH THE FEDERAL
PROCEDURE AT THAT TIME.
THAT CHANGED, OKAY, AND I'M
ARGUING CONSISTENT WITH THE
SPIRIT AT LEAST OF BUTTERWORTH,
WE SHOULD BE NOW ALLOWED TO
CHALLENGE THE JUDGMENT AND
SENTENCE IN PARTICULAR, THE
SENTENCE AND THE METHOD OF
EXECUTION THE NARROW CLASS OF
CASES IN FEDERAL COURT
BY THE MEANS THEY NOW TELL TO
US USE, WHICH IS 1983.
AND I'M CERTAINLY NOT ARGUING
FOR A BROAD AUTHORITY TO
PROCEED UNDER 1983.
I BELIEVE THE STATUTE FROM MY
UNDERSTANDING HISTORICALLY WAS
WRITTEN AS IT WAS TO ADDRESS
WHAT WE SEE AS ABUSES BY USING
1983, IN MUCH TOO BROAD A WAY.

>> THERE ARE THREE OTHER
ISSUES, IN THIS PETITION, THEE
PETITIONS YOU WOULD LIKE TO
ADDRESS?
>> I WANT TO TALK BRIEFLY ABOUT
THE EVIDENTIARY HEARING WITH
REGARD TO THE CLAIMS, AN
INDIVIDUAL WHO WAS TURNED UP
AND -- AS I ADMITTED AT THE
HEARING, I'M NOT SURE HOW HE
CAME ACROSS THE CLAIM AND HE
SAID IN HIS AFFIDAVIT NOBODY
FROM ANY SIDE CONTACTED HIM
ABOUT THE CASE AT ALL AND THE
NAME SURFACED IN A TRANSCRIPT,
IN -- AND -- WE COULDN'T FIGURE
OUT WHERE THIS TRANSCRIPT CAME
FROM AND WE KNEW THIS DEFENSE
ATTORNEYS DIDN'T HAVE IT.
>> AT WHAT POINT, I THOUGHT YOU
FOUND IT IN THE DEFENSE
ATTORNEY'S FILES.
>> THAT IS NOT MY RECOLLECTION.

WE FOUND IT IN FILES, BUT I
DON'T RECALL FINDING IT IN THE
TRIAL COUNSEL'S FILES.
>> THE ISSUE ON THIS, LET'S
JUST ASSUME THAT THE DUE
DILIGENCE CAN'T BE CONCLUSIVELY
REFUTED.
GO TO THE SECOND PRONG OF
JONES.
THIS COURT AND THE TRIAL COURT
IN THE ORIGINAL SENTENCING HAD
A THOROUGH DISCUSSION OF THE
RELATIVE CULPABILITY OF THE TWO
DEFENDANTS AND THE CO-DEFENDANTS
-- HE WAS CONSTITUTIONALLY IN
ELIGIBLE AT THAT TIME FOR THE
DEATH PENALTY.
THE -- YOUR CLIENT HAD BLOOD ON
HIM.
THERE IS NOT -- REFUTING
ANYTHING ABOUT HIM PLANTING THE
-- PLANNING THE MURDER AN
BRAGGING ABOUT IT AND ON TOP OF
IT, HE -- THE STATEMENT, EVEN
ACCEPTING IT AS TRUE AN EVEN
ACCEPTING THAT IT COULD BE
ADMISSIBLE WHICH IT PROBABLY
ISN'T, SIMPLY TALKS ABOUT HE'S
A CHILD KILLER -- A KILLER, NOT
A CAR THIEF, DOESN'T EVEN
RELATE TO THIS SHOOTING.
HOW COULD IT POSSIBLY MEET THE
SECOND PRONG OF JONES?
>> WELL, THERE HAVE BEEN CASES
WHERE THE ACTUAL EVENT -- STILL
THERE HAS BEEN RELIEF GRANTED.

AND TAYLOR COMES TO MIND BUT
THE DEFENSE FROM THE OPENING
STATEMENT, ALL THE WAY THROUGH,
AT TRIAL, WAS A QUESTION ABOUT
WHO IS THIS SHOOTER.
AND THE TESTIMONY WE WOULD HAVE
INTRODUCED FROM THE WOULD HAVE
SPOKEN DIRECTLY TO THAT.
IT WOULD HAVE BOLSTERED THE
TRIAL DEFENSE.
AND --
>> HOW DO YOU THINK IT WOULD BE
ADMISSIBLE?
LET'S GO BACK TO THAT.
HOW IS THAT ADMISSIBLE AND YOU
KNOW, THIS IS -- I DON'T KNOW
HOW OLD -- 19 -- 1994?
FIRST TALKED ABOUT IN 2008.
YOU NOW, A 14-YEAR-OLD KID
BRAKING ABOUT SOMETHING.
IT'S NOT EVEN ADMISSION AGAINST
INTEREST.
BECAUSE IT -- RELATED TO
ANYTHING AND I DON'T EVEN SEE
HOW IT GETS TO ADMISSIBILITY.
>> WELL, WE HAVE ARGUED IT
WOULD COME UNDER THE EXCEPTION,
921-141 FOR ADMISSIBLE HEARSAY.

AND THAT IT WOULD IN FACT HAVE
BEEN A STATEMENT BY SMALLS
AGAINST HIS INTEREST.
AND ALSO, SMALLS WOULD HAVE
BEEN UNAVAILABLE AT THE TIME OF
TRIAL.
>> LET ME ASK YOU THIS
QUESTION.
DID YOU CLOAK THIS CLAIM THAT
YOU ALL HAVE BEEN DISCUSSING AS
A WAY OF ESTABLISHING THIS
MITIGATOR ON -- NOT ONLY BEING
A MINOR PARTICIPANT IN A CRIME
COMMITTED BY SOMEONE ELSE, THE
WAY THE CLAIM WAS CLOAKED, AT
THE TRIAL COURT LEVEL?
>> AT THE -- IN A
POSTCONVICTION PROCEEDINGS,
YES.
AND THE WAY IT WAS DISCUSSED IN
THE -- I MEAN, IN THE ORDER,
AND GENERALLY IN THE BRIEFING
AND I BELIEVE THE STATEMENT BY
THE COURT WAS IN ORDER TO EVEN
BE CONSIDERED UNDER THE JONES
STANDARDS, THAT IT WOULD HAVE
TO BE TREATED AS THE STATUTORY
MITIGATOR WHICH INCLUDES THE
COMPONENT OF -- ONLY BEING A
MINOR PARTICIPANT.
>> AND THAT IS THE WAY THE
COLLATERAL WAS CLOAKED IN THE
TRIAL COURT, IS THAT CORRECT.
>> I DON'T BELIEVE SO.
I BELIEVE --.
>> IT WASN'T.
>> I --
>> THE TRIAL COURT AS YOU SAY,
THE TRIAL COURT SAID THAT THE
CLAIM WAS ESSENTIALLY THAT --
WITH THIS NEW EVIDENCE, THAT
THE STATUTORY MITIGATOR OF
BEING A MINOR PARTICIPANT IN A
CRIME COMMITTED BY SOMEONE
ELSE, WOULD BE ABLE TO BE
ESTABLISHED.
SO, HE'S INCORRECT IN HIS
CHARACTERIZATION OF THE CLAIM.

>> YES, SIR.
THE CLAIM WAS SIMPLY -- SIMPLY
--
>> A NEW EVIDENCE CLAIM.
>> IT WAS A NEW EVIDENCE CLAIM
AND WE WERE TRYING TO ARGUE
THAT RELATIVE CULPABILITY IS
WHAT I WOULD CALL IT AND
WHETHER THAT APPLIES DIRECTLY
STRICTLY TO THE STATUTORY
MITIGATOR OR A MITIGATOR IN
GENERAL.
>> I WANTED TO BE SURE THAT IF
WE LOOK AT THE CLAIM, IT WILL
NOT BE CLOAKED IN THE LANGUAGE
OF JUST ESTABLISHING THIS
MITIGATOR.
>> YES, SIR.
>> I BELIEVE I HAVE -- WILL GO
AHEAD AND RESERVE TIME.
>> MAY IT PLEASE THIS COURT,
STEPHEN AKE REPRESENTING THE
STATE OF FLORIDA IN THE CASE.
>> COUNSEL, WOULD YOU ADDRESS
THE QUESTION I ASKED
ORIGINALLY?
BECAUSE THIS COURT GENERAL HAD
NO INTENTION OF DEPRIVING A
DEFENDANT UNDER SENTENCE OF
DEATH OF MAKING A
CONSTITUTIONAL CHALLENGE TO HIS
CRIMINAL SENTENCE, AND --
TALKED ABOUT CAPITAL COLLATERAL
COUNSEL NOT OFF FILING CIVIL
RIGHTS ACTIONS IN THE -- AND SO
MY UNDERSTANDING, AT LEAST, IN
READING THE LAW HAS ALWAYS BEEN
THIS KIND OF CLAIM COULD BE
FILED IN A STATUTORY FEDERAL
HABEAS CORPUS PROCEEDING.
HELP US WITH THAT ISSUE.
>> I BELIEVE THAT THAT IS
CORRECT.
YOUR HONOR.
I BELIEVE THE UNITED STATES
SUPREME COURT SAID SO IN HILL
VERSUS McDONOUGH THAT ALTHOUGH
THEY ACKNOWLEDGED IT MAY BE
PRESENTED IN 1983 THEY ALSO,
ACKNOWLEDGE THAT IT COULD BE
PRESENTED IN A HABEAS PETITION.

IN FACT, CCRC ROUTINELY DOES IT
IN HABEAS PETITIONS.
>> WHAT DO YOU SAY ABOUT THE
LANGUAGE THAT THE -- THAT HE
HAS CITED?
>> WELL, YOUR HONOR, FIRST OF
ALL, WE HAVE TO GO WAY, WAY
BACK TO THE ORIGINAL CLAIM, AS
IT WAS PRESENTED IN THE TRIAL
COURT IN THE POST-CONVICTION
MOTION AND THAT IS, IT IS
PROCEDURALLY BARD AND I THINK
THE COURT IN -- AND COUNSEL IS
TRYING TO CONCERN THE COURT
WITH AVENUES AVAILABLE IN
FEDERAL COURT WHEN THAT IS NOT
THE QUESTION WE ARE DEALING
WITH HERE AND WE ARE DOING WITH
A CONSTITUTIONAL ATTACK TO
SECTION --
>> LET'S ASSUME --
>> OKAY.
, I AM FINE WITH THAT.
>> IT IS A FRESH SITUATION,
PROCEDURALLY AND NOW WANT TO GO
OVER TO FEDERAL COURT AND
PRESENT THE DEFENDANT IN MAKING
A CLAIM THAT THE METHOD OF
EXECUTION AS IT IS CURRENTLY
ADMINISTERED, DOES NOT MEET
CONSTITUTIONAL STANDARDS.
>> FIRST I WOULD SAY CCRC HAS
AVAILABLE 2254 WHICH WE
DISCUSSED BUT, ALSO, THERE HAS
BEEN NO PROHIBITION AGAINST
FILING THIS 1983 ACTION THEM.
ONLY PROHIBITION IS AGAINST
CCRC ATTORNEYS FROM DOING THAT.

AND TENURE DOES NOT PROHIBIT IT
FROM FILING THAT ON HIS OWN
BEHALF AND HE CAN FILE IT PRO
SE OR AS IN THE SCHWAB CASE.
>> WE HAVE ALSO RECOGNIZED THAT
CRC COULD FILE FEDERAL
STATUTORY HABEAS PROCEEDINGS ON
BEHALF OF THE DEFENDANT AND
INCLUDE ANY CONSTITUTIONAL
CLAIMS THAT MAY BE THERE.
>> RIGHT.
>> AND THAT IS BACK IN BUT
YOURWORTH AFTER KENNEDY 1988 --
BUTTERWORTH AFTER KENNEDY, THIS
1988 DECISION AND THAT IS WHY
--
>> TRYING NOT TO DANCING AROUND
THE FACT THAT UP UNTIL THIS
POINT, THAT WE WOULD HAVE, I
THINK SO IF BY NO OTHER WAY BY
INFERENCE RECOGNIZED THAT THEY
COULD ASSERT SUCH A CLAIM, AS
THE --
>> I'M NOT --
>> FEDERAL STATUTORY HABEAS
PROCEEDINGS.
UNDER THE CIVIL RIGHTS ACT.
>> I'M NOT DENYING THEY COULD
FILE A HABEAS.
>> THAT IS THE LAW AND I'M NOT
AWARE OF ANY DECISION THAT
PROHIBITS SUCH AN ACTION.
AND THAT IS OUR POSITION, AND I
THINK HILL VERSUS McDONOUGH
FROM THE U.S. SUPREME COURT
SAYS THEY COULD DO EITHER
DEPENDING ON THE NATURE OF THE
CLAIM.
>> AND AGAIN, I'M NOT -- I
DIDN'T REALLY FEE CUSS ON THE
ISSUE, FRANKLY, SO I HAVE TO GO
BACK.
BUT, IF FOR WHATEVER REASON,
NOW, 1983, IS A SUPERIOR METHOD
FOR CHALLENGING METHOD OF
EXECUTION, ISN'T IT A LITTLE
RIDICULOUS TO SAY, WELL, TEN
YEARS OF COLLEGE PRO SE, WHEN
IT IS THE EXACT SAME CLAIM
THAT'S HABEAS WHICH IS CHANGING
THE -- WE'RE JUST CHANGE THE
LABEL AND IN OTHER WORDS WHEN
WE CAME OUT WITH OUR PRIOR
DECISION WE DIDN'T HAVE THE
BENEFIT OF WHAT THE UNITED
STATES SUPREME COURT WAS SAYING
ABOUT THESE 1983 ACTIONS AND
FRANKLY I WAS A LITTLE
SURPRISED THEY EVEN TALKED
ABOUT IT.
BUT THEY DID.
SO, WHY SHOULDN'T WE CLARIFY AS
LONG AS, THE METHOD OF
EXECUTION CLAIM, THAT THEY CAN
BRING IT, BY 1983.
BECAUSE IT IS THE EXACT SAME
THING AS BRINGING IT BY HABEAS
BUT MAYBE THERE IS SOMETHING AS
TO WHY ONE IS BETTER THAN THE
OTHER.
>> I THINK THE POLICY REASON
STATED BY THE COURT IN THE
KENNEDY DECISION BACK IN 1988
ARE APPLICABLE TO THAT, IS THAT
THE STATE LEGISLATURE HAS A
LIMITED AMOUNT OF FUNDS AND
THEY CAN AUTHORIZE HOW THEY
WANT TO USE THOSE FUNDS AND
CCRC ATTORNEYS CAN OPERATE AND
IF YOU OPEN FLOODGATES TO THE
1983 --
>> AGAIN, I AM TO THE TALKING
ABOUT FLOODGATES, I'M SAYING
THIS EXACT SAME CLAIM IS -- YOU
ARE ACKNOWLEDGING THEY CAN
BRING IT OVER BY HABEAS OR 198
--
>> I'M NOT ACKNOWLEDGELING CCRC
CAN FILE OUT BY 1983.
>> YOU ARE SAYING CCRC CAN FILE
THE HABEAS.
>> YES.
CORRECT AND THEY DID.
>> AND FILE THIS 1938.
WHY WOULD WE WANT TO LIKE GET
THE FEDERAL COURTS IN WITH A
PROCESS -- WE KNOW WHAT IT IS
LIKE WHEN DEFENDANTS ARE PRO
SE, A PRO SE ON THIS HAND AND
THAT AND SEEMS TO ME WE HAVE
BEEN REALLY --
>> AGAIN --
>> CAN I FINISH MY QUESTION?
>> YES.
>> WE HAVE MUDDIED THE
SITUATION FOR THE FEDERAL
COURTS AS OPPOSED TO STREAMLINE
IT AND WE HAVE DONE REALLY NOT
A SERVICE TO WHAT THE
LEGISLATURE INTENDED, BUT, A
DISSERVICE BY SAYING, LISTEN
YOU CAN FILE ONE OR THE OTHER
AND CAN'T GO BOTH WAYS, IF YOU
ARE CHALLENGING METHOD OF
EXECUTION.
>> WELL, OBVIOUSLY, YOUR HONOR,
WE WOULD DISAGREE WITH THAT
CHARACTERIZATION AND THINK THE
LEGISLATURE, AS THE COURT --
THE COURT SHOULDN'T CONCERNED
WITH WHAT THE AVENUES ARE
AVAILABLE IN FEDERAL COURT TO
CCRC DEFENDANTS REALLY, THIS
BOILS DOWN TO WHAT THIS COURT'S
CONTROL OF IS THIS STATUTE
THATS IN QUESTION AND
CONTROLLING CCR'S
REPRESENTATION, AND HOWEVER
THEY RAISE IT IN FEDERAL COURT
--
>> I WANT TO UNDERSTAND THIS.
SO WE END -- AND THIS
LEGISLATURE NEEDS CLARIFY.
YOU ARE SAYING IT WOULD BE --
CONSISTENT WITH LEGISLATIVE
INTENT TO LET CCRC FILE THE
HABEAS.
>> CORRECT.
>> AND HAVE SOMEONE GHOST-WRITE
A PETITION FOR THE DEFENDANT TO
FILE PRO SE IN 1983, THAT THAT
WOULD BE A BETTER PAT FOR THE
ADMINISTRATION OF JUSTICE?
>> I THINK THAT YOU CANNOT
PIGEON-HOLE OUT A LETHAL
INJECTION 1983 ACTION AND SAY
CCRC CAN NOW FILE THIS BASED ON
FEDERAL CASE LAW.
I DON'T --
>> YOU SAY WE CAN'T ACTUALLY
NARROWLY SAY IT.
>> NO, I DON'T HOW THE COURT
CAN DO THAT.
>> WHAT -- I WOULD LIKE AN
EXPLANATION.
YOU SAY IT CAN'T BE DONE.
WHY NOT?
CERTAINLY THE 1983, CIVIL
RIGHTS DAMAGE-TYPE CLAIMS THAT
COULD GO ON AND ON OF A CIVIL
DAMAGE NATURE, CERTAINLY, IS
NOT WITHIN THIS, BUT, WHY COULD
IT NOT BE SO TAILOR AND I
THOUGHT YOU ANSWERED, JUSTICE
ANSTEAD'S QUESTION SAYING
NOTHING EXISTS TO PROHIBIT THAT
AS I UNDERSTOOD YOUR ANSWER TO
HIS QUESTION AND YOU SEEMED TO
CHANGE WITH THE JUSTICE
PARIENTE'S QUESTION.
>> NOTHING PROHIBITS HENYARD
FROM FILING IT.
>> WE ARE TALKING ABOUT CCR --
>> NOT TALK ABOUT --
>> GOES HAND IN HAND, YOUR
HONOR, HENYARD IS NOT DENIED
ACCESS TO THE COURTS --
>> BECAUSE HE CAN DO IT
INDIVIDUALLY.
>> YES. CERTAINLY.
>> AND WOULD YOU ANSWER, THEN,
THAT IS FINE.
I UNDERSTAND YOUR ANSWER NOW.
BUT, WOULD YOU ANSWER THE
ASPECT OF THE WHY?
THE COURT COULD NOT TAILOR AN
OPINION, OR DECISION, THAT
WOULD VERY CLEARLY DELINEATE
THAT IT DOESN'T OPEN THESE
FLOODGATES TO ALL OF THE CIVIL
LITIGATION AND IT IS BECAUSE
THE FEDERAL COURTS MAY HAVE
CHANGED THE PROCEDURAL
MECHANISM THROUGH WHICH THEY
WILL LOOK AT THESE THINGS, THAT
WOULD ALLOW CCRC TO DO WHAT
THEY'VE DONE IN THE PAST,
HISTORICALLY.
>> WELL, YOUR HONOR FIRST I
WOULD CONTEND THE FEDERAL
COURTS HAVE NOT CHANGE ANYTHING
AND ALWAYS HAD A 1983
AVAILABLE, AND THAT HAS NOT
BEEN CHANGED.
IT IS JUST, CCR'S COMPLAINING
THEY CAN'T GO AND DO IT.
AND THE CASE LAW REALLY HAS NOT
CHANGED THAT DRASTICALLY, I
WOULD SUBMIT.
>> LET'S GO BACK THEN AND YOU
KNOW, WE ARE REALLY DANCING ALL
AROUND THE QUESTION AND IT IS A
VERY SIMPLE QUESTION AND I
THINK YOU NO E WHAT WE ARE
TRYING TO GET TO.
AND THAT IS, IF THE FEDERAL
COURTS ARE ONLY GOING TO LOOK A
THOSE UNDER A 1938 PROCEDURAL
MECHANISM, WHY SHOULD THIS
COURT NOT WRITE NARROWLY
AENOUGH TO ALLOW CCRC TO DO
EXACTLY WHAT THEY HAVE DONE
HISTORICALLY AND THAT IS, TO BE
ABLE TO CHALLENGE IN A
COLLATERAL ATTACK POSTURE, THE
LEGALITY OF A PARTICULAR METHOD
OF EXECUTION?
>> WELL, I WOULD THINK IT WOULD
RUN CONTRARY TO LEGISLATIVE
INTENT BUT I DON'T KNOW HOW THE
COURT CAN NARROWLY CONSTRUE
THAT SO IT WOULD JUST BE
APPLICABLE TO THESE LETHAL
INJECTION CLAIMS.
>> YOU THINK IF WE'D SAY THAT
IT WOULD OPEN UP THE CIVIL
REMEDIES AND DAMAGES AND THE
WHOLE THING.
>> RIGHT, YOUR HONOR.
>> OKAY.
>> REGARDING THE SECOND CLAIM
WITH MR.^NAWARA COUNSEL RAISED
THAT AS A NEWLY DISCOVERED
EVIDENCE CLAIM AND THE TRIAL
COURTS FOUND FOR THE SAKE OF
ARGUMENT THAT IT MET THIS FIRST
PRONG OF JONES BUT SAID THAT IT
DID NOT MEET THE SECOND PRONG
AND IT WOULD NOT PRODUCE A
DIFFERENT RESULT.
AND THAT IS A CORRECT RULING IN
THE CASE THE TRIAL COURT NOTED
TWO REASON AND ONE THE EVIDENCE
WOULDN'T BE ADMISSIBLE IN THE
PENALTY PHASE AND MORE
IMPORTANTLY WOULD NOT HAVE
CHANGED ANYTHING IN THE CASE,
AND NAWAR A'S AFFIDAVIT SAYS
THE CO-DEFENDANT SAID, WAS
BRAGGING IN JAIL WHEN HE WAS 14
YEARS OLD HE WAS A KILLER AS
JUSTICE PARIENTE POINTED OUT
NOTHING TIED IT INTO THIS CASE
WHATSOEVER AND THE TRIAL
COURT'S ORDER DOES A GOOD JOB
OF BASICALLY SAYING THEIR
ARGUMENT IS THE HOUSE OF CARDS
COMES TUMBLING DOWN ON THE
CLAIM BECAUSE UNDER NO SCENARIO
WHATSOEVER IS HENYARD EVER
GOING TO BE ENTITLED TO THAT
STATUTORY MITIGATOR OF A MINOR
PARTICIPANT IN THE CASE.
I THINK THE EVIDENCE IS
OVERWHELMING, AS TO HIS MAJOR
ROLE IN THE CASE.
THAT HE WAS THE ONE THAT STOLE
THE GUN AND --
>> WHETHER WE CLOSE IT AS THE
STATUTORY MITIGATOR, RELATIVE
CULPABILITY OR PROPORTIONALITY
IT -- YOUR ARGUMENT IS THE
SAME.
>> CORRECT, YOUR HONOR.
>> EVEN IF FOR SOME REASON
THERE WERE CO-SHOOTERS OR --
THE GUN WAS FOUND IN SMALLS'
POSSESSION.
>> CORRECT.
>> AND LET ME MAKE SURE WE ARE
CLEAR ON THIS.
IT ISN'T LIKE I REMEMBER LEO
JONES, WHERE I MEAN, THERE IS A
NEW DEFENDANT OR SOMETHING.
THIS IS THE PERSON THAT
MR.^HENYARD'S ALWAYS BLAMED FOR
THE SHOOTING, THE 14-YEAR-OLD.

>> THE JURY HEARD ALL OF THIS
AND THE STATE AT TRIAL NEVER
CLAIMED HENYARD WHAT'S THE
TRIGGER MAN AND IT WASN'T UNTIL
THIS PENALTY PHASE WHEN THE
STATE TRIED REBUT THE MITIGATOR
THEY INDUCED THE BLOOD STAIN
EVIDENCE FROM THE EXPERT
INDICATING THAT HENYARD HAD THE
HIGH VELOCITY BLOOD STAIN ON
HIM AS OPPOSED TO HIS
CO-DEFENDANT BUT --
>> THAT IS IMPORTANT -- LET ME
MAKE SURE I UNDERSTAND, THEY
DIDN'T RELY ON WHO WAS THE
SHOOTER FOR THE GUILT PHASE.
>> NO, YOUR HONOR, CAME OUT IN
THE PENALTY PHASE, ONCE THE
DEFENSE WAS MAKE ANGLE ISSUE OF
THE MITIGATOR IN -- THERAPY
STATE CALLED LEROY PARKER IN
THE PENALTY PHASE AND WAS NOT
PRESENTED IN THE GUILT PHASE
AND THE STATE'S THEORY ALL
ALONG WAS THE TWO INDIVIDUALS
DID IT TOGETHER, BUT THAT THE
EVIDENCE AFTER THIS PENALTY
PHASE DEFINITELY STRONGLY
INDICATED HENYARD WAS THE
TRIGGER MAN BUT THE STATE NEVER
CLAIMED HENYARD WAS THE TRIGGER
MAN AND EVEN IF YOU GIVE SMALLS
OR NAWARA'S STATEMENT, TAKE IT,
YOU KNOW, PAST ITS LOGICAL
CONCLUSION, IT'S NOT GOING TO
INDICATE SMALLS WAS THE TRIGGER
MAN.
HE NEVER, NEVER SAID THAT IN
THE AFFIDAVIT, AND I BELIEVE
THE TRIAL COURT PROPERLY SOME
SUMMARILY DENIED THE CLAIM.
-- SUMMARILY DENIED THE CLAIM.

NO FURTHER QUESTIONS.
I'LL TURN IT OVER.
THANK YOU.
>> COUNSEL, WOULD YOU RESPOND
TO YOUR OPPONENT'S LAST REPORT
OF THE WAY THAT THE STATE
ACTUALLY TREATED THIS CASE AT
TRIAL, SAYING THAT IT -- IT WAS
NEVER THEIR STRATEGY AT TRIAL
TO FOCUS SOLELY ON HENYARD AS
FAR AS BEING THE SHOOTER, THAT
IT WAS ONLY DURING THE PENALTY
PHASE THAT THE BLOOD SPLATTER
EVIDENCE WAS PRINTED TO REFUTE
AND CLAIMS OF THE STATUTORY
MITIGATOR OF A MINOR
PARTICIPANT IN A CRIME
COMMITTED BY ANOTHER?
IS COUNSEL CORRECT INSCRIBING
THAT.
>> THE FIRST PART, I BELIEVE IS
CORRECT.
>> WHAT PART OF HIS NARRATIVE
DO YOU DISPUTE?
>> IF YOU DO.
>> THE TRIAL COUNSEL ARGUED
THAT HENYARD WAS NOT THE
TRIGGER MAN FROM THE BEGINNING
OF THE CASE AN ARGUED THAT --
EVERY CHANCE HE COULD THAT
POINT AND IT WAS DURING THE
PENALTY PHASE THIS EVIDENCE --
THAT THAT ISSUE WAS FOCUSED ON
MORE -- THAT IS THE ONLY
DISPUTE.
I DID WANT TO TAKE A MOMENT
HERE TO EXPRESS CONCERN THAT --
I THINK THIS ISSUE ABOUT
COUNSEL IS AN EXTREMELY
IMPORTANT ONE.
>> LET ME -- REMIND ME HOW
SCHWAB PROCEEDED, BECAUSE MY
RECOLLECTION IS THAT SCHWAB
PROCEEDED THROUGH THIS COURSE
AND THEN WHEN THE UNITED STATES
SUPREME COURT... [INAUDIBLE]
HABEAS, IT.
>> U.S. SUPREME COURT, FILED A
CERT PETITION.
>> AND ON THAT CERT PETITION
THE U.S. SUPREME COURT STEPPED
IN AND STAYED IT.
>> YES, SIR.
>> AND THEN, RESOLVED THE DIAZ
CASE AND THERE WAS ALSO A --
SCHWAB PROCEEDED THROUGH THE
11th CIRCUIT.
>> LET ME GIVE A QUICK
CHRONOLOGY BECAUSE IT
ILLUSTRATES THE URGENCY OF THE
ISSUE.
IN THE SHORT PERIOD OF TIME,
BEFORE THE DECISION BECAME
FINAL IN THE COURT IN NOVEMBER,
AND THE ACTUAL EXECUTION, WE
FILED AN APPLICATION OF FILE
2254 SUCCESSIVE MOTION AND THAT
WAS DENIED.
AND IT WAS DENIED BECAUSE
UNLIKE THIS COURT, THE FEDERAL
COURTS DO NOT RECOGNIZE A NEW
NEWNESS-TYPE CLAIM, WHICH IS
TYPICAL IN METHOD OF EXECUTION
CLAIMS IN THE COURT WHERE
SOMETHING NEW AND CURRENT IS
YOU A MATTER --
>> UNDER THE SAFE STREETS ACT
THE FEDERAL COURT HASST UP
CERTAIN PROCEDURES FOR
WARRANT-TYPE SITUATIONS.
ACTUALLY, ON SUCCESSIVE
SITUATIONS, OF GOING THROUGH
THE FEDERAL COURT WHICH YOU
HAVE TO GET ACCESS IN ORDER TO
GO TO THE TRIAL COURT FROM THE
CIRCUIT.
CORRECT?
>> [INAUDIBLE].
>> WELL, THE PROCEDURES ARE
THERE.
I'M NOT EVEN SURE I AM
RESPONDING TO YOUR QUESTION.
BUT IF THE ARGUMENT IS THAT
THERE IS SOMETHING NEW AND
CURRENT AS I SAID IT ONLY
APPLIES TO GUILT OR INNOCENCE
AND WILL NOT HEAR A METHOD OF
EXECUTION CLAIM UNDER
THAT EXCEPTION.
UNDERTY 54.
I HOPE THAT IS AN ANSWER.
>> WASN'T THERE AN APPEAL FROM
THE 11th CIRCUIT DECISION TO
THE U.S. SUPREME COURT IN
SCHWAB?
MY RECOLLECTION IS CORRECT.
I THOUGHT THERE WERE 2 AVENUES
THAT SCHWAB PROCEEDED, TO THE
UNITED STATES SUPREME COURT,
THE UNITED STATES SUPREME COURT
STEPPED IN AND STAYED IT AND
STAYED BOTH OF THEM AND THEN,
AFTER THE DIAZ CASE CAME OUT
THEY DISSOLVED THE STAY.
>> THERE WAS A CERT PETITION
FILED IN THE STATE COURT AND A
STAY AND THEY COURT GRANTED IT
AND THEN DISSOLVE IT AFTER
BAZE.
AND ACTUALLY IT WAS DISSOLVED
BY OPERATION OF THEIR DENIAL OF
THE CERT PETITION WE FILED IN
THE CASE AND WITH REGARD TO THE
ACTUAL 2254 APPLICATION WE
FILED, I DON'T BELIEVE WE
PURSUED THE CERT PETITION AT
THE TIME AND IN ANY EVENT,
THERE WAS NO STAY FROM THE
SUPREME COURT, ONLY IN FACT --
AS I RECALL, I THINK WE
ACTUALLY HAD ONE -- ACTUALLY AT
THE COURT BUT DIDN'T FORMALLY
GET FILED.
AND THAT WAS BECAUSE THE STAY
HAD BEEN GRANTED IN THE STAYED
PROCEEDING AND AFTER THAT I
FILED A 1983, AND IN DOING SO,
I STUCK MY NEXT OUT AND
APPARENTLY STATEWIDE THERE WAS
A VIEW THERE WAS A VIOLATION OF
ALL CCRC POLICY AND STATE LAW,
AND SO ON AND SO FORTH AND I
FILED IT ANYWAY AND IN THE I
MOVED TO WITHDRAW, AFTER A
FRUITLESS SEARCH FOR PRIVATE
COUNSEL TO TAKE IT OVER, AND
AFTER THAT, ON WHAT AMOUNTED TO
A TECHNICALITY, THE MOTION WAS
DENIED -- TECHNICALITY THE
MOTION WAS DENIED WITHOUT
PREJUDICE SIS AND WE -- THEY
APPEALED AND APPEALED THE
DENIAL TO THE 11TH CIRCUIT AND
AN PETITION WAS ISSUED ON JUNE
28th OR 29th AND DENIED RELIEF
AND THAT COUNSEL, MORRISON AND
-- DECLINED TO FILE THE CERT
PETITION AND THAT IS WHAT
HAPPENED.
AS FAR AS AN ORIGINAL PETITION,
JUST LIKE THIS COURT, IF THERE
IS YOU A BOILERPLATE-TYPE
METHOD OF EXECUTION CLAIM THAT
IS INCLUDED IN A 3850 OR LATER
ON 2254 AND THERE IS NOT SOME
NEWNESS ASPECT TO IT, SOME
CURRENTNESS ASPECT TO IT IT
WILL ROUTINELY BE DENIED.
THAT HAS HAPPENED OVER AND OVER
AGAIN, ON THE OTHER HAND, THE
TRADITIONAL PRACTICE OF THIS
COURT AS REFLECTED IN KENNEDY
VERSUS BUTTERWORTH IS WHERE
THERE HAS BEEN SOME RECENT
EVENT, TYPICAL A BOTCHED
EXECUTION AND MIGHT BE LIKE THE
LANCE SET ARTICLE OR SOMETHING
OF THAT SORT, THEN THE COURT
WILL ALLOW THAT MATTER TO BE
HEARD, ON THE MERITS.
THAT HAS BEEN THE TRADITIONAL
PATTERN IN THE COURT OVER YEARS
AND YEARS.
THAT CANNOT BE DONE BY WAY OF
SUCCESSIVE -- CORRESPONDING
SUCCESSIVE PETITION.
HOWEVER, IF A 1983, ON THAT
LIMITED ISSUE, IS FILED, WITH
IN THE STATUTE OF LIMITATIONS,
WHICH IS WHAT THEY ARE COMING
DOWN ON NOW, THEN WE CAN GET
FEDERAL RUIN THE INTERMEDIATE
COURTS, AND I HAVE ARGUED THAT
THAT IS THE WAY WE MUST GET A
FEDERAL REVIEW, AND THE ONLY
WAY TO BE ALLOWED TO DO THAT IS
FOR THIS COURT TOOT LEAST
RECONSIDER THAT PORTION OF THE
DIAZ OPINION.
INTO THANK YOU VERY MUCH.
THANKS TO BOTH OF COUNSEL FOR
THEIR ARGUMENTS.
THIS COURT WILL NOW BE IN
RECESS, UNTIL TOMORROW MORNING.

>> PLEASE RISE.