Florida Supreme Court Stay in Death Row Inmate Thomas Knight's Challenge to Use of Midazolam Hydrochloride in Lethal Injections

8/13/2019 Florida Supreme Court Stay in Death Row Inmate Thomas Knight's Challenge to Use of Midazolam Hydrochloride in Lethal Injections

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Supreme Court of Florida

MONDAY, NOVEMBER 18, 2013

CASE NO.: SC13-2105Lower Tribunal No(s).: 80-341-CFA

ASKARI ABDULLAH

MUHAMMADF/K/A THOMAS KNIGHT

vs. STATE OF FLORIDA

Appellant(s) Appellee(s)

Askari Abdullah Muhammad (f/k/a Thomas Knight), a prisoner undersentence of death and for whom a death warrant has been signed, appeals the

summary denial of his successive motion for postconviction relief filed pursuant toFlorida Rule of Criminal Procedure 3.851. On October 21, 2013, the Governor

signed a death warrant, and Muhammads execution was set for December 3, 2013.

Muhammad sought postconviction relief in the circuit court, raising several claims,

including a challenge to the September 9, 2013, protocol for lethal injection issuedby the Florida Department of Corrections (DOC), which replaced the first drug in

its three-drug protocol, pentobarbital, with another drug, midazolam hydrochloride.Among other things, Muhammad challenged the efficacy of midazolam

hydrochloride as an anesthetic to induce unconsciousness. As we explained in

Lightbourne v. McCollum, 969 So. 2d 326, 351 (Fla. 2007), [i]f the inmate is notfully unconscious when either pancuronium bromide or potassium chloride [thesecond and third drugs in the protocol] is injected, or when either of the chemicals

begins to take effect, the prisoner will suffer pain.The Court has determined that Muhammads claim as to the use of

midazolam hydrochloride as an anesthetic in the amount prescribed by Floridasprotocol warrants an evidentiary hearing. We conclude based on the allegations in

Muhammads 3.851 motion that he has raised a factual dispute, not conclusively

refuted, as to whether the use of midazolam hydrochloride in Floridas lethalinjection protocol will subject him to a substantial risk of serious harm. Baze v.

Rees, 553 U.S. 35, 50 (2008) (plurality opinion). In order to carefully consider thisclaim, we grant Muhammads motion for stay, in part. This matter is stayed until5:00 p.m., Friday, December 27, 2013, absent further order of the Court.

Accordingly, we hereby temporarily relinquish jurisdiction to the CircuitCourt of the Eighth Judicial Circuit, Bradford County, until Tuesday,November 26, 2013, for the narrow purpose of holding an evidentiary hearingsolely on Muhammads claim regarding the efficacy of midazolam hydrochloride as


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CASE NO.:SC13-2105

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an anesthetic in the amount prescribed by Floridas protocol. This includes factualallegations raised in Muhammads 3.851 motion. We further direct the DOC to

produce correspondence and documents it has received from the manufacturer ofmidazolam hydrochloride concerning the drugs use in executions or otherwise,

including those addressing any safety and efficacy issues. In this relinquishmentproceeding, Muhammad shall not be permitted to relitigate or raise any other claims.

Upon the conclusion of the evidentiary hearing, the circuit court shall enter awritten order as to Muhammads claim on the efficacy of midazolam hydrochloride

as an anesthetic. The hearing shall be concluded and the order entered no later than2:00 p.m., Tuesday, November 26, 2013. Upon issuance of the circuit courts

order, the circuit court clerk shall immediately transmit a copy of the order to thisCourt. The circuit court clerk shall file a record of the entire relinquishmentproceeding, including transcripts, with this Court no later than 2:00 p.m.,

Wednesday, December 3, 2013. The record resulting from the above

relinquishment proceeding shall reflect supplemental record volume III, etc. andpage numbering should start with page 51and run consecutively. Per this Courts

Administrative Order In Re: Mandatory Submission of Electronic Copies ofDocuments, AOSC04-84, dated September 13, 2004, the court reporters are

directed to transmit a copy of any transcripts, in addition to paper copies, in an

electronic format as required by the provisions of that order. An electronic version

of the circuit courts order and the transcripts shall be submitted to the followinge-mail address: [email protected].

Thereafter, the parties are directed to file supplemental briefs limited solelyto issues raised during the relinquishment proceedings regarding the efficacy of

midazolam hydrochloride as an anesthetic in the amount prescribed by Floridas

protocol. The supplement initial brief shall be filed no later than 2:00 p.m.,

Thursday, December 5, 2013. The supplemental initial brief shall be limited to 50pages. The supplemental answer brief shall be filed no later than 2:00 p.m.,

Tuesday, December 10, 2013. The supplemental answer brief shall be limited to

50 pages. The supplemental reply brief shall be filed no later than 2:00 p.m.,Thursday, December 12, 2013. The supplemental reply brief shall be limited to

25 pages. NO MOTION FOR ENLARGEMENT OF THE BRIEFS SHALL BE

CONSIDERED. Filing of the above briefs to this Court and to opposing counsel


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shall be via e-mail to the following address: [email protected]. Oral argument,if necessary, shall be held on Wednesday, December 18, 2013, at 9:00 a.m.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

CANADY, J., dissenting.

I dissent from the majoritys decision to stay this case and remand for an

evidentiary hearing on Muhammads claim that Floridas lethal injection protocol is

unconstitutional. To state a claim under Article I, section 17 of the FloridaConstitution or the Eighth Amendment to the United States Constitution, adefendant must show that the lethal injection protocol is sure or very likely to

cause serious illness and needless suffering. Brewer v. Landrigan, 131 S. Ct. 445,

445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion)).Because Muhammad has not alleged a prima facie claim that Floridas protocol is

sure or very likely to cause needless suffering, the postconviction court did not errin summarily denying that portion of his successive postconviction motion.

In his motion and on appeal, Muhammad argues that because midazolam

hydrochloride is not as fast acting and does not last as long as the barbiturates

sodium thiopental and pentobarbitalrequired by prior protocols, the revisionrequiring the use of midazolam hydrochloride as the first drug of the three-drug

protocol creates a risk that Muhammad will feel pain during his execution.Muhammad relies on newspaper articles that reported that recently executed inmate

William Happ remained conscious for a longer period of time than inmates

executed under prior protocols and that Happs head moved after he failed to

respond to a consciousness check.Like the defendant in Valle v. State, 70 So. 3d 525 (Fla. 2011), Muhammad

has presented, at most, conclusory and speculative allegations that do not address

the safeguards built into the protocol that ensure that an inmate is unconsciousbefore the execution proceeds. Under the current protocol, if the injections of

midazolam hydrochloride do not promptly render Muhammad unconscious, the

execution will be suspended and Muhammad will not be injected with the secondand third drugs until he is unconscious. Muhammad does not allege that the Florida

Department of Corrections revised these safeguards, nor does he allege any reasonto suspect that the movement of Happs head was a voluntary expression of pain,

rather than an involuntary movement made while unconscious.


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Muhammads allegations do not raise a material issue of fact that must beresolved in order to rule on his claim. I therefore dissent from the majoritys

decision to stay the death warrant and remand for an evidentiary hearing onMuhammads claim that Floridas lethal injection protocol is unconstitutional.

POLSTON, C.J., concurs.

A True Copy

Test:

tw

Served:

LINDA MCDERMOTTSANDRA SUE JAGGARD

HON. RAY NORMAN, CLERKHON. PHYLLIS M. ROSIER, JUDGE

ROBERT ELLIOTT FOLSOM