John Henry - Request for Stay

5/24/2018 John Henry - Request for Stay

1/27

IN THE SUPREME COURT OF THE UNITED STATES

JOHN RUTHELL HENRY,

Petitioner,

Case No.: ________________

v.

CAPITAL CASE

STATE OF FLORIDA, DEATH WARRANT

Respondent.

______________________________/

PETITION FOR WRIT OF CERTIORARI AND

REQUEST FOR STAY OF EXECUTION

COMES NOW the Petitioner, John Ruthell Henry, a state prisoner under

sentence of death, through undersigned counsel, and petitions this Honorable Court

for a Writ of Certiorari under 28 U.S.C. 1257(a) and a Stay of Execution under

28 U.S.C. 2101(f). Petitioner is scheduled to executed on June 18, 2014 at 6:00

P.M., and requests expedited consideration of this petition. In support thereof, the

Petitioner says:


2/27

2

CAPITAL CASE

Questions Presented for Review

I. Whether the Florida Supreme Courts reliance on the findings of a panel of

doctors selected by the Governor in a non-judicial proceeding to determine

Petitioners claim of intellectual disability violates the Eighth Amendment to the

United States Constitution as interpreted in Ford v. Wainwright

II. Whether this Courts decision inHall v. Florida, which invalidated Floridas

scheme for determining claims of intellectual disability based on a strict IQ cutoff

of 70, applies retroactively to mentally disabled prisoners on death row whose

convictions are final


3/27

3

List of Parties to the Proceedings Below

Candance M. Sabella, Esq., and Carol Dittmar, Esq., Office of the AttorneyGeneral of Florida, Concourse Center Four

3507 East Frontage Road, Suite 200, Tampa, Florida 33607-7013

Mr. John Ruthell Henry, Petitioner, DC No. 053105, Union CI

7819 N.W. 228th

Street, Raiford, FL 32026

Office of the State Attorney, Sixth Judicial Circuit of Florida, 7530 Little Road,

New Port Richey, Florida 34654

Ms. Rana Wallace, Deputy General Counsel, Florida Department of Corrections,501 South Calhoun Street, Tallahassee, Florida 32399-2500

Mr. Thomas Winokur, Executive Office of the Governor

The Capitol, Plaza Level One, 400 S. Monroe St., Tallahassee, FL 32399-0001

Hon. Pat Siracusa, Circuit Judge

Baya Harrison, III, Esq., P.O. Box 102, Tallahassee, FL 32345, Attorney for

Petitioner


4/27

4

Table of Contents

Section Pages

Table of Cited Authorities 5

Citations of Opinions in the Case 5

Basis for Jurisdiction in the Court 6

Constitutional and Statutory Provisions Involved in the Case 7

Statement of the Case 14

Reasons for Granting the Writ of Certiorari 17

Question I 17

Question II 22

Request for Stay of Execution 24

Conclusion 25

Certificate of Service 26

Appendix

Opinion of Supreme Court of Florida rendered June 12, 2014


5/27

5

Table of Cited Authorities

Case Pages

Atkins v. Virginia,536 U.S. 304, 122 S. Ct. 2242 (2002) 17, 22-23

Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986) 17, 19-21

Hall v. Florida, 134 S. Ct. 1986 (2014) 15, 18, 20-21, 23

Henry v. State, 574 So. 2d 73 (Fla. 1991) 14



Henry v. Secy, Dept of Corr., 490 F. 3d 835 (11th

Cir. 2007) 14

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

Case No. SC14-1053) 16

Constitutional Provisions, Statutes, Rules of Court Pages

U.S.C.A. Amend. VIII 7

28 U.S.C. 1257 (2013) 6

28 U.S.C. 2101(f) (2013) 24

921.137, Fla. Stat. (2013) 7, 15, 18, 21

922.07, Fla. Stat. (2013) 9, 14, 18-20

Fla. R. Crim. P. 3.203 10, 15, 17

Citations of Opinions in the Case

Henry v. State, 2014 WL 2609114

(Fla. June 12, 2014, Case No. SC14-1053) 16


6/27

6

Basis for Jurisdiction in the Court

This petition seeks review of a judgment of the Supreme Court of Florida

rendered on June 12, 2014. Under 28 U.S.C. 1257(a), this Court may review by

writ of certiorari the final judgments or decrees rendered by the highest court of a

State where the validity of a statute of any State is drawn into question on the

ground of its being repugnant to the Constitution, treaties, or laws of the United

States, or where any title, right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or statutes of, of any commission

held or authority exercised under, the United States.


7/27

7

Constitutional and Statutory Provisions Involved in the Case

U.S.C.A. Amend. VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

921.137, Fla. Stat. (2013):

(1) As used in this section, the term intellectually

disabled or intellectual disability means significantly

subaverage general intellectual functioning existing

concurrently with deficits in adaptive behavior and

manifested during the period from conception to age 18.The term significantly subaverage general intellectual

functioning, for the purpose of this section, means

performance that is two or more standard deviations from

the mean score on a standardized intelligence test

specified in the rules of the Agency for Persons with

Disabilities. The term adaptive behavior, for the

purpose of this definition, means the effectiveness or

degree with which an individual meets the standards of

personal independence and social responsibility expectedof his or her age, cultural group, and community. The

Agency for Persons with Disabilities shall adopt rules to

specify the standardized intelligence test as provided in

this subsection.

(2) A sentence of death may not be imposed upon a

defendant convicted of the capital felony if it is

determined in accordance with this section that the

defendant is intellectually disabled.

(3) A defendant charged with a capital felony who

intends to raise intellectual disability as a bar to the death

sentence must give notice of such intention in accordance

with the Rules of Court governing notices of intent to

offer expert testimony regarding mental health mitigation

during the penalty phase of the capital trial.


8/27

8

(4) After a defendant who has given notice of his or her

intention to raise intellectual disability as a bar to the

death sentence is convicted of a capital felony and an

advisory jury has returned a recommended sentence ofdeath, the defendant may file a motion to determine

whether the defendant is intellectually disabled. Upon

receipt of the motion, the court shall appoint two experts

in the field of intellectual disabilities who shall evaluate

the defendant and report their findings to the court and all

interested parties prior to the final sentencing hearing.

Notwithstanding s. 921.141 or s. 921.142, the final

sentencing hearing shall be held without a jury. At the

final sentencing hearing, the court shall consider the

findings of the court-appointed experts and consider thefindings of any other expert which is offered by the state

or the defense on the issue of whether the defendant has

an intellectual disability. If the court finds, by clear and

convincing evidence, that the defendant has an

intellectual disability as defined in subsection (1), the

court may not impose a sentence of death and shall enter

a written order that sets forth with specificity the findings

in support of the determination.

(5) If a defendant waives his or her right to a

recommended sentence by an advisory jury following a

plea of guilt or nolo contendere to a capital felony and

adjudication of guilt by the court, or following a jury

finding of guilt of the capital felony, upon acceptance of

the waiver by the court, a defendant who has given notice

as required in subsection (3) may file a motion for a

determination of intellectual disability. Upon granting the

motion, the court shall proceed as provided in subsection

(4).

(6) If, following a recommendation by an advisory jury

that the defendant be sentenced to life imprisonment, the

state intends to request the court to order that the

defendant be sentenced to death, the state must inform

the defendant of such request if the defendant has


9/27

9

notified the court of his or her intent to raise intellectual

disability as a bar to the death sentence. After receipt of

the notice from the state, the defendant may file a motion

requesting a determination by the court of whether the

defendant is intellectually disabled. Upon granting themotion, the court shall proceed as provided in subsection

(4).

(7) Pursuant to s. 924.07, the state may appeal a

determination of intellectual disability made under

subsection (4).

(8) This section does not apply to a defendant who was

sentenced to death before June 12, 2001.

(9) For purposes of the application of the criminal laws

and procedural rules of this state to any matters relating

to the imposition and execution of the death penalty, the

terms intellectual disability or intellectually disabled

are interchangeable with and have the same meaning as

the terms mental retardation or retardation and

mentally retarded as those terms were defined before

July 1, 2013.

922.07, Fla. Stat. (2013):

(1) When the Governor is informed that a person under

sentence of death may be insane, the Governor shall stay

execution of the sentence and appoint a commission of

three psychiatrists to examine the convicted person. The

Governor shall notify the psychiatrists in writing that

they are to examine the convicted person to determine

whether he or she understands the nature and effect of the

death penalty and why it is to be imposed upon him orher. The examination of the convicted person shall take

place with all three psychiatrists present at the same time.

Counsel for the convicted person and the state attorney

may be present at the examination. If the convicted

person does not have counsel, the court that imposed the

sentence shall appoint counsel to represent him or her.


10/27

10

(2) After receiving the report of the commission, if the

Governor decides that the convicted person has the

mental capacity to understand the nature of the death

penalty and the reasons why it was imposed upon him orher, the Governor shall immediately lift the stay and

notify the Attorney General of such action. Within 10

days after such notification, the Governor must set the

new date for execution of the death sentence. When the

new date for execution of the death sentence is set by the

Governor under this subsection, the Attorney General

shall notify the inmates counsel of record of the date and

time of execution.

(3) If the Governor decides that the convicted persondoes not have the mental capacity to understand the

nature of the death penalty and why it was imposed on

him or her, the Governor shall have the convicted person

committed to a Department of Corrections mental health

treatment facility.

(4) When a person under sentence of death has been

committed to a Department of Corrections mental health

treatment facility, he or she shall be kept there until thefacility administrator determines that he or she has been

restored to sanity. The facility administrator shall notify

the Governor of his or her determination, and the

Governor shall appoint another commission to proceed as

provided in subsection (1).

(5) The Governor shall allow reasonable fees to

psychiatrists appointed under the provisions of this

section which shall be paid by the state.

Fla. R. Crim. P. 3.203:

(a) Scope. This rule applies in all first-degree murder

cases in which the state attorney has not waived the death

penalty on the record and the defendants intellectual

disability becomes an issue.


11/27

11

(b) Definition of Intellectual Disability. As used in this

rule, the term intellectual disability means significantly

subaverage general intellectual functioning existing

concurrently with deficits in adaptive behavior andmanifested during the period from conception to age 18.

The term significantly subaverage general intellectual

functioning, for the purpose of this rule, means

performance that is two or more standard deviations from

the mean score on a standardized intelligence test

authorized by the Department of Children and Family

Services in rule 65G-4.011 of the Florida Administrative

Code. The term adaptive behavior, for the purpose of

this rule, means the effectiveness or degree with which

an individual meets the standards of personalindependence and social responsibility expected of his or

her age, cultural group, and community.

(c) Motion for Determination of Intellectual Disability as

a Bar to Execution: Contents; Procedures.

(1) A defendant who intends to raise intellectual

disability as a bar to execution shall file a written motion

to establish intellectual disability as a bar to executionwith the court.

(2) The motion shall state that the defendant is

intellectually disabled and, if the defendant has been

tested, evaluated, or examined by one or more experts,

the names and addresses of the experts. Copies of reports

containing the opinions of any experts named in the

motion shall be attached to the motion. The court shall

appoint an expert chosen by the state attorney if the state

attorney so requests. The expert shall promptly test,evaluate, or examine the defendant and shall submit a

written report of any findings to the parties and the court.

(3) If the defendant has not been tested, evaluated, or

examined by one or more experts, the motion shall state

that fact and the court shall appoint two experts who shall


12/27

12

promptly test, evaluate, or examine the defendant and

shall submit a written report of any findings to the parties

and the court.

(4) Attorneys for the state and defendant may be presentat the examinations conducted by court-appointed

experts.

(5) If the defendant refuses to be examined or fully

cooperate with the court appointed experts or the states

expert, the court may, in the courts discretion:

(A) order the defense to allow the court-appointed

experts to review all mental health reports, tests, and

evaluations by the defendants expert;

(B) prohibit the defense experts from testifying

concerning any tests, evaluations, or examinations of the

defendant regarding the defendants intellectual

disability; or

(C) order such relief as the court determines to be

appropriate.

(d) Time for filing Motion for Determination of

Intellectual Disability as a Bar to Execution. The motion

for a determination of intellectual disability as a bar to

execution shall be filed not later than 90 days prior to

trial, or at such time as is ordered by the court.

(e) Hearing on Motion to Determine Intellectual

Disability. The circuit court shall conduct an evidentiary

hearing on the motion for a determination of intellectual

disability. At the hearing, the court shall consider thefindings of the experts and all other evidence on the issue

of whether the defendant is intellectually disabled. The

court shall enter a written order prohibiting the

imposition of the death penalty and setting forth the

courts specific findings in support of the courts

determination if the court finds that the defendant is


13/27

13

intellectually disabled as defined in subdivision (b) of

this rule. The court shall set the proceedings for 30 days

from the date of rendition of the order prohibiting the

death penalty or, if a motion for rehearing is filed, for 30

days following the rendition of the order denyingrehearing, to allow the state the opportunity to appeal the

order. If the court determines that the defendant has not

established intellectual disability, the court shall enter a

written order setting forth the courts specific findings in

support of the courts determination.

(f) Waiver. A claim authorized under this rule is waived

if not filed in accord with the time requirements for filing

set out in this rule, unless good cause is shown for the

failure to comply with time requirements.

(g) Finding of Intellectual Disability; Order to Precedent.

If, after the evidence presented, the court is of the

opinion that the defendant is intellectually disabled, the

court shall order the case proceeded without the death

penalty as an issue.

(h) Appeal. An appeal may be taken by the state if the

court enters an order finding that the defendant isintellectually disabled, which will stay further

proceedings in the trial court until a decision on appeal is

rendered. Appeals are to proceed according to Florida

Rule of Appellant Procedure 9.140(c).

(i) Motion to Establish Intellectual Disability as a Bar to

Execution; Stay of Execution. The filing of a motion to

establish intellectual disability as a bar to execution shall

not stay further proceedings without a separate order

staying execution.


14/27

14

Statement of the Case

Petitioner was convicted in the Circuit Court of the Sixth Judicial Circuit,

Pasco County, Florida, of first-degree murder for the killing of his wife, and

sentenced to death. The conviction was reversed on appeal by the Supreme Court

of Florida.Henry v. State, 574 So. 2d 73 (Fla. 1991). Petitioner was retried and

again convicted of first-degree murder and sentenced to death. This time, the

conviction and sentence were affirmed on direct appeal by the Supreme Court of

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

Petitioner filed a motion for postconviction relief in the state trial court in

2001, which was denied after an evidentiary hearing and affirmed on appeal by the

Supreme Court of Florida.Henry v. State, 862 So. 2d 679 (Fla. 2003). Petitioner

filed a petition for writ of habeas corpus in the United States District Court for the

Middle District of Florida, which was denied and affirmed on appeal by the

Eleventh Circuit Court of Appeals.Henry v. Secy, Dept of Corr., 490 F. 3d 835

(11th

Cir. 2007).

On May 5, 2014, the Governor of Florida signed a death warrant and

scheduled the execution of Petitioner for June 18, 2014. Petitioner filed a request

with the Governor of Florida for a determination of Petitioners sanity to be

executed, as provided in 922.07, Fla. Stat. (2013). In response to Petitioners

request, the Governor appointed a panel of three doctors to evaluate Petitioner for


15/27

15

the purpose of determining whether he was sane to be executed. Under the

procedure set by statute, the Governors panel of doctors evaluated Petitioner and

submitted a written letter to the Governor with their findings. In the letter, the

panel concluded that Petitioner understood the nature of the death penalty and the

reasons it was being imposed upon him, and was therefore sane to be executed.

The panel also stated that Petitioner was not intellectually disabled.

On May 27, 2014, this Court decidedHall v. Florida, 134 S. Ct. 1986

(2014). The Court held that Fla. Stat. 921.137 is unconstitutional to the extent it

bars a claim of intellectual disability as a matter of law to any prisoner with an IQ

score greater than 70.

On May 30, 2014, Petitioner filed a motion in the state trial court per the

provisions of Fla. R. Crim. P. 3.203, requesting a determination of intellectual

disability under the standard announced inHall. The state trial court dismissed the

motion as untimely. Petitioner appealed to the Supreme Court of Florida.

On June 12, 2014, the Supreme Court of Florida affirmed the dismissal of

Petitioners motion on the merits. The Court held that Petitioner was not entitled to

a hearing because there was insufficient evidence of poor adaptive functioning and

early onset, because no doctor has ever diagnosed Petitioner as intellectually

disabled, and because the three doctors appointed by the Governor to determine


16/27

16

Petitioners sanity found that he was not intellectually disabled.Henry v. State,

2014 WL 2609114 (Fla. June 12, 2014, Case No. SC14-1053).

On June 14, 2014, Petitioner filed an Emergency Motion for Leave to File a

Second or Successive Petition for Writ of Habeas Corpus and Request for Stay of

Execution in the Eleventh Circuit Court of Appeals, asserting that this Courts

decision inHall announced a new rule of law that entitled Petitioner to one

opportunity to present a claim of intellectual disability, a claim that Florida

summarily rejected.

On June 17, 2014, a divided panel of the Eleventh Circuit Court of Appeals

denied the application on retroactivity grounds, stating that this Court has not

expressly held the new rule of law announced inHall to apply retroactively to final

cases on collateral review. By statute, the decision of the Eleventh Circuit Court of

Appeals on an application for leave to file a second or successive habeas petition is

a non-appealable order.

This appeal from the decision of the Supreme Court of Florida follows.


17/27

17

Reasons for Granting the Writ of Certiorari

Question I: Whether the Florida Supreme Courts reliance on the findings of

a panel of doctors selected by the Governor in a non-judicial proceeding to

determine Petitioners claim of intellectual disability violates the EighthAmendment to the United States Constitution as interpreted inFord v.

Wainwright.

Rule 10(c) of the Rules of the Supreme Court provides for certiorari review

if a state court has decided an important question of federal law in a way that

conflicts with relevant decisions of this Court. The decision of the Supreme Court

of Florida in this case conflicts with this Courts prior decision in Ford v.

Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986). The state court determined

Petitioners Eighth Amendment claim of intellectual disability as a bar to execution

based on the findings a Governors panel of doctors without affording Petitioner a

hearing or opportunity to present evidence or challenge the doctors findings, a

procedure that this Court condemned in Fordas arbitrary and insufficient to

protect a condemned prisoners Eighth Amendment rights.

InAtkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002), this Court held

that the execution of a mentally retarded person violates the Eighth Amendment

ban on cruel and unusual punishment. That decision left to the states the task of

developing procedures for determining whether a defendant was retarded.Idat

317. In response to that decision, Florida promulgated Fla. R. Crim. P. 3.203,

which provides for an expert medical evaluation and evidentiary hearing to


18/27

18

determine the question of mental retardation. The definition of mental retardation

(now intellectual disability) is set by statute in 921.137, Fla. Stat. (2013).

Last month, this Court held inHall v. Florida, 134 S. Ct. 1986, that Fla.

Stat. 921.137 is unconstitutional to the extent it bars as a matter of law any claim

of intellectual disability by a condemned prisoner with an IQ score higher than 70.

This Court reasoned that a strict IQ score cutoff departs from established medical

practice because it fails to consider other evidence of disability, including evidence

of poor adaptive functioning, and fails to consider the inherent margin of error in

IQ tests.Id at 1995-6, 2001.

Following theHall decision, Petitioner filed a motion requesting a

determination of intellectual disability in state court. Petitioner alleged that he has

not previously been evaluated for intellectual disability because his IQ score of 78

barred him from consideration under Florida law as it existed prior toHall.The

state trial court dismissed the motion without a hearing and the Supreme Court of

Florida affirmed.Henry v. State, 2014 WL 2609114 (Fla. June 12, 2014, Case No.

SC14-1053).

The state supreme courts opinion cited the findings and conclusions of the

Governors panel of doctors, which was appointed by the Governor under

922.07, Fla. Stat., for the purpose of determining Petitioners sanity.Id. The

doctors letter, purportedly setting out the facts of their clinical evaluation of


19/27

19

Petitioner, found both that Petitioner was sane and that he was not intellectually

disabled. The court relied on these findings, combined with the fact that none of

the doctors who previously examined Petitioner in the court proceedings for sanity

and competency to stand trial diagnosed him as intellectually disabled.Id.

In 1986, this Court held in Ford v. Wainwright that Florida could not rely on

a Governors panel of doctors to decide a condemned prisoners sanity to be

executed without affording a judicial proceeding to subject the States evidence to

adversarial testing to ensure reliability of the result. Ford, 477 U.S. at 412. To

execute a person without proper procedures to determine their mental faculties

violates the Cruel and Unusual Punishment Clause of the Eighth Amendment, and

this Court held that Floridas procedures were insufficient to afford a full and fair

hearing on the critical issue.Idat 417.

An examination under 922.07 is conducted exclusively within the

executive branch ex parteand includes no judicial review.Id at 412. This Court

found it self-evident that such a cursory form of procedural review fails to achieve

even the minimal degree of reliability required for the protection of any

constitutional interest.Idat 413. This Court reasoned that the Governors panel

review provided by 922.07 fails to include the prisoner in the truth-seeking

process and denies any meaningful opportunity to be heard and present relevant

evidence or conflicting testimony to counter that of the Governors hand-picked


20/27

20

selectees.Id. In addition, this summary procedure denies the prisoner any

opportunity to challenge or impeach the state-appointed psychiatrists opinions.Id

at 415. As the Court noted, cross-examination is the greatest legal engine ever

invented for the discovery of truth.Id. The Court also doubted the reliability of the

results to the extent they were based on a single group interview, particularly when

there was no opportunity for challenge.Id at 415 n.3.

On June 12, 2014, the Florida Supreme Court relied on the exact same

statutory procedure in F.S. 922.07, consisting of a panel of three doctors hand-

picked by the Governor to determine Mr. Henrys sanity, to refute Mr. Henrys

claim of intellectual disability under the new standard for such claims announced

last month inHall v. Florida. The Florida Supreme Court accepted without

question the factual findings and ultimate conclusion of the Governors panel that

Mr. Henry is not intellectually disabled, without affording any judicial process or

adversarial testing.

The state court also relied on the fact that previous doctors who evaluated

Petitioner for sanity and competency to be tried did not diagnose him as mentally

retarded. The court did not address the fact that those evaluations would have been

performed under the unconstitutional IQ score cutoff that was then the law in

Florida, so that any diagnosis of mental retardation would have been foreclosed as

a matter of law based on Petitioners 78 IQ. The Florida Supreme Court then


21/27

21

satisfied itself that this was not a problem because the Governors panel decided

the question.

The Florida Supreme Courts ruling in this case represented the State of

Floridas first opportunity to decide, afterHall, what new procedures would be

implemented to correct the unconstitutional deficiencies in 921.137 as it was

previously applied and establish new rules for deciding claims of intellectual

disability. Floridas response was to fall back on a summary method that this Court

rejected as unconstitutional almost thirty years ago.

The decision of the Florida Supreme Court in this case is contrary to Eighth

Amendment principles as stated in Ford v. Wainwright. Petitioner therefore

requests that this Court grant certiorari review.


22/27

22

Question II. Whether this Courts decision inHall v. Florida, which

invalidated Floridas scheme for determining claims of intellectual disability

based on a strict IQ cutoff of 70, applies retroactively to mentally disabled

prisoners on death row whose convictions are final

A panel majority of the Eleventh Circuit Court of Appeals ruled on June 17,

2014 that Petitioner could not bring a second or successive habeas corpus petition

and raise a claim of intellectual disability underHall v. Florida, supra, because this

Courts opinion in that case did not expressly hold that the new rule announced in

that case applied retroactively to final cases on collateral review. That ruling is not

appealable.

However, the Supreme Court of Florida did applyHall to Petitioners

request for a determination of intellectual disability, or at least acknowledged that

Hall represents the current substantive law on the issue. The applicability ofHall is

therefore central to whether the State of Florida violated Petitioners Eighth

Amendment rights in dismissing his disability claim. The issue of retroactivity of

this Courts decision inHallpresents an important question of federal law that

should be settled by this Court.

This Court noted inAtkins v. Virginia that the execution of a mentally

retarded person serves no legitimate retributive or deterrent function, and therefore

violates the Eighth Amendment prohibition on the infliction of cruel and unusual

punishment.Atkins, 536 U.S. at 319-20. The Court also noted that the reduced


23/27

23

capacity of mentally retarded offenders increases the risk of wrongful execution

due to the offenders inability to assist their attorneys or make good witnesses, and

the likelihood of giving false confessions.Idat 320-21. Therefore, evolving

standards of decency forbid taking the life of a mentally retarded offender.Idat

321.

The relevant inquiry in a claim of mental retardation or intellectual disability

is the present mental state of the prisoner when compared to the current state of

medical practice. This Court quoted extensively from the DSM-5 diagnostic

manual for mental illnesses in its opinion inHall. See Hall, 134 S. Ct. at 1990-91,

2001. Those standards represent the current opinion of the medical community on

the definition of intellectual disability that should be applied. This Court has also

acknowledged that its Eighth Amendment jurisprudence is based on evolving

standards of decency that are guided in part by that medical community.

For this Courts decision inHall to have its intended effect of preventing the

execution of mentally disabled individuals, that ruling should be applied

retroactively to all persons presently under sentence of death who were previously

deemed eligible for execution under the Florida statutory scheme that was deemed

unconstitutional inHall. Petitioner therefore requests that the Court grant certiorari

review also on the question of whetherHall should be applied retroactively.


24/27

24

Request for Stay of Execution

Pursuant to the Governors Death Warrant signed May 5, 2014, Petitioner is

scheduled to be executed onJune 18, 2014 at 6:00 P.M.

Should the Court

determine that certiorari jurisdiction should be exercised in this cause, Petitioner

therefore moves under 28 U.S.C. 2101(f) and Rule 23 of the Rules of the

Supreme Court for a stay of execution.

Petitioner asserted his Eighth Amendment right to be immune from

execution due to intellectual disability in a timely manner, filing his motion in state

court only three days after this Courts decision inHall v. Florida. That motion

remained pending on appeal until June 12, 2014, when the lower courts

disposition was affirmed by the Supreme Court of Florida. The relief sought could

not have been sought sooner or in any other court.

Pursuant to Rule 22 of the Rules of the Supreme Court, Petitioner requests

that Mr. Justice Clarence Thomas, the designated justice for the Eleventh Circuit,

or any appropriate justice, grant a stay of execution in this case.


25/27

25

Conclusion

WHEREFORE the Petitioner respectfully requests that the Court exercise its

discretionary certiorari jurisdiction to hear this case and grant a stay of execution.

/s/ Baya Harrison, Esq.Baya Harrison, III, Esq.

Florida Bar No. 99568

P.O. Box 102

Tallahassee, FL 32345

Tel: (850) 997-8469

Fax: (850) 997-8460

email: [email protected]


26/27

26

Certificate of Service

I HEREBY CERTIFY that a true copy of the foregoing has been furnished

to counsel referenced and to Mr. Henry, at the addresses indicated, by U.S. mail

delivery or email delivery, this 18thday of June, 2014.

Candance M. Sabella, Esq., and Carol Dittmar, Esq., Office of the Attorney

General of Florida, Concourse Center Four

3507 East Frontage Road, Suite 200, Tampa, Florida 33607-7013

Mr. John Ruthell Henry, Defendant, DC No. 053105, Union CI

7819 N.W. 228thStreet, Raiford, FL 32026

Office of the State Attorney, Sixth Judicial Circuit of Florida, 7530 Little Road,

New Port Richey, Florida 34654

Ms. Rana Wallace, Deputy General Counsel, Florida Department of Corrections,

501 South Calhoun Street, Tallahassee, Florida 32399-2500

Mr. Thomas Winokur, Executive Office of the Governor

The Capitol, Plaza Level One, 400 S. Monroe St., Tallahassee, FL 32399-0001

/s/ Baya Harrison, III


27/27

27

APPENDIX

Documents

John Henry - Request for Stay