Howell v. State

• Decision Date: 20 February 2014
• Docket Number: No. SC14–167.,SC14–167.
• Citation: 133 So.3d 511
• Parties: Paul Augustus HOWELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

133 So.3d 511

Paul Augustus HOWELL, Appellant,

v.STATE of Florida, Appellee.

No. SC14–167.

Supreme Court of Florida.

Feb. 20, 2014.

Sonya Rudenstine, Gainesville, FL; Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, FL; Kathleen Harris of Arnold & Porter LLP, London, EC2N 1HQ, United Kingdom; Gwendolyn Ostrosky, Arnold & Porter, LLP, Los Angeles, CA; and Mara Senn, Peggy Otum, and Michael Tye of Arnold & Porter LLP, Washington, DC, for Appellant.

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appellee.

Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen, P.A., Sarasota, FL, for Amicus Curiae The First Amendment Foundation.

PER CURIAM.

Paul Augustus Howell is a prisoner under sentence of death for whom a death warrant has been signed and execution set for February 26, 2014. Howell was convicted of first-degree murder and sentenced to death when the bomb he constructed, for the specific purpose of killing a witness, instead detonated and killed a Florida Highway Patrol Trooper. Howell v. State, 707 So.2d 674, 683 (Fla.1998) (affirming Howell's convictions and death sentence on direct appeal).

Howell now appeals the denial of his amended third successive motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.851, in which he challenges the Florida lethal injection protocol as applied to him. Specifically, Howell raises the following seven claims on appeal to this Court: (1) when the State changes to a new and untested method of execution, the State should be required to present some evidence to demonstrate that the new method does not violate the Eighth Amendment; (2) the inclusion of midazolam hydrochloride (midazolam) as the first drug in the 2013 lethal injection protocol violates the Eighth Amendment; (3) the use of a three-drug protocol, instead of a one-drug protocol, violates the Eighth Amendment; (4) forced administration of vecuronium bromide, the second drug in the protocol, violates the Eighth and Fourteenth Amendments; (5) the constant change in Florida's lethal injection protocol violates the Eighth Amendment; (6) the postconviction court erred in denying Howell's motions for postconviction discovery; and (7) the postconviction court erred by denying Howell's request to strike the testimony of State witness Dr. Mark Dershwitz.

For the reasons set forth below, and after a careful review of the record, the briefs, and the claims raised, we affirm the postconviction court's denial of relief.

FACTS AND PROCEDURAL HISTORY

The Governor previously signed a death warrant for Howell, and his execution was set for a year ago on February 26, 2013. Howell v. State, 109 So.3d 763, 765 (Fla.2013). The complete facts and procedural history of Howell's case are set forth in this Court's opinion from the 2013 death warrant litigation, in which this Court denied relief on all of the claims raised in Howell's amended successive motion for postconviction relief and denied Howell's motion for a stay of execution. Id.

Subsequent to our opinion, the Eleventh Circuit Court of Appeals issued a stay of Howell's execution to address whether the failure of one of Howell's attorneys to file a timely federal habeas corpus petition required relief from the judgment that dismissed the untimely petition. Howell v. Sec'y, Dep't of Corr., 730 F.3d 1257, 1260 (11th Cir.2013), pet. for cert. filed, ––– U.S.L.W. –––– (Jan. 29, 2014) (No. 13–8530). After holding that Howell was not entitled to have his federal habeas proceeding reinstated under the rationale of Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the Eleventh Circuit lifted the stay of execution, and Howell's execution date was reset for February 26, 2014. Howell filed a petition for writ of certiorari with the United States Supreme Court, seeking review of the Eleventh Circuit's decision, and that petition is still pending. The claims before the Court in this case do not relate to Howell's federal litigation, but concern only challenges to the current lethal injection protocol that Howell filed in a successive motion for postconviction relief in state circuit court.

Specifically, Howell's amended third successive postconviction motion raised four lethal injection claims to the court below: (1) the inclusion of midazolam as the first drug in the 2013 protocol violates the Eighth Amendment's prohibition on cruel and unusual punishment; (2) the forced administration of vecuronium bromide as the second drug in the protocol violates Howell's Eighth and Fourteenth Amendment rights; (3) Florida's constant change in the lethal injection protocol amounts to human experimentation in violation of the Eighth Amendment; and (4) the use of a three-drug protocol rather than a one-drug protocol violates Howell's Eighth Amendment rights. In addition to these claims, Howell filed numerous public records requests. The postconviction court summarily denied relief, concluding that an evidentiary hearing was not necessary because Howell's claims had either been previously rejected by this Court or were speculative in nature. ¹ However, because Howell raised factual as-applied challenges and relied on new evidence not yet considered by this Court, which raised a concern that Howell could regain consciousness during the administration of the second and third drugs in the protocol and thus be subjected to extreme pain, this Court relinquished jurisdiction for an evidentiary hearing as to the claim pertaining to the use of midazolam as the first drug in the protocol. Howell v. State, No. SC14–167, Order at 2 (Fla. Sup.Ct. Order entered Feb. 6, 2014).

Following the evidentiary hearing, at which both Howell and the State presented expert witness testimony concerning the current lethal injection protocol, the postconviction court denied relief. For the reasons that follow, we affirm the denial of relief as to Howell's claim regarding the use of midazolam and also affirm the postconviction court's denial of the remaining claims, holding that each of these claims is without merit.

ANALYSIS

On appeal to this Court, Howell raises the following claims: (1) when the State changes to a new and untested method of execution, the State should be required to present some evidence to demonstrate that the new method does not violate the Eighth Amendment; (2) the inclusion of midazolam in the 2013 protocol violates the Eighth Amendment; (3) the use of a three-drug protocol, instead of a one-drug protocol, violates the Eighth Amendment; (4) forced administration of vecuronium bromide violates the Eighth and Fourteenth Amendments; (5) the constant change in Florida's lethal injection protocol violates the Eighth Amendment; (6) the postconviction court erred in denying Howell's motions for postconviction discovery; and (7) the postconviction court erred by denying Howell's request to strike the testimony of State witness Dr. Mark Dershwitz.

In reviewing these claims, we first summarily deny three of the claims raised based either on the reasoning provided in the postconviction court's order or based on our clearly established precedent. Specifically, we reject Howell's claim concerning the adoption of a one-drug protocol, as opposed to the current three-drug protocol, for the same reasons we rejected this claim in Muhammad v. State, 132 So.3d 176, 196–198 (Fla.2013), cert. denied,––– U.S. ––––, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014). We also summarily reject the claim that an Eighth Amendment violation can be established based solely on the fact that Florida's lethal injection protocol has been changed three times in three years. In fact, Howell does not even allege how this claim fits within the framework set forth by the United States Supreme Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), for establishing an Eighth Amendment violation. Finally, we reject Howell's claim that the postconviction court erred in denying Howell's motions for postconviction discovery, concluding that the postconviction court did not abuse its discretion when denying the requests. We also reject Howell's related constitutional challenges to Florida Rule of Criminal Procedure 3.852. See Wyatt v. State, 71 So.3d 86, 110–11 (Fla.2011).

We now proceed to address the remaining claims. Our analysis begins with a review of the proper standard that applies to Howell's allegation that Florida's current lethal injection protocol violates the Eighth Amendment.

Proper Standard

In the first remaining claim that we address, Howell contends that this Court should not rely on the United States Supreme Court's plurality decision in Baze, 553 U.S. 35, 128 S.Ct. 1520, as setting forth the standard for establishing an Eighth Amendment violation because Baze addressed different policy concerns from the situation currently presented. According to Howell, when the State switches to a different drug not previously used in a lethal injection protocol, this Court should reduce the burden that an inmate must demonstrate in order to prevail on an Eighth Amendment claim and instead impose an initial burden on the State to establish that it has not violated the Eighth Amendment.

Before turning to the merits of this claim, we first review our precedent on the matter. As this Court has repeatedly recognized, article I, section 17, of the Florida Constitution requires this Court to evaluate “whether lethal injection is unconstitutional ‘in conformity with decisions of the United States Supreme Court.’ ” Pardo v. State, 108 So.3d 558, 562 (Fla.) (quoting art. I, § 17, Fla. Const.), cert. denied,––– U.S. ––––, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012). In Sims v. State, 754 So.2d 657 (Fla.2000), prior to any directly applicable precedent from the United States Supreme Court as to the standard for an Eighth Amendment claim based on a challenge to a state's lethal injection protocol, ...