Muhammad v. Crews, Case No. 3:13-cv-1587-J-32JBT

• Decision Date: 27 December 2013
• Docket Number: Case No. 3:13-cv-1587-J-32JBT
• Parties: ASKARI ABDULLAH MUHAMMAD, F/K/A THOMAS KNIGHT, Plaintiff, v. MICHAEL D. CREWS, etc.; et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

ASKARI ABDULLAH MUHAMMAD, F/K/A THOMAS KNIGHT, Plaintiff, v. MICHAEL D. CREWS, etc.; et al., Defendants.

Case No. 3:13-cv-1587-J-32JBT

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Dated: December 27, 2013

ORDER

Plaintiff Askari Abdullah Muhammad, formerly known as Thomas Knight, is a Florida death row prisoner who is scheduled to be executed on Tuesday, January 7, 2014. On Monday, December 23, 2013, through counsel, he filed a Verified Complaint for Declaratory & Injunctive Relief (Doc. #1) (hereinafter Complaint) under 42 U.S.C. § 1983, alleging that his execution under Florida's recently revised lethal injection protocol¹ will violate his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Mr. Muhammad additionally alleges that the execution team members consistently and willfully fail to follow the written lethal injection protocol, thereby violating "Mr. Muhammad's right to equal protection because [the] DOC has arbitrarily reduced the safeguards contained in the protocol." Complaint at 31.

This cause is before the Court on Plaintiff's Motion for a Temporary Restraining Order, Preliminary Injunction, and/or Stay of Execution and Memorandum in Support Thereof (Doc. #4) (hereinafter Motion to Stay), filed on December 23, 2013.² On Friday, December 27, 2013, Defendants, prison officials of the Florida Department of Corrections (hereinafter DOC), responded in opposition to the Motion to Stay. See Defendants' Response to Motion for Stay (Doc. #6), filed December 27, 2013. Because the Court finds Plaintiff has failed to demonstrate a substantial likelihood of success on the merits, his Motion to Stay will be denied.

I. Procedural History

On October 24, 1980, Plaintiff was indicted for the first degree murder of Correctional Officer Richard James Burke.³ After a trial by jury, at which Plaintiff represented himself, he was found guilty as charged. Plaintiff waived his right to a jury for the penalty phase. After considering the penalty phase evidence, the trial court imposed a death sentence, finding three aggravating factors and no mitigating circumstances. On direct appeal, the Florida Supreme Court affirmed the convictions and the sentence of death. Muhammad v. State, 494 So. 2d 969 (Fla. 1986) (per curiam), cert. denied, Muhammad v. Florida, 479 U.S. 1101 (1987).

On February 23, 1989, Plaintiff filed a motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.850 (hereinafter 3.850 motion), which he thereafter supplemented. On August 30, 1989, the trial court denied the motion, as supplemented, finding that all of the claims were procedurally barred because they should have been or were raised on direct appeal. Plaintiff appealed, and on June 11, 1992, the Florida Supreme Court affirmed the trial court's order with the exception of Plaintiff's Brady⁴ claim. The Florida Supreme Court remanded the case to the trial court for an evidentiary hearing on the alleged Brady violation. Muhammad v. State, 603 So. 2d 488 (Fla. 1992).

After conducting an evidentiary hearing, the trial court entered an order denying relief with respect to the guilt phase, but granting relief with respect to the sentencing phase. Both parties appealed to the Florida Supreme Court, and Plaintiff also filed a petition for writ of habeas corpus with the Florida Supreme Court. On August 21, 2003, the Florida Supreme Court affirmed the portion of the trial court's order denying post-conviction relief with respect to the guilt phase, reversed the portion of the order granting post-conviction relief with respect to the sentencing phase, and denied the petition for writ of habeas corpus. State v. Knight, 866 So. 2d 1195 (Fla. 2003) (per curiam), cert. denied, 541 U.S. 1066 (2004).

Plaintiff sought habeas relief in this Court, which was denied on March 26, 2008. See Muhammad v. McDonough, Case No. 3:05-cv-62-J-32JBT, 2008 WL 818812 (M.D. Fla. March 26, 2008). The Eleventh Circuit Court of Appeals denied a certificate of appealability, Muhammad v. Sec'y, Dep't of Corr., 554 F.3d 949 (11th Cir. 2009), and the United StatesSupreme Court denied Plaintiff's petition for writ of certiorari. Muhammad v. McNeil, 559 U.S. 906 (2010).⁵

Florida Governor Rick Scott signed a death warrant on October 21, 2013, and scheduled Plaintiff's execution for December 3, 2013. On October 29, 2013, Plaintiff filed a motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.851 (hereinafter 3.851 motion) in the state circuit court, in which he raised seven claims, including essentially the same lethal injection challenge now before this Court. The circuit court summarily denied relief on November 4, 2013. Plaintiff appealed, and on November 18, 2013, the Florida Supreme Court entered an order: granting a stay of execution until December 27, 2013; relinquishing jurisdiction to the circuit court for the sole purpose of holding an evidentiary hearing on Muhammad's claim regarding the efficacy of midazolam hydrochloride as the first drug used in Florida's three-drug lethal injection protocol; and directing the circuit court to enter a written order as to Muhammad's claim on the efficacy of midazolam hydrochloride as an anesthetic.

The circuit court conducted an evidentiary hearing on November 21 and 22, 2013, and heard expert testimony from both parties. On November 25, 2013, the circuit court entered an order finding that Muhammad failed to show that using midazolam hydrochloride as an anesthetic in the amount set forth in Florida's lethal injection protocol will result in a substantial risk of serious harm to Muhammad. On December 19, 2013, the FloridaSupreme Court, in Case No. SC13-2105, affirmed the circuit court's order denying post-conviction relief on the claims raised in Muhammad's 3.851 motion,⁶ reversed the circuit court's order denying Muhammad's public records request to the Florida Department of Corrections for copies of his own inmate and medical records, and ordered the immediate transmission of copies of those records to Muhammad's counsel.⁷

In the SC13-2105 Order affirming the denial of Muhammad's 3.851 motion, the Florida Supreme Court provided the following summary of the testimony at the evidentiary hearing held by the circuit court.

At the evidentiary hearing held November 21-22, 2013, Muhammad presented the testimony of Dr. Heath, a board certified anesthesiologist at the New York Presbyterian Hospital at Columbia University. In preparation for his testimony, he reviewed the revised DOC lethal injection protocol, correspondence from Hospira, news articles by reporters Farrington and Watkins, and the testimony of FDLE Inspector Feltgen concerning his observations of the Happ execution. Dr. Heath testified that midazolam hydrochloride is an FDA-approved drug in the class of drugs called "benzodiazepine." He testified that it is used in the operating room as both a pre-anesthetic and an anesthetic to cause sedation and reduce anxiety, and "in very high doses will completely ablate consciousness." In his practice, he uses the drug to make the patient less anxious. A small amount is administered for thispurpose, such as one milligram. To produce a deeper level of anesthesia, Dr. Heath testified that he would give a dose of 10 or 15 milligrams, which "in [his] experience, will reliably produce a much deeper level of unconsciousness."

Dr. Heath testified that midazolam hydrochloride is generally slower to act than a barbiturate, but when successfully delivered to the brain will have full efficacy as an anesthetic. As to the duration of unconsciousness, he explained that "[i]f you give any of these drugs in a very large dose, such as the doses that are used in lethal injections, then they will all last for a very long time. They would last for many hours." He opined that the dosage of midazolam hydrochloride called for in the protocol, 500 milligrams, is a much larger dose than that needed to produce unconsciousness and in that amount would, with certainty, produce death. When asked about the significance of Happ's movement that was observed during his execution in October 2013, Dr. Heath agreed that movement is not the same as consciousness and that an unconscious person may still move, although such an individual might in fact be conscious.

The State presented the testimony of Dr. Roswell Lee Evans, Jr., a pharmacist, professor of pharmacy, and Dean at Auburn University. He testified that midazolam hydrochloride is an FDA-approved drug used for induction of general anesthesia, with a dose of 35 to 40 milligrams for minor surgeries. Dr. Evans testified that midazolam hydrochloride is quickly absorbed into the bloodstream when introduced intravenously. If a person were given 250 milligrams, he or she would be rendered unconscious in no more than two minutes; and that the higher the dose, the longer the person will remain unconscious. He testified that the dosage called for in the lethal injection protocol, 500 milligrams given in two separate doses, would cause respiratory arrest and possibly cardiac arrest, and would render the person insensate or comatose. He also agreed that movement by a person who was given midazolam hydrochloride would not indicate consciousness, although he would be surprised if an individual moved more than five minutes or so after its administration; but he explained that reports of Happ's movement, if observed nine minutes after administration of the drug, could have been a response to depressed respiration.

Both Dr. Heath and Dr. [Evans] agreed that the consciousness check called for in the protocol is critically important. Dr. [Evans] noted that a consciousness check using an eyelid tap, such as is done in Florida executions, is also used in surgical settings and is necessary to measure the depth of unconsciousness. Dr. Heath opined that because midazolam hydrochloride takes longer to effect unconsciousness, the

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