Pardo v. State

• Decision Date: 04 December 2012
• Docket Number: No. SC12–2350.,SC12–2350.
• Citation: 108 So.3d 558
• Parties: Manuel PARDO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

108 So.3d 558

Manuel PARDO, Appellant,
v.
STATE of Florida, Appellee.

No. SC12–2350.

Supreme Court of Florida.

Dec. 4, 2012.

[108 So.3d 560]

Neal Andre Dupree, Capital Collateral Regional Counsel, William McKinley Hennis, III, Litigation Director, and Jessica Leigh Houston, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Sandra Sue Jaggard and Tamara Milosevic, Assistant Attorneys General, Miami, FL, for Appellee.

PER CURIAM.

Manuel Pardo, a prisoner under sentence and active warrant of death, appeals the circuit court's order summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Seeart. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the denial of postconviction relief.

BACKGROUND

Pardo was indicted for nine counts of first-degree murder based on five separate killing episodes that took place from January to April 1986. At his trial, Pardo, a former police officer, testified against the advice of counsel and admitted to having committed the nine murders, stating that the victims were drug dealers who had no right to live. The jury found Pardo guilty of all nine murders and recommended the death penalty by votes ranging from eight-to-four to ten-to-two. The trial court followed the jury's recommendations, imposing a death sentence for each of the nine first-degree murder counts. We affirmed Pardo's convictions and death sentence on direct appeal. Pardo v. State, 563 So.2d 77, 81 (Fla.1990), cert. denied, Pardo v. Florida, 500 U.S. 928, 111 S.Ct. 2043, 114 L.Ed.2d 127 (1991). Pardo subsequently filed a motion for postconviction relief, which the circuit court denied after a two-day evidentiary hearing. On appeal, we affirmed the circuit court's denial of postconviction relief, denied Pardo's accompanying petition for writ of habeas corpus, and denied rehearing. Pardo v. State, 941 So.2d 1057, 1073 (Fla.2006). Pardo then sought habeas corpus relief in the federal courts, which was also denied. Pardo v. Sec'y, Fla. Dep't of Corr., 587 F.3d 1093, 1106 (11th Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 3334, 176 L.Ed.2d 1231 (2010), and reh'g denied,––– U.S. ––––, 131 S.Ct. 38, 177 L.Ed.2d 1128 (2010).

On October 30, 2012, Governor Rick Scott signed a death warrant for Pardo, and the execution was set for December 11, 2012. Thereafter, Pardo filed a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. The circuit court denied the motion without holding an evidentiary hearing. Pardo has filed this appeal of the circuit court's summary denial, in which he raises five claims.

ANALYSIS

Pardo's postconviction claims are governed by rule 3.851, which provides the pleading requirements for initial and successive postconviction motions. Fla. R.Crim. P. 3.851(e)(1)-(2). In particular, a motion for postconviction relief must state the nature of the relief the defendant seeks, Fla. R.Crim. P. 3.851(e)(1)(C), and must include “a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought.” Fla. R.Crim. P. 3.851(e)(1)(D).

An evidentiary hearing on a rule 3.851 motion “should be held ‘whenever the movant makes a facially sufficient claim that requires a factual determination.’ ” Parker v. State, 89 So.3d 844, 855 (Fla.2011) (quoting Gore v. State, 24 So.3d 1, 11 (Fla.2009)). However, “[p]ostconviction

[108 So.3d 561]

claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.” Id. (quoting Gore, 24 So.3d at 11). Because the circuit court denied Pardo's successive rule 3.851 motion without holding an evidentiary hearing, we review the circuit court's decision de novo, “accepting the movant's factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief.” Gore v. State, 91 So.3d 769, 774 (Fla.) (quoting Walton v. State, 3 So.3d 1000, 1005 (Fla.2009)), cert. denied,––– U.S. ––––, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012).

In his appeal to this Court, Pardo argues that the circuit court erred in summarily denying the following claims: (1) Florida's September 4, 2012, lethal injection protocol is unconstitutional; (2) he has been denied public records necessary to establish his lethal injection claim; (3) he was incompetent to stand trial; (4) he was denied an adequate clemency proceeding; and (5) executing him after he has spent more than two decades on death row constitutes cruel and unusual punishment. We address each claim in turn.

Lethal Injection Protocol

The first issue Pardo raises on appeal is the circuit court's summary denial of his challenge to the constitutionality of Florida's lethal injection protocol. Pardo's principal arguments center on the following allegations: (1) when Florida's lethal injection protocol substituted pentobarbital for sodium thiopental as the first drug in the three-drug lethal injection sequence, the State failed to modify its protocol to account for the fact that pentobarbital may take longer to act than sodium thiopental; (2) there are serious risks associated with using pentobarbital as an anesthetic; (3) Florida's supply of vecuronium bromide, which is now the second drug in the three-drug sequence, may be tainted; and (4) if pentobarbital improperly mixes with vecuronium bromide during the administration of the lethal injection drugs, the intended anesthetic effects of the pentobarbital could potentially be compromised. The State asserts, first, that the claims involving pentobarbital are procedurally barred because the substitution of pentobarbital in the protocol occurred more than one year ago; and, second, that Pardo's challenge to the recent substitution of vecuronium bromide is legally insufficient. The circuit court denied Pardo's lethal injection claims as time barred and meritless.

In relatively recent succession—first in June 2011 and then in September 2012—the State has twice changed the protocol pertaining to which drugs are used in Florida's three-drug lethal injection sequence. A number of defendants have brought challenges to the substitution of the new drugs, asserting that there is no evidence that these drugs will perform as intended and that experts have not yet determined the appropriate dosage for their use in lethal injection. See, e.g., Valle v. State, 70 So.3d 530 (Fla.), cert. denied,––– U.S. ––––, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011). This Court has denied these claims, holding that a defendant cannot sustain the heavy burden required to show an Eighth Amendment violation through speculation and by pointing to a lack of evidence. Id. at 541, 546. We recognize, however, that the use of these particular drugs in executions is comparatively new, and that the body of relevant science is still being developed. Therefore, in reviewing the challenges presented, we are cognizant of our responsibility to examine the specific allegations that the defendant is raising in order to determine whether the defendant is relying on new

[108 So.3d 562]

evidence that did not exist previously or on new factual developments. See, e.g., Schwab v. State, 969 So.2d 318, 321 (Fla.2007) (“As this Court has held before, when an inmate presents an Eighth Amendment claim which is based primarily upon facts that occurred during a recent execution, the claim is not procedurally barred.”); Fla. R.Crim. P. 3.851(e)(2).

The Eleventh Circuit Court of Appeals has likewise recognized this same concept. In Arthur v. Thomas, 674 F.3d 1257, 1260, 1262 (11th Cir.2012), the Eleventh Circuit held that it was error to summarily dismiss, without permitting an opportunity for evidentiary development, a defendant's complaint that the substitution of pentobarbital in Alabama's lethal injection protocol constituted a “significant change” for purposes of the Eighth Amendment. The Eleventh Circuit explained as follows:

Simply because no court, based on the allegations and evidence that has been presented in cases to date, has found a significant change does not mean that such evidence does not exist. To read our circuit decisions in Powell [ v. Thomas, 643 F.3d 1300 (11 th Cir.2011) ], DeYoung [ v. Owens, 646 F.3d 1319 (11th Cir.2011) ], and Valle [ v. Singer, 655 F.3d 1223 (11 th Cir.2011) ] as holding—no matter what new facts allege or new evidence reveals—that Alabama's, Georgia's and Florida's substitutions of pentobarbital for sodium thiopental is not a significant change in their execution protocols is to ignore the reality that scientific and medical evidence that exists today may differ from that which new scientific and medical discoveries and research reveal tomorrow.

Id. at 1260. With this backdrop in place, but mindful that a defendant is not entitled to relitigate claims that have been previously rejected without relying on new evidence or new factual developments, we now turn to the merits of Pardo's Eighth Amendment claim, focusing on whether Pardo has presented new arguments we have not previously considered.

While the “death penalty is an authorized punishment for capital crimes,” art. I, § 17, Fla. Const., this Court has the duty “to ensure that the method used to execute a person in Florida does not constitute cruel and unusual punishment.” Lightbourne v. McCollum, 969 So.2d 326, 349 (Fla.2007). In accordance with our state constitution, this Court evaluates “whether lethal injection is unconstitutional ‘in conformity with decisions of the United States Supreme Court.’ ” Id. at 335 (quoting art. I, § 17, Fla. Const.). The United States Supreme Court's plurality decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), sets forth the requirements that a defendant must meet in...