Pardo v. State

108 So. 3d 558, 2012 WL 6935117, 2012 Fla. LEXIS 2570
CourtSupreme Court of Florida
DecidedDecember 4, 2012
DocketNo. SC12-2350
StatusPublished
Cited by43 cases

This text of 108 So. 3d 558 (Pardo v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pardo v. State, 108 So. 3d 558, 2012 WL 6935117, 2012 Fla. LEXIS 2570 (Fla. 2012).

Opinion

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. See art. 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 post-conviction 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]ostconvic[561]*561tion 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 vecu-ronium 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 vecuro-nium 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 [562]*562evidence 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

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Bluebook (online)
108 So. 3d 558, 2012 WL 6935117, 2012 Fla. LEXIS 2570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pardo-v-state-fla-2012.