Case No. _________________

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 2019

BOBBY JOE LONG,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent

PETITION FOR WRIT OF CERTIORARI –

OPINION AFFIRMING ORDER DENYING THIRD

SUCCESSIVE POSTCONVICTION MOTION

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

DEATH WARRANT ISSUED

EXECUTION SET FOR MAY 23, 2019

ROBERT A. NORGARD

For the Firm

Norgard, Norgard & Chastang

Fla. Bar No. 322059

COUNSEL OF RECORD FOR

PETITIONER

P.O. Box 811

Bartow, FL 33831

863-533-8556

Fax 863-533-1334

norgardlaw@verizon.net

CAPTIAL CASE

DEATH WARRANT ISSUED

EXECUTION SET FOR

MAY 23, 2019

QUESTIONS PRESENTED

QUESTION I

WHETHER THE FLORIDA DEPARTMENT OF CORRECTION’S

RESTRICTIONS ON MR. LONG’S EXECTUION WITNESS AND

REFUSING TO ALLOW HIM TO HAVE A NON-CLERGYMAN AS HIS

SECOND WITNESS VIOLATES THE FIRST, FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUION?

QUESTION II

WHETHER THE FLORIDA SUPREME COURT DECISION HOLDING

MR. LONG IS NOT ENTILTED TO A NEW PENATLY PHASE

PURSUANT TO HURST v. FLORIDA AND HURST v. STATE

VIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS

WHERE THE DENIAL OF RELIEF IS ARBITRARY AND CAPRICIOUS

AND CAUSES DISPARATE TREATMENT BETWEEN SIMILARLY

SITUATED DEFENDANTS?

QUESTION III

WHETHER THE FLORIDA SUPREME COURT DECISION UPHOLDING

MR. LONG’S EXECUTION WITH ETOMIDATE AND HOLDING THAT

MR. LONG WAS NOT ENTITLED TO AN EVIDENTAIRY HEARING ON

THE CONSTITUTIONALITY OF FLORIDA’S LETHAL INJECTION

PROTOCOL AND DENYING HIM THE OPPORTUNITY TO PRESENT

EVIDENCE NOT PREVIOUSLY CONSIDERED BY THE STATE COURTS

OF FLORIDA RESULTED IN A VIOLATION OF THE FIFTH,

EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION?

i

QUESTION IV

WHETHER MR. LONG’S EXECTUION AFTER THIRTY YEARS ON

DEATH ROW CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION?

ii

TABLE OF CONTENTS

PAGE NO.

QUESTIONS PRESENTED i

TABLE OF CONTENTS iii

TABLE OF CITATIONS iv

TABLE OF OTHER AUTHORITIES vii

OPINION BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 5

REASONS FOR GRANTING THE WRIT 16

CONCLUSION

40

APPENDIX

[A] Opinion of the Florida Supreme Court

[B] Prior opinions of the Florida Supreme Court

in this case.

[C] Letter dated April 29, 2019 sent to DOC

[D] Letter dated May 9, 2019 received from DOC

[E] Florida Supreme Court order in Owen v. State

[F] Motion for Stay of Execution Pending the Florida

Supreme Court’s Decision in Owen v. State

[G] Order of Florida Supreme Court May 10, 2019,

denying Motion for Stay

iii

[H] Motion For Reconsideration of Motion for Stay of

Execution Pending the Florida Supreme Court’s Decision

in Owen v. State

[I] Order denying Motion for Rehearing

iv

TABLE OF CITATIONS

PAGE NO.

Arthur v. Thomas, 32

674 F.3d 1257 (11th Cir. 2012)

Asay v State, 7,21,23,25,27,

210 So.3d 1 (Fla. 2016) 25

Asay v. State, 10,11,13,34

224 So.3d 695 (Fla. 2017)

Baze v. Rees, 10,30,34

553 U.S. 35 (2008)

Bucklew v. Precythe, 12,30,34

139 S.Ct. 1112 (2019)

Caldwell v. Mississippi, 22,27,29

472 U.S. 320 (1985)

Coleman v. Balkom 39

451 U.S. 949 (1981)

Dunn v. Ray, 15

586 U.S. ___ (2019)

Eide v. Sarasota County, 32

908 F.2d 716 (11th Cir. 1990)

Eisenstadt v. Baird, 28

405 U.S. 438 (1972)

Elledge v. Florida, 37

525 U.S. 944 (1998)

Ford v. Wainwright, 28

447 U.S. 399 (1986)

Gardner v. Florida, 29

430 U.S. 349, 97 S. Ct. 1197 (1977)

Gary v. City of Warner Robbins, GA., 31

311 F.3d 1334 (11th Cir. 2000)

v

Glossip v. Gross, 12,30,34,39

125 S.Ct. 2726 (2015)

Gore v. State, 38

91 So.3d 769 (Fla. 2012)

Gregg v. Georgia, 38

428 U.S. 153 (1976)

Hitchcock v. Florida, 22

226 So.3d 216 (Fla. 2017)

Hurst v. Florida, passim

136 S.Ct. 616 (2016)

Hurst v. State, passim

202 So.3d 40 (Fla. 2016)

James v. State, 7,23,25

615 So.2d 668 (Fla. 1993)

McLaughlin v. State, 28

379 U.S. 184 (1964)

Morrissey v. Brewer, 29

408 U.S. 471 (1972)

Mosley v. State, 7,21,23,25

209 So.3d 1248 (Fla. 2016)

Muhammad v. State, 13

132 So.3d 176 (Fla. 2103)

Patrick Henry Murphy v. Bryan Collier, 15,16,17

Executive Director, Texas Dept. Criminal Justice,

et.al., 2019 WL 18A985 (May 13, 2019)

Lackey v. Texas, 15,16,17

514 U.S. 1045 (1995)

Long v. State, 2

610 So.2d 1268 (Fla. 1992),

cert. denied, 510 U.S. 832 (1993)

vi

Long v. State, 2

118 So.3d 342 (Fla. 2013)

Long v. State, 2

183 So.3d 342 (Fla. 2016)

Long v. State, 1,7

235 So.3d 293 (Fla. 2018),

cert. denied, 139 S.Ct. 162 (2018)

Long v. State, 1

2019 WL 2066964 (Fla. May 17, 2019)

Ohio Adult Parole Authority, et. al. v. Woodard, 28

523 U.S. 272 (1998)

Owen v. State, 7,8,23,26

SC18-810 (Fla. April 24, 2019)

Overton v. Bazzetta, 19

539 U.S. 126 (2003)

Ring v. Arizona, passim

536 U.S. 551 (20020

Stanton v. Stanton, 17

421 U.S. 7 (1975)

State v. Murray, 26

44 Fla. Law Weekly S3 (Fla. December 29, 2018)

Strickland v. Washington, 29

466 U.S. 668 (1984)

Turner v. Safley, 19

482 U.S. 78 (1987)

Valle v. Florida, 37,39

132 S.Ct. 1 (2011)

OTHER AUTHORITIES

Title 28, United States Code, Section 1257(a) 2

vii

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2019

BOBBY JOE LONG, Petitioner,

v.

STATE OF FLORIDA, Respondent,

The petitioner, BOBBY JOE LONG, respectfully

requests that a stay of execution be entered and that

a writ of certiorari issue to review the judgment and

opinion of the Supreme Court of Florida, entered in

this cause on May 17, 2019.

OPINION BELOW

The opinion of the Supreme Court of Florida

affirming the denial of petitioner’s motion for stay

of execution and to vacate the judgment for first-

degree murder, kidnapping, and sexual battery and

sentence of death is as yet to be reported, but is

found at Long v. State, Case No. SC726 2019 WL

2066964(Fla. May 17, 2019) and is reproduced in the

Appendix. [A1-22] The prior opinions of the Florida

Supreme Court affirming the petitioner’s

1

conviction for first-degree murder and death sentence

are found at Long v. State, 610 So.2d 1268 (Fla.

1992), cert. denied, 510 U.S. 832 (1993)[affirming

conviction and sentence]; Long v. State, 118 So.3d 798

(Fla. 2013)[affirming denial of claims raised in the

Amended Motion for Postconviction Relief]; Long v.

State, 183 So.3d 342 (Fla. 2016)[affirming denial of

the Successor Motion for Postconviction Relief]; and

Long v. State, 235 So.3d 293 (Fla. 2018), cert.

denied, 139 S.Ct. 162 (2018).[Appendix B]

JURISDICTION

The Supreme Court of Florida affirmed the denial

of petitioner’s motion for stay of execution and to

vacate the judgment of conviction of first-degree

murder, sexual battery, and kidnapping and the

sentence of death on May 17, 2019. [Appendix A]

Petitioner asserted below, and asserts here, a

deprivation of his rights guaranteed under the First,

Fifth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution. Title 28, United States

Code, Section 1257(a) confers certiorari jurisdiction

in this Court to review the judgment and sentence in

this case.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides:

Congress shall make no law respecting the

establishment of religion or prohibiting the free

exercise thereof, or abridging the freedom of speech

or the press; or the rights of the people peaceably to

assemble, and to petition the Government for a redress

of grievances.

The Fifth Amendment to the United States

Constitution provides:

No person shall be held to answer for a

capital, or otherwise infamous crimes, unless on

a presentment of indictment of a grand jury,

except in cases arising in the land or naval

forces, or in the militia, when in actual service

in time of war or public danger,, nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use without just compensation.

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

3

obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.

The Eighth Amendment to the United States Constitution

provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and usual

punishment inflicted.

The Fourteenth Amendment to the United States

Constitution provides:

All persons born or naturalized in the

United States and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; or shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

4

STATEMENT OF THE CASE

Petitioner, BOBBY JOE LONG, was charged by indictment

in Hillsborough County, Florida in 1985, with the first-

degree murder, sexual battery, and kidnapping of Michelle

Sims and was sentenced to death. He is under an active

death warrant, with execution set for May 23, 2019, at 6:00

p.m.

Relevant Facts as to Question I:

The death warrant in this case was signed on April 23,

2019. On April 29, 2019, Mr. Long sent a letter by U.S.

Mail and e-mail to Barry Reddish, Warden of Florida State

Prison requesting the following: (1) Mr. Long’s designated

witness be allowed to have access to a writing pad and

pencil during the execution;(2) Mr. Long’s designated legal

witness have access to a cell phone before and during the

execution process; (3) Mr. Long be afforded a second

witness to his execution; and (4) that one of Mr. Long’s

witnesses be allowed to observe the IV insertion process.

Mr. Long argued he should be allowed to substitute a non-

clergyman for the minister of religion, but was not seeking

any additional witnesses.[Appendix C] Mr. Long argued the

denial of cell phone access to his legal witness deprived

him of access to the courts if there were problems with the

5

execution. Mr. Long would also be precluded from bringing

an Eighth Amendment challenge that could arise during that

process and would deny him his Sixth Amendment right to

counsel.

The Department of Corrections [DOC] granted Mr. Long’s

first request and denied the remaining three

requests.[Appendix D]

Pursuant to §922.11(2), Fla. Stat. (2018), Mr. Long is

permitted to have his legal counsel present along with a

requested minister of religion. Twelve citizens of the

warden’s choosing witness the execution, as well as members

of the media. The statute excludes all others. All

witnesses, including legal counsel, remain in the viewing

room during the execution rather than the execution

chamber.

The State’s position was any additional witnesses

would crowd the viewing area, maintaining the courts do not

manage state execution practices and prison policies.

The Florida Supreme Court held DOC is entitled to the

presumption the execution will be properly carried out and

it was not the role of the court to micromanage the

executive branch in fulfilling its duties relating to an

6

execution.

Relevant Facts as to Question II:

In previous collateral litigation Mr. Long pursued

relief from his death sentence under Hurst v Florida, 136

S.Ct. 616 (2019) and Hurst v. Florida, 202 So.3d 40 (Fla.

2016). Mr. Long, who challenged the jury’s advisory role

in sentencing as early as 1989, argued unsuccessfully he

was entitled to a new penalty phase because his jury was

instructed their recommendation was advisory only. Mr.

Long’s challenges were denied by the Florida Supreme Court

because his sentence became final prior to the issuance of

Ring v. Arizona, 536 U.S. 551 (2002). Long v. State, 235

So.3d 923 (Fla. 2018), cert. denied, 139 S.Ct. 162 (2018).

The death warrant in this case was signed on April 23,

2019. On April 24, 2019, the Florida Supreme Court issued

an order in Owen v. State, SC18-810, a death penalty case,

directing the parties to brief the issue of whether the

Florida Supreme Court should recede from the retroactivity

analysis in Asay v. State, 210 So.3d 1 (Fla. 2016); Mosely

v. State, 209 So.3d 1248 (Fla. 2016); and James v. State,

615 So.2d 668 (Fla. 1993). The Appellant’s brief was due on

May 14, 2019, the Appellee’s brief twenty days after, the

reply brief twenty days after that. [Appendix E]

7

Mr. Long filed a Motion for Stay of Execution Pending

the Florida Supreme Court’s Decision in Owen v. State.

[Appendix F] Mr. Long argued a stay should be granted in

his case as he has consistently argued the partial

retroactivity scheme the Florida Supreme Court applied to

deny him Hurst relief violates the Eighth Amendment and

Fourteenth Amendment. Mr. Long argued his execution should

not move forward while the Florida Supreme Court

reconsiders the retroactivity cut-off in Owens.

The State’s position was Mr. Long is not entitled to a

stay because he did not meet the requirements for a stay,

he had unsuccessfully litigated a Hurst claim, and he would

not be entitled to relief because of the 1989 unanimous

death recommendation.

On May 10, 2019, the Florida Supreme Court issued an

order denying Mr. Long’s motion for stay.[Appendix G] The

Florida Supreme Court stated Mr. Long, as a pre-Ring

defendant, was not entitled to relief. The order further

stated that if the Florida Supreme Court receded from the

Ring cut-off and found that the Hurst decisions were not

retroactive Mr. Long would not be entitled to relief.

Mr. Long moved for rehearing. [Appendix H] Mr. Long

8

argued the Florida Supreme Court in Owen should give full

and fair consideration to whether the Ring cut off is

appropriate for those defendants, like Mr. Long who filed

Ring type challenges prior to Ring. Mr. Long argued the

current framework is arbitrary and capricious, as

demonstrated by the Owens case. Mr. Long argued to deny him

full briefing on this question was a denial of his First

Amendment right of access to the courts, as well as a

violation of the Eighth and Fourteenth Amendments. On May

17, 2019 the Florid Supreme Court denied the motion for

rehearing.[Appendix I]

The Florida Supreme Court rejected Mr. Long’s Hurst

claim as untimely, successive, and procedurally barred and

did not reference Owen.

Relevant Facts as to Question III:

On January 4, 2017, the Florida Department of

Corrections instituted a new lethal injection protocol in

Florida. The drug etomidate was designated to replace the

previous drug, midazolam, as the first drug in the three

drug protocol. Rocuronium bromide, a paralytic is the

second drug and potassium acetate is the third, lethal

drug. The Florida Department of Corrections released no

other information related to this significant change to the

9

protocol. The Florida Supreme Court upheld the use of the

January 2017 protocol in Asay v. State, 224 So.2d 695 (Fla.

2017).

Florida has executed five individuals since the change

to the protocol using etomidate, including Patrick Hannon

in November 2017, and Eric Branch in February 2018.

After the warrant was signed in this case, Mr. Long

made multiple public records requests under Fla. R. Crim.

P. 3.852(i). Mr. Long made (i) requests to the Florida

Department of Corrections,[herein after “DOC”]; the Florida

Department of Law Enforcement,[herein after “FDLE”]; and

the Medical Examiner’s Office of the Eighth District

[herein after “ME”]. The ME for the Eighth District is

statutorily charged with the task of performing an autopsy

of inmates who are executed in the State of Florida.

Mr. Long sought the records in an effort to determine

whether the prior protocol created less of a substantial

risk of harm and was preferable under Baze v. Rees, 553

U.S. 35 (2008) and to better determine the efficacy of

etomidate as compared to pentobarbital and fentanyl. Mr.

Long also sought to determine if the levels of etomidate

present at the time of death in the Branch and Hannon

executions to determine if the amounts that DOC has

10

determined to be appropriate are actually being delivered.

Mr. Long also argued that a defendant could never

challenge whether or not the current lethal injection

protocol violated the Eighth Amendment when collateral

counsel is precluded from obtaining public records that

would be available to others who do not represent death

sentenced individuals.

The Florida Supreme Court rejected Mr. Long’s request

for public records, finding requests made to obtain any

documents related to Florida’s lethal injection protocol

were overbroad and would not lead to a colorable claim. The

Florida Supreme Court deemed any public records request

other than for Mr. Long’s own medical records to be

overbroad and previously rejected.

Mr. Long requested that he be given a full evidentiary

hearing on his claim that the current lethal injection

protocol was unconstitutional and that the use of etomidate

as the first drug created a substantial risk of harm to Mr.

Long due to his brain damage and temporal lobe epilepsy.

Mr. Long argued that the decision in Asay should not bar

future litigation if additional evidence could be presented

to cast doubt on the efficacy of etomidate, as applied to

11

him and as part of the three drug protocol. Mr. Long

challenged the Asay decision since it was decided before

any actual executions using the new three drug protocol and

two of the five executions since Asay had been decided had

significant problems which merited a review. The trial

court granted Mr. Long a limited evidentiary hearing on

whether etomidate would violate the tenets of Glossip v.

Gross, 125 S.Ct. 2726 (2015) and Bucklew v. Precythe, 139

S.Ct. 1112 (2019), but refused to permit any evidence about

the general limitations of etomidate or the executions of

Branch or Hannon into evidence at the hearing. The trial

court refused to reconsider the three-drug protocol.

The position taken by the State of Florida was that

Asay would require summary denial of all future challenges

to etomidate and the lethal injection protocol until and

unless another change to the protocol was made. The State

of Florida maintains that there is only one opportunity to

challenge the execution protocol and once that challenge is

made, no matter what evidence might be omitted, no future

challenges are cognizable claims.

The Florida Supreme Court affirmed the denial of

relief by the trial court. As to Mr. Long’s as applied

claim, the Florida Supreme Court found Mr. Long failed to

12

establish the use of etomidate presents a substantial and

imminent risk that is sure or very likely to cause serious

illness and needless suffering As to the second

showing, the Florida Supreme Court held Mr. Long failed to

identify a known and available alternate method of

execution what entails a significantly less severe risk of

pain, finding DOC is entitled to the presumption it will

comply with the lethal injection protocol and the protocol

has sufficient safeguards to ensure the inmate is

unconscious throughout the execution.

The Florida Supreme Court rejected Mr. Long’s

challenge to the current three drug lethal injection

protocol and to the use of etomidate. The Florida Supreme

Court adhered to the position that a single hearing on a

new lethal injection protocol is sufficient, again

affirming Muhammad v. State, 132 So.3d 176, 203 (Fla. 2013)

and Asay v. State, 224 So.3d 695, 701 (Fla. 2017).

Relevant facts to Question IV:

Mr. Long challenged his execution as violative of the

Eight Amendment because he has endured the conditions on

Florida’s death row for thirty years and there was only a

marginal social or public purpose served by his execution.

Mr. Long sought an evidentiary hearing on this claim to

13

demonstrate how his particular experiences on death row and

the conditions he specifically endured would warrant

relief. The trial court denied Mr. Long an evidentiary

hearing.

The Florida Supreme Court upheld the denial of Mr.

Long’s claim, relying on prior precedent denying such

claims and did not address Mr. Long’s argument he should

have been given an evidentiary hearing.

REASONS FOR GRANTING THE WRIT

QUESTION I

THE FLORIDA DEPARTMENT OF CORRECTION’S RESTRICTIONS

ON MR. LONG’S EXECUTION WITNESES AND REFUSING TO

ALLOW HIM TO HAVE A NON-CLERGYMAN AS HIS SECOND

WITNESS VIOLATES THE FIRST, FIFTH, SIXTH, EIGHTH,

AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION

On April 29, 2019, six days after the signing of the

warrant in this case Mr. Long sent a letter to the warden

of Florida State prison requesting four accommodations for

the two witnesses he was permitted to have. DOC granted

the request for legal counsel to have writing materials,

but denied Mr. Long’s request to have his legal counsel

view the IV insertion, that his legal counsel have access

to a cell phone before and during the execution, and that

Mr. Long could select a non-clergy member to serve as his

14

second witness. The Florida Supreme Court upheld the

denial of Mr. Long’s three requests by DOC and the trial

court, holding that DCO is entitled to presumption that it

will properly perform its duties while carrying out the

execution and the court should not micromanage DOC. The

Florida Supreme Court made no mention of this Court’s

decisions in Dunn v. Ray, 586 U.S. _____ (2019) or Patrick

Henry Murphy v. Bryan Colliers, Executive Director, Texas

Department of Criminal Justice, et.al., 2019 WL 18A985)

(May 13, 2019). A dissenting opinion questioned whether or

not the issue was not ripe for review because DOC had not

responded to Mr. Long’s request at the time the claim was

made. In fact, DOC did not respond until May 9, 2019, ten

days after the request was made and the same day the

Initial Brief was filed.

The Florida Supreme Court failed to consider and apply

Murphy and Dunn. The state courts and this Court have the

authority to monitor and correct unconstitutional practices

by the state in its execution protocols and procedures.

Mr. Long’s request was timely made. Mr. Long made every

effort to pursue and litigate this issue, despite not

receiving a response from DOC for ten days. Any delay in

bringing this issue forward was the result of “foot

15

dragging” by the state, not Mr. Long.

In Murphy this Court granted a stay of execution to a

Texas inmate after Texas barred his spiritual advisor, a

Buddhist, from the execution chamber. Texas permitted a

Christian or Muslim religious advisor to be in the

execution chamber. Murphy challenged this exclusion thirty

days in advance of his execution. The stay was granted on

the day of the execution, with the Chief Justice noting the

state caused substantial delay by “foot dragging” before

responding to the defendant’s request. Justice Kavanaugh

observed Texas’ policy was discriminatory and the solution

was to either allow any spiritual/religious advisor into

the execution chamber or to confine all spiritual/religious

advisors to the viewing chamber. Texas could not, however,

treat spiritual advisors of different faiths unequally.

Within five days of the stay being granted, Texas changed

its policy. Effective immediately, all religious ministers

were allowed only in the viewing room. This change provided

equal treatment to all.

The State of Florida permits Mr. Long to have two

execution witnesses: his legal counsel and the second, a

requested religious minister. Mr. Long wished to exercise

16

his right to have two witnesses, however Mr. Long did not

want a religious minister. Instead, Mr. Long wished to

have his second witness be a non-clergyman. DOC denied Mr.

Long’s request. DOC’s restriction of the second witness to

a clergyman violates the First Amendment establishment

clause. Mr. Long is being given unequal treatment because

he does not want a religious minister.

The remedy is straight forward. The State of Florida

should permit the condemned to have two witnesses without

the requirement of clergy. This remedy ensures equal

treatment going forward and would not require a significant

burden on DOC. See Stanton v. Stanton, 421 U.S. 7, 17-18

(1975).

This Court should enter a stay under Murphy until the

State of Florida changes its discriminatory practice.

Mr. Long made a request that his legal witness be

allowed to observe the IV insertion procedure and be

allowed access to a cell phone before and during the

execution. Mr. Long argued the denial of these requests

violates Mr. Long’s right of access to the courts, his

right to counsel, and prevents him from establishing his

execution could be cruel and usual punishment.

The IV insertion process is a critical stage in the

17

lethal injection process. First, any difficulties in

achieving venous access should be observed and documented,

particularly if the process requires multiple attempts to

locate a vein or involves a cut-down procedure. If Mr. Long

is deprived of access to his attorney during this period he

has also been denied the ability to challenge this part of

the execution process as cruel and usual. The denial of

cell phone access to the legal counsel witness prevents

this witness from communicating to other members of the

legal team outside the prison in the event any part of the

execution process goes array or if DOC does not follow the

approved protocol. Mr. Long will be denied access to the

courts once the execution process begins with the IV

insertion. Mr. Long’s constitutional rights should not be

abrogated by prison rules. Four factors are considered when

determining whether a prison rule may limit an inmate’s

constitutional rights. The first factor examines whether

the prison rule bears a valid, rational connection to a

legitimate governmental interest. The second factor asks

whether there is an alternative means open to inmates to

exercise the asserted right. The third factor examines

what impact an accommodation of the right would have on

guards, inmates, and prison resources. Finally, the fourth

18

factors analyzes whether there are ready alternatives to

the regulations. Overton v. Bazzetta, 539 U.S. 126, 132

(2003)(quoting Turner v. Safley, 482 U.S. 78, 89-91 (1987).

The refusal to allow Mr. Long’s second witness to be a

layman does not have a valid, rational connection to a

legitimate governmental interest. The State argued limited

space in the viewing room was the primary concern of DOC.

This is without merit. Mr. Long is not asking for more

witnesses, he is seeking to exercise his right to the two

permitted witnesses. Mr. Long has no alternative means to

have a second witness. There does not appear to any impact

on guards, inmates or prison resources if the second

witness is not clergy. A ready alternative to the

regulation is to permit the second witness to be a

layperson.

The denial the legal witness’s viewing of the IV

insertion ensures a critical part of the lethal injection

process is kept secret. This appears to be the only

governmental interest. Secrecy is not a legitimate

governmental interest. Mr. Long has no alternative means

open to him to exercise his rights to counsel and access to

the courts. Any impact on the guards and prison resources

would be de minimis, and there would be no impact on other

19

inmates. The ready alternative to the regulation is to

simply permit observation of the IV insertion by legal

counsel from the viewing room or chamber.

The denial of access to a cell phone by the legal

counsel witness does not have an articulated legitimate

governmental interest. The State has not identified why

DOC is opposed to this request. Mr. Long and his legal

counsel have no alternative means available to them for his

legal witness to communicate with other members of the

legal team outside the prison. There would be no impact to

other inmates. There would be a negligible impact on prison

guards and resources. The ready alternative to the

regulation is to permit the legal counsel witness to have

access to a cell phone with reasonable guidelines for use.

An application of Murphy and these four factors to Mr.

Long’s request to have a layperson witness, his request to

allow his attorney to view the IV insertion, and his

request that his attorney to have access to a cell phone

before and during the lethal injection process compel a

decision in Mr. Long’s favor. These requests would not

interfere with the execution in any manner unless the

execution was to go awry. Mr. Long’s requests are both

reasonable to ensure his constitutional rights are

20

protected and are timely. The requests do not overburden

DOC, yet these restrictions unnecessarily impinge on Mr.

Long’s right to counsel and access to the courts, as well

as infringe on his ability to raise an Eighth Amendment

claim should the execution go wrong. A stay should be

granted until DOC makes the accommodations Mr. Long has

timely sought.

QUESTION II

THE FLORIDA SUPREME COURT DECISION HOLDING MR. LONG

IS NOT ENTITLED TO A NEW PENATLY PHASE PURSUANT TO

HURST v. FLORIDA AND HURST v. STATE VIOLATES THE

SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUION WHERE THE DENIAL OF RELIEF IS

ARBITRARY AND CAPRICIOUS AND CAUSES DISPARATE

TREATMENT BETWEEN SIMILARLY SITUATED DEFENDANTS

The Eighth Amendment bars the infliction of punishment

that is arbitrary and capricious. Under the Fourteenth

Amendment, Mr. Long is guaranteed equal protection under

the law. The retroactivity of the decisions in Hurst v.

Florida, 136 S.Ct. 616 (2016) and Hurst v. State, 202 So.3d

40 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017),

announced by the Florida Supreme Court in Asay v. State,

210 So. 3d 1 (Fla. 2016) and Mosley v. State, 209 So.3d

1248 (Fla. 2016) violate the Eighth and Fourteenth

Amendments of the United States Constitution.

Mr. Long continues to challenge the constitutionality

21

of the retroactivity bar promulgated by the Florida Supreme

Court which denies retroactivity of the Hurst decision to

defendants whose death sentences became final prior to the

issuance of Ring v. Arizona, 536 U.S. 584 (2002) on June

24, 2002. Mr. Long urges this Court to reconsider the

Florida Supreme Court’s judicially created arbitrary bar

whose continued application demonstrates the arbitrary and

capriciousness of the line-drawing at Ring. The result of

the retroactivity bar to those such as Mr. Long is

disparate treatment between death sentenced prisoners on

collateral review.

Mr. Long unsuccessfully challenged the

constitutionality of Florida’s death sentencing scheme,

specifically the jury’s advisory role under Caldwell v.

Mississippi, 472 U.S. 320 (1985), in his direct appeal.

When the Hurst decisions issued Mr. Long brought a

successor postconviction motion seeking to have his death

sentence vacated as the statute that had been used to

sentence him to death was found to be unconstitutional. In

August 2017, the Florida Supreme Court summarily upheld the

Ring-based retroactivity cut-off in Hitchcock v. State, 226

So.3d 216 (Fla. 2017) The Florida Supreme Court rebuffed

Mr. Long’s challenge, finding he was not entitled to relief

22

because his case became final before 2002.

Not only did the Florida Supreme Court deny relief to

Mr. Long, it did so to approximately 100 other death row

inmates. The retroactivity cutoff for Hurst claims divided

Florida’s death row roughly in half, making dozens of

prisoners entitled to resentencing, while preventing dozens

of others from bringing claims based on the same violation

involving the same statute.

The governor signed Mr. Long’s death warrant on April

23, 2019. On April 24, 2019, in another capital case, the

Florida Supreme Court issued an order directing the parties

in that case to submit full briefing on “…whether this

Court should recede from the retroactivity analysis in Asay

v. State, 210 So.3d 1 (Fla. 2016); Mosley v. State, 209

So.3d 1248 (Fla. 2016), and James v. State, 615 So.2d 668

(Fla. 1993).”[Appendix E] Mr. Long filed a Motion for Stay

of Execution Pending the Florida Supreme Court’s Decision

in Owen v. State. Mr. Long argued his execution should be

stayed pending a decision in Owen since he would be

entitled to relief if the Florida Supreme Court receded

from the arbitrary and capricious retroactivity bar given

his death sentence was the product of Florida’s prior,

23

unconstitutional advisory-jury scheme.

Mr. Long argued that his death sentence was the

product of a unanimous jury recommendation where the jury

made no required factual findings. The judge alone made

the required state-law findings. Not only did the trial

judge make the findings, but the judge did not assign any

weight to those findings since Mr. Long’s case pre-dated

Campbell.

Mr. Long argued under the principal of stare decisis,

that is was highly significant the Florida Supreme Court

was reconsidering the retroactivity framework of Asay and

Mosely just three years later. However, the Owen order is a

sign the Florida Supreme Court is seriously contemplating

altering the Hurst retroactivity framework. Given the

myriad of constitutional problems created by the

retroactivity bar, Mr. Long argues there is a possibility

the Florida Supreme Court may decide to abandon the

retroactivity framework and expand Hurst to include

defendant’s like Mr. Long who identified and raised a Ring

claim before it had a name.

The Florida Supreme Court denied Mr. Long’s request

for a stay.[Appendix G] The order states Mr. Long’s case

24

became final prior to Ring, thus under precedent he was not

entitled to relief and if the Court were to hold Hurst was

not retroactive at all, Mr. Long would not be entitled to

relief.

Mr. Long moved for rehearing, arguing if the Court

were reconsidering the retroactivity cutoff, a full and

fair hearing on the issue would require consideration of

whether retroactivity should include all death row inmates,

including those such as Mr. Long.[Appendix H] Mr. Long

pointed out that the Owen case was an example of the

arbitrary and capricious result of the retroactivity bar,

since one of Owen’s cases qualified for Hurst relief

because it was post-Ring, but a second case did not, even

though both murders occurred in 1984. Mr. Long sought the

opportunity to fully brief this issue.

The Florid Supreme Court denied the motion for

rehearing. [Appendix I]

Mr. Long has consistently argued Hurst should apply to

him, even before such a claim had a name. Mr. Long’s

scheduled execution should not proceed while the Florida

Supreme court reconsidered whether it should “recede from

the retroactivity analysis” of Asay, Mosely, and James. It

would be the height of injustice to allow Mr. Long’s

25

execution to proceed on May 23, 2019, only for the Florida

Supreme Court to subsequently rule in Owen that Mr. Long

had been correct all along.

Mr. Long submits that to ensure fairness and

uniformity in Florida’s application of the death penalty,

the Hurst decisions must be applied retroactively to all

cases, including this case. The result of the Asay decision

has been that some defendants whose murders were committed

long before Hurst, but not others violate the equal

protection requirements of fairness and uniformity. The

continued application of the bright-line Ring cut-off has

continued to lead to unconstitutionally arbitrary results.

As Justice Pariente pointed out in her dissent in

State v. Murray, 44 Fla. Law Weekly S3 (Fla. December 20,

2018), the “line-drawing for the retroactivity of Hurst

creates unconstitutional results for defendants”, as

evidence by the results between Murray and his co-

defendant, Taylor. Taylor and Murray were both convicted of

the same 1990 first-degree murder of the same victim and

both were sentenced to death. The jury recommended death

for Murray by a vote of 11-1 and a second jury recommended

death for Taylor by a vote of 10-2. Murray obtained Hurst

26

relief because his case did not become final until 2009 due

to three re-trials. Taylor was denied Hurst relief because

his case became final in 1994.

The failure to apply Hurst retroactively violated the

dictates of Caldwell v. Mississippi. The jury in Mr.

Long’s was not instructed correctly as to its sentencing

responsibility. Post-Hurst jurors know that each will bear

the responsibility for a death sentencing resulting in a

defendant’s execution since each juror possesses the power

to require the imposition of a life sentence simply by

voting against a death recommendation. As explained in

Caldwell, jurors must feel the weight of their sentencing

responsibility. A unanimous jury recommendation was set

aside in Caldwell because the jury’s sense of

responsibility was inaccurately diminished.

Mr. Long challenged his death sentence based on

Caldwell. There is the reasonable probability that at

least one juror, if instructed properly, would vote for

life in this case, thus the error is not harmless.

At minimum, retroactivity should be extended to

defendants such as Mr. Long, who raised claims directed at

the jury’s role in sentencing even before those claims had

a name. The application of retroactivity under Asay is

27

arbitrary and capricious in violation of the Eighth

Amendment. The granting of relief in capital cases, where

“death is different” should not turn on the date of

sentence, resentence, or the arbitrariness of the timing of

the docket. The current retroactivity bar has reduced the

continued sentence of death on little more than the roll of

the dice.

The retroactivity bar cannot pass the strict scrutiny

test required by the Fourteenth Amendment. See Eisenstadt

v. Baird, 405 U.S. 438, 447 (1972); McLaughlin v. Florida,

379 U.S. 184, 191(1964). Denying the benefit of post-Hurst

sentencing to defendants such as Mr. Long violates the life

and liberty interest protected by the Fourteenth Amendment.

Mr. Long has vested due process rights and a vested right

in jury determinate sentencing. See Ford v. Wainwright, 447

U.S. 399, 427-31 (1986); Ohio Adult Parole Authority v.

Woodard, 532 U.S. 271, 288-89 (1998).

Mr. Long is scheduled to be executed based on a death

sentence that was grounded on a statute that was found to

be unconstitutional by both this Court and the Florida

Supreme Court. The statute was just as wrong and

unconstitutional in 1972 when the statute was implemented,

in 1989 when Mr. Long was sentenced to death, and in 2016

28

when Hurst was decided. Mr. Long should not be executed

because it took the courts over forty years to recognize

the error.

QUESTION III

THE FLORIDA SUPREME COURT DECISION UPHOLDING

MR. LONG’S EXECUTION WITH ETOMIDATE AND HOLDING

THAT MR. LONG WAS NOT ENTITLED TO AN EVIDENTIARY

HEARING ON THE CONSTITUTIONALITY OF FLORIDA’S LETHAL

INJECTION PROTOCOL AND DENYING HIM THE OPPORTUNITY

TO PRESENT EVIDENCE NOT PREVIOUSLY CONSIDERED BY THE

STATE COURTS OF FLORIDA RESULTED IN A VIOLATION OF

THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION

The Eighth Amendment bars the infliction of cruel and

usual punishment. Those whom the State is seeking to

execute are entitled to enhanced constitutional

protections, especially due process protections under the

Fifth and Fourteenth Amendments. See Caldwell v.

Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231

(1985). The heightened due process standard is not

diminished when a death warrant is signed. Gardner v.

Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197 (1977);

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). A capital

sentenced defendant is entitled to the effective assistance

of counsel at all stages of the proceedings. Strickland v.

Washington, 466 U.S. 668 (1984). The deprivation of public

29

records relevant to a colorable claim of whether or not

Florida’s lethal injection method violates the Eighth

Amendment prohibition against cruel and usual punishment

under Baze v. Rees, 553 U.S. 35 (2008), Glossip v. Gross,

125 S.Ct. 2726 (2015), and Bucklew v. Precythe, 139 S.Ct.

1112 (2019) and by virtue of the creation of a substantial

risk of harm results in a violation of due process and

effective assistance of counsel to the condemned.

Florida’s practice of depriving collateral counsel and

their death-sentenced client’s access to public records

that would be available to the general public is a

violation of the equal protection provisions of the

Fourteenth Amendment.

The Florida Supreme Court denied Mr. Long’s records

requests because “We have held that rule 3.852(i) records

requests were not related to a colorable claim.”

The Florida Supreme Court relied heavily upon the

presumption that the executive branch will properly carry

out/perform their duties properly in an execution as the

basis for denying requests for documents from DOC and FDLE

related to past executions.

Mr. Long is entitled to effective assistance of

counsel under the Sixth Amendment. Collateral counsel is

30

precluded under the decisional law of the Florida Supreme

Court from providing effective assistance when collateral

counsel is denied access to public records that are

necessary in order for collateral counsel to effectively

challenge Florida’s lethal injection protocol. Further,

the State of Florida violates the Equal Protection clause

of the Fourteenth Amendment when the State of Florida

denies collateral counsel and death sentenced inmates

access to public records such as autopsy reports that are

available to the general public under Florida’s public

records law, Chapter 119.

The State of Florida has unconstitutionally created a

different class of citizens, death sentenced inmates and

attorneys who represent them in collateral proceedings.

The Equal Protection clause requires the government to

treat similar persons in a similar manner. Gary v. City of

Warner Robins, GA, 311 F.3d 1334, 1337 (11th Cir. 2000). In

this instance, the State of Florida is treating a group of

lawyers and a group of inmates in a manner that is

different from how other licensed members of the Florida

Bar and other inmates are treated. The State of Florida

has essentially created a suspect class of persons who

practice law in as collateral counsel. “When the

31

legislation classifies persons in such a way that they

receive different treatment under the law, the degree of

scrutiny the court applies depends on the basis for the

classification.” Id.

“If a law treats individuals differently on the basis

of race of another suspect classification, or if the law

impinges on a fundamental right, it is subject to strict

scrutiny.” Eide v. Sarasota County, 908 F.2d 716, 722 (11th

Cir. 1990). These principles have application to a death

sentenced inmate who is denied access to records related to

lethal injection and should apply even more forcefully to a

lawyer who practices in the area of collateral conviction

law and who is precluded from obtaining records and

documents that would be available to any other member of

the Florida Bar. See Arthur v. Thomas, 674 F.3d 1257, 1264

(11th Cir. 2012). Fundamental fairness, if not due process,

should require that materials that relate to lethal

injection and lethal injection protocols should be given to

the death sentenced inmate and his counsel in a prompt and

timely manner.

The Florida Supreme Court has determined that it will

hear only single challenge from a single defendant to any

alteration or change made to the lethal injection protocol.

32

The effect of this determination is to deny subsequent

defendants the right to challenge a protocol based upon a

hearing in which they were not represented, had no notice,

and no opportunity to be heard in violation of the Due

Process clause. The adherence to an automatic summary

denial rule denies inmates such as Mr. Long his Sixth

Amendment right to counsel when he had no counsel present

in the Asay hearing and his right to effective assistance

of counsel when he is bound by the efficacy of lawyers who

were not his own in Asay.

Mr. Long was not provided public records, or the

opportunity to amend his motion and present these records

to the Florida courts. Mr. Long was denied access to

public records that would have not only supported his

claim, but greatly reduced the amount of time it would

require to him have identified the additional testimony he

would have presented had he been given the opportunity to

do so. The actions of the State of Florida violate the

most fundamental constitutional guarantees of due process,

the right to counsel, the ban on cruel and usual

punishment, and the guarantee of equal protection to all

citizens, even those that are reviled.

For all of the above reasons, counsel submits that an

33

execution in this case is barred by the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the United States

Constitution.

Also, Mr. Long requested an evidentiary hearing in the

trial court to present evidence that had not been

considered when Asay was decided. Asay was decided before

any execution using the current three-drug protocol had

taken place. Of the five executions with this protocol,

the Branch and the Hannon executions demonstrated problems

indicative that the anesthetic properties of etomidate did

not last the length of the execution. Mr. Long was denied

the most fundamental element of due process- the right to

be heard on this critical issue. See Pariente, J.,

dissenting, Asay v. State, 226 So. 3d at 700.

Mr. Long argued that under Baze, Glossip, and Bucklew

he was required to show the current protocol not only

creates a substantial risk of harm, but also “If a State

refuses to adopt such an alternative in the face of these

documented advantages, without a legitimate penological

justification for adhering to its current method of

execution, then a state’s refusal to change its method can

be viewed as “cruel and unusual punishment.” Baze, at 52

[citation omitted] An evidentiary hearing was necessary in

34

order for Mr. Long to establish that the State of Florida

was refusing to change the protocol that required etomidate

and three drugs to effectuate an execution was

unconstitutional. The denial of a hearing foreclosed Mr.

Long from doing this.

Mr. Long contended below that the hearing in Asay was

not sufficient to determine the constitutionality of the

current protocol; the current three drug protocol in favor

of the prior three drug protocol; or the continued use of

the a three drug protocol instead of a single or double

drug protocol. Had he been given the opportunity, Mr. Long

would have presented evidence at the limited hearing about

the general effects of etomidate and the tremendous risks

associated with it as evidenced in the Branch and Jimenez

executions. The trial court’s restrictions on the evidence

Mr. Long could present on the as applied portion of his

claim and the refusal to permit a hearing on the protocol

as a whole and in particular etomidate violated the Fifth,

Sixth, Eighth, and Fourteenth Amendments.

QUESTION IV

MR. LONG’S EXECTUION AFTER THIRTY YEARS ON DEATH

ROW AND THE DENIAL OF THIS CLAIM WITHOUT A HEARING

VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF

THE UNITED STATES CONSTITUTION

35

The Eighth Amendment bars cruel and unusual

punishment. Mr. Long has spent over thirty years on death

row. He has been confined to a un-air conditioned, 6’x9’

cell, with only two hours per week outside the cell. He is

allowed to shower every other day. Mr. Long sought an

evidentiary hearing on this claim in order to present

evidence of the physical and psychological effects this

incarceration and the unceasing anxiety and toll the

anticipation of a death warrant has had on him. It does not

appear this has been done in any previous cases. The trial

court denied his request.

If Mr. Long had been granted an evidentiary hearing he

would have testified in a manner consistent with his

statements to the trial court when it was discussed whether

Mr. Long would attend the limited evidentiary hearing on

his as applied claim related to the use of etomidate in his

execution. Mr. Long told the trial court he did not want to

come due to the conditions he would endure before, during,

and after the hearing. Mr. Long described being placed in

at least seven to eight pounds of chain, from his legs to

his arms and shoulders, how painful hours of limited

movement with these type of chains was, and how

36

psychological stressful this was. Had he been given the

opportunity, Mr. Long would have offered testimony that his

lengthy death row incarceration was so severe an execution

would be barred by the Eighth Amendment.

In Lackey v. Texas, 514 U.S. 1045 (1995), Justice

Stevens and Breyer expressed concerns regarding the length

of time prisoners spend on death row prior to execution:

The cruelty of capital punishment lies not only in

the execution itself and the pain incident thereto,

but also in the dehumanizing effects of the lengthy

imprisonment prior to execution during which the

judicial and administrative procedures essential to

due process of law are carried out. Penologists and

medical experts agree that the process of carrying

out a verdict of death is often so degrading and

brutalizing to the human spirit is constitutes

psychological torture.

Lackey v. Texas, 514 U.S. n*.

Justice Breyer has continued to observe a lengthy stay

on death row is a serious issue, subject to an Eighth

Amendment review. See Elledge v. Florida, 525 U.S. 944

(1998); Valle v. Florida, 132 S.Ct. 1 (2011). Mr. Long

sought an evidentiary hearing on this claim. Mr. Long

intended to testify about his years on death row and

specific effect that has had on him physically and mentally

in order to establish this claim. Both the trial court and

the Florida Supreme Court foreclosed Mr. Long’s due process

37

rights in denying him this opportunity.

The Florida Supreme Court denied Mr. Long’s claim,

citing to Gore v. State, 91 So.3d 769 (Fla.2012). The

citation to Gore is not a sufficient basis to deny relief.

In Gore the trial court summarily denied Gore’s claim that

the length of time he spent on death row violated the

Eighth Amendment. It does not appear from the opinion that

Gore actually requested an evidentiary hearing as Mr. Long

did. In his argument to the Florida Supreme Court Mr. Long

specifically argued it was error to deny him the

opportunity to develop his claim at an evidentiary hearing.

The Florida Supreme Court did not address Mr. Long’s claim

his due process rights were violated when he was deprived

of the opportunity to present evidence to establish an as –

applied claim. Once again, the Florida Supreme Court has

sidestepped Mr. Long’s due process rights in his efforts to

demonstrate his execution should be barred under the Eighth

Amendment.

The Eighth Amendment requires that the “sanctions

imposed cannot be so totally without penological

justification that it results in the gratuitous infliction

of suffering.” Gregg v. Georgia, 428 U.S. 153, 183 (1976).

38

Long terms of punishment on death row, such as that

endured by Mr. Long, become a separate form of punishment,

which is the equivalent to or greater than the actual

execution. See Coleman v. Balkom, 451 U.S. 949, 952 (1981)

The two primary societal purposes for the death penalty,

retribution and deterrence, are not met here. Lackey v.

Texas, 514 U.S.1045 (1995).

Mr. Long did not forfeit his Eighth Amendment rights

by the exercise of other constitutional rights by pursing

appellate and collateral relief. See Valle, 132 S.Ct. at

2(“One cannot realistically expect a defendant condemned to

death to refrain from fighting for his life by seeking to

use whatever procedure the law allows.”) As just Breyer

noted in his dissent in Glossip, the “problem of

reliability and unfairness [with the current spatial

punishment laws) almost inevitably lead to a third

independent constitutional problem: excessively long

periods of time that individuals typically spend on death

row, alive but under sentence of death.” Glossip v. Gross,

135 S.Ct. 2726, 2764-69 (2015). Mr. Long should not be

required to choose among his constitutional rights

Mr. Long has been on death row long enough to see the

Courts declare the death penalty statute he was sentenced

39

under unconstitutional. The intervening thirty plus years

has significantly diminished a legitimate state interest in

seeing him put to death sufficient to render his execution

a violation of the Eighth Amendment.

CONCLUSION

Petitioner respectfully requests this Honorable Court

grant this petition for writ of certiorari to review the

decision of the Supreme Court of Florida affirming the

denial of petitioner’s request for stay of execution and

third successive motion for postconviction relief.

Respectfully submitted,

_______________________

ROBERT A. NORGARD

Attorney at Law

P.O. Box 811

Bartow, FL 33831

Fla. Bar No. 322059

(863)533-8556

Fax (863)533-1334

norgardlaw@verizon.net

MEMBER OF THE BAR OF THE

UNITED STATES SUPREME COURT

40

CASE NO.:_____________

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2019

BOBBY JOE LONG

Petitioner,

v.

STATE OF FLORIDA

Respondent.

CERTIFICATE OF SERVICE

I, ROBERT A. NORGARD, a member of the Bar of this

Court, hereby certify that on this 20th day of May, 2019,

one copy of the Petition for Writ of Certiorari, one copy

of the Motion for Leave to Proceed In Forma Pauperis, and

one copy of the Petitioner’s Affidavit in support of this

Motion were mailed and e-mailed to Assistant Attorney

General, Concourse Center 4, 3507 E. Frontage Road, Suite

200, Tampa, FL 33607, capapp@myflorialegal.com counsel for

respondent. I further certify that all parties required to

be served have been served.

/S/ ROBERT A. NORGARD

ROBERT A. NORGARD

Attorney at Law

P.O. Box 811

Bartow, FL 33831

863-533-8556

Fla. Bar No. 322059

Counsel for Petitioner