CASE NOS.

13-10608/13A1255

IN THE UNITED STATES SUPREME COURT


JOHN RUTHELL HENRY,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.


ON PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SUPREME COURT


RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

EXECUTION SCHEDULED
JUNE 18, 2014




PAMELA JO BONDI
ATTORNEY GENERAL
Tallahassee, Florida

*CANDANCE M. SABELLA
Chief Assistant Attorney General
Florida Bar No. 0445071
candance.sabella@myfloridalegal.com
CAROL M. DITTMAR
Senior Assistant Attorney General
Florida Bar No. 0503843
carol.dittmar@myfloridalegal.com
Office of the Attorney General
Concourse Center 4
3507 East Frontage Road, Suite 200
Tampa, Florida 33607
Telephone: (813) 287-7910
Facsimile: (813) 281-5501
*Counsel of Record for Respondent

i
QUESTIONS PRESENTED FOR REVIEW
[Capital Case]

Whether this Court has jurisdiction to grant
certiorari to review the Florida Supreme Court’s
rejection of Petitioner’s challenge to his eligibility
for execution based upon Hall v. Florida, 134 S. Ct.
1986 (2014) where petitioner never raised a Ford v.
Wainwright claim and affirmatively relied on the
findings of the panel he now challenges in support of
his claim?


Whether this Court has jurisdiction to review a
decision of the Florida Supreme Court on a question of
the retroactive application of Hall v. Florida, when
that decision applied Hall to the facts of this case
without any consideration of retroactivity?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW................................. i
TABLE OF CONTENTS............................................. ii
TABLE OF CITATIONS........................................... iii
CITATION TO OPINION BELOW...................................... 1
STATEMENT OF THE CASE AND FACTS................................ 1
REASONS FOR DENYING THE WRIT.................................. 14
I. ......................................................... 14
This Court does not have jurisdiction to grant certiorari
to review the Florida Supreme Court’s rejection of
Petitioner’s challenge to his eligibility for execution
based upon Hall v. Florida, 134 S. Ct. 1986 (2014) where
petitioner never raised a Ford v. Wainwright claim and
affirmatively relied on the findings of the panel. ......... 14
II ......................................................... 29
This Court does not have jurisdiction to review a decision
of the Florida Supreme Court on a question of the
retroactive application of Hall v. Florida, when that
decision applied Hall to the facts of this case without any
consideration of retroactivity. ............................ 29
DENIAL OF STAY OF EXECUTION................................... 30
CONCLUSION.................................................... 33
CERTIFICATE OF SERVICE........................................ 34
APPENDIX.................................................. A1-A29
iii
TABLE OF CITATIONS
Federal Cases
Atkins v. Virginia,
536 U.S. 304 (2002) .............................. 7, 26, 27, 28
Barefoot v. Estelle,
463 U.S. 880 (1983) ......................................... 30
Bowersox v. Williams,
517 U.S. 345 (1996) ......................................... 30
Coleman v. Thompson,
501 U.S. 722 (1991) ......................................... 30
Delo v. Stokes,
495 U.S. 320 (1990) ......................................... 30
District Attorney’s Office for the Third
Judicial District v. Osborne,
___ U.S. ___, 129 S. Ct. 2308 (2009) .................... 20, 21
Ford v. Wainwright,
477 U.S. 399 (1986) ..................................... passim
Hall v. Florida,
134 S. Ct. 1986 (2014) .................................. passim
Henry v. Secretary, Dept. of Corrections,
490 F.3d 835 (11th Cir. 2007) ................................ 3
Hill v. McDonough,
547 U.S. 573 (2006) ......................................... 31
Illinois v. Gates,
462 U.S. 213 (1983) .................................. 1, 15, 29
In Re John Ruthell Henry,
Case No. 14-12623 (11th Cir. June 17, 2014) .................. 7
Rockford Life Ins. Co. v. Illinois Dep’t of Revenue,
482 U.S. 182 (1987) ......................................... 22
Street v. New York,
394 U.S. 576 (1969) .................................. 1, 15, 29
Townsend v. Sain,
372 U.S. 293 (1963) ..................................... 16, 17
Webb v. Webb,
451 U.S. 493 (1981) .................................. 1, 15, 29

iv
State Cases
Ferguson v. State,
112 So. 3d 1154 (Fla. 2012) ................................. 18
Gore v. State,
120 So. 3d 554 (Fla. 2013) .................................. 18
Henry v. State,
2014 WL 2609114 (Fla. June 12, 2014) .............. 1, 7, 24, 25
Henry v. State,
574 So. 2d 73 (Fla. 1991) .................................... 2
Henry v. State,
649 So. 2d 1366 (Fla. 1994),
cert. denied, 515 U.S. 1148 (1995) ........................... 2
Henry v. State,
862 So. 2d 679 (Fla. 2003) ................................... 2
Quince v. State,
2012 WL 6197458 (Fla. 2012),
cert. denied, 2014 WL 2440792 ............................... 26
Other Authorities
§ 922.07, Fla. Stat............................................ 3
28 U.S.C. § 2254............................................... 2
28 U.S.C. §1257................................................ 1
42 U.S.C. §1983............................................... 20
American Psychiatric Association: Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition. Arlington, VA,
American Psychiatric Association, 2013 ...................... 22
Fla. R. Crim. P. 3.203......................................... 4
Fla. R. Crim. P. 3.811..................................... 4, 17
Fla. R. Crim. P. 3.812................................. 4, 17, 18
Sup. Ct. R. 10................................................ 22





1
CITATION TO OPINION BELOW
The decision of which Petitioner seeks discretionary review
is reported at Henry v. State, 2014 WL 2609114 (Fla. June 12,
2014).
STATEMENT OF JURISDICTION
The Petition cites 28 U.S.C. §1257 as the basis of
jurisdiction in this case. That provision governs this Court’s
jurisdiction over final judgments rendered by the highest court
of a State where a federal constitutional right is at issue.
However, this Court’s jurisdiction is limited to only those
federal constitutional issues which were actually presented to,
and considered by, the state court below. Illinois v. Gates, 462
U.S. 213, 217-19 (1983); Webb v. Webb, 451 U.S. 493, 496-97
(1981); Street v. New York, 394 U.S. 576, 581-82 (1969) As will
be addressed more fully in the argument section of this brief,
this Court does not have jurisdiction over the questions
presented in this petition because it was not asserted in his
appellate brief to the court below, which is attached hereto as
Appendix A.
STATEMENT OF THE CASE AND FACTS
Defendant, John Henry, is a Florida inmate under a death
sentence imposed October 18, 1991. His execution is scheduled
for June 18, 2014 at 6:00 p.m.
2
Trial and Direct Appeal Proceedings
The Grand Jury for the Sixth Judicial Circuit, in and for
Pasco County, Florida, indicted Defendant, John Ruthell Henry,
for Murder in the First Degree on January 16, 1986. (DAR1
V8/1253-1254; DAR2 V7/867-868) Defendant was convicted and
sentenced to death. The Florida Supreme Court overturned his
conviction and remanded the case for a new trial. See Henry v.
State, 574 So. 2d 73 (Fla. 1991). Henry’s conviction and
sentence of death after retrial was affirmed by the Florida
Supreme Court. Henry v. State, 649 So. 2d 1366 (Fla. 1994),
cert. denied, 515 U.S. 1148, 115 S.Ct. 2591 (1995).
Postconviction Proceedings
Henry then sought postconviction relief asserting
ineffective assistance of counsel for failing to present more
mitigating evidence concerning Henry’s mental illnesses through
lay witnesses and expert testimony in both guilt and innocence
phases. Postconviction relief was denied after an evidentiary
hearing and was affirmed by the Florida Supreme Court. Henry v.
State, 862 So. 2d 679 (Fla. 2003).
Federal Habeas Proceedings
Defendant filed suit under 28 U.S.C. § 2254 in the United
State Middle District Court of Appeals on March 29, 2004. The
district court denied relief on May 24, 2006. Defendant appealed
3
the decision as to his claims on counsel’s performance during
the penalty phase. Defendant sought reversal because trial
counsel failed to call two mental health experts, Drs. Afield
and Berland, who could have presented additional mitigating
evidence to the jury and countered the State’s expert testimony.
The Eleventh Circuit denied relief. Henry v. Secretary, Dept. of
Corrections, 490 F.3d 835, 838 (11th Cir. 2007).
Upon the conclusion of this litigation, Governor Rick Scott
signed a death warrant on May 2, 2014, denying clemency and
setting Henry’s execution for June 18, 2014 at 6:00 p.m.
Counsel sought and obtained a stay from the Governor on May
12, 2014 pursuant to Florida Statute 922.07. (Supp 2R. 114-16)
The Governor then created a Commission, appointing Drs. Werner,
Taylor and Myers, who evaluated Henry on Friday, May 16, 2014.
The stay was dissolved after the Commission completed its
examination of Henry and concluded that Henry has the mental
capacity to understand the nature of the death penalty and the
reasons why it was imposed on him. (Supp. 2R. 113) In conducting
the evaluation, the doctors also considered Henry’s prior IQ
score of 78 and concluded, based on their clinical interview,
review of records, and interviews with two correctional
officers, that with reasonable medical certainty Henry does not
suffer from any DSM-5 psychiatric illness or intellectual
4
disability (formerly referred to as mental retardation). (Supp.
2R. 113Henry did not seek review of that finding in state court
under Florida Rule of Criminal Procedure 3.811 and 3.812.
Rather, following this Court’s decision in Hall v. Florida,
134 S. Ct. 1986 (2014), Henry then raised a claim under Florida
Rule of Criminal Procedure 3.203, asserting for the first time
that he cannot be executed because he is intellectually
disabled, and requesting the appointment of experts to determine
his mental functioning. (Supp. R. 140-50) Without response from
the State, the lower court summarily denied the motion as
untimely. The court also noted that it was possibly without
jurisdiction. (Supp. R. 151-52). Henry appealed to the Florida
Supreme Court. After briefing, the court denied relief on the
merits nearly a week ago, on June 12, 2014. The court concluded
that Henry was not entitled to any relief because he had not
demonstrated a facially sufficient claim of intellectual
disability:
Beyond Henry’s assertion of a single test score, he
has not alleged any deficits in adaptive functioning
or onset prior to age 18. Indeed, having examined the
record in this cause, we agree with the State that not
one doctor over all the years of litigation has ever
opined that Henry was mentally retarded or
intellectually disabled. Moreover, three doctors
recently evaluated Henry to determine his competency
under section 922.07 and concluded as follows:

Mr. Henry was fully oriented and his memory and
concentration were intact. His clinical
5
presentation during the evaluation was consistent
with intellectual functioning at or above what
would be predicted based on his prior IQ test
result of 78 (7th percentile). For instance, he
was able to discuss the legal process accurately
in reasonable depth. Moreover, he correctly
serially subtracted seven from 100 on four of
five steps (100-93-79-73-56).

Mr. Henry was administered the Mini-Mental State
Examination-2, a neuropsychiatric test used to
assess for cognitive impairment. It covers the
areas of orientation, attention, calculation
ability, recall (recent memory), naming,
repetition, comprehension, reading, writing, and
visual-spatial skills. Mr. Henry scored a 25/30
(T score-51; 54th percentile), in the average
range per age group and educational level norms.
The nature and effect of the death penalty and
why it is to be imposed on him was discussed with
Mr. Henry. He communicated that he had been tried
for and convicted of first degree murder and his
sentence was the death penalty. Additionally, he
noted that his victims were his wife and stepson.
He provided the general facts surrounding their
deaths. In his words, the execution is carried
out by “lethal injection,” “a shot,” and is to
occur on June 18th at 6:00 p.m.

In summary, based on our clinical interview,
review of records, and interviews with two
correctional officers, it is our opinion with
reasonable medical certainty that: (1) Mr. Henry
does not suffer from any DSM-5 psychiatric
illness or intellectual disability (formerly
referred to as mental retardation in DSM-IV), and
(2) understands the nature and effect of the
death penalty and why it is to be imposed on him.

Letter from Dr. Wade C. Myers, M.D., Dr. Donald
Taylor, M.D., and Tonia Werner, M.D., to Rick Scott,
Governor of Florida (dated May 16, 2014) (Henry mental
competency determination). Although this evaluation
was for mental competency—not intellectual disability—
the observations and conclusions further support our
6
determination that Henry has not established any facts
that would entitle him to relief under Hall.

Finally, we consider that, rather than showing
deficits in adaptive functioning, the record
demonstrates the opposite. As the State points out in
its Answer Brief, the record demonstrates that Henry
engaged in typical, adult activities. Henry was able
to drive a car, develop personal relationships,
participate in financial transactions, discuss adult
concepts, and engage in goal-directed behavior. In
addition, his pro se pleadings and his oral advocacy
further refute any claim that he has concurrent
deficits in adaptive functioning or onset before age
18. They demonstrate Henry’s effective communication
skills, both oral and written, and his understanding
of the law. Answer Brief at 24. In its Answer Brief,
at 9-10, the State provides an example of Henry’s pro
se advocacy at his first trial, when he moved for
appointment of new counsel, as follows:

MR. HENRY: Good morning. Yeah, I would like to
bring it to the Court’s attention that as of this
moment I feel I am not properly being represented
and I wish to ask the Court to remove Mr. Focht
from being my attorney and I would like to be, if
it’s possible, to be recommended to another
attorney because I feel that there’s things
that’s not being brought to the Court’s attention
concerning me that he’s not bringing up, going
into details concerning witnesses in my behalf.
Some of the witnesses have not brought forward
that I felt that would have came forward if it
had been brought to their attention.

Also, there’s things that haven’t been brought up
that I have requested my attorney to bring up
that he have failed to bring up and I feel that,
also, in this case, that it being partiality
shown towards the victim. My main concern is that
myself and Mr. Focht, the things that I have
requested of him to bring up and he just haven’t.
And I just feel like I’m not being properly
represented.

7
In light of the foregoing, we affirm the
dismissal of Henry’s claim on the basis that Henry has
not demonstrated a facially sufficient claim of
intellectual disability.

Henry, 2014 WL 2609114.
Henry then filed an Emergency Motion For Leave To File
Second Or Successive Petition For Writ Of Habeas Corpus And
Request For Stay Of Execution in the Eleventh Circuit Court of
Appeals. That court also denied relief, finding that Henry could
not satisfy the statutory standard for filing a successive
petition since Hall did not recognize a new constitutional right
which was retroactive; that any claim of intellectual disability
would have been available at the time of Henry’s initial
petition, which was filed well after Atkins v. Virginia, 536
U.S. 304 (2002), had been decided; and that Henry did not
demonstrate any likelihood of success on the merits because the
record affirmatively refuted any intellectual disability such as
would preclude execution under the Eighth Amendment. In Re John
Ruthell Henry, Case No. 14-12623 (11th Cir. June 17, 2014).
Petitioner then filed the instant petition seeking review
of the Florida Supreme Court’s denial of his claim.
Relevant to the issue before this Court, the files and
records from Henry’s first and second trials and his post-
conviction proceedings show that Henry has been examined by
numerous mental health professionals, including Doctors Fesler,
8
Afield, Berland, Sprehe and Mosman, as well as the Commission
doctors, Doctors Werner, Taylor and Myers. Psychologist Dr.
Robert Berland, however, is the only one who has performed an IQ
test. He evaluated John Henry in October of 1986 and
administered the Minnesota Multiphasic Personality Inventory
(“MMPI”); the Wechsler Adult Intelligence Scale (“WAIS”); the
Bender-Gestalt; and the Rorschach or “ink blot” test. Dr.
Berland’s report reflects that Henry’s IQ was 78 based on the
1986 WAIS test. (PCR V3/424-30)
Dr. Berland also testified at Henry’s first trial in Pasco
County. (DAR1 V6/875-934) He described the defendant as having
anti-social problems and psychotic thinking, but noted he was
capable of recognizing and producing conventional thinking.
(DAR1 V6/887-88) He found no clear support for brain damage. Dr.
Berland confirmed his finding of a 78 IQ score which he noted
was in the middle of the 70-85 range. He also noted that the
range for intellectual disability was 70 or below. (DAR1 V6/889)
He said that Henry possibly suffered from schizo-affective
disorder or bi-polar disorder. (DAR1 V6/892)
Dr. Walter Afield, a specialist in neurology and
psychiatry, relied upon this testing in his evaluation of the
defendant. He first examined John Henry in December of 1986.
(DAR1 V6/987) Dr. Afield testified that Henry had a very serious
9
and severe drug and alcohol addiction, and had deteriorated. His
diagnosis was chronic paranoia and drug and alcohol abuse. (DAR1
V6/940-47) Dr. Afield noted that records which showed Henry had
a very low IQ, “almost in a retarded kind of area” reinforced
his opinion. (DAR1 V6/948)
Dr. James Fesler examined Henry in 1987 after being court
appointed to do a sanity evaluation. In his report he describes
Henry as having probably low intelligence, but with a clear
understanding of the charges and possible consequences. (PCR
V3/437-440) He also testified at trial. (DAR1 V5/770-93; DAR2
V6/715-34) During the second penalty phase he told the jury that
Henry gave a pretty good representative history of the events of
December 22nd and 23rd of 1985. Henry was alert, pleasant to
talk to, maintained his composure throughout the interview, and
gave very clear, relevant answers to questions. (DAR2 V6/719)
Henry told Dr. Fesler that there had been some preceding history
between he and his wife; they had separated two weeks
previously. Henry said he intended to go over that day to talk
to her about some Christmas gifts for his stepson or her son. He
told the doctor that in the course of going over there, he had
stopped in an area that he was familiar with, that in the area
had bought some crack cocaine, and had smoked some of it. He
said he borrowed a car from a friend to drive to her house. Dr.
10
Fesler asked him how he was feeling on the way over there. He
said he was, basically, feeling okay. “He didn’t feel like he
was in any —— messed up in the mind at the time.” He stated that
he arrived there and began to talk to Suzanne, but, according to
Henry, she became upset and angry and was questioning him about
involvement with a girlfriend she felt that he had. He said she
became more angry and asked him to leave. He was not initially
in the mood to leave. He said she got a knife from somewhere in
the house and started to come towards him with the knife. He
said that she had tried to get him with the knife and he
received some small cuts. Henry told the doctor that he got the
knife away, lost control and just starting stabbing her. (DAR2
V6/720-21)
Henry also provided Fesler with his history. Henry reported
beginning drinking around age ten. He also claimed that he
started hearing voices occasionally around age fifteen. Dr.
Fesler noted these times usually coincided with heavy drug or
alcohol use. (DAR2 V6/728)
Dr. Daniel Sprehe also was appointed to determine
competency and sanity. He issued a report in 1987 which was
introduced during the postconviction proceedings. He found Henry
was able to appreciate the nature, consequences and wrongfulness
of his actions at the time of the murder of Suzanne Henry. He
11
found Henry suffered from long-standing anti-social personality
and drug abuse syndrome. (DAR2 V6/437-440) Sprehe also testified
that in his opinion, Henry was competent at that time, suffering
from no psychotic illness and able to proceed with trial. (DAR2
V6/739-40) He did not find any evidence that Henry was
schizophrenic. (DAR2 V6/741)
Rosa Mae and Stephanie Thomas testified for the defense
that the defendant lived with them at the time of Suzanne
Henry’s murder. (DAR2 V6/749-73) Rosa had gone to school with
him and dated him when she was a teenager. (DAR2 V6/758) He
moved in with her about six months prior to Suzanne Henry’s
death on December 22nd of 1985. (DAR2 V6/759) Rosa described
incidents where John Henry would threaten to call the police on
Suzanne if she would not leave his house; that he did not want
her anymore. She said Henry was a good provider; he made sure
everything was done around the house and they had a good
relationship. (DAR2 V6/762) Her daughter, Stephanie described
him as always being very nice to her and her brother; that he
always went out of his way to get them whatever they wanted.
(DAR2 V6/752) Both Rosa and Stephanie testified that Henry
worked at a glass company in Zephyrhills. (DAR2 V6/756, 768)
Rosa also testified that Henry sold jewelry to get money to buy
drugs. (DAR1 V6/861)
12
Rosa had also testified during the guilt phase that after
committing the murders of Suzanne and Eugene Henry, John Henry
came to her house. He told her he needed to go stay at a motel
and to get him some extra clothes. (DAR1 V4/568-69; DAR2 V4/452)
When they got to the motel, Henry paid for the room; they went
in, Rosa took a nap and when she woke up Henry had taken a
shower and changed out of the clothes he had been wearing at the
time of the murder. (DAR2 V4/453-54)
Another childhood friend of Henry’s, Nathan Giles,
testified that he saw Henry on the day of the murder. Henry
offered to give him a ride in exchange for payment. After Giles
paid him, Henry bought drugs with the money, then borrowed a car
to give him a ride. (DAR1 V6/843-45)
Dr. Bill Mosman testified at the post conviction hearing on
behalf of the defense. He noted that the defendant should have
qualified for the age mitigator because his ability to
understand, analyze, make judgments, process, was equal to a 13-
year, 11 month old child because he had an IQ of 78. (PCR V6/
1025)
Henry’s trial counsel, Richard A. Howard, Circuit Judge in
and for the Fifth Judicial Circuit, testified that at the time
he undertook representation of Henry he had available to him all
of the files and records from Henry’s first trials. (PCR
13
V6/1064) He was aware that a number of mental-health
professionals, both psychiatric and psychological, had examined
Henry. He had their reports, depositions and trial testimony. He
also had conversations on the phone with some of them. (PCR
V6/1065) He was aware that this evidence had been presented in
both the Hillsborough and prior Pasco trials and that the jury
recommended death in both cases. (PCR V6/1066) He was also aware
of Henry’s childhood and developmental years. (PCR V6/1066) He
also disagreed with Dr. Mosman’s assessment that Henry
functioned at the level of a 13-14 year-old. He was able to
discuss adult concepts with Henry. (PCR V6/1097)
The record also shows that Henry has repeatedly complained
to the court, orally and by writing letters and filing pro se
pleadings complaining about his various lawyers throughout his
litigation. (e.g. DAR1 V6/873-874, DAR2 V7/872-874, 981-82;
Supp. 2R. 126)
Any additional facts necessary for consideration of this
petition will be discussed in the argument, infra.
14
REASONS FOR DENYING THE WRIT
I.
This Court does not have jurisdiction to grant
certiorari to review the Florida Supreme Court’s
rejection of Petitioner’s challenge to his eligibility
for execution based upon Hall v. Florida, 134 S. Ct.
1986 (2014) where petitioner never raised a Ford v.
Wainwright claim and affirmatively relied on the
findings of the panel.
Petitioner seeks this Court’s review of the Florida Supreme
Court opinion affirming the denial of a successive motion for
postconviction relief filed after his death warrant was signed.
After twenty–eight years of litigating numerous issues related
to his purported mental illnesses, Henry for the first time
asserted a claim that he is intellectually disabled so as to
preclude execution under the Eighth Amendment. He based his
claim on this Court’s recent decision in Hall v. Florida, ___
U.S. ___, 134 S. Ct. 1986 (2014), and his performance in 1987 on
the Wechsler Adult Intelligence Scale (WAIS) that demonstrated
that he had an IQ of 78. The Florida Supreme Court rejected
Henry’s intellectual disability claim, specifically finding that
Henry’s claim was facially insufficient and refuted by the
record.
Henry now claims that the Florida Supreme Court’s
determination that the files and records refuted his claims
violated this Court’s decision in Ford v. Wainwright, 477 U.S.
399, 409–10 (1986), by relying upon findings of the Florida
15
Governor’s commission when it had not been subjected to
judiciary review.
Before this Court can consider whether certiorari
jurisdiction should be exercised in this case, it must determine
whether any jurisdiction exists. This Court does not have
jurisdiction to review constitutional issues which were not
fairly presented to and considered by the lower court. Illinois
v. Gates, 462 U.S. 213, 217-19 (1983; Webb v. Webb, 451 U.S.
493, 496-97 (1981); Street v. New York, 394 U.S. 576, 581-82
(1969. A review of the appellate brief filed by Henry below
(attached hereto as Appendix A) reveals that his current claims
were not asserted to the Florida Supreme Court, and therefore
this Court lacks jurisdiction to consider the questions
presented in the Petition. In fact, in his initial brief to the
Florida Supreme Court, he affirmatively urged the Court to
consider the contents of the commission report. (IB at 12, 15,
19)
Because the Questions Presented in the Petition were not
presented to the Florida Supreme Court below, this Court does
not have jurisdiction to consider the constitutional issues
asserted. Accordingly, this Court must deny the Petition for
Writ of Certiorari filed herein.
16
Even if there were no jurisdictional hurdles for petitioner
to overcome, the petition does not compel certiorari review.
Henry’s extensive reliance on Ford v. Wainwright, 477 U.S. 399
(1986), is misplaced. In that case, this Court considered the
adequacy of the procedures offered under Florida law for
determining a prisoner’s competency to be executed. At that
time, Florida provided for a competency evaluation by a panel of
psychiatrists appointed by the Governor, but there was no avenue
of judicial review available. In Ford, this Court affirmatively
recognized that the Eighth Amendment prohibits execution of the
insane. Ford, 477 U.S. at 409.
However, Ford did not consider or address whether Florida’s
procedures for protecting the insane from execution were
constitutionally adequate. The relevant issue in Ford, which
arose in the context of a denial of habeas corpus relief, was
whether the federal district court could deny the opportunity
for evidentiary development on a claim that Ford’s insanity
precluded execution. The criticisms of Florida’s procedures
noted in Henry’s petition (pp. 19-20) were not constitutional
deficiencies, but were deficiencies which precluded reliance on
the State of Florida’s determination of sanity in opposing
Ford’s habeas insanity claim. In Townsend v. Sain, 372 U.S. 293
(1963), this Court outlined the requirements for obtaining an
17
evidentiary hearing in a federal habeas proceeding, and Ford
considered no more than whether Florida’s procedures for
determination of sanity at the time of execution satisfied the
Townsend standard for habeas factfinding. This Court concluded
that Florida’s limited procedure, where the executive branch
exclusively considered the issue without any input from the
prisoner or counsel and without any judicial review, was
inadequate to insure the necessary factfinding and, accordingly,
Ford was entitled to an evidentiary hearing in federal district
court on his habeas claim. This conclusion did not rely on any
constitutional provision and does not support Henry’s current
claim that Florida’s procedures for the determination of
insanity or intellectual disability are constitutionally
inadequate.
In response to Ford, Florida adopted new procedures
affording a judicial proceeding to subject the Governor’s
commission to adversarial testing to ensure reliability of the
result. In Florida once the Governor of Florida, has determined
the prisoner is sane to be executed, counsel for the prisoner
may move for a stay of execution and a hearing based on the
prisoner’s insanity to be executed pursuant to Fla. R. Crim. P.
Rule 3.811. A hearing on the motion is provided for by Fla. R.
Crim. P. Rule 3.812. The hearing on the prisoner’s insanity to
18
be executed is not be a review of the Governor’s determination,
but, rather, is a de novo proceeding where the court may also
appoint no more than 3 disinterested mental health experts to
examine the prisoner with respect to the criteria for insanity
to be executed and to report their findings and conclusions to
the court. Fla. R. Crim. P. Rule 3.812. The court may also admit
such evidence as the court deems relevant to the issues,
including but not limited to the reports of expert witnesses.
The court is not be strictly bound by the rules of evidence in
making this determination. Fla. R. Crim. P. Rule 3.812. The
findings of the circuit court are then subject to appellate
review. See e.g. Gore v. State, 120 So. 3d 554 (Fla. 2013)
(competent, substantial evidence exited to support the circuit
court’s determination that prisoner was sane to be executed.);
Ferguson v. State, 112 So. 3d 1154 (Fla. 2012) (evidence was
sufficient to support circuit court’s finding that defendant
understood connection between his crime and punishment he was to
receive for it, and defendant was not deprived of full and fair
hearing on issue of whether he was sane to be executed.)
Petitioner Henry did not avail himself of that opportunity.
Instead he raised a claim of intellectual disability. As
previously noted, in support of his argument, he relied upon the
findings in the Governor’s commission report in urging the
19
Florida Supreme Court to find him intellectually disabled.
Additionally, by virtue of a joint stipulation between counsel
for Petitioner and the State of Florida, that report was made a
part of the record on appeal. The Florida Supreme Court promptly
sealed the report directing that unless “otherwise ordered by
the Court, these record portions shall remain sealed in the
Clerk’s office, except when in use by the Court, and may only be
reviewed by the parties or their attorneys.” (attached as
Appendix B)
Upon denying relief, the Florida Supreme Court, thoroughly
analyzed all of the facts contained in the files and records,
which included not only the commission report but the reports of
all the doctors
1
who had evaluated Henry through the years, the
testimony of witnesses who knew him and had observed him
throughout his life and Henry’s own actions throughout the
course of his lengthy life. The fact that the Florida Supreme
Court provided judicial review of this issue distinguishes this
case from Ford and demonstrates that the state courts did not
violate due process in the rejection of Henry’s claim.
In addition, this Court has acknowledged that very little
process is actually due in collateral challenges to state

1
Robert Berland, Ph.D., James Fesler, M.D., Daniel Sprehe, M.D.,
Walter E. Afield, M.D., William Mosman, Ph.D., Wade C. Myers,
M.D., Donald Taylor, M.D. and Tonia Werner, M.D.
20
criminal proceedings. Contrary to Henry’s claim that due process
or the Eighth Amendment requires that the states provide
unrestricted evidentiary development of a claim of intellectual
disability prior to an execution, this Court has repeatedly
declined to impose such procedural requirements in state
collateral criminal proceedings. In District Attorney’s Office
for the Third Judicial District v. Osborne, 557 U.S. 52 (2009),
this Court addressed the requirements of due process in the
context of a civil rights action filed under 42 U.S.C. §1983
with regard to a request for DNA testing by a state inmate. In
Osborne, this Court specifically considered whether Alaska’s
procedures for postconviction relief violated Osborne’s federal
right to due process of law. In reversing the Ninth Circuit
Court of Appeals’ finding that Osborne’s rights had been
violated by the state court procedures, this Court outlined the
appropriate considerations and analysis:
A criminal defendant proved guilty after a fair
trial does not have the same liberty interests as a
free man. At trial, the defendant is presumed innocent
and may demand that the government prove its case
beyond reasonable doubt. But “[o]nce a defendant has
been afforded a fair trial and convicted of the
offense for which he was charged, the presumption of
innocence disappears.” Herrera v. Collins, 506 U.S.
390, 399, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
“Given a valid conviction, the criminal defendant has
been constitutionally deprived of his liberty.”
Dumschat, supra, at 464, 101 S.Ct. 2460 (internal
quotation marks and alterations omitted).

21
The State accordingly has more flexibility in
deciding what procedures are needed in the context of
postconviction relief. “[W]hen a State chooses to
offer help to those seeking relief from convictions,”
due process does not “dictat[e] the exact form such
assistance must assume.” Pennsylvania v. Finley, 481
U.S. 551, 559, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).
Osborne’s right to due process is not parallel to a
trial right, but rather must be analyzed in light of
the fact that he has already been found guilty at a
fair trial, and has only a limited interest in
postconviction relief. Brady is the wrong framework.

Instead, the question is whether consideration of
Osborne’s claim within the framework of the State’s
procedures for postconviction relief “offends some
principle of justice so rooted in the traditions and
conscience of our people as to be ranked as
fundamental,” or “transgresses any recognized
principle of fundamental fairness in operation.”
Medina v. California, 505 U.S. 437, 446, 448, 112
S.Ct. 2572, 120 L.Ed.2d 353 (1992) (internal quotation
marks omitted); see Herrera, supra, at 407-408, 113
S.Ct. 853 (applying Medina to postconviction relief
for actual innocence); Finley, supra, at 556, 107
S.Ct. 1990 (postconviction relief procedures are
constitutional if they “compor[t] with fundamental
fairness”). Federal courts may upset a State’s
postconviction relief procedures only if they are
fundamentally inadequate to vindicate the substantive
rights provided.

Osborne, 557 U.S. at 68-69.
Accordingly, this Court rejected Osborne’s plea to “take
the development of rules and procedures in this area out of the
hands of legislatures and state courts shaping policy in a
focused manner and turn it over to federal courts applying the
broad parameters of the Due Process Clause.” Osborne, 557 U.S.
at 56. Similarly, there is no basis in this case to analyze
22
whether Florida’s procedures for challenging intellectual
disability, which Henry did not seek to invoke until the eve of
his execution, satisfy due process.
This case involves neither conflict nor unsettled federal
law. See Supreme Court Rule 10. Henry’s claim of conflict with
Ford is meritless, as the only Eighth Amendment principle
involved in Ford is the recognition that a state cannot execute
an insane prisoner. Although the failure to meet the
considerations set forth in Rule 10 is not controlling, this
Court has noted that cases which have not divided the federal or
state courts or presented important, unsettled questions of
federal law do not usually merit certiorari review. Rockford
Life Ins. Co. v. Illinois Dep’t of Revenue, 482 U.S. 182, 184
n.3 (1987).
There is no support for Henry’s contention that this
document could not be relied upon when in fact, Henry himself
urged it and there is nothing about the report that is
unreliable. The three psychiatrists, Drs. Werner, Myers and
Taylor, who were appointed by Governor Rick Scott to assess
Henry’s competency for execution, interviewed Henry after
extensively reviewing his records. The experts expressly
considered whether Henry met the standard for intellectual
disability as defined by the Diagnostic and Statistical Manual
23
of Mental Disorders [DSM-5], an authority noted with approval in
Hall, 134 S. Ct. at 1990. They observed that his clinical
presentation during the evaluation was consistent with
intellectual functioning at or above what would be predicted
based on his prior IQ test result of 78 and that he was able to
discuss the legal process accurately in reasonable depth. The
doctors administered the Mini-Mental State Examination-2, a
neuropsychiatric test used to assess for cognitive impairment
which covers the areas of orientation, attention, calculation
ability, recall, naming, repetition, comprehension, reading,
writing, and visual-spatial skills. Henry scored in the average
range per age group and educational level norms. (Supp. 2R. 111-
13)
The Commission report expressly notes that the doctors
considered and rejected the possibility of an intellectual
disability by applying the definition of intellectual disability
set forth in the DSM-5, a definition clearly meeting the Hall
standard. Thus, it has already been determined that Henry is not
intellectually disabled so as to preclude execution under the
Eighth Amendment to the United States Constitution. Moreover,
the report refutes Henry’s claim that no evaluation has been
done beyond reliance solely on a raw IQ score as the Commission
clearly considered all of the DSM-5 criteria.
24
However, even if the court could not consider the latest
findings of the commission, the record before the court was
replete with other compelling evidence that it considered in
rejecting the claim. Additionally, the Florida Supreme Court
properly identified the requirements of establishing an
intellectual disability claim as, “significantly subaverage
general intellectual functioning, existing concurrently with
deficits in adaptive behavior and manifested during the period
from conception to age 18.” Henry v. State, 2014 WL 2609114
(Fla. June 12, 2014). The court then found that beyond “Henry’s
assertion of a single test score, he has not alleged any
deficits in adaptive functioning or onset prior to age 18” and
that “Henry has not established any facts that would entitle him
to relief under Hall.” Henry, 2014 WL 2609114.
The Florida Supreme Court then noted that, “rather than
showing deficits in adaptive functioning, the record
demonstrates the opposite. The court found that the record
demonstrates that “Henry engaged in typical, adult activities.
Henry was able to drive a car, develop personal relationships,
participate in financial transactions, discuss adult concepts,
and engage in goal-directed behavior. In addition, his pro se
pleadings and his oral advocacy further refute any claim that he
has concurrent deficits in adaptive functioning or onset before
25
age 18. They demonstrate Henry’s effective communication skills,
both oral and written, and his understanding of the law.” Id. An
example of Henry’s pro se advocacy at his first trial was then
quoted at length:
MR. HENRY: Good morning. Yeah, I would like to
bring it to the Court’s attention that as of this
moment I feel I am not properly being represented
and I wish to ask the Court to remove Mr. Focht
from being my attorney and I would like to be, if
it’s possible, to be recommended to another
attorney because I feel that there’s things
that’s not being brought to the Court’s attention
concerning me that he’s not bringing up, going
into details concerning witnesses in my behalf.
Some of the witnesses have not brought forward
that I felt that would have came forward if it
had been brought to their attention.

Also, there’s things that haven’t been brought up
that I have requested my attorney to bring up
that he have failed to bring up and I feel that,
also, in this case, that it being partiality
shown towards the victim. My main concern is that
myself and Mr. Focht, the things that I have
requested of him to bring up and he just haven’t.
And I just feel like I’m not being properly
represented.

Henry, 2014 WL 2609114.
As the state court recognized, out of all the doctors who
have evaluated Henry through the years, none have diagnosed him
as intellectually disabled and counsel does not allege that such
a diagnosis exists.
Even following Hall’s instruction to adjust the lowest IQ
score to reflect a possible measurement error, Henry
26
acknowledged that his lowest score remained above 70. This
establishes that his intellect functions above the level
necessary for a finding of intellectual disability that
precludes execution under Atkins. In Hall, this Court considered
a case where the SEM-adjusted score was 66, so the Hall opinion
does not speak directly to the situation in Henry’s case, where
the SEM-adjusted score is no lower than 73.
2
In fact, this Court
expressly observes that jurisdictions where a rigid cutoff score
of 75 had been adopted were not at issue, and weighed those
jurisdictions as contrary to Florida’s rule in concluding that
Florida’s cutoff of 70 violated evolving societal standards. See
Hall, 134 S. Ct. at 1996. Indeed, even after the issuance of
Hall, this Court declined review of a petition where the
defendant could not show that even an adjusted score reached
within the range adopted by the DSM-IV. Quince v. State, 2012 WL
6197458, *1 (Fla. 2012), cert. denied, 2014 WL 2440792. (“The
three IQ tests taken by Quince-each the current version of the
Wechsler Adult Intelligence Scale when administered-produced

2
In his dissenting opinion in Hall v. Florida, 134 S. Ct. 1986,
2010 (2014, (Alito, J., dissenting,) Justice Alito noted that:
SEMs, however, vary by IQ test and test-taker, and
there is no reason to assume a SEM of 5 points;
indeed, it appears that the SEM is generally
“estimated to be three to five points” for well-
standardized IQ tests. AAMR 10th ed.57. And we know
that the SEM for Hall’s most recent IQ test was 2.16—
less than half of this Court’s estimate of 5.
27
scores of 79 on his 1980 test, 77 on his 1984 test, and 79 on
his 2006 test.”).
Hall acknowledges that a finding of intellectual disability
to satisfy the Atkins bar to execution includes consideration of
both intellectual functioning and adaptive functioning. Hall
credits the established medical practice of considering IQ score
as a range rather than a fixed number, but never suggests that
even when the undisputed IQ range is above the level necessary
under the first prong of Florida’s definition of intellectual
disability that more severe deficits in adaptive functioning can
somehow magically lower the IQ range to be within the standard
for deficient intellectual functioning. See Hall, 134 S. Ct. at
1995-96; and Alito, J., dissenting opinion at 2003 (“This Court
holds that if this range includes an IQ of 70 or below (the
accepted level for intellectual disability), the defendant must
be permitted to produce other evidence of intellectual
disability in addition to IQ scores.”) Justice Alito is
referring to a range as adjusted by the SEM, and Henry’s SEM-
adjusted range is, at most, 73 to 83, and does not require an
adaptive functioning assessment under Hall. His current argument
to commingle the intellectual and adaptive functioning aspects
of an intellectual disability diagnosis is not supported by any
language or discussion in the Hall opinion.
28
In addition to Dr. Berland’s score of 78, the evidence in
this case demonstrates that Henry has adequate adaptive
functioning. Henry lived a typical adult life, able to drive a
car, (DAR1 V5/797) maintain employment, (DAR2 V6/756, 768)
develop personal relationships, participate in financial
transactions, (DAR2 V6/762) and engage in goal directed
behavior. His communication skills are demonstrated by the
cogent arguments in his numerous pro se attempts to have counsel
replaced and new counsel substituted. (DAR1 V6/873-874; DAR2
V7/872-874, 981-82) His actions do not reflect the necessary
adaptive impairments to support a finding of intellectual
disability as required by Atkins. To the contrary, Henry’s
history reflects the types of activities frequently cited in
finding adequate adaptive functioning to defeat a claim of
intellectual disability.
Accordingly, Henry’s petition for writ of certiorari must
be denied.
29
II
This Court does not have jurisdiction to review a
decision of the Florida Supreme Court on a question of
the retroactive application of Hall v. Florida, when
that decision applied Hall to the facts of this case
without any consideration of retroactivity.
Relying on the decision of the Eleventh Circuit Court of
Appeals denying his request to file a successive habeas
petition, while acknowledging that the Florida Supreme Court
clearly applied the holding in Hall in evaluating whether he was
entitled to relief, Henry urges that an important federal
question is presented that should be settled by this Court.
Henry’s problem is that the question is not presented in an
opinion that is properly before this Court. This Court’s
jurisdiction is limited to only those federal constitutional
issues which were actually presented to, and considered by, the
state court below. Illinois v. Gates, 462 U.S. 213, 217-19
(1983); Webb v. Webb, 451 U.S. 493, 496-97 (1981); Street v. New
York, 394 U.S. 576, 581-82 (1969). As Henry acknowledges the
Florida Supreme Court applied Hall and did not consider the
issue of retroactivity, this Court is clearly without
jurisdiction. The inclusion of this issue is merely an attempt
by counsel of obtaining review of a non-appealable order.
Further, as explained previously, the Florida Supreme Court
clearly applied Hall and found within the dictates of that
30
decision that Henry was not intellectually disabled. Thus, even
if this Court were to conclude that Hall was subject to
retroactive application, it would not change the conclusion of
the Florida Supreme Court that Henry was not intellectually
disabled. Since the grant of certiorari and review of this case
will not alter the outcome of this case, this Court should
decline review. See Coleman v. Thompson, 501 U.S. 722, 730
(1991) (“When this Court reviews a state court decision on
direct review pursuant to 28 U.S.C. § 1257, it is reviewing the
judgment; if resolution of a federal question cannot affect the
judgment, there is nothing for the Court to do.”) The petition
should be denied.
DENIAL OF STAY OF EXECUTION
There is no reason to grant a stay of execution.

Henry asks this Court to grant him a stay of execution.
However, there is no reason to do so. This Court has stated that
to obtain a stay a petitioner must show there are substantial
grounds for relief to be granted. See Delo v. Stokes, 495 U.S.
320, 321 (1990); Barefoot v. Estelle, 463 U.S. 880, 895 (1983);
Bowersox v. Williams, 517 U.S. 345 (1996). As argued above,
there is no reason for this Court to grant certiorari. As such,
the request for a stay should be denied.
31
Moreover, this Court has stated in Hill v. McDonough, 547
U.S. 573, 583-84 (2006), that:
a stay of execution is an equitable remedy. It is not
available as a matter of right, and equity must be
sensitive to the State’s strong interest in enforcing
its criminal judgments without undue interference from
the federal courts.

* * * *

A court considering a stay must also apply “a strong
equitable presumption against the grant of a stay
where a claim could have been brought at such a time
as to allow consideration of the merits without
requiring entry of a stay.”

Here, this principle applies to this petition. Henry waited
to file his claim of intellectual disability until after his
death warrant was signed. Henry then raised the claim in state
court, but then waited six days following the Florida Supreme
Court opinion and now seeks review on the day of his scheduled
execution to raise to claims that were not addressed by the
state court. As such, Henry’s dilatory actions should preclude a
stay under Hill.
“[E]quity must be sensitive to the State’s strong interest
in enforcing its criminal judgments without undue interference
from the federal courts.” Hill, 547 U.S. at 584. Here, the
State’s strong interest in the timely enforcement of a sentence
is not outweighed by the unlikely possibility that Henry’s
petition for certiorari will be granted by this Court. The
32
equities in this case tilt decidedly against Henry in favor of
the State and the victims’ family members. Accordingly, the
State respectfully requests that this Court deny the instant
application for a stay of execution.
33
CONCLUSION
Based on the foregoing, Respondent respectfully requests
that this Honorable Court DENY the petition for writ of
certiorari and request for stay.

Respectfully submitted,

PAMELA JO BONDI
ATTORNEY GENERAL
Tallahassee, Florida

/s/ Candance M. Sabella
*CANDANCE M. SABELLA
Chief Assistant Attorney General
Florida Bar No. 0445071
candance.sabella@myfloridalegal.co
capapp@myfloridalegal.com
CAROL M. DITTMAR
Senior Assistant Attorney General
Florida Bar No. 0503843
carol.dittmar@myfloridalegal.com
capapp@myfloridalegal.com
Office of the Attorney General
Concourse Center 4
3507 East Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813) 287-7910
Facsimile: (813) 281-5501
*Counsel of Record of Respondent
34
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished electronically to Baya Harrison
III, Esquire, P.O. Box 102, Monticello, Florida 32345-0102
(bayalaw@aol.com); Manuel Garcia, Assistant State Attorney,
38053 Live Oak Ave., Dade City, Florida 33525-3881
(mgarcia@co.pinellas.fl.us); Damien Kraebel, Assistant State
Attorney, P.O. Box 5028, Clearwater, Florida 33538-5028
(dkraebel@co.pinellas.fl.us); and to the Florida Supreme Court
at warrant@flcourts.org, on this 12th day of June 2014.

/s/ Candance M. Sabella
COUNSEL FOR RESPONDENT

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