Mark James Asay v. State of Florida
224 So. 3d 695
| Fla. | 2017Background
- Mark James Asay was convicted of two counts of first‑degree murder and received two death sentences after jury recommendations of 9–3; convictions affirmed and certiorari denied in 1991.
- After multiple postconviction and habeas proceedings over decades, Asay obtained several successive filings; a 2016 death warrant was issued and his execution dates were rescheduled several times.
- After Hurst v. Florida (2016), Asay filed additional postconviction motions and habeas petitions challenging (inter alia) retroactivity, the scheduling/rescheduling procedures, denial of public records, and Florida’s new lethal‑injection protocol (which uses etomidate as the first drug).
- The circuit court summarily denied Asay’s third successive Rule 3.851 motion and denied discovery requests; it held an evidentiary hearing on the lethal‑injection claim and found Asay failed to meet the Glossip/Baze standard.
- This appeal challenges: due‑process arguments about rescheduling and procedural rulings (including public‑records denials and continuance/witness rulings); Eighth Amendment challenge to the etomidate‑containing protocol; constitutionality/procedural effect of section 922.06; and claims seeking retroactive application of Hurst/Hurst‑related statutory changes.
Issues
| Issue | Plaintiff's Argument (Asay) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Due process / rescheduling & related procedural claims | Rescheduling of execution and attendant conduct (including AG/Governor communications), denial of public records, denial of continuance and witness access, and denial of stay deprived him of due process | Actions comported with statute and procedure; many matters not cognizable under Rule 3.851; continuance and witness exclusions were within trial court discretion and statutory protections | Claims not cognizable or without merit; circuit court correctly summarily denied them and did not abuse discretion on continuance/witness rulings |
| Public records (Rule 3.852) | DOC and FDLE withheld records (e.g., manufacturer identity, communications) necessary to evaluate lethal‑injection protocol and other claims; denial prevented meaningful challenge | Requests were overbroad/fishing or not tied to a colorable claim; where relevant records existed record refuted Asay’s contentions | Court held Asay failed to show entitlement to relief tied to the requested records; summary denial proper as to many requests, though dissent urged broader disclosure |
| Eighth Amendment – lethal‑injection protocol (etomidate in three‑drug protocol) | Use of etomidate poses substantial and imminent risk of severe pain (venous pain, myoclonus); State’s protocol untested on humans; alternatives (one‑drug protocols) available and safer | Expert evidence and practice show etomidate produces rapid hypnosis with mostly transient adverse effects; Asay failed to show ‘sure or very likely’ risk or a feasible, available alternative | After evidentiary hearing, substantial competent evidence supported denial: Asay failed to meet Glossip/Baze burden (no demonstrated substantial and imminent risk and no practicable safer alternative) |
| Section 922.06 challenge (warrant/certification process) | §922.06 lets AG obtain unfair advantage in rescheduling after stays and undermines due process / statutory protections | Statute governs procedure for carrying out death sentences and does not grant inmates a right to collateral challenge to warrant timing; prior decisions reject such claims | Claim not cognizable under Rule 3.851 and previously rejected; summary denial affirmed |
| Habeas / retroactivity of Hurst and unanimity (Eighth Amendment) | Post‑Hurst statutory revisions (including unanimity requirement) and Hurst v. State should apply retroactively to render Asay’s 9–3 recommendation constitutionally unreliable | This Court has held Hurst and its state‑law interpretation not retroactive to defendants whose sentences were final when Ring was decided; uniform precedent controls | Court denied habeas relief: retroactive application of Hurst/Hurst‑related statutes not warranted for Asay; petition denied |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (2008) (plurality setting framework for Eighth Amendment method‑of‑execution challenges)
- Glossip v. Gross, 576 U.S. 863 (2015) (condemned prisoner must show substantial and imminent risk of severe pain and identify a known, available, less‑risky alternative)
- Ring v. Arizona, 536 U.S. 584 (2002) (Sixth Amendment requires jury, not judge, to find facts increasing penalty to death)
- Asay v. State, 580 So.2d 610 (Fla. 1991) (direct appeal affirming convictions and sentences)
- Asay v. State, 210 So.3d 1 (Fla. 2016) (denying postconviction relief after Hurst and addressing retroactivity)
- Muhammad v. State, 132 So.3d 176 (Fla. 2013) (addressing lethal‑injection protocol and discovery from DOC)
- Valle v. State, 70 So.3d 525 (Fla. 2011) (ordering disclosure of manufacturer correspondence for Eighth Amendment challenges)