Opinion
No. SC08-192.
January 29, 2009.
Lower Tribunal No(s). 87-CF-2014.
Daniel Burns, Jr., a prisoner under sentence of death, appeals the circuit court's denial of his successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)( 1), Fla. Const. After this Court affirmed Burns' conviction on direct appeal, see Burns v. State, 609 So. 2d 600 (Fla. 1992), and affirmed his resentencing, see Burns v. State, 699 So. 2d 646 (Fla. 1997), Burns unsuccessfully sought postconviction relief in this Court. See Burns v. State, 944 So. 2d 234 (Fla. 2006) (affirming the circuit court's denial of Burns' rule 3.850 motion).
Burns' current appeal represents a broad attack on the constitutionality of Florida's lethal injection system and, to a lesser extent, the inability of postconviction counsel to mount such attacks. Specifically, Burns argues that: (1) newly discovered evidence, namely the circumstances surrounding the execution of Angel Diaz and the August 2007 Department of Corrections lethal injection protocols, proves that execution by lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishment; (2) section 945.10, Florida Statutes (2006), which exempts information about an executioner's identity from public disclosure, is unconstitutional; and (3) section 27.702, Florida Statutes (2006), which prohibits postconviction counsel from filing a civil rights claim under 42 U.S.C. § 1983 (2000), violates his rights to due process and equal protection.
We recently rejected virtually identical arguments as those Burns makes under claims two and three. See Ventura v. State, No. SC08-60 (Fla. Jan. 29, 2009) (rejecting claims as to sections 945.10 and 27.702 and also rejecting challenges to the lethal injection protocols); Henyard v. State, Nos. SC08-222, SC08-1544, SC08-1653, 2008 WL 4148992, at *6-8 (Fla. Sept. 10, 2008) (same); see also Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007); Schwab v. State, 969 So. 2d 318 (Fla. 2007); Diaz v. State, 945 So. 2d 1136 (Fla. 2006); Bryan v. State, 753 So. 2d 1244 (Fla. 2000); State ex rel. Butterworth v. Kenny, 714 So. 2d 404 (Fla. 1998). Accordingly, we affirm the postconviction court's summary denial of claims two and three.
We also affirm the postconviction court's summary denial of claim one. Under claim one, Burns asserts numerous alleged deficiencies in Florida's lethal injection protocols, including claims that the protocols fail to require that the execution team have appropriate training and credentials; fail to require adequate record-keeping and an adequate review and certification process; and fail to require a proper execution facility and method. We rejected in Lightbourne several claims identical to those Burns now makes. See Lightbourne, 969 So. 2d 326; see also Tompkins v. State, 994 So. 2d 1072 (Fla. 2008) (rejecting lethal injection claims and citing other lethal injection cases). We find that the remainder of Burns' claims that were not duplicated in Lightbourne were properly summarily denied under the analogous and comprehensive analysis we undertook in Lightbourne. "A claim that the protocol can be improved and the potential risks of error reduced can always be made." Lightbourne, 969 So. 2d at 351. However, "this Court's role is not to micromanage the executive branch in fulfilling its own duties relating to executions." Id. Further, Burns' alleged deficiencies do not "overcome the presumption of deference [this Court] give[s] to the executive in fulfilling its obligations," id. at 352; they do not establish "cruelty inherent in the method of execution," id.; and they do not demonstrate "a substantial, foreseeable[,] or unnecessary risk of pain," id. at 353. Accordingly, the circuit court properly summarily denied relief on these claims, and the order denying relief is hereby affirmed.
It is so ordered.
WELLS, PARIENTE, LEWIS, CANADY and POLSTON, JJ., and ANSTEAD, Senior Justice, concur. QUINCE, C.J., recused.