November 5, 2009.
Lower Tribunal No(s). 80-341-CFA.
Askari Abdullah Muhammad f/k/a Thomas Knight, a prisoner under sentence of death, appeals the circuit court's summary denial of his successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Seeart. V, § 3(b)(1), Fla. Const. After this Court affirmed Muhammad's capital conviction and sentence on direct appeal in Muhammad v. State, 494 So. 2d 969 (Fla. 1986), cert. denied, 479 U.S. 1101 (1987), he unsuccessfully sought postconviction relief in state court. On appeal from the initial postconviction motion, this Court affirmed on all but one of the claims. Muhammad v. State, 603 So. 2d 488, 489 (Fla. 1992). We remanded for an evidentiary hearing on a claim that evidence was suppressed in violation of Brady v. Maryland, 373 U.S. 83 (1963). On remand, the trial court vacated the death sentence and denied other requested relief. Both Muhammad and the State appealed. This Court affirmed denial of relief as to Muhammad's conviction but reversed the trial court's decision to vacate the death sentence. See State v. Knight, 866 So. 2d 1195 (Fla. 2003). Muhammad's petition for writ of habeas corpus filed in this Court alleging ineffective assistance of appellate counsel was also denied. Id. at 1210. In 2005, Muhammad filed a petition for writ of habeas corpus in federal court, which resulted in a denial of relief in Muhammad v. McDonough, No. 3:05-CV-62-J-32, 2008 WL 818812 (M.D. Fla. Mar. 26, 2008). The Eleventh Circuit then denied Muhammad's application for a certificate of appealability in Muhammad v. Sec'y, Dept. of Corr., 554 F.3d 949, 954 (11th Cir. 2009), petition for cert. filed, No. 08-13495 (U.S. July 13, 2009).
In the present case, Muhammad appeals the trial court's summary denial of his challenge to the constitutionality of Florida's current lethal injection protocol. Muhammad contends that because the current lethal injection procedures, which were revised effective August 1, 2007, do not provide for a medical determination of consciousness, the procedures pose a substantial risk of unnecessary pain and are therefore unconstitutional under the Eighth Amendment to the United States Constitution and article I, § 17, of the Florida Constitution. He further contends that he should have been granted an evidentiary hearing to present testimony concerning the need for a medical evaluation of consciousness prior to administration of the lethal chemicals to eliminate that risk. In this regard, he sought to present the testimony of former Department of Corrections attorney Sara Dyehouse concerning several 2006 memoranda she prepared concerning revisions to the lethal injection protocol; the testimony of former Department of Corrections Secretary James R. McDonough regarding the Dyehouse memoranda; the testimony of reporter Gretl Plessinger concerning the Dyehouse memoranda; and the testimony of Dr. David Varlotta, an anesthesiologist who served on the Governor's Commission on Administration of Lethal Injection created after the Angel Diaz execution, which occurred in 2006. We have previously rejected this claim made on the same grounds. See Tompkins v. State, 994 So. 2d 1072, 1080 (Fla. 2008) (affirming summary denial of postconviction challenge to lethal injection procedures where Tompkins sought to present: "(1) testimony from Sara Dyehouse concerning the memorandum she wrote in 2006 on the revisions to the lethal injection protocol; (2) testimony from DOC Secretary McDonough regarding the Dyehouse memorandum; (3) testimony from Gretl Plessinger concerning the Dyehouse memorandum; and (4) testimony from Dr. David Varlotta, an anesthesiologist who was a member of the Governor's Commission on Administration of Lethal Injection ("the Commission') that was created after the Diaz execution to investigate and make recommendations to the Governor"), cert. denied, 129 S. Ct. 1305 (2009); see also Power v. State, 992 So. 2d 218, 220 (Fla. 2008) (rejecting argument that the administration of drugs, the assessment of consciousness and the monitoring of consciousness through the procedure remain inadequate). We have also rejected a claim similar to Muhammad's that he is entitled to an evidentiary hearing because he was not a party to the Lightbourne hearings. See Marek v. State, 8 So. 3d 1123, 1130 (Fla. 2009). We reject that same claim here.
The Florida Constitution's prohibition against "cruel or unusual punishment" "shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution." Art. I, § 17, Fla. Const.
The Court has also repeatedly rejected Eighth Amendment challenges to Florida's August 2007 revised lethal injection protocol. See, e.g., Ventura v. State, 2 So. 3d 194, 198 (Fla.) ("We have repeatedly and consistently rejected Eighth Amendment challenges to Florida's current lethal-injection protocol." (footnote omitted)), cert. denied, 129 S. Ct. 2839 (2009); Henyard v. State, 992 So. 2d 120, 130 (Fla.) ("[W]e have specifically rejected the argument that Florida's current lethal injection protocol carries a "substantial, foreseeable, or unnecessary risk of pain.'"), cert. denied, 129 S. Ct. 28 (2008); Lebron v. State, 982 So. 2d 649, 666 (Fla. 2008) (rejecting claim that lethal injection as currently performed in Florida constitutes cruel and unusual punishment); Lightbourne v. McCollum, 969 So. 2d 326, 334, 353 (Fla. 2007) (rejecting constitutional challenge to revised lethal injection protocol after evidentiary hearing, including claim that Dyehouse memoranda prove "inadequacy of procedures in assessing consciousness" and rejecting argument that the lethal injection protocol carries a substantial, foreseeable, or unnecessary risk of pain), cert. denied, 128 S. Ct. 2485 (2008); and Schwab v. State, 969 So. 2d 318, 324 (Fla. 2007) (rejecting challenge to lethal injection procedures on several grounds including that the procedures are unconstitutional because they do not provide for a medical assessment of consciousness), cert. denied, 128 S. Ct. 2486 (2008).
Therefore, based on the foregoing, we affirm the order of the circuit court summarily denying Muhammad's successive postconviction motion.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.