Supreme Court of Florida
No. SC2026-1465
WILLIAM LEE THOMPSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
No. SC2026-1466
WILLIAM LEE THOMPSON,
Petitioner,
vs.
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent.
October 8, 2026
PER CURIAM.
William Lee Thompson, a prisoner under sentence of death for
whom a death warrant has been signed and an execution scheduled for October 13, 2026, 1 appeals the circuit court’s order summarily
denying his successive motion for postconviction relief filed under
Florida Rule of Criminal Procedure 3.851. Thompson also moves
for a stay of execution and petitions this Court for a writ of habeas
corpus. We have jurisdiction. See art. V, §§ 3(b)(1), (9), Fla. Const.
For the reasons that follow, we affirm the denial of postconviction
relief and deny the petition for a writ of habeas corpus and motion
for a stay of execution.
I. BACKGROUND
Thompson was sentenced to death for the first-degree murder
of Sally Ivester in 1976. This Court has recounted the facts of the
case as follows:
Thompson, Rocco Surace, Barbara Savage, and the
victim Sally Ivester were staying in a motel room. The
1. On September 17, 2026, Governor DeSantis issued an executive order in which he appointed a commission under section 922.07, Florida Statutes (2026), of three psychiatrists to “examine [Thompson] to determine whether he understands the nature and effect of the death penalty and why it is to be imposed upon him” and ordered the execution “scheduled for October 13, 2026 at 6:00 p.m. . . . temporarily stayed pending receipt of the Commission’s report.” Fla. Exec. Order No. 26-192, at §§ B, E (Sep. 17, 2026). The executive order has “temporarily stayed” Thompson’s execution pending the completion of the process contemplated by section 922.07. Id. at § E.
-2-girls were instructed to contact their homes to obtain
money. The victim received only $25 after telling the
others that she thought she could get $200 or $300.
Both men became furious. Surace ordered the victim
into the bedroom, where he took off his chain belt and
began hitting her in the face. Surace then forced her to
undress, after which . . . Thompson began to strike her
with the chain. Both men continued to beat and torture
the victim. They rammed a chair leg into the victim’s
vagina, tearing the inner wall and causing internal
bleeding. They repeated the process with a night stick.
The victim was tortured with lit cigarettes and lighters,
and was forced to eat her sanitary napkin and lick spilt
beer off the floor. This was followed by further severe
beatings with the chain, club, and chair leg. The
beatings were interrupted only when the victim was
taken to a phone booth, where she was instructed to call
her mother and request additional funds. After the call,
the men resumed battering the victim in the motel room.
The victim died as a result of internal bleeding and
multiple injuries.
Thompson v. State, 389 So. 2d 197, 198 (Fla. 1980).
Thompson pleaded guilty to first-degree murder, kidnapping,
and involuntary sexual battery, and the trial court imposed the
death sentence. Thompson v. State, 351 So. 2d 701, 701 (Fla.
1977). This Court reversed and remanded to allow Thompson to
withdraw his guilty plea. Id. On remand in 1978, Thompson again
pleaded guilty and was again sentenced to death for the murder.
Thompson, 389 So. 2d at 199. We affirmed Thompson’s convictions
and sentences in 1980. Id. at 198.
-3-In 1987, during litigation under Thompson’s second death
warrant, we reversed a denial of postconviction relief and remanded
for resentencing after concluding that Thompson’s penalty phase
jury was instructed to consider only statutory mitigating
circumstances, in violation of Lockett v. Ohio, 438 U.S. 586 (1978),
and Hitchcock v. Dugger, 481 U.S. 393 (1987). Thompson v. Dugger,
515 So. 2d 173, 175-76 (Fla. 1987). On remand, the trial court
again sentenced Thompson to death in 1989, 2 and we affirmed.
Thompson v. State, 619 So. 2d 261, 264, 267 (Fla. 1993). His death
sentence became final in 1993 when the U.S. Supreme Court
denied certiorari review. Thompson v. Florida, 510 U.S. 966 (1993);
see Fla. R. Crim. P. 3.851(d)(1)(B) (“For the purposes of this rule, a
judgment is final . . . on the disposition of the petition for writ of
2. The trial court found four aggravating factors proven beyond a reasonable doubt: (1) the crime was committed while Thompson was engaged in the commission of the crime of sexual battery; (2) the crime was committed for financial gain; (3) the crime was especially heinous, atrocious, or cruel; and (4) the crime was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. Thompson v. State, 619 So. 2d 261, 264 (Fla. 1993). Each of the proposed mitigating circumstances was rejected. Id. On appeal, we struck the cold, calculated, and premeditated aggravator but found the error harmless. Id. at 266.
-4-certiorari by the United States Supreme Court, if filed.”).
In the decades since, Thompson has unsuccessfully
challenged his convictions and sentences in state and federal
courts. See, e.g., Thompson v. State, 759 So. 2d 650 (Fla. 2000)
(affirming denial of initial motion for postconviction relief after the
1989 resentencing and denying habeas relief); Thompson v. Sec’y for
the Dep’t of Corrs., 517 F.3d 1279 (11th Cir. 2008) (affirming denial
of federal habeas petition); Thompson v. State, 3 So. 3d 1237 (Fla.
2009) (reversing denial of Thompson’s intellectual disability claim
and remanding to the trial court for an evidentiary hearing);
Thompson v. State, 41 So. 3d 219 (Fla. 2010) (affirming denial of
Thompson’s intellectual disability claim); Thompson v. State, 94 So.
3d 499 (Fla. 2012) (affirming denial of Thompson’s successive
motion for postconviction relief); Thompson v. State, 261 So. 3d
1255 (Fla. 2019) (affirming denial of claim that Thompson’s death
sentence violated Hurst v. Florida, 577 U.S. 92 (2016)); Thompson v.
State, 341 So. 3d 303 (Fla. 2022) (affirming denial of Thompson’s
successive intellectual disability claim, holding Hall v. Florida, 572
U.S. 701 (2014), does not apply retroactively after Phillips v. State,
-5-299 So. 3d 1013 (Fla. 2020)). We discuss the history of his
intellectual disability claim below.
After Governor Ron DeSantis signed Thompson’s death
warrant on September 11, 2026, Thompson filed a successive
motion for postconviction relief under rule 3.851, raising two
claims: (1) he was unconstitutionally denied access to the clemency
process; and (2) his execution by lethal injection will constitute
cruel and unusual punishment in violation of the Eighth
Amendment. The circuit court summarily denied both claims. This
appeal followed.
II. ANALYSIS
A. Postconviction Appeal
We review the summary denial of a rule 3.851 motion de novo.
Kocaker v. State, 311 So. 3d 814, 821 (Fla. 2020).
1. Claim That Thompson Was Denied Access to the
Clemency Process
Thompson first argues that the circuit court erred in
summarily denying his claim that he was arbitrarily and
unconstitutionally denied any access to Florida’s clemency process.
Thompson received a clemency proceeding in 1982, but the death
-6-sentence then in effect was vacated in 1987, and a new death
sentence was imposed on resentencing in 1989. Thompson
contends that he was not afforded the minimal due process
required in clemency proceedings because he received no new
clemency proceeding related to the 1989 sentence the State now
seeks to carry out. His argument thus rests on the premise that
due process entitles him to a clemency proceeding tied to the
particular sentence the State seeks to carry out. Because our
precedent does not support that premise, we affirm the circuit
court’s denial of relief.
Clemency in Florida rests in the unfettered discretion of the
Governor. Art. IV, § 8(a), Fla. Const.; Gore v. State, 91 So. 3d 769,
779-80 (Fla. 2012); Fla. R. Exec. Clem. 4 (“The Governor has the
unfettered discretion to deny clemency at any time, for any
reason.”). No specific procedures are mandated in clemency
proceedings, Zakrzewski v. State, 415 So. 3d 203, 211 (Fla.), cert.
denied, 146 S. Ct. 57 (2025), and the Due Process Clause imposes
only minimal procedural safeguards on executive clemency
proceedings, Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289
(1998) (O’Connor, J., concurring in part and concurring in the
-7-judgment); see Barwick v. Governor of Fla., 66 F.4th 896, 902 (11th
Cir. 2023) (explaining that Justice O’Connor’s concurrence
“provides the holding in Woodard”). “Judicial intervention might,
for example, be warranted in the face of a scheme whereby a state
official flipped a coin to determine whether to grant clemency, or in
a case where the State arbitrarily denied a prisoner any access to
its clemency process.” Woodard, 523 U.S. at 289 (O’Connor, J.,
concurring in part and concurring in the judgment). Thompson
invokes the latter example in asserting his due process claim.
Although the record does not establish that a new or updated
clemency proceeding occurred after Thompson’s 1989 resentencing,
it reflects that Governor DeSantis considered clemency before
denying it in 2026. On September 11, 2026, the Office of Executive
Clemency issued a letter informing Thompson’s counsel that “[a]fter
a review of the clemency investigation material provided by the
Florida Commission on Offender Review in accordance with the
Rules of Executive Clemency, the Governor . . . denied clemency
for . . . Thompson.” And the death warrant reflects that “executive
clemency for [Thompson], as authorized by Article IV, Section 8(a),
of the Florida Constitution, was considered pursuant to the Rules of
-8-Executive Clemency, and it has been determined that executive
clemency is not appropriate.” That Thompson was unaware of any
clemency consideration before the Governor’s decision does not
establish that none occurred. And it is not this Court’s prerogative
to “second-guess the application of this exclusive executive
function.” Bundy v. State, 497 So. 2d 1209, 1211 (Fla. 1986).
But even accepting Thompson’s contention that he received no
clemency proceeding after 1982, his claim fails. Bundy is
instructive. In that case, while under a death warrant for the
murder of Kimberly Leach, who disappeared from Lake City and
whose body was found in Suwannee County,3 Bundy argued that
he must be allowed time to prepare and present an application for
executive clemency before his execution for Leach’s murder.
Bundy, 497 So. 2d at 1211. This Court disagreed. Id.
First, the Court relied on the Governor’s attestation in the
death warrant that “it has been determined that Executive
Clemency, as authorized by Article IV, Section 8(a), Florida
Constitution, is not appropriate.” Id. Recognizing that the
3. Bundy v. State, 471 So. 2d 9, 11 (Fla. 1985).
-9-separation of powers requires the judiciary to exercise extreme
caution when analyzing questions involving executive clemency, the
Court declined to “second-guess the application of this exclusive
executive function.” Id.
Second, because the Governor and Cabinet held an earlier
clemency hearing in relation to Bundy’s separate convictions and
death sentences for the murders of two women in Tallahassee and
found no basis on which to grant relief, this Court said it would not
require the executive branch “to go through the motions of holding
a second proceeding when it could well have properly determined in
the first that appellant was not and never would be a likely
candidate for executive clemency.” Id. Thus, although Bundy had
received no clemency proceeding concerning the Leach conviction
and death sentence for which he was then under warrant, this
Court declined to require another clemency proceeding specifically
concerning the Leach case.
Bundy therefore defeats the premise on which Thompson’s
claim depends—that a prior clemency proceeding cannot suffice
unless it is tied to the particular sentence that is to be carried out.
Indeed, the clemency proceeding this Court treated as sufficient in
- 10 -Bundy concerned different convictions and death sentences
imposed in a separate case in another county. Accordingly, even if
no clemency proceeding was held specifically in connection with
Thompson’s 1989 death sentence, that circumstance would not
establish that he was “arbitrarily denied . . . any access” to Florida’s
clemency process within the meaning of Woodard. We therefore
affirm the denial of this claim.
2. Claim That Thompson’s Execution Will Violate
the Eighth Amendment
Thompson next challenges the denial of his claim that
Florida’s lethal injection protocol as applied to him will constitute
cruel and unusual punishment in violation of the Eighth
Amendment. To prevail on a method of execution claim, a
defendant must satisfy the two-prong Baze-Glossip 4 test: “(1)
establish that the method of execution presents a substantial and
imminent risk that is sure or very likely to cause serious illness and
needless suffering and (2) identify a known and available alternative
method of execution that entails a significantly less severe risk of
4. Baze v. Rees, 553 U.S. 35 (2008).
- 11 -pain.” Asay v. State, 224 So. 3d 695, 701 (Fla. 2017) (citing Glossip
v. Gross, 576 U.S. 863, 877 (2015)).
In support of the first prong, Thompson alleged that his
physical condition 5 will cause him to experience excruciating pain
while being transferred to and restrained on the execution gurney;
that difficulties obtaining venous access and the measures taken to
overcome them will cause severe pain beyond that necessary to
carry out his execution; and that Florida’s three-drug protocol will
cause him to experience severe air hunger until his death. He
contended that these circumstances present a substantial and
imminent risk that is sure or very likely to cause serious illness and
needless suffering. The circuit court rejected Thompson’s
arguments concerning the first prong as untimely, procedurally
barred, and meritless.
5. Thompson alleged that he suffers from many medical conditions, including congestive heart failure, chronic kidney disease, severe fatty liver disease, pulmonary emboli, pneumonia, anemia, generalized edema, and severe malnutrition. He also described two broken ribs, a stage-four pressure ulcer near his tailbone, recent colostomy and ileostomy surgery with seventeen staples remaining in his abdomen, and a head laceration closed with three staples. He also alleged that he cannot ambulate and requires complete assistance to stand and transfer into or out of bed.
- 12 -In support of the second prong of the Baze-Glossip test,
Thompson proposed a firing squad as an alternative method of
execution. A proposed alternative method of execution must be
“feasible, readily implemented, and in fact significantly reduce[] a
substantial risk of severe pain.” Tanzi v. State, 407 So. 3d 385, 393
(Fla.) (alteration in original) (quoting Glossip, 576 U.S. at 877), cert.
denied, 145 S. Ct. 1914 (2025). The circuit court determined that
Thompson had not shown that a firing squad would significantly
reduce the substantial risk of severe pain as applied to him.
On appeal, Thompson argues that the circuit court erred in
concluding that he failed to satisfy the first prong of the BazeGlossip test. But he did not challenge the circuit court’s
independent determination that he failed to satisfy the second
prong until his reply brief. Because “[a]n issue may not be raised
for the first time in a reply brief,” that argument is barred. Johnson
v. State, 135 So. 3d 1002, 1029 n.11 (Fla. 2014) (“[T]his argument
was not raised in the initial brief filed here. Accordingly, the claim
is barred.” (citing Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011))).
Because the circuit court’s determination that Thompson failed to
satisfy the alternative-method prong independently supports its
- 13 -denial of this claim, we affirm without addressing his remaining
arguments.
B. Habeas Petition
In his habeas petition, Thompson contends that his execution
will violate the Eighth Amendment because he is intellectually
disabled. Although Thompson has alleged for decades that he has
intellectual limitations, he argues that he has never had a fair
opportunity to show that he is exempt from execution due to
intellectual disability because he never received the benefit of Hall.
Thompson first raised his alleged intellectual disability as a
bar to his execution in the wake of the enactment of section
921.137, Florida Statutes (2001)—prohibiting the imposition of a
death sentence upon intellectually disabled persons—and Atkins v.
Virginia, 536 U.S. 304 (2002)—holding that the Eighth Amendment
prohibits execution of the intellectually disabled. To establish
intellectual disability as a bar to execution, a defendant must
demonstrate (1) significantly subaverage general intellectual
functioning; (2) concurrent deficits in adaptive behavior; and (3)
manifestation of the condition before age eighteen. § 921.137(1),
Fla. Stat. (2001).
- 14 -In 2009, an evidentiary hearing was held on Thompson’s
intellectual disability claim. The circuit court denied the claim,
finding that “[h]is IQ not only exceeds 70, but evidence suggests
strongly his actual IQ could be in the 80’s. He does not have
deficits in adaptive functioning and has failed to prove onset before
the age of 18.” Thompson, 41 So. 3d at 219 (quoting State v.
Thompson, No. F76-3350B, Order Denying Motion for
Postconviction Relief at 14 (Fla. 11th Cir. Ct. May 21, 2009)). This
Court affirmed, concluding that competent, substantial evidence
supported the circuit court’s factual findings that Thompson was
not intellectually disabled under the standard then set forth in
Cherry v. State, 959 So. 2d 702, 713 (Fla. 2007) (requiring an IQ
score of 70 or below to establish intellectual disability), abrogated
by Hall, 572 U.S. 701. Thompson, 41 So. 3d 219. This Court
observed that
Thompson’s full-scale IQ scores on standardized tests
administered from 1987 through 2009 were generally
over 80: in 1987, Dr. Carbonnel administered the
Wechsler Adult Intelligence Scale (WAIS)-Revised Edition,
where Thompson’s full-scale IQ was scored as 85 (Verbal
Performance IQ: 87; Performance IQ: 84); in 1988, Dr.
Marina administered the WAIS-Revised Edition, where
Thompson’s full-scale IQ was scored as 82 (Verbal IQ: 85;
Performance IQ: 80); in 2009, Dr. Sultan administered
- 15 -the WAIS-Fourth Edition, where Thompson’s full-scale IQ
was scored as 71 (Verbal Comprehension: 83; Perceptual
Reasoning: 81; Working Memory: 77; Processing Speed:
56); and also in 2009, Dr. Prichard administered the
Stanford-Binet-Fifth Edition, where Thompson’s fullscale IQ was scored as 88 (Verbal IQ: 91; Non-Verbal IQ:
86).
Id.
In 2014, the U.S. Supreme Court held in Hall that Florida’s
“rigid rule” interpreting section 921.137(1) as imposing a strict IQ
score cutoff of 70 or less “creates an unacceptable risk that persons
with intellectual disability will be executed, and thus is
unconstitutional.” 572 U.S. at 704. Following Hall, Thompson filed
another successive motion for postconviction relief, arguing that his
2009 evidentiary hearing was not a full and fair hearing because
the circuit court relied on Cherry’s unconstitutional IQ score cutoff.
Thompson v. State, 208 So. 3d 49, 57 (Fla. 2016). On appeal of the
denial of that motion, despite having affirmed the circuit court’s
2009 order concluding that he failed to meet all three prongs of the
intellectual disability standard, Thompson, 41 So. 3d 219, and
acknowledging that Thompson did present evidence relating to all
three prongs at the 2009 evidentiary hearing, the Court concluded
that “he did not receive the type of conjunctive and interrelated
- 16 -assessment that Hall requires,” Thompson, 208 So. 3d at 59. In
deciding to remand for a new evidentiary hearing under Hall, the
Court said that not only had it determined in Walls v. State, 213 So.
3d 340 (Fla. 2016), that Hall applied retroactively, “but to fail to give
Thompson the benefit of Hall, which disapproved of Cherry, would
result in a manifest injustice, which is an exception to the law of
the case doctrine.” Thompson, 208 So. 3d at 50.
Over the next five years, Thompson and the State litigated
issues concerning the hearing ordered under Hall. During that
litigation, we receded from Walls in Phillips and held that Hall did
not apply retroactively. The State then filed a motion in the circuit
court, arguing that Phillips constituted an intervening change in law
that eliminated the need for the hearing ordered under Hall. The
circuit court agreed with the State and denied Thompson’s
intellectual disability claim without conducting that hearing.
In affirming that decision on appeal in 2022, we held that a
different exception to the law-of-the-case doctrine applied—an
intervening change of controlling law, namely Phillips. Thompson,
341 So. 3d at 306. We concluded that because Thompson’s death
sentence was final in 1993, Phillips precluded application of Hall to
- 17 -his case, and Thompson thus could not succeed on his Hall-based
intellectual disability claim. Id.
Thompson now urges this Court to reconsider its 2022
decision affirming the summary denial of his intellectual disability
claim. He argues that the law of the case, collateral estoppel, and
res judicata do not preclude relief in this case because “this Court
just reaffirmed that there is a ‘manifest injustice’ exception to a
habeas petition’s being otherwise procedurally barred.” Thompson
is referring to our recent decision in Conahan v. State, No. SC2026-1234, 2026 WL 2603686, at *6 (Fla. Sep. 3, 2026), cert. denied, No.
26-5476, 2026 WL 2660684 (U.S. Sep. 10, 2026), but Conahan
does not support Thompson’s manifest injustice argument here.
In Conahan, we stated that “we have acknowledged a ‘manifest
injustice’ exception to a habeas petition’s being otherwise
procedurally barred.” Id. There, the “manifest injustice” that
Conahan claimed would result from our not lifting the procedural
bar was “the execution of a defendant professing his innocence.” Id.
We wrote:
[Conahan] fails to recognize that such an exception could
justify ignoring all procedural bars and allowing neverending litigation in virtually every capital case. Rather
- 18 -than point to some recent, exceptional development that
might excuse the procedural bar, Conahan simply
disagrees with the trial court’s and this [C]ourt’s
decisions on his various post-conviction motions and
appeals. This cannot be the sort of “manifest injustice”
over which we will consider a habeas petition as a second
appeal, lest the exception swallow the rule.
Id. We thus rejected Conahan’s manifest injustice claim and found
his habeas petition procedurally barred. Id.
Here, the asserted manifest injustice is the execution of an
allegedly intellectually disabled defendant. But Thompson identifies
no recent, exceptional development bearing on whether he meets
the criteria for intellectual disability. 6 As in Conahan, “[t]his cannot
be the sort of ‘manifest injustice’ over which we will consider a
habeas petition as a second appeal.” Id. Treating disagreement
with a prior intellectual disability determination as sufficient to
overcome the procedural bar would open the door to the endless
litigation that Conahan warned against.
Thompson also argues that Phillips should have no bearing on
6. In his reply brief, Thompson characterizes his dementia as a recent, exceptional development regarding his intellectual functioning, but that condition bears on his present sanity to be executed—an issue distinct from his intellectual disability claim and not before this Court.
- 19 -his case because our 2016 decision granting him a new evidentiary
hearing rested on manifest injustice independently of our
determination in Walls that Hall applied retroactively. But the
manifest injustice identified in our 2016 decision was the failure to
give Thompson “the benefit of Hall.” Thompson, 208 So. 3d at 50.
That reasoning rested on the premise that Hall applied to his case—
a premise Phillips removed. Accordingly, our 2022 decision held
that Phillips constituted an intervening change of controlling law
permitting departure from the earlier mandate and that, because
Thompson’s death sentence became final in 1993, he could not
succeed on his Hall-based claim. Thompson, 341 So. 3d at 306.
Because Hall does not apply retroactively to Thompson’s case,
declining to give him its benefit is not a manifest injustice.
Thompson’s petition seeks to relitigate his intellectual
disability claim, the denial of which we affirmed in 2022. His
manifest injustice argument does not overcome the procedural bar,
and habeas corpus cannot serve as a second appeal. We therefore
deny the petition for a writ of habeas corpus.
III. CONCLUSION
For the reasons stated above, we affirm the circuit court’s
- 20 -order summarily denying Thompson’s successive motion for
postconviction relief and deny his petition for a writ of habeas
corpus. The motion for a stay of execution filed in case number
SC2026-1466 based on the grounds raised in the habeas petition is
therefore moot.
No motion for rehearing will be entertained by this Court. The
mandate shall issue immediately.
It is so ordered.
COURIEL, C.J., and MUÑIZ and GROSSHANS, JJ., concur.
TANENBAUM, J., concurs with an opinion.
FRANCIS and BARRIOS, JJ., concur in result.
LABARGA, J., concurs in part and dissents in part with an opinion.
TANENBAUM, J., concurring.
Let us take as true, for the sake of argument, Justice
O’Connor’s statement that “[j]udicial intervention might . . . be
warranted . . . in a case where the State arbitrarily denied a
prisoner any access to its clemency process.” Ohio Adult Parole
Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J.,
concurring in part and concurring in the judgment). The defendant
fails to identify, as a condition precedent, a state-created right
related to the clemency process that “trigger[ed the] due process
- 21 -protection” he now claims. Conn. Bd. of Pardons v. Dumschat, 452
U.S. 458, 463 (1981); see also id. at 465 (“The ground for a
constitutional claim, if any, must be found in statutes or other rules
defining the obligations of the authority charged with exercising
clemency.”); cf. Meachum v. Fano, 427 U.S. 215, 226 (1976) (noting
that “minimum procedures” would be “required by the Due Process
Clause ‘to [e]nsure that the state-created right is not arbitrarily
abrogated’” (quoting Wolff v. McDonnell, 418 U.S. 539, 557 (1974))).
Justice O’Connor’s concurring opinion in Woodard did not
overrule the U.S. Supreme Court’s previous holding that “the mere
existence of a power to commute a lawfully imposed sentence, and
the granting of commutations to many petitioners, create no right
or ‘entitlement.’” Dumschat, 452 U.S. at 467; cf. Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)
(“Decisions of the Executive Branch, however serious their impact,
do not automatically invoke due process protection; there simply is
no constitutional guarantee that all executive decisionmaking must
comply with standards that assure error-free determinations,”
especially regarding “sensitive choices presented by the
administrative decision to grant parole release.”). The legal
- 22 -principle remains that the State’s simply holding out the possibility
of clemency “provides no more than a mere hope that the benefit
will be obtained . . . a hope which is not protected by due process.”
Greenholtz, 442 U.S. at 11.
The defendant is simply mistaken when he relies on section
922.052, Florida Statutes, and this court’s decision in Abdool v.
Bondi, 141 So. 3d 529 (Fla. 2014), to establish some right to a
clemency proceeding absent a request for one. Florida law
contemplates that the defendant first apply for clemency. See
§ 940.03, Fla. Stat.; see also Abdool, 141 So. 3d at 545 (“Further,
section 940.03 provides that the executive clemency process in a
capital case is initiated by the defendant . . . .”).
If a defendant does apply for clemency, the statute states that
the Governor must issue a warrant “if the executive clemency
process has concluded,” and we read this provision to mean that
“no capital defendant will be executed” if those proceedings have not
concluded. § 922.052(2)(b), Fla. Stat.; Abdool, 141 So. 3d at 543,
545. We also said, however, that because this condition “is
exclusively within the control and discretion of the executive branch
and contains no mandated time frame for completion . . . the
- 23 -Governor’s discretion in issuing warrants is not curtailed by the”
statute. Id. at 543.
As we earlier had noted, “[t]he clemency process in Florida
derives solely from the Florida Constitution and we have recognized
that the people of the State of Florida have vested ‘sole,
unrestricted, unlimited discretion exclusively in the executive in
exercising this act of grace.’” Carroll v. State, 114 So. 3d 883, 888
(Fla. 2013) (quoting Sullivan v. Askew, 348 So. 2d 312, 315 (Fla.
1977)).
There, in turn, could be no right to be considered for clemency
inherent in this power, so no right to which due process could
attach. That leaves the defendant with the statute that allows
defendants to initiate clemency consideration by application. But
there is no indication in his post-conviction motion that the
defendant made such an application. Thus, he cannot now be
heard to make a due-process complaint that his right to access a
clemency proceeding was arbitrarily denied. I also agree with the
post-conviction court that his claim is both untimely and
procedurally barred.
- 24 -At all events, both this claim and the defendant’s second
claim—that he should be executed by firing squad because the
lethal injection protocol will inflict unconstitutionally cruel and
unusual punishment—are not cognizable under Florida Rule of
Criminal Procedure 3.851, as vacatur of the defendant’s death
sentence would not be a remedy for either one. That rule provides a
vehicle by which to vacate the death sentence, not one by which to
alter how the sentence is to be carried out. Cf. Conahan v. State, 51
Fla. L. Weekly S269, S272 (Fla. Sep. 3, 2026) (noting that a motion
to vacate sentence under rule 3.851 “is not the proper vehicle for
bringing” a claim that raises “procedural defects in carrying out a
sentence,” because those defects “give no reason to vacate the
sentence (or the underlying judgment)”), cert. denied, No. 26-5476,
2026 WL 2660684 (U.S. Sep. 10, 2026).
Subject to these points, I otherwise concur in the majority
opinion’s stated rationale for affirming.
LABARGA, J., concurring in part and dissenting in part.
I concur with the majority’s decision to affirm the denial of
Thompson’s postconviction claims. However, I adhere to my dissent
in Phillips v. State, 299 So. 3d 1013 (Fla. 2020) (receding from Walls
- 25 -v. State, 213 So. 3d 340 (Fla. 2016), and holding that Hall v.
Florida, 572 U.S. 701 (2014), does not apply retroactively).
Thus, I dissent to the denial of Thompson’s habeas claim,
consistent with my dissent in Thompson v. State, 341 So. 3d 303
(Fla. 2022) (affirming denial of postconviction relief based on
Phillips).
An Appeal from the Circuit Court in and for Miami-Dade County,
Zachary James, Judge
Case No. 131976CF003350B000XX
And an Original Proceeding – Habeas Corpus
Suzanne Keffer, Capital Collateral Regional Counsel, Brittney N. Lacy, Assistant Capital Collateral Regional Counsel, and Jessie R. Chiasson, Staff Attorney, Office of Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,
for Appellant/Petitioner
James Uthmeier, Attorney General, Tallahassee, Florida, Jennifer A. Davis, Senior Assistant Attorney General, Tampa, Florida, and Joshua E. Schow, Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
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