Supreme Court of Florida
                                   ____________

                                  No. SC14-1178
                                  ____________

                            EDDIE WAYNE DAVIS,
                                  Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                   [July 7, 2014]

PER CURIAM.

      Eddie Wayne Davis, a prisoner under sentence of death for whom a death

warrant has been signed, appeals the circuit court’s denial of his successive motion

for postconviction relief, which was filed pursuant to Florida Rule of Criminal

Procedure 3.851 after his death warrant was signed. We have jurisdiction. See art.

V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the circuit

court’s denial of postconviction relief. In addition, we deny Davis’ motion for stay

of execution, which he filed on June 23, 2014.

                                 BACKGROUND
      Davis was convicted of the first-degree murder of eleven-year-old Kimberly

Waters, as well as burglary with assault or battery, kidnapping a child under

thirteen years of age, and sexual battery on a child under twelve years of age. The

murder conviction was based on Davis’ confession and several pieces of

incriminating evidence linking Davis to the crime, including DNA evidence that

revealed Davis’ DNA matched scrapings taken from the victim’s fingernails and

blood on boots found in Davis’ recently vacated trailer that was consistent with the

victim’s blood. After the jury unanimously recommended the death penalty, the

trial court imposed a sentence of death for the murder conviction. The trial court

found that the following aggravators applied to the murder: (1) the murder was

committed by a person under sentence of imprisonment; (2) the murder was

committed during the commission of a kidnapping and sexual battery; (3) the

murder was committed for the purpose of avoiding or preventing a lawful arrest;

and (4) the murder was especially heinous, atrocious, or cruel. Davis v. State, 

, 1187 (Fla. 1997). As statutory mitigation, the trial court found that

the murder was committed “while the defendant was under the influence of

extreme mental or emotional disturbance and gave this factor great weight.” 

the trial court found several nonstatutory mitigating circumstances.1


      1. Specifically, the trial court found: (1) Davis was capable of accepting
responsibility for his actions and showed remorse for his conduct in this case and
offered through his attorneys to plead guilty (assigned medium weight); (2) Davis

                                        -2-
      This Court affirmed Davis’ convictions and death sentence on direct appeal.

Davis subsequently filed a motion for postconviction relief, which the

circuit court denied following an evidentiary hearing. On appeal, this Court

affirmed the circuit court’s denial of postconviction relief and denied Davis’

accompanying petition for a writ of habeas corpus. Davis v. State, 

,

374 (Fla. 2003). Additionally, Davis sought habeas corpus relief in the federal

courts, which was also denied. Davis v. McNeil, No. 8:04–cv–2549–T–27MAP,

, at *44 (M.D. Fla. Mar. 30, 2009). Following the federal district

court’s denial of his petition for a writ of habeas corpus, Davis sought a certificate

of appealability, which was subsequently denied by the Eleventh Circuit Court of

Appeals. Davis v. Sec’y Dep’t of Corr., No. 09–11907–P (11th Cir. Sept. 8, 2009).



exhibited good behavior while in jail and prison (assigned little weight); (3) Davis
demonstrated positive courtroom behavior (assigned very little weight); (4) Davis
is capable of forming positive relationships with family members and others
(assigned very little weight); (5) Davis had no history of violence in any of his past
criminal activity (assigned very little weight); (6) Davis did not plan to kill or
sexually assault the victim when he began his criminal conduct (assigned very little
weight); (7) Davis cooperated with the police, confessed his involvement in this
crime, did not resist arrest, and did not try to flee or escape (assigned little weight);
(8) Davis has always confessed to crimes he has been arrested for in the past,
accepted his responsibility, and pled guilty (assigned medium weight); (9) Davis
suffered from the effects of being placed in institutional settings at an early age and
by spending a significant portion of his life in such settings (assigned very little
weight); and (10) Davis obtained his GED while in prison and participated in other
self-improvement programs (assigned medium weight). 

June 2, 2014, Governor Rick Scott signed a death warrant for Davis, and

the execution was set for July 10, 2014. Subsequently, Davis filed a successive

motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure

3.851, in which he raised the following three claims: (1) an as-applied challenge to

Florida’s lethal injection protocol based on his allegation that he suffers from the

medical condition porphyria; (2) that he is not eligible for the death penalty

because, although age twenty-five at the time of the murder, he was “the functional

equivalent of a child”; and (3) that his clemency proceedings were

unconstitutional. The circuit court denied each of Davis’ claims without holding

an evidentiary hearing. In summarily denying Davis’ challenge to Florida’s lethal

injection protocol, the circuit court stated that Davis had “not met his burden to

demonstrate that the risk to him is sure or very likely to cause serious illness and

needless suffering” because Davis had “not provided the Court with any evidence

that the injection of Midazolam [as the first drug in the protocol] will not have the

desired effect of rendering the Defendant unconscious and insensate and thereby

eliminating any pain on the part of the Defendant as a result of his possible

condition of suffering from Porphyria.”

      Davis appealed the circuit court’s order, arguing that the circuit court erred

in summarily denying his three claims, and also filed a motion for stay of

execution. Along with his motion for stay of execution, Davis attached an


                                          -4-
affidavit, which he had not produced during the circuit court proceedings, alleging

that he suffers from the medical condition porphyria, and that the use of

midazolam hydrochloride as the first drug of Florida’s lethal injection protocol, as

applied to him, is unconstitutional. Specifically, the affidavit of Dr. Joel Zivot

stated that it is his expert medical opinion “that a substantial risk exists that, during

the execution, Mr. Davis will suffer from extreme or excruciating pain as a result

of abdominal pain, tachycardia, hypertension, nausea, and vomiting.” Based on

the allegations in the affidavit and our constitutional obligation to ensure that the

method of lethal injection in this state comports with the Eighth Amendment, we

relinquished jurisdiction to the circuit court, consistent with our prior decisions in

Howell v. State, 

, 515 (Fla.), cert. denied, 

(2014),

and Henry v. State, 

, 944 (Fla.), cert. denied, 

(2014), to permit the parties and the circuit court to address the allegations in Dr.

Zivot’s affidavit, as related to Davis’ as-applied challenge. See Davis v. State, No.

SC14-1178 (Fla. Sup. Ct. order filed June 26, 2014). After holding a hearing and

taking testimony, the circuit court ultimately denied Davis’ claim.

      In addition to his claim on appeal regarding the circuit court’s denial of his

as-applied challenge to Florida’s lethal injection protocol, Davis also asserts that it

was error for the circuit court to allow the State’s expert, Dr. Roswell Lee Evans,

to render an expert opinion regarding Davis’ as-applied challenge. Further, Davis


                                          -5-
also appeals the circuit court’s summary denial of his claims regarding his

eligibility for the death penalty and the constitutionality of his clemency

proceedings. For the reasons that follow, we affirm the postconviction court’s

denial of relief and deny Davis’ motion for stay of execution.

                                     ANALYSIS

      Before this Court, Davis argues that the circuit court erred in denying his as-

applied challenge to Florida’s lethal injection protocol, and that the circuit court

erred in summarily denying his remaining two claims: that he is not eligible for the

death penalty because, although age twenty-five at the time of the murder, he “was

the functional equivalent of a child” and that his constitutional rights were violated

during the clemency proceedings. We address each claim in turn.

          As-Applied Challenge to Florida’s Lethal Injection Protocol

      In his first issue on appeal, Davis argues that the circuit court erred in

denying his as-applied challenge to Florida’s lethal injection protocol. Davis

contends that because he allegedly suffers from a medical condition called

porphyria, the use of midazolam hydrochloride as the first drug of Florida’s lethal

injection protocol, as applied to him, is unconstitutional. “[M]ixed questions of

law and fact that ultimately determine constitutional rights should be reviewed by

appellate courts using a two-step approach, deferring to the trial court on questions

of historical fact but conducting a de novo review of the constitutional issue.”


                                         -6-


(quoting Connor v. State, 

, 605 (Fla.

2001)).

      As this Court has repeatedly recognized, “in order to prevail on an Eighth

Amendment challenge, a claimant must show that ‘the conditions presenting the

risk must be sure or very likely to cause serious illness and needless suffering, and

give rise to sufficiently imminent dangers.’ ” 

(quoting

Pardo v. State, 

, 562 (Fla. 2012)). “In other words, ‘there must be a

substantial risk of serious harm, an objectively intolerable risk of harm that

prevents prison officials from pleading that they were subjectively blameless for

purposes of the Eighth Amendment.’ ” 

108 So. 3d at 562).

“This heavy burden is borne by the defendant—not the State.” 

initial matter, Davis contends that it was error for the circuit court to

allow the State’s expert, Dr. Evans, to testify with respect to Davis’ as-applied

challenge to Florida’s lethal injection protocol. Specifically, Davis asserts that

because Dr. Evans is not an anesthesiologist and has no experience treating

patients with porphyria or in administering midazolam, his testimony on Davis’ as-

applied challenge was pure speculation.

      With respect to when the introduction of expert testimony is proper, section

90.702, Florida Statutes (2013), provides as follows:

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact in understanding the evidence or in determining a fact in

                                         -7-
      issue, a witness qualified as an expert by knowledge, skill, experience,
      training, or education may testify about it in the form of an opinion or
      otherwise, if:

      (1) The testimony is based upon sufficient facts or data;

      (2) The testimony is the product of reliable principles and methods;
      and

      (3) The witness has applied the principles and methods reliably to the
      facts of the case.

This Court has previously stated that, “[t]he qualification of a person as an expert

is within the sound discretion of the trial judge.” Penalver v. State, 

, 1134 (Fla. 2006). Further, a trial court “has broad discretion in determining

the range of the subjects on which an expert can testify, and the trial judge’s ruling

will be upheld absent a clear error.” 

indicates that Dr. Evans’ educational background, academic

experience, and clinical experience were presented prior to his testimony.

Although defense counsel objected to Dr. Evans being called as an expert in

pharmacology, the circuit court overruled defense counsel’s objection after

allowing the defense to undertake voir dire and hearing additional testimony

regarding Dr. Evans’ qualifications. The record demonstrates that Dr. Evans’

background along with his review of pertinent scientific literature allowed him to

assist the finder of fact in addressing Davis’ as-applied challenge to Florida’s lethal

injection protocol. Accordingly, we conclude that it was not error for the circuit

court to allow Dr. Evans to testify as an expert in this case with respect to Davis’

                                         -8-
as-applied challenge to Florida’s lethal injection protocol. Alternatively, even if

the circuit court did not consider Dr. Evans’ testimony, Davis would still be unable

to carry his burden of proof for this claim because Dr. Zivot failed to demonstrate

that the injection of midazolam, as the first drug in the lethal injection protocol,

would not render Davis unconscious and insensate prior to him experiencing any

possible symptoms of a porphyria attack.

      At the June 30, 2014, hearing, the circuit court assumed, for purposes of this

claim, that Davis suffers from the medical condition alleged in Dr. Zivot’s

affidavit, even though no finding was made to this effect. In support of his claim,

Davis called Dr. Zivot, the Medical Director of the Cardiothoracic Intensive Care

Unit at Emory University Hospital and a faculty member of the Department of

Anesthesiology and Surgery at Emory University School of Medicine. The circuit

court summarized Dr. Zivot’s testimony as follows: “Dr. Zivot testified that, in his

opinion, the injection of 500 mg of midazolam will cause an increased

accumulation of porphyrin in Mr. Davis’ tissues and the possible acute onset of

porphyria symptoms including abdominal pain, tachycardia, high blood pressure,

nausea, possible vomiting and resulting pain from those symptoms.”

      In response, the State called Dr. Evans, a doctor of pharmacology who is a

dean and professor at the Harrison School of Pharmacy at Auburn University. The

circuit court summarized Dr. Evans’ testimony as follows:


                                         -9-
             Dr. Evans testified that the injection of midazolam will cause
      the Defendant to go into a state of unconsciousness within the time it
      takes for a person to count to ten and then backwards to zero. A
      person injected with 500 mg of midazolam will be totally unconscious
      within two to three minutes and in a comatose state soon thereafter.
      Dr. Zivot agreed that the person injected with the large dose [of]
      midazolam will be unconscious within two to three minutes.
      After considering this testimony and argument from the parties, the circuit

court denied Davis’ as-applied challenge, rejecting the claim that Davis’ execution

would violate the Eighth Amendment:

             In this case, the Defendant has not met his heavy burden to
      establish that he is “sure or very likely” to experience serious illness
      or needless suffering. The very purpose of the initial injection of
      midazolam is to render the Defendant unconscious before further
      proceeding with the execution. There is a chance that the Defendant
      may suffer an acute onset of porphyria by an accumulation of
      porphyrin in his tissues which could lead to the onset of pain but,
      based on the evidence presented, it is the Court’s conclusion that the
      effects of midazolam will have rendered the Defendant unconscious
      and probably comatose by the time there is any risk of pain. The
      Defendant will be both unconscious and insensate before he would
      experience any possible onset of pain or a porphyria attack.

      We conclude that the circuit court’s factual findings are supported by

competent, substantial evidence, and that the circuit court did not err in its legal

conclusions. Dr. Evans testified that having porphyria will not “interfere with

[Davis’] ability to be placed unconscious and rendered insensate” by the injection

of midazolam. Dr. Evans further testified that midazolam will render an individual

unconscious within the span of time necessary to count down from ten to one, and

would effectively place an individual in a coma within “5 to 10 minutes.” Dr.


                                         - 10 -
Zivot similarly testified that fifty milligrams of midazolam, which is ten times less

than the dose administered under Florida’s lethal injection protocol, would render

an individual unconscious within “a matter of a few minutes.”

      Although Dr. Zivot testified that the amount of midazolam contemplated by

the execution protocol “will lead to a porphyria crisis,” and a porphyria attack

could “potentially” occur within minutes of the introduction of midazolam, Dr.

Zivot did not present any evidence that this result was sure or very likely to occur.

In fact, Dr. Zivot’s testimony was directly refuted by Dr. Evans, who stated, in

discussing how a porphyria attack proceeds, that “regardless of what drug is

inducing the increased production of porphyrin, it’s not an immediate response.”

Dr. Evans stated that it was his professional opinion that it was “highly unlikely”

that Davis would suffer from the symptoms of a porphyria attack before the onset

of the midazolam and, when asked whether an attack could take place within

minutes, responded, “I don’t think so. I think you’re talking about hours and

maybe days.” The circuit court credited Dr. Evans’ testimony that any possible

porphyria attack would occur, if at all, only after Davis was rendered unconscious

and insensate by the injection of midazolam.

      Davis has not demonstrated that Florida’s lethal injection protocol—as

applied to him—violates the Eighth Amendment to the United States Constitution

because he has not shown that allegedly suffering from porphyria creates a


                                        - 11 -
“substantial risk of serious harm.” 

. Specifically, Davis

has not met his “heavy burden” to show that the injection of midazolam in the

amount prescribed by the lethal injection protocol will not render him unconscious

and insensate before he suffers any of the effects of a possible porphyria attack.

      Accordingly, the postconviction court did not err in denying Davis’ as-

applied challenge to Florida’s lethal injection protocol, and we affirm the circuit

court’s denial of relief. Additionally, for the same reasons that we conclude the

circuit court did not err in denying relief on this claim, we deny Davis’ motion for

stay of execution, which is premised on the same as-applied challenge to Florida’s

lethal injection protocol. See Buenoano v. State, 

, 951 (Fla. 1998)

(explaining that a stay of execution on a successive motion for postconviction

relief is warranted only where there are substantial grounds upon which relief

might be granted).

                        Ineligibility for the Death Penalty

      In Davis’ second claim on appeal, he asserts that he is ineligible for the

death penalty, relying on allegedly newly discovered evidence regarding the effects

of alcoholism and sexual abuse on brain development in children, and the United

States Supreme Court’s decision in Roper v. Simmons, 

, 578 (2005),

which held that “the Eighth and Fourteenth Amendments forbid imposition of the

death penalty on offenders who were under the age of 18 when their crimes were


                                        - 12 -
committed.” Although he acknowledges that he was actually twenty-five years old

when he committed the crimes, Davis contends that he “was the functional

equivalent of a child” because he “likely had the mind of a juvenile” as opposed to

his actual chronological age, and thus, his execution would be unconstitutional.

      In addressing a similar constitutional challenge to a defendant’s death

sentence premised on Roper, this Court stated in Schoenwetter v. State, 

, 561 (Fla. 2010), that we have “consistently rejected such claims in cases

where the defendant was not below eighteen years of age at the time of the

criminal offense.” Thus, because this Court has held that “Roper only prohibits the

execution of those defendants whose chronological age is below eighteen,” Hill v.

State, 

, 584 (Fla. 2006), Davis’ challenge is without merit.

      While Davis acknowledges that he was over the age of eighteen at the time

of the crimes, he nevertheless asks this Court to reconsider its precedent on the

issue based on allegedly newly discovered evidence, consisting of recently

published studies addressing the effects of alcoholism and sexual abuse on brain

development, that he asserts illustrate that he “was the functional equivalent of a

child,” which renders him ineligible for the death penalty. Davis also “requests a

stay from execution, and an evidentiary hearing to litigate the weight to be

afforded the statutory and non-statutory mitigators related to age and maturity

levels” in light of the recently published studies.


                                         - 13 -
      After thoroughly reviewing the record, we cannot find any indication that

Davis ever previously argued or presented any evidence regarding his claim that he

was the “functional equivalent of a child” at the time of the murder. At trial,

Davis’ theory of mitigation, as found by the trial court, was that he committed the

murder while he was under the influence of an extreme mental or emotional

disturbance. See 

. In finding the existence of this

mitigating circumstance, the trial court stated that

      it is apparent to this Court the defendant came from a dysfunctional
      family; the defendant is an alcoholic, with low self-esteem; the
      defendant had an abused, neglected childhood; the defendant has had
      learning disabilities, which he has overcome; the defendant is
      immature for his age; the defendant may have an anti-social
      personality disorder; the defendant may have suffered from post-
      traumatic stress disorder; the defendant has suffered from chronic
      depression and anxiety; the defendant has had poor impulse control
      and defective judgment at times and the defendant has suffered from
      attention deficit hyperactivity disorder.
State v. Davis, No. CF94–1248A1–XX (Fla. 10th Jud. Cir. Ct. order filed June 30,

1995).

      Further, on direct appeal and in seeking postconviction relief, Davis did not

assert any claims analogous to the one he now raises before this Court, after the

signing of his death warrant. Instead, on direct appeal, Davis failed to raise a claim

involving his “emotional development,” see Davis, 

, and, in his

postconviction proceedings, Davis argued with respect to his mental health only

that his penalty-phase counsel was ineffective for failing to present expert


                                        - 14 -
testimony on post-traumatic stress disorder that Davis suffered as a result of prior

sexual abuse. See 

. Further, between the time of the

Roper decision in 2005 and these post-warrant proceedings, Davis has never raised

a claim based on Roper.

      Rule 3.851 provides the applicable pleading requirements for initial and

successive postconviction motions. Fla. R. Crim. P. 3.851(e)(1)-(2). Davis’ post-

warrant motion is subject to the rules governing postconviction motions, which

require the defendant to submit “a detailed allegation of the factual basis for any

claim for which an evidentiary hearing is sought.” Parker v. State, 

,

855 (Fla. 2011) (quoting Fla. R. Crim. P. 3.851(e)(1)(D)).

      An evidentiary hearing on a rule 3.851 motion “should be held ‘whenever

the movant makes a facially sufficient claim that requires a factual

determination.’ ” 

(quoting 

).

“However, ‘[p]ostconviction claims may be summarily denied when they are

legally insufficient, should have been brought on direct appeal, or are positively

refuted by the record.’ ” 

(quoting 

). Because

the circuit court denied Davis’ claim without holding an evidentiary hearing, we

review the circuit court’s decision de novo, “accepting [Davis’] factual allegations

as true to the extent they are not refuted by the record, and affirming the ruling if

the record conclusively shows that [Davis] is entitled to no relief.” Gore v. State,


                                         - 15 -


, 774 (Fla.) (quoting Walton v. State, 

, 1005 (Fla.

2009)), cert. denied, 

(2012).

      This Court has set forth a two-prong test that a defendant must satisfy in

order to obtain relief based on newly discovered evidence:

      First, the evidence must not have been known by the trial court, the
      party, or counsel at the time of trial, and it must appear that the
      defendant or defense counsel could not have known of it by the use of
      diligence. Second, the newly discovered evidence must be of such
      nature that it would probably produce an acquittal on retrial.
Marek v. State, 

, 990 (Fla. 2009) (citing Jones v. State, 

, 521 (Fla. 1998)). “If the defendant is seeking to vacate a sentence, the second

prong requires that the newly discovered evidence would probably yield a less

severe sentence.” 

cited by Davis, addressing the effects of alcoholism and sexual

abuse on brain development, do not constitute newly discovered evidence. This

Court has previously stated that it “has not recognized ‘new opinions’ or ‘new

research studies’ as newly discovered evidence.” Schwab v. State, 

,

325 (Fla. 2007). The articles that Davis relies upon fall squarely within this

subject area and therefore do not constitute newly discovered evidence. See Farina

v. State, 

(Fla. 2008) (table decision) (holding that a “study on brain

mapping is not newly discovered evidence”); 

                                        - 16 -
(concluding that “two recent scientific articles regarding brain anatomy and sexual

offense” did not constitute newly discovered evidence).

         Further, as explained above, even if these recently published articles were

considered newly discovered evidence, Davis still fails to put forth a cognizable

claim. The United States Supreme Court’s decision in Roper prohibits the

execution of those individuals “who were under the age of 18 when their crimes

were 

. In interpreting the Supreme Court’s decision,

this Court has previously stated that “Roper only prohibits the execution of those

defendants whose chronological age is below eighteen.” 

.

Therefore, because Davis was over the age of eighteen when he committed murder,

Roper does not apply, and his claim is without merit.

         Accordingly, we affirm the circuit court’s summary denial of relief on this

claim.

                                 Clemency Proceedings

         In his final claim on appeal, Davis challenges the constitutionality of his

clemency proceedings. With respect to this claim, Davis does not contend that he

was completely denied clemency review. In fact, Davis concedes that he was

selected for clemency review determination in 2013, and that he did in fact receive

an interview before the Florida Commission on Offender Review (formerly known

as the Florida Parole Commission), during which he was represented by counsel


                                          - 17 -
from the Office of the Polk County Public Defender. Further, Davis does not

contest that his death warrant specifically includes language stating that “executive

clemency . . . was considered pursuant to the Rules of Executive Clemency and it

has been determined that executive clemency is not appropriate.”

      Nevertheless, Davis asserts that his due process rights were violated during

the clemency proceedings because one of the parole commissioners present during

Davis’ interview before the Florida Commission on Offender Review was retired.

Davis also argues that communications between the Polk County State Attorney

and Assistant General Counsel for Governor Scott prior to Davis’ clemency

proceedings, in which the Office of the Governor expressed disapproval of Davis’

crimes, illustrate that Governor Scott was predisposed to denying Davis clemency

relief and call into question the validity of his clemency proceedings. The circuit

court summarily denied this claim without holding an evidentiary hearing. We

agree with the circuit court and conclude that these arguments are without merit for

several reasons.

      With respect to Davis’ first argument, section 947.04(1), Florida Statutes

(2013), specifically authorizes the chair of the Florida Commission on Offender

Review to “assign consenting retired commissioners or former commissioners to

temporary duty when there is a workload need.” The record indicates that the

retired parole commissioner at issue in this case was temporarily assigned for duty


                                        - 18 -
in conformance with section 947.04(1). “In Ohio Adult Parole Authority v.

Woodard, 

(1998), five justices of the United States Supreme Court

concluded that some minimal procedural due process requirements should apply to

clemency proceedings.” Marek v. State, 

, 998 (Fla. 2009). However,

the Court explained that “none of the opinions in that case required any specific

procedures or criteria to guide the executive’s signing of warrants for death-

sentenced inmates.” 

light of the fact that Davis concedes that

he was selected for clemency review determination in 2013, and that he did in fact

receive an interview before the Florida Commission on Offender Review, during

which he was represented by counsel, and the assignment of retired parole

commissioners to temporary duty is specifically authorized by statute, Davis has

not provided any basis for this Court to grant relief based on his first argument.

      Further, as this Court has previously noted, “[t]he clemency process in

Florida derives solely from the Florida Constitution and [this Court has]

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, 

, 888 (Fla.) (quoting Sullivan v. Askew, 

, 315 (Fla. 1977)), cert. denied, 

(2013). Indeed, “[t]he Florida

Rules of Executive Clemency expressly provide that ‘[t]he Governor has the

unfettered discretion to deny clemency at any time, for any reason.’ ” Gore, 91 So.


                                        - 19 -
3d at 779 (quoting Fla. R. Exec. Clem. 4) (second alteration in original).

Accordingly, this Court “will not generally second-guess the executive’s

determination that clemency is not warranted.” 

.

      In its order denying relief on this claim, the circuit court based its denial on

these general principles, stating as follows: “Clemency reviews and proceedings

are within the exclusive purview of the Executive Branch. It is not up to the

Judicial Branch to second guess the Executive Branch in this regard, and the

Judicial Branch must respect the separation of powers between the branches of

government.” This conclusion is fully consistent with this Court’s precedent. See

Johnston v. State, 

, 26 (Fla. 2010) (declining to “depart from the

Court’s precedent, based on the doctrine of separation of powers, in which we have

held that it is not our prerogative to second-guess the executive on matters of

clemency in capital cases”); Rutherford v. State, 

, 1122-23 (Fla.

2006) (denying a clemency claim because the defendant had a hearing and because

clemency is an executive function). Davis concedes that he was selected for

clemency review determination in 2013 and that he did in fact receive an interview

before the Florida Commission on Offender Review. In light of the fact that his

death warrant, signed by the Governor, makes clear that “executive clemency . . .

was considered pursuant to the Rules of Executive Clemency and it has been

determined that executive clemency is not appropriate,” this Court will not


                                        - 20 -
“second-guess the executive’s determination that clemency is not warranted.”

.

      Accordingly, we conclude that the circuit court did not err in summarily

denying this claim.2

                                  CONCLUSION

      For the reasons stated above, we affirm the circuit court’s denial of Davis’

successive motion for postconviction relief. Additionally, we deny Davis’ motion

for a stay of execution. No motion for rehearing will be entertained by this Court.

The mandate shall issue immediately.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.

An Appeal from the Circuit Court in and for Polk County,
     Donald G. Jacobsen, Judge - Case No. 1994-CF-1248A-XX

       2. While this appeal was pending before this Court, Davis’ clemency
counsel filed a notice of joinder or, alternatively, a motion to intervene in Davis’
appeal of the denial of his successive postconviction motion, which this Court
struck after receiving a response from the State. Subsequently, Davis, through
clemency counsel, filed in the circuit court an “Emergency Petition for a Writ of
Mandamus or Common Law Certiorari and Complaint for Declaratory, Injunctive
and Other Relief Pursuant to 42 USC § 1983” against Governor Rick Scott,
Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater, and
Commissioner of Agriculture Adam Putnam, as members of the Clemency Board
of Florida. In this filing, Davis also challenged the constitutionality of his
clemency proceedings. The circuit court denied Davis’ petition on July 1, 2014.
Davis, represented by clemency counsel, appealed the circuit court’s denial of his
petition to this Court, which we have treated as a petition to invoke this Court’s all
writs jurisdiction. By separate order, we have denied clemency counsel’s petition.

                                        - 21 -
Ali Andrew Shakoor and Richard E. Kiley, Assistant Capital Collateral Regional
Counsels – Middle Region, Tampa, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Stephen D. Ake and
Timothy A. Freeland, Assistant Attorneys General, Tampa, Florida,

      for Appellee




                                     - 22 -