Darren Rainey: Family settles lawsuit in Florida Prisoner’s shower death

This news just in, about Darren Rainey, the man who prison guards in Florida tortured to death by putting him in a hot shower for two hours, without any consequences for their actions. Florida prosecutors endorse murder, as long as it is by “law enforcers.” What a messy state! Endorsing bullies…

Thanks to Heinz from Austria we have this set of links on the story of Darren’s awful death at the hands of bullies, and of the brave and ethics abiding Harold Hempstead, who deserves our respect and support for reporting on this tragic murder by the state of Florida:

Family settles lawsuit in Florida Prisoner’s shower death


The family of a mentally ill Florida inmate who died after being left for nearly two hours in a hot shower has settled a civil rights lawsuit against the state’s Department of Corrections.

Florida prosecutors refuse to charge guards for trapping prisoner in hot shower until it killed him

One inmate alleges Darren Rainey was yelling and screaming in the shower for two hours


Inmate Rainey’s death deemed not a crime; but an ‘accident’ — really?!




Break silence on brutal Florida prisons

This is from the Bradenton Herald, July 12, 2014:

State Rep. Matt Gaetz, chair of the House Criminal Justice Subcommittee, suggested this week that, “If there is a problem,” within the Department of Corrections and the prisons and detention centers that it runs, “let’s fix it.”

However, there’s no “if” about it — there is a problem, a huge one.
Inmates are dying in Florida’s prisons, victims of torture and brutality. No one has been charged in these suspicious deaths, much less stood trial, despite the fact that one fatality has caught the public’s attention — the appalling case of Darren Rainey, who was scalded to death in 2012.
The FBI is investigating a prison riot in Suwannee. The Florida Department of Law Enforcement is also looking into an inmate’s mysterious death there. An inmate in a Panhandle facility died after being gassed repeatedly by corrections officers. And there are others.
Few state authorities, from Gov. Scott’s office to his inspector general to the head of Corrections, have leaped forth to avow that they will get to the bottom of whistleblowers’ and inmates’ credible allegations of institutional cruelty, tacitly tolerated by those in charge.
In fact, the silence has been so shocking that, thankfully, James McDonough, who headed Florida’s DOC under Gov. Jeb Bush, was compelled to go public, spurring long-overdue action:
• Tuesday, Mr. McDonough said in an e-mail: “I am revolted by what I am hearing, just as I am by what I am not hearing.” He added, “These cases did not end tragically last week; they ended in horrific and suspicious deaths some years ago. Where has the leadership been?”
Snoozing, apparently.
• Wednesday, the current chief of DOC, Mike Crews, finally roused, declared himself “outraged” — two years after Rainey’s death and two months after the Herald disclosed that he was strong-armed by prison guards into a shower stall and burned to death under searingly hot water.
• Thursday, a now-energized Mr. Crews suspended Jerry Cummings, the warden of the Florida City facility where Rainey died.
But none of this should be construed as leadership on Mr. Crews’ part. Backing and filling is more like it, unfortunately. Mr. Cummings is on paid administrative leave, but the two correctional officers who are said to have locked Rainey in the shower are still on the job.
Read the rest here, and also in the Huffington Post
lawsuit filed by four prison investigators claims Florida’s prison system is badly mismanaged and the results have been deadly.
The four filed a federal whistle-blower complaint on Monday alleging that state prisoners were beaten and tortured, that guards smuggled in drugs and other contraband in exchange for money and sexual favors, and that guards used gang enforcers to control the prison population. They claim those actions were either tacitly approved or covered up.
One of the most grisly examples of abuse mentioned in the suit, which was filed last week, is the death of 27-year-old inmate Randall Jordan-Aparo in September, 2010.
According to former inspector Aubrey] Land, Jordan-Aparo, serving an 18-month term for credit card fraud and drug charges, was placed in solitary confinement and gassed multiple times by guards after he had begged to be taken to the hospital for a worsening medical condition. Land, who said he stumbled on the death of Jordan-Aparo while investigating other “garden-variety” corruption and abuses at Franklin, said the prison’s medical staff, corrections officers and supervisors later conspired to fabricate reports and lie to law enforcement about the events leading to the inmate’s death.
Another case mentioned in the suit is that of 50-year-old mentally ill inmate, Darren Rainey.
In May, 2014, the suit says, Rainey was put inside a scalding hot shower at Dade Correctional as punishment for defecating on the floor of his cell.
Read more here. and act appropriately to stop these abuses and change the system!

Voices from Solitary: “Death Row Diary” of Florida Man Scheduled to Die Tonight

From: SolitaryWatch

Voices from Solitary: “Death Row Diary” of Florida Man Scheduled to Die Tonight
June 12, 2013 By Voices from Solitary

William Van Poyck, 58 years old and on death row at the Florida State Prison in Starke, is scheduled to die at the hands of the state tonight at 7 pm. In 1987 he was convicted of murdering prison guard Fred Griffis in a failed jailbreak attempt. Poyck has spent nearly 26 years on death row in solitary confinement. He has written to his sister about his life in prison, and in recent years she has published his letters to a blog called Death Row Diary. In these letters, Poyck writes about everything from the novels and history books he is reading and shows he has watched on PBS to the state of the world and his own philosophy of life–punctuated by news of the deaths of those around him, from illness, suicide, and execution. He also comments on the bill recently passed by the Florida legislature that will accelerate the schedule of executions in Florida. The excerpts selected here focus on the inhumane treatment he and other individuals on death row endure as they move ever closer to their own finalities. His last entry was written on May 28, when he had “15 days left to live.” –Abby Taskier

. . . . . . . . . . .

January 4, 2012
Well, another year is upon us. I feel like I ought to have something profound to say but all I can think of is the too many – over 40 – years I’ve spent sitting in a cell or prison dormitory watching another new year slide into my life. New Year’s is supposed to represent hope and potential but it’s hard to convince yourself that hope and potential abounds when you’re doing hard time! Anyway, 2012 is the supposed end of the world according to the Mayan calendar…I don’t put too much stock in apocalyptic predictions; humans have been making them since the dawn of time, after all, without any success, and I’m an optimist by nature. But I confess that as I survey the world around me and what we humans are doing to planet earth it is increasingly difficult to envision a good ending…

The search team came and tore up my cell last week; it was a surgical strike (they came for me alone) and I was later told that “someone” wrote a snitch kite on me claiming (falsely) I had a weapon in my cell. I’m fairly certain it was someone trying to get a DR (disciplinary report) dismissed by dropping a dime on me on the hope they’d shake me down and find something, any kind of contraband, and the rat would then get credit for it. But I had no contraband so the snitch struck out. If the administration had any integrity they’d write the rat a DR for “lying to staff.” I spent several hours putting my cell back in order; it looked like a hurricane came through, all my property scattered everywhere. This is the kind of bullshit you have to put up with in prison; it’s the nature of the beast…

I just learned that Governor Scott has signed another death warrant and someone is on death watch on the bottom floor of Q-wing. Scott didn’t waste any time after the holidays; he seems determined to execute a record number of people at the pace he is setting…This is a depressing turn of events, a lousy way to begin the new year, at least from my perspective. The execution, when it occurs, will undoubtedly please some people, so it’s all a matter of perspective…

February 9, 2012
Yesterday the prison was locked down all day for the standard “mock execution”, the practice run which occurs a week prior to the actual premeditated killing. For the mock execution they lock down the joint, bring in an array of big wigs, and go through a dry run to make sure the death machine is in working order, everyone on their toes. The big wigs are just voyeurs, here to vicariously kill someone while allowing themselves the bare moral cover of not actually pushing the knife between the ribs. Their minions do the actual dirty deed while they can go home with technically clean hands. These mock executions are as depressing as the real thing, in the sense that it’s dispiriting to watch an entire organization (a prison, with all its constituent parts) so seriously dedicate their time and energies to practice killing a fellow human being, as if this is a good and natural thing to do. It takes some peculiar mental (not to mention moral) gymnastics to justify this to oneself, but we humans have proven ourselves immensely adept at self-delusion and hypocrisy, especially when we bring religion into the equation. We are really, really good at killing others in the name of God. We are a strange species, aren’t we?

February 25, 2012
Robert Waterhouse was scheduled for execution at 6:00pm this evening. In accordance with the established execution protocol he was strapped to the gurney and the needles were inserted into each arm about 45 minutes prior to his appointed time. Just before 6:00, however, he received a 45-minute stay which morphed into an almost 3-hour endurance test as he remained on the gurney as the seconds, minutes and then hours slid by at an excruciatingly slow pace, waiting for someone to tell him if hope was at hand, if he would live or die. Just before 9:00 he received his answer, the plungers were depressed, the syringes emptied and he was summarily killed. Here on the row we can discern the approximate time of death when we see the old white Cadillac hearse trundle in through the back sally port gate to pick up the body, the same familiar 1960′s era hearse I’ve watched for almost 40 years, coming in to retrieve the bodies of murdered prisoners, which used to happen on a regular basis back when I was in open population. I’ve seen a lot of guys, both friends and foes, carted off in that old hearse. Anyway, pause for a moment to imagine being on that gurney for over three hours, the needles in your arms. You’ve already come to terms with your imminent death, you are reconciled with the reality that this is it, this is how you will die, that there will be no reprieve. Then, at the last moment, a cruel trick, you’re given that slim hope, which you instinctively grasp. Some court, somewhere, has given you a temporary stay. You stare at the ceiling while the clock on the wall ticks away. You are totally alone, not a friendly soul in sight, surrounded by grim-faced men who are determined to kill you. Your heart pounds, your body feels electrified and every second seems like an eternity as a Kaleidoscope of wild thoughts crash around franticly in your compressed mind. After 3 hours you are drained, exhausted, terrorized, and then the phone on the wall rings and you’re told it’s time to die…

June 10, 2012
…Doing my own laundry (most of us do it) has become even more of an imperative over the last year or two. For starters, you cannot exchange your state clothes for clean stuff at the weekly laundry exchange because all the laundry issues now are old, ripped-up rags, stuff right out of a cartoon version of the rags Napoleon’s army wore as they withdrew from Russia. There is no money available here for any new clothing. The sheets, towels, socks, T-shirts and drawers are almost black with filth; they look like what mechanics use in garages to clean up with. The laundry has taken to cutting all the sheets in half lengthwise and cutting all the towels in half (sewing up the edges) to try to make things stretch. More basic than that, though, is that for at least a year, maybe two, the laundry has simply quit using any soap when it “washes” the clothes. They stuff they pass out stinks worse than it does when it’s turned in. If you do get something from the laundry, the first thing you and have to do is wash it. Most people do what I do, they bribe someone to get ahold of a couple of new sheets and a new towel, and then they just keep them, washing them by hand every week. Since we cannot obtain any laundry soap (for reasons unknown they stopped selling it to us 10 years ago) we’ve gotta use canteen-bought shampoo to do our laundry (VO-5 is the cheapest). And of course, we’ve gotta wash all our stuff in our toilets; this sounds gross to the uninitiated, but we keep our stainless steel toilets scrubbed clean. You then plug it up and flush it until it fills, then add shampoo and laundry and go to work. This is old-school and is universal in prisons around the country (although 95% of prisons have made this obsolete by offering real laundry services. But Florida in general and Florida State Prison in particular are 30 years behind the times and the administration seems to revel in its backwardness). Hell, this prison doesn’t even have hot water to the cells…

September 13, 2012
In the early morning hours of August 30, my friend Tom, who lived 2 cells down from me groggily awoke to find his face and pillow covered in blood and his tongue bitten about half off. He had no memory of what occurred. That morning his speech was slurred (over and above his extreme difficulty in speaking with a then-swollen, bloody tongue) and I noticed his thinking was confused. I told him he’d most likely had a seizure in his sleep (he has no history of seizures) and that because he was on high cholesterol medication he may have had a small stroke. Over the following days Tom suffered progressively severe headaches almost constantly and began sleeping excessively. His speech became increasingly slurred and his mental faculties were clearly compromised. I, and others, constantly urged Tom to try to get up to the clinic to see a doctor (even though the two doctors here are notorious quacks) and so he began trying to stop any passing nurses (who go down our row to deliver medications to some) to explain his situation, but none of them were interested. Most just said “put in a sick call slip.” At my urging Tom declared a “medical emergency” which is supposed to get you right up to the clinic. But instead, a nurse came to the wing, briefly examined Tom’s swollen (and now infected) tongue, gave him two Tylenol and told him he was just “out of luck” since no doctor was on duty on a Saturday night.

Meanwhile, day by day, Tom got worse. He knew something was wrong with him but seemed unable to figure out what to do. I wrote up a sick call slip for him (by this time his handwriting was illegible and he could not put his thoughts together) and the next day a “nurse” or M.T. (medical technician) came to “examine” him. He listened as Tom labored to explain what happened, starting with the seizure, then told Tom “Well, some people do this [bite their tongues almost in half] to get attention.” The M.T. then walked away…

October 2, 2012
…I stuck my mirror out, upon hearing the door roll, and saw Tom, a big bandage on his head, tottering slowly and unsteadily down the tier to his cell. That was on the 13th. For the next 5 days he laid on his bunk, often moaning, while receiving no medication at all (despite the surgeons having prescribed many drugs). Finally, after 5 days he began getting some, but not all, of the prescribed meds (no pain meds, of course). Importantly, he did not get the most crucial one, the one to stop his brain from swelling. So he was suffering mightily until just 5 or 6 days ago when he finally saw a free-world oncologist who was shocked that he was not getting the brain swelling medication. After another 3 days he finally began getting that one and he told me the relief was immediate. I knew it was bad when he kept telling me he had fluid coming out of his ears. He’s been told he’ll get chemo and radiation treatment but that remains to be seen…

October 25, 2012
Well, the execution has been cancelled, to the dismay of some around here. Ferguson was scheduled to die on the 16th, but just before then he got a 48-hour stay. Over the next week he got three such temporary stays from three different courts, with the sole issue being his sanity to be executed. Finally, it was supposed to happen for sure 2 days ago, on the 23rd, and we woke up to the standard execution-day procedures, eating all three meals very early, the entire prison being on lockdown, and all guards wearing their dress uniforms. As execution time (6:00 pm) neared the old white hearse pulled up outside the back sally port gate waiting to come in and pick up the body. As 6:00 came and went I assumed the execution had occurred but around 7:30 a guy on the other side of my wing, which looks out on the back gate and the rear of Q-wing (the death house), called me through the vent and said the hearse never came in, but instead had finally driven off. On the 11:00 news it was reported that the US Court of Appeals for the Eleventh Circuit, in Atlanta, had given Ferguson a stay of execution and that the US Supreme Court then approved the stay. (The accuracy of that precise chronology is debatable because reporters are notorious for mangling stories involving court decisions). At any rate, he got some kind of stay; how long that stay is remains unknown to me. I heard on one news report that the Eleventh Circuit granted the stay in order to decide “whether it is unconstitutional to execute the insane”…Now we go back on lottery watch, waiting to see whose death warrant the governor signs next, which is a great mood elevator for the upcoming holidays…

Last night’s mail brought me (and others) a notice that the mailroom had impounded and confiscated the latest issue of Newsweek because, the notice stated, it contained an article about “pot use in America.” Censorship like this, which implies serious First Amendment principles, used to be, and is supposed to be, rare. Only when an article clearly and unequivocally creates a substantial threat to the security of a prison should it be censored. But, over the years, the Florida DOC has gotten progressively petty (and ignorant) on this issue (since the law now practically forbids prisoners from filing law suits anymore) until we’ve reached our present state where these impoundments have become almost daily and for the most absurd reasons imaginable… With nothing to keep them in check (lawsuit-wise) the prisons do just whatever the hell they want to, knowing they are immune from challenge…

November 8, 2012
Another death row guy has died of cancer. I ran into Michael Bruno (whom I’ve known for over 20 years) in late July when I took a day trip to RMC (Regional Medical Center) for my upper GI tests. Bruno looked weak and had a persistent cough (the same cough Tom now has) and he’d just been diagnosed with lung cancer…He seemed to be doing pretty well, but on Friday, October 19th, he suddenly got ill and two days later he was dead. The cause of death, we were told, was septic shock, and I’m guessing the infection found its way into his system via the “port” they’d inserted into his chest to funnel the chemo directly into his lung. Prisons are filthy so putting a port into a guy’s chest while making him live in a cell is pretty much a prescription for disaster. This is especially true here in Florida where the DOC long ago quit issuing and buying (we used to manufacture them) the various cleaning chemicals we used to use to clean our cells and the whole prison, from powdered soap, liquid soap, disinfectants, bleach; all that is gone now and we must buy and use shampoo from the canteen to wash our clothes and clean our cells. This whole decrepit building is filthy and falling apart…

February 27, 2013
My old pal Tom died on Friday, Feb 8th at 4:10 pm, alone in the clinic isolation cell at UCI. I hate that he died alone, locked in a tiny cell with no property (no radio, TV or anything to occupy his mind) and nobody to converse with, just laying on his bunk, staring at the ceiling, waiting for his final escape. His loved ones, who were able to travel from Texas and North Carolina to visit him for three hours just two days before he passed away wrote and told me that he was very weak and gaunt, could not keep down any food or liquids, but was lucid enough for a meaningful visit, though just barely so. Although I know his death was inevitable and imminent, I’m surprised at how much it has affected me. I’ve seen an awful lot of death during my many years in prison (way too much death, in all its myriad variations), including some friends, but Tom’s has knocked the wind out of me.

Later last night they moved Paul off death watch on Q-wing and put him in the lone empty cell on my floor [after he received a stay of execution]. That’s gotta be a Hell of a transition; you are hours away from execution, you’ve had your final visits (imagine how emotional that is), made your peace with the inevitable, perhaps eaten your last meal, then, in a finger snap, you’re told you won’t be dying after all (at least not that night) and you are back on a regular death row cell talking with the Fellas. I’ve seen a number of guys go through this over the years, one of whom was just twenty minutes from execution in the electric chair when he got his unexpected stay. They moved him next to me and I was startled to see that his hair had turned almost entirely white during the six weeks he was on death watch. He died quietly in his sleep from a heart attack about six years later, right here on this floor.

It’s surprising to me that more prisoners here don’t kill themselves given the long term extreme isolation and punitive conditions, the hopelessness that comes from being confined for years in a tiny cage with virtually no property and certainly no programs or anything to engage the mind or offer any shred of hope. I’m referring specifically to the 1,000 men in close management status here (close management being a euphemism for long-term solitary confinement lasting years and years). Death row conditions are marginally better; at least we get visits and we can buy a little TV or radio (or now an MP3 player), but the flip side is that we spend decades in these cells and unless you possess a stout mind (and body) this inevitably erodes your constitution, often without you even knowing it. I’ve seen too many men go insane, a sad and scary thing to behold, or just throw in the towel and kill themselves, or get the state to do it for them by giving up their appeals and demanding to be executed…

April 10, 2013
On April 10, Larry Mann was executed downstairs. Seven days later Governor Scott signed another death warrant, for a guy out of Orlando named Elmer Carroll, who happened to be my next door neighbor. We were out on the rec yard when a lieutenant holding a bunch of chains showed up and took Elmer away, and while they didn’t tell him why they were taking him in I knew something was up. When I came back in, his cell was stripped and he was down on the bottom floor of Q-Wing on death watch…

The governor is wasting no time executing people, he’s killing a guy every 60 days, as regular as a metronome. Still, that is insufficiently bloodthirsty for a majority of our state representatives. This morning I watched, on the local Public Television Channel, the floor debate in the House on a bill designed to “speed up the death penalty.” Various politicians stood up to argue pro and con, and several invoked the Bible (notably the Old Testament) to justify killing us all as quickly as possible, while one guy repeatedly referred to all of us as “animals.” I have not read the bill so all I know about its particulars is what I could glean from the comments made by those who spoke up for or against it…One representative stated that if the bill becomes law (and it surely will) Florida “will execute between 13 and 90 prisoners in the next six months.” I don’t know if that’s accurate but he must have had some basis to come up with those particular numbers. Those who argued against the bill, urging caution and reminding the crowd that Florida leads the nation (by far) in death row prisoners exonerated, often 10, 15, 20 years after conviction, were steamrolled down by the Republican supermajority and the bill passed by a wide margin…

May 3, 2013
Today Governor Scott signed my death warrant and my execution date has been scheduled for June 12th, at 6pm. I wasn’t really surprised when they showed up at my cell door with the chains and shackles; for the last month or so I’ve had a strong premonition that my warrant was about to be signed, but that wasn’t something I wanted to share with you.

Sis, you know I’m a straight shooter, I’m not into sugar coating things, so I don’t want you to have any illusions about this. I do not expect any delays or stays. This is it. In 40 days these folks will take me into the room next door and kill me…

When your warrant gets signed so many things suddenly become trivial. I’ve already thrown or given away 95% of my personal property, the stuff that for years seemed so important. All those great books I’ll never get to read; reams and reams of legal work I’ve been dragging around, and studying, for 2 decades and which has suddenly lost its relevance. My magazines and newspapers stack up unread; I have little appetite to waste valuable, irreplaceable hours reading up on current events. Does it really matter to me now what’s happening in the Middle East, or on Wall Street, or how my Miami Dolphins are looking for the upcoming new season? What’s the point? Ditto the TV; I’m uninterested in wasting time watching programs that now mean nothing in the grand scheme of things. The other day I caught myself reaching for my daily vitamin. Really?, I wondered, as the absurdity hit me. Likewise, after 40 years of working out religiously, that’s out the window now. Again, what’s the point?…

May 12, 2013
On Tuesday they came and measured me for my execution/burial suit. Sometime soon I’ll be given the details on how “the body” will be disposed of following the legally required autopsy (will my cause of death really be a mystery?). I understand the State will pay for a cremation should I choose this form of disposal (I do) and my ashes will be available at a Gainesville Funeral home; but don’t quote me on that yet. Discussing the practical aspects of my upcoming death was a little disconcerting, but I took it in stride.
I’ve been on death watch for 10 days now and I have 31 days left to live. (It seems surreal when I write that out, and just as surreal that all those around me accept this as a normal and natural thing). My cell (one of three) is next to the execution chamber so I won’t have far to walk. There’s another guy down here with me, his execution is set for 2 weeks before mine so assuming he doesn’t get a stay I’ll have a front row seat to how the final days and hours play out. Aren’t I lucky?

May 19, 2013
I’ve got 25 days left to live. It isn’t normal to be able to write something like that, and that sense of surrealism permeates every hour down here. Making a man spend his last six weeks ticking off every minute, hour and day of his life left on earth constitutes cruel and unusual punishment by any definition. And it certainly constitutes, as a matter of law, two of Florida’s statutory aggravating circumstances (used by the state to justify the imposition of death sentences), to wit: 1) the killing is cold, calculated and premeditated; and, 2) the killing is heinous, atrocious and cruel. Although I’ve fully accepted my circumstances, I know it’s going to happen and I’ve come to terms with it, that does not obviate the fact that it just isn’t right to do this to people, and for society to accept this as normal or natural, well, it speaks more about our society than it does about those being so efficiently dispatched down here in the bowels of this penitentiary…

There are now three of us down here on death watch; all our executions are spaced 2 weeks apart. The guy with senior status (Elmer) is set to die on May 29th, 2 weeks before me. Last week the Florida Supreme Court denied his last-ditch appeal and he’s got no place left to go. He does not know much about the law or court procedures but he told me he knows there is now nothing between him and his date with death. He’s resigned to his fate and I hear him pacing the floor a lot, a pacing that is gradually morphing into a listless shuffling, as if all hope has deflated from his body, like air leaking from a punctured tire. It’s a sad, melancholy sound when you know its context. I choose to remain active, vital and alive, my spirit, intellect and even my humor undiminished, and I’ll remain so until they shoot that poison into my veins and snuff out the candle of this physical vehicle…

May 22, 2013
I have 21 days left to live. The fickleness, the arbitrariness, the fleeting nature of life itself is on display daily throughout our world but as good an example as any occurred here on Monday morning when, as I was being dressed out here on Q-Wing for a visit, a sudden radio call brought the wing officers rushing upstairs where they found a prisoner (non-death row) hanging in his cell. After 20+ years in prison this guy (Earl) had finally given in to the utter hopelessness that can seize the heart and spirit of any man mired forever in an American maximum security prison. The irony wasn’t lost on me that while 3 of us on death watch are fighting to live, this poor soul, living just 10 feet above us, stripped of all hope, had voluntarily surrendered his life rather than continue his dismal existence. When nothing but a lifetime of suffering lays ahead – with no hope, no promise, no opportunity to change your fate – the idea of utter annihilation can come to look appealing in contrast. When everything has been taken from you, the one thing you have left, that nobody can take away, is the decision to live or die. In that context choosing death can look like freedom…

Today my neighbor, Elmer, went on Phase II of death watch, which begins 7 days prior to execution. They remove all your property from your cell while an officer sits in front of your cell 24/7 recording everything you do. Staff also performs a “dry run” or “mock execution”, basically duplicating the procedures that will occur 7 days later. This is when you know you’re making the final turn off the back stretch, you know your death is imminent, easily within reach, you can count it by hours instead of by days. Right now I’m on deck; when Elmer goes I’ll be up to bat (that’s enough sports metaphors for now)…

May 28, 2013
Tomorrow Elmer will be executed and I’ll be next up to bat, with 15 days to live. A situation like this tends to make you reflect on the elusive nature of time itself, which some folks – physicists and metaphysicists alike – claim is an illusion anyway. Real or not it sure seems to be going someplace quickly!…

This may be my last letter to reach you before you begin your journey down south to be by my side for my final days. These many visits I’ve recently received from those who love me have been a blessing for me. I’m acutely aware that some guys on death watch have absolutely nobody to help them bear their burden during their last days and hours on earth, not a soul willing to share some love. It’s a terrible thing to die all alone…

I read in a recent newspaper article that the brother and sister of Fred Griffis, the victim in my case, are angry that I’m still alive and eager for my execution. These are understandable human feelings. I have a brother and sister myself and I cannot honestly say how I would deal with it if something happened to you or Jeff at the hands of another. I have thought of Fred many times over the years and grieved over his senseless death. I feel bad for Fred’s siblings though if seeing another human being die will truly give them pleasure. I suspect when I’m gone, if they search their hearts, they will grasp the emptiness of the closure promised by the revenge of capital punishment. There’s a lot of wisdom in the old saying “An eye for an eye soon makes the whole world blind…
. . . . . . . . . . .
Update: William Van Poyck was executed by lethal injection, and pronounced dead at 7:24 pm on June 12, 2013.

Mulling over Martinez: Why a Recent Supreme Court Case might get you into Federal Court in Style

Published earlier in: Florida Postconviction Legal Perspectives (FPLP),  Vol. I, Issue 10, pages 11-14, Oct. 2012

By Gray R. Proctor

Greetings! I want to talk about an issue in federal habeas corpus review, specifically procedural default. A recent Supreme Court case might have an unexpected effect: allowing defendants to choose whether to bring their claims of ineffective assistance of counsel – and perhaps other claims that cannot be brought at trial or on direct appeal – directly in federal court, without going through Florida state court in a 3.850 motion or similar device. I’ll explain the case, what it can definitely do, what I think it might do, and how that might help you. Accordingly, this month I need to open with something you might expect from an attorney: a disclaimer. This column is not legal advice. I make no prediction about how any court will apply the law to your case. Rely on the opinions I express here at your own

On March 20, 2012, the Supreme Court decided Martinez v. Ryan.1
Changing the law for most federal habeas petitioners, Martinez established that if the petitioner had no attorney or had an ineffective attorney on state postconviction review, the petitioner’s failure to bring certain claims will no longer result in procedural default (explained below). Martinez applies only to those claims that could not have been brought at an earlier stage of criminal proceedings when the petitioner did have a right to counsel. I use the example of ineffective assistance of counsel in this column, but there will be others. I may consider which other claims could benefit from Martinez in a future piece. I also do not consider the role of Martinez for federal prisoners bringing their §2255 motions, but it seems to me that it could allow them to bring new claims on appeal from the denial of their § 2255 motions.

Prior to Martinez, federal habeas courts had held that because no right to counsel exists after direct appeal, these claims were defaulted if not brought in state court even if counsel made an egregious error. To recap the events leading to the Supreme Court decision: Proceeding pro se on federal habeas review of his Arizona state conviction, Luis Martinez brought an ineffective assistance of counsel claim that had not been presented in Arizona postconviction proceedings below. The state argued that Martinez’s claim was therefore procedurally defaulted on habeas review.1

Martinez countered by arguing that his claim fell within the “cause and prejudice” exception to
procedural default because it wasn’t his own fault that the claim hadn’t been raised. The cause here: Martinez’s postconviction attorney2 failed to raise the ineffective assistance claim in state courts.
The state’s reply, well supported by existing case law, was that ineffective assistance of counsel couldn’t serve as “cause” for claims not brought on collateral review.4

Existing law provided that where a right to counsel exists, the Sixth Amendment “requires that responsibility for the [procedural] default be imputed to the State” rather than the petitioner.5
Without such a right, a petitioner was bound by the acts of the attorney, who was deemed to be his agent just as in a civil case.

Martinez lost in the district court. On appeal, he argued that he was entitled to effective assistance of counsel on collateral review, at least with respect to his claim of ineffective assistance of trial or appellate counsel, because he could not have brought that claim at trial or on direct appeal.6

Thus, he had never had any right to counsel’s assistance in bringing this particular claim. To quote from the Ninth Circuit’s opinion:

Martinez asserts that he is entitled to the effective assistance of counsel in connection with his first state petition for post-conviction relief. He asserts that a right to the assistance of counsel attaches to the presentation of a claim of error at the first tier of review, relying upon Halbert v. Michigan, 545 U.S. 605, (2005) and Douglas v. California, 372 U.S. 353 (1963). Martinez recognizes the general rule that “there is no right to counsel in state collateral proceedings,” see Coleman, 501 U.S. at 755, 111 S.Ct. 2546, but asserts that there might be an exception where “state collateral review is the first place a prisoner can present a challenge to his conviction.” 501 U.S. at 755.

…. On the one hand, the Court’s decisions in Halbert and Douglas recognized a federal
constitutional right to counsel in connection with a criminal defendant’s direct appeal from his
conviction (or the equivalent of direct appeal). On the other hand, in Ross v. Moffitt, the Court
declined to recognize a right to counsel in connection with a criminal defendant’s pursuit of secondtier review. 417 U.S. 600 (1974).8

To briefly review the relevant law: Douglas established that the Equal Protection Clause guarantees effective
assistance of counsel on direct appeal, because “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”9

Halbert involved Michigan’s procedure granting its courts of appeal discretion to reject appeals of guilty
pleas. Although the Supreme Court had previously refused to extend the Sixth Amendment’s guarantee of effective counsel to appeals in state supreme court or the Supreme Court, 10 it held in Halbert that the right to counsel does extend to discretionary review which is “likely the only[] direct review the defendant’s conviction and sentence will receive.”11

To return to Martinez: the Ninth Circuit decided that “there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constitute the first tier of review for an ineffective assistance of counsel claim.”12

To again quote that court:

This case is more like Ross than Halbert. In Ross, the petitioner had already received direct review of his convictions, and had already received the assistance of counsel in connection with that first appeal. Likewise, here, Martinez has already received direct review of his conviction and received the assistance of counsel in connection with that appeal. In Halbert, by contrast, the petitioner sought the functional equivalent of direct review, the first appeal of his conviction. Even if collateral review presents the first tier of review for Martinez’ ineffective assistance of counsel claim, we conclude that Martinez’ action is not analogous to a direct appeal — or the first opportunity for him to obtain review of his conviction — so as to entitle him to effective counsel.13

The Martinez court adhered to the existing law on the “cause” element of the cause and prejudice exception to procedural default: that an attorney’s actions cannot serve to excuse default unless her client had a right to
counsel at the time of the error. Thus, Martinez lost again.

Martinez won in the Supreme Court, but not on the right-to-counsel issue. The Supreme Court recognized that it was still an open question, but found that “[t]his is not the case . . . to resolve whether that exception exists as a constitutional matter.” Instead, the Supreme Court changed the doctrine of procedural default:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Just as it did in Maples v. Thomas14 earlier this term, the Martinez Court decided that an attorney’s misconduct in postconviction proceedings excused a procedural default, regardless of whether a right to counsel exists.

Forget for a moment the question of whether there’s a constitutional right to counsel on collateral appeal. Your guess is as good as mine when that will be resolved or what the answer will be. Let’s talk about how Martinez can help you if you didn’t have appointed counsel on Florida postconviction review.

The obvious benefit goes to those of you who want to bring a new claim of ineffective assistance in federal court that you didn’t think of on Florida postconviction review. Most of you did not study the law until you were faced with filing your 3.850 or 3.800 motions, so you may have discovered new legal theories that didn’t occur to you during the first round of review. Or, new facts may have come to light that allow you to make claims that didn’t seem plausible before. These would have been procedurally defaulted before Martinez, but now you can probably bring them. If this describes you, you can skip the next two paragraphs and see how else this will help you obtain the benefits of fullscale de novo federal review of your claim – and possibly appointed counsel as well.

For those of you who have not yet filed a Florida postconviction motion, Martinez could also do something for you that you might not realize: if you’re not appointed an attorney on collateral review, Martinez may give you a meaningful choice between having your claims heard in state or federal court. I’ll explain why you might want to do that before, but first I want to warn you that deliberately failing to bring claims in state court is still a very risky strategy. Martinez is a new case, and federal courts haven’t decided what its limits are. Conceivably, federal courts could rule that if you “deliberately bypass” the state courts15 by failing to bring a claim that you know you could have brought, Martinez does not apply – and then your claim will never be heard at all.

That said, it seems clear to me that Martinez makes the federal court a viable forum when it applies. The reason is that if Martinez applies, there’s no lower court decision to contend with. Let me explain why that makes a big difference.

First of all, a Martinez-excused claim should be much more likely to receive an evidentiary hearing. 28 U.S.C. §2254 provides that petitioners who have “failed to develop the factual basis of a claim in State court” will not receive an evidentiary hearing unless the petitioner can show that no reasonable factfinder would have found the petitioner guilty if his constitutional rights had not been violated.16

“Failed” here doesn’t just mean that you didn’t do it; it means that it’s your own fault. A habeas petitioner “fails” to develop the factual basis of a claim when there exists “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”17

Martinez holds that it’s not your fault you didn’t bring a claim if you didn’t have counsel – at least, with respect to procedural default. The reasoning seems equally applicable to evidentiary hearings. If so, evidentiary hearings on Martinez-excused claims will be governed by the more generous standard of Townsend v. Sain:

[A] federal court must grant an evidentiary hearing to a habeas applicant under the following
circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there isa substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.18

You ought to be able to meet that standard. Even better, you’ll be appointed an attorney under the rules of habeas procedure.19

It is not 100% certain that you’ll be entitled to constitutionally effective assistance from that attorney,
but I think it extremely likely, and in any event it’s not certain that you won’t enjoy the Sixth Amendment guarantee from your federal habeas attorney.20

I leave it to you to decide whether the average attorney appointed for a federal habeas case will be better than the average attorney appointed in Florida state postconviction proceedings.

The other benefit pertains to questions of law. If you bring a claim in state courts and the state court gets it wrong, you’re in trouble, because the federal court can’t just fix it. Federal habeas courts are likely to be bound by that state court decision – especially for Strickland claims. For any claim “adjudicated on the merits in State court,” the standard of relief requires federal courts to find “a decision that was contrary to, or involved an application of, clearly established Federal law, as determined by the Supreme Court of the United States.”21

So if the state court decision is wrong, but not unreasonably wrong, you still lose. Strickland already gives counsel a presumption of effectiveness, leading the Court to speak of “the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”22

Because there is no state court decision to defer to, Martinez-excused claims can prevail if the district judge thinks they should. Also, if you would definitely win under Eleventh Circuit (federal court of appeals) law but might not under Florida law, avoiding the “as determined by the Supreme Court” requirement is an attractive option. If you brought your claim in state court and lost, case law from the Eleventh Circuit law would not apply.

These are my thoughts on Martinez so far. In addition to letting you bring your claim in federal court, it helps you avoid the parts of AEDPA23 that have crippled federal courts. Whether your claim is better heard in state or federal court is not possible to predict in a general sense, but you might decide that the possibility is worth the risk. As always, I wish you luck.


Note 1. 132 S.Ct. 1309 (2012).

Note 2. See, e.g., Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998) (applying doctrine of procedural default to claims by federal prisoners under 28 U.S.C. § 2255 that were not raised at trial or on appeal); Snowden v.
Singletary, 135 F.3d 732, 735-76 (11th Cir. 1998) (explaining that claims not “exhausted” in state court are procedurally defaulted if they could no longer be raised at the time the federal court consider a 28 U.S.C. §2255 petition).

Note 3. Arizona is one of a few states that appoint counsel for every first postconviction proceeding. Ariz. Rule Crim. Proc. 32.4(c)(2). Rule 3.111(b)(2) of the Florida Rules of Criminal Procedure allows appointment of counsel on postconviction review, but does not offer any criteria for deciding when counsel should be ppointed. Rule 3.851(b) makes appointment of counsel mandatory for postconviction proceedings in capital cases.

Note 4. Coleman v. Thompson, 501 U.S. 722, 753–754, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Note 5. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions”).

Note 6. Murray v. Carrier, 477 U.S. 478, 488 (1986).

Note 7. Massaro v. United States, 538 U.S. 500 (2003) (explaining that “almost all jurisdictions prefer that ineffective assistance claims be presented on collateral attack”).

Note 8. Martinez v. Schriro, 623 F.3d 731, 736-37 (9th Cir. 2010). Following the quoted text is a useful review of the law
governing the right to counsel both at trial and on appeal.

Note 9. At 357.

Note 10. Ross v. Moffitt, 417 U.S. 600 (1974).

Note 11. Halbert v. Michigan, 545 U.S. 605, 609 (2005).

Note 12. 623 F.3d at 739-40.

Note 13. Id. at 740.

Note 14. Maples v. Thomas, ___ U.S. ___, 132 S.Ct. 912, 922-23, 181 L.Ed.2d 807 (2012) (finding cause and prejudice to excuse procedural default in capital case where the petitioner’s counsel destroyed the principal-agent relationship
by abandoning him without notice, but explaining that where no right to counsel exists, a petitioner is bound by the acts and omissions of his attorney under “well settled principles of agency law”) (quotation omitted).

Note 15. “Deliberate bypass” is an older standard for deciding whether a claim was procedurally defaulted. Fay v. Noia, 372 U.S. 391 (1963). This standard is no longer applied in habeas corpus. Wainwright v. Sykes, 433 U.S. 72 (1977). Nevertheless, it could be revived for petitioners who fail to bring a claim for the sole reason that they want to secure the benefits I discuss in this column.

Note 16. 28 U.S.C. § 2254(e)(2)(B) (emphasis added). In addition to this requirement, a petitioner must show that theclaim either relies on a new, retroactive rule of constitutional law or depends on facts that could not have been discovered earlier. 28 U.S.C. § 2254 (e)(2)(A).

Note 17. Williams v. Taylor, 529 U.S. 420, 432 (2000).

Note 18. 372 U.S. 293, 313 (1963)

Note 19. Rules Governing Section 2254 Cases in the United States District Court, Rule 8(c) (“§2254 Rules”) (“If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” (governing appointment of counsel for indents)).

Note 20. McGriff v. Dep’t of Corr., 338 F.3d 1231, 1235 (“If the Supreme Court had intended a § 2254 petitioner to have a more substantial right to counsel than those provided by the Constitution, we would expect to see language to that effect in the text of the rule. We find no such language in Rule 8(c). We therefore turn to the Constitution not for authority, but instruction.”).

Note 21. 28 U.S.C. § 2254(d)(1).

Note 22. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

Note 23. The Anti-Terrorism and Effective Death Penalty Act, passed in 1996, significantly narrowed the scope of federal habeas review.

About the Author

Gray R. Proctor is currently on the Board of Directors for the Florida Postconviction Legal Aid Organization and practices law in Orlando, Florida, representing clients in criminal appeals and state and federal habeas corpus proceedings. Gray R. Proctor’s legal career really began during his second year at Vanderbilt University Law School.

Professor Nancy King (co-author of West’s Criminal Procedure treatise and Assistant Reporter for the Advisory Committee for the Federal Rules of Criminal Procedure) had just undertaken her groundbreaking empirical study of federal habeas litigation in district courts, and Gray was lucky enough to serve as a research assistant on that project. Over the course of the habeas project, Gray reviewed over 800 non-capital habeas cases and 100 capital habeas cases throughout the country, documenting which claims and defenses were raised and the eventual ruling. This study is cited by Justice Scalia in the Martinez dissent.

Professor King also served as faculty advisor for Gray’s published senior thesis, “Ngo Excuses: Proving, Rebutting, and Excusing Exhaustion in Prisoner Suits after Woodford v. Ngo and Jones v. Bock,” 31 Hamline L. Rev. 471. Professor King would later serve as Gray’s co-author in “Post-Padilla: Padilla’s Puzzles for Review in State and Federal Courts,” 23 Fed. Sent. R. 239, an article about how Padilla’s
ruling would have to be filtered through federal postconviction rules. His particular interest in Padilla is whether it will be applied retroactively; the Supreme Court heard oral arguments on this issue in Chaidez v. United States, and those who wish to place bets on how it will be decided should contact Gray directly.

Immediately after law school, Gray served as law clerk for the Hon. Brian Owsley in the U.S. District Court for the Southern District of Texas. Gray then moved to Richmond, Virginia, serving for two years as a pro se law clerk (drafting opinions in uncounseled prisoner filings) at the U.S. District Court for the Eastern District of Virginia, which is affectionately known as “the Rocket Docket” for its unusual
speed and efficiency.

Afterward, Gray served as a Staff Attorney for the United States Court of Appeals for the Fourth Circuit, drafting memoranda and opinions for appeals of criminal cases, postconviction proceedings, prisoner civil rights suits, and the occasional miscellaneous federal suit.

Gray left the Fourth Circuit to serve as deputy director of the American Bar Association’s National Inventory of the Collateral Consequences of Conviction, a free, internet-based catalog of laws and regulations in every United States jurisdiction that impose a civil consequence due solely to a criminal conviction (think felon disenfranchisement). Gray continues to serve in that capacity under Director and former U.S. Pardon Attorney Margaret C. Love, balancing his commitment to that project with his appellate, postconviction, and civil rights law practice in Orlando, FL.

Gray R. Proctor, Esq.
1199 N. Orange Ave.
Orlando, FL 32804
phone: 321-445-1951
fax: 321-445-5484

Scott names insider as Florida prison secretary

From: Miami Herald
Dec. 17th 2012


TALLAHASSEE, Fla. — Florida’s new prison chief on Monday inherited a deficit of about $60 million and a legal dispute over privatizing inmate health care that he says could put his agency much deeper in debt.

Michael D. Crews spoke about the challenges he’s facing as secretary of corrections a couple hours after Gov. Rick Scott announced his appointment to succeed Ken Tucker, who retired. Crews had been deputy secretary since last year.

“I have total confidence in the people that I have the opportunity to work with here that we are ultimately going to get to where we want to be as an agency,” Crews told reporters.

He began his 26-year career in corrections and law enforcement as a probation and parole officer. Later, he worked as a correctional officer and then had various jobs in the Florida Department of Law Enforcement including director of the agency’s professionalism program and chief of its bureau of standards.

Scott, a former hospital chain CEO who was new to politics when elected in 2010, again has turned to an insider after initially appointing people without Florida government experience to many key posts when he took office nearly two years ago.

His initial appointee as corrections secretary, former Indiana prisons chief Edwin Buss, lasted just six months. Scott forced him out in August 2011 after initial health care privatization bids would have benefited a consultant whom Buss had hired. Scott’s office also overrode a decision by Buss to give MSNBC access to Florida’s prisons for its “Lockup” program.

Read more here: http://www.miamiherald.com/2012/12/17/3145896/scott-names-insider-as-florida.html#storylink=cpy