James Ernest Hitchcock v. State of Florida

Supreme Court of Florida
                             ____________

                          No. SC2026-0574
                            ____________

                   JAMES ERNEST HITCHCOCK,
                           Appellant,

                                  vs.

                        STATE OF FLORIDA,
                             Appellee.

                            April 23, 2026

PER CURIAM.

     James Ernest Hitchcock is a prisoner sentenced to death. The

Governor signed a warrant for his execution, set to occur April 30,

2026. Hitchcock appeals the denial of his successive motion for

postconviction relief. We have jurisdiction. See art. V, § 3(b)(1),

Fla. Const.; see also State v. Fourth Dist. Ct. of Appeal, 697 So. 2d

70, 71 (Fla. 1997) (holding “that in addition to our appellate

jurisdiction over sentences of death, we have exclusive jurisdiction

to review all types of collateral proceedings in death penalty cases”).
     For the reasons below, we affirm the denial of postconviction

relief and deny his motion for a stay of execution.

                                  I

     In 1976, James Ernest Hitchcock was indicted for murdering

his brother Richard’s thirteen-year-old stepdaughter. Hitchcock v.

State (Hitchcock I), 413 So. 2d 741, 743 (Fla. 1982); Hitchcock v.

State (Hitchcock VI), 755 So. 2d 638, 640 (Fla. 2000). Hitchcock

was living with Richard and Richard’s family—including the victim.

On the night of the murder, Hitchcock watched television with

Richard and his family until around 11:00 p.m. Hitchcock then left

the house, went to Winter Garden, and drank beer and smoked

marijuana with his friends.

     Hitchcock told police post-arrest that he returned to the home

around 2:30 a.m. and entered through a dining room window. He

then went to the victim’s room and had sexual intercourse with her.

The victim told Hitchcock she was hurt and was going to tell her

mother. The victim started to yell because Hitchcock would not let

her leave the bedroom. Hitchcock then choked her and carried her

outside. When she still refused to be quiet, Hitchcock choked and




                                 -2-
beat the victim until she was silent and pushed her body into some

bushes. He returned to the home, showered, and went to bed.

     At trial in January 1977, Hitchcock recanted his prior

statement to police confessing to the murder. Contrary to his prior

statement, Hitchcock claimed that the victim let him into the house

and agreed to have sexual intercourse. Hitchcock claimed that after

having intercourse, Richard entered the bedroom, dragged the

victim outside, and began choking her. Hitchcock said that by the

time he got Richard away from the victim, she was already dead.

According to Hitchcock, Richard said he did not mean to kill her,

and that Hitchcock would cover up for Richard. In explanation for

his prior admission, Hitchcock said he was trying to protect

Richard.

     The jury found him guilty of first-degree murder and

recommended that he be sentenced to death. Hitchcock I, 413 So.

2d at 743. After weighing the aggravating and mitigating

circumstances, the court agreed with the jury’s recommendation

and imposed the death penalty. Id. 1



    1. The court found three aggravating circumstances: (1) the
murder was committed in the course of an involuntary sexual

                                -3-
     We affirmed Hitchcock’s judgment and sentence on direct

appeal in 1982, rejecting the many issues he raised. Id. 2 The U.S.




battery; (2) the purpose of the murder was to eliminate a witness to
avoid arrest; and (3) the murder was especially heinous, wicked, or
cruel. Hitchcock I, 413 So. 2d at 746.

      2. Hitchcock argued the following in that direct appeal: (1) the
trial court improperly restricted his presentation of evidence
corroborating his defense theory, his impeachment of a key
prosecution witness, and his explanation of his false confession; (2)
the trial court improperly communicated with the jury during
deliberations; (3) the exemption of mothers with young children
from jury service denied his right to a jury drawn from a fair
cross-section of the community; (4) the evidence was insufficient to
convict him of first-degree murder because it did not show
premeditation or felony murder; (5) the trial court erred by denying
Hitchcock’s motion for judgment of acquittal, claiming insufficiency
of the evidence to show either premeditation or felony murder; (6)
the trial court sentenced him to death because he exercised his
right to a jury trial; (7) the conviction and sentence must be
overturned because, before trial, he had no notice of the aggravating
circumstances that the State intended to show and on which the
judge and jury relied; (8) the trial judge improperly assessed the
aggravating and mitigating factors; (9) the rape portion of section
921.141(5)(d), Florida Statutes (1977), is so vague and confusing as
to be unconstitutional because the crime of “rape” no longer exists
in this state (“Ch. 74–121, Laws of Florida, amended ch. 794, Fla.
Stat., to replace the former rape statute with the crime of sexual
battery.” Hitchcock I, 413 So. 2d at 747 n.7); (10) section 921.141
unconstitutionally limits the consideration of mitigating factors and
that he was improperly limited in presenting mitigating evidence;
and (11) section 921.141 is unconstitutional on its face, that the
death penalty is inconsistently applied, and that there are no
standards for weighing aggravating and mitigating factors.
Hitchcock I, 413 So. 2d at 744-48.

                                -4-
Supreme Court denied certiorari review. Hitchcock v. Florida, 459

U.S. 960 (1982).

     In 1983 Governor Graham denied Hitchcock’s clemency

request and signed his death warrant. Hitchcock v. State (Hitchcock

II), 432 So. 2d 42, 43 (Fla. 1983). Hitchcock then filed a motion to

vacate his judgment and sentence under Florida Rule of Criminal

Procedure 3.850. In the postconviction court, Hitchcock raised two

claims3 that the postconviction court summarily denied. Hitchcock

appealed, repeating his claims made in the trial court and arguing

the trial court erred in denying his motion. We affirmed, finding

that the motion and record conclusively showed that Hitchcock was

not entitled to relief. Id.

     Hitchcock then petitioned for federal habeas relief. After the

U.S. District Court for the Middle District of Florida denied relief

and the Eleventh Circuit Court of Appeals affirmed, the U.S.




       3. Hitchcock argued that his death sentence violated his
Sixth, Eighth, and Fourteenth Amendment rights for two reasons:
“[(1)] the then-current state of the law prevented his trial counsel
from presenting nonstatutory mitigating evidence at his sentencing
proceeding; and [(2)] the death penalty statute fail[ed] to channel
jury discretion and permit[ted] the interjection of irrelevant factors
into the sentencing process.” Hitchcock II, 432 So. 2d at 43.

                                 -5-
Supreme Court granted review. Hitchcock v. Dugger, 481 U.S. 393,

394 (1987). Hitchcock argued that he was sentenced to death

under a Florida statute that operated in a way that prevented the

sentencing jury and judge from considering relevant mitigating

evidence—that being mitigating circumstances not listed in the

statute. Id. The Supreme Court reversed, finding that in

Hitchcock’s case “the advisory jury was instructed not to consider,

and the sentencing judge refused to consider, evidence of

nonstatutory mitigating circumstances,” all of which ran contrary to

the requirements of Skipper v. South Carolina, 476 U.S. 1 (1986),

Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lockett v. Ohio, 438

U.S. 586 (1978) (plurality opinion), as Hitchcock was precluded

from presenting all relevant mitigating evidence. Hitchcock, 481

U.S. at 398-99.

     After the Supreme Court’s decision in Hitchcock v. Dugger, 481

U.S. at 399, the State proceeded with a new penalty phase.

Hitchcock v. State (Hitchcock III), 578 So. 2d 685, 688 (Fla. 1990). A

jury again recommended sentencing Hitchcock to death. Id. The

trial court imposed the death penalty after finding four aggravating




                                 -6-
factors 4 and finding the aggravating factors to outweigh the

mitigation. 5 Id.

     After his resentencing, Hitchcock appealed his death sentence,

again raising many issues. 6 We affirmed Hitchcock’s death



     4. The court found the crime was committed while Hitchcock
was under sentence of imprisonment, was committed during a
sexual battery, was committed to avoid or prevent arrest, and was
especially heinous, atrocious, or cruel (HAC). Hitchcock III, 578 So.
2d at 688.

     5. The court considered as mitigation Hitchcock’s age,
deprivations, character traits, and use of drugs and alcohol. Id.

      6. He argued (1) the trial court improperly refused to grant his
challenges for cause to three prospective jurors; (2) the trial court
prevented him from presenting mitigating evidence; (3) the trial
court erred in allowing the State to read into evidence the trial
transcript of a hair analyst’s testimony; (4) it was improper to
introduce his original confession and a letter to his mother
confessing to the murder; (5) testimony about the victim and her
characteristics was improper; (6) he was prejudiced by having eight
death row inmates testify on his behalf; (7) “the jurors’ and
potential jurors’ knowledge of his previous sentence from pretrial
publicity was unlawfully prejudicial and that the court’s refusing
his proposed instruction compounded that prejudice;” (8) the court
erred in instructing the jury on the aggravating circumstance of
murder committed during the commission of a felony because
“[t]here is no conviction for sexual battery in this case;” (9) the court
erred in finding four aggravating circumstances and that his death
sentence is disproportionate; (10) instructing the jury in terms of
“sexual battery” rather than “rape” is an ex post facto violation; (11)
the trial court’s finding of the “under sentence of imprisonment”
aggravator was an ex post facto violation and constitutes double
jeopardy; and (12) the delay between his arrest (1976) and

                                  -7-
sentence, id. at 693, and the U.S. Supreme Court denied

Hitchcock’s petition for writ of certiorari, Hitchcock v. Florida, 502

U.S. 912 (1991). But eight months later, the U.S. Supreme Court

granted petitions for rehearing and for writ of certiorari, vacating

the judgment and remanding the case to this Court for further

consideration in light of Espinosa v. Florida, 505 U.S. 1079 (1992).

Hitchcock v. Florida, 505 U.S. 1215 (1992).

     On remand from the U.S. Supreme Court, we determined that

the trial court gave the jury an inadequate instruction on the

especially heinous, atrocious, or cruel (HAC) aggravator under

Espinosa. Hitchcock v. State (Hitchcock IV), 614 So. 2d 483, 484

(Fla. 1993). Because this Court could not determine the extent to

which the instruction factored into the jury’s consideration of the

recommended sentence, we vacated Hitchcock’s death sentence and




resentencing (1988) violates his right to a speedy trial and his due
process rights and constitutes cruel and unusual punishment.
Hitchcock III, 578 So. 2d at 688-93 (alteration in original). The
Court added that Hitchcock argued some issues that did not merit
discussion: unconstitutionality of the instruction on HAC;
unconstitutionality of Florida’s death penalty statute; and jury
instructions regarding sympathy toward the defendant. Id. at 688
n.2.

                                  -8-
directed the trial court to empanel a jury for a new penalty phase.

Id.

      Hitchcock was resentenced to death—following a unanimous

jury recommendation—and he appealed to this Court. Hitchcock v.

State (Hitchcock V), 673 So. 2d 859, 860 (Fla. 1996). 7 We again

reversed and remanded for resentencing because “evidence

portraying Hitchcock as a pedophile, including unverified

allegations of Hitchcock’s sexual abuse of a number of children,

was erroneously made a feature of his resentencing proceeding” and

“deprived Hitchcock of a fair sentencing.” Id. at 860.

      Hitchcock’s third resentencing began in September 1996.

Hitchcock VI, 755 So. 2d at 640. The jury recommended sentencing

Hitchcock to death by a 10-2 vote. Id. The court sentenced

Hitchcock to death after finding four aggravating circumstances. 8



     7. The trial court found four aggravators: (1) the capital felony
was committed while Hitchcock was under a sentence of
imprisonment; (2) the capital felony was committed while Hitchcock
was engaged in the commission of a sexual battery; (3) the capital
felony was committed for the purpose of avoiding a lawful arrest;
and (4) the capital felony was HAC. Hitchcock V, 673 So. 2d at 861
n.2.

     8. The court found that (1) the crime was committed by a
person under sentence of imprisonment (parole); (2) the crime was

                                 -9-
The court found one statutory mitigating factor, Hitchcock’s age

(twenty). 9 Id.

     On appeal from this new death sentence, Hitchcock raised

eighteen claims. 10 This Court rejected all his claims as either



committed during commission of the felony of sexual battery; (3) the
crime was committed for the purpose of avoiding arrest; and (4) the
crime was especially HAC. Hitchcock VI, 755 So. 2d at 640.

      9. “As to nonstatutory mitigation, the court in an amended
sentencing order assigned ‘very little weight’ to six circumstances
surrounding the instant crime, ‘some weight’ to nine circumstances
concerning Hitchcock’s background, and ‘some weight’ to eight
circumstances concerning Hitchcock’s ‘positive character traits.’ ”
Id. at 640-41.

      10. Hitchcock claimed that: (1) the trial court erred in
permitting the State to put into evidence a three-page narrative
report concerning results of a psychological test; (2) the trial court
erred in overruling the defense objection to the State’s closing
argument as to Hitchcock’s mitigation evidence; (3) the trial court
erred in overruling the defense objection to the State’s argument as
to a defense expert witness; (4) fundamental error occurred in the
State’s final argument to the jury; (5) resentencing is required
because the judge in Hitchcock’s new trial was removed from the
bench during an investigation of bribery charges, and it was error
for a substitute judge to rule on Hitchcock’s motion for
resentencing; (6) the trial court erred in instructing upon, allowing
the State to argue, and finding the aggravating circumstance of
avoiding or preventing arrest; (7) the trial court erred in denying
Hitchcock’s constitutional challenges to the sentence of
imprisonment and felony-murder aggravating circumstances as
applied; (8) the State failed to prove the felony-murder aggravating
circumstance based on the underlying felony of rape or sexual
battery, and this aggravating circumstance is unconstitutional; (9)

                                - 10 -
procedurally barred or without merit and affirmed. Id. at 641. The

U.S. Supreme Court denied Hitchcock’s petition for writ of

certiorari. Hitchcock v. Florida, 531 U.S. 1040 (2000).

     In 2001, Hitchcock filed a motion for postconviction DNA

testing under section 925.11, Florida Statutes, and Florida Rule of

Criminal Procedure 3.853. Hitchcock v. State (Hitchcock VII), 866

So. 2d 23, 25 (Fla. 2004). The postconviction court denied

Hitchcock’s motion, finding that the motion did not “set forth the

evidentiary value of the evidence to be tested or explain how the

results would exonerate Defendant or mitigate his sentence.” Id. at




the trial court erred in using the HAC aggravating circumstance and
in giving an unconstitutional instruction as to HAC; (10) the trial
court erred in refusing to instruct the jury as to improper doubling
of aggravating circumstances; (11) the trial court erred in
considering both the felony-murder and avoid-arrest aggravating
circumstances; (12) the trial court’s findings as to mitigation were
deficient; (13) Hitchcock’s death sentence is disproportionate; (14)
the trial court erred in permitting testimony showing that his
appellate attorney had represented Hitchcock on clemency; (15) the
trial court erred in denying relief based on newly discovered
evidence without considering corroborating evidence and
circumstances; (16) the trial court (a substitute judge) erred in
ruling on and denying Hitchcock’s motion for a new sentencing
proceeding; (17) the trial court erred in excluding from evidence and
refusing to consider the State’s prior offer of a life sentence; and
(18) conducting Hitchcock’s sentencing proceeding many years after
his crime was unconstitutional. Id.

                                - 11 -
26. Hitchcock appealed the denial of his motion, and we affirmed.

Id. at 27-28.

     Hitchcock also filed a rule 3.850 motion in 2001, raising

thirteen claims. Hitchcock v. State (Hitchcock VIII), 991 So. 2d 337,

342-44 (Fla. 2008). 11 The postconviction court denied all of



      11. He argued (1) resentencing counsel was ineffective for
failing to object to the testimony of a witness; (2) guilt-phase
counsel and resentencing counsel were ineffective for failing to
object to testimony and argument that the victim was a virgin at the
time of the offense; (3) guilt-phase counsel was ineffective for failing
to spend adequate time preparing for trial and thus opened the door
to negative character evidence about him and for failing to admit
evidence implicating Richard in the murder; (4) resentencing
counsel was ineffective for failing to recall a doctor to explain the
Minnesota Multiphasic Personality Inventory narrative report
introduced by the State; (5) resentencing counsel was ineffective for
failing to have him evaluated for neuropsychological impairment; (6)
resentencing counsel was ineffective for failing to fully develop
available statutory and nonstatutory mitigating evidence; (7) the
State violated his constitutional rights by destroying exculpatory
physical evidence; (8) the trial court’s instructions diminished the
jury’s role in sentencing in violation of Caldwell v. Mississippi, 472
U.S. 320 (1985), and counsel was ineffective for not objecting to the
instructions; (9) newly discovered evidence demonstrated that
Richard committed the murder; (10) the State failed to disclose the
deficiencies of hair analyst Diana Bass and then knowingly
presented the analyst’s incompetent and false testimony, guilt-
phase counsel was ineffective for failing to challenge the
admissibility of Bass’s testimony, and this newly discovered
evidence of Bass’s incompetence undermined his conviction; (11)
resentencing counsel was ineffective for failing to object to the
court’s felony-murder instruction and for failing to request a jury
instruction on the elements of sexual battery; (12) his constitutional

                                 - 12 -
Hitchcock’s claims, and he appealed, raising eleven issues. 12 Id. at



rights were violated because he was not present at the bench
conference when peremptory challenges were exercised, trial
counsel was ineffective for failing to ensure that Hitchcock was
present during all critical stages of the proceedings, and the trial
court erred by not ensuring that the transcript was complete; and
(13) Florida’s capital sentencing scheme is unconstitutional as
applied to him. Hitchcock VIII, 991 So. 2d at 344 n.5.

      12. He claimed (1) the circuit court erred in holding that his
guilt-phase claims were procedurally barred; (2) the circuit court
erred in denying his claim that resentencing counsel was ineffective
for failing to object to the testimony of a witness; (3) the circuit
court erred in denying his claim that guilt-phase counsel was
ineffective for failing to spend adequate time preparing for trial and
thus opened the door to negative character evidence about him and
for failing to admit evidence implicating Richard in the murder; (4)
the circuit court erred in denying his claim that resentencing
counsel was ineffective for failing to present available evidence of
statutory mitigating circumstances and organic brain damage; (5)
the circuit court erred in denying his claim that the State violated
his constitutional rights by destroying exculpatory physical
evidence; (6) the circuit court erred in denying Hitchcock’s claim
that the trial court’s instructions diminished the jury’s role in
sentencing, in violation of Caldwell and counsel was ineffective for
not objecting to the instructions; (7) the circuit court erred in
denying his claim that newly discovered evidence demonstrated that
Richard committed the murder; (8) the circuit court erred in
denying his claim that his constitutional rights were violated when
the State failed to disclose the deficiencies of hair analyst Diana
Bass and then knowingly presented the analyst’s incompetent and
false testimony, guilt-phase counsel was ineffective for failing to
challenge the admissibility of Bass’s testimony, and this newly
discovered evidence of Bass’s incompetence undermined his
conviction; (9) the circuit court erred in denying his claim that
resentencing counsel was ineffective for failing to object to the
court’s felony-murder instruction and for failing to request a jury

                                - 13 -
344. He also filed a petition for writ of habeas corpus, raising six

issues. 13 Id. at 345. We affirmed the postconviction court’s denial

of Hitchcock’s motion for postconviction relief and denied his

petition for writ of habeas corpus. Id. at 364.

     Hitchcock then unsuccessfully engaged in further federal and

state litigation. See Hitchcock v. Sec’y, Dep’t of Corr., No. 6:08-CV-



instruction on the elements of sexual battery; (10) the circuit court
erred in denying his claim that his constitutional rights were
violated when he was not present at the bench conference where
peremptory challenges were exercised, trial counsel was ineffective
for failing to ensure that he was present during all critical stages of
the proceedings, and the trial court erred by not ensuring that the
transcript was complete; and (11) the circuit court erred in denying
his claim that he is entitled to relief under Ring v. Arizona, 536 U.S.
584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
Hitchcock VIII, 991 So. 2d at 344 n.6.

      13. Hitchcock argued (1) his constitutional rights were
violated when he was deprived of notice of felony murder and a
unanimous verdict identifying whether the jury found him guilty on
the theory of felony murder or premeditated murder, and appellate
counsel was ineffective for failing to raise this claim on direct
appeal; (2) appellate counsel was ineffective for failing to raise on
direct appeal the claim that his absence from crucial portions of his
trial violated his constitutional rights; (3) appellate counsel was
ineffective for failing to challenge on direct appeal the trial court’s
finding that the murder was committed during a sexual battery; (4)
appellate counsel was ineffective for failing to raise on direct appeal
the claim that the resentencing instructions violated Caldwell; (5)
Florida’s death penalty statute is unconstitutional because it
violates Ring and Apprendi; and (6) he is incompetent to be
executed. Hitchcock VIII, 991 So. 2d at 345 n.7.

                                 - 14 -
1719-ORL-31KRS, 2012 WL 4339573 (M.D. Fla. Sept. 20, 2012)

(denying federal habeas petition); Hitchcock v. Sec’y, Florida Dep’t of

Corr., 745 F.3d 476 (11th Cir. 2014) (affirming denial of habeas

corpus); Hitchcock v. Crews, 574 U.S. 939, 939 (2014) (denying

petition for writ of certiorari); Abdool v. Bondi, 141 So. 3d 529 (Fla.

2014) (unsuccessfully challenging “Timely Justice Act of 2013”).

     Most recently, Hitchcock argued in a successive rule 3.851

motion for postconviction relief that his death sentence—which

became final in 2000—was unconstitutional under Hurst v. Florida,

577 U.S. 92 (2016), and this Court’s decision on remand in Hurst v.

State, 202 So. 3d 40 (Fla. 2016), receded from in part by State v.

Poole, 297 So. 3d 487 (Fla 2020). Hitchcock v. State (Hitchcock IX),

226 So. 3d 216, 216-17 (Fla. 2017). The postconviction court

summarily denied Hitchcock’s motion, a denial we affirmed because

precedent foreclosed relief and Hurst did not apply retroactively to

Hitchcock’s sentence, which had become final when the U.S.

Supreme Court decided Ring. The U.S. Supreme Court denied

Hitchcock’s petition for writ of certiorari on December 4, 2017.

Hitchcock v. Florida, 583 U.S. 1019 (2017).




                                 - 15 -
     On March 30, 2026, Governor DeSantis signed a death

warrant for Hitchcock’s execution. The execution is set for April 30,

2026, at 6:00 p.m. On April 1, 2026, under the circuit court’s

separate scheduling order, Hitchcock filed demands for additional

public records directed to the Florida Department of Corrections

(FDOC) and the Florida Department of Law Enforcement (FDLE). In

his requests, he clarified that he was “not arguing that the protocol

itself is unconstitutional. Mr. Hitchcock seeks records which

support the colorable claim that FDOC’s failure to follow its own

policies and procedures violates his Eighth Amendment rights.”

(Emphasis omitted.) Both state agencies filed written objections,

and after conducting a hearing, the circuit court sustained FDOC’s

and FDLE’s objections.

     Timely under this Court’s scheduling order, Hitchcock filed the

successive motion for postconviction relief at issue here, raising the

following two issues: (1) the denial of access to lethal injection

records violates his rights under article I, section 24 of the Florida

Constitution, and the Fifth and Fourteenth Amendments of the U.S.

Constitution, ultimately preventing him from proving a viable claim

that his execution would violate the Eighth Amendment; and (2) his


                                 - 16 -
execution would be the unconstitutional execution of an innocent

man in violation of the Fifth, Eighth, and Fourteenth Amendments

to the U.S. Constitution under Herrera v. Collins, 506 U.S. 390, 417

(1993), as well as the corresponding provisions in the Florida

Constitution. In support he attached an affidavit of Dr. Daniel

Buffington, which also had accompanied his public records

requests. In the affidavit, Dr. Buffington provided his “expert

opinion as to the significance and importance” of the information

requested, stating that certain errors or deviation from lethal

injection protocol “could result in unnecessary pain or discomfort or

an unexpected termination of the execution procedure prior to the

inmate’s death.” Hitchcock also moved for a stay of execution.

     The circuit court held a Huff 14 hearing on April 9, 2026, to

decide whether Hitchcock’s motion required an evidentiary hearing.

That same day, the court denied Hitchcock’s request for an

evidentiary hearing. On April 13, 2026, the circuit court entered its

order summarily denying Hitchcock’s successive motion for

postconviction relief and denying his motion for stay. Hitchcock




     14. Huff v. State, 622 So. 2d 982 (Fla. 1993).

                                - 17 -
now timely appeals the circuit court’s order.

                                   II

     “Summary denial of a successive postconviction motion is

appropriate ‘[i]f the motion, files, and records in the case

conclusively show that the movant is entitled to no relief.’ ” Bogle v.

State, 322 So. 3d 44, 46 (Fla. 2021) (alteration in original) (quoting

Fla. R. Crim. P. 3.851(f)(5)(B)); see Fla. R. Crim. P. 3.851(h)(6). In

reviewing a circuit court’s summary denial, “this Court must accept

the defendant’s allegations as true to the extent that they are not

conclusively refuted by the record.” Tompkins v. State, 994 So. 2d

1072, 1081 (Fla. 2008) (citing Rolling v. State, 944 So. 2d 176, 179

(Fla. 2006)). Still, “[t]he defendant bears the burden to establish a

prima facie case based on a legally valid claim; mere conclusory

allegations are insufficient.” Franqui v. State, 59 So. 3d 82, 96 (Fla.

2011) (citing Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)).

A circuit court’s decision whether to grant an evidentiary hearing on

a rule 3.851 motion “is tantamount to a pure question of law,

subject to de novo review.” Marek v. State, 8 So. 3d 1123, 1127

(Fla. 2009) (citing State v. Coney, 845 So. 2d 120, 137 (Fla. 2003)).




                                 - 18 -
                                   A

     In his first argument on appeal, Hitchcock argues the circuit

court erred when it sustained FDOC’s and FDLE’s objections to his

demands for public records filed on April 1, 2026, and denied his

requests. Hitchcock clarifies in his initial brief that he does not

present this argument as a newly discovered evidence claim but as

“a violation of Mr. Hitchcock’s rights which renders his execution

unconstitutional.” In essence, Hitchcock presents a procedural due

process claim ultimately seeking the ability to pursue an Eighth

Amendment method-of-execution claim. We conclude Hitchcock is

not entitled to relief.

                                   1

     The first reason Hitchcock’s argument fails is that his public

records-based claim is not one aimed at the validity of the judgment

or sentence. Instead, he asserts what is essentially a freestanding

due process claim, untethered to any claim that is cognizable under

rule 3.851. 15



     15. Hitchcock’s initial brief states: “Mr. Hitchcock has not
raised either an ‘as-applied’ or ‘method of execution’ challenge to
the use of lethal injection for the State’s planned execution, but
rather [argues] that he is being prevented from obtaining the

                                 - 19 -
     By insisting that he has a right to discovery in the absence of

a claim that could give rise to relief under rule 3.851, Hitchcock

mirrors the strategy pursued by several defendants in federal

court. But no constitutional right exists to discover grievances or to

litigate effectively once in court. Lewis v. Casey, 518 U.S. 343, 354

(1996) (disclaiming prior statements appearing to suggest that the

State must enable a prisoner to discover grievances, and to litigate

effectively in court); Hill v. Dailey, 557 F.3d 437, 439 (6th Cir. 2009)

(citing Lewis, 518 U.S. at 354, and discussing that the State does

not have an obligation to ensure prisoners “litigate effectively once

in court”).

     So courts presented with similar scenarios have rejected due

process and other rights-based arguments to execution-related

information. See, e.g., Trottie v. Livingston, 766 F.3d 450, 452 (5th

Cir. 2014) (“[W]e have held that an uncertainty as to the method of

execution is not a cognizable liberty interest.” (citing Sepulvado v.

Jindal, 729 F.3d 413, 420 (5th Cir. 2013))); First Amend. Coal. of

Ariz., Inc. v. Ryan, 938 F.3d 1069, 1081 (9th Cir. 2019) (rejecting



necessary records to prove any legitimate challenge.” Initial Brief of
the Appellant at 16-17.

                                 - 20 -
arguments that First Amendment entitles inmates to access to

information regarding execution drugs and personnel to discover

whether they have a colorable claim that their executions will be

carried out in violation of the Eighth and Fourteenth Amendments);

Jones v. Comm’r, Georgia Dep’t of Corr., 812 F.3d 923, 929 (11th

Cir. 2016) (“Jones has not identified any cognizable liberty interest

infringed by the Georgia secrecy law nor has he even begun to

describe the framework for analyzing this novel constitutional

right.”); Sepulvado, 729 F.3d at 420 (“There is no violation of the

Due Process Clause from the uncertainty that Louisiana has

imposed on [the inmate] by withholding the details of its execution

protocol.”); Zink v. Lombardi, 783 F.3d 1089, 1109 (8th Cir.

2015) (agreeing with the Fifth and Eleventh Circuits that “a

prisoner’s assertion of necessity—that the State must disclose its

protocol so he can challenge its conformity with the Eighth

Amendment—does not substitute for the identification of a

cognizable liberty interest” (citation modified)).

     For example, in 2014, Ohio enacted a law treating the identity

of individuals and entities that participate in the lethal injection

process as confidential and privileged under law. Phillips v.


                                 - 21 -
DeWine, 841 F.3d 405, 410 (6th Cir. 2016). The law also prohibited

the information from being disclosed as a public record or subject

to disclosure during judicial proceedings, with few exceptions. Id.

Prisoners challenged the new law, arguing in part that it violated

their equal protection and due process rights and their right to

access the courts because it “denie[d] [them] an opportunity to

discover and litigate non-frivolous claims.” Id. at 412, 420 (second

alteration in original). But those arguments were rejected because

“no constitutional right exists to discover grievances or to litigate

effectively once in court.” Id. at 420 (citing Lewis, 518 U.S. at 354,

and Hill, 557 F.3d at 439, and collecting cases).

     Likewise, Hitchcock has not raised a claim that is cognizable

under rule 3.851. As a result, his constitutional arguments

grounded in denial of discovery do not form a valid basis on which

to vacate his death sentence. Jones, 812 F.3d at 930 (holding that

a stand-alone claim that a Georgia statute infringed on defendant’s

ability to “discover grievances, and to litigate effectively once in

court” was untethered to an Eighth Amendment claim and therefore

did not “implicate[] any constitutional right”).

     So even if the circuit court erred in denying the public records


                                 - 22 -
requests, Hitchcock would not be entitled to relief from his

sentence.

                                   2

     Hitchcock’s claim fails for a second reason though. Even if the

denial of public records on its own could “render[] his execution

unconstitutional” as Hitchcock argues, the circuit court did not err

in denying his requests. To explain why, and before addressing

each of Hitchcock’s sub-arguments on this point, we will provide an

overview of Florida’s public records law in the context of capital

postconviction proceedings.

                                   a

     Section 27.7081, Florida Statutes, and Florida Rule of

Criminal Procedure 3.852 currently govern public records

production for capital postconviction inmates. We adopted the

current rule 3.852 following an extensive review process and a

statutory repeal. Sims v. State, 753 So. 2d 66, 69 (Fla. 2000).

Initially, though, capital collateral representative (CCR) attorneys

were encountering discovery problems under then-existing public

records laws because there was no formal discovery mechanism

under rule 3.850. CCR had to file incomplete rule 3.850 motions to


                                - 23 -
meet the one-year deadline for filing a motion under that rule,

reserving the right to supplement the motion upon the receipt and

review of belated public records.

       Our opinion adopting the original rule highlighted that it was a

“carefully tailored discovery rule for public records production

ancillary to rule 3.850 and 3.851 proceedings.” See id. (citing In re

Amend. to Fla. Rules of Crim. Proc.—Cap. Postconviction Pub. Recs.

Prod., 683 So. 2d 475, 476 (Fla. 1996)). We also noted “[t]he rule

does not affect, expand, or limit the production of public records for

any purposes other than use in a 3.850 or 3.851 proceeding” and

that any public records not obtained under rule 3.852 must still be

admissible, suggesting public records obtained outside of the

postconviction discovery process. See In re Amend. to Fla. Rules of

Crim. Proc.—Cap. Postconviction Pub. Recs. Prod., 683 So. 2d at 476

n.1.

       Subsequently, the Legislature repealed our rule and passed

chapter law 98-198, codified at section 119.19, Florida Statutes

(Supp. 1998). Sims, 753 So. 2d at 69. The newly passed statute

codified the response to the public record conundrum. We adopted

a revised version of rule 3.852, again stating that the rule should


                                 - 24 -
“serve as a basis for providing to the postconviction process all

public records that are relevant or would reasonably lead to

documents that are relevant . . . to postconviction issues.” Amends.

to Fla. Rules of Crim. Proc. 3.852 (Cap. Postconviction Pub. Recs.

Prod.) & Rule 3.993 (Related Forms), 754 So. 2d 640, 642 (Fla.

1999). Since 1998, the relevant statute has undergone revisions

and is now renumbered as section 27.7081, Florida Statutes (2025).

     In their present-day forms, the rule and statute impose special

requirements on state officials to make documents relevant to

postconviction claims readily accessible through a repository.

§ 27.7081(3), Fla. Stat. The scheme further streamlines the process

for obtaining “additional” public records that have not already been

set aside by state officials, providing strict timelines for an agency

or person served with a request under the statute to object and for

the circuit court already assigned to the case to resolve the dispute.

§ 27.7081(8), Fla. Stat.; Fla. R. Crim. P. 3.852(g). This alleviates the

need for a capital postconviction inmate to pursue records

separately under chapter 119. Cf. § 27.7081(11), Fla. Stat. The

statute is not unqualified though.

     Throughout each iteration of the statute, it has required


                                 - 25 -
counsel for a postconviction inmate to demonstrate that records

sought beyond those contained in the repository are “relevant to the

subject matter of a proceeding under Rule 3.850 or Rule 3.851 or

appear reasonably calculated to lead to the discovery of admissible

evidence.” § 119.19(8)(b)(3), Fla. Stat. (Supp. 1998). Separately,

section 27.708 restricts collateral counsel from requesting public

records on behalf of a capital postconviction inmate except from the

records repository and through the additional avenues provided by

section 27.7081. § 27.708(3), Fla. Stat. (2025).

                                  b

     It is against this backdrop that we now address Hitchcock’s

arguments. First, Hitchcock argues that rule 3.852 and section

27.7081, Florida Statutes, hinder his access to public records

because the rule and statute require defendants to overcome

hurdles that are not imposed on members of the general public. He

argues that he is a member of the public, but his access to public

records is being denied based entirely on his status as a capital

postconviction inmate because of the “additional hoops” the statute

and rule require he jump through.

     Hitchcock’s argument on this point fails because it appears to


                                - 26 -
be based on the inaccurate view that Hitchcock is limited to seeking

public records under rule 3.852, to the exclusion of chapter 119.

But rule 3.852 and section 27.7081 are there to supplement

chapter 119 in the context of postconviction litigation—not to

supplant. The plain language of both the rule and statute confirms

this conclusion, stating they “do[] not affect, expand, or limit the

production of public records for any purpose other than use in a

proceeding held pursuant to Rule 3.850 or Rule 3.851.”

§ 27.7081(2), Fla. Stat.; Fla. R. Crim. P. 3.852(a).

     The rule’s provisions must be read in context though. And in

the overall context of Florida’s postconviction scheme, rule 3.852 is

a discovery rule. See, e.g., Sims, 753 So. 2d at 69 (referring to rule

3.852 as a “discovery rule”). It follows that to benefit from the rule’s

streamlined process, the normal constraints of discovery apply.

Those constraints include a categorical limitation on the types of

records a postconviction defendant may seek—that is, those

documents that appear “reasonably calculated to lead to the

discovery of admissible evidence.” Fla. R. Crim. P. 3.852(i)(1)(C).

Section 27.7081 echoes that limitation. § 27.7081(9)(a)3., Fla. Stat.

And our precedent echoes it too, clarifying that if a postconviction


                                 - 27 -
defendant avails himself of rule 3.852’s streamlined process, he is

prohibited from conducting a “fishing expedition” and the records

must relate to a “colorable claim.” Sims, 753 So. 2d at 70. Those

limitations are characteristic of discovery in all types of litigation in

state and federal courts. There is nothing problematic or even

unexpected about the constraining language in rule 3.852.

     Wyatt v. State, 71 So. 3d 86 (Fla. 2011), supports this

conclusion. There, a postconviction movant, through counsel,

argued that Florida Rule of Criminal Procedure 3.852 and section

27.7081, Florida Statutes (2006), unconstitutionally restricted his

right to public records access under the Florida and U.S.

constitutions because both provisions impermissibly mandate that

his demand for public records not be “overly broad or unduly

burdensome” and that he make his own search for records. Wyatt,

71 So. 3d at 110-11. We concluded that the requirement that a

defendant make a diligent search through records already produced

and narrow his or her request to provide adequate notice to the

agency from which a defendant seeks information is reasonable in

the context of capital postconviction claims. Id. at 111.

     Hitchcock’s constitutional arguments related to the colorable


                                  - 28 -
claim requirement also fail. There is no equal protection violation—

Hitchcock is not being treated differently based on his status as an

inmate whose conviction has become final. See also Willacy v.

State, No. SC2026-0519, 2026 WL 1021168, at *6 (Fla. Apr. 15,

2026) (holding denial of public records request relating to Florida’s

lethal injection protocol did not violate equal protection, where

request was not related to any colorable claim for postconviction

relief), cert. denied, No. 25-7220, 2026 WL 1074143 (U.S. Apr. 21,

2026). And to the extent Hitchcock alleges an Eighth Amendment

violation, we reject that argument too. Instead, his status as a

capital postconviction movant makes available to him a streamlined

method of seeking public records, if those documents are

reasonably calculated to lead to the discovery of admissible

evidence. Because rule 3.852 only supplements instead of

supplants chapter 119, the circuit court did not err in denying

Hitchcock’s requests.

                                  c

     Hitchcock next argues that even if the colorable claim

limitation applies to his public records requests, he has met it.

Again, Hitchcock is mistaken.


                                - 29 -
     Hitchcock’s alleged colorable claim is a method-of-execution

claim. To challenge a method of execution under the Eighth

Amendment’s prohibition of cruel and unusual

punishment, Hitchcock must “(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 pain.” Asay v. State, 224

So. 3d 695, 701 (Fla. 2017) (citing Glossip v. Gross, 576 U.S. 863,

877 (2015)); Bucklew v. Precythe, 587 U.S. 119, 139-40

(2019) (reconfirming that anyone bringing a method-of-execution

claim alleging the infliction of unconstitutionally cruel pain must

meet the Baze16-Glossip test).

     The most obvious defect with Hitchcock’s position is that he

has not even attempted to identify a known and available

alternative method of execution that entails a significantly less

severe risk of pain. There is no viable claim alleged to which his

public records requests would be relevant.




     16. Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion).

                                 - 30 -
     Secondly, his allegations that the public records would be

relevant to establishing the first prong of the Baze-Glossip

framework rely on a speculative leap that we have recently rejected.

Hitchcock argues that the affidavit of Dr. Buffington attached to his

postconviction motion supports the assertion that

maladministration of the lethal injection protocol and “error or

deviation could result in unnecessary pain or discomfort or an

unexpected termination of the execution procedure prior to the

inmate’s death.” But the affidavit contains the same logical gaps

evident in the affidavits relied on in Trotter v. State, 428 So. 3d 68,

73 (Fla.), cert. denied, 146 S. Ct. 755 (2026), and Heath v. State,

426 So. 3d 1253, 1262 (Fla. 2026) (“The question is not whether

protocol deviations occurred but whether the defendant’s

allegations would demonstrate a substantial and imminent risk that

is sure or very likely to cause serious illness and needless suffering.

Heath’s allegations would not demonstrate such a risk.”), cert.

denied, No. 25-6746, 2026 WL 363902 (U.S. Feb. 10, 2026). We

reject that argument again here.

                                   d

     Because we conclude Hitchcock’s failure to establish that the


                                 - 31 -
public records he sought were related to a colorable claim for relief,

the circuit court did not err in denying an in-camera inspection or

in sustaining objections from FDOC and FDLE.

                                  B

     Finally, we reject Hitchcock’s remaining arguments on appeal.

Hitchcock asserts his actual innocence claim, contending his

execution in turn would be cruel and unusual. We have already

said that we do not recognize an independent claim of actual

innocence in postconviction proceedings. Sweet v. State, 293 So.

3d 448, 453-54 (Fla. 2020) (citing Elledge v. State, 911 So. 2d 57,

78 (Fla. 2005)). We have also held that Florida’s refusal to

recognize postconviction actual innocence claims does not violate

the Eighth Amendment. Id. at 454 (citing Tompkins, 994 So. 2d at

1088-89). Hitchcock does little to acknowledge our precedent on

this issue, let alone provide any reason we should recede from it.

So we reject his argument.

     We likewise reject his argument that declining to consider the

merits of his actual innocence claim results in a manifest injustice

because it violates his due process rights under the Fifth and

Fourteenth Amendments to the U.S. Constitution. Hitchcock has


                                - 32 -
received the process due to him, has been adjudicated guilty, and

has been sentenced to death. Hitchcock has also had the

opportunity to pursue claims of newly discovered evidence. See,

e.g., Tompkins, 994 So. 2d at 1089. There is no due process

violation, and the circuit court correctly rejected this claim.

                                  III

     We affirm the summary denial of Hitchcock’s successive

motion for postconviction relief and the order denying his public

records requests. We also deny his motion for stay of execution.

No oral argument is necessary, and no motion for rehearing will be

considered by this Court. The mandate shall issue immediately.

     It is so ordered.

MUÑIZ, C.J., and LABARGA, COURIEL, GROSSHANS, FRANCIS,
SASSO, and TANENBAUM, JJ., concur.

An Appeal from the Circuit Court in and for Orange County,
    Keith Carsten, Judge
    Case No. 481976CF001942000AOX

Eric Pinkard, Capital Collateral Regional Counsel, Joshua P.
Chaykin, Assistant Capital Collateral Regional Counsel, Cortney L.
Hackett, Assistant Capital Collateral Regional Counsel, and
Christopher Clemente, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida,

     for Appellant



                                 - 33 -
James Uthmeier, Attorney General, Tallahassee, Florida, Timothy A.
Freeland, Special Counsel, Assistant Attorney General, and Jennifer
A. Davis, Senior Assistant Attorney General, Tampa, Florida,

     for Appellee




                              - 34 -