7/28 DOUBLE EXECUTION: A whirlwind of litigation
Tomorrow, the State of Florida intends to execute two people—Duckett at 12:00 p.m. and Occhicone at 6:00 p.m. Here’s the status as of 3:30 this afternoon—20 hours before Duckett's scheduled execution.
Tomorrow, the State of Florida intends to execute two people—James Duckett at 12:00 p.m. and Dominick Occhicone at 6:00 p.m. If completed, it will be the State’s first double execution day in modern history. Here’s the status of pre-execution litigation as of 3:30 this afternoon—less than 24 hours before Duckett’s scheduled execution. The rush of execution-related litigation is even more compounded here, with two prisoners litigating their final claims simultaneously.
NOTE: There is a lot happening quickly in these cases. Apologies in advance for the number of emails. I’ll do my best to combine and post in an efficient manner.
SCOTUS Petitions (Florida Supreme Court)
As TFDP previously covered, both Duckett and Occhicone have filed petitions for writ of certiorari at SCOTUS seeking review of the Florida Supreme Court’s decisions in their cases issued last week.
As of this afternoon, Occhicone’s petition is fully briefed.
This afternoon, the State responded to Duckett’s petition. Duckett has not yet filed a reply.
No ruling has been issued on either petition.
Duckett’s Federal DNA Claim
This afternoon, the federal district court entered an Order granting the State’s motion to dismiss Duckett’s claim regarding denial of DNA testing and analysis.
First, on Duckett’s claim that Florida’s Rule for postconviction DNA testing is unconstitutional, the Court held against the State that the claim is not barred by the Rooker-Feldman doctrine, which essentially says that litigants cannot use federal courts to appeal a state court judgment. The Court also held against the State that Duckett’s claim is not barred by res judicata. However, the Court concluded Duckett’s claim should be dismissed because Duckett failed to state a due process claim. The Court wrote in part: “Precluding a defendant from filing successive Rule 3.853 motions—and requiring him to seek testing of all items of evidence known at the time of filing his initial Rule 3.853 motion—does not violate due process or offend fundamental principles of fairness.”
Second, on Duckett’s right to access to courts claim, the Court held that the claim is barred by the Rooker-Feldman doctrine “in that it asks this Court to ‘effectively nullify’ the Florida Supreme Court’s decision that it lacked jurisdiction to hear Plaintiff’s appeal.”
Accordingly, the Court dismissed Duckett’s claims and denied Duckett’s Emergency Motion for Stay of Execution as moot.
As of this post, no appeal has been docketed at the Eleventh Circuit Court of Appeals.
Double Execution Claim
As TFDP previously covered, Duckett and Occhicone together filed a federal lawsuit challenging their scheduled double execution. The federal court denied the claim. On Saturday, Duckett and Occhicone appealed the ruling to the Eleventh Circuit. The appeal was docketed as case number 26-12595.
Yesterday morning, Duckett and Occhicone filed an Emergency Motion to Stay Execution. Yesterday afternoon, the Eleventh Circuit denied the Motion.
In its Order, the Eleventh Circuit determined Occhicone and Duckett did not “establish[] that they are likely to succeed on the merits of their claims, and . . . the equitable factors likewise counsel against a stay.”
On their first claim, the Court wrote:
The inmates contend that scheduling their executions on the same day constitutes cruel and unusual punishment because it is likely to exacerbate the stress on the execution team and thereby increase the likelihood that the team will make a mistake, which, in turn, could result in needless suffering for the inmates. This claim rests on pure conjecture that the execution team will fail to perform Florida’s lethal-injection procedures correctly—for in-stance, the complaint alleges, by neglecting to properly “maintain[] and stor[e] execution drugs” or to pay proper attention to each in-mate’s “vein viability.” Compl. ¶¶ 78–79, Dkt. 1. If a mistake is made, the theory goes, there is a risk that the mistake will “result in objectively intolerable pain and suffering.” Id. ¶ 82. The in-mates’ speculation does not establish that the state’s act of scheduling two executions in one day “presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” Glossip, 576 U.S. at 877 (citation modified).
Like the district court, we acknowledge the inmates’ allegations that when the State of Oklahoma attempted to carry out two death sentences on the same day in 2014, one prisoner’s execution was “botched” when his “intravenous lines were mishandled.” Compl. ¶ 54. The inmates allege that an ensuing investigation found that the lines were mishandled “for several reasons,” including the “extra stress” that the execution team experienced as a result of having to conduct multiple executions on the same day. Id. We agree with the district court, though, that those allegations do not make the claim here any stronger, because the inmates have not provided a “meaningful factual basis to compare the circum-stances of those executions to Florida’s execution protocol.” Ord. Denying Stay of Execution, July 24, 2026, at 4 n.3, Dkt. No. 12.
On their second claim, the Court wrote: “The inmates have not cited any case that demonstrates, or even suggests, that the state’s act of scheduling two executions on the same day deprives them of a constitutionally protected liberty interest.” Further:
Because the inmates have not “advanced a carefully defined, fundamental right,” Humphreys, 161 F.4th at 1309, they have not demonstrated entitlement to heightened scrutiny. Even assuming the in-mates are similarly situated to all other Florida death-row inmates in the modern era, their claim is unlikely to succeed because it is not irrational for the state to conduct two executions on the same day, even if only, as the district court noted, “for the sake of convenience or efficiency.”
Finally, on their access to courts claim, the Court wrote that Plaintiffs “fail to cite any authority to support the proposition that they are entitled to a set number of days to bring such a challenge. The inmates’ access-to-courts claim is further under-mined by the fact that they have accessed the courts to litigate their same-day challenge, and have now been heard both by the district court and by this Court. For these reasons, the inmates are not substantially likely to succeed on the merits of this claim.”
As of this post, no petition for writ of certiorari on this decision has been docketed at SCOTUS.
TFDP Prior Coverage
TFDP Prior Coverage of Duckett’s Case
TFDP Prior Coverage of Occhicone’s Warrant
My thoughts are with everyone involved in the warrant- and execution-related process.