IN THE SUPREME COURT OF FLORIDA

NO. SC06-1946

________________________________________________________

ARTHUR DENNIS RUTHERFORD,

Petitioner,

v.

JAMES R. McDONOUGH,

Secretary, Florida Department of Corrections,

Respondent.

_________________________________________________________

_____________________________________________

REPLY TO RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS

_____________________________________________

LINDA McDERMOTT

Florida Bar No. 0102857

MARTIN J. McCLAIN

Florida Bar No. 0754773

McClain & McDermott, P.A.

Wilton Manors, FL 33334

(850) 322-2172

COUNSEL FOR PETITIONER

1

ARGUMENT IN REPLY

Respondent asserts that: “[i]t is improper to use a habeas

petition as a substitute for an appeal.”

However, the Respondent’s argument ignores this Court’s

longstanding jurisprudence that which allows petitioners, like

Mr. Rutherford to raise constitutional issues through habeas

corpus: “We have always been willing to entertain constitutional

issues raised via application for a writ of habeas corpus, access

to which is guaranteed by the Florida Constitution, especially in

a death penalty context where our obligation for review is

heightened.” Chandler v. Crosby, 916 So. 2d 728, 736 (Fla.

2005)(Anstead, J., specially concurring). Indeed, this Court has

not hesitated to review constitutional questions through the writ

of habeas corpus in Mr. Rutherford’s own case, see Rutherford v.

Crosby, Case No. SC05-376; Rutherford v. Crosby, Case No. SC05-

2139; and in other cases. See Chandler v. Crosby, 916 So. 2d 728

(Fla. 2005); Hodges v. Crosby, Case No. 05-377 (2005); Zack v.

Crosby, 05-378 (2005); Groover v. Crosby, Case No. 04-412 (2005);

King v. State, 808 So. 2d 1237, 1246 (Fla. 2002); Mills v. Moore,

786 So. 2d 532 (Fla. 2001).

Indeed, Article I, section 13, of the Florida Constitution

provides:

The writ of habeas corpus shall be grantable of right,

freely and without cost. It shall be returnable without

delay, and shall never be suspended unless, in case of

rebellion or invasion, suspension is essential to the

public safety.

2

The right to habeas corpus is a "basic guarantee of Florida law,"

Haag v. State, 591 So. 2d 614, 616 (Fla. 1992). This Court has

explained that:

both simplicity and fairness are equally promoted by

the right to habeas corpus relief that emanates from

the Florida Constitution and has been partially

The fundamental guarantees enumerated in Florida's

Declaration of Rights should be available to all

through simple and direct means, without needless

complication or impediment, and should be fairly

administered in favor of justice and not bound by

technicality.

Haag, 591 So. 2d at 616.

Likewise, Respondent also ignores this Court’s very

precedent as to a challenge to the constitutionality of Florida’s

death penalty scheme. In In re Baker, 267 So. 2d 331 (Fla.

1972), this Court reviewed a Furman challenge and granted relief

to a petitioner who used habeas corpus to be heard before this

Court. Baker, has never been overturned and therefore provides

authority to Mr. Rutherford to seek relief through the writ of

habeas corpus as to his constitutional challenge.

Additionally, Respondent fails to acknowledge the

proceedings that have occurred regarding Mr. Rutherford’s attempt

to raise his claim before the circuit court. In the circuit

court, Mr. Rutherford attempted to raise his challenge to

Florida’s death penalty system through his 3.850 motion, the

State argued that the Rule 3.850 claim should be narrowly

3

construed, and though the claim was based on a constitutional

violation, that it did not meet the requirements of a newly

discovered evidence of innocence claim.

Mr. Rutherford then sought to raise his challenge through

Fla. R. Crim. P. 3.800(a). The State again argued that Mr.

Rutherford’s challenged was not properly brought as a 3.800

motion because it was “part of the record”. The circuit court

struck Mr. Rutherford’s motion.

Respondent now argues that Mr. Rutherford’s claim is not

properly brought through habeas corpus. Respondent’s arguments

concerning Mr. Rutherford’s constitutional challenge if

successful would create a suspension of the writ and a denial of

access to the Court’s in violation of the Florida Constitution.

This Court has a responsibility to ensure every citizen's access

to the courts. See Lussy v. Fourth Dist. Court of Appeal, 828 So.

2d 1026 (Fla. 2002). Respondent has attempted to raise

procedural hurdles to Mr. Rutherford’s challenge “which is

significantly difficult" to overcome. Mitchell v. Moore, 786 So.

2d 521, 527 (Fla. 2001). Effectively, Respondent’s various

positions and arguments constructing technical and procedural

hurdles ignores Furman itself and fundamental fairness. The

State’s arguments are nothing more than an effort to prevent Mr.

Rutherford from having his challenge to Florida’s death penalty

system reviewed. Such efforts evidence the very challenge Mr.

4

Rutherford brings – that Florida’s death penalty system is unfair

and arbitrary. Habeas corpus is an entirely appropriate vehicle

for Mr. Rutherford to raise his challenge. See In re Baker, 267

So. 2d 331 (Fla. 1972).

CONCLUSION

Based upon Mr. Rutherford’s petition and reply, he

respectfully urge the Court to grant relief.

5

CERTIFICATE OF SERVICE

via electronic transmission to Charmaine Millsaps, Assistant

Attorney General, Office of the Attorney General, The Capitol,

Tallahassee, Florida 32399-1050, on October 10, 2006.

CERTIFICATE OF TYPE SIZE AND STYLE

This is to certify that the Petition has been reproduced in

a 12 point Courier type, a font that is not proportionately

spaced.

LINDA McDERMOTT

Florida Bar No. 0102857

_______________________________

MARTIN J. McCLAIN

Florida Bar No. 0754773

McClain & McDermott, P.A.

141 NE 30th Street

Wilton Manors, FL 33334

Telephone: (850) 322-2172

FAX: (954) 564-5412

COUNSEL FOR PETITIONER