Darryl Brian Barwick v. State of Florida ( 2023 )


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  •           Supreme Court of Florida
    _____________
    No. SC2023-0531
    _____________
    DARRYL B. BARWICK,
    Appellant,
    vs.
    STATE OF FLORIDA,
    Appellee.
    April 28, 2023
    PER CURIAM.
    Darryl B. Barwick, a prisoner under sentence of death for
    whom a warrant has been signed and an execution set for May 3,
    2023, appeals the circuit court’s orders summarily denying his
    second successive motion for postconviction relief, which was filed
    under Florida Rule of Criminal Procedure 3.851; denying his motion
    for a stay of execution; and sustaining objections to his public
    records requests, which were made under rule 3.852. We have
    jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that
    follow, we affirm.
    I. BACKGROUND
    On March 31, 1986, after observing the victim sunbathing at
    her Panama City apartment complex, Barwick returned to his home
    to retrieve a knife and walked back to the apartment complex. He
    followed the victim into her apartment, stabbed her thirty-seven
    times, wrapped her in a comforter, and left her body in the
    bathroom for her sister to find when she returned to their shared
    apartment that evening. Bloody fingerprints were found on the
    victim’s purse and wallet, and her bathing suit had been displaced.
    Semen was found on the comforter wrapped around her body, and
    it was determined that Barwick was included within the two percent
    of the population who could have left the stain. Barwick was
    arrested and confessed to law enforcement and multiple family
    members. Barwick v. State, 
    660 So. 2d 685
    , 688-89 (Fla. 1995).
    Barwick was indicted on charges of first-degree murder, armed
    burglary, attempted sexual battery, and armed robbery. He was
    initially found guilty as charged and subsequently sentenced to
    death for the murder in 1987, but the convictions and sentences
    -2-
    were vacated due to a Neil violation during jury selection.1 
    Id. at 689
    . At his retrial in 1992, the jury again found Barwick guilty as
    charged and unanimously recommended a sentence of death. The
    trial court found that the following aggravators had been
    established beyond a reasonable doubt: (1) previous convictions for
    the violent felonies of sexual battery with force likely to cause death
    or great bodily harm and burglary of a dwelling with an assault; (2)
    the murder was committed during an attempted sexual battery; (3)
    the murder was committed to avoid arrest; (4) the murder was
    committed for pecuniary gain; (5) the murder was especially
    heinous, atrocious, or cruel; and (6) the murder was committed in a
    cold, calculated, and premeditated manner without any pretense of
    moral justification. The trial court found that each potential
    mitigator proposed by Barwick was either not established by the
    1. Barwick had objected to the State’s use of peremptory
    challenges to excuse three black jurors, and the trial court
    incorrectly believed that Barwick had no standing to make an
    objection under State v. Neil, 
    457 So. 2d 481
     (Fla. 1984)—which
    prohibits the use of peremptory challenges on prospective jurors
    based solely on their race—due to the fact that both he and the
    victim were white. See Barwick v. State, 
    547 So. 2d 612
    , 612 (Fla.
    1989).
    -3-
    evidence or was not a significant mitigating circumstance. The trial
    court followed the jury’s recommendation of a sentence of death for
    the murder and also sentenced Barwick to life for armed burglary
    with a battery, thirty years for attempted sexual battery, and life for
    armed robbery. 
    Id. at 689-90
    .
    On appeal after retrial, this Court concluded that although the
    trial court erred in applying the cold, calculated, and premeditated
    aggravator, the error was harmless beyond a reasonable doubt, and
    Barwick’s convictions and sentences were affirmed. 
    Id. at 696-97
    .
    The convictions and sentences became final when the United States
    Supreme Court denied certiorari in 1996. Barwick v. Florida, 
    516 U.S. 1097
     (1996).
    In the decades since, Barwick has unsuccessfully challenged
    his convictions and sentences in state and federal court. See
    Barwick v. State, 
    88 So. 3d 85
     (Fla. 2011) (affirming the denial of
    Barwick’s initial motion for postconviction relief and denying his
    state habeas petition); Barwick v. Crews, 5:12cv00159-RH, 
    2014 WL 1057088
     (N.D. Fla. Mar. 19, 2014) (denying Barwick’s federal
    habeas petition); Barwick v. Sec’y, Fla. Dept. of Corr., 
    794 F.3d 1239
    (11th Cir. 2015) (affirming the denial of Barwick’s federal habeas
    -4-
    petition); Barwick v. State, 
    237 So. 3d 927
     (Fla. 2018) (affirming the
    denial of Barwick’s first successive motion for postconviction relief).
    Governor Ron DeSantis signed Barwick’s death warrant on
    April 3, 2023. Barwick then filed a second successive motion for
    postconviction relief under rule 3.851, raising three claims: (1) the
    scheduling of Barwick’s execution and warrant litigation violates his
    right to due process under the Fifth and Fourteenth Amendments
    to the United States Constitution and the corresponding provisions
    of the Florida Constitution and deprives him of the effective
    assistance of postconviction counsel; (2) newly discovered evidence
    shows that the death penalty is a categorically unconstitutional
    punishment for individuals who were under age twenty-one when
    they committed their capital offenses; and (3) because of his severe
    neuropsychological disorder, lifelong cognitive impairments, and
    low mental age, executing Barwick would violate the Eighth and
    Fourteenth Amendments to the United States Constitution. The
    circuit court summarily denied all three claims, as well as Barwick’s
    motion for a stay and certain requests for public records. This
    appeal followed.
    -5-
    II. ANALYSIS
    A. Due Process, Effective Assistance of Postconviction
    Counsel, Stay of Execution, and Public Records
    In his first issue on appeal, Barwick claims primarily that the
    compressed warrant litigation schedule resulted in the denial of his
    rights to due process and the effective assistance of postconviction
    counsel. He addresses these claims as a single issue, asserting that
    due process depends on the effective assistance of counsel, and that
    the accelerated warrant schedule and other attendant
    circumstances made it impossible for Barwick to be provided with
    effective assistance of postconviction counsel.
    The circuit court summarily denied this consolidated claim,
    finding that Barwick was not denied due process because he did not
    allege that he was ever denied notice or an opportunity to be heard
    and that he was not denied effective assistance of postconviction
    counsel because he has no right to effective assistance of
    postconviction counsel. We agree that summary denial of this claim
    was proper.
    Barwick has made it abundantly clear in his pleadings filed in
    both the circuit court and this Court that the post-warrant litigation
    -6-
    in this case has been very arduous for his counsel due to certain
    circumstances that happened to coincide with the beginning of the
    warrant period, such as the occurrence of Holy Week, Passover, and
    Ramadan; co-counsel being ill; and the presence of another inmate
    on Death Watch. 2 Indeed, post-warrant litigation is arduous, even
    without such circumstances. Yet none of the obstacles identified by
    Barwick resulted in a denial of due process.
    The Due Process Clause of the Fourteenth Amendment to the
    United States Constitution provides that no state shall “deprive any
    person of life, liberty, or property, without due process of law.” U.S.
    Const. amend. XIV. The Florida Constitution similarly provides
    that “[n]o person shall be deprived of life, liberty or property without
    due process of law.” Art. I, § 9, Fla. Const. “Due process requires
    that a defendant be given notice and an opportunity to be heard on
    a matter before it is decided.” Asay v. State, 
    210 So. 3d 1
    , 27 (Fla.
    2016) (citing Huff v. State, 
    622 So. 2d 982
    , 982 (Fla. 1993)). But as
    the circuit court recognized in summarily denying this claim,
    2. “Death Watch” is a designated area of Florida State Prison
    where death row inmates under an active death warrant are
    housed.
    -7-
    Barwick has not identified any matter on which he was denied
    notice or an opportunity to be heard before it was decided. We have
    previously denied a due process claim raised in the death warrant
    context on this basis. See id. at 27-28 (rejecting due process claim
    where capital defendant under a death warrant failed to state when
    he was denied notice or an opportunity to be heard at any stage of
    his postconviction proceedings). Because Barwick has failed to
    state when he was denied notice or an opportunity to be heard, his
    due process claim fails.
    Barwick also alleges that the thirty-day warrant period and the
    difficult attendant circumstances identified by Barwick made it
    impossible for postconviction counsel to provide effective
    assistance, thereby violating what he claims is his “statutory right
    to effective postconviction counsel.” Under Florida law, individuals
    sentenced to death are entitled to the appointment of capital
    postconviction counsel for the purpose of pursuing any collateral
    attacks on their convictions and sentences. See § 27.702(1), Fla.
    Stat. (2022) (“The capital collateral regional counsel shall represent
    each person convicted and sentenced to death in this state for the
    sole purpose of instituting and prosecuting collateral actions
    -8-
    challenging the legality of the judgment and sentence imposed . . .
    .”). Barwick argues that along with the entitlement to counsel,
    section 27.711(12), Florida Statutes (2022), establishes a “statutory
    right to effective postconviction counsel.”
    Section 27.711(12) provides:
    The court shall monitor the performance of assigned
    counsel to ensure that the capital defendant is receiving
    quality representation. The court shall also receive and
    evaluate allegations that are made regarding the
    performance of assigned counsel. The Justice
    Administrative Commission, the Department of Legal
    Affairs, or any interested person may advise the court of
    any circumstance that could affect the quality of
    representation, including, but not limited to, false or
    fraudulent billing, misconduct, failure to meet continuing
    legal education requirements, solicitation to receive
    compensation from the capital defendant, or failure to file
    appropriate motions in a timely manner.
    § 27.711(12), Fla. Stat. But Barwick ignores other provisions within
    chapter 27 that make it clear that the “quality representation”
    referenced in section 27.711(12) does not create a right to effective
    assistance of postconviction counsel. Section 27.711(10) plainly
    states that “[a]n action taken by an attorney who represents a
    capital defendant in postconviction capital collateral proceedings
    may not be the basis for a claim of ineffective assistance of
    counsel.” § 27.711(10), Fla. Stat. (2022). Section 27.7002(1) states
    -9-
    that capital defendants may not “challenge in any form or manner
    the adequacy of the collateral representation provided,” and section
    27.7002(2) provides that the “sole method of assuring adequacy of
    representation provided shall be in accordance with the provisions
    of s[ection] 27.711(12),” i.e., court monitoring. §§ 27.7002(1), (2),
    Fla. Stat. (2022). The fact that these provisions of chapter 27
    expressly prohibit capital defendants from raising claims of
    ineffective assistance of postconviction counsel or otherwise
    challenging the adequacy of their postconviction representation
    forecloses any argument that section 27.711(12) creates a right to
    effective postconviction counsel.
    Despite the plain language of these statutes, Barwick argues
    that this Court recognized the right to effective assistance of capital
    postconviction counsel when it stated in Spalding v. Dugger, 
    526 So. 2d 71
    , 72 (Fla. 1988), that “under section 27.702, each
    defendant under sentence of death is entitled, as a statutory right,
    to effective legal representation by the capital collateral
    representative in all collateral relief proceedings.” But in Asay, we
    clarified that “Spalding only requires that a defendant be
    represented by an attorney during postconviction proceedings.”
    - 10 -
    
    210 So. 3d at 28
    . And none of the cases cited by Barwick in
    support of what he claims to be Spalding’s “holding” compel a
    different conclusion.
    We have also specifically held that “[u]nder Florida and federal
    law, a defendant has no constitutional right to effective collateral
    counsel.” Zack v. State, 
    911 So. 2d 1190
    , 1203 (Fla. 2005).
    Further, the United States Supreme Court has “refused to extend a
    due process requirement for effective collateral counsel to situations
    where a state, like Florida, has opted to afford collateral counsel to
    indigent inmates.” 
    Id.
     (citing Pennsylvania v. Finley, 
    481 U.S. 551
    (1987)). Thus, a claim of ineffective assistance of postconviction
    counsel does not provide a valid basis for relief.
    Within this first issue on appeal, Barwick also challenges the
    circuit court’s denial of his motion for a stay of execution. We agree
    with the circuit court that Barwick did not establish any substantial
    grounds upon which relief might be granted if a stay had been
    ordered. As a result, his motion was properly denied. See Dillbeck
    v. State, 
    357 So. 3d 94
    , 103 (Fla.) (“ ‘[A] stay of execution on a
    successive motion for postconviction relief is warranted only where
    there are substantial grounds upon which relief might be granted.’
    - 11 -
    ”) (quoting Davis v. State, 
    142 So. 3d 867
    , 873-74 (Fla. 2014)), cert.
    denied, 
    143 S. Ct. 856 (2023)
    .
    Finally, to the extent that Barwick has also raised a claim that
    the circuit court erred in denying his access to certain public
    records under rule 3.852(h)(3), it is insufficiently pleaded because
    he has not identified which updated records he was denied. Thus,
    Barwick is not entitled to relief regarding his public records
    requests. See Heath v. State, 
    3 So. 3d 1017
    , 1029 n.8 (Fla. 2009)
    (“Vague and conclusory allegations on appeal are insufficient to
    warrant relief.”).
    After consideration of each of the arguments raised in this
    issue, we find no error in the circuit court’s summary denial of
    Claim 1 of Barwick’s second successive motion for postconviction
    relief.
    B. Newly Discovered Evidence/Extension of Roper
    In his second issue on appeal, Barwick argues that the circuit
    court erred in denying Claim 2 of his second successive
    postconviction motion, in which he argued that he is categorically
    exempt from execution because he was under the age of twenty-one
    when he committed his capital offense. Barwick asserts that
    - 12 -
    “[n]ewly discovered evidence of a definitive consensus regarding
    adolescent brain development demonstrates that the death penalty
    is a categorically unconstitutional punishment for individuals who
    committed their offenses when they were between the ages of 18 to
    21.” At its core, this is a claim that Roper v. Simmons, 
    543 U.S. 551
    , 578 (2005)—which held that “[t]he Eighth and Fourteenth
    Amendments forbid imposition of the death penalty on offenders
    who were under the age of 18 when their crimes were committed”—
    should be extended to individuals who were under the age of
    twenty-one at the time their capital offenses were committed.
    The “definitive consensus” to which Barwick refers is reflected
    in an August 2022 “resolution” from the American Psychological
    Association (APA). 3 In short, the resolution states that “based upon
    the rationale of the Roper decision and currently available science,
    APA concludes the same prohibitions that have been applied to
    application of the penalty of death for persons who commit a
    serious crime at ages 17 and younger should apply to persons ages
    3. APA RESOLUTION on the Imposition of Death as a Penalty
    for Persons Aged 18 Through 20, Also Known As the Late Adolescent
    Class, American Psychological Association (August 2022),
    https://www.apa.org/about/policy/resolution-death-penalty.pdf.
    - 13 -
    18 through 20,” because “there is no neuroscientific bright line
    regarding brain development that indicates the brains of 18- to 20-
    year-olds differ in any substantive way from those of 17-year-olds.”
    The circuit court summarily denied this claim as procedurally
    barred, untimely, and without merit.
    The circuit court was correct in concluding that this claim is
    procedurally barred because it is a variation of claims that were
    raised in prior proceedings. In Claim 22 of his initial postconviction
    proceedings, Barwick argued that because he suffers from brain
    damage and a mental and emotional age of less than eighteen
    years, his execution would offend the evolving standards of decency,
    serve no legitimate penological goal, and violate the Eighth and
    Fourteenth Amendments under Roper. He argued that his
    “neuropsychological impairments and his youth warrant
    consideration” and that he “lacks the requisite ‘highly culpable
    mental state’ ” for capital punishment. In denying relief, the
    postconviction court recognized this claim as a Roper-extension
    claim and declined to “extend the holding in Roper.”
    Similarly, in Argument 1 of his petition for a writ of habeas
    corpus, filed in this Court in 2008, Barwick argued that due to his
    - 14 -
    brain damage, mental impairment, and mental and emotional age of
    less than eighteen years, his execution would offend the evolving
    standards of decency of a civilized society, serve no legitimate
    penological goal, and violate the Eighth and Fourteenth
    Amendments under Roper. He further argued that capital
    punishment should not be imposed where a defendant, like himself,
    lacks the requisite “highly culpable mental state.” See Barwick, 
    88 So. 3d at 106
     (rejecting habeas claim that because Barwick’s
    mental age is less than eighteen due to brain damage and mental
    capacity, his execution is unconstitutional under Roper).
    These initial postconviction and state habeas claims both
    asserted that although Barwick was nineteen when he committed
    the murder, Roper’s categorical ban on executing juveniles should
    be extended to him because he had a “mental and emotional age of
    less than eighteen years” at the time of the murder. The argument
    at the core of the instant claim is similarly that the mental and
    emotional age of eighteen- to twenty-year-olds cannot be
    distinguished reliably from that of sixteen- to seventeen-year-olds,
    and Roper should therefore extend to individuals who, like Barwick,
    - 15 -
    were eighteen to twenty years old when they committed their capital
    murders.
    There is no doubt that Barwick is attempting to relitigate the
    same issue—that Roper should extend to him—that he has raised in
    two prior proceedings, now disguised as a claim of newly discovered
    evidence. Barwick acknowledges in his second successive motion
    that he previously “has raised the factual basis of [this] claim.”
    Barwick is admittedly using “a different argument to relitigate the
    same issue,” which is inappropriate. Medina v. State, 
    573 So. 2d 293
    , 295 (Fla. 1990). The circuit court was correct in denying this
    claim as procedurally barred because versions of it were raised in
    prior proceedings.
    The circuit court also denied this claim as untimely because
    the APA resolution does not constitute newly discovered evidence
    such that it creates an exception to the one-year time limitation for
    filing postconviction claims. See Fla. R. Crim. P. 3.851(d)(1)
    (requiring that “[a]ny motion to vacate judgment of conviction and
    sentence of death shall be filed by the defendant within 1 year after
    the judgment and sentence become final”); Fla. R. Crim. P.
    3.851(d)(2)(A) (creating an exception to the one-year time limitation
    - 16 -
    if “the facts on which the claim is predicated were unknown to the
    movant or the movant’s attorney and could not have been
    ascertained by the exercise of due diligence”).
    The APA resolution appears to be the association’s official or
    public stance that the death penalty should be banned in cases
    where the offender was under twenty-one years of age at the time of
    the capital offense. The resolution cites approximately fifty sources
    in support of this position, including articles published in
    psychology journals, law reviews, by universities, and by at least
    one of each of the following: a “nonprofit think tank,” a “research
    and advocacy center,” a federal agency, and a news outlet. It also
    cites reports, books, online registries, and meta-analyses. Thus, it
    is fair to say that the APA’s resolution is based on a compilation of
    studies, research, data, and reports, published between 1992 and
    2022 and relying on data from as early as 1977, and therefore does
    not constitute newly discovered evidence under rule 3.851(d)(2)(A).
    This Court has routinely held that resolutions, consensus
    opinions, articles, research, and the like, do not constitute newly
    discovered evidence. See, e.g., Foster v. State, 
    258 So. 3d 1248
    ,
    1253 (Fla. 2018) (rejecting as untimely an extension-of-Roper claim
    - 17 -
    relying on scientific research and a 2018 American Bar Association
    (ABA) resolution recommending individuals under twenty-two be
    exempt from execution, because they do not qualify as newly
    discovered evidence); Branch v. State, 
    236 So. 3d 981
    , 984-87 (Fla.
    2018) (rejecting as untimely an extension-of-Roper claim that relied
    on new scientific research, scientific consensus, international
    consensus, and the 2018 ABA resolution, because they do not
    qualify as newly discovered evidence); Schwab v. State, 
    969 So. 2d 318
    , 325 (Fla. 2007) (holding that “new opinions” and “research
    studies” are not newly discovered evidence); Rutherford v. State, 
    940 So. 2d 1112
    , 1117 (Fla. 2006) (holding that a 2006 ABA report was
    not newly discovered evidence because it was “a compilation of
    previously available information”). Because the August 2022 APA
    resolution does not qualify as newly discovered evidence, this claim
    was properly summarily denied as untimely.
    This claim is also without merit because this Court lacks the
    authority to extend Roper. The conformity clause of article I,
    section 17 of the Florida Constitution provides that “[t]he
    prohibition against cruel or unusual punishment, and the
    prohibition against cruel and unusual punishment, shall be
    - 18 -
    construed in conformity with decisions of the United States
    Supreme Court which interpret the prohibition against cruel and
    unusual punishment provided in the Eighth Amendment to the
    United States Constitution.” This means that the Supreme Court’s
    interpretation of the Eighth Amendment is both the floor and the
    ceiling for protection from cruel and unusual punishment in
    Florida, and this Court cannot interpret Florida’s prohibition
    against cruel and unusual punishment to provide protection that
    the Supreme Court has decided is not afforded by the Eighth
    Amendment.
    Because the Supreme Court has interpreted the Eighth
    Amendment to limit the exemption from execution to those whose
    chronological age was less than eighteen years at the time of their
    crimes, this Court is bound by that interpretation and is precluded
    from interpreting Florida’s prohibition against cruel and unusual
    punishment to exempt individuals eighteen or more years old from
    execution on the basis of their age at the time of their crimes. This
    Court simply does not have the authority to extend Roper to
    Barwick based on his age of nineteen at the time of the murder.
    Accordingly, Barwick is not entitled to relief.
    - 19 -
    C. Extension of Atkins
    Barwick’s final claim on appeal is that the circuit court erred
    in denying Claim 3 of his second successive postconviction motion,
    in which he argued that there is no meaningful distinction between
    his reduced moral culpability on account of his “trifecta of
    vulnerabilities”—severe neuropsychological disorder, immutable
    cognitive impairments, and low mental age at the time of the
    murder—and that of individuals with indistinguishable deficits due
    to intellectual disability, and therefore his execution, like that of an
    intellectually disabled person or a juvenile, would violate the Eighth
    and Fourteenth Amendments. In short, Barwick asserts that even
    though he is not intellectually disabled, he is entitled to the same
    protection under Atkins v. Virginia, 
    536 U.S. 304
     (2002), which held
    that the Eighth Amendment prohibits execution of the intellectually
    disabled. The circuit court also framed this as an “extension-of-
    Atkins” claim and denied it as procedurally barred, untimely, and
    without merit.
    We agree that this claim is procedurally barred because it, or a
    variation of it, has been raised in a prior proceeding. In Claim 5 of
    his initial motion for postconviction relief, Barwick argued that
    - 20 -
    because he is intellectually disabled, his execution would violate the
    Eighth and Fourteenth Amendments under Atkins. See Barwick,
    
    88 So. 3d at
    92 n.6 (identifying as Claim 5 of Barwick’s initial
    postconviction proceedings that “Barwick is ineligible for the death
    penalty pursuant to Atkins v. Virginia, 
    536 U.S. 304
     (2002), and
    section 921.1[3]7, Florida Statutes (2010), because he is
    [intellectually disabled]”).
    Similarly, as explained in Issue 2, Claim 22 in Barwick’s initial
    postconviction proceedings was that because he suffers from
    neuropsychological impairments, a mental and emotional age of
    less than eighteen years, and lacks the requisite highly culpable
    mental state his execution would violate the Eighth and Fourteenth
    Amendments. And in Argument 1 of his state habeas petition,
    Barwick also argued that his execution would violate the Eighth
    and Fourteenth Amendments, due to his brain damage, mental
    impairment, mental and emotional age of less than eighteen years,
    and lack of the requisite highly culpable mental state.
    At their core, all three of the aforementioned prior claims and
    the instant claim on appeal have posited that Barwick should be
    exempt from execution due to his mental deficiencies. Thus, the
    - 21 -
    instant claim is a variation of claims that were raised in prior
    proceedings, and as such, is procedurally barred.
    Even if this claim had not been raised in a prior proceeding, it
    is still procedurally barred because it could have been raised
    previously. See Branch, 
    236 So. 3d at 986
     (holding that an
    extension-of-Roper claim was procedurally barred in an active
    warrant case because it could have been raised previously);
    Simmons v. State, 
    105 So. 3d 475
    , 511 (Fla. 2012) (rejecting as
    procedurally barred a claim, based on Roper and Atkins, that the
    defendant was exempt from execution based on mental illness and
    neuropsychological deficits because it could have been raised in
    prior proceedings).
    This claim was also properly denied as untimely. Barwick
    asserts that the circuit court erred in denying this claim as
    untimely, because, according to Barwick, procedural bars do not
    apply to claims of categorical exemption from execution. Barwick is
    wrong. Procedural bars do apply to exemption-from-execution
    claims. See Dillbeck, 357 So. 3d at 100 (holding that this Court’s
    precedent “flatly refutes Dillbeck’s contention that no time limits
    apply to categorical exemption claims”).
    - 22 -
    Finally, even if it were not procedurally barred or untimely,
    this claim is without merit. As we have very recently reiterated,
    “the categorical bar of Atkins that shields the intellectually disabled
    from execution does not apply to individuals with other forms of
    mental illness or brain damage.” Id.; see also Carroll v. State, 
    114 So. 3d 883
    , 887 (Fla. 2013) (rejecting as untimely, procedurally
    barred, and meritless, claim that the protections of Atkins and
    Roper should be extended to defendant who is less culpable as a
    result of mental illness); Simmons, 
    105 So. 3d at 511
     (holding claim
    that persons with mental illness must be treated similarly to those
    with intellectual disability due to reduced culpability to be without
    merit); Lawrence v. State, 
    969 So. 2d 294
    , 300 n.9 (Fla. 2007)
    (rejecting assertion that the Equal Protection Clause requires
    extension of Atkins to the mentally ill due to their reduced
    culpability).
    This claim is also meritless because, like Barwick’s Roper-
    extension claim, under the Eighth Amendment conformity clause in
    article I, section 17 of the Florida Constitution, this Court must
    interpret Florida’s prohibition against cruel and unusual
    punishment in conformity with decisions of the Supreme Court,
    - 23 -
    which has limited the categorical ban announced in Atkins so that
    individuals with mental deficiencies other than intellectual
    disability are outside the scope of that ban. Just as this Court
    lacks the authority to extend Roper to individuals over the age of
    seventeen, it also lacks the authority to extend Atkins to individuals
    who, like Barwick, are not intellectually disabled as provided in
    Atkins. Thus, Barwick’s “trifecta of vulnerabilities” does not exempt
    him from execution.
    III. CONCLUSION
    For the reasons stated above, we affirm the circuit court’s
    order summarily denying the second successive postconviction
    motion and its orders sustaining the objections to the public
    records requests and denying a stay of execution.
    No motion for rehearing will be entertained by this Court. The
    mandate shall issue immediately.
    It is so ordered.
    MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, and
    FRANCIS, JJ., concur.
    LABARGA, J., concurs in result with an opinion.
    - 24 -
    LABARGA, J., concurring in result.
    As the majority observes, “post-warrant litigation is arduous,”
    see majority op. at 7, and a death warrant by its very nature
    requires expedited proceedings. However, these solemn proceedings
    ultimately involve carrying out a sentence of death for the most
    aggravated and least mitigated of murders and must still ensure
    due process of law. I am extremely concerned by the recent pace of
    death warrants and the speed with which the parties and involved
    entities must carry out their respective duties.
    Barwick has raised concerns about the accelerated timetable
    and argues that “[t]he death warrant proceedings in [his] case
    lacked any indicia of meaningfulness.” While I agree that Barwick’s
    claims are not entitled to relief under this Court’s precedent, I
    nonetheless caution that even in this final stage of capital
    proceedings, a meaningful process must be ensured.
    An Appeal from the Circuit Court in and for Bay County,
    Christopher N. Patterson, Judge
    Case No. 031986CF000940XXAXMX
    Robert Friedman, Capital Collateral Regional Counsel, Karin L.
    Moore, Assistant Capital Collateral Regional Counsel, and Drew A.
    Sena, Assistant Capital Collateral Regional Counsel, Northern
    Region, Tallahassee, Florida,
    - 25 -
    for Appellant
    Ashley Moody, Attorney General, Jason W. Rodriguez, Assistant
    Attorney General, and Steven Edward Woods, Assistant Attorney
    General, Tallahassee, Florida,
    for Appellee
    - 26 -