Glen Edward Rogers v. State of Florida

Supreme Court of Florida
____________

No. SC2025-0585
____________

GLEN EDWARD ROGERS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

May 8, 2025

PER CURIAM.

Glen Edward Rogers murdered Tina Marie Cribbs in

Hillsborough County in 1995. On April 15, 2025, Governor Ron

DeSantis signed Rogers’ death warrant, scheduling his execution for

May 15, 2025. Rogers sought relief, filing his fourth successive

postconviction motion in the circuit court raising three claims: (1)

he was unconstitutionally deprived of the right to challenge his

conviction and sentence due to Capital Collateral Regional Counsel

– Middle Region (CCRC-M) representing him under a conflict of

interest; (2) newly discovered evidence of his childhood sexual
abuse and trafficking establishes significant mitigation that would

result in a life sentence on remand; and (3) Florida’s lethal injection

procedures as applied to him are cruel and unusual due to his

porphyria diagnosis. The postconviction court summarily denied

Rogers’ claims as untimely, procedurally barred, and/or meritless

which Rogers now appeals.1 We agree and affirm. We also deny

Rogers’ motion for stay of execution and request for oral argument

filed in this Court.

I. Background

As recounted in Rogers’ direct appeal, Rogers v. State (Rogers

I), 783 So. 2d 980 (Fla. 2001), Rogers arrived by cab at a motel in

Tampa on November 4, 1995, telling the clerk that he was a truck

driver whose truck had broken down. He booked in for two nights,

then visited the Showtown Bar the next day, where he met the

victim, Cribbs. He eventually asked Cribbs to give him “a ride,” and

she agreed. Later that evening, Rogers went to the motel clerk, paid

for an extra night, and requested no cleaning for the next day.

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

-2-
The next morning, the motel clerk saw Rogers leave in what

was later established as Cribbs’ vehicle. Later that afternoon,

maintenance workers at a rest area off Interstate-10 near

Tallahassee found Cribbs’ wallet. There were two latent fingerprints

inside matching Rogers.

A day later, a cleaning person at the Tampa motel went to

Rogers’ room and noticed a handwritten “Do Not Disturb” sign.

After entering the room, the cleaner discovered Cribbs’ body in the

bathtub. Cribbs had been stabbed once in the chest and once in

the buttocks. The State’s forensic pathologist later testified that the

stab wounds were L-shaped wounds, indicating that the perpetrator

had inserted a very long knife, then after an interval, twisted the

instrument to a perfect 90-degree angle, then pulled it out. These

stab wounds were both deliberate and fatal, slicing through major

arteries that caused Cribbs to bleed out. 2 She was stabbed with

her clothing on and was conscious.

2. Testimony at trial revealed that the wound to the chest
measured eight-and-a-half inches in length and cut through the
large-caliber pulmonary arteries, veins, and one of the large
terminal bronchi (airway to the lower lung). The wound proceeded
to cut along the back of the chest wall between ribs eight and nine.

-3-
In addition to these injuries, Cribbs had several bruises and

abrasions and a shallow wound to her left arm that appeared to be

a defensive wound. Other physical evidence collected from the

motel room also pointed to Rogers, as detailed in Rogers I, 783 So.

2d 980.

After law enforcement apprehended Rogers in Kentucky, the

State of Florida charged him with first-degree murder, armed

robbery, and grand theft of a motor vehicle. Id. at 985-86.

Following trial, the jury found Rogers guilty as charged on all three

offenses. Id. at 987.

Rogers’ penalty phase proceeding and subsequent

postconviction history were briefly summarized in our opinion

affirming Rogers’ last postconviction appeal in 2021:

At the ensuing penalty phase, Rogers called a
number of witnesses, including two experts—Dr. Michael
Maher (a psychiatrist) and Dr. Robert Berland (a forensic
psychologist). [Rogers I, 783 So. 2d] at 995-96. Each

The direction of the wound went backward, slightly to the right and
upward.
The other stab wound, to the buttock, measured nine-and-a-
half inches in length. It went through the muscles and fat, through
the sciatic notch of the pelvis and incised and cut through a portion
of the right internal iliac artery (a large-caliber vessel that feeds the
right leg). The wound continued up into the abdomen and
penetrated tissue near the intestines.

-4-
opined that Rogers suffers from brain damage and
mental-health issues, including a rare genetic mental
disorder called porphyria. Id. [Porphyria is a disease
that “impacts the central nervous system and can cause
psychosis and strokes.” Id. at 995.] Rogers also
presented the testimony of Claude Rogers, one of his
older brothers.
After the presentation of mitigating evidence, the
penalty-phase jury unanimously recommended a
sentence of death. Id. at 987. Accepting that
recommendation, the trial court sentenced Rogers to
death. Id.
Rogers appealed, but this Court affirmed in all
respects. Id. at 1004. Since that time, Rogers has
sought postconviction relief both in state and federal
court—obtaining no relief in either forum. See Rogers v.
State [(Rogers II)], 957 So. 2d 538, 556 (Fla. 2007)
(affirming denial of initial postconviction motion and
denying habeas petition)[3]; Rogers v. Sec’y, Dep’t of Corr.,
No. 8:07-CV-1365-T-30TGW, 2010 WL 668261 (M.D. Fla.
Feb. 19, 2010) (denying federal habeas relief); Rogers v.
State [(Rogers III)], 97 So. 3d 824 (Fla. 2012) (affirming
summary denial of first successive postconviction
motion); Rogers v. State [(Rogers IV)], 235 So. 3d 306 (Fla.
2018) (affirming summary denial of second successive
postconviction motion).

Rogers v. State (Rogers V), 327 So. 3d 784, 786 (Fla. 2021).

3. In Rogers II, we denied Rogers’ habeas claim that he may
be incompetent at the time of execution, noting that it would not be
ripe for review until a death warrant had been issued. 957 So. 2d
at 556 (citing Griffin v. State, 866 So. 2d 1, 21-22 (Fla. 2003)). At
this time, Rogers has not challenged his competency to be executed.

-5-
In Rogers V, we affirmed the denial of Rogers’ third successive

postconviction motion raising a claim of newly discovered evidence

concerning several instances of childhood sexual abuse he allegedly

experienced over the course of several years in Hamilton, Ohio, and

at the Training Institute of Central Ohio (TICO). Id. Rogers

asserted that his memories of the abuse had been repressed until

2019, when he discussed his case history in detail with clemency

counsel and a psychological criminologist, Dr. Bryanna Fox. Id. He

also pointed to existing articles about the rampant abuse at TICO.

Id. at 788. We agreed with the postconviction court’s finding that

this evidence could have been discovered with due diligence as his

family members were aware of the alleged sexual abuse, and

articles about TICO were available. Id. at 787-88.

In 2021, Rogers joined a federal suit raising a 42 U.S.C.

§ 1983 claim with other inmates against the Chief Justice of the

Florida Supreme Court, in his official capacity, asserting that

section 27.711(12), Florida Statutes, contains “a state-created right

to advise the Florida Supreme Court about the quality of their

capital collateral regional counsel” and that the “court’s rules and

policies prohibiting them from filing pro se pleadings violated the

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procedural component of the Due Process Clause.” See Sweet v.

Chief Just. of Fla. Sup. Ct., No. 23-13025, 2025 WL 915740, at *1

(11th Cir. Mar. 26, 2025). The district court dismissed the federal

complaint, and the Eleventh Circuit Court of Appeals affirmed. Id.

at *4-5. At this time, there is no petition for review pending in the

United States Supreme Court.

As stated earlier, on April 15, 2025, Governor DeSantis issued

a death warrant for the execution of Rogers, scheduling it for

Thursday, May 15, 2025, at 6:00 p.m. On April 20, 2025, Rogers

filed his fourth successive postconviction motion raising three

claims, which the postconviction court summarily denied as

untimely, procedurally barred, or meritless.

On appeal, Rogers asserts the postconviction court erred in

summarily denying each of his three claims. We find no error and

affirm.

II. Analysis

We review the circuit court’s summary denial of a Florida Rule

of Criminal Procedure 3.851 motion de novo, “accepting the

movant’s factual allegations as true to the extent they are not

refuted by the record, and affirming the ruling if the record

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conclusively shows that the movant is entitled to no relief.” Zack v.

State, 371 So. 3d 335, 344 (Fla. 2023) (quoting Owen v. State, 364

So. 3d 1017, 1022-23 (Fla. 2023)).

Summary denial of a successive rule 3.851 motion is

appropriate if “the motion, files, and records in the case

conclusively show that the movant is entitled to no relief.” Id.

(quoting Owen, 364 So. 3d at 1022). A postconviction court may

also appropriately summarily dismiss untimely or procedurally

barred claims under the rule, too. Id. (citing Fla. R. Crim. P.

3.851(e)(2)).

With limited exceptions, rule 3.851(d)(1) imposes a one-year

time limitation on any motion to vacate a final judgment and

sentence of death. Relevant here is an exception to this one-year

limitation, when “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.” Fla. R.

Crim. P. 3.851(d)(2)(A).

A. Rogers’ Rule 3.851 Conflict-of-Counsel Claim

Rogers claims the postconviction court erred by summarily

denying his rule 3.851 claim that his constitutional rights are

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violated by the denial of CCRC-M’s motion to withdraw based on an

actual, active conflict of interest. Rogers challenged the quality of

CCRC’s statewide representation in federal court 4 and now wants to

litigate claims against CCRC-M’s past performance and competence

in state court, which are claims CCRC-M cannot ethically raise.

CCRC-M asserted in its motion to withdraw that due to the

pendency of federal litigation, Rogers had not communicated with

CCRC-M from July 2021 until the day after his death warrant was

signed.

The postconviction court denied both CCRC-M’s motion to

withdraw 5 and the subsequent claim raised in Rogers’ fourth

successive postconviction motion as both procedurally barred and

meritless. We agree. 6

4. Rogers says that his federal claims did not argue ineffective
assistance of counsel but requested that “the Florida Supreme
Court establish the appropriate procedures required by the
Legislature.”

5. CCRC-M initially moved to withdraw at the scheduling
conference, just two days after the warrant was signed. That
motion was denied, and Rogers reraised the claim in his fourth
successive postconviction motion.

6. On May 2, 2025, in anticipation of seeking further federal
review, Rogers filed a motion in federal district court for the

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As to the procedural bar, 7 although Rogers ceased

communication with CCRC-M in July 2021 and had no pending

state court litigation at the time the federal complaint was filed,

CCRC-M still represented Rogers and could have filed a motion

seeking withdrawal but did not. As we have said, in an active

warrant case, a postconviction claim that could have been raised in

a prior proceeding is procedurally barred. See Barwick v. State, 361

So. 3d 785, 795 (Fla. 2023). And given the procedural bar, we are

leery that CCRC-M’s motion to withdraw is a delay tactic. See

Howell v. State, 109 So. 3d 763, 775 (Fla. 2013) (“If this Court were

to allow the last[-]minute substitution of counsel to create a

appointment of conflict-free counsel. On May 6, 2025, finding the
motion to be premature “[b]ecause neither a motion, under Rule
60(b) Federal Rules of Civil Procedure, nor a Section 2254 petition
is pending,” the district court deferred ruling on Rogers’ motion and
permitted him the opportunity to file an amended motion. See
Rogers v. Sec’y, Dep’t of Corr., No. 8:07-cv-1365-MSS-TGW (M.D.
Fla. May 6, 2025).

7. The postconviction court also found the requests to
withdraw to be untimely, which we treat as subsumed within the
procedural bar. While strict time limitations apply to Rogers’ rule
3.851 claim, counsel’s earlier motion to withdraw is only untimely
because it could have been raised sooner but was not. To the
extent CCRC-M is renewing its earlier motion to withdraw in the
postconviction motion, we review it for an abuse of discretion.

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situation in which the entire case could be relitigated at the time

the death warrant was signed . . . this could become a standard

delay tactic in any death warrant case.”).

Furthermore, this claim is without merit, first, because there

is no actual conflict with CCRC-M’s representation based on the

federal litigation. Because the federal litigation challenged the

“court’s rules and policies prohibiting [him] from filing pro se

pleadings” on due process grounds, see Sweet, 2025 WL 915740, at

*1, and did not contest the ability of CCRC-M to represent Rogers’

interests in state court, we agree with the postconviction court’s

conclusion that there was no actual conflict.

Second, there is no actual conflict with CCRC-M based on

Rogers’ desire to now litigate claims against the past performance

and competence of CCRC-M because such attacks are not

permissible. Section 27.703(1), Florida Statutes, permits a

sentencing court to determine if an “actual conflict” exists and, if

so, first requires the appointment of a different regional counsel

(CCRC); if the sentencing court determines the other region has an

“actual conflict,” then it may appoint non-CCRC counsel. An

“actual conflict” in the postconviction context generally involves

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counsel’s representation of a co-defendant or co-defendants8 or

counsel’s connection to the defendant’s case at trial. 9 Such an

“actual conflict” is the only basis for moving to discharge

postconviction counsel in a capital case. See Fla. R. Crim. P.

3.851(b)(6).

Here, Rogers has not demonstrated that CCRC-M has an

actual conflict. Rather, his desire to litigate CCRC-M’s past

performance and competence are claims of ineffective assistance of

postconviction counsel, to which he acknowledges he has no

constitutional right in Florida. See Zack v. State, 911 So. 2d 1190,

1203 (Fla. 2005). Additionally, chapter 27 specifically disavows

providing a statutory right to raise ineffective assistance claims.

8. See, e.g., Barclay v. Wainwright, 444 So. 2d 956, 958 (Fla.
1984) (“Conflict-of-interest cases usually arise at the trial level, but,
being caused by one attorney representing two or more clients, can
arise at any level of the judicial process. In general, an attorney has
an ethical obligation to avoid conflicts of interest and should advise
the court when one arises.”).

9. See, e.g., Braddy v. State, 219 So. 3d 803, 817-18 (Fla.
2017) (affirming sentencing court’s denial of CCRC’s motion to
withdraw where Braddy’s CCRC counsel supervised the prosecutor
at Braddy’s trial and, thus, had an actual conflict of interest;
however, counsel did not recall Braddy’s case and never suggested
he could not fairly represent him).

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§ 27.7002(1), Fla. Stat. (“This chapter does not create any right on

behalf of any person, provided counsel pursuant to any provision of

this chapter, to challenge in any form or manner the adequacy of

the collateral representation provided.”); Barwick, 361 So. 3d at

791. Therefore, we agree with the postconviction court that Rogers

has not raised an “actual conflict” with CCRC-M that necessitates

the appointment of another region of CCRC, which is the initial

remedy allowed by section 27.703(1).

We likewise reject Rogers’ invitation to adopt a rule similar to

the one adopted by the U.S. Supreme Court in Martinez v. Ryan,

566 U.S. 1 (2012) (ineffective assistance of state postconviction

counsel can provide cause to forgive a procedural default for claims

of ineffective assistance of trial counsel where the state requires

such claims to be raised in the initial postconviction review

proceeding). As we recently reiterated in Hutchinson v. State, “[w]e

have . . . consistently recognized that Martinez applies solely in

federal courts.” 50 Fla. L. Weekly S71, S74, 2025 WL 1198037, at

*6-7 (Fla. Apr. 25, 2025) (citing Dailey v. State, 279 So. 3d 1208,

1215 (Fla. 2019)), cert. denied, No. 24-7087, 2025 WL 1261217

(U.S. May 1, 2025). “What’s more, Martinez only applied to a

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certain type of defaulted claim—one that asserts ineffective

assistance of trial counsel.” Id. at S74, 2025 WL 1198037, at *7

(emphasis added) (citing Davila v. Davis, 582 U.S. 521, 530 (2017)).

Rogers also argues that he is being unfairly treated because

Terance Valentine was granted conflict-free counsel by the same

postconviction court for similar reasons and that order was upheld

in State v. Valentine, No. SC17-629, 2017 WL 4160942 (Fla. Sept.

20, 2017). However, Valentine is distinguishable because the case

presented in a different procedural posture, under a petition for

review by the State of a nonfinal order, see id.; Fla. R. App. P.

9.142(c) (Petitions Seeking Review of Nonfinal Orders in Death

Penalty Postconviction Proceedings), and the bar for obtaining relief

in that posture is much higher than it is on appeal, see Trepal v.

State, 754 So. 2d 702, 707 (Fla. 2000) (explaining that to obtain

review on the merits of a nonfinal postconviction order the appellant

must show both the order (1) failed to conform to the essential

requirements of law and (2) could cause irreparable injury that

cannot be remedied on appeal). That standard is not applicable

here, to a final order. Notably, in a plenary appellate posture, we

generally review an order denying counsel’s motion to withdraw

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under the highly deferential abuse of discretion standard. See

Weaver v. State, 894 So. 2d 178, 187 (Fla. 2004) (“A [trial] court’s

decision involving withdrawal or discharge of counsel is subject to

review for abuse of discretion.”). Here, however, Rogers benefits

from the de novo standard of review applicable to summary denials.

See Zack, 371 So. 3d. at 344. Yet, we find no legal error in the

postconviction court’s ruling.

Because Rogers’ claim that CCRC-M should have been

permitted to withdraw is both procedurally barred and meritless, we

find no error in the postconviction court’s order.

B. Newly Discovered Evidence of Childhood Sexual Abuse

Rogers claims the postconviction court erred in denying his

newly discovered evidence claim based on his history of childhood

sexual abuse as procedurally barred because the claim is not

identical to the one he raised in Rogers V and, thus, was not known

to Rogers or his counsel. Though his claim is still based on his

allegations that he was trafficked and sexually abused as a child in

Hamilton, Ohio, and abused at TICO, see Rogers V, 327 So. 3d at

786, he asserts that his current claim is based on “new evidence”

from the Florida Legislature reflecting “the conscience of Florida’s

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citizens in protecting children from the manner of abuse that

Rogers suffered as a child” as the Legislature nears passage of

Florida Bill number CS/CS/SB 1804, entitled “Capital Human

Trafficking of Vulnerable Persons for Sexual Exploitation.” 10 Rogers

asserts that on remand, armed with the Legislature’s new policy

and various studies concerning child sex trafficking, he would

receive a less severe sentence because his “highly mitigated case

would result in a properly informed jury recommending a life

sentence.”

We find no merit to Rogers’ argument and affirm the

postconviction court’s order. To prevail on a newly discovered

evidence claim and avoid the one-year time limitation of rule

3.851(d)(1), Rogers had to show that the evidence was: “[1]

unknown by the trial court, by the party, or by counsel at the time

of trial and it could not have been discovered through due diligence,

and . . . [2] is of such a nature that it would probably . . . yield a

less severe sentence on retrial.” Cole v. State, 392 So. 3d 1054,

10. Florida CS/CS/HB 1283 was laid on the table on April 30,
2025, and the Senate version, Florida CS/CS/SB 1804, was passed
by both houses and enrolled. See Fla. CS/CS/SB 1804 (2025).

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1061 (Fla.) (second omission in original) (quoting Dillbeck v. State,

357 So. 3d 94, 100 (Fla. 2023)), cert. denied, 145 S. Ct. 109 (2024).

As noted by the postconviction court, we said in Cole that

newly enacted legislation did not constitute “newly discovered

evidence.” Id. (“Although CS/HB 21 was recently enacted, it does

not amount to newly discovered evidence.”). In Cole, we also

rejected the proposition that new articles and scholarship constitute

“newly discovered evidence,” citing to Rogers V among other cases

for that very proposition. Id. at 1061-62 (“Indeed, we have routinely

held that resolutions, consensus opinions, articles, research, and

the like do not satisfy the [newly discovered evidence] standard.”

(citing Barwick, 361 So. 3d at 793)); see Barwick, 361 So. 3d at 793

(holding that an American Psychological Association (APA)

resolution did not constitute newly discovered evidence sufficient to

overcome the one-year time limitation for filing postconviction

claims); Rogers V, 327 So. 3d at 788 (numerous instances of

childhood sexual abuse defendant allegedly experienced at [TICO]

was not newly discovered evidence where articles discussing the

abuse of juveniles at TICO could have been discovered by trial

counsel well before the penalty phase).

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Thus, we agree with the postconviction court’s conclusion

that, having failed to identify any new evidence, Rogers cannot

avoid the one-year time limitation of rule 3.851(d)(1). We further

agree with the postconviction court that Rogers’ current claim is a

variation of the claim he raised in Rogers V and is procedurally

barred for that reason.

Further still, Rogers’ claim is meritless because, as we stated

in Rogers V, “trial counsel could have discovered the alleged

evidence of abuse if due diligence had been exercised.” 327 So. 3d

at 788. “Rogers alleged that three of his brothers had knowledge

that he was repeatedly abused over the course of several years in

Hamilton, Ohio[,] and at TICO,” and “that trial counsel knew of

Rogers’ . . . three siblings mentioned in Rogers’ motion. . . . [A]s

such, trial counsel could have asked them whether Rogers had been

sexually abused as a child.” Id.

To the extent Rogers challenges the constitutionality of rule

3.851(d)(1)’s time limitations as applied to him, a defendant under

an active warrant, his argument is unpreserved because he failed to

raise it below. State v. Poole, 297 So. 3d 487, 494 (Fla. 2020) (“In

order to preserve an issue for appeal, the issue must be presented

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to the lower court and the specific legal argument or grounds to be

argued on appeal must be part of that presentation.” (cleaned up)).

We also recently rejected this claim on the merits in Ford v. State,

402 So. 3d 973, 977 (Fla.), cert. denied, 145 S. Ct. 1161 (2025),

which held that Ford’s request to find rule 3.851(d) inapplicable to

defendants under an active death warrant was without any legal

support. As we observed in Ford, “the Legislature provided ‘that all

terms and conditions of direct appeal and collateral review be

strictly enforced, including the application of procedural bars, to

ensure that all claims of error are raised and resolved at the first

opportunity.’ ” Id. (quoting § 924.051(8), Fla. Stat.). Strict

procedural bars apply because “[t]he litigation of a successive

motion for postconviction relief filed by a defendant under an active

death warrant is collateral review.” Id. at 977-78.

Thus, we find no error in the postconviction court’s conclusion

that this claim is untimely, procedurally barred, and without merit.

C. Method-of-Execution Challenge to Lethal Injection Protocol

Rogers claims the postconviction court erred in summarily

denying his method-of-execution claim, arguing that Florida’s lethal

injection protocol is cruel and unusual punishment under the

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Eighth Amendment as applied to him due to the substantial risk

those procedures will cause him needless suffering due to his

porphyria diagnosis. Rogers argues that his expert, Dr. Joel Zivot,

reviewed Rogers’ medical records and would have opined at an

evidentiary hearing that: (1) Rogers suffers from porphyria; and (2)

“Florida’s lethal injection procedures place Rogers at a substantial

risk of needless pain and suffering because he will experience a

[p]orphyria attack in response to the administration of an extremely

high dose of etomidate.” 11 Rogers also claimed that execution by

firing squad or gas chamber would be a less painful method. The

postconviction court summarily denied this claim, finding it

untimely and meritless. We agree. 12

11. The State objects to Rogers’ appendix to his Initial Brief
that contains an affidavit from Dr. Zivot. The top of the affidavit
shows it was prepared on April 18, 2025, before Rogers filed his
successive postconviction motion, but the signature block indicates
Dr. Zivot signed the document on April 26, 2025, after the
postconviction court issued its order summarily denying relief. It
appears from the record on appeal that Rogers did not file this
affidavit below, though he did detail at length in his postconviction
motion what Dr. Zivot would testify to based on his preliminary
evaluation of Rogers. Regardless, because the affidavit is not part
of the record on appeal, we sustain the State’s objection to it.

12. At the outset, Rogers argues that this Court’s decisions in
Long v. State, 271 So. 3d 938 (Fla. 2019), Correll v. State, 184 So.

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As for timeliness, Rogers argues that the facts underlying his

method-of-execution challenge based on his porphyria diagnosis

meet the exception in rule 3.851(d)(2)(A) that “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.” He also argues that he could not raise

this claim sooner because he could not know what execution

procedures would be in place until his death warrant was signed.

We disagree. We have generally held that method-of-execution

claims are procedurally barred unless the method itself changes or

new facts about the current method arise during a prior execution.

See Schwab v. State, 969 So. 2d 318, 321 (Fla. 2007) (holding that

Schwab’s method-of-execution claim was not procedurally barred

because it was “based primarily upon facts that occurred during a

recent execution” that “did not exist when lethal injection was first

3d 478 (Fla. 2015), Henry v. State, 134 So. 3d 938 (Fla. 2014),
Howell v. State, 133 So. 3d 511 (Fla. 2014), and Davis v. State, 142
So. 3d 867 (Fla. 2014), require relinquishment of jurisdiction to the
circuit court with instructions to hold an evidentiary hearing on his
as-applied claim and a stay to afford time to conduct a full and fair
hearing. These decisions in no way stand for that legal proposition.

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authorized”). Rogers argues neither exception. Instead, as the

postconviction court found, he acknowledged below that Florida’s

lethal injection protocol “is not materially different than the

previous March 2023 protocol or the protocol that has been in effect

since 2017.” Also, as the lower court found, Rogers could have but

did not raise this claim in a prior motion.

Further, this Court has recently rejected the argument that a

method-of-execution challenge only became ripe when a death

warrant was signed. See Cole, 392 So. 3d at 1064 (affirming the

circuit court’s denial for untimeliness because the defendant “failed

to raise any argument related to the method of execution until after

the Governor signed a death warrant”). And we very recently

affirmed the denial of a similar method-of-execution challenge as

untimely made after the signing of a death warrant. See Tanzi v.

State, 50 Fla. L. Weekly S59, S60-61, 2025 WL 971568, at *4 (Fla.

Apr. 1, 2025) (affirming the circuit court’s denial of an untimely as-

applied challenge because the defendant’s medical conditions were

present well over a decade before the signing of the death warrant),

cert. denied, No. 24-6932, 2025 WL 1037494 (U.S. Apr. 8, 2025).

Rogers’ claim is similarly untimely.

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We also agree with the postconviction court that Rogers’ claim

is meritless. As already noted, successfully challenging a method of

execution requires that a defendant “(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)). Under the first prong, the question is not merely

whether any pain is inflicted, for “the Eighth Amendment ‘does not

demand the avoidance of all risk of pain in carrying out

executions.’ ” Bucklew v. Precythe, 587 U.S. 119, 134 (2019)

(quoting Baze v. Rees, 553 U.S. 35, 47 (2008)). Rather, the Eighth

Amendment “come[s] into play” when “the risk of pain associated

with the State’s method is ‘substantial when compared to a known

and available alternative.’ ” Id. (quoting Glossip, 576 U.S. at 878).

We agree with the postconviction court that Rogers cannot

satisfy the first prong. Rogers speculates that when etomidate is

administered, the drug could induce a porphyria attack and create a

substantial risk that Rogers will suffer from extreme and

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excruciating abdominal pain, tachycardia, hypertension, nausea,

vomiting, and seizures. But this Court has repeatedly upheld

Florida’s lethal injection protocol, including the etomidate protocol.

See Tanzi, 50 Fla. L. Weekly at S61, 2025 WL 971568, at *4

(upholding Florida’s etomidate protocol); Cole, 392 So. 3d at 1065

(noting that the “etomidate protocol . . . includes safeguards to

ensure the condemned is unconscious throughout the execution”);

Long, 271 So. 3d at 945-46 (“[W]e have repeatedly affirmed the

summary denial of challenges . . . to the use of etomidate as the

first drug in the protocol.”). And Rogers does not explain how his

speculative porphyria attack overcomes the well-established fact

that the administration of etomidate will render him unconscious

likely within one minute. See Asay, 224 So. 3d at 701

(“Intravenous injection of etomidate produces hypnosis

characterized by a rapid onset of action, usually within one

minute.” (quoting the drug insert for etomidate)); see also Davis,

142 So. 3d at 872 (affirming the denial of an as-applied lethal

injection claim “because Dr. Zivot failed to demonstrate that the

injection of midazolam, as the first drug in the lethal injection

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protocol, would not render Davis unconscious and insensate prior

to him experiencing any possible symptoms of a porphyria attack”).

Even if Rogers could satisfy the first prong, we agree with the

postconviction court that he has failed under the second prong to

“identify a known and available alternative method of execution that

entails a significantly less severe risk of pain.” Asay, 224 So. 3d at

701 (citing Glossip, 576 U.S. at 877). In Tanzi, we recently rejected

Rogers’ two proposed alternatives, lethal gas or firing squad,

because Tanzi failed to show “how either of his two proposed

alternate methods . . . could be ‘readily implemented,’ or in fact

significantly reduce[] the substantial risk of severe pain, given the

physical conditions he describes.’ ” 50 Fla. L. Weekly at S61, 2025

WL 971568, at *4. 13 Rogers, likewise, fails to make this showing.

Accordingly, we affirm the postconviction court’s summary

denial of Rogers’ method-of-execution claim.

13. Rogers also argues that the second prong of this test, as
outlined in Glossip, is morally repugnant, impossible to realistically
meet, and violative of his due process and equal protection rights.
However, this Court has no authority to overrule Supreme Court
authority. See generally Poole, 297 So. 3d at 507 (“In a case where
we are bound by a higher legal authority—whether it be a
constitutional provision, a statute, or a decision of the Supreme
Court—our job is to apply that law correctly to the case before us.”).

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III. Conclusion

We affirm the summary denial of Rogers’ fourth successive

motion for postconviction relief. We also deny his motion for stay of

execution and request for oral argument. No petition for rehearing

will be entertained by this Court. The mandate shall issue

immediately.

It is so ordered.

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

An Appeal from the Circuit Court in and for Hillsborough County,
Michelle Sisco, Judge
Case No. 291995CF015314000AHC

Eric Pinkard, Capital Collateral Regional Counsel, Ali Shakoor,
Assistant Capital Collateral Regional Counsel, and Adrienne Joy
Shepherd, Assistant Capital Collateral Regional Counsel, Middle
Region, Temple Terrace, Florida,

for Appellant

James Uthmeier, Attorney General, Tallahassee, Florida, Christina
Z. Pacheco, Senior Assistant Attorney General, Stephen D. Ake,
Senior Assistant Attorney General, and Jonathan S. Tannen,
Assistant Attorney General, Tampa, Florida,

for Appellee

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