Does the Eighth or Fourteenth Amendment bar the execution of a defendant with Fetal Alcohol Syndrome who was not sentenced to death by a unanimous jury?

QUESTIONS PRESENTED CAPITAL CASE 1. In light of the medical community’s recent consensus that Fetal Alcohol Syndrome is not only functionally similar to Intellectual Developmental Disorder, but uniquely identical in both etiology and symptomatology, does it violate the Eighth or Fourteenth Amendment for a state court to foreclose all meaningful review of a defendant’s claim that he is entitled to exemption from execution under Hail v. Florida’s requirement that state courts deciding whether to apply the protections of Atkins v. Virginia must be guided by the views of the medical community? 2. Because “a jury that must choose between life imprisonment and capital punishment can do little more -and must do nothing less -than express the conscience of the community on the ultimate question of life or death[,]” Witherspoon v. Illinois, 391 U.S. 510, 519 (1968), does the Eighth Amendment bar the execution of a defendant who was not sentenced to death by a unanimous jury? ii NOTICE OF RELATED CASES Per Supreme Court Rule 14.1(b)(iii), the following cases relate to this petition: Underlying Trial: Circuit Court of Escambia County, Florida State of Florida v. Michael Duane Zack, IIT, Case No. 1996-CF-2517 Judgment entered: November 24, 1997 Direct Appeal: Florida Supreme Court (No. SC1960-92089) Michael Duane Zack, III v. State, 753 So. 2d 9 (Fla. 2000) Judgment entered: January 6, 2000 Rehearing denied: March 20, 2000 Petition for Writ of Certiorari Denied: Supreme Court of the United States (No. 99-10062) Michael Duane Zack, III v. Florida, 531 U.S. 858 (2000) Judgment entered: October 2, 2000 Initial Postconviction Proceedings: Circuit Court of Escambia County, Florida Zack v. State, 1996-CF-2517 Judgment entered: July 15, 2003 (denying postconviction relief) Florida Supreme Court (Nos. SC03-1374; SC04-201) Zack v. State, 911 So. 2d 1190 (Fla. 2005) Judgment entered: July 7, 2005 (affirming denial of postconviction relief and denying petition for habeas corpus) Rehearing denied: September 16, 2005 Federal Habeas Proceedings: District Court for the Northern District of Florida (No. 3:05-cv-000369-RH) Zack v. Crosby, 607 F. Supp. 2d 1291 (N. D. Fla. 2008) Judgment entered: November 17, 2008 (denying habeas relief) Eleventh Circuit Court of Appeals (No. 09-12717) Zack v. Tucker, 666 F. 3d 1265 (11th Cir. 2012) Judgment entered: January 9, 2012 Zack v. Tucker, 678 F. 3d 1203 (11th Cir. 2012) Vacated and rehearing en banc granted: April 30, 2012 Zack v. Tucker, 704 F. 3d 917 (11th Cir. 2013) Judgment entered: January 9, 2013 (affirming denial of habeas relief) iii Petition for Writ of Certiorari Denied: Supreme Court of the United States (No. 12-10693) Michael Duane Zack, III v. Crews, 571 U.S. 863 (2013) Judgment entered: October 7, 2013 Eleventh Circuit Court of Appeals (No. 14-14998) Zack v. Fla. DOC, 721 Fed. Appx. 918 (11th Cir. 2018) Judgment entered: January 12, 2018 (affirming denial of relief from final judgment) Petition for Writ of Certiorari Denied: Supreme Court of the United States (No. 17-9549) Michael Duane Zack, III v. Jones, 139 8. Ct. 322 (Mem) (2018) Judgment entered: October 9, 2018 First Successive Postconviction Proceedings: Circuit Court of Escambia County, Florida Zack v. State, 1996-CF-2517 Judgment entered: January 13, 2005 (denying postconviction relief) Florida Supreme Court (No. SC05-963) Zack v. State, 982 So. 2d 1179 (Table) (Fla. 2007) Judgment entered: September 20, 2007 (affirming denial of postconviction relief) Rehearing denied: May 1, 2008 State Habeas Petition: Florida Supreme Court (No. SC05-378) Zack v. Crosby, 918 So. 2d 240 (Mem) (Fla. 2005) Judgment entered: October 6, 2005 (denying petition for habeas corpus) Rehearing denied: December 22, 2005 Second Successive Postconviction Proceedings: Circuit Court of Escambia County, Florida Zack v. State, 1996-CF-2517 Judgment entered: July 8, 2015 (denying postconviction relief) Florida Supreme Court (Nos. SC15-1756; SC16-1090) Zack v. State, 228 So