Whether Fetal Alcohol Syndrome, recognized by the medical community as functionally identical to Intellectual Developmental Disability, categorically exempts a defendant from execution under the Eighth Amendment as established in Atkins v. Virginia, and whether the Eighth Amendment requires a unanimous jury verdict for imposition of a death sentence under the Sixth Amendment framework established in Ramos v. Louisiana

No question identified. : To the Honorable Clarence Thomas, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Eleventh Circuit: The State of Florida has scheduled the execution of Petitioner Michael Duane Zack, III, for October 3, 2023, at 6:00 p.m. The Florida Supreme Court denied state court relief as well as Mr. Zack’s request for stay on September 21, 2023. Mr. Zack respectfully requests that this Court stay his execution, pursuant to Supreme Court Rule 23 and 28 U.S.C. § 2101(f), pending consideration of his concurrently filed petition for writ of certiorari. STANDARDS FOR STAY OF EXECUTION The standards for granting a stay of execution are well-established. Barefoot v. Estelle, 463 U.S. 880, 895 (1983). There “must be a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed.” Jd. (internal quotations omitted). PETITIONER SHOULD BE GRANTED A STAY OF EXECUTION The questions raised in Mr. Zack’s petition are sufficiently meritorious for grant of certiorari. The underlying issues present significant questions of constitutional law and are not subject to any legitimate procedural impediments. As explained in Mr. Zack’s underlying petition, the medical community now recognizes that the unique, cognitive, practical, and social impairments inherent to Fetal Alcohol Syndrome (FAS) indistinguishable from those of Intellectual Developmental Disability (ID). This consensus has given rise to an important constitutional issue: that Mr. Zack is exempt from execution under the Eighth Amendment protections articulated in Atkins v. Virginia, 536 U.S. 304 (2002), and its progeny. See, e.g., Hall v. Florida, 572 U.S. 701 (2014), and Moore v. Texas, 1378. Ct. 1039 (2017). To exclude Mr. Zack from this protected class would violate the Equal Protection Clause of the Fourteenth Amendment. Mr. Zack also raises the issue that, in light of a clear, contemporary, national consensus, and with consideration of the original public meaning, the Eighth Amendment prohibits the execution of those not sentenced to death by a unanimous jury. Should this Court grant Mr. Zack’s request for a stay and grant review of the underlying petition, there is a significant possibility of the lower court’s reversal. Per the guidance set forth by this Court in Hall, “it is proper for states to consult the medical community’s opinions” to determine which individuals qualify for Eighth Amendment exemption from execution. 572 U.S. at 710. The medical community has now accepted FAS, both in etiology and symptomatology, as functionally identical with ID. And, Mr. Zack’s FAS is uncontested. With regard to Mr. Zack’s right to a unanimous jury, there is an indisputable, national consensus in favor of unanimous jury death sentences. This consensus has manifested itself in sentencing and execution practices as well as statutes. This Court’s own judgment has further buttressed the consensus established by the nation’s citizenry and legislature. In Ramos v. Louisiana, this Court decided that a unanimous jury vote is required to convict a defendant of a “serious offense” under the Sixth Amendment. 140 8S. Ct. 1390 (2020). Furthermore, Mr. Zack’s claims are not subject to any legitimate procedural impediments. The state courts have foreclosed adequate and substantive review but Eighth Amendment categorical bans cannot be nullified by any state-law waiver provision. At every opportunity since his trial, Mr. Zack has presented evidence of his prenatal alcohol exposure to the full extent allowed by scientific legal and legal standards. Evolving standards of decency have finally progressed to the tipping point that allows Mr. Zack to establish