          Supreme Court of Florida
                                  ____________

                                  No. SC18-190
                                  ____________

                            ERIC SCOTT BRANCH,
                                  Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC18-218
                                  ____________

                            ERIC SCOTT BRANCH,
                                  Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                [February 15, 2018]

PER CURIAM.

      Eric Scott Branch, a prisoner under sentence of death with an active death

warrant, appeals a circuit court order summarily denying his second successive

motion for postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have

jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the following reasons, we

affirm the circuit court’s denial of the motion and deny the habeas petition.

            FACTS AND RELEVANT PROCEDURAL HISTORY

      Branch was convicted of first-degree murder, sexual battery, and grand theft

in connection with the killing of Susan Morris. Branch v. State (Branch I), 685 So.

2d 1250 (Fla. 1996), cert. denied, 520 U.S. 1218 (1997). We described the facts of

the murder on direct appeal as follows:

             Eric Branch was wanted by police in Indiana and because the
      car he was driving, a Pontiac, could be traced to him, he decided to
      steal a car from the campus of the University of West Florida
      [(UWF)] in Pensacola. When Susan Morris, a young college student,
      approached her car after attending an evening class [on] January 11,
      1993, Branch accosted her and stole her red Toyota. Morris’s nude
      body was found later in nearby woods; she had been beaten, stomped,
      sexually assaulted and strangled. She bore numerous bruises and
      lacerations, both eyes were swollen shut, and a wooden stick was
      broken off in her vagina.

Id. at 1251-52. The jury recommended a sentence of death by a vote of ten to two,

and the trial court followed that recommendation. Id. at 1252. The trial court

found the existence of three aggravating factors1 and four mitigating




      1. The murder was committed during a sexual battery; Branch had been
convicted of a prior violent felony in the State of Indiana; and the murder was
especially heinous, atrocious, or cruel. Branch I, 685 So. 2d at 1252 n.1.


                                          -2-
circumstances.2 Id. at 1252. On direct appeal, we affirmed Branch’s convictions

and sentences. Id. at 1253. In 2006, we affirmed the circuit court’s denial of

Branch’s initial motion for postconviction relief and denied his initial petition for

writ of habeas corpus. Branch v. State (Branch II), 952 So. 2d 470, 473 (Fla.

2006).

      Branch subsequently filed a petition for writ of habeas corpus in the United

States District Court for the Northern District of Florida. Branch v. McDonough

(Branch III), 779 F. Supp. 2d 1309 (N.D. Fla. 2010). The federal district court

denied the petition, but issued a limited certificate of appealability. Id. at 1330.

The United States Court of Appeals for the Eleventh Circuit affirmed the judgment

denying federal habeas corpus relief. Branch v. Sec’y, Fla. Dep’t of Corr. (Branch

IV), 638 F.3d 1353, 1356 (11th Cir. 2011).

      In 2016, we affirmed the circuit court’s denial of Branch’s motion for

postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure

3.853 and section 925.11, Florida Statutes (2015). Branch v. State (Branch V), No.

SC15-1869, 2016 WL 4182823 (Fla. Aug. 8, 2016). On January 22, 2018, we

affirmed the circuit court’s denial of Branch’s first successive motion for




        2. Branch had an unstable childhood; Branch possessed positive personality
traits; Branch behaved acceptably during trial; and Branch was remorseful. Id. at
n.2.


                                         -3-
postconviction relief. Branch v. State (Branch VI), No. SC17-1509, 2018 WL

495024 (Fla. Jan. 22, 2018).

      On January 19, 2018, Governor Rick Scott signed a death warrant for

Branch and scheduled his execution for February 22, 2018. On January 29, 2018,

Branch filed his second successive motion for postconviction relief, raising two

claims. First, Branch contended that because he was twenty-one years old at the

time of the murder,3 executing him would violate the Eighth Amendment to the

United States Constitution based upon Roper v. Simmons, 543 U.S. 551 (2005). In

Roper, the United States Supreme Court held that executing individuals who were

under the age of eighteen at the time of their crimes is prohibited by the Eighth and

Fourteenth Amendments. Id. at 578-79. Branch asserted (1) there is an emerging

consensus in the medical community that the brain continues to develop through

the mid-twenties, such that young adults are cognitively comparable to juveniles,

and this consensus constitutes newly discovered evidence; (2) a national consensus

has developed that individuals who were in their late teens and early twenties at the

time of their crimes should not be executed; and (3) the criminal laws of other

states and international law generally reflect that offenders who were in their late

teens and early twenties at the time of their crimes are treated differently than older




      3. Branch turned twenty-two less than one month after the murder.


                                         -4-
offenders. Branch additionally contended that the physical, emotional, and sexual

trauma he suffered during his childhood and young adulthood, coupled with

substance abuse, further impaired and delayed his brain development. Branch’s

second claim was that the length of time he has spent on death row constitutes

cruel and unusual punishment under the Eighth Amendment.

      On February 1, 2018, the circuit court denied Branch’s motion without an

evidentiary hearing and denied Branch’s application for stay of execution. This

appeal follows. Branch also filed with this Court a motion for stay of execution

and a successive petition for writ of habeas corpus, challenging the prior violent

felony aggravating factor found by the trial court.

                                    ANALYSIS

                             Public Records Requests

      Branch first challenges the circuit court’s denial of his requests for public

records pursuant to Florida Rule of Criminal Procedure 3.852. We have explained:

      [The] denial of public records requests are reviewed under the abuse
      of discretion standard. See Dennis v. State, 109 So. 3d 680, 698 (Fla.
      2012); Diaz v. State, 945 So. 2d 1136, 1149 (Fla. 2006). “Discretion
      is abused only when the judicial action is arbitrary, fanciful, or
      unreasonable, which is another way of saying that discretion is abused
      only where no reasonable person would take the view adopted by the
      trial court.” State v. Coney, 845 So. 2d 120, 137 (Fla. 2003) (quoting
      White v. State, 817 So. 2d 799, 806 (2002)). The Court has long
      acknowledged that the public records procedure under Florida Rule of
      Criminal Procedure 3.852 “is not intended to be a procedure
      authorizing a fishing expedition for records unrelated to a colorable
      claim for postconviction relief.” Valle [v. State, 70 So. 3d 530, 549

                                        -5-
      (Fla. 2011)] (quoting Moore v. State, 820 So. 2d 199, 204 (Fla. 2002)
      (quoting Glock v. Moore, 776 So. 2d 243, 253 (Fla. 2001))).

Muhammad v. State, 132 So. 3d 176, 200 (Fla. 2013). A defendant “bears the

burden of demonstrating that the records sought relate to a colorable claim for

postconviction relief.” Chavez v. State, 132 So. 3d 826, 829 (Fla. 2014) (citing

Mann v. State, 112 So. 3d 1158, 1163 (Fla. 2013)).

      Branch initially sought extensive records from multiple entities, but later

narrowed the requests to records relating to the expiration dates of the drugs the

Florida Department of Corrections (DOC) plans to use during his execution and

records relating to the autopsy of Patrick Charles Hannon, the last inmate to be

executed under Florida’s current lethal injection protocol. We have previously

held that these types of requests are unlikely to lead to a colorable claim for

postconviction relief. See, e.g., Hannon v. State, 228 So. 3d 505, 511 (Fla. 2017);

Chavez, 132 So. 3d at 830; Muhammad, 132 So. 3d at 203, 206. Specifically, with

respect to Branch’s assertion that the DOC’s supply of execution drugs may be

expired, this Court has stated that it will presume “the DOC will act in accordance

with its protocol and carry out its duties properly. This same presumption would

extend to presume that the DOC will obtain viable versions of the drugs it intends

to use and confirm before use that the drugs are still viable, as the protocol




                                         -6-
requires.” Muhammad, 132 So. 3d at 206 (emphasis added) (citation omitted).4

Similarly, we have explained that autopsy records are not likely to lead to a

colorable claim because they “would not establish when the inmates became

unconscious or whether they experienced pain during their executions.” Chavez,

132 So. 3d at 830. Therefore, the circuit court did not abuse its discretion when it

denied these requests, and we reject this claim.

                         Eligibility for the Death Penalty

      Branch next contends that the circuit court erred when it summarily denied

his claim that he is ineligible for the death penalty. However, the Supreme Court

in Roper designated eighteen as the critical age for determining death eligibility,

stating:

      Drawing the line at 18 years of age is subject, of course, to the
      objections always raised against categorical rules. The qualities that
      distinguish juveniles from adults do not disappear when an individual
      turns 18. By the same token, some under 18 have already attained a
      level of maturity some adults will never reach. . . . [H]owever, a line
      must be drawn. . . . The age of 18 is the point where society draws
      the line for many purposes between childhood and adulthood. It is,
      we conclude, the age at which the line for death eligibility ought to
      rest.

       4. The current DOC lethal injection protocol provides that “[a] designated
execution team member will purchase, and at all times ensure a sufficient supply
of, the chemicals to be used in the lethal injection process. The designated team
member will ensure that the lethal chemicals have not reached or surpassed their
expiration dates.” Fla. Dep’t of Corr., Execution by Lethal Injection Procedures 4
(2017), http://www.dc.state.fl.us/oth/deathrow/lethal-injection-procedures-as-
of_01-04-17.pdf (emphasis added).


                                        -7-
543 U.S. at 574 (emphasis added). Branch argues for an expansion of Roper on

the basis that newly discovered evidence—in the form of scientific research with

respect to development of the human brain, as well as the evolution of state and

international law—mandates that individuals who committed murder in their late

teens and early twenties be treated like juveniles.5 The circuit court properly

denied this claim without an evidentiary hearing.

      First, this issue is procedurally barred. The trial court’s order sentencing

Branch to death found that Branch’s age was not a mitigating circumstance:

      The defendant was twenty-one years of age at the time of this offense.
      There was testimony from the defendant’s brother and grandfather
      that he was not particularly mature for his age, and that he frequently
      requested the assistance of relatives, primarily his grandfather, in
      making important decisions. The defendant did not, however, appear
      to be mentally deficient in any way. He assisted his counsel
      throughout trial, and testified at trial with great specificity and detail.
      The defendant’s age at the time of the crime is not a mitigating factor.



       5. Branch further relies upon American Bar Association Resolution 111
which “urges each jurisdiction that imposes capital punishment to prohibit the
imposition of a death sentence on or execution of any individual who was 21 years
old or younger at the time of the offense.” ABA House of Delegates Resolution
111 (adopted Feb. 5, 2018),
https://www.americanbar.org/content/dam/aba/images/abanews/mym2018res/111.
pdf. The resolution is based on the same considerations as those presented by
Branch in these proceedings. See, e.g., A.B.A. Death Penalty Due Process Rev.
Project & Sec. Civ. Rts. & Soc. Just., Report to the House of Delegates 3 (2018)
(“The newly-understood similarities between juvenile and late adolescent brains,
as well as the evolution of death penalty law and relevant standards under the
Eighth Amendment lead to the clear conclusion that individuals in late adolescence
should be exempted from capital punishment.”).

                                         -8-
On direct appeal, Branch did not challenge the trial court’s rejection of age as a

mitigating circumstance. Furthermore, the Supreme Court decided Roper on

March 1, 2005. Branch filed the habeas petition in Branch II on August 31, 2005,

and he did not assert that he was ineligible for execution pursuant to Roper.

Accordingly, this claim is waived as it could have been raised previously.

      Second, we have rejected similar claims on the basis that scientific research

with respect to brain development does not qualify as newly discovered evidence.

For example, in Morton v. State, 995 So. 2d 233, 245 (Fla. 2008), the defendant

claimed that a 2004 brain mapping study established that sections of the human

brain are not fully developed until the age of twenty-five. He argued this

constituted newly discovered evidence which required a reweighing of his age—

nineteen-and-a-half years old at the time of the murder—as a mitigating

circumstance. Id. In rejecting this claim, we stated:

      We have previously rejected recognizing “new research studies” as
      newly discovered evidence if based on previously available data. See
      Schwab [v. State, 969 So. 2d 318, 325 (Fla. 2007)] (citing Diaz v.
      State, 945 So. 2d 1136, 1144 (Fla. 2006) (concluding doctor’s letter
      addressing lethal injection research was not newly discovered
      evidence because conclusions in letter were based on old data)).
      Although this 2004 brain mapping study had not yet been published at
      the time of Morton’s trials, Morton or his counsel could have
      discovered similar research at that time that stated that the human
      brain was not fully developed until early adulthood. See Jay D.
      Aronson, Brain Imaging, Culpability and the Juvenile Death Penalty,
      13 Psychol. Pub. Pol’y & L. 115, 120 (2007) (“In the past few
      decades . . . neuroscientists have discovered that two key
      developmental processes, myelination . . . and pruning of neural

                                         -9-
      connections, continue to take place during adolescence and well into
      adulthood . . . . [B]rain regions responsible for basic life processes
      and sensory perception tend to mature fastest, whereas the regions
      responsible for behavioral inhibition and control, risk assessment,
      decision making, and emotion maturing take longer (Yakovlev &
      Lecours, 1967).”). Therefore, the 2004 study would not constitute
      newly discovered evidence and the trial court correctly denied this
      claim without an evidentiary hearing.

Id. at 245-46 (some alterations in original). We further rejected on the merits

Morton’s claim that he was entitled to relief pursuant to Roper:

      Roper has no application here where the facts are undisputed that
      Morton’s chronological age was above nineteen at the time he
      committed the crimes. Because it is impossible for Morton to
      demonstrate that he falls within the ages of exemption, his claim is
      facially insufficient and it was proper for the court to deny Morton a
      hearing on this claim.

Id. at 245.

      Similarly, in Davis v. State, 142 So. 3d 867 (Fla. 2014), the defendant—who

was under an active death warrant—contended that he was not eligible for the

death penalty because, despite his chronological age of twenty-five at the time of

the murder, he was the “functional equivalent of a child.” Id. at 870. The

defendant relied upon “allegedly newly discovered evidence regarding the effects

of alcoholism and sexual abuse on brain development in children, and . . . Roper.”

Id. at 874. This Court concluded that the evidence presented by the defendant was

not newly discovered and, even if it was, the claim would still fail on the merits:

            The studies cited by Davis, addressing the effects of alcoholism
      and sexual abuse on brain development, do not constitute newly


                                        - 10 -
      discovered evidence. This Court has previously stated that it “has not
      recognized ‘new opinions’ or ‘new research studies’ as newly
      discovered evidence.” Schwab v. State, 969 So. 2d 318, 325 (Fla.
      2007). The articles that Davis relies upon fall squarely within this
      subject area and therefore do not constitute newly discovered
      evidence. See Farina v. State, 992 So. 2d 819 (Fla. 2008) (table
      decision) (holding that a “study on brain mapping is not newly
      discovered evidence”); Schwab, 969 So. 2d at 325 (concluding that
      “two recent scientific articles regarding brain anatomy and sexual
      offense” did not constitute newly discovered evidence).
             Further, as explained above, even if these recently published
      articles were considered newly discovered evidence, Davis still fails
      to put forth a cognizable claim. The United States Supreme Court’s
      decision in Roper prohibits the execution of those individuals “who
      were under the age of 18 when their crimes were committed.” 543
      U.S. at 578, 125 S. Ct. 1183. In interpreting the Supreme Court’s
      decision, this Court has previously stated that “Roper only prohibits
      the execution of those defendants whose chronological age is below
      eighteen.” Hill [v. State, 921 So. 2d 579, 584 (Fla. 2006)]. Therefore,
      because Davis was over the age of eighteen when he committed
      murder, Roper does not apply, and his claim is without merit.

Id. at 875-76.

      Finally, the United States Supreme Court has continued to identify eighteen

as the critical age for purposes of Eighth Amendment jurisprudence. See Miller v.

Alabama, 567 U.S. 460, 465 (2012) (prohibiting mandatory sentences of life

without parole for homicide offenders who committed their crimes before the age

of eighteen); Graham v. Florida, 560 U.S. 48, 74-75 (2010) (prohibiting sentences

of life without parole for nonhomicide offenders who committed their crimes

before the age of eighteen). Therefore, unless the United States Supreme Court




                                      - 11 -
determines that the age of ineligibility for the death penalty should be extended, we

will continue to adhere to Roper.

         Accordingly, Branch is eligible for execution because he was not under the

age of eighteen at the time he murdered Morris, and the circuit court properly

denied this claim without an evidentiary hearing.

                            Length of Time on Death Row

         Next, Branch contends that the length of time he has spent on death row—

almost twenty-four years—amounts to cruel and unusual punishment under the

Eighth Amendment. We rejected a similar claim in Correll v. State, 184 So. 3d

478 (Fla. 2015), where the inmate had been on death row for over twenty-nine

years:

         [T]his Court has repeatedly rejected such challenges. See, e.g., Pardo
         v. State, 108 So. 3d 558, 569 (Fla. 2012) (twenty-four years);
         Johnston v. State, 27 So. 3d 11, 27 (Fla. 2010) (almost twenty-five
         years); Tompkins v. State, 994 So. 2d 1072, 1085 (Fla. 2008) (twenty-
         three years); Booker v. State, 969 So. 2d 186, 200 (Fla. 2007) (almost
         thirty years). Further, executions of inmates who have been on death
         row as long as, or longer than, Correll have been permitted. See, e.g.,
         Ferguson v. State, 101 So. 3d 362, 366 (Fla. 2012) (more than thirty
         years); Waterhouse v. State, 82 So. 3d 84, 87 (Fla. 2012) (more than
         thirty-one years); Valle v. State, 70 So. 3d 530, 552 (Fla. 2011)
         (thirty-three years).

Id. at 486. We decline to recede from our longstanding precedent, and we affirm

the denial of this claim.




                                          - 12 -
                PETITION FOR WRIT OF HABEAS CORPUS

      Branch has repeatedly challenged the validity of the prior violent felony

aggravating factor, which was based upon his Indiana conviction for the crime of

sexual battery. In his habeas petition, Branch again challenges this aggravating

factor. In brief, he argues that his Indiana conviction for sexual battery was not a

violent felony under Florida law, the trial court should not have instructed the jury

that sexual battery is a crime of violence, and the trial court improperly relied on

the Indiana conviction to establish the prior violent felony aggravating factor.

These claims should have been or were raised on direct appeal and are, therefore,

procedurally barred. See Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992)

(“Habeas corpus is not a second appeal and cannot be used to litigate or relitigate

issues which could have been, should have been, or were raised on direct appeal.”);

see also id. (“Using different grounds to reargue the same issue is also improper.”).

      Moreover, we concluded in Branch II that even if the Indiana conviction did

not qualify as a prior violent felony, any error was harmless:

      Here, the trial court found two other significant aggravators: the
      murder was committed in the course of a sexual battery and was
      especially heinous, atrocious, or cruel. The trial court determined that
      the mitigating evidence was marginal. Moreover, contrary to
      Branch’s assertions, the mitigating evidence presented at the
      evidentiary hearing adds little more to what was previously presented.

952 So. 2d at 482. We have previously stated that the heinous, atrocious, or cruel

aggravating factor is “qualitatively among the weightiest aggravating

                                        - 13 -
circumstances.” Kaczmar v. State, 228 So. 3d 1, 15 (Fla. 2017). With respect to

this aggravating factor, the trial court found:

              The victim in this case was attacked in a parking lot at [UWF]
       following an evening class. She was carried or dragged from the
       parking lot to a remote wooded area. Her clothes were removed and
       she was both beaten and strangled, in addition to being sexually
       battered. She sustained multiple bruises and abrasions of the face and
       head. There were also abrasions and contusions corresponding to the
       sock which was tied around her neck. Injuries to the internal portions
       of her neck include fractures of the larynx and hyoid bone. The
       medical examiner stated that these internal injuries were commonly
       seen either from a manual compression of the neck or from an injury
       in which the assailant stamps on the victim’s neck with his foot while
       the victim, in a supine position, has her head and face against a firm
       surface such as the earth. The medical examiner testified that the
       victim had injuries to her forearms and hands which were
       characterized as defensive in nature. He testified that such injuries are
       commonly seen in victims who are receiving a beating, and who
       attempt to ward off the blows by raising their hands and arms up to
       the face. The medical examiner testified he could not be certain
       whether death was caused by the multiple blows to the head or by
       strangulation. . . . The medical examiner testified that out of more
       than three thousand autopsies which he has performed, this one will
       stand out in his mind as a result of the brutality of the injuries.
              ....
              . . . [I]t is clear that the injuries inflicted on the victim which
       led to her death were committed with the intent to inflict extreme
       pain.

Because Branch’s habeas claims are both procedurally barred and without merit,

he is not entitled to relief.

                                   CONCLUSION

       Based on the foregoing, we affirm the circuit court’s denial of Branch’s

second successive postconviction motion and deny his successive petition for writ

                                         - 14 -
of habeas corpus. Because Branch is not entitled to relief, we deny his motion for

stay of execution. No oral argument is necessary, and no rehearing will be

entertained by this Court. The mandate shall issue immediately.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Escambia County,
     Edward P. Nickinson, III, Judge - Case No. 171993CF000870XXXAXX
And an Original Proceeding – Habeas Corpus

Robert S. Friedman, Capital Collateral Regional Counsel, Stacy Biggart and
Kathleen Pafford, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida; Billy H. Nolas, Chief, and Kimberly Sharkey, Attorney,
Capital Habeas Unit, Office of the Federal Public Defender, Northern District of
Florida, Tallahassee, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Charmaine M. Millsaps, Senior Assistant
Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee,
Florida,

      for Appellee/Respondent




                                       - 15 -
