(CN) - A divided Supreme Court on Monday declined to intervene in the case of a Florida man who has spent 40 years on death row awaiting his execution.
Henry Perry Sireci was convicted of the murder and sentenced to die on Nov. 15, 1976.
According to prosecutors, Sireci went to a used car lot in Orlando, Florida on Dec. 3, 1975, and spoke to its owner, Howard Poteet, about buying a car.
During their conversation, the government said, Sireci, armed with a wrench and a knife, got into a struggle with Poteet.
Forensic evidence entered during Sireci's subsequent murder trial shows Poteet suffered 55 stab wounds and cuts to his head, back, chest and extremities.
His throat was also cut and he died of massive hemorrhaging.
Sireci never denied visiting the used car lot, but he has consistently maintained he was innocent of murder. Sireci says he went to the lot and went to the owner's office because he wanted to make off with a set a key that he could use later to steal a car.
The prosecution said Sireci's real intent was to rob Poteet, and the murder was a robbery gone wrong.
Sireci has filed multiple challenges to his conviction over the past four decades, most of them premised on the fact the government's case during his murder trial was based on inaccurate forensic science and false expert testimony.
All of his appeals failed.
In July 2016, he petitioned the U.S. Supreme Court asking it to consider whether a state court violates a petitioner's federal due process rights when it denies him a new trial and a DNA test when new evidence is found casting the evidence and testimony in his original trial in doubt.
On Monday, a majority of justices denied to grant certiorari to the case, prompting Justice Stephen Breyer to write a three-page dissent.
Breyer believes the time has come for the court to reconsider the constitutionality of the death penalty. In this case, it wasn't the purported new evidence or the claimed tainted nature of the old evidence used to convict Sireci that disturbed him -- in fact he doesn't address those issues at all in his dissent -- but rather, that Sireci has "lived in prison under threat of execution for 40 years."
"I should hope that this kind of delay would arise only on the rarest of occasions. But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common," Breyer wrote.
"The number of yearly executions has fallen from its peak of 98 in 1999 to 19 so far this year, while the average period of imprisonment between death sentence and execution has rise," he continued. "Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances."
As an example, Breyer pointed to the case of Ohio death row inmate Romell Broom, who the state attempted and failed to execute by lethal injection on Sept. 15, 2009.
"Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needles and striking bone in the process, all causing 'a great deal
of pain,'" Breyer wrote. "The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a 'cruel and unusual' punishment?"
Breyer also raised the issue of the inequitable way in which some are sentenced to death, and others, committing the same or worse crimes, are not.
"As I and other Justices have previously pointed out, individuals who are executed are not the 'worst of the worst,' but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race."