IN THE SUPREME COURT OF FLORIDA CASE NO.: SC THOMAS DEWEY POPE, Appellant, VS. STATE OF FLORIDA, Appellee.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC THOMAS DEWEY POPE, Appellant, VS. STATE OF FLORIDA, Appellee. ************************************************************** *** ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA, (Criminal Division) ************************************************************** *** ANSWER BRIEF OF APPELLEE ROBERT A. BUTTERWORTH Attorney General Tallahassee, Florida Leslie T. Campbell Assistant Attorney General Florida Bar No.: North Flagler Drive 9th Floor West Palm Beach, FL Telephone: (561) Facsimile: (561) Counsel for Appellee

2 TABLE OF CONTENTS TABLE OF CONTENTS...i AUTHORITIES CITED... ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT ARGUMENT ISSUES I AND II POPE IS NOT ENTITLED TO AN EVIDENTIARY HEARING ON HIS SUCCESSIVE (THIRD) POSTCONVICTION RELIEF MOTION AS SUCH IS NOT A VALID CLAIM FOR RELIEF (restated) ISSUE III FLORIDA S DEATH PENALTY STATUTE IS NOT UNCONSTITUTIONAL UNDER RING v. ARIZONA, 122 S.Ct (2002) (restated) CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 AUTHORITIES CITED Cases Cited Agostini v. Felton, 521 U.S. 203 (1997)... 16, 44, 49 Aldridge v. State, 503 So. 2d 1257 (Fla. 1987) Almendarez-Torrez v. United States, 523 U.S. 224 (1998) Alvord v. State, 322 So. 2d 533 (Fla. 1975), receded from on other grounds, Caso v. State, 524 So. 2d 422 (Fla. 1988)40, 41, 49 Amos Lee King v. Michael W. Moore, case no. SC , 34, 35, 40, 42, 43, 45, 48 Apodaca v. Oregon, 406 U.S. 404 (1972) Apprendi v. New Jersey, 530 U.S. 466 (2000). 15, 16, 33, 34, 36-43, 45, Bottoson v. State, 813 So. 2d 31 (Fla. 2002), cert. denied, Case No (U.S. June 28, 2002) Brown v. Moore, 800 So. 2d 223 (Fla. 2001)... 40, 48 Caldwell v. Mississippi, 472 U.S. 320 (1985) Card v. Dugger, 512 So. 2d 829 (Fla. 1987) Card v. State, 803 So. 2d 613 (Fla. 2001) Clemons v. Mississippi, 494 U.S. 738 (1990) Combs v. State, 525 So. 2d 853 (Fla. 1988) Cox v. State, 819 So. 2d 705 (Fla. 2002)... 38, 40 Curtis v. United States, 294 F.3d 841 (7th Cir. 2002) Daniels v. State, 741 N.E. 2d 1177 (Ind. 2001)... 30, 31 DeMaria v. State, 777 So. 2d 975 (Fla. 2001) 17, 23, 24, 27, 28 ii

4 DeStefano v. Woods, 392 U.S. 631 (1968) Diaz v. Dugger, 719 So. 2d 865 (Fla. 1998)... 18, 33 Downs v. State, 740 So. 2d 506 (Fla. 1999)... 19, 21 Dugger v. Adams, 489 U.S. 401 (1989) Espinosa v. Florida, 505 U.S (1992) Ferguson v. State, 789 So. 2d 306 (Fla. 2001) Foster v. State, 810 So. 2d 910 (Fla. 2002)... 18, 27 Fotopoulous v. State, 741 So. 2d 1135 (Fla. 1999) Gaskin v. State, 737 So. 2d 509, 513 n.8 (Fla. 1999) Graham v. State, 372 So. 2d 1363 (Fla. 1979) Harris v. Alabama, 513 U.S. 504 (1995) Harris v. United States, 122 S.Ct (2002) Hertz v. State, 803 So. 2d 629 (Fla. 2001), cert. denied, Case No (U.S. June 28, 2002) Hildwin v. Florida, 490 U.S. 638 (1989)... 44, 48, 49 Hurtado v. California, 110 U.S. 516 (1984) Johnson v. Singletary, 695 So. 2d 263 (Fla. 1996) King v. State, 808 So. 2d 1237 (Fla. 2002). 18, 21, 23, 28, 32 Lambrix v. Singletary, 641 So. 2d 847 (Fla. 1994) Lambrix v. State, 698 So. 2d 247 (Fla. 1996) 15, 17, 18, 21, 23, 27, 28, 32 Linroy Bottoson v. Michael W. Moore, case no. SC Looney v. State, 803 So. 2d 656 (Fla. 2001), cert. denied, Case No (U.S. June 28, 2002) Mack v. Iowa, 2001 Iowa App. Lexis 140, * iii

5 Mack v. State, 2001 WL Mann v. Moore, 794 So. 2d 595 (Fla. 2001), cert. denied, Case No (U.S. June 28, 2002) McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001) McKoy v. North Carolina, 494 U.S. 433 (1990) Medina v. State, 573 So. 2d 293 (Fla. 1990)... 35, 36 Medrano v. State, 748 So. 2d 986 (Fla. 1999)... 21, 24 Mills v. Maryland, 486 U.S. 367 (1988) Mills v. Moore, 786 So. 2d 532 (Fla.), cert. denied, 523 U.S (2001)... 15, 16, 40, 41, 48, 49 Muhammad v. State, 603 So. 2d 488 (Fla. 1992)... 20, 35 Murray v. Giarratano, 492 U.S. 1 (1989) New Jersey v. Velez, 746 A.2d 1073 (N.J. Super. Ct. App. Div. 2000)... 30, 31 New v. State, 807 So. 2d 52 (Fla. 2001) Patton v. State, 537 N.E. 2d 513 (Ind. Ct. App. 1989).. 29, 31 Peede v. State, 748 So. 2d 253, 256, n.5 (Fla. 1999) 18, 28, 29 Pennsylvania v. Finley, 481 U.S. 551 (1987) Poland v. Arizona, 476 U.S. 147 (1986) Pope v. State, 441 So. 2d 1073 (Fla. 1983)...3, 35, 43 Pope v. State, 569 So. 2d 1241 (Fla. 1990)... 8, 9, 26 Pope v. State, 702 So. 2d 221 (Fla. 1997)... 17, 18, 20 Pope v. State, 702 So. 2d 221 (Fla. 1997) Pope v. Wainwright, 496 So. 2d 798 (Fla. 1986)...5 iv

6 Proffitt v. Florida, 428 U.S. 242 (1976).. 16, 35, 43, 48, 49 Remeta v. State, 559 So. 2d 1132 (Fla. 1990) Ring v. Arizona, 122 S.Ct (2002)...16, 33-36, 38-43, 45, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) Schad v. Arizona, 501 U.S. 624 (1991) Spaziano v. Florida, 468 U.S. 447 (1984)... 16, 43, 48, 49 Spencer v. State, 27 Fla. L. Weekly S323 (Fla., Apr 11, 2002)... 18, 21, 23, 27, 32 State v. Riechmann, 777 So. 2d 342 (Fla. 2000) State v. Weeks, 166 So. 2d 892 (Fla. 1964) Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)... 22, 24, 26, 27 Steinhorst v. State, 412 So. 2d 332 (Fla. 1982) Sweet v. Moore, 822 So. 2d 1269 (Fla. 2002) Tafero v. State, 524 So. 2d 987 (Fla. 1987) Teffeteller v. Dugger, 734 So. 2d 1009 (Fla. 1999) Thomson v. State, 648 So. 2d 692 (Fla. 1984) Tuilaepa v. California, 512 U.S. 967 (1994)... 45, 46 United States v. Allen, 247 F.3d 741 (8th Cir. 2001) United States v. Cotton, 122 S.Ct (2002)... 36, 50 United States v. Moss, 252 F.3d 993 (8th Cir. 2001) United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002) v

7 United States v. Sanders, 247 F.3d 139 (4th Cir 2002) Vining v. State, 27 Fla. L. Weekly S654 (Fla., Jul 03, 2002) 18, 21, 23, 27, 32 Walters v. State, 574 N.E.2d 911 (Ind. 1991) Walton v. Arizona, 497 U.S. 639 (1990)...16, Waterhouse v. State, 792 So. 2d 1176 (Fla. 2001) 21, 23, 28, 32 Way v. State, 760 So. 2d 903 (Fla. 2000) Williams v. State, 777 So. 2d 947 (Fla. 2000)..17, 21, 23, 24, 27, 28, 32 Witt v. State, 387 So. 2d 922 (Fla. 1980) Other Authority Cited Florida Rule of Criminal Procedure Florida Rule of Criminal Procedure vi

8 PRELIMINARY STATEMENT Appellant, Thomas Dewey Pope, was the defendant at trial and will be referred to as the Defendant, Appellant, or Pope. Appellee, the State of Florida, the prosecution below will be referred to as the State. References to the record on direct appeal will be by the symbol ROA, to the record from the second postconviction relief appeal, case number will be by the symbol 2PCR, to the instant record for the third postconviction motion will be by the symbol 3PCR any supplemental records or transcripts will have the added notation supp, and to the Appellant s brief will be by the symbol IB, followed by the appropriate page number(s). STATEMENT OF THE CASE AND FACTS Thomas Dewey Pope was indicted in 1982 on three counts of first-degree murder and was found guilty of all charges following his jury trial. The jury recommended, and the trial judge imposed life sentences for two of the three murders and a death sentence for the third murder. On direct appeal to this Court, the following historical facts were established: On January 19, 1981, the bodies of Al Doranz and Caesar Di Russo were discovered in an apartment rented to Kristine Walters. Both had been dead several days but Di Russo s body was in a more advanced state of decomposition than Doranz s. Both victims 1

9 had been shot, Doranz three times and Di Russo five times. A spent.22 caliber shell casing was found under Di Russo s body. Three days later, the body of Kristine Walters was found floating in a canal. She had been shot six times with exploding ammunition, her skull was fractured and she had been thrown into the canal while still breathing. All three victims had been shot with exploding ammunition, so ballistics comparison was impossible. However, parts of an AR-7 rifle were found in the canal near Walter s body and the spent shell casing under Di Russo s body had been fired from an AR-7 weapon. Investigation led to appellant s girlfriend, Susan Eckard, and ultimately police were able to show that Doranz purchased an AR-7 rifle for Pope shortly before the murder. Eckard and Pope admitted being with Doranz and Walters at Walter s apartment on Friday night, the night Doranz and Di Russo were killed. Eckard later testified that Pope had arranged a drug deal with Doranz and Di Russo. She stated that she and Pope left Walters s apartment to visit Clarence Buddy Lagle and to pick up some hamburgers. They then returned to the apartment where Pope and Doranz convinced Walters to go with Eckard to the apartment where Pope had been staying. Later that same night, Pope arrived at his apartment and told the woman there had been trouble and that Doranz had been injured but that it was best for Walters to stay away from him for a while. Eckard said she knew that Di Russo and Doranz were dead, and that she had known Pope intended to kill them at this point. The next day, Walters checked into a nearby motel, where Pope supplied her with quaaludes and cocaine. On Sunday, Pope told Walters he would take her 2

10 to see Doranz. Eckard testified that Pope had told her he knew he had to get rid of Walters but that he regretted it because he had become fond of her. According to Eckard, Pope described Walter s murder when he returned and said the gun had broken when he beat Walters over the head with it. The next day Eckard went with Pope to the scene of the crime to collect fragments of the broken stock and to look for the missing trigger assembly and receiver. Buddy Lagle told the police he had made a silencer for the AR-7 rifle at Pope s request. Because Lagle planned to leave the jurisdiction to take a job on a ship in the Virgin Islands, he was deposed on a videotape pursuant to an order granting the state s motion to perpetuate testimony. When the state was unable to produce him at trial, the videotape was admitted into evidence. Pope v. State, 441 So. 2d 1073, (Fla. 1983). On direct appeal, Pope raised three issues: (1) the trial court erred in admitting the video-taped deposition of Clarence Lagle, (2) there was insufficient evidence to convict, and (3) the trial court erred in sentencing Pope to death. Pope, 441 So. 2d at As to the first point, this Court found that defense counsel s agreement with the prosecutor that Lagle was unavailable precluded the defendant from complaining about the State s asserted lack of due diligence in searching for Lagle. Also, the Court determined that the evidence was sufficient to sustain all three first-degree murder convictions. With respect to the last point, the Court rejected Pope s challenge to the 3

11 trial court s imposition of the death penalty for Ms. Walter s murder and the findings of aggravating and mitigating factors. The Court affirmed the rejection of nonstatutory mitigating evidence that Pope suffered from post-traumatic stress syndrome, and affirmed the findings that he had been previously convicted of another capital felony, that the murder was committed for the purpose of avoiding or preventing lawful arrest, that it was committed in a cold, calculated and premeditated manner ( CCP ), and was heinous, atrocious or cruel ( HAC ). The trial court s finding of lack of remorse for support of HAC was found to be harmless error. Pope, 441 So. 2d at On September 17, 1984, Pope filed with the trial court a Motion for New Trial pursuant to Florida Rule of Criminal Procedure 3.850, claiming his trial attorney, Scott Eber, was ineffective due to counsel s various omissions or overt acts which prejudiced Pope s case (2PCR ). 1 While this Motion was pending, in May 1985, Pope filed a Petition for Writ of Habeas Corpus and a supplement thereto in this Court, addressing whether: (1) improper remarks were made by the prosecutor and trial judge, (2) the trial court s failure to provide Pope with a presentence investigation report was error, 1 This references the record from the appeal of the second postconviction relief motion and is found in case number

12 (3) the sentencing process improperly encouraged the jury to weigh the circumstances surrounding the death of the three victims, and (4) the jury s sentencing role was trivialized. (3PCR ; 2PCR ). This Court found that none of the points was objected to at trial, and therefore, appellate counsel could not be deemed ineffective unless the errors were fundamental. As to the first point, this Court found that, if it were error, it was not so fundamental as to require a new trial. Pope v. Wainwright, 496 So. 2d 798, 801, 803 (Fla. 1986). As to the second point, this Court determined that, because the presentence investigation report contained no surprises, the admittedly abbreviated review did not constitute fundamental error, and appellate counsel was therefore not ineffective. Id. at 804. This Court also rejected Pope s final two points, holding that the record did not support the contention that the death sentence was imposed in a fundamentally unfair manner. Id. at Following denial of his state habeas petition, on December 30, 1986, Pope filed an Amended Motion for New Trial in which he raised eleven claims of ineffective assistance of counsel related to the guilt and penalty phases addressed to counsel s failure to (1) prevent introduction of Lagle s videotape; (2) confer with Pope or prepare him to testify; (3) object to 5

13 improper comments by the trial judge and prosecutor; (4) present evidence that others killed the victims; (5) present evidence that DiRusso (victim) had a big jewelry deal planned; (6) impeach Susan Eckart; (7) impeach Dr. Garvin (medical examiner); (8) move for a mistrial when sentencing and hearing were held in jury s presence; (9) suppress irrelevant evidence; (10) use Vietnam Syndrom Defense properly; (11) present mitigation; (12) request jury sequestration 2 (3PCR ; 450). After reviewing the Amended Motion for New Trial, the records, and the State s response (3PCR ), the trial court ordered an evidentiary hearing on two claims and summarily denied relief on the others either based upon the insufficient pleading in light of Strickland v. Washington, 466 U.S. 668 (1984) or the abundant evidence against Pope along with the record which reflects a very effective defense... by [Pope s] trial counsel, refute both the specific allegations that counsel s conduct was below the standard required in Strickland, as well as the prejudice necessary to establish such claims. The two claims on which a hearing was granted addressed whether trial counsel was ineffective for (1) failing to prevent the introduction of the Lagle videotape, and (2) for presenting the Vietnam Syndrome 2 This issue was presented in Pope s Amendment to Amended Motion for New Trial (3PCR 450). 6

14 Defense against Pope s wishes. (3PCR ). An evidentiary hearing was conducted on May 7, 1987, regarding the first of the two claims. As a result, the trial judge found that trial counsel was not ineffective for failing to prevent the introduction of Lagle s videotaped deposition based upon the fact that Lagle was, at the time, unavailable. Another evidentiary hearing was conducted on June 5, 1989, regarding the second issue. The trial court denied this claim as well, finding Pope knew, understood, and concurred with his trial counsel s opinion that testimony regarding the syndrome should be used during the guilt phase of the trial. The trial court also found that Pope was an active participant in his trial and his will had not been overborne by trial counsel. (2PCR ). On appeal to this Court from the denial of the postconviction motion, Pope claimed: POINT ONE THE JURY S SEPARATION DURING ITS DELIBERATION ON POPE S GUILT, AND EBER S FAILURE TO OBJECT TO THE JURY S SEPARATION OR TO REQUEST SEQUESTRATION, REQUIRES A NEW TRIAL. POINT TWO THE TRIAL COURT IMPROPERLY FAILED TO HOLD A FULL EVIDENTIARY HEARING ON POPE S MOTION FOR NEW TRIAL. 7

15 A. Eber failed to confer properly with defendant before or during trial and failed to prepare defendant to testify at trial. B. Eber failed to object or properly move for a mistrial when sentencing and hearings occurred in the presence of the jury. C. Eber failed to object to improper comments made at trial by the prosecutor. D. Eber failed to impeach Eckhart. E. Eber failed to investigate evidence or present testimony at trial to prove that others could have killed the three victims. F. Eber failed to present evidence of mitigating circumstances during the penalty phase of Pope s trial. POINT THREE THE TRIAL COURT IMPROPERLY DENIED POPE S CLAIM OF INEFFECTIVE ASSISTANCE STEMMING FROM THE LAGLE VIDEOTAPE WITHOUT A FULL HEARING. POINT FOUR TRIAL COURT IMPROPERLY DENIED POPE S MOTION FOR NEW TRIAL REGARDING EBER S USE OF THE VIETNAM SYNDROME DEFENSE. This Court affirmed the trial court s rulings. Pope v. State, 569 So. 2d 1241 (Fla. 1990). As to the first issue, this Court held that separation of the jury during deliberations was 8

16 not fundamental error where no objection to the separation was made and the defendant s right to a fair and impartial jury was safeguarded through cautionary instructions provided by the trial court. Id. at Further, the Court found that Eber s failure to object or request jury sequestration did not constitute ineffectiveness, because even if the Court were to assume that it was not a strategic decision on Eber s part to allow the jury to separate, Pope failed to allege that the outcome of his trial was affected by Eber s failure to object. Id. at Also affirmed was the trial court s summary denial of the following ineffective assistance of counsel claims: (1) trial counsel failed to confer properly with Pope before and during trial and failed to prepare Pope to testify; (2) trial counsel failed to object and move for a mistrial when hearings and sentencings of other defendants occurred in the jury s presence; (3) trial counsel failed to object to improper comments by the prosecutor; (4) trial counsel failed to impeach state witness Eckhart; (5) trial counsel failed to investigate evidence or present testimony that others could have killed the victims; and (6) trial counsel failed to present evidence of mitigating circumstances during the penalty phase. Id. at This Court noted that, although other claims were raised in the 9

17 postconviction relief motion, only these claims were urged to this Court as warranting an evidentiary hearing. Id. The Court went on to hold that, as to these six claims, it had reviewed the motions, files, and records in the case and agreed with the trial court that such conclusively demonstrated that Pope [was] entitled to no relief. Id. This Court also affirmed the denial of both claims for which evidentiary hearings were conducted. The Court concurred that the use of the Vietnam Syndrome Defense was with Pope s consent, and that its use was a reasonable strategic trial decision. Id. Additionally, it was determined that Eber could not be considered ineffective for stipulating to an established fact, i.e., that Lagle was, indeed, unavailable. Id. at Thereafter, Pope filed a Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of Florida on September 4, On March 28, 1994, Federal District Judge James Paine issued an order finding that Appellant had filed a mixed petition, raising both exhausted and unexhausted claims. The district court thereupon dismissed Pope s federal habeas petition without prejudice so he could return to state court to litigate the unexhausted claims. On April 5, 1995, volunteer counsel, Alan Wagner, filed on Pope s behalf a 151-page Motion to Vacate Conviction and 10

18 Sentence Pursuant to Florida Rule of Criminal Procedure in the state circuit court, raising claims of ineffective assistance of counsel. With respect to the guilt phase, Pope asserted counsel was ineffective for failing to: (1) seek suppression of inadmissible evidence, (2) conduct a effective voir dire, (3) object to improper comments by the trial court, (4) object to improper comments by the prosecutor, (5) crossexamine State witnesses, (6) interview/prepare defense witnesses, (7) present evidence of innocence, (8) present an effective closing argument, (9) submit/argue for proper jury instructions, (10) cognizant of the criminal law and defense principles. Pope also claimed the instructions for the CCP, HAC, and avoid arrest aggravators were unconstitutional. His last claim was addressed to trial counsel s failure to object to instructions that allowed the jury to weigh unconstitutional aggravating circumstances. (3PCR ). Eight months later, Pope filed a pro se Motion to Hold Proceedings in Abeyance Pending Resolution of Status of Representation, and a Motion for Hearing to Determine Competency of Appointed Collateral Counsel and Consolidated Motion for the Appointment of Capital Collateral Representatives. (2PCR , ). In these motions, Pope sought the appointment of Capital Collateral Regional 11

19 Counsel ( CCR ) because Mr. Wagner was no longer able to obtain assistance from the Volunteer Lawyer s Resource Center ( VLRC ), and because Mr. Wagner was not competent to represent Pope absent that assistance. (2PCR ). Pope asserted that a conflict existed because Mr. Wagner was unable to make the necessary argument that he (Mr. Wagner) rendered ineffective assistance of postconviction counsel arising from his representation of Pope during the original proceeding by failing to raise these new claims in the prior motion. In fact, Pope was concerned that Mr. Wagner had made no attempt in his successive motion to excuse his failure to raise the claims in his original motion. Pope claimed he needed CCR appointed to challenge Mr. Wagner s ineffectiveness, so that he could respond to the procedural bar argument the State would likely raise. Also, Pope filed a 42-page pro se Amended Motion to Vacate Convictions and Sentence of Death Pursuant to Fla. R. Crim. Proc with Request for Full and Fair Evidentiary Hearing on Claims. (3PCR ). Anticipating the State s procedural bar argument, Pope asserted that his original collateral counsel was ineffective, that review on the merits would prevent a fundamental miscarriage of justice, and that he is actually innocent of the offenses and the death penalty. Pope sought 12

20 review on the following issues: 1. Trial counsel failed to conduct a reasonable pretrial investigation to uncover witnesses and evidence readily available to him which could have been used to effectively impeach Susan Eckhart. 2. Trial counsel failed to communicate with Appellant about the trial and failed to prepare Appellant for the trial. 3. Trial counsel failed to adequately investigate the case and his defense. 4. Trial counsel failed to prepare and present a defense at the penalty phase, including numerous mitigating circumstances. 5. Trial counsel failed to challenge the constitutionality and applicability of the four aggravating factors. 6. Trial counsel failed to use an investigator to prepare for sentencing. Subsequently, Mr. Wagner moved to withdraw, based on Pope s allegations. (2PCR ). Two weeks later, CCR filed a Motion to Hold Proceedings in Abeyance pending Resolution of Designation of Counsel, claiming that it would be unable to designate counsel for Pope because of its excessive caseload. (2PCR ). That same day, a hearing was held on Mr. Wagner s motion to withdraw, and the trial court ruled that Mr. Wagner would remain on the case until the court had disposed of the motion, after which, counsel would be allowed to withdraw. (2PCR Supp 4-11; 2PCR 621). Additionally, the 13

21 motions filed by CCR and Pope pro se to hold the proceedings in abeyance were denied. (2PCR 616). Next, Pope filed a pro se motion for rehearing entitled Motion to Appoint Conflict-Free Counsel. (2PCR ). The trial court summarily denied the motion filed by Mr. Wagner and Pope s amended motion, finding them to be successive and procedurally barred. It also denied Pope s pro se motion to appoint conflict-free counsel. (2PCR ). Next, CCR filed a Motion to Clarify Status of Counsel, To Reconsider Dismissal of Motion for Postconviction Relief and Motion to Hold Proceedings in Abeyance Pending Resolution of Designation of Counsel. (2PCR ). The stated purpose was CCR s concern that, given the trial court s prior order, Pope would be unrepresented to file a motion for rehearing. The trial court denied the motion. (2PCR 632). On appeal, Pope presented argument on the following: ARGUMENT I - MR. POPE WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND TO A RELIABLE ADVERSARIAL TESTING AT THE GUILT PHASE OF HIS CAPITAL TRIAL, IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS. ARGUMENT II - MR. POPE S SENTENCING JURY RECEIVED UNCONSTITUTIONALLY VAGUE JURY INSTRUCTIONS ON AGGRAVATING CIRCUMSTANCES, IN VIOLATION OF ESPINOSA V. FLORIDA AND JACKSON V. STATE. MR. POPE RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF 14

22 COUNSEL BECAUSE TRIAL COUNSEL FAILED TO KNOW THE LAW AND ADEQUATELY OBJECT TO IMPROPER INSTRUCTIONS. ARGUMENT III - THE LOWER COURT ERRED IN DENYING MR. POPE S MOTION TO APPOINT CONFLICT-FREE COUNSEL AND HIS AMENDED MOTION FOR POSTCONVICTION RELIEF. (3PCR ). As to the first issue, the Court affirmed the summary denial of the ineffectiveness claim, and confirmed Pope was procedurally barred from raising allegations of ineffective assistance that he could have, and should have, raised in his original postconviction motion. Pope v. State, 702 So. 2d 221, (Fla. 1997). Similarly, the Court affirmed the denial of Claims II and III, wherein Pope challenged the constitutionality of the HAC and CCP aggravating factor instructions, and trial counsel s ineffectiveness for failing to challenge them. This Court found the claims procedurally barred as well. Id. at With respect to the third issue, no error was found in the denial of Pope s pro se motion for conflict-free counsel or the dismissal of his pro se Rule motion. Id. at 224. Following that review, Pope returned to federal court where, on February 18, 1999, he filed a second federal habeas corpus petition. After submission of the State s response, by a March 19, 2000 order, the federal district court directed the State to discuss the merits of specific claims. On June 30, 2000, the State filed its response on the merits. 15

23 On February 4, 2002, and before the federal court could rule on the habeas petition, Pope filed his third postconviction relief motion with the state trial court. Simultaneously, Pope requested that his federal habeas litigation be held in abeyance. Over the State s objection, such was granted on March 19, 2002 and the federal case was administratively closed. The State, on February 28, 2002, responded to Pope s third Motion to Vacate Judgment and Sentence and Request for Evidentiary Hearing. In that motion, Pope raised two claims. The first asserted that Lambrix v. State, 698 So. 2d 247 (Fla. 1996) had been overruled, thus, he could raise a claim of ineffective assistance of postconviction counsel and obtain review of procedurally barred claims. The second point was a challenge to the constitutionality of Florida s death penalty statute based upon Apprendi v. New Jersey, 530 U.S. 466 (2000). (3PCR 36-61) The State responded, (3PCR ) and following oral argument on the matter, the trial court denied relief summarily (3PCR ). With respect to the claim of ineffective assistance of collateral counsel, the trial court concluded that the prevailing law as well as legislative and judicial directives did not support Pope s request for an evidentiary hearing on his claim of ineffectiveness of collateral counsel nor did it 16

24 excuse the procedural default in this case. (3PCR 622). Turning to the Apprendi claim, the trial court recognized it was constrained by Mills v. Moore, 786 So. 2d 532 (Fla.), cert. denied, 523 U.S (2001) and relief was denied as a matter of law. (3PCR 621, 623). Subsequently, Pope filed the instant appeal. Simultaneously with the initial brief in this cause, he filed a petition for writ of habeas corpus. 17

25 SUMMARY OF THE ARGUMENT Issues I and II - Pope has not established that an evidentiary hearing was necessary to resolve his claim of ineffective assistance of collateral counsel. Pope s claim was addressed to the thoroughness of collateral counsel s pleading not the meeting of a filing deadline. As such, there was no basis for an evidentiary hearing. Moreover, the effectiveness of collateral counsel is not a valid claim in Florida, therefore, summary denial was proper. Issue III - There is nothing in Ring v. Arizona, 122 S.Ct (2002) or Apprendi v. New Jersey, 530 U.S. 466 (2000) which calls into question Florida s capital sentencing statute. Mills v. Moore, 786 So. 2d 532 (Fla.), cert. denied, 523 U.S (2001), setting death eligibility at the time of conviction for first-degree murder remains a proper interpretation of Florida law in spite of the United States Supreme Court s overruling of Walton v. Arizona, 497 U.S. 639 (1990). Because the Supreme Court did not overturn Hildwin v. Florida, 490 U.S. 638, (1989); Spaziano v. Florida, 468 U.S. 447 (1984); or Proffitt v. Florida, 428 U.S. 242, 253 (1976), Florida s death penalty is constitutional. 18

26 ARGUMENT ISSUES I AND II POPE IS NOT ENTITLED TO AN EVIDENTIARY HEARING ON HIS SUCCESSIVE (THIRD) POSTCONVICTION RELIEF MOTION AS SUCH IS NOT A VALID CLAIM FOR RELIEF (restated). It is Pope s contention that he was entitled to an evidentiary hearing on his claim of ineffective assistance of postconviction counsel because his fact-based allegations were not conclusively rebutted by the record. For support, Pope directs the Court s attention to Williams v. State, 777 So. 2d 947 (Fla. 2000). Pope s appeal is without merit. A claim of ineffective assistance of collateral counsel is not a valid claim in Florida. Lambrix v. State, 698 So. 2d 247 (Fla. 1996). As such, the trial court s decision that Pope had not established a basis for overcoming the procedural default of his successive attempt to raise this issue is supported as a matter of law. Additionally, while Pope recognizes that this claim was raised and rejected in the appeal of his second postconviction motion on the basis of Lambrix; Pope v. State, 702 So. 2d 221, 223 (Fla. 1997), he suggests that Lambrix has been effectively overruled by Williams, 777 So. 2d at 947 and DeMaria v. State, 777 So. 2d 975 (Fla. 2001), thus, the issue should be revisited (IB 20). Pope s reading of Williams and DeMaria is without 19

27 merit as the narrow exceptions recognized, 3 do not alter the rule announced in Lambrix and reaffirmed in Vining v. State, 27 Fla. L. Weekly S654, 658 (Fla., Jul 03, 2002); Spencer v. State, 27 Fla. L. Weekly S323, 328 (Fla., Apr 11, 2002); King v. State, 808 So. 2d 1237 (Fla. 2002). Because this was the second time Pope raised ineffective assistance of postconviction counsel and Lambrix remains the law in Florida, summary denial was proper and this Court should affirm. A trial court s summary denial of a motion to vacate will be affirmed where the law and competent substantial evidence supports its findings. Diaz v. Dugger, 719 So. 2d 865, 868 (Fla. 1998). To uphold the trial court's summary denial of claims raised in a motion, the claims must be either facially invalid or conclusively refuted by the record. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) (citations omitted). See Foster v. State, 810 So. 2d 910, 914 (Fla. 2002) (same). Where a defendant has filed a previous postconviction relief motion raising claims of ineffective assistance of counsel, a successive motion raising additional claim if ineffective assistance may be denied summarily. Pope, 702 So. 2d at 223; 3 See Florida Rule of Criminal Procedure 3.851(d)(2)(C) in which the missed deadline may be excused where postconviction counsel, through neglect, failed to file the motion. (emphasis supplied). 20

28 counsel. See, Tafero v. State, 524 So. 2d 987, 988 (Fla. 1987) (holding [w]hen counsel's ineffectiveness is raised in an initial motion for postconviction relief, a successive motion raising additional grounds for the same claim can be summarily denied. ); Card v. Dugger, 512 So. 2d 829, 830 (Fla. 1987) (same). Moreover, where a defendant fails to raise a cognizable claim, summary denial is proper. See Downs v. State, 740 So. 2d 506, 509 n.5 (Fla. 1999) (holding summary denial of ineffective assistance of appellate counsel claim proper as such is not cognizable in Rule postconviction relief motion, but may be raised in a petition for writ of habeas corpus); Lambrix, 698 So. 2d at 248 (affirming summary denial of ineffectiveness of collateral counsel as such was not a valid claim and had been denied in prior postconviction litigation). Initially, it must be noted that in his appeal of his second postconviction motion, Pope argued that postconviction counsel admitted to not being knowledgeable in the nuances of capital representation and that the trial court s refusal to appoint conflict free counsel denied Pope the right to effective representation in his collateral proceedings. (2PCR Initial Brief at pgs ). The issue was rejected on appeal when this Court reasoned: Additionally, there was no error in the trial court's denying Pope's motion to 21

29 appoint conflict-free counsel and dismissing his amended motion for postconviction relief. In so ruling on the motions, the court wrote: Defendant's Motion for Postconviction Relief is successive; therefore, it is procedurally barred and may be dismissed... Moreover, Defendant's Motion to Appoint Conflict-Free Counsel merely reiterates a previous request that was denied by this Court in its Order of February 5, Thus, the current Motion must be summarily denied. On February 5, 1996, the court issued an Order on Volunteer Counsel's Motion to Withdraw, stating that when the court ruled on the pending rule motions, volunteer counsel's motion to withdraw would be granted. The court did not find a conflict of interest; it allowed counsel to withdraw at his own request. Moreover, the court appointed the Capital Collateral Representative to represent Pope in any further proceedings. There was no error in denying Pope's motions. Because we find that Pope's claims are procedurally barred, we affirm the trial court's dismissal of his rule motion. Pope, 702 So. 2d at 224. Without question, the instant issue has been addressed previously by this Court and resolved adversely to Pope. As such, the matter is procedurally barred and the summary denial should be affirmed. Muhammad v. State, 603 So. 2d 488, 489 (Fla. 1992) (holding "[i]ssues which either were or could have been litigated at trial and upon direct 22

30 appeal are not cognizable through collateral attack."). As such, the trial court s conclusion that Pope was procedurally barred is supported by the record and should be affirmed. In characterizing his postconviction motion as one containing fact-based allegations requiring an evidentiary hearing to resolve (IB 13), Pope errs in his analysis. The issue raised was one of ineffective assistance of postconviction counsel. Before the trial court could address whether an evidentiary hearing was necessary, a threshold legal determination had to be made, namely whether Pope had pled a valid, cognizable claim. Absent a cognizable claim, Pope s postconviction relief motion was subject to summary denial. See Downs, 740 So. 2d at 509 n.5; ; Gaskin v. State, 737 So. 2d 509, 513 n.8 (Fla. 1999); Lambrix, 698 So. 2d at 248. As will be discussed below, ineffective assistance of collateral counsel is not a valid claim for relief in Florida. Lambrix,698 So. 2d at 248 (announcing that claims of ineffective assistance of postconviction counsel do not present a valid basis for relief ). See Vining, 27 Fla. L. Weekly at S658 (reaffirming that ineffective assistance of collateral counsel in not a valid claim); Spencer, 27 Fla. L. Weekly at S328 (same); King, 808 So. 2d at 1245 (same); Waterhouse v. State, 792 So. 2d 1176, 1193 (Fla. 2001). While Williams,

31 So. 2d at 947 found that Lambrix did not foreclose permitting belated appeal where postconviction counsel failed to timely file a notice of appeal, 4 it did not overturn the Lambrix holding that ineffective assistance of postconviction counsel is not a claim in Florida. Although Williams; Medrano v. State, 748 So. 2d 986 (Fla. 1999); and Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999) contemplate a hearing on a motion challenging the actions of collateral counsel, such hearing is limited to those situations where the claim stems from counsel s failure to file a postconviction motion or an appeal from the denial of that motion. The hearing is limited to determining the propriety of granting a request to file a belated action. Here, Pope is not claiming he was precluded from filing a motion or appeal, thus, there is no need for an evidentiary hearing. Because Pope failed to present a valid claim for postconviction relief and did not allege that collateral counsel missed a filing deadline, he was unable to meet the threshold standard for pleading a postconviction motion as a matter of law and summary denial was proper. 4 See Florida Rule of Criminal Procedure 3.851(d)(2)(C) in which the missed deadline may be excused where postconviction counsel, through neglect, failed to file the motion. (emphasis supplied). 24

32 Furthermore, in addressing this issue and finding that Pope s claim for relief must be denied as a matter of law, the trial court identified three factors it considered: (1) this Court s recognition of two areas where collateral counsel s neglect would excuse a filing deadline; (2) the particular importance of a fair and deliberate consideration of issues in capital cases; and (3) the acknowledgment of the importance of quality representation in capital cases (3PCR ). It was the trial court s conclusion that the above factors, do not add up to provide the Defendant with an evidentiary hearing on his claim of ineffective assistance of collateral counsel or to excuse the procedural default in this case. (3PCR 622). The trial court based its decision on King, 808 So. 2d at 1245 which was issued after Williams, 777 So. 2d at 947 and DeMaria, 777 So. 2d at 975. The trial judge reasoned that this Court has: reiterated that an allegation of ineffective assistance of collateral counsel did not state a valid claim for relief. The [Florida Supreme Court] cited Murray v. Giarratano and Pennsylvania v. Finley, supra., as well as Lambrix v. State, 698 So. 2d 247 (Fla. 1996), noting not followed on other grounds, Williams v. State, 777 So. 2d 947 (Fla. 2000) (emphasis supplied). (3PCR ). The trial court s order should be affirmed because, as noted above, this Court has rejected the same claim previously. see Pope, 702 So. 2d at Additionally, Pope 25

33 has not shown any change in the law to support recognition of a substantive claim of ineffective assistance of postconviction counsel. In fact, recently this Court reaffirmed that claims of ineffective assistance of postconviction counsel are not valid claims in Florida. In doing so, this Court cited Lambrix as supporting authority. See Vining, 27 Fla. L. Weekly at S658 (agreeing that claims of ineffective assistance of postconviction counsel do not present a valid basis for relief."); Spencer, 27 Fla. L. Weekly at S328 (same); King, 808 So. 2d at 1245 (same); Waterhouse, 792 So. 2d at 1193 (same). In an attempt to overcome this procedural bar, Pope asserts that there has been a change in the law with respect to claims of ineffective assistance of postconviction counsel. As support he cites to Williams; DeMaria; Medrano; and Steele. However, none further his position as each addressed the limited circumstance where counsel was hired to file a postconviction motion and/or appeal, but failed to do so. Under such circumstance, the Florida Supreme Court determined that due process entitles a prisoner to a hearing on a claim that he or she missed the deadline to file a rule motion because his or her attorney had agreed to file the motion but failed to do so in a timely manner. Steele, 747 So. 2d at 934 (emphasis supplied); Williams, 777 So. 2d at (finding Lambrix does 26

34 not foreclose provision permitting belated appeal where postconviction counsel has failed to timely file a notice of appeal); DeMaria, 777 So. 2d at 975 (same). It is Pope s position that Williams is directly on point and he analogizes a missed filing deadline to missing a meritorious argument in postconviction litigation. Excusal of a missed deadline where counsel was hired for that express purpose is vastly different from recognition of a new constitutional claim. Such claim is not recognized in Florida and the basis for that decision rests in the analysis of the United States Supreme Court. In State v. Weeks, 166 So. 2d 892, 896 (Fla. 1964) and Graham v. State, 372 So. 2d 1363 (Fla. 1979), this Court noted that the flexibility in the due process standards of the Fifth Amendment to the United States Constitution permitted granting a postconviction litigant limited assistance even though he was not entitled to postconviction counsel. The Court in Weeks rejected the contention that collateral counsel was required as a matter of right and reasoned: The Supreme Court of the United States has itself announced that post-conviction habeas corpus and motions under Section 2255, are independent original civil proceedings. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770. Of further persuasion was the action of 27

35 the Judicial Conference of the United States which classified in forma pauperis motions under Section 2255, as being civil in nature for purposes of docketing on the civil dockets of the federal courts. Proceedings of the Judicial Conference of the United States, 1962 p. 76. See also, Right to Counsel in Criminal Post Conviction Review Proceedings, Cal.Law Review, December 1963, Vol. 51, p. 970, pp ; Boskey, The Right to Counsel in Appellate Proceedings, Minn.Law Review, Vol. 45, p The sum of the authorities is that post-conviction remedies of the type under consideration are civil in nature and do not constitute steps in a criminal prosecution within the contemplation of the Sixth Amendment, supra. They do not require the application of the standard of absolutism announced by that amendment. Such remedies are subject to the more flexible standards of due process announced in the Fifth Amendment, Constitution of the United States. This means that in these collateral proceedings there is no absolute right to assistance of a lawyer. Nevertheless, Fifth Amendment due process would require such assistance if the post-conviction motion presents apparently substantial meritorious claims for relief and if the allowed hearing is potentially so complex as to suggest the need Our analysis of the precedents, therefore, leads us to the following conclusions: 1. A proceeding under Rule 1, is civil in nature and analogous to post-conviction habeas corpus. 2. The due process requirements applicable to a Rule 1 proceeding are those suggested 28

36 by Section 12, Declaration of Rights, Florida Constitution and the Fifth Amendment, United States Constitution, rather than the provisions of Section 11, Florida Declaration of Rights and the Sixth Amendment, United States Constitution. Weeks, 166 So. 2d at 896. This flexibility was again recognized in Steele, 747 So. 2d at 934 where a belated filing of a postconviction relief motion was permitted. Now, Pope asks this Court to find that failure to file a sufficient motion or failure to file a particular claim equates to negligence on the part of collateral counsel, thereby allowing a defendant to overcome any procedural bars. 5 Pope goes too far and confuses the flexibility of the Fifth Amendment with a right to effective assistance of counsel recognized under the Sixth Amendment to the United States Constitution. This Court should decline Pope s invitation as it would abrogate completely the distinction between the two amendments, overturn the well settled determination that a claim of ineffective assistance of collateral counsel is not a valid basis for relief in Florida, and undermine the principle of finality in criminal 5 It should be noted that not only was Pope s collateral counsel obtaining assistance from the Volunteer Lawyer s Resource Center, but Pope did obtain an evidentiary hearing on two of the claims that were raised in his first postconviction relief litigation (2PCR ; 3PCR , ). Pope v. State, 569 So. 2d 1241 (Fla. 1990). Thus, the record establishes that collateral counsel filed a timely pleading - one which merited an evidentiary hearing. 29

37 litigation. Furthermore, in Pennsylvania v. Finley, 481 U.S. 551 (1987), the United States Supreme Court refused to extend a due process requirement for effective assistance of collateral counsel claims to situations where a state has chosen to provide collateral counsel to indigent inmates. See Murray v. Giarratano, 492 U.S. 1 (1989). This announcement was embraced by this Court in Lambrix, 698 So. 2d at 248, where, it too, found a claim of ineffective assistance of collateral counsel did not present a valid basis for relief. In spite of the intervening case law of Steele, Williams, and DeMaria, which provide for the limited relief of a belated postconviction motion and/or appeal, as recently as July 3, 2002, the Florida Supreme Court has reaffirmed that claims of ineffective assistance of collateral counsel are not recognized claims here. See Vining, 27 Fla. L. Weekly at 658 (reaffirming that claim of ineffective assistance of postconviction counsel is not valid basis relief); Spencer, 27 Fla. L. Weekly at S328 (rejecting as not valid claim that collateral counsel was rendered ineffective based upon rule prohibiting juror interviews); Foster v. State, 810 So. 2d 910 (Fla. 2002) (refusing to consider claim that postconviction counsel rendered ineffective assistance by not arguing issue in collateral litigation). As such, Williams, and 30

38 DeMaria do not overrule Lambrix and its holding that ineffective assistance of postconviction counsel does not exist as a constitutional claim. This Court, in Waterhouse, has reasoned: Even assuming that defense counsel was ineffective in failing to move for recusal, this Court has repeatedly held that ineffective assistance of postconviction counsel is not a cognizable claim. See, e.g., State ex rel. Butterworth v. Kenny, 714 So. 2d 404, 408 (Fla. 1998) (citing Hill v. Jones, 81 F.3d 1015, 1025 (11th Cir. 1996) (noting that there is no constitutional right to postconviction relief counsel and therefore ineffective assistance of postconviction relief counsel is not a cognizable claim)); Lambrix v. State, 698 So.2d 247, 248 (Fla. 1996) (finding that claims of ineffective assistance of postconviction counsel do not present a valid basis for relief). Waterhouse, 792 So. 2d at 1193 (emphasis supplied). See, King, 808 So. 2d at 1245 (Fla. 2002) (affirming ineffectiveness of collateral counsel does not state valid basis of relief); State v. Riechmann, 777 So. 2d 342, 366 (Fla. 2000) (noting Florida has not recognized ineffective assistance of collateral counsel claims). 6 6 It would appear that should claims of ineffective assistance of collateral counsel be recognized, such claims would be nothing more than avenues to present successive claims for relief and to extend ad infinitum collateral litigation. There would be no finality in criminal cases. 31

39 Pope also cites to a footnote in Peede v. State, 748 So. 2d 253, 256, n.5 (Fla. 1999) (IB 17) which chides a Capital Collateral Counsel for having prepared a conclusory brief on appeal. While the Court referenced a need for effective representation, it did not suggest that an ineffectiveness claim would be entertained even though the defendant himself had complained about his representation. As such, Peede does not further Pope s position. Likewise, reliance upon an unpublished order in Fotopoulous v. State, 741 So. 2d 1135 (Fla. 1999) (IB at 23) or the decision in Remeta v. State, 559 So. 2d 1132 (Fla. 1990) do not assist Pope. In no respect does this Court indicate that it is recognizing an ineffective assistance of collateral counsel claim in the Fotopoulous order or in the action related to compensation for clemency counsel. The Court s recognition that arguments were raised for the first time in the Fotopoulous oral argument and that the defendant would be given the opportunity to amend his postconviction motion when the case returned to the trial court does not establish a fundamental constitutional change in the law. Similarly, the need to compensate counsel properly in clemency proceedings in Remeta does not equate to the recognition of a constitutional claim of effective representation of collateral counsel. Neither Fotopoulous or 32