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

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC THOMAS DEWEY POPE, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT PATRICIA A. HOGAN Assistant CCRC Florida Bar No NEAL A. DUPREE CAPITAL COLLATERAL REGIONAL COUNSEL - SOUTH 101 N.E. 3rd Ave., Suite 400 Fort Lauderdale, FL (954) COUNSEL FOR APPELLANT

2 PRELIMINARY STATEMENT This proceeding involves an appeal of the summary denial of post conviction relief pursuant to Fla. R. Crim. P The following symbols will be used to designate references to the record in this appeal: "R. "PC-R. " -- record on direct appeal to this Court; " -- record on appeal to this Court for Mr. Pope s second motion to vacate; "Supp. PC-R. " -- supplemental record on appeal to this Court for Mr. Pope's second motion to vacate; "PC-R2. " Transcript of hearings in the instant appeal. References to other documents and pleadings will be selfexplanatory. REQUEST FOR ORAL ARGUMENT Mr. Pope has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Pope, through counsel, accordingly urges that the Court permit oral argument. i

3 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... i REQUEST FOR ORAL ARGUMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENTS ARGUMENT I THE TRIAL COURT ERRED BY SUMMARILY DENYING MR. POPE'S CLAIMS. MR. POPE IS ENTITLED TO AN EVIDENTIARY HEARING ARGUMENT II MR. POPE IS ENTITLED TO MERITS DETERMINATION OF PREVIOUSLY ASSERTED CONSTITUTIONAL CLAIMS AND TO AN EVIDENTIARY HEARING AS TO COLLATERAL COUNSEL'S INEFFECTIVENESS ARGUMENT III MR. POPE WAS SENTENCED TO DEATH IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS BECAUSE, UNDER THE FLORIDA SENTENCING SCHEME, THE FACTUAL FINDINGS REQUIRED TO RENDER MR. POPE ELIGIBLE FOR DEATH WERE MADE BY THE JUDGE AND NOT THE JURY A. Mr. Pope s Death Sentence is Invalid Because the Elements of the Offense Necessary to Establish Capital Murder Were Not Charged in the Indictment. 33 B. Florida s capital sentencing scheme is unconstitutional under Ring v. Arizona Applying Ring to Florida s sentencing scheme In light of Ring v. Arizona, The Role ii

4 of the Jury in Florida s Capital Sentencing Scheme does not Satisfy the Sixth Amendment. The Error is not Harmless C. Mr. Pope's Death Sentence was Imposed in Violation of the Due Process Clause of the Fifth Amendment and the Jury Trial Right Guaranteed by the Sixth Amendment Because he was Required to Prove the Non-Existence of an Element Necessary to Make him Eligible for the Death Penalty 57 CONCLUSIONS AND RELIEF SOUGHT CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE iii

5 TABLE OF AUTHORITIES iv Page Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000) Alston v. State, 521 N.E.2d 1331 (Ind.App.1988) Apodaca v. Oregon, 406 U.S. 404 (1972) Apprendi v. New Jersey, 530 U.S. 466 (1999)... 33, 39, 40, 41, 49, 51 Bottoson v. Moore, No. SC , Order Granting Stay of Execution and Setting Oral Argument, (July 8, 2002) Bush v. Gore, 121 S.Ct. 525 (2000) Caldwell v. Mississippi, 472 U.S. 320 (1985)...3, 55, 56 Campbell v. Louisiana, 523 U.S. 392 (1998) Case v. Nebraska, 381 U.S. 336 (1965) Chapman v. California, 386 U.S. 18 (1967) Chicone v. State, 684 So. 2d 736 (Fla. 1996) Combs v. State, 525 So. 2d 853 (Fla. 1988)... 47, 49, 51 Davis v. State, 703 2d 1055 (Fla. 1997)... 47, 48 DeJonge v. Oregon, 299 U.S. 353 (1937)... 39

6 DeMaria v. State, 777 So. 2d 975 (Fla. 2001)... 20, 23 Dixon v. State, 283 So. 2d 1 (Fla.1973)... 43, 49 Dunbar v. State, 515 N.W.2d 12 (Iowa 1994) Engle v. State, 438 So. 2d 803 (Fla. 1983)... 47, 48 Evitts v. Lucey, 469 U.S. 387 (1985) Fitzpatrick v. State, 437 So. 2d 1072 (Fla. 1983) Ford v. Wainwright, 477 U.S. 399 (1986) Fotopoulous v. State, 741 So. 2d 1135 (Fla. 1999)... 23, 24 Furman v. Georgia, 408 U.S. 238 (1972) Gaskin v. State, 737 So. 2d 509 (Fla. 1999)... 14, 15 Goldberg v. Kelly, 397 U.S. 259 (1970) Goss v. Lopez, 419 U.S. 565 (1975) Grossman v. State, 525 So. 2d 833 (Fla. 1988)... 48, 49 Harris v. United States, 122 S.Ct (2002) Hewitt v. Helms, 459 U.S. 460 (1983)... 29, 30 v

7 Hildwin v. Florida, 490 U.S. 638 (1989)... 41, 42 Hoffman v. State, 474 So. 2d 1178 (Fla. 1985) Holland v. State, 503 So. 2d 1250 (Fla. 1987) In re Winship, 397 U.S. 358 (1970)... 57, 60 Johnson v. Louisiana, 406 U.S. 356 (1972) Jones v. State, 591 So. 2d 911 (Fla. 1991) Jones v. United States, 526 U.S. 227 (1999)... 33, 34, 40, 51 King v. State, 808 So. 2d 1237 (Fla. 2002)... 13, 21, 25 Lambrix v. State, 698 So. 2d 247 (Fla. 1996)... 13, 14, 20, 21, 23, 25 Lucas v. State, 376 So. 2d 1149 (Fla. 1979) Mack v. Iowa, 2001 Iowa App. LEXIS 140, *... 29, 30 Medrano v. State, 748 So. 2d 986 (Fla. 1999) Mills v. Moore, 786 So. 2d 532 (Fla. 2001)... 41, 42 Morton v. State, 789 So. 2d 324 (Fla. 2001)... 47, 48 Mullaney v. Wilbur, 421 U.S. 684 (1975)... 59, 60 vi

8 Murray v. Giarratano, 492 U.S. 1 (1989)... 13, 25, 26 New Jersey v. Velez, 746 A. 2d 1073 (N.J. Super. Ct. App. Div. 2000)... 30, 32 Patton v. State, 537 N.E. 2d 513 (Ind. Ct. App. 1989) Patton v. State, 784 So. 2d 380 (Fla. 2000) Peede v. State, 748 So. 2d 253 (Fla. 1999)... 14, 17, 18 Pennsylvania v. Finley, 481 U.S. 551 (1987)... 13, 25 Pope v. Moore, No CIV-HIGHSMITH (Order Holding Proceedings in Abeyance and Administratively Closing Case) (S.D. Fla. March 19, 2002) 10 Pope v. Singletary, No CIV-PAINE (Order on Petition for Writ of Habeas Corpus) (S.D. Fla. March 28, 1994)...6 Pope v. State, 441 So. 2d 1073 (Fla. 1983)...3 Pope v. State, 569 So. 2d 1241 (Fla. 1990)...5 Pope v. State, 702 So. 2d 221 (Fla. 1997)... 10, 20 Pope v. Wainwright, 496 So. 2d 798 (Fla. 1986)... 3, 4, 56 Porter v. State, 400 So. 2d 5 (Fla. 1981) Remeta v. State, 559 So. 2d 1132 (Fla. 1990) Ring v. Arizona, vii

9 2002 U.S. LEXIS 4651, *...33, 39-42, 47, 49, 51, 54, 56, 57 Rivera v. State, 717 So. 2d 477 (Fla. 1998) Roberts v. State, 568 So. 2d 1255 (Fla. 1990) Ross v. State, 386 So. 2d 1191 (Fla. 1980) Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988) Spaziano v. State, 660 So. 2d 1363 (Fla. 1995)... 28, 49 State v. Clark, 260 N.J. Super. 559 A.2d 286 (App. Div. 1992) State v. Dixon, 283 So. 2d 1 (Fla. 1973)... 38, 59 State v. Dye, 346 So. 2d 538 (Fla. 1977) State v. Gray, 435 So. 2d 816 (Fla. 1983)... 35, 38 Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999)... 21, 22, 23, 24 Sullivan v. Louisiana, 508 U.S. 275 (1993)... 52, 53, 60 Thornhill v. Alabama, 310 U.S. 88 (1984) United States v. Allen, 247 F. 3d 741 (8th Cir. 2001) United States v. Dionisio, 410 U.S. 19 (1973) Valle v. State, viii

10 705 So. 2d 1331 (Fla. 1997) Walton v. Arizona, 497 U.S. 639 (1990)... 41, 47, 48 Williams v State, 777 So. 2d 947 (Fla. 2000) , 20-21, 23-26, 32 Wood v. Georgia, 370 U.S. 375 (1962) Zimmerman v. Burch, 494 U.S. 123 (1990) (Statutes and Other Authority) Arizona Rev. stat. Ann (C) Fla. R. Crim. P Florida Rules Regulating the Florida Bar, Rules of Professional Conduct, Rule COMPETENCE Fla. Stat , 42 Fla. Stat (2)... 43, 46, 47, 49, 50, 58, 59 Fla. Stat (3)... 43, 47, 48, 51, 54, 57, 58, 59 Miss. Code Ann STATEMENT OF THE CASE The Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida, entered the judgements of conviction and sentence, including a sentence of death, at issue in this case. On March 25, 1981, a grand jury returned an indictment charging Mr. Pope with three (3) counts of first-degree murder. (R. 1157). The indictment failed to indicate whether the State would seek the death penalty, or upon what factual basis it would do so. 1

11 After hearing evidence from the State and Defense, the court instructed the jury on the charges of first-degree murder as follows: I now instruct you on the circumstances that must be proved before Thomas Dewey Pope may be found guilty of murder in the first degree as charged in Counts I through III of the indictment or any other lesser included crime. Before you can find the defendant guilty of first degree felony murder, the state must prove the following three elements beyond a reasonable doubt, as to Count I: (1) Caesar DeRusso is dead: (2) The death was caused by the criminal act or agency of Thomas Dewey Pope; (3) There was a premeditated killing of Caesar DeRusso. As to Count II: (1) Albert Preston Doranz is dead; (2) The death was caused by the criminal act or agency of Thomas Dewey Pope; (3) There was a premeditated killing of Albert Preston Doranz. As to Count III, you must find: (1) Christine A. Walters is dead; (2) The death was caused by the criminal act or agency of Thomas Dewey Pope; and (3) There was a premeditated killing of Christine A. Walters. (R ). The court stated the jury's duty... is to determine if the Defendant is guilty or not guilty, in accord with the law. It is my job to determine what a proper sentence would be if you find the Defendant guilty" (R. 1071). The jury convicted Mr. Pope of three counts of first-degree murder on February 25, 1982 (R ). The penalty phase began the same day. Following the presentation of evidence and argument by counsel at 2

12 the penalty phase, the judge instructed the jury in accordance with Florida Statute sections (2) and (3). The sentencing jury recommended life imprisonment on two counts, and the death penalty by a majority of nine (9) to (3) as to the third count (R ). The jury was then excused (R. 1131). At the sentencing hearing held on April 7, 1982, the judge received additional argument and Mr. Pope s pre-sentence report (R ). The trial court then sentenced Mr. Pope. The court found that four (4) aggravating circumstances and one (1) mitigating circumstance applied to Count III of the indictment (R. 1153). After entering his findings into the record, the judge imposed life as to Counts I and II, and death for Count III in accordance with the jury's sentencing recommendation (R , ). Mr. Pope appealed. On July 8, 1982, the trial court appointed Michael Gelety to represent Mr. Pope on his direct appeal (R. 1294). On appeal, Mr. Pope challenged (1) the trial court's ruling allowing the videotaped deposition of Clarence "Buddy" Lagle to be presented to the jury, (2) the sufficiency of the evidence, and (3) the imposition of the death penalty. Mr. Pope's convictions and sentences, including his sentence of death, were affirmed on direct appeal. Pope v. State, 441 So. 2d 1073 (Fla. 1983). On September 18, 1984, Mr. Pope filed a motion for post-conviction relief pursuant to Fla. R. Crim. P (see PC-R ). While 3

13 that motion was pending, Mr. Pope sought habeas corpus relief in this Court (see PC-R ). In his petition, Mr. Pope challenged appellate counsel's failure to raise the following issues: (1) improper comments by both the prosecutor and judge which deprived Mr. Pope of a fair trial; (2) failure to provide Mr. Pope with a copy of the presentence investigation report within a reasonable time of sentencing; (3) the sentencing process improperly encouraged the jury to compare and weigh the circumstances surrounding the deaths of the victims; and (4) the court diminished the jury's role in the sentencing process. On October 16, 1986, this Court denied habeas corpus relief. Pope v. Wainwright, 496 So. 2d 798 (Fla. 1986). In terms of Mr. Pope s Caldwell v. Mississippi, 1 claim, this Court stated that Mr. Pope was not entitled to relief based on the fact that the trial court and state's comments were proper statements of the law of Florida. We perceive no eighth amendment requirement that a jury whose role is to advise the trial court on the appropriate sentence should be made to feel it bears the same degree of responsibility as that borne by a true sentencing jury. Pope v. Wainwright, 496 So. 2d at 805 (Fla. 1986)(emphasis added). Mr. Pope amended his motion for post-conviction relief on December 3, 1986 (see PC-R ). His post conviction attorney was a U.S. 320, 105 S.Ct (1985) 4

14 volunteer civil lawyer named Alan Wagner. The amended motion consisted of nineteen (19) pages, and ninety-nine paragraphs. The motion raised the following ineffective assistance of trial counsel claims: (1) [Trial counsel] Eber failed to prevent the introduction of Lagle's videotaped deposition (paragraphs 17-32); (2) Eber failed to confer properly with Defendant before or during trial or prepare [Mr. Pope] to testify at trial (paragraphs 33-46); (3) Eber failed to object to improper comments made at trial by the court and prosecutor (paragraphs 47-56); (4) Eber failed to present testimony at trial to prove that others could have killed the three victims (paragraphs 57-67); (5) Eber failed to present evidence at trial to prove that DiRusso had a big jewelry deal scheduled (paragraphs 58-76); (6) Eber fail to properly impeach Susan Eckhart (paragraphs 77-84); (7) Eber failed to impeach Dr. Keene Garvin, the state s medical examiner (paragraphs 85-88); (8) Eber failed to object or properly move for a mistrial when sentencings and hearings [of others] occurred in the presence of the jury (paragraphs 89-91); (9) Eber failed to move to suppress irrelevant evidence or prevent its introduction into evidence (paragraphs 92-93); (10) Eber improperly used the Vietnam Syndrome Defense against Defendant s wishes (paragraphs 94-95); and (11) Eber failed to present evidence of 5

15 mitigating circumstances during the penalty phase of Defendant s trial (paragraphs 96-97) Id. Mr. Pope added a one (1) page amendment to the motion on August 21, 1987, which consisted of paragraphs 100 and 101. This amendment asserted that trial counsel was ineffective for failing to request that the jury be sequestered during its deliberations. (see PC-R. 428). The trial court granted an evidentiary hearing on two limited issues, which were (1) whether trial counsel was ineffective in failing to prevent the Lagle videotaped deposition from being introduced, and (10) whether trial counsel was ineffective in his presentation of the Vietnam Syndrome Defense. At the conclusion of Mr. Pope s evidentiary hearings, his motion for post-conviction relief was denied by the lower court. On appeal, this Court affirmed the denial of all requested relief. Pope v. State, 569 So. 2d 1241 (Fla. 1990). On September 4, 1991, Mr. Pope filed a petition for a writ of habeas corpus in Federal Court. In its response to Mr. Pope's habeas petition, the State of Florida argued that some of the claims presented had not been exhausted in the state courts. On March 28, 1994, United States District Court Judge James C. Paine dismissed Mr. Pope's federal habeas petition as a mixed petition without prejudice and allowed Mr. Pope to return to state court to exhaust the claims to which the State had asserted non-exhaustion. Pope v. Singletary, No CIV-PAINE 6

16 (Order on Petition for Writ of Habeas Corpus) (S.D. Fla. March 28, 1994). On April 5, 1995, Mr. Pope filed a Motion to Vacate Conviction and Sentence Pursuant to Fla. R. Crim. P (PC-R ). This motion consisted of three (3) claims. Of the three claims, two (2) were claims of ineffective assistance of counsel. 2 Claim I, the largest section of the motion, detailed numerous instances of trial counsel s failures during the guilt phase. In all, this claim totals 118 pages of the 150 page motion (PC-R ). Claim III focused on trial counsel s ineffectiveness in failing to object to instructions during the penalty phase (PC-R ). These claims were either not raised in Mr. Pope s initial post-conviction motion, or if raised, were pled inadequately. The motion failed to address at all the issue of procedural bars. The lower court, Judge Howard M. Zeidwig, ordered the State of Florida to respond to Mr. Pope's motion within thirty (30) days (PC-R. 157). The State of Florida thereafter sought a number of extensions, which the trial court granted (PC-R ). On December 26, 1995, the State of Florida filed its response (PC-R ). Just prior to the filing of the State's response, Mr. Pope filed several pro se pleadings, including a Motion to Hold Proceedings in 2 Claim II asserted that the heinous, atrocious or cruel and cold, calculated and premeditated jury instructions were unconstitutional (PC-R ). 7

17 Abeyance Pending Resolution of Status of Representation (PC-R ), Motion for Hearing to Determine Competency of Appointed Collateral Counsel and Consolidated Motion for the Appointment of the Capital Collateral Representative (PC-R ), and an Amended Rule motion (PC-R ). In his amended motion, Mr. Pope addressed a single issue - - the issue of procedural bars. He asserted, inter alia, that he had a statutory and due process right to the effective assistance of his original post conviction counsel (PC-R ); and as such, he was entitled to have his amended motion, including the claims from his April 5, 1995 pleading, 3 treated as if it were his original, timely pled action under Rule 3.850" (PC-R. 197). Mr. Pope's volunteer counsel thereafter filed a motion to withdraw as counsel, noting that "Mr. Pope no longer desires the undersigned to provide counsel to him or represent his interests and, in fact, is of the belief that the advice and counsel rendered thus far is constitutionally defective" (PC-R. 595). The Office of the Capital Collateral Representative thereafter filed a Motion to Hold Proceedings in Abeyance Pending Resolution of Designation of Counsel, arguing that CCR could not assume Mr. Pope's representation due to excessive 3 The record on appeal is missing page 40 of Mr. Pope s pro se motion. It appears Mr. Pope attached his motion of April 5, 1995 as Appendix B and incorporated all claims contained within the appendix (PC-R ). 8

18 caseload conflicts and requesting that Mr. Pope's post-conviction proceedings be stayed until effective CCR counsel could be designated (PC-R ). During a phone hearing on the matter of Mr. Pope's legal representation, Mr. Pope's volunteer counsel argued that he was "not knowledgeable enough in the nuances of capital representation to know one way or the other" about the law relating to death penalty issues, especially procedural bars (Supp. PC-R. 9-10), and had "no expertise in knowing the ins and outs of the law as it relates to capital representation" (Supp. PC-R. 10). The State argued that volunteer counsel should stay on the case until the resolution of the pending post conviction motions (Supp. PC-R. 9). The lower court thereafter entered an order that volunteer counsel was to remain representing Mr. Pope until such time as the court ruled on the pending Rule motions (PC-R. 621). The lower court also denied the various motions filed pro se by Mr. Pope as well as the CCR office (PC-R. 616). On February 22, 1996, Mr. Pope filed a pro se Motion to Appoint Conflict-Free Counsel, alleging that he was being denied his statutory right to effective and conflict-free representation because the court allowed volunteer counsel to withdraw, but only after resolution of the pending post-conviction motions (PC-R ). On May 29, 1996, the lower court entered an order denying Mr. 9

19 Pope's motion for post-conviction relief as well as Mr. Pope's pro se motion to appoint conflict-free counsel (PC-R. 622). On June 12, 1996, the Office of the Capital Collateral Representative filed a Motion to Clarify Status of Counsel, to Reconsider Dismissal of Motion for Post conviction Relief, and Motion to Hold Proceedings in Abeyance Pending Resolution of Designation of Counsel (PC-R. 624). In its motion, CCR argued that, due to the court's prior order regarding volunteer counsel, "[i]t is not clear [] whether volunteer counsel or CCR, or Mr. Pope, pro se, can file a motion for rehearing as authorized by Fla. R. Crim. P (g)" (PC-R. 625). In response, the State of Florida argued that "because Mr. Wagner filed the Motion for Post-Conviction Relief on behalf of the Defendant, Mr. Wagner, and not Capital Collateral Representative, should file the motion for rehearing, if he deems it necessary" (PC-R. 628). The State also argued that the lower court "should treat the pro-se motion as a separate and distinct motion for post-conviction relief and allow the Capital Collateral Representative to represent the Defendant on that motion" (PC-R. 629). On July 3, 1996, the lower court entered an order that "the CCR would be the appropriate counsel to represent Defendant in any further pleadings before this Court" and that "the Court finds no reason to reconsider its dismissal of either the Motion or Amended Motion for Post conviction Relief, as they were both successive" (PC-R. 632). A 10

20 notice of appeal was thereafter timely filed (PC-R. 633). CCR filed its Initial Brief of Appellant on January 28, On appeal, Mr. Pope asserted that the lower court's finding of procedural bar was erroneous because Mr. Pope's initial post-conviction attorneys were not knowledgeable of the need to raise all available claims in an initial Rule motion and thus were ineffective. The State filed its Answer Brief on February 12, Appellant's Reply Brief was filed on April 10, On December 4, 1997, this Court affirmed the trial court's denial of Appellant's Motion to Vacate. In doing so, this Court held that Mr. Pope s motion for post conviction relief was successive, and did not fall into the two (2) exceptions for belated pleadings. 4 This Court held that the claims were procedurally barred and found that post conviction counsel's ineffectiveness did not constitute such unique circumstances as to overlook the procedural bar. Pope v. State, 702 So. 2d 221 (Fla. 1997). Mr. Pope thereafter went back to federal court and filed an amended petition for habeas corpus relief. On February 4, 2002, Mr. Pope filed a Motion to Vacate Judgment and Sentence, and Request for Evidentiary Hearing Pursuant to Fla. R. Crim. P / Mr. Pope simultaneously filed a motion to hold his federal proceedings in 4 The two exceptions are (1) newly discovered evidence and (2) a fundamental constitutional right has been established which should apply retroactively. 11

21 abeyance pending resolution of the state court proceedings. The federal court ordered the proceedings held in abeyance and administratively closed the case. Pope v. Moore, No CIV- HIGHSMITH (Order Holding Proceedings in Abeyance and Administratively Closing Case) (S.D. Fla. March 19, 2002). The trial court held a Huff hearing on April 19, 2002 (PC-R ) and summarily denied relief on April 22, 2002 (PC-R2. 624). Mr. Pope filed a timely notice of appeal on May 9, (PC-R ). This appeal follows. 12

22 SUMMARY OF THE ARGUMENTS 1. The lower court erred in summarily denying Mr. Pope's claims. Mr. Pope is entitled to an evidentiary hearing on his claim of ineffective assistance of post conviction counsel and on his meritorious Rule claims of ineffective assistance of trial counsel. 2. Mr. Pope is entitled to a full evidentiary hearing on all the claims relating to the guilt and penalty phases of his capital trial raised in his Rule motion. Mr. Pope pleaded specific detailed claims for relief in regards to ineffective assistance of postconviction counsel, which are legally sufficient and are not refuted by the record. 3. Mr. Pope' death sentence is invalid because the factual findings required to render him eligible for the sentence of death were made by the trial judge and not by the jury, in violation of the Sixth, Eighth and Fourteenth Amendments. 13

23 ARGUMENT I THE TRIAL COURT ERRED BY SUMMARILY DENYING MR. POPE'S CLAIMS. MR. POPE IS ENTITLED TO AN EVIDENTIARY HEARING. In his rule motion, Mr. Pope set forth a substantial and detailed claim demonstrating entitlement to an evidentiary hearing. This claim included specific fact-based allegations that Mr. Pope's original post conviction counsel was ineffective in failing to properly litigate his post-conviction appeal. The trial court refused to grant an evidentiary hearing and summarily denied this claim (PC-R ). The trial court erred because Mr. Pope has alleged facts not conclusively rebutted by the record and which demonstrate deficient post conviction counsel performance that prejudiced Mr. Pope. This Court should reverse the trial court's order summarily denying this claim and remand for an evidentiary hearing. In its order summarily denying Mr. Pope s third rule motion, the lower court maintained as a matter of law: [T]he above-stated facts 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. In the recent case of King v. State, 808 So.2d 1237 (Fla. 2002), the Supreme Court reiterated that an 14

24 (PC-R ). allegation of ineffective assistance of collateral counsel did not state a valid claim for relief. The 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). Therefore, the Florida Supreme court does not believe that the Williams decision overruled its holding in Lambrix. While Chief Justice Wells, concurring on part and dissenting in part, recognized that the reasoning in Williams was illogical and in conflict with Lambrix... Williams, 777 So.2d at 951, it is not within the Court s authority to speculate as to whether the Supreme Court will reconcile the perceived conflict. As of this date, the Supreme Court has not extended the flexible standards of due process to permit successive post-conviction motions to be heard on the merits. The lower court erred. Under rule 3.850, a post-conviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief. Gaskin v. State, 737 So. 2d 509 (Fla. 1999); Rivera v. State, 717 So. 2d 477 (Fla. 1998). The defendant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he alleges specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant. Gaskin at 516 citing Roberts v. State, 568 So. 2d 1255, 15

25 1259 (Fla. 1990). The trial court must accept all allegations in the motion as true to the extent they are not conclusively rebutted by the record. See Gaskin at 516; Valle v. State, 705 So. 2d 1331 (Fla. 1997). On appeal, in order to uphold a trial court's summary denial of claims raised in a motion, the claims must be either facially or conclusively refuted by the record. See Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). Where no evidentiary hearing is held below, this Court must accept the defendant's factual allegations to the extent they are not refuted by the record. Id. An evidentiary hearing is presumed necessary absent a conclusion demonstration that the defendant is entitled to no relief. Gaskin at 516. Mr. Pope is entitled to, at a minimum, an evidentiary hearing pursuant to Williams v State, 777 So.2d 947 (Fla. 2000), in order to provide Mr. Pope the opportunity to establish that the reason his prior claims were not properly presented was through attorney neglect. At an evidentiary hearing, Mr. Pope will call all prior counsel who represented him in his first proceedings in order to substantiate his claim. If Mr. Pope prevails in establishing his prior collateral counsel's ineffectiveness, Mr. Pope should then be permitted to have his prior claims, which were procedurally barred, reviewed on their merits. An evidentiary hearing is warranted. 16

26 ARGUMENT II MR. POPE IS ENTITLED TO MERITS DETERMINATION OF PREVIOUSLY ASSERTED CONSTITUTIONAL CLAIMS AND TO AN EVIDENTIARY HEARING AS TO COLLATERAL COUNSEL'S INEFFECTIVENESS. I have no experience in knowing the ins and outs of the law as it relates to capital representation. And, so I m not able to provide [Mr. Pope] effective assistance of counsel - Alan Wagner, Esq. (Supp. PC-R. 10)(emphasis added). Mr. Pope s initial motion was filed with the lower court on September 18, 1984; and that motion was amended on December 3, 1986 and August 21, 1987, respectively (see PC-R , , 428). The final amended motion totaled twenty (20) pages in length and consisted of 101 paragraphs. While it purported to raise issues relating to ineffective assistance of trial counsel, significant omissions and errors of trial counsel were not addressed. 17

27 The attorney who filed Mr. Pope s initial motion was a civil practitioner (Supp. PC-R. 3). He was not versed in the basic points of post conviction representation of death sentenced inmates. As he admitted to the lower court, he was "not knowledgeable enough in the nuances of capital representation to know one way or the other" about the law relating to death penalty issues, especially procedural bars 5 (Supp. PC-R. 9-10). He voluntarily represented Mr. Pope for the ten years following his convictions (Supp. PC-R. 9), but was only able to do so through the advise and counsel of others (Supp. PC-R. 3-4, 10). In his second Rule motion and his pro se amendment thereto, Mr. Pope raised significant issues relating to the validity of his convictions and sentences (PC-R ). These included, inter alia, meritorious claims of ineffective assistance of trial counsel at the guilt and penalty phases of Mr. Pope s capital trial. These matters were not raised in Mr. Pope's initial Rule motion because he had collateral counsel who did not know the law and did not understand that all facts and claims for relief must be presented in an initial Rule motion. The deficiencies in Mr, Pope s representation during his initial collateral proceedings strikingly resemble those deplored by 5 Mr. Wagner failed to address at all the procedural bar issue in Mr. Pope s second

28 this Court in Peede v. State 748 So. 2d 253 (Fla. 1999). Mr. Peede appealed the summary denial of post conviction relief to this Court. In its opinion, the Court noted that We are also constrained to comment on the representation affording Peede in these proceedings. Peede s brief on appeal raised nine issues but was twenty-four pages in length. While we are cognizant that quantity does not reflect quality, the majority of the issues raised were conclusory in nature and made it very difficult and burdensome for this Court to conduct a meaningful review. Id. at 256, n5. At twenty (20) pages, Mr. Pope s initial motion was even more cursory and superficial than the brief about which this Court expressed concern in Peede. Furthermore, the version of Rule in place at the time Mr. Pope filed his initial motion did not impose any page limitations, unlike the Florida Rules of Appellate Procedure. Mr. Pope s initial post conviction motion was purely and simply the result of counsel s failure to know the law, failure to investigate, and failure to present meritorious post conviction claims. In Peede, this Court further noted that [Mr. Peede s] reply brief was actually filed pro se, with the help of a separate ghost attorney. In many respects, this brief was more helpful and comprehensive than the initial brief filed. Id. This again parallels Mr. Pope s situation. Mr. Pope s pro se filing represents a more 19

29 sophisticated and thorough understanding of the law than initial post conviction counsel s first or second motions. Finally, this Court noted We remind counsel of the ethical obligation to provide coherent and competent representation, especially in death penalty cases, and we urge the trial court on remand, to be certain that Peede receives effective representation. Id. Mr. Pope s initial collateral counsel manifestly failed in his ethical obligation to provide coherent and competent representation. However well meaning, by his own admission, counsel lacked the knowledge and expertise to represent Mr. Pope in his post conviction proceedings 6 (Supp. PC-R. 10). By not knowing the law and by failing to effectively plead and exhaust Mr. Pope s available claims, counsel essentially barred Mr. Pope from forever challenging his convictions and sentences. In its response to Mr. Pope s motion, the State argued that Mr. Pope s motion was untimely and successive, as it was filed beyond the statutory time required under Rule and alleged grounds which should have been asserted in Mr. Pope s initial See Florida Rules Regulating the Florida Bar, Rules of Professional Conduct, Rule COMPETENCE "A lawyer shall provide competent representation to his client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." 20

30 motion (PC-R. 236). In all, the Defendant raised thirty-two claims of ineffective assistance of counsel in his three (3) previous motions[ 7 ]. His current claims under Claim I clearly constitute an abuse of procedure under Rule (f) and should be summarily denied as procedurally barred. This is especially true for the Defendant s claims of ineffective assistance which was fully presented to the trial court, denied and rejected by the Supreme court of Florida. There is simply no excuse for presenting new claims of ineffective assistance of counsel in a fourth motion to vacate under Rule in a capital case. There is no excuse for rewording old claims that were abandoned by the Defendant, or judicially rejected. Clearly the Defendant s Motion is procedurally barred and should be denied. (PC-R. 237) The trial court denied Mr. Pope s motion to vacate, holding it to be procedurally barred (PC-R ). On appeal, the State argued that Mr. Pope s claims of ineffective assistance of collateral counsel stated no basis for relief on the authority of Lambrix v. State, 698 So. 2d 247 (Fla. 1996). In affirming the denial of Mr. Pope's second Rule motion, this Court held that "[a] defendant 7 In its Response, the State argued Mr. Pope filed three prior motions under Rule 3.850, and thus should be denied relief. Mr. Pope s initial motion was filed on September 17, 1984, and allegedly was abandoned by Mr. Pope. The second motion was filed on December 30, The third motion was filed on August 21, While technically all three motions were filed under Rule 3.850, the 1986 and 1987 motions were amendments to the first. Thus, all three motions together constitute Mr. Pope s initial motion. 21

31 may not raise claims of ineffective assistance of counsel on a piecemeal basis by filing successive motions" Pope v. State, 702 So. 2d 221, 223 (Fla. 1997) (citing Jones v. State, 591 So. 2d 911 (Fla. 1991)). This Court also rejected Mr. Pope's argument that the procedural bar should be overlooked under the unique circumstances of his case and under prior Florida precedent overlooking procedural bars. Mr. Pope filed his 2002 motion to vacate, however, because this Court effectively overruled the Lambrix opinion in Williams v. State, 777 So. 2d 947 (Fla. 2000) and DeMaria v. State, 777 So. 2d 975 (Fla. 2001). Williams was decided on November 22, 2000, with rehearing denied on February 2, 2001, and mandate thirty (30) days later. DeMaria was decided on February 8, In Williams, this Court held that, based on "flexible standards of due process," a criminal defendant had a due process right to an evidentiary hearing when asserting that a motion was not filed in a timely fashion by counsel. There can be no question that the holding of Williams is in direct conflict with Lambrix. See Williams, 777 So. 2d at 951 (Wells, C.J., concurring in part and dissenting in part) (majority's holding "is illogical and in conflict with Lambrix v. State, 698 So. 2d 247 (Fla. 1996)"); King v. State, 2002 WL at *6 (Fla. Jan. 16, 2002) (noting that Lambrix holding was not followed in 22

32 Williams). 8 The William's case is directly on point here. As in Williams, Mr. Pope s post conviction counsel failed to timely raise meritorious issues of, inter alia, ineffective assistance of counsel at the guilt and penalty phases. The little that was pled in Mr. Pope's initial motion was both inadequate and conclusory. Mr. Pope is entitled to relief pursuant to Williams. Williams comes after a series of cases decided by this Court since Lambrix which have, little by little, eroded the holding in Lambrix that a claim of post conviction counsel's ineffectiveness is not a "valid basis for relief." Lambrix, 698 So. 2d at 248. In Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999), William Steele had been convicted of first degree murder. He claimed that his privately retained attorney had agreed to file a motion on his behalf and then failed to do so. Steele filed a pro se motion, which was found to be untimely and procedurally barred. Steele then attempted to bring a malpractice action against his attorney. Id. at 932. One of the questions before this Court was whether it was appropriate to order a hearing to determine whether a belated post 8 The King opinion indicated that Lambrix was not followed in Williams "on other grounds." This distinction is arbitrary and further supports Mr. Pope's argument that his due process rights were and continue to be violated by the prior procedural bar imposed in the 1997 opinion, where this Court simply applied the Lambrix holding. 23

33 conviction motion should be permitted if, as Steele asserted, his attorney agreed to file a post conviction motion on his behalf but failed to do so in a timely manner. Id. This Court held that due process entitles a prisoner to a hearing on a claim that he missed the deadline to file a rule motion because his attorney agreed but failed to file the motion in a timely manner. If the prisoner prevails at the hearing, he is then authorized to belatedly file a rule motion challenging his conviction or sentence. Id. at 934. This Court went on to amend Rule 3.850(b) to allow belated filing of a post conviction motion in this situation. Id. Again, the similarities between Steele and Mr. Pope are stark. A procedural bar is no more and no less a penalty for failing to timely file a particular claim. Whether the bar is imposed for a failure to file all available claims, as the State contended in Steele, or simply a failure to file nearly all available claims, as in Mr. Pope s case, is irrelevant. In both cases, defendants requested a be timely filed. In both cases, post conviction counsel failed to timely file all available claims. Just as in Steele, Mr. Pope is entitled to a hearing on the issue of his counsel s failure to timely file meritorious claims of ineffective assistance of counsel. In Medrano v. State, 748 So. 2d 986 (Fla. 1999), this Court affirmed its previous decision in Steele, holding that a defendant 24

34 was entitled to a hearing on a claim that he missed the deadline to file a motion based on the ineffectiveness of his collateral counsel. In light of Steele and Medrano, a number of district courts of appeal called into question the continued vitality of Lambrix. The question of whether Lambrix survives Steele was answered in Williams and DeMaria -- it does not. In addition to the above cases, this Court has, since it decided Mr. Pope's case in 1997, provided some defendants with process that it arbitrarily denied Mr. Pope. For example, in Fotopoulous v. State, 741 So. 2d 1135 (Fla. 1999) (unpublished order) (PC-R ), this Court summarily dismissed an appeal from the denial of a capital Rule motion because the collateral attorney's appellate brief "set forth positions and arguments that had not been properly presented to the trial court in either the original or amended rule motion." Despite "criticiz[ing] and condemn[ing] this practice," this Court, "in an attempt to properly administer justice," allowed the defendant to amend his rule motion, although the two-year deadline had long since passed Id. In light of and based on the overruling of Lambrix in Williams, and the subsequent developments in Florida as discussed above, Mr. Pope is entitled to an evidentiary hearing on prior collateral counsel's ineffectiveness in failing to raise all available issues in his first Rule motion pursuant to the procedures set out in 25

35 Williams. Mr. Pope's first collateral counsel acknowledged that he was not knowledgeable or experienced enough to litigate Mr. Pope s post conviction claims (Supp. PC-R. 10). While he knew Mr. Pope s case factually, he required legal assistance from others to file and argue Mr. Pope s appeal (Supp. PC-R. 9-10). Post conviction counsel simply could not perform on his own. Mr. Pope requested counsel file a complete and exhaustive initial motion for relief, and counsel not only failed to do so, but appears to have been completely unable to do so. Collateral counsel failed to provide any type of effective representation (Supp. PC-R. 10). There is no non-arbitrary reason why this Court excused the defaults in Williams, Steele, and Fotopoulos, yet fail to excuse it here, particularly with no articulated definition of what "unique circumstances" will allow it to do so. At an evidentiary hearing, Mr. Pope will call all prior counsel who represented him in his first proceedings in order to substantiate the factual allegations set forth herein. If Mr. Pope prevails in establishing his prior collateral counsel's ineffectiveness, Mr. Pope should then be permitted to have his prior claims, which were procedurally barred, reviewed on their merits. However, in its order summarily denying Mr. Pope s third Rule motion, the lower court maintained: [T]he above-stated facts do not add up to provide the Defendant with an evidentiary 26

36 (PC-R ). hearing on his claim of ineffective assistance of collateral counsel or to excuse the procedural default in this case. In the recent case of King v. State, 808 So.2d 1237 (Fla. 2002), the Supreme Court reiterated that an allegation of ineffective assistance of collateral counsel did not state a valid claim for relief. The 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). Therefore, the Florida Supreme court does not believe that the Williams decision overruled its holding in Lambrix. While Chief Justice Wells, concurring on part and dissenting in part, recognized that the reasoning in Williams was illogical and in conflict with Lambrix... Williams, 777 So.2d at 951, it is not within the Court s authority to speculate as to whether the Supreme Court will reconcile the perceived conflict. As of this date, the Supreme Court has not extended the flexible standards of due process to permit successive post-conviction motions to be heard on the merits. The lower court erred. In Murray v. Giarratano, 492 U.S. 1 (1989) and Pennsylvania v. Finley, 481 U.S. 551 (1987), the United State Supreme Court addressed the issue of whether states must provide post conviction counsel pursuant to the Eighth Amendment. The Court concluded that the States are not required to do so. That is a separate and distinct issue from the issue that Mr. Pope presents to this Court. Mr. Pope s rights to effective assistance of 27

37 post conviction counsel are predicated on Florida's own right to post conviction counsel in capital cases. It is not based on the Eighth Amendment right asserted by Murray v. Giarratano. Given that Mr. Pope has a right to counsel conferred by Florida law, it is axiomatic that the counsel be competent. Failure to apply the holding of Williams to Mr. Pope would result in an arbitrary application of the law and a clear due process and equal protection violation. Where a court provides a remedy to a certain class, "there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." Bush v. Gore, 121 S.Ct. 525, 532 (2000). See also Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000) (courts have "primary responsibility [] to follow the law in each case and [] ensure that the death penalty is fairly administered in accordance with the rule of law and both the United States and Florida Constitutions"). If the manner in which counties count electoral ballots is "not a trivial concern" but rather implicates serious constitutional concerns, Bush, 121 S.Ct. at 531, it cannot be seriously disputed that the validity of a capital conviction is no less "a trivial concern." In fact, "the Eighth Amendment requires a heightened degree of reliability in capital cases." Allen, 756 So. 2d at 59. Thus, there can be no logical or non-arbitrary reason to 28

38 deprive Mr. Pope of the opportunity to establish that he was denied the effective assistance of collateral counsel in his prior proceedings while at the same time the law now permits non-capital defendants to so establish. "The vice in this case is not in the penalty but in the process by which it is inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the penalty is." Furman v. Georgia, 408 U.S. 238, 248 (1972) (Douglas, J., concurring). Mr. Pope has consistently and repeatedly been arbitrarily denied his right to adequate and meaningful review of his constitutional claims for post conviction relief due to the arbitrary erection of procedural bars. The arbitrary deprivation of Mr. Pope's state-created right to effective representation in pursuing a collateral attack under Florida law is itself a constitutional violation of both due process and equal protection. The unique circumstances of Mr. Pope's case demonstrate that he was arbitrarily and unconstitutionally deprived of a meaningful opportunity to pursue his post conviction claims in his initial Rule proceedings. See, e.g. Holland v. State, 503 So. 2d 1250 (Fla. 1987); Case v. Nebraska, 381 U.S. 336, 337 (1965) (Clark, J., concurring). In Zimmerman v. Burch, 494 U.S. 123 (1990), the Supreme Court recognized that "the Due Process clause also encompasses... a guarantee of fair procedure." Id. at 125. "In procedural due 29

39 process claims, the deprivation by state action of a constitutionally protected interest in `life, liberty, or property' is not itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Id. "The constitutional violation actionable... is not complete when the deprivation occurs; it is not complete unless and until the state fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State has provided, and whether it was constitutionally adequate." Id. The law is clear that Mr. Pope had the right to effective assistance of his collateral counsel. See Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988); Spaziano v. State, 660 So. 2d 1363 (Fla. 1995). Under Spalding, this Court held that We recognize that, under section , each defendant under sentence of death is entitled, as a statutory right, to effective legal representation by the capital collateral representative in all collateral relief proceedings. This statutory right was established to alleviate problems in obtaining counsel. Spalding, 526 So.2d at 72. In Remeta v. State, 559 So. 2d 1132 (Fla. 1990), this Court, addressing the statutory right to clemency counsel for deathsentenced inmates, held that "this statutory right necessarily carries with it the right to have effective assistance of counsel." 30

40 Id. at As the Court observed, "[t]he appointment of counsel in any setting would be meaningless without some assurance that counsel give effective representation." Id. (emphasis in original). Although there may be no federal constitutional right to collateral counsel, the federal constitution provides that if a state chooses to provide counsel, then it must comport with due process. This Court's precedent "leave[s] no doubt that where a [state] statute indicates with `language of an unmistakable mandatory character,' that state conduct injurious to an individual will not occur `absent specified substantive predicates,' the statute creates an expectation protected by the Due Process Clause." Ford v. Wainwright, 477 U.S. 399, 427 (1986)(O'Connor, J., concurring in part and dissenting in part) (quoting Hewitt v. Helms, 459 U.S. 460, (1983)). A number of other jurisdictions recognize a right to the effective assistance of post conviction counsel. For example, the Fourth District Court of Appeals of Indiana stated if counsel is inadequate at a post-conviction proceeding, the remedy would be to allow the defendant to start over. Patton v. State, 537 N.E. 2d 513, 522 (Ind. Ct. App. 1989)(citing Alston v. State (1988), Ind.App., 521 N.E.2d 1331, 1335, trans denied)). The court of Appeals in Iowa explicitly recognized the claim in Mack v. Iowa, which lays out the burden of proof for a defendant to prevail in such an action. The 31