IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS

Transcription

1 IN THE SUPREME COURT OF FLORIDA TOMMY SANDS GROOVER, Petitioner, v. CASE NO. SC JAMES V. CROSBY, JR., Respondent. / RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS COMES NOW Respondent (hereafter, the State), by and through undersigned counsel, and hereby responds to Groover s successive petition for writ of habeas corpus as directed by order of this Court dated May 17, Procedural History The basic facts of this case are set out in this Court s opinion on direct appeal of Groover s convictions and sentences: On February 6, 1982, Tommy S. Groover, Robert Parker, and his wife, Elaine Parker, forced Richard Allen Padgett to leave a nightclub, where he had been drinking in the company of his girlfriend, Nancy Sheppard. Parker was enraged because Groover had supplied Padgett with drugs Groover was selling for Parker, but Padgett had not paid for them. Padgett was taken to Parker s junkyard and beaten; then he

2 was taken to a wooded area and shot. His throat was cut and his body was thrown in a ditch. Groover and the Parkers melted the barrel of the handgun, then went to a bar. At the bar a young woman, Jody Dawn Dalton, attached herself to Groover and, with Parker s permission, accompanied the group as it went to dispose of the gun and to pick up another woman, Joan Bennett, who could tell them where Nancy Sheppard lived. Later, as the group drove in Elaine s car toward Donut Lake, Groover asked Dalton to perform fellatio on him; she complied. Moments later, Elaine caused a fight between Dalton and Bennett by accusing Bennett of messing around with Groover. The two women got out of the car and fought. Either during this fight or later, Dalton s clothing was removed. At the lake, she was shot five times, her body anchored with cement blocks and thrown in the lake. Bennett testified that Groover had kicked and beaten Dalton before shooting her. Groover claimed that Parker had shot Dalton while Groover remained in the car. Next, the group picked up Nancy Sheppard at her home and Billy Long at his and drove to the scene of the Padgett murder. Long was given a gun and shown Padgett s body in the ditch. He was told that unless he killed Sheppard, his body would lie in the ditch, too. Sheppard was taken to the ditch. Upon seeing her boyfriend s corpse, she fell to her knees and began to cry. Long then shot her and Parker stabbed her. Groover allegedly screamed from the car, She s still breathing! Shoot her again! Shoot her again! Parker took Sheppard s necklace and class ring from her body and her body was thrown into the ditch with Padgett s. 2

3 Groover was originally charged with the Padgett and Sheppard murders. Pursuant to a negotiated plea bargain, he was allowed to plead guilty to the Padgett murder only, with a binding recommendation by the state of imposition of a life sentence. In exchange, Groover was to cooperate with the state in preparation of its cases against Robert and Elaine Parker on all three murders. To this end, he made two inculpatory sworn statements. Later, after changing attorneys, Groover withdrew his guilty plea. He also sought to suppress his earlier statements. At trial, Groover s statements were admitted as part of the state s case-inchief. Bennett and Long also testified about Groover s active participation in the Dalton and Sheppard murders. Groover took the stand in his own behalf and urged a defense of duress arising from his fear of Robert Parker. The jury convicted Groover of first-degree murder on all three counts. It recommended death for the murder of Jody Dalton and life imprisonment for the Padgett and Sheppard murders. The judge sentenced Groover to death for the Padgett and Dalton murders and to life for the Sheppard murder. Groover v. State, 458 So.2d 226, 227 (Fla. 1984), cert. denied, 471 U.S (1985). Groover raised the following issues on direct appeal of his convictions and sentences: I. The trial court reversibly erred in allowing testimony concerning collateral offenses to be introduced at appellant s trial where the collateral offenses were not relevant to the crimes charged, and, even to the extent relevant, where such testimony improperly became a feature 3

4 of appellant s trial, thereby denying him the Sixth Amendment right to a fair trial as well as his Fourteenth Amendment due process rights. II. Appellant was deprived his right to a fair trial guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution by the repeated inflammatory, emotional and thoroughly improper arguments made by the prosecutor. III. Appellant was denied his rights to a fair trial and trial by jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution by the prosecutor s improper assertion of facts, obviously within his own personal knowledge, through cross-examination of appellant, thereby effectively making himself a material witness in the trial. IV. The trial court erred in denying appellant s motion to suppress statements made May 17, 1982, and July 9, A) The statements were involuntary as a matter of law since obtained by direct or implied promises of leniency. B) The statements were made in connection with appellant s offer to plead guilty and his plea of guilty, and therefore were privileged under section , Florida Statutes 91981) and rule 3.172(h), Florida Rules of Criminal Procedure. V. The trial court erred by rejecting the jury s sentencing recommendation of life imprisonment for the murder of Richard Padgett and by imposing a sentence of death upon appellant which imposition, if sustained and carried out, will unconstitutionally deprive appellant of his life. A) Fundamental constitutional objections. 4

5 B) Reasonable persons could differ as to the propriety of the death sentence on the facts of this case. VI. Appellant is entitled to a new penalty hearing where the jury is properly instructed on the aggravating and mitigating circumstances. A) The trial court erred in instructing the jury that the aggravating circumstances set forth in section (5)(b), Florida Statutes could be found based upon a simultaneous conviction for a capital felony. B) The trial court erred in failing to instruct the jury on all the aggravating circumstances set forth in section , Florida Statutes. C) The trial court erred in failing to instruct the jury on the definition of the aggravating circumstances set forth in sections (5)(h) and (i). VII. The death sentence imposed upon appellant for the murder of Jody Dalton is unconstitutional in violation of the Eighth and Fourteenth Amendments to the United States Constitution because mitigating circumstances existed which the trial court improperly failed to consider. VIII. The sentences of death can not be sustained without violating appellant s rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution. This Court found no merit to these claims and affirmed Groover s convictions and sentences. Groover v. State, 458 So.2d 226, 229 (Fla. 1984). The United States Supreme Court denied Groover s petition for writ of certiorari on April 1, Groover v. Florida, 471 U.S (1985). 5

6 In 1986, Groover filed his first motion for postconviction relief in the circuit court, pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised the following claims: I. Tommy Groover s organic brain damage, combined with the state s improper stupefying medication of him during all critical proceedings herein, rendered him incompetent to stand trial and capital sentencing, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. II. Statements by Tommy Groover which were introduced against him at trial in the state s case-in-chief, and for impeachment, were obtained in violation of Tommy Groover s Fifth, Sixth, Eighth and Fourteenth Amendment rights, and trial and pretrial counsel ineffectively protected Tommy Groover from the state obtaining and use of the statements. III. Brain-damaged and medicated Tommy Groover was denied a competent psychiatric/psychological examination in violation of his Sixth, Eighth and Fourteenth Amendment rights. IV. Tommy Groover was denied an individualized capital sentencing determination through his attorneys grossly ineffective investigation and presentation of statutory and nonstatutory mitigating circumstances, in violation of the Sixth, Eighth and Fourteenth Amendments. V. The prosecution concealed payments, money and services from Uncle Ralph to state witnesses, despite a specific defense request for disclosure of any consideration furnished to a witness, in violation of the rule of Brady v. Maryland. VI. The prosecutor s inflammatory and improper closing arguments in the guilt and penalty phases 6

7 violated the Fifth, Sixth, Eighth and Fourteenth Amendments. VII. State s indictment, following Mr. Groover s withdrawal of his guilty plea, of the third murder, posed a realistic likelihood of [prosecutor] vindictiveness. United States v. Goodwin, 102 S.Ct (1982). VIII. Tommy Groover s first lawyer breached his professional duty of loyalty to his client by withdrawing in order to serve as a witness against his client, in violation of the Sixth, Eighth, and Fourteenth Amendments. IX. Mr. Groover s original counsel unreasonably provided his client with inaccurate information concerning the nature and consequences of his guilty plea, in violation of the Sixth, Eighth, and Fourteenth Amendments. X. Trial counsel s failure to investigate and present a defense of voluntary intoxication denied Tommy Groover effective assistance of counsel, in violation of the Sixth, Eighth and Fourteenth Amendments. XI. Mr. Groover s counsel failed to object to the use of involuntary statements for purposes of rebuttal or impeachment, in violation of Tommy Groover s right to effective counsel and the Fifth, Sixth and Fourteenth Amendments. XII. Trial counsel failed to investigate and present evidence of duress and coercion in the guilt and penalty phases, in violation of the Sixth, Eighth and Fourteenth Amendments. XIII. The death sentence imposed for the murder of Richard Padgett punished Tommy Groover for exercising his constitutional right to a jury in violation of North Carolina v. Pearce. XIV. The sentencing judge improperly considered alleged criminal activity not resulting in a conviction in sentencing. 7

8 The trial court summarily denied the postconviction motion, and Groover appealed. This Court held that claims II, VII, XI and XIII were procedurally barred and that claims IV through VI, VIII through X, XII and XIV had no merit. Groover v. State, 489 So.2d 15, (Fla. 1986). This Court remanded claims I and III to the trial court for an evidentiary hearing on those claims. Id. At The trial court held a three-day evidentiary hearing pursuant to this Court s remand. The court found that Groover failed to establish that he had been incompetent prior to and during trial and that counsel had not been ineffective and denied relief. Groover appealed to this Court, raising the following issues: I. Tommy Groover s organic brain damage and mental retardation, combined with the improper medicating of Mr. Groover by the state during all critical trial-level proceedings, rendered him incompetent to stand trial and capital sentencing, and counsel were ineffective for failing to conduct a reasonable investigation into these issues in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. II. Mr. Groover was denied a competent mental health examination in violation of his Sixth, Eighth, and Fourteenth Amendment rights, and defense counsel rendered ineffective assistance in failing to request a proper mental health evaluation. III. The Appellant s right to an independent fact-finding, reasoned judgment, and full and fair postconviction relief were denied, contrary 8

9 to his Fifth, Sixth, Eighth and Fourteenth Amendment rights. This Court affirmed the trial court s denial of relief. Groover v. State, 574 So.2d 97 (Fla. 1991). In 1991, Groover filed a second motion for postconviction relief raising the following claims: I. The trial court erred by failing to consider nonstatutory mitigating circumstances, circumstances which must be considered regardless of whether there exist statutory mitigating circumstances, and the participants consideration of nonstatutory mitigation was constrained, in violation of Hitchcock v. Dugger, and the Sixth, Eighth and Fourteenth Amendments. II. Mr. Groover s right to a reliable capital sentencing proceeding was violated when the state urged that he be sentenced to death on the basis of impermissible victim impact evidence, in violation of Booth v. Maryland, and the Eighth and Fourteenth Amendments. III. Mr. Groover s sentences of death resting on the heinous, atrocious, and cruel aggravating factor are in direct and irreconcilable conflict with and contrary to Maynard v. Cartwright, 108 S.Ct (1988), in conflict with the Ninth Circuit Court of Appeals decision in Adamson v. Ricketts, 865 F.2d 1011 (9 th Cir. 1988) (en banc), and violate the Eighth and Fourteenth Amendments. IV. The cold, calculated, and premeditated aggravating circumstance was applied to Mr. Groover s case in violation of the Eighth and Fourteenth Amendments. V. Prosecutorial argument, penalty phase jury instructions and the trial court s sentencing process shifted the burden to Mr. Groover to prove that death was inappropriate, in violation of Mullaney v. Wilbur, 421 U.S. 684 (1975), and 9

10 Mills v. Maryland, 108 S.Ct (1988), and the Fifth, Sixth, Eighth, and Fourteenth Amendments. VI. Mr. Groover s death sentences rest upon an unconstitutional automatic aggravating circumstance, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. VII. During the course of Mr. Groover s trial, the prosecution and the court improperly asserted that sympathy towards Mr. Groover was an improper consideration in violation of the Eighth and Fourteenth Amendments. Counsel s failure to litigate this claim deprived Mr. Groover of his right to the effective assistance of counsel. VIII. Prosecutorial argument and insufficient jury instructions concerning the jury s ability to exercise mercy deprived Mr. Groover of a reliable and individualized capital sentencing determination, in violation of the Eighth and Fourteenth Amendments. IX. The jury was misled and incorrectly informed about its function at capital sentencing, in violation of the Eighth and Fourteenth Amendments. Groover amended his second motion to include the following tenth claim: X. Files and records pertaining to Mr. Groover in the possession of certain state agencies have been withheld in violation of chapter 119, Florida Statutes, the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, the Eighth Amendment and the corresponding provisions of the Florida Constitution. The trial court denied the second postconviction motion, and Groover raised the following issues on appeal: I. Mr. Groover was denied due process on his rule motion to vacate in violation of the 10

11 laws of the State of Florida and the Eighth and Fourteenth Amendments to the United States Constitution when the circuit court signed the state s proposed order denying Mr. Groover relief without affording Mr. Groover an opportunity to make objections. II. Mr. Groover was denied a full and fair hearing on his rule motion to vacate in violation of the laws of the State of Florida and the Eighth and Fourteenth Amendments to the United States Constitution when the circuit court denied the motions to disqualify the judge. III. Mr. Groover s death sentence violates Lockett v. Ohio, Eddings v. Oklahoma and Hitchcock v. Dugger, because the sentencing judge limited his consideration of mitigating factors to those listed in Florida s death penalty statute and because the participants operated under this same view; as a result, Mr. Groover s sentence of death was obtained in violation of the Eighth and Fourteenth Amendments. IV. Mr. Groover s sentencing phase was fraught with procedural and substantive errors, which individually and cumulatively deprived him of the fundamentally fair trial guaranteed under the Sixth, Eighth, and Fourteenth Amendments. Further, Mr. Groover was deprived of effective assistance of counsel. A) Mr. Groover s right to a reliable capital sentencing proceeding was violated when the state urged that he be sentenced to death on the basis of impermissible victim impact evidence, in violation of the Eighth and Fourteenth Amendments and Florida Constitution. B) The shifting of the burden of proof in the jury instructions at sentencing deprived Mr. Groover of his rights to due process and equal protection of law, as well as his rights under the Eighth and Fourteenth Amendments. Counsel s failure to object was ineffective assistance. 11

12 C) Mr. Groover s sentence rests upon an unconstitutional automatic aggravating circumstance, in violation of Stringer v. Black, Maynard v. Cartwright, Hitchcock v. Dugger, and the Sixth, Eighth and Fourteenth Amendments. D) The jury was misled by instructions and arguments that sympathy towards Mr. Groover was not a proper consideration. Counsel s failure to object was ineffective assistance. E) Florida s statute setting forth the cold, calculated, and premeditated and heinous, atrocious or cruel aggravating circumstances to be considered in a capital case are facially vague and overbroad in violation of the Eighth and Fourteenth Amendments. The facial invalidity of this aggravating circumstance were not cured in Mr. Groover s case where the jury did not receive adequate guidance. As a result, Mr. Groover s sentence of death violates the Eighth and Fourteenth Amendments. F) The erroneous jury instruction that a verdict of life must be made by a majority of the jury materially misled the jury as to its role at sentencing and created the risk that death was imposed despite factors calling for life, and Mr. Groover s death sentence was thus imposed in violation of the Eighth and Fourteenth Amendments. Counsel s failure to object was ineffective assistance. This Court affirmed the trial court s denial of relief, finding that the first three issues had no merit and that all the sub-issues in the fourth were procedurally barred. Groover v. State, 640 So.2d 1077 (Fla. 1994). In October of 1994, Groover filed a 375-page, thirtyissue petition for writ of habeas corpus in the United States District Court, Middle District of Florida, 12

13 Jacksonville Division. Several of Groover s federal habeas claims were unexhausted, however, and on December 2, 1994, Groover asked the federal court to hold his federal habeas petition in abeyance so that he could return to state court. On the same date, Groover filed his first state petition for writ of habeas corpus with this Court and a third state motion for postconviction relief in the circuit court. Groover raised the following claims of ineffective assistance of appellate counsel in his first state habeas petition: Mr. Groover was denied the effective assistance of counsel on direct appeal to the Florida Supreme Court as required by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, 9, 16(a) and 17 of the Constitution of the State of Florida, in that: 1) Tommy Groover s first lawyer breached his professional duty of loyalty to his client by withdrawing in order to serve as a witness against his client, in violation of the Sixth, Eighth and Fourteenth Amendments. 2) The death sentence imposed for the murder of Richard Padgett punished Tommy Groover for exercising his constitutional right to a jury in violation of North Carolina v. Pearce. 3) The state s indictment of the third murder, following Mr. Groover s withdrawal of his guilty plea, posed a realistic likelihood of [prosecutorial] vindictiveness. United States v. Goodwin, 457 U.S

14 4) The sentencing judge improperly considered nonstatutory aggravating factors that so perverted the sentencing phase of Mr. Groover s trial that it resulted in the arbitrary and capricious imposition of the death penalty, in violation of the Eighth and Fourteenth Amendments of the United States Constitution. 5) Mr. Groover s sentence of death violates the Fifth, Sixth, Eighth, and Fourteenth Amendments because the penalty phase jury instructions shifted the burden to Mr. Groover to prove that death was inappropriate and because the sentencing judge himself employed this improper standard in sentencing Mr. Groover to death. 6) The erroneous jury instruction that a verdict of life must be made by a majority of the jurors materially misled the jurors as to their role at sentencing and created an unacceptable risk that death was imposed despite factors calling for life, and Mr. Groover s death sentence was thus imposed in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. This Court ruled on Groover s first four claims as follows: Groover raised claims 1 and 4, trial counsel s breach of duty and the consideration of nonstatutory aggravators, in his first motion, and this Court found them to have no merit. Groover, 489 So.2d at Claims 2 and 3, regarding prosecutorial vindictiveness and retaliation, were also raised in Groover s first motion. While this Court found both claims to be procedurally barred because they should have been raised on direct appeal, we also found them to be devoid of any merit. Id. At 16. Appellate counsel s failure to raise nonmeritorious issues does not constitute ineffective assistance. Chandler v. Dugger, 634 So.2d 1066, 1068 (Fla. 1994); Swafford v. Dugger, 569 So.2d 1264,

15 (Fla. 1990). Moreover, an allegation of ineffective counsel will not be permitted to serve as a means of circumventing the rule that habeas corpus proceedings do not provide a second or substitute appeal. Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987). Groover v. Singletary, 656 So.2d 424, 425 (Fla. 1995). As to the two remaining claims, the court stated: Groover raised claims 5 and 6, error in the penalty phase instructions and standards, in his second motion, and this Court found the issues to be procedurally barred. Groover, 640 So.2d at 1078, & n.2. Because Groover raised no objections to the instructions at trial, these issues were not preserved for appeal. Appellate counsel is not ineffective for failing to raise issues not preserved for appeal. Medina v. Dugger, 586 So.2d 317, 318 (Fla. 1991). Id. The court then denied the petition: Id. All six of the claims raised in this habeas petition have been raised in prior proceedings before this Court and found to be procedurally barred, without merit, or both. Therefore, appellate counsel was not ineffective for failing to raise these issues. Accordingly, we deny the petition for writ of habeas corpus. In his third state motion for postconviction relief, Groover raised the following claim: I. Newly discovered evidence that Mr. Groover s codefendant received a life sentence establishes mitigation that demands Mr. Groover s death sentences be reduced to life. Further, this newly discovered evidence demonstrates that Mr. 15

16 Groover s death sentences are arbitrary, capricious, disproportionate, disparate, and invalid, in violation of the Eighth and Fourteenth Amendments. Thereafter, Groover attempted to amend his third motion to add an additional claim: II. Counsel for Mr. Groover has not received records from state agencies. Counsel is unable to properly investigate this case, prepare this motion, and otherwise litigate Mr. Groover s claims. This claim arises pursuant to chapter 119 of the Florida Statutes and the Eighth and Fourteenth Amendments. The trial court dismissed the amended claim as improperly filed, and denied the first claim because it had no merit. Groover raised the following issues on appeal: I. Newly discovered evidence that Mr. Groover s codefendant received a life sentence establishes mitigation that demands Mr. Groover s death sentences be reduced to life. Further, this newly discovered evidence demonstrates that Mr. Groover s death sentences are arbitrary, capricious, disproportionate, disparate, and invalid, in violation of the Eighth and Fourteenth Amendments. II. The lower court erred by denying Mr. Groover s motion without providing Mr. Groover an opportunity to argue his motion, in violation of Mr. Groover s rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. III. The lower court erred by denying Mr. Groover s rule motion without granting an evidentiary hearing, thus denying Mr. Groover s right to due process under the United States and Florida Constitutions. 16

17 IV. The lower court erred in denying Mr. Groover s amended motion on the grounds that it was not verified, not permitted, and because his public records issues were untimely. This Court affirmed the trial court s denial of relief, holding that: 1) because Groover and his codefendant Parker were not equally culpable participants in the murders for which Groover had received a death sentence, Parker s sentence reduction did not entitle Groover to a similar reduction in sentence; 2) because the record conclusively showed no entitlement to relief, no evidentiary hearing was needed; 3) the trial court did not err by not hearing the parties in person, and 4) based on state rules of procedure, the trial court was correct in dismissing the amended motion. Groover v. State, 703 So.2d 1035, (Fla. 1997). After reactivating his habeas petition in the federal court, Groover filed an amended petition on May 30, That petition remains pending in federal court. In the meantime, the ever-litigious Mr. Groover filed yet another motion for state postconviction relief his fourth. This motion, filed on June 10, 2002, while the Atkins and Ring cases were pending in the United States Supreme Court, claimed: Groover was entitled to the benefit of a recent Florida statute prohibiting the imposition of a 17

18 death sentence upon a mentally retarded defendant (Claim I); the Eighth Amendment prohibits a death sentence for a mentally retarded defendant (Claim II); the Florida constitution prohibits the imposition of a death sentence for a mentally retarded defendant (Claim III) and Florida s capital sentencing procedures are unconstitutional, citing Apprendi v. New Jersey, 530 U.S. 466 (2000) (Claim IV). After Ring and Atkins were decided, 1 Groover filed an amended motion which included a claim that Groover s death sentence is constitutionally invalid because he is mentally retarded (Claim I), and claims that Florida s capital sentencing procedures are unconstitutional because: the jury sentencing recommendation need not be unanimous (Claim II); the necessary findings of death eligibility are made by a judge without the aid of a jury (Claim III); and jury life recommendations can be overridden (Claim IV); aggravators are not charged in the indictment (Claim V). On November 7, 2002, the circuit court, Judge Arnold presiding, conducted a Huff hearing, after which he ordered an evidentiary hearing on the claim that Groover may not be executed because he is mentally retarded and denied a hearing on the remaining claims. 1 Ring v. Arizona, 536 U.S. 584 (2002); Atkins v. Virginia, 536 U.S. 304 (2002). 18

19 Upon the abolition of CCC-NR, registry counsel was appointed. Attorneys Martin McClain and Linda McDermott thereafter filed a notice of appearance and moved to disqualify Judge Arnold. Before Judge Arnold ruled on the motion to disqualify, McClain and McDermott filed a writ of prohibition in this Court, which ultimately was denied without prejudice to refile after full compliance with Florida Rule of Judicial Administration 2.060(h)(2). Order of May 21, 2004, Case No. SC Judge Arnold subsequently recused himself and Judge Moran is now presiding over the proceedings below. Meanwhile, this Court adopted Fla.R.Crim.P 3.203, setting out procedures for raising claims of mental retardation as a bar to a death sentence. On November 29, 2004, Groover filed yet another Amended Motion to Vacate Judgment and Sentence With Request to Amend. On December 15, 2004, the State moved to strike this amended motion on the grounds that: (a) it did not purport to be a motion under Fla.R.Crim.P and did not satisfy the pleading requirements of that rule; and (b) Groover had failed to seek permission to file an amendment to his fourth motion for postconviction relief as expressly required by Fla.R.Crim.P (f) (4). On January 3, 2005, Groover filed a response to the State s motion to strike, 19

20 contending, essentially, that this Court has ignored the pleading requirements of Rule 3.203, and so should the circuit court. On April 5, 2005, Judge Moran granted the State s motion to strike, while giving Groover ten days to file a pleading which satisfied the rules. More than ten days have elapsed since Judge Moran s order, but Groover has filed nothing new. His previous amended motion remains in effect, but the evidentiary hearing ordered by Judge Arnold has yet to take place. On March 9, 2004, while his fourth state motion for Postconviction relief was pending in state circuit court, and his first federal habeas petition was pending in federal district court, Groover filed in this Court this second state petition for writ of habeas corpus, raising five claims. On March 11, 2004, the State filed a motion to strike Groover s successive habeas petition because of it reliance on non-record facts, and also moved to dismiss his successive petition on the ground that is unauthorized. On April 29, 2004, this Court directed the parties to brief the question whether Groover s successive habeas petition should be dismissed. Both parties filed briefs as directed. On May 17, 2005, without ruling on either the State s motion to strike or its motion to dismiss, this 20

21 Court directed the State to serve a response to the petition. 21

22 ARGUMENT CLAIM I GROOVER S CLAIM THAT HE WAS DEPRIVED OF DUE PROCESS BY THE PROSECUTION S PRESENTATION OF FALSE AND/OR MISLEADING EVIDENCE IS PROCEDURALLY BARRED Groover contends here that testimony by state witnesses denying that they were beneficiaries of a deal was contrary to evidence that trial prosecutor Ralph Green III had paid small sums of cash to certain state witnesses for lunches and travel expenses. 2 He contends that this deliberate deception of court and jury was a violation of due process, citing Giglio v. United States, 405 U.S The State does not concede any of the facts alleged by Groover. There has never been an evidentiary hearing on any claim of witness payments by the prosecutor. What Groover relies on now for his facts are hearsay attachments to his first motion for postconviction relief. Groover s trial prosecutor apparently was prosecuted in federal district court for witness payments and other matters, but it is the State s understanding that he was acquitted on these charges. While Groover s factual allegations must be accepted as true for the purpose of determining whether he might be entitled to an evidentiary hearing, such unsubstantiated allegations cannot support the grant of relief, as Groover implicitly concedes when he asks this Court to remand to the trial court for evidentiary hearing (successive Habeas Petition at 25). That he must make such a request, however, demonstrates why this claim is inappropriate for habeas relief in the first place, and why (among other reasons) the State moved to dismiss Groover s successive habeas petition as unauthorized. 22

23 (1972). 3 He further contends that he presented such a claim in his original motion for postconviction relief, the summary denial of which was affirmed by this Court in See Groover v. State, supra, 489 So.2d at 17. Finally, he contends this Court should revisit this claim in light of this Court s opinion in Guzman v. State, 868 So.2d 498 (Fla. 2004), which discusses the differences between the Giglio and Brady materiality standards. Without expressly saying so, Groover seems to imply that this Court applied the wrong materiality standard in its 1986 opinion. Groover s present due-process claim is one that could and should have been raised once he learned that such witness payments might have occurred. He contends that he did raise such a claim. If so, then this Court s prior resolution of the issue is the law of the case, and he is not entitled to a second appeal of the issue just because he disagrees with the results of a prior appeal. Mills v. State, 603 So.2d 482, 486 (Fla. 1992). Claims raised and rejected in a previous motion for post-conviction relief cannot be raised again on habeas. Scott v. Dugger, 604 So.2d 465, (Fla. 1992). 3 The State likewise does not concede that, even if the facts alleged are true, the testimony given (i.e., that there was no deal in exchange for testimony) was false. 23

24 In fact, however, Groover raised no Giglio claim in his first Postconviction motion. Not only did Groover fail to cite Giglio anywhere in his postconviction motion or in his brief on appeal from the summary denial of that motion, he made no claim that any witness testified falsely. Instead, citing Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Bagley, 473 U.S. 667 (1985), Groover claimed that the prosecutor failed to disclose evidence that could have been used for impeachment of state witnesses, and further argued that the same standard of materiality applied to impeachment evidence as to substantive evidence. See Claim V, original motion for postconviction relief; Groover s Memorandum of Law in Support of Motion for Stay of Execution, at pp ; Initial Brief on Appeal at He argued that an evidentiary hearing is required so that Mr. Groover can prove that a Brady violation occurred (Memorandum, supra at 57; Brief, supra at 59) (emphasis supplied). On appeal, this Court addressed the Brady claim raised by Groover: In claim V, appellant alleges a Brady violation for the prosecutor paying some small sums of cash, for lunches and travel expenses, to several state witnesses. Evidence of these payments has come to light since appellant s conviction and sentences were affirmed by this Court. While we express no opinion on the propriety of these payments, we find that appellant has shown nothing entitling him to 24

25 relief on this point. Appellant claims that these payments should have been made known to the defense in order to expose these witnesses interests in testifying against appellant. In particular, appellant points to payment to Joan Bennett, a critical state witness. Our review of the record shows that appellant s trial counsel fully cross-examined Bennett about her interest in testifying, informing the jury that Bennett received a reduction in charges from first-degree murder to accessory after the fact in exchange for her testimony against appellant. The United States Supreme Court recently held in U.S. v. Bagley, 473 U.S. 667 (1985), that evidence is material for Brady purposes, only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. We find that under this test, appellant s claim must fail. Bennett's interest in testifying was exposed and the payment in question here could have made no difference in the jury s assessment of her credibility. 489 So.2d at 17 (footnote omitted). This Court cited the Bagley/Brady standard of materiality because that was the claim before it. The opinion does not address the Giglio materiality standard for the very simple reason that there was no Giglio claim before the Court. Groover has raised a Giglio claim for the first time in a successive state habeas petition filed nearly twenty years after his Brady claim was rejected. He has no justification whatever for doing so. This claim should be rejected as procedurally barred. 4 4 It is also meritless. In rejecting Groover s Brady claim, this Court found that the payment in question here could 25

26 CLAIM II GROOVER S CLAIM THAT HE WAS DEPRIVED OF DUE PROCESS BY THE ADMINISTRATION OF MELLARIL TO GROOVER WITHOUT THE KNOWLEDGE OF HIS COUNSEL OR THE COURT IS PROCEDURALLY BARRED Groover acknowledges that, in its 1986 opinion, this Court ordered an evidentiary hearing on a claim arising out of record evidence that prison officials administered large doses of Mellaril to Groover before and during trial. Successive Petition at 25-26, 489 So.2d at 17. He also acknowledges that an evidentiary hearing was conducted, that relief was denied, and that this Court affirmed the trial court s order denying relief. Successive Petition at 27, Groover v. State, supra, 574 So.2d at 100. He contends that the issue should be reopened based upon two more recent cases addressing the issue of whether the government may forcibly medicate a criminal defendant to restore him to competency. See Sell v. United States, 539 U.S. 166 (2003); Riggins v. Nevada, 504 U.S. 127 (1992). Groover, however, raised no claim of forced medication in his original postconviction proceedings. Nor does it appear that Groover was forcibly medicated. On the have made no difference in the jury s credibility assessment. 489 So.2d at 17. Thus, it is clear that this Court would not have found that the payments were material even under the Giglio standard of materiality. 26

27 contrary, it is clear from the record that Groover was voluntarily medicated; he was not only perfectly willing to be medicated, he affirmatively requested medication. The issue raised by Groover previously had nothing to do with forced medication; the issues raised and litigated were whether Groover was competent to stand trial in his medicated state, and whether trial counsel were ineffective for failing to inquire as to competency or to request a psychiatric evaluation. The trial court found after evidentiary hearing that Groover was competent and that trial counsel were not ineffective for failing to raise a competency issue. This Court affirmed. 574 So.2d at 98. Put another way, Groover s prior claim was not whether the State had the right to forcibly medicate an otherwise incompetent defendant to render him competent to stand trial, but whether the voluntary acceptance of medication by an otherwise competent defendant had rendered him incompetent. Thus, neither Sell nor Riggins have anything to do with the issue before this Court previously. Groover may not litigate an issue of forced medication for the first time in a successive habeas petition based on facts known to him for almost 20 years. And even if he could, it is clear from the evidentiary hearing that the medication was administered at Groover s own request. See Groover, 27

28 supra, 574 So.2d at ) (noting testimony from Groover s treating physicians that he had complained of being agitated and unable to sleep, and of being depressed, and, after Mellaril had been discontinued, had expressly requested that he be put back on Mellaril). This claim is both procedurally barred and meritless, and should be denied. CLAIM III GROOVER S CLAIM THAT HIS TRIAL COUNSEL WAS INEFFECTIVE AT THE PENALTY PHASE HAS ALREADY BEEN REJECTED BY THIS COURT AND IS PROCEDURALLY BARRED Groover acknowledges that he raised in his first motion for Postconviction relief a claim of ineffective assistance of trial counsel at the penalty phase, and that the summary denial of that claim was affirmed on appeal. He seeks to relitigate that issue. He presents no new facts; he merely claims that this Court failed to address this claim sufficiently. It is true that this Court rejected this claim with little elaboration, finding that it was a claim which warrant[ed] only brief mention. 489 So.2d at 16. As the Court noted, the evidence now claimed to have been omitted centered on appellant s history of drug use and troubled family background, and was largely cumulative to that presented by appellant at trial. 489 So.2d at

29 Furthermore, a primary defense strategy at the penalty phase had been to argue that, although Groover was present at the murders, he was not the party who committed the actual killings. Ibid. The record shows that trial counsel argued six mitigators in his closing argument; inter alia, he argued that Groover was under co-defendant Parker s domination and under extreme duress, that Groover s capacity to appreciate the criminality of his conduct was impaired by his heavy consumption of alcohol and drugs, that Groover should not be made the scapegoat for these crimes, and that life without parole would be an appropriate sentence for Groover. Notwithstanding that Groover had been a party to three murders, each of which was supported by four statutory aggravating circumstances (prior violent felony, during a kidnapping, HAC and CCP), trial counsel successfully persuaded the jury to recommend life on two of the three counts of murder. This Court has already determined that the record conclusively refutes Groover s claim of ineffective assistance of counsel at the penalty phase. Groover is not entitled to a second appeal of this claim. Even if he were, this successive habeas petition is not the appropriate forum to address a claim of ineffective assistance of trial counsel. 29

30 CLAIM IV GROOVER IS NOT ENTITLED TO A JURY TRIAL ON THE ISSUE OF MENTAL RETARDATION Once again, Groover has presented a claim that in inappropriate for state habeas relief. The issue of whether Groover is mentally retarded is pending below. Any claim that he is entitled to a jury trial on his claim of mental retardation should be raised, if at all, at that hearing. In fact, he has raised such a claim. Groover may appeal an adverse determination on this issue, and it is not necessary to litigate the same issue in circuit court and this Court simultaneously. See Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987) ( By raising the issue in the petition for writ of habeas corpus, in addition to the rule petition, collateral counsel has accomplished nothing except to unnecessarily burden this Court with redundant material. ). Nevertheless, this claim is also plainly without merit. Rodriguez v. State, Case No. SC00-99 & SC (Fla., decided May 26, 2005) (defendant has no right under Ring and Atkins to a jury determination of whether he is mentally retarded ) (quoting Arbelaez v. State, 898 So. 2d 25 (Fla. 2005)). Claim IV should be denied. 30

31 CLAIM V GROOVER S RING CLAIM IS PROCEDURALLY BARRED AND MERITLESS This is another habeas claim that duplicates an issue raised below, and should be condemned for that reason alone. Blanco. The State will not belabor this claim; it should be denied for a variety of reasons, including: it has not been preserved; Ring is not retroactive; Ring does not affect Florida s capital sentencing procedures; and Groover s prior violent felony convictions 5 take his case outside any possible ambit of Ring. This Court recently stated: The United States Supreme Court s recent decision in Schriro v. Summerlin, 159 L. Ed. 2d 442, 124 S. Ct (2004), held that the decision in Ring is not retroactive. A majority of this Court has also concluded that Ring does not apply retroactively in Florida to cases that are final, under the test of Witt v. State, 387 So. 2d 922 (Fla. 1980). See Johnson v. State, 2005 Fla. LEXIS 755, 30 Fla. L. Weekly S 297, S (Fla. Apr. 28, 2005). We have similarly concluded that Apprendi is not retroactive in application. See Hughes v. State, 2005 Fla. LEXIS 753, 30 Fla. L. Weekly S 285, S 288 (Fla. Apr. 28, 2005). Accordingly, Rodriguez s Ring and Apprendi claims are procedurally barred in these postconviction proceedings. However, even if the claims were not barred, they are without merit. Two of the aggravating circumstances found by the trial court were a 5 As noted in this Court s opinion on direct appeal, each of Groover s death sentences was supported by the prior violent felony aggravator. 31

32 prior violent felony conviction (based on the contemporaneous convictions of attempted firstdegree murder, attempted armed robbery, attempted armed burglary, and aggravated assault related to the home invasion) and the murder was committed during the course of a robbery. In both instances, a unanimous jury found Rodriguez guilty beyond a reasonable doubt of the offenses, thereby satisfying the mandates of the United States and Florida Constitutions. See Kimbrough v. State, 886 So. 2d 965, 984 (Fla. 2004); Doorbal v. State, 837 So. 2d 940, 963 (Fla.), cert. denied, 539 U.S. 962, 156 L. Ed. 2d 663, 123 S. Ct (2003). Rodgriquez, supra. CONCLUSION By separate motion, the State has moved to dismiss Groover s successive habeas petition as unauthorized. The State stands on that motion. However, should this Court deny the motion to dismiss, Groover s successive habeas petition should be denied summarily for the reasons set forth above. Not a single claim is properly in this Court, and not a single claim warrants hearing or relief. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL CURTIS M. FRENCH Senior Assistant Attorney General Florida Bar No OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, FL (850)

33 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by U.S. Mail to Martin J. McClain and Linda McDermott, McClain and McDermott, P.A., 141 N.E. 30 th Street, Wilton Manors, Florida 33334, this 8 th day of June, CURTIS M. FRENCH Senior Assistant Attorney General CERTIFICATE OF TYPE SIZE AND STYLE This habeas response was produced in Microsoft Word, using Courier New 12 point, a font which is not proportionately spaced. CURTIS M. FRENCH Senior Assistant Attorney General 33