1 THE SUPREME COURT OF FLORIDA JOHN GARY HARDWICK ...

THE SUPREME COURT OF FLORIDA

JOHN GARY HARDWICK, JR.

) ) ) ) ) ) ) )

Petitioner, v.

CHARLIE CRIST, Attorney General for the State of Florida, and JAMES V. CROSBY, Secretary, ) Florida Department of Corrections, ) Respondents. ) ___________________________________)

Case No. SC03-2127

) )

PETITION SEEKING TO INVOKE THIS COURT'S ALL WRITS JURISDICTION I. BASIS FOR INVOKING THIS COURT’S JURISDICTION Article V, Section 3(b)(1) and (7) of the Florida Constitution gives this Court exclusive appellate jurisdiction over all capital cases and the ability to issue “all writs necessary to the complete exercise of its jurisdiction.”

This

Court’s “all writs” jurisdiction may be invoked in capital cases when warranted by circumstances. 691 So.2d 481 (Fla. 1997). 1102 (Fla. 1994).

Jones v. Butterworth,

Johnston v. Singletary, 640 So. 2d

The circumstances presented herein warrant

invocation of the “all writs” jurisdiction. Alternatively, Petitioner would ask this Court to treat

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the petition as one seeking a writ of mandamus.

Allen v.

Butterworth, 756 So.2d 52, 55 (Fla. 2000). This Court has consistently maintained an especially vigilant control over capital cases, exercising a special scope of review, see Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977); Wilson v. Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985), and has not hesitated in exercising its inherent jurisdiction to review issues arising in the course of capital post-conviction proceedings. (Fla. 1995).

State v. Lewis, 656 So. 2d 1248

This petition presents substantial

constitutional questions concerning the appointment of counsel and the administration of capital punishment in this State consistent with the United States and Florida Constitutions. The issues are therefore of the type classically considered by this Court pursuant to its “all writs” jurisdiction Jones v. Butterworth.

This Court has the inherent power to exercise

its jurisdiction.

The reasons set forth herein demonstrate

that the Court’s exercise of its “all writs” jurisdiction, and of its authority to promulgate rules of procedure is warranted in this action.

II.

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STATEMENT OF RELEVANT FACTS AND PROCEDURAL HISTORY Petitioner is a death-sentenced inmate.

Credible

evidence exists that the petitioner was irreparably harmed by Judge Haddock’s order appointing counsel other than his federally-appointed counsel to finish the state court proceedings which she had already begun in his case. Subsequent to Judge Haddock’s appointment of Mr. Richard Kuritz as registry counsel, Mr. Kuritz failed to contact Mr. Hardwick or his federally-appointed counsel, Ms. Backhus, to review or obtain any records in the case.

Even after this

Court decided Mr. Hardwick’s state habeas claims (which had been raised by Ms. Backhus), Mr. Kuritz failed to file a motion for rehearing as is now required to preserve the issue under Wright v. State, 857 So. 2d 861 (Fla. 2003). On the basis of these facts, Mr. Hardwick fears that his issues in any further state court proceedings will be jeopardized by his newly appointed registry counsel’s failure to communicate with him, obtain any of his records or even read the records in his case.

Mr. Hardwick attempted to

resolve the issue by requesting that he proceed pro se rather than be represented by Mr. Kuritz, who had no prior knowledge of his case.

Judge Haddock, however, refused to allow Mr.

Hardwick to proceed pro se.

As a result, a due process 3

violation has occurred. Procedural History On February 20, 1998, undersigned counsel was appointed to Mr. Hardwick’s case pursuant Criminal Justice Act. 28 U.S.C. Sec. 848 by the U.S. Court of Appeals for the Eleventh Circuit. See Attachment.

Counsel is currently preparing for

an evidentiary hearing for Mr. Hardwick in federal district court in Jacksonville before Judge Adams. As Mr. Hardwick is a capital defendant under sentence of death, he was previously represented in state court by the Office of the Capital Collateral Counsel for the Northern Region (CCRC-N). The agency conflicted off the case in 1998. See attachment to Appendix 2.

Undersigned has represented Mr.

Hardwick on his federal appeals since that time. See, Appendix 2. On May 19, 2003, the Florida Legislature determined that no further funding be provided to CCRC-N. signed this provision into law.

Governor Bush

Effective July 1, 2003, CCRC-

N was eliminated as a state agency. Since CCRC-N had previously conflicted off the case, it contacted undersigned in June, 2003 so that Mr. Hardwick’s Ring v. Arizona claim could be raised in state court. Undersigned filed a Ring state habeas in the Florida Supreme 4

Court.

She also filed a motion for appointment of counsel on

June 20, 2003. See, Appendix 2.

The only action that remained

in state court at that time was a reply to a state’s answer, oral argument, if scheduled in this case, and a motion for rehearing if the habeas petition was denied. On July 23, 2003, the Florida Supreme Court relinquished jurisdiction temporarily to Duval County Circuit Court Judge Haddock to appoint counsel for Mr. Hardwick, since the CCRCNorth office had been closed.

Judge Haddock was notified that

undersigned counsel represented Mr. Hardwick in federal court. Instead of approving undersigned counsel, Judge Haddock appointed Richard Kuritz, a Jacksonville attorney.1

Mr.

Kuritz had no prior knowledge of the Hardwick case. Mr. Hardwick objected to the appointment of Mr. Kuritz to his case.

Mr. Hardwick argued that Mr. Kuritz could not be

effective because undersigned had been on his case since 1998 and knew the facts and procedural history of his case. See, 1

In prior cases, Assistant State Attorney George Bateh, the prosecutor in Mr. Hardwick’s case, has advocated for local counsel to be appointed to all registry cases in Jacksonville because local attorneys were more “cost effective” and could get “up to speed” faster. See, Motion for Rehearing in Ronnie Ferrell v. State, Case No. 91-8142CFA; hearing held on June 26, 2003. Beside the obvious conflict in the prosecutor of Mr. Hardwick’s case deciding who should represent him, Mr. Bateh is incorrect that local counsel can get “up to speed” faster. In Mr. Hardwick’s case, Richard Kuritz had no prior knowledge or experience. 5

Appendix 4.

Undersigned also filed a motion to reconsider the

appointment of Mr. Kuritz on October 16, 2003. were denied by Judge Haddock.

Both motions

See, Appendix 1.

As of this date, Mr. Kuritz has yet to contact undersigned to obtain any records or information on Mr. Hardwick’s case or his state habeas. Hardwick whom he now represents.

Nor has he contacted Mr.

It is unknown whether Mr.

Kuritz has had any relationship with Mr. Hardwick’s trial attorney, Frank Tassone, who was found to have been deficient in his case by the Eleventh Circuit Court of Appeals.

See,

Hardwick v. Crosby, 320 F. 3d 1127 (11th Cir. 2003). In the interim, this Court considered Mr. Hardwick’s state habeas that was filed by undersigned.

This Court denied

the habeas petition without any response by Mr. Kuritz or a motion for rehearing being timely filed.

Because undersigned

was no longer counsel of record, she was not noticed of this Court’s denial of the state habeas petition. On December 22, 2003, this Court struck Mr. Hardwick’s pro se Notice of Appeal of Judge Haddock’s appointment of registry counsel, and Mr. Hardwick’s request to proceed pro se, and issued an order instructing Mr. Hardwick to file a petition seeking review of the lower court’s non-final order

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by January 12, 2004.2

Mr. Hardwick had no knowledge of the

order because Mr. Kuritz had not communicated with him. Despite this Court’s ruling in Wright v. State3, 857 So. 2d 861 (Fla. 2003), no motion for rehearing was filed by Mr. Kuritz. Undersigned learned of this Court’s denial and the previous order to Mr. Hardwick to file an all writs petition on January 12, 2004.

As Mr. Hardwick’s federally-appointed

counsel, the issues raised in Mr. Hardwick’s state habeas necessarily affect the litigation that is occurring in federal court.

Therefore, she filed a motion to extend the time for

filing Mr. Hardwick’s petition because she had not had an opportunity to consult with Mr. Hardwick as to whether he understood this Court’s orders, its implications for his federal appeals, or whether he wished to file a petition pursuant to Fla. App. R. P. 9.142 (b).4

Because undersigned

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Mr. Hardwick had filed Notice of Appeal in this Court seeking review of circuit court Judge Haddock’s October 21, 2003 Final Order denying the Petitioner’s Pro Se Motion to Discharge and Substitute Appointed Registry Counsel. 3

In Wright v. State, 857 So. 2d 861 (Fla. 2003), this Court issued a new rule that all claims must be raised in the motion for rehearing, or they will be deemed waived and not preserved for future appeals. 4

Because the issues raised in Mr. Hardwick’s state habeas deal with the Ring v. Arizona, 122 S. Ct. 2428 (2002) sentencing issue, this matter will necessarily impact on his 7

did not know whether registry counsel had communicated with the client, undersigned scheduled a January 16, 2004 prison visit to discuss this matter with him. Mr. Hardwick had no knowledge of this Court’s order to file an all writs petition by January 12, 2004 or of this Court’s denial of his state habeas petition.

Nor had Mr.

Kuritz communicated with Mr. Hardwick in any form since his appointment by Judge Haddock. Undersigned agreed to file the instant petition on behalf of Mr. Hardwick in order to preserve his right to request rehearing and to ensure that should he come to state court on any other matters that he be given the same counsel that has represented him for the last six years. Mr. Hardwick has suffered irreparable harm by having registry counsel appointed who was not only ignorant of his case, but ignorant of this Court’s ruling in Wright.

Judge

Haddock abused his discretion in appointing Mr. Kuritz, who had no knowledge of Mr. Hardwick’s case. III. NATURE OF THE RELIEF SOUGHT Mr. Hardwick has claimed that his rights to due process of law have been violated.

Mr. Hardwick is entitled to an

federal appeals for which undersigned counsel is appointed. 8

effective, conflict-free attorney.

The appointment of Mr.

Kuritz rather than Ms. Backhus does not conform to the essential requirements of law and will cause irreparable injury for which appellate review would be inadequate.

This violates

the Fourth, Fifth, Sixth, Eighth and Fourteenth amendments to the United States Constitution, and the corresponding provisions of the Florida Constitutions for each of the reasons set forth below.

Accordingly, Mr. Hardwick seeks to have the

order appointing Mr. Kuritz vacated and requests that Ms. Backhus be appointed to represent him.

IV. ARGUMENT IN SUPPORT OF PETITION THE TRIAL COURT VIOLATED ABUSED ITS DISCRETION BY REGISTRY COUNSEL WHEN AN BETWEEN MR. HARDWICK AND

DUE PROCESS OF LAW AND APPOINTING INEFFECTIVE ATTORNEY-CLIENT RELATIONSHIP MS. BACKHUS EXISTED FOR 9

STATE COURT PROCEEDINGS AND CURRENTLY EXISTS FOR HIS FEDERAL COURT PROCEEDINGS. THE LOWER COURT’S PIECEMEAL APPOINTMENT OF STATE COURT COUNSEL VIOLATES DUE PROCESS AND IS CONTRARY TO THE LEGISLATIVE INTENT OF FLA. STAT. CHAPTER 27. In Arbelaez v. Butterworth, 738 So. 2d 326 (Fla. 1999), this Court acknowledged it has "a constitutional responsibility to ensure the death penalty is administered in a fair, consistent, and reliable manner..." Id.

In a special

concurrence, two Justices discussed the right to counsel in capital postconviction in terms of State Due Process.

Counsel

was characterized as an "essential requirement" in capital postconviction proceedings. Id. at 329. As noted in Arbelaez, all capital litigation is particularly unique, complex and difficult.

The basic

requirement of due process in an adversarial system is that an accused be zealously represented at "every level;" in a death penalty case such representation is the "very foundation of justice." Wilson v. Wainwright, 474 So. 2d 1162, 1164 (Fla. 1985).

The special degree of reliability in capital cases,

which can only be provided by competent, effective and conflict-free representation in postconviction proceedings, is necessary to ensure that capital punishment is not imposed in an arbitrary and capricious manner and that no one who is innocent or who has been unconstitutionally convicted or

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sentenced to death is executed.

Arbelaez v. Butterworth, 738

So. 2d 331 at n. 12. Furthermore, this Court stated in Peede v. State, 748 So. 2d 253 (Fla. 1999), that ineffective representation at any level of the capital punishment process will not be tolerated. This Court felt "constrained to comment on the representation afforded Peede in these proceedings [appeal from summary denial of motion for postconviction relief]," which included criticism of the length, lack of thoroughness, and conclusory nature of the initial brief, and reminded counsel of "the ethical obligation to provide coherent and competent representation, especially in death penalty cases, and we urge the trial court, upon remand, to be certain that Peede receives effective representation." Id. at 256, n. 5 (emphasis added). In Spalding v. Dugger, 526 So. 2d 71, 72 (Fla. 1988), this Court recognized that “under section 27.702, 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."

In

addition, this Court has found that an attorney who lacks the necessary resources and/or capital trial experience will be deemed not competent to continue representation of death sentenced client. See Spaziano v. State, 660 So. 2d 1363, 1369-

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1370 (Fla. 1995).

Thus, this Court has explicitly acknowledged

the need for effective representation in capital postconviction proceedings. Id. In fact, this Court adopted minimum standards for attorneys litigating capital cases. In Re: Amendment to Florida Rules of Criminal Procedure -- Rule 3.112 -- Minimum Standards for Attorneys in Capital Cases, 759 So. 2d 610 (Fla. 1999). The opinion adopting new rules acknowledged the complexities, convoluted doctrines of procedural default, and uniqueness of capital law.

This Court stated that under our system of

justice, "the quality of lawyering is critical" in capital cases and acknowledged the Court's "inherent and fundamental obligation to ensure that lawyers are appointed to represent indigent capital defendants who possess the experience and training necessary to handle the complex and difficult issues inherent in death penalty cases." Id. at 613-614.

Indeed,

federal and state due process requires that Mr. Hardwick be effectively represented by conflict-free counsel throughout his postconviction proceedings. In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), the United States Supreme Court addressed the general due process guarantees afforded a capital post-conviction defendant in the context of Ohio's clemency scheme. 523 U.S.

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272 (1998).

A majority of the Court found that the Ohio

clemency scheme did not violate due process, however, the court divided on the issue of the extent of due process rights which attach in capital postconviction proceedings. Id.

In

delivering the plurality opinion for the Court, Justice O'Connor, along with three (3) other justices held that: "[a] prisoner under a sentence of death remains a living person and consequently has an interest in his life." Id. at 288 (J. O'Connor concurring in part and concurring in judgment). In finding that due process may attach to postconviction proceedings, Justice O'Connor referenced her concurring opinion in Ford v. Wainwright, 477 U.S. 399 (1986).

At issue in Ford

was Florida's statute requiring that a capital postconviction defendant be competent to be executed.

Justice O'Connor,

relying on precedent, found that "'[l]iberty interests protected by the Fourteenth Amendment may arise from two sources -- the Due Process Clause and the laws of the States.'" 477 U.S. 399, 428,(J. O'Connor concurring in part, dissenting in part)(quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983)). Justice O'Connor made clear: “[R]egardless of the procedures the State deems adequate for determining the preconditions to adverse official action, federal law defines the kind of process a State must afford prior to depriving an individual of

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a protected liberty or property interest." Ford, 377 U.S. at 428-429.

In analyzing Mr. Ford's liberty interest at the time

of his execution, Justice O'Connor noted that the Florida Statute governing postconviction procedures provided for mandatory action by the State. Id. at 428 ("The relevant provision of the Florida statute, however, provides that the Governor "shall" have the prisoner committed. ")(emphasis in original). Similarly, the Florida statute governing appointment of capital collateral counsel is mandatory. Fla, Stat. § 27.701 ("It is the intent of the Legislature...to provide for the collateral representation of any person convicted and sentenced to death in this state...").

Florida has created a right by

which Mr. Hardwick is appointed capital collateral counsel. Therefore, as in Ford, due process is required.

Because Mr.

Kuritz and Mr. Hardwick’s interests conflict and because Ms. Backhus is in the best position to represent Mr. Hardwick, his right to due process has been violated.

Ms. Backhus is currently Mr. Hardwick’s appointed counsel for his federal court proceedings. 320 F. 3d 1127 (11th Cir. 2003).

See, Hardwick v. Crosby,

Ms. Backhus was contacted by

CCRC-North at the time of its demise to perform any remaining

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state court work on Mr. Hardwick’s case, not only because the agency was being eliminated, but because CCRC-North had conflicted off Mr. Hardwick’s case in 1998.

As a result, Ms.

Backhus filed a Ring state habeas on Mr. Hardwick’s behalf in June, 2003 while federal proceedings still continued.

There

was no question at any point in these proceedings that the best person to continue to represent Mr. Hardwick was undersigned counsel. The Attorney General did not object to undersigned having filed Mr. Hardwick’s state habeas petition.

Neither Assistant

State Attorney George Bateh nor Assistant Attorney General Curtis French objected to counsel’s continuing to represent Mr. Hardwick when his case was remanded back to federal district court in Jacksonville for an evidentiary hearing. Cf. Cannaday v. State, 620 So. 2d 165, 170 (Fla. 1993)[comtemporaneous objection and precedural default rules apply to the state]. No objections were forthcoming because having one attorney continuously represent a client serves the purpose of judicial economy and expediency in eliminating the necessity of new counsel having to learn a case that has been in existence since January 14, 1985. See, Hardwick v. State, 521 So. 2d 1071 (Fla. 1988). The removal of undersigned and appointment of Mr. Kuritz,

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an attorney unfamiliar with Mr. Hardwick’s case, violates not just Mr. Hardwick’s right to effective assistance of counsel, but his due process right to the continuation of the representation.

Ms. Backhus has developed an attorney-client

relationship with Mr. Hardwick over the last six years.

She

has consulted with Mr. Hardwick for years and is more familiar with his case than anyone save Mr. Hardwick.5

Ms. Backhus is

on the registry and is qualified to handle Mr. Hardwick’s state court appeals. The requirement of due process in an adversarial system is that an accused be zealously represented at “every level” and that in a death penalty case, such representation is the “very foundation of justice.” Wilson v. Wainwright, 474 So. 2d 1162, 1164 (Fla. 1985).

Yet here, Mr. Hardwick was forced to accept

piecemeal representation with one attorney for federal aspects of his case who has known his case for six years and one attorney for state court proceedings who hasn’t even requested the habeas petition he was to defend. Clearly, Mr. Hardwick has been deprived of due process by the removal of Ms. Backhus as his state court counsel contrary to his wishes, and by the appointment of Mr. Kuritz as his counsel.

Mr. Kuritz’s failure to file a reply or a motion for

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rehearing pursuant to Wright and his failure to communicate with Mr. Hardwick should alone be cause to rescind the order of appointment in this case.

Even recognizing that this Court has

already denied his state habeas petition, Mr. Hardwick remains in a tenuous position.

Mr. Hardwick reasonably fears that if

he doesn’t object to the appointment of Mr. Kuritz now that should he return to state court again, he will be foreclosed from complaining about the piecemeal representation he is being forced to endure today. WHEREFORE, for the foregoing reasons, Mr. Hardwick respectfully requests that this Court vacate the order appointing Mr. Kuritz and appoint Ms. Backhus to represent him.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Petition for Extraordinary Relief has been furnished by United States Mail, first class postage prepaid to all counsel of record, Curtis French, Office of the Attorney General, P101, The Capitol, Tallahassee, FL 32399-1050 on February 2, 2004. CERTIFICATION OF TYPE SIZE AND STYLE This is to certify that the Initial Petition has been reproduced in a 12 point New Courier type, a font that is not proportionally spaced.

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____________________ TERRI L. BACKHUS Fla. Bar No. 0946427 Backhus & Izakowitz, P.A. P.O. Box 3294 303 S. Westland Ave. Tampa, FL 33601 (813) 259-4424 cc: Curtis French Office of the Attorney General P101 The Capital Tallahassee, FL 32399-1050

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