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

9 downloads 50 Views 76KB Size Report
Jan 31, 2003 ... JOHN GARY HARDWICK, JR.,. Petitioner, v. CASE NO. SC03-1106. JAMES CROSBY, Secretary,. Fla. Dept of Corrections. Respondent.
IN THE SUPREME COURT OF FLORIDA

JOHN GARY HARDWICK, JR., Petitioner, v.

CASE NO. SC03-1106

JAMES CROSBY, Secretary, Fla. Dept of Corrections Respondent. ____________________________________/

RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS

CHARLES J. CRIST, JR. ATTORNEY GENERAL CURTIS M. FRENCH SENIOR ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL 32399-1050 (850) 414-3300 (850) 487-0997 (FAX) COUNSEL FOR RESPONDENT

PROCEDURAL HISTORY On Christmas day, 1984, Hardwick was arrested for the brutal murder of Keith Pullum - a teenager who Hardwick (a drug dealer) believed had stolen his Quaaludes (R6). 1 March 11, 1986.

A jury trial began

The guilt phase of trial concluded on March 13,

1986, with a jury verdict of guilty of first degree murder (R 167).

A jury sentencing proceeding was conducted on March 27,

1986.

By a vote of 7 to 5, the jury recommended a death

sentence (R 173).

On April 24, 1986, the trial court imposed a

death sentence, finding five aggravating circumstances (prior violent felony conviction, murder committed during a kidnapping, murder committed for pecuniary gain, HAC, CCP) and no mitigation ((R 179-88). Hardwick appealed his conviction and death sentence to this Court, raising eight issues on appeal: (1) the trial court’s exclusion of testimony allegedly indicating that another person had

committed the murder; (2) the trial court’s refusal to

dismiss

court-appointed

counsel

Frank

Tassone,

or

to

allow

Hardwick to represent himself; (3) the trial court’s restriction of defense cross-examination of a state witness; (4) an alleged violation of the rule of sequestration; (5) the trial court’s

1

Respondent (hereafter, the State) will cite to the record in the same manner as Petitioner (see Petition at 1). 1

refusal

to

give

a

jury

instruction

on

intoxication;

(6)

sufficiency of the evidence to support the conviction; (7) sufficiency

of

the

evidence

to

support

four

of

the

five

aggravators found by the trial court; and (8) failure to merge CCP and HAC.

This Court affirmed.

1071 (Fla. 1988).

Hardwick v. State, 521 So.2d

Although this Court determined that the

evidence was insufficient to support the during-a-kidnapping and pecuniary gain aggravators, it concluded that any error finding

and

weighing

them

was

harmless.

Id.

in

at

1075-76.

Hardwick’s Petition for Writ of Certiorari was denied.

Hardwick

v. Florida, 488 U.S. 871 (1988). On January 10, 1988, then Governor Martinez signed a death warrant.

On February 16, 1990, Hardwick filed a motion for

post-conviction relief pursuant to Fla.R.Crim.P. 3.850, raising 22 claims for relief: (1) failure to disclose public records; (2) ineffective assistance of counsel at the guilt phase; (3) Miranda; (4) trial counsel ineffective for failing to develop plausible

voluntary

intoxication

defense;

(5)

admission

of

evidence of Hardwick’s flight and possession of a gun when arrested;

(6)

improper

prosecutorial

argument;

(7)

CCP

aggravator invalid; (8) Hardwick was absent at critical stages of trial; (9) improper jury instructions as to sympathy and mercy; (10) ineffective assistance of counsel at the penalty

2

phase; (11) denial of appropriate mental evaluation, due to counsel’s

ineffectiveness;

sentencing

instructions

responsibility;

(14)

(12)

HAC

improperly

appellate

instructions

diluted

striking

bad;

jury’s

of

two

(13)

sense

of

aggravators

necessitated reversal; (15) inflammatory photographs; (16) trial counsel

had

relationship

conflict with

of

interest

Hardwick;

(17)

due

to

“adversarial”

improper

victim

impact

evidence; (18) irrelevant character evidence; (19) violation of witness sequestration rule; (20) improper admission of hearsay statements of Hardwick’s wife; (21) improper burden-shifting jury

instructions

instructed

that

at

its

penalty

phase;

sentencing

(22)

jury

recommendation

improperly must

be

by

majority vote (PCR 55-274). The trial court scheduled a hearing for February 22, 1990. On that date, CCR attorney Thomas Dunn appeared on Hardwick’s behalf.

Dunn asked for a continuance on the ground that he was

unprepared

to

go

forward

and

that

Hardwick’s

counsel,

attorney Billy Nolas, was unavailable (PC-TR 5). court

denied

the

continuance

and

conducted

an

CCR

The trial evidentiary

hearing on claims 2, 4, 5, 6, 10 and 11 (PC-TR 21).

Trial

counsel Frank Tassone was the sole witness called. Two

weeks

later,

Hardwick appealed.

the

trial

court

denied

all

relief.

On March 15, 1990, this Court reversed and

3

remanded

for

a

“complete

evidentiary

hearing”

(PC-R

276).

Further hearings were conducted on May 2 and 4, and August 15 and 16, 1990.

On October 10, 1990, Hardwick filed a 300-page

written closing argument (PC-R 291-591).

The State, through

then Assistant Attorney General Mark Menser, filed a short proposed order, which the trial court adopted (PC-R 592-600). Hardwick appealed, seeking review of the trial court’s rejection of the following 15 claims: : 1) denial of due process and a full and fair hearing of his postconviction claims; 2) denial of the effective assistance of trial counsel [*103] based upon several failures by counsel; 3) denial of effective assistance of counsel based upon denial of motion to discharge counsel; 4) no knowing waiver of Miranda n1 rights; 5) vague instructions as to the "cold, calculated and premeditated" (CCP) and "heinous, atrocious or cruel" (HAC) aggravating factors; 6) this Court's failure to remand for resentencing after striking two aggravating circumstances on direct appeal; 7) death sentence imposed on the basis of impermissible victim impact evidence in violation of Booth n2 and trial counsel was ineffective in failing to object; 8) Hardwick's absence during critical stages of the proceedings; 9) jury told that sympathy and mercy toward Hardwick could not be considered; 10) trial court's instructions [**4] and prosecutor's argument violated Caldwell; n3 11) admission of unduly inflammatory and prejudicial photographs; 12) introduction of evidence of other crimes and bad character without proper jury instruction; 13) violation of the witness sequestration rule and prejudicial conduct by a spectator; 14) burden shifted to Hardwick to prove that life was the appropriate penalty; and 15) jury misled that a recommendation of life must be by a majority vote. Hardwick v. Dugger, 648 So.2d 100, 102-03 (Fla. 1994) (footnotes 4

omitted). Other

than

claims

1

and

6

and

claims

alleging

ineffectiveness of counsel, this Court found Hardwick’s claims procedurally barred.

Claims 3 and 13 were barred because they

had been addressed on direct appeal.

The remaining claims were

barred because they either could or should have been raised on direct appeal.

Claim 5 was additionally barred for failure to

object to the CCP and HAC jury instructions at trial.

Claim 6

was denied properly because the trial court had no authority to overturn the actions of this Court. meritless.

The remaining claims were

649 So.2d at 103.

In the same opinion, this Court reviewed Hardwick’s petition for writ of habeas corpus, raising ten claims, which this Court described as: denial of effective assistance of counsel at trial and appellate counsel was ineffective in failing to competently raise this issue; 2) this Court's failure to remand for resentencing after striking two aggravating circumstances on direct appeal; 3) Caldwell violation and appellate counsel was ineffective for failing to properly raise this issue on appeal; 4) Booth violation and appellate counsel rendered ineffective assistance in failing to raise this claim; 5) violation of the witness sequestration rule and prejudicial [**14] conduct by a spectator; 6) CCP improperly applied; 7) admission of hearsay evidence regarding statements made by Hardwick's wife; 8) admission of evidence of other crimes and bad character and the lack of a limiting instruction and appellate counsel was ineffective in failing to raise this error; 9) improper instruction on HAC; and 10) prosecutor and court asserted that sympathy and mercy 5

toward Hardwick were not proper considerations. 648 So.2d at 105.

This Court noted that most of these claims

were repetitive of the issues raised in Hardwick’s 3.850 motion, and in any event all but claim 2 were procedurally barred. Claim 2 was meritless.

As to the allegations of ineffective

assistance of appellate counsel, this Court held that Hardwick had not demonstrated deficient attorney performance.

Id. at

106. On March 20, 1995, Hardwick filed a federal petition for writ of habeas corpus in the Federal District Court for the Middle District of Florida, alleging, inter alia, ineffective assistance of trial counsel at guilt and penalty phases. District

denied

all

relief.

Hardwick

appealed,

The

ultimately

filing a brief addressing and arguing two issues: (1) a claim that Hardwick was denied effective assistance of counsel at the guilt and penalty phases of the trial, and (2) a claim that an irreconcilable conflict of interest was created by Hardwick and trial counsel.

On January 31, 2003, a panel of the Eleventh

Circuit Court of Appeals issued an opinion rejecting the state trial court’s factual determinations on the dual grounds that Hardwick had not been afforded a full and fair hearing in the state-court proceedings and that the state-court findings of fact were not fairly supported by the record, and remanded the

6

case to the district court for an evidentiary hearing as to the claim

of

penalty-phase

ineffective

assistance

of

counsel.

Hardwick v. Crosby, 320 F.3d 1127 (11th Cir. 2003).2 On June 18, 2003, Hardwick filed the instant successive state

habeas

petition,

ostensibly

as

the

“result

of

the

decision” in Ring v. Arizona, 536 U.S. 583 (2002). PRELIMINARY STATEMENT At the outset of his discussion of his claims for relief, Hardwick contends that his present claims are not procedurally barred because his trial counsel has now been found ineffective at the penalty phase, citing Hardwick v. Crosby, supra.

By way

of a general response, the State would note that the Eleventh Circuit rejected Hardwick’s claim that his trial counsel was ineffective at the guilt phase, and the issue of trial counsel’s

2

The State disagrees with Hardwick’s assertion that the panel found Tassone’s performance constitutionally deficient and ordered an evidentiary hearing only as to the issue of prejudice. See Habeas Petition at 11, footnote 1. The case was remanded for the purpose of conducting an evidentiary hearings on the issue of “ineffective assistance of trial counsel at the sentencing phase.” 320 F.3d at 1191. The term “ineffective assistance of counsel” has two components: deficient attorney performance and prejudice. Strickland. The federal evidentiary hearing ordered by the Eleventh Circuit has not yet occurred, and the State views both components of Hardwick’s ineffective assistance of counsel claim as being unresolved at this juncture. This Court need not resolve this dispute, however, as it makes no difference either way to the relief sought in these proceedings. 7

effectiveness at the penalty phase has not yet been resolved.3 Furthermore, there simply was no issue raised or addressed before the Eleventh Circuit concerning any alleged deficient performance of trial counsel for failing to raise any kind of Ring/Apprendi4 issues.

Thus, even if Hardwick’s trial counsel

is ultimately found ineffective in other respects, Hardwick cannot establish “cause” for trial counsel failure to raise and argue Ring/Apprendi type issues at trial.

Moreover, procedural

bars are not the only obstacle to any relief on the claims Hardwick now presents.

As the State will argue below, Ring and

Apprendi are not retroactively applicable to defendants like Hardwick, whose convictions and sentence were final long before Ring and Apprendi were decided.

Furthermore, none of Hardwick’s

3

Because the panel’s decision was not final, the State was informed that no motion for rehearing was authorized, and its attempt to file a motion for rehearing en banc to correct what the State perceived to be numerous errors in the panel opinion was rejected. In any event, the panel’s opinion rejected the state court’s findings of fact as unsupported by the record, and found the state evidentiary hearing (which fills some 1100 pages of transcript) to have been inadequate, primarily because of the manner in which the initial hearing was conducted; in the panel’s view, Tassone’s testimony was incomplete. See id. at ___ (footnote 207) (because Tassone never testified after the initial hearing found to be insufficient by this Court, “concerns with his testimony were never rectified”). Thus, the panel remanded for a new evidentiary hearing which, in the panel’s view, would clarify the record, including the extent of Tassone’s investigation and preparation. 4

Ring v. Arizona, supra; Apprendi v. New Jersey, 530 U.S. 466 (2000). 8

present attacks on Florida’s capital sentencing procedures are meritorious, and, given the finding of the prior violent felony aggravator

in

Hardwick’s

case,

Harwick

cannot

under

any

circumstances obtain relief on any sort of Ring/Apprendi claim. The State will address all these matter more specifically in its response to specific sub-claims, below. RESPONSE TO CLAIMS FOR RELIEF HARDWICK IS NOT ENTITLED TO ANY RELIEF ON HIS CLAIM THAT FLORIDA’S CAPITAL SENTENCING PROCEDURES DEPRIVED HIM OF HIS ALLEGED SIXTH AMENDMENT RIGHTS TO NOTICE AND TO A JURY TRIAL AND OF HIS RIGHT TO DUE PROCESS Hardwick’s claim for relief under the Sixth Amendment is divided into five parts, denominated A through E.

The State

will attempt to address each of his arguments, although not in the same order as presented by Hardwick. A. HARDWICK IS NOT ENTITLED TO RETROACTIVE APPLICATION OF RING OR APPRENDI. On June 24, 2002, the United States Supreme Court issued its decision

in

Ring,

holding

that

its

prior

Apprendi

opinion

compelled the conclusion that an Arizona’s capital sentencing scheme was constitutionally deficient because the jury played no role in the determination of facts necessary to establish that a defendant convicted of murder was eligible for the maximum penalty of death.

Apprendi, previously decided on June 26,

2000, had held that a criminal defendant is entitled to a jury 9

determination of any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction.

Id. 530 U.S. at 490.

New constitutional decisions generally apply retroactively to cases in which the conviction is not yet final.

Griffith v.

Kentucky, 479 U.S. 314, 328 (1987) (“a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . . .” (emphasis added).

However, Hardwick’s death

sentence became final when it was affirmed on direct appeal in 1988 - long before either Ring or Apprendi were decided.

See

Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (“A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.”).

Because Hardwick’s death sentence became

final long before the United State Supreme Court decided Ring or Apprendi,

neither

decision

applies

to

his

case

under

the

rationale of Griffith. Nor do Apprendi or Ring create the kind of new rules that should be applied retroactively to already final cases under the rationale of Teague v. Lane, 489 U.S. 288 (1989). 10

Aprendi and

Ring both involve rules of procedure, not substantive law.

They

are about who decides a fact - a jury or a judge - nothing more. Curtis v. United States, 294 F.3d 841, 843 (7th Cir. 2002), cert. denied, 123 S.Ct 541 (2002) (holding Apprendi is not retroactive because it is not a substantive change in the law; rather, it “is about nothing but procedure”). Only those procedural rules that seriously enhance accuracy are applied retroactively.

Graham v. Collins, 506 U.S. 461,

478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (explaining that the exception is limited to a small core of rules which seriously enhance accuracy). not

“seriously”

Jury factfinding in capital sentencing does

enhance

accuracy.

The

Ring

Court

did

not

determine that jury factfinding was more rational or fair than judicial factfinding; rather, it was required regardless of fairness. Every federal circuit court that has addressed the issue has held that Apprendi is not retroactively applicable to cases already final when Apprendi was decided.5

5

Since Ring is merely

United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir. 2001), cert. denied, 122 S.Ct. 573 (2001)(explaining that because Apprendi is not retroactive in its effect, it may not be used as a basis to collaterally challenge a conviction); United States v. Brown, 305 F. 3d 304 (5th Cir. 2002)(holding Apprendi is not retroactive because it is a new rule of criminal procedure, not a new substantive rule and is not a "watershed" rule that improved the accuracy of determining the guilt or 11

an extension of Apprendi to capital cases, these decisions would seem to foreclose any contention that Ring is retroactive.

And

two federal circuit courts of appeal have so held. Last year, the Tenth Circuit Court of Appeals rejected a defendant’s

attempt

to

distinguish

Ring

from

Apprendi

and

concluded that, since Apprendi was not retroactive, then Ring could not be, either.

Cannon v. Mullin, 297 F.3d 989, 994 (10th

Cir.2002) (precedent holding that Apprendi announced rule of procedure not applicable retroactively forecloses argument that Ring would be retroactive because “Ring is simply an extension

innocence of a defendant); Goode v. United States, 305 F. 3d 378 (6th Cir. 2002), cert. denied, 123 S.Ct. 711 (2002)(holding Apprendi is not a watershed rule citing Neder v. United States, 527 U.S. 1, 15 (1999)); Curtis v. United States, 294 F.3d 841 (7th Cir. 2002), cert. denied, 123 S.Ct 541 (2002) (holding Apprendi is not retroactive because it is not a substantive change in the law; rather, it “is about nothing but procedure” and it is not fundamental because it is not even applied on direct appeal unless preserved); United States v. Moss, 252 F.3d 993, 1000-1001 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002)(holding that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review); United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir. 2002)(holding Apprendi does not meet either prong of Teague because it does not criminalize conduct and does not involve the accuracy of the conviction and therefore, Apprendi is not to be retroactively applied); United States v. Mora, 293 F.3d 1213, 1219 (10 th Cir.2002), cert. denied, 123 S.Ct. 388 (2002)(concluding Apprendi is not a watershed decision and hence is not retroactively applicable to initial habeas petitions); McCoy v. United States, 266 F.3d 1245, 1258 (11 th Cir. 2001), cert. denied, 122 S.Ct. 2362 (2002)(holding that the new constitutional rule of procedure announced in Apprendi does not apply retroactively on collateral review). 12

of Apprendi to the death penalty context.”).6 More

recently,

the

Eleventh

Circuit

Court

of

Appeals

explicitly addressed whether or not Ring should

be

applied

retroactively to a Florida capital defendant whose conviction and sentence were final before Ring was decided, and concluded that the answer is no. Cir. 2003).

Turner v. Crosby, 339 F.3d 1247 (11th

Initially, Turner observed that Ring was purely a

procedural rule: Just as Apprendi “constitutes a procedural rule because it dictates what fact-finding procedure must be employed,” United States v. Sanders 247 F.3d 139, 147 (4th Cir. 2001), cited with approval in McCoy[ v. United States], 266 F.3d [1245,] at 1256 [(11th Cir. 2001)], Ring constitutes a procedural rule because it dictates what fact-finding procedure must be employed in a capital sentencing hearing. Ring, 536 U.S. at 609. Ring changed neither the underlying conduct the

6

See also Ring v. Arizona, 122 S.Ct. 2428, 2449-2450 (2002)(O’Connor, J., dissenting)(noting that capital defendants will be barred from taking advantage of the holding on federal collateral review citing 28 U.S.C. §§ 2244(b)(2)(A), 2254(d)(1) and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)); Colwell v. State, 59 P.3d 463, 473 (Nev. 2002) (Ring not afforded retroactive application on collateral review); Sanders v. State, 815 So.2d 590, 591-592 (Ala. 2001) (Apprendi held not to apply retroactively to cases on collateral review under Teague v. Lane, 489 U.S. 288 (1989)), cert. denied, 534 U.S. 956 (2001); Whisler v. State, 36 P.3d 290, 300 (Kan. 2001) (same), cert. denied, 122 S.Ct. 1936 (2002); State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 520 (Mo. 2001) (Apprendi not subject to retrospective application); State v. Sepulveda, 32 P.3d 1085, 1088 (Ariz. App. Div. 2 2001) (Teague precluded retroactive application of Apprendi); People v. Bradley, 2002 WL 31116769 *6 (Colo. App. Sept. 2, 2002) (same); People v. Montgomery, 763 N.E.2d 369, 378 (Ill.App. 1 Dist. 2001) (same); Teague v. Palmateer, 57 P.3d 176, 186 (Or. App. 2002) (same). 13

state must prove to establish a defendant’s crime warrants death nor the state’s burden of proof. Ring affected neither the facts necessary to establish Florida’s aggravating factors nor the State’s burden to establish those factors beyond a reasonable doubt. Instead, Ring altered only who decides whether any aggravating circumstances exist and, thus, altered only the fact-finding procedure. Our conclusion that Ring announces a procedural rule is bolstered by Ring’s status as an extension of Apprendi. We agree with other courts who have concluded that because Apprendi was a procedural rule, it axiomatically follows that Ring is also a procedural rule. 339 F.3d at 1284. a

new

rule

not

Because Ring is procedural, and because it is dictated

by

existing

precedent,

it

is

not

applicable retroactively to convictions which were already final unless

it

meets

one

of

two

exceptions

to

Teague’s

non-

retroactivity standard: (1) the new rule places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority,” or (2) the new rule “requires the observance of those procedures that are implicit in the concept of ordered liberty.”

339 F.3d at 1285 (quoting Teague).

Turner holds that Ring “clearly does not implicate” the first exception, and the second exception did not apply because the accuracy of the sentence was not diminished by judge sentencing: Ring is based on the Sixth Amendment right to a jury trial and not on a perceived, much less documented, need to enhance accuracy or fairness of the factfinding in a capital sentencing context. Ring simply does not fall within the ambit of the second Teague exception. 14

339 F.3d at 1286.

Since Turner was decided, another panel of

the Eleventh Circuit has also held that Ring is not retroactive. Zeigler v. Crosby, No. 00-14573, footnote 12 (11th Cir. decided September 19, 2003) (“Zeigler's challenge fails because neither Apprendi nor Ring applies retroactively on collateral review to convictions

that

became

final

before

they

were

decided.”).

Turner and Zeigler are compelling persuasive authority for the State’s argument that Ring is not retroactively applicable to Archer’s death sentence.7 Moreover,

Hardwick

is

not

entitled

to

retroactive

application under the State-law principles of Witt v. State, 387 So.2d 922, 929-30 (Fla. 1980). 1073-1075

(Fla.

1st

DCA

Hughes v. State, 826 So.2d 1070,

2002),

review

granted

(1/10/03).8

Pursuant to Witt, a court must consider three factors: the

7

However, see, contra, Summerlin v. Stewart, No. 98-9902 (9 Cir. Sept. 2, 2003) (en banc). Summerlin concludes, inter alia, that Ring is substantive, not procedural, because it changed the substantive law of Arizona. The dissenters in Summerlin pointed out that federal courts (including the Ninth Circuit) have uniformly concluded that Apprendi is not retroactive, and argued that, since Ring is an application of Apprendi to capital cases, there was no logical basis to conclude that Apprendi is procedural but Ring is substantive. The State would urge this Court to reject the reasoning of Summerlin outright; at the very least, its conclusions should be confined to Arizona’s capital sentencing procedures, whereas Turner and Zeigler explicitly address the retroactivity of Ring in the context of Florida’s capital sentencing procedures. th

8

Oral argument occurred in Hughes on March 6, 2003 before the Florida Supreme Court. 15

purpose served by the new case; the extent of reliance on the old law; and the effect on the administration of justice from retroactive application. (Fla.

2001).

When

Ferguson v. State, 789 So.2d 306, 311

deciding

whether

to

apply

a

decision

retroactively, “the fundamental consideration is the balancing of the need for decisional finality against the concern for fairness and uniformity in individual cases.”

Johnston v.

Moore, 789 So.2d 262, 267 (Fla. 2001). As this Court stated in Ferguson: For a new rule of law to warrant retroactive application it must satisfy three elements: “The new rule must (1) originate in either the United States Supreme Court or the Florida Supreme Court; (2) be constitutional in nature; and (3) have fundamental significance.” * * * * * As emphasized by this Court in Witt, “only major constitutional changes of law will be cognizable in capital cases under Rule 3.850. 387 So.2d at 929. These major constitutional changes in the law typically fall into one of two categories: “(1) those which place beyond the authority of the state the power to regulate certain conduct or to impose certain penalties, or (2) those changes which meet the three-prong test for retroactivity set forth in Stovall v. Denno.” McCuiston v. State, 534 So.2d 1144, 1146 (Fla.1988) (citations omitted). The three factors considered under the test announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), are: “(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of a retroactive application of the new rule.” McCuiston, 534 So.2d at 1146 n. 1. 16

Ferguson, 789 So.2d at 309, 311. Applying Stovall v. Denno, 388 U.S. 293 (1967), the United States Supreme Court has rejected retroactive application of its holding that a violation of the right to a jury trial is not subject to retroactive application: The values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial. Second, States undoubtably relied in good faith upon the past opinions of this Court to the effect that the Sixth Amendment right to jury trial was not applicable to the States. . . . Several States denied requests for jury trial in cases where jury trial would have been mandatory had they fallen with the Sixth Amendment guarantee as it had been construed by this Court. . . . Third, the effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases in those States not until now according the Sixth Amendment guarantee. DeStefano v. Woods, 392 U.S. 631, 634 (1968) (internal citations omitted).

If the very right to a jury trial for a particular

crime would not be applied retroactively to already final cases, then there is no basis to give retroactive application - in cases long ago final - to any conceivable new right, under Ring, to greater jury participation in the sentencing decision than was afforded to Florida capital defendants pre-Ring.

Thus,

there is no basis for state-law retroactive application of Ring or Apprendi in this case. Hughes, 826 So.2d at 1073-75. 17

B. FLORIDA’S CAPITAL SENTENCING PROCEDURES DO NOT VIOLATE THE SIXTH AMENDMENT, AS THIS COURT HAS CONSISTENTLY HELD BEFORE AND SINCE RING WAS DECIDED. In Part D of his petition, Hardwick argues that this Court’s decisions in Bottoson v. Moore, 833 So.2d 693 (Fla. 2002) and King v. Moore, 831 So.2d 143 (2002) do not dispose of his present claims.

In Part A, Hardwick contends that Florida’s

capital sentencing procedures are constitutionally inadequate because (he alleges): capital sentencing juries do not make findings of fact; capital jury instructions do not

require

jurors

capital

to

find

at

least

one

aggravator;

a

jury

sentencing recommendation need not be unanimous; and a capital sentencing jury is not required to determine beyond a reasonable doubt

that

sentence.

aggravators

are

sufficient

to

justify

a

death

In part B, Hardwick reprises arguments already made

and rejected, contending: that Florida’s capital sentencing instructions defendant;

improperly

his

jury

shift

was

the

improperly

burden

of

proof

instructed

that

to a

the life

recommendation must be by a majority vote; and the so-called felony murder aggravator is an unconstitutional aggravator.

Finally,

in

Part

C,

Hardwick

“automatic”

contends

that

aggravators should be charged in the indictment. 1. Addressing the various arguments in Part B first, the

18

State would respond that these claims have been raised and rejected previously, either on the merits or as procedurally barred, and the prior rulings are now res judicata. The contention that the jury instructions in this case improperly shifted the burden of proof to Hardwick to establish that life was the appropriate sentence was not preserved by proper objection at trial or on appeal. raised

in

state

collateral

The issue was first

proceedings,

as

claim

21

of

Hardwick’s 3.850 motion (PC-R 181), and then as Issue 14 on his appeal

to

this

Court.

The

trial

court

procedurally barred, as did this Court. Court

has

repeatedly

stated

that

found

the

claim

648 So.2d at 103. capital

habeas

This

corpus

proceedings are not intended as second appeals of issues which could have been or were presented on direct appeal or in a rule 3.850 proceeding. 2001);

Teffeteller

E.g., Jones v. Moore, 794 So.2d 579 (Fla. v.

Dugger,

734

So.2d

1009

(Fla.

1999).

Because this claim was resolved in a previous review by this Court, it is now barred as “the law of the case.” State, 603 So.2d 482, 486 (Fla. 1992).

Mills v.

Although no further

argument would seem to be necessary, the State would note that, to the extent that Hardwick proffers ineffective assistance of counsel to excuse the failure to raise this issue previously, no court, state or federal, has ever ruled that the instructions at

19

issue here are unconstitutionally burden shifting, and thus it cannot be said that every competent attorney in 1986 would have objected to them.

It is well settled that trial counsel cannot

be deemed ineffective for failing to object to a standard jury instruction which has not been invalidated at the time o f a defendant’s sentencing. (Fla. 2000).

Thompson v. State, 759 So.2d 650, 655

Finally, claims that Florida’s standard jury

instructions are unconstitutionally burden shifting have been consistently rejected.

E.g., Shellito v. State, 701 So.2d 837,

842-43 (Fla. 1997). The claim that the trial court erroneously instructed the jury that a majority vote of the jury was necessary to recommend a life sentence is likewise procedurally barred. not raised at trial or on direct appeal.

The issue was

It was first raised on

Hardwick’s state postconviction motion, as Claim 22 (PC-R 268). The trial court found it procedurally barred.

Hardwick raised

the issue on appeal from the denial of postconviction relief, as Claim 15.

This Court agreed with the trial court that the claim

was procedurally barred. is

no

indication

deadlocked.

in

648 So.2d at 103.

this

record

that

In any event, there the

jury

was

ever

“Absent some evidence to suggest that petitioner’s

jury was confused or divided six to six, petitioner cannot prevail on his claim that the instructions improperly misled the

20

jury to believe that the instructions improperly misled the jury to

believe

sentence.” 1993).

a

majority

vote

was

required

to

impose

a

life

Bush v. Singletary, 988 F.2d 1082, 1089 (11th Cir. Compare,

1983)(sentence

Rose

reversed

v.

State,

because

425

when

So.2d

jury

521

reported

(Fla. itself

deadlocked six to six, trial court gave jury an “Allen” charge to encourage a majority vote). Finally,

Hardwick’s

“automatic

aggravator”

argument

is

barred because it could and should have been raised previously. Moreover, it is neither new or novel, as it has been raised and rejected repeatedly.

E.g., Blanco v. State, 706 So.2d 7, 11

(Fla. 1997); Freeman v. State, 761 So.2d 1055, 1066-67 (Fla. 2000).

Hardwick cannot avoid the consequences of his failure to

raise this claim previously on the ground that Ring had not been decided at the time of his trial or direct appeal or, for that matter, at the time of his initial postconviction motion, and that earlier decisions demonstrated the futility of raising this claim.

The

very

existence

of

these

earlier

decisions

demonstrates that the “automatic aggravator” issue is not novel. Furthermore, any perceived futility of such a claim prior to Ring cannot serve as adequate cause to excuse his failure to raise this claim earlier. 1281-82.

Turner v. Crosby, supra, 339 F.3d at

See also, Bousley v. United States, 523 U.S. 614, 623

21

(1998) (“futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time”).9 2.

The attacks on Florida’s death penalty procedures set

out in Parts A and C of Hardwick’s petition are, like his other attacks, procedurally barred.

He has presented none of these

attacks previously, and he may not litigate them for the first time in a successive state habeas petition filed more than 15 years after his trial. Moreover, Hardwick is not entitled to relief on the merits. Contrary to his argument in Part E of his petition, this Court’s decisions do control.

This Court has repeatedly addressed, and

rejected, the kinds of arguments Hardwick makes now. In Mills v. Moore, 786 So.2d 532, 538 (Fla.), cert. denied, 523 U.S. 1015 (2001), this Court announced: [t]he plain language of section 775.082(1) is clear that the maximum penalty available for a person

9

To the extent that part of Hardwick’s argument here is that the jury was allowed to consider, and may have found, the during-the-commission-of-a-kidnapping aggravator which this Court rejected on direct appeal, the State would note that this Court merely found the evidence to have been insufficient to support a finding of this aggravator. That a jury considers an aggravator that is “unsupported by the evidence” presents no constitutional error, because we may presume that the jury disregarded such an aggravator. Sochor v. Florida, 504 U.S. 527, 537 (1992). In any event, this Court has already addressed the finding of this aggravator and found any error harmless. 521 So.2d at 1076-77. That ruling is the law of this case. 22

convicted of a capital felony is death. When section 775.082(1) is read in pari materia with section 921.141, Florida Statutes, there can be no doubt that a person convicted of a capital felony faces a maximum possible penalty of death. Nothing in Ring or Apprendi calls that decision into question. Although the death penalty cannot be imposed in the absence of an aggravating circumstance proven beyond a reasonable doubt, the aggravator’s purpose is to narrow the class of defendants subject to the death penalty, not to increase the punishment of those convicted.

In fact, it is the absence of aggravation that

narrows the sentence to life. and

remains

appropriate;

so

regardless

the

aggravating

The statutory maximum is death, of

the

and

sentence

mitigating

found factors

to

be

merely

determine whether the maximum or some lesser sentence will be imposed.

As reasoned in Tuilaepa v. California, 512 U.S. 967,

979-80 (1994): Likewise, in Proffitt v. Florida, we upheld the Florida capital sentencing scheme even though "the various factors to be considered by the sentencing authorities [did] not have numerical weights assigned to them.".... ... In sum, "discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed" is not impermissible in the capital sentencing process.... "Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, ... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment."... Indeed, the sentencer may be given "unbridled discretion in determining 23

whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty." .... Tuilaepa,

512

U.S.

at

979-80

(citations

omitted).

Thus,

Florida’s sentencing scheme comports with the constitution. This Court has consistently held that the jury’s advisory sentence need not be unanimous.

See Way v. State, 760 So. 2d

903, 924 (Fla. 2000) (Pariente, J., concurring) (noting jury’s death recommendation need not be unanimous); Thomson v. State, 648 So. 2d 692, 698 (Fla. 1984) (holding simple majority vote of death is constitutional); Alvord v. State, 322 So. 2d 533 (Fla. 1975)

(same).

position. (rejecting

Neither

Apprendi

nor

Ring

has

altered

this

Card v. State, 803 So. 2d 613, 628 n. 13 (Fla. 2001) claim

that

Apprendi

requires

unanimous

jury

recommendation; “capital jury may recommend a death sentence by a bare majority vote”); Hertz v. State, 803 So. 2d 629, 648 (Fla. 2001) (same); Looney v. State, 803 So. 2d 656, 675 (Fla. 2001)

(same);

Brown

v.

Moore,

800

So.

2d

223

(Fla.

2001)

(rejecting argument that aggravators must be found by unanimous jury). These cases are not inconsistent with precedent from the United States Supreme Court.

Even in the context of guilt, jury

unanimity is not required. Cf. Johnson v. Louisiana, 406 U.S. 356 (1972) (nine to three verdict for guilt was not denial of

24

due process or equal protection); Apodaca v. Oregon, 406 U.S. 404 (1972) (conviction by non-unanimous jury did not violate Sixth Amendment); Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality opinion) (due process does not require unanimous determination as to theories of liability).

Moreover, jury

unanimity with respect to mitigation factors is not only not required, it is prohibited.

McKoy v. North Carolina, 494 U.S.

433 (1990) (determining that requirement of unanimous findings of mitigators unconstitutional); Mills v. Maryland, 486 U.S. 367 (1988) (same). Nothing in Ring requires jury sentencing. determines sentence.

death

eligibility,

not

who

Ring is about who

ultimately

decides

Decisions made, and factors considered and weighed,

following the determination of death eligibility, are selection stage matters to which Ring does not apply.10 Angelone,

522

U.S.

269

(1998)

10

See Buchanan v.

(distinguishing

between

Thus, the fact that Florida’s statues comply with Constitutional mandates by requiring a selection phase to provide individualized consideration of the defendant and his particular circumstances does not somehow convert its selection phase into an eligibility phase, or mandate that all selectionphase decisions be made by a jury beyond a reasonable doubt. Thus, Ring itself does not require jury consideration of mitigation. The State would note, further, that Ring applies to determinations of fact. The weighing process is not a matter of fact, but of moral judgment applied after the facts are determined. Ring does not require that exercise of moral judgment to be made by a jury, or that such moral judgment be arrived at “beyond a reasonable doubt.” 25

eligibility and selection stages of capital sentencing).

Once

the jury has determined that a defendant is death eligible, it is permissible for the trial court to make any and all remaining findings and to impose a death sentence.

To hold otherwise

would be to require jury sentencing, and Ring most assuredly does

not

do

so.

Ring,

122

S.Ct.

at

2245

(Scalia,

J.,

concurring) (“today’s judgment has nothing to do with jury sentencing”;

“States

that

leave

the

ultimate

life-or-death

decision to the judge may continue to do so”). Because jury sentencing is not required, it matters not that the jury’s sentencing recommendation is merely “advisory,” or that it does not reduce its “findings” to writing.

That its

recommendation is advisory simply means that the jury does not make “the ultimate life-or-death decision,” which is perfectly permissible under Ring.

That is has not reduced its findings to

writing does not mean the jury did not make findings.

Juries

typically to do not make written findings as to individual elements when determining that the defendant is guilty, but that does not mean juries do not have to make, or do not make, the necessary findings as to each essential element of the crime. Similarly, when Florida juries make sentencing recommendations of death, they “necessarily engage in the factfinding required for imposition of a higher sentence, that is, the determination

26

that at least one aggravating factor had been proved.”

Jones v.

United States, 526 U.S. 227, 250-51 (1999).11 Ring did not overrule the numerous cases in which the United States

Supreme

Court

upheld

Florida’s

capital

procedures against constitutional challenges.

sentencing

See Hildwin v.

Florida, 490 U.S. 638, 640-641 (1989) (case “presents us once again with the question whether the Sixth Amendment requires a jury

to

specify

the

aggravating

factors

that

permit

the

imposition of capital punishment in Florida and concluding that the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the

jury”);

Proffitt

v.

Florida,

(holding

Constitution

does

Spaziano

v.

468

Florida,

not U.S.

428

U.S.

require 447

242,

jury

(1984)

253

(1976)

sentencing);

(same).

Thus,

Florida’s capital sentencing procedures are constitutionally acceptable, as this Court has consistently held when addressing numerous Ring-based attacks upon Florida’s capital sentencing procedures.

E.g., Pace v. State, 28 Fla. L. Weekly S415 (Fla.

May 22, 2003); Chandler v. State, 848 So.2d 1031 (Fla. 2003); Lugo v. State, 845 So.2d 74, 119 (Fla. 2003); Kormondy v. State,

11

Nor can Ring be read to require States to charge aggravators in the indictment. The Fifth Amendment right to indictment has never been applied to the States, Hurtado v. California, 110 U.S. 516 (1884), and nothing in Ring changes this. 27

845 So.2d 41, 54 (Fla. 2003); Conahan v. State, 844 So.2d 629 (Fla. 2003); Butler v. State, 842 So.2d 817 (Fla. 2003); Banks v. State, 842 So.2d 788 (Fla. 2003); Spencer v. State, 842 So.2d 52 (Fla. 2003); Grim v. State, 841 So.2d 409 (Fla. 2003); Anderson v. State, 841 So.2d 390 (Fla. 2003); Porter v. Crosby, 840 So.2d 981 (Fla 2003). 3.

Finally,

the

aggravators

found

by

the

trial

court

included the prior violent felony aggravator, which suffices to remove this case from any possible ambit of

Ring.

Hardwick

argues, however, that this aggravator does not count because it went unchallenged earlier as the result of trial counsel’s failure to effectively challenge it. contention is procedurally barred.

Petition at 39-40

This

First of all, to the extent

that Hardwick is trying to litigate the issue of ineffectiveness of trial counsel in this proceeding, it is clear that such issues are not appropriate on state habeas proceedings, at which the

relevant

issue

is

effectiveness

of

appellate

Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000).

counsel. Nothing

trial counsel did prevented appellate counsel from litigating the issue of the sufficiency of the evidence to support this aggravator on appeal. Furthermore,

while

Hardwick

raised

an

issue

of

trial

counsel’s alleged ineffectiveness for failing to rebut the prior

28

violent felony aggravator in his state 3.850 motion (PC-R 17780), he did not raise this claim on appeal to this Court from the

denial

of

postconviction

relief.

Because

he

did

not

litigate the issue of trial counsel’s ineffectiveness in this regard when he had the chance, he is barred from doing so now.12 This Court affirmed the prior violent felony aggravator on direct appeal. this

case. 13

521 So.2d at 1076.

That finding is the law of

Because

violent

the

prior

felony

aggravator

12

In addition, Hardwick never contended that trial counsel could or should attacked the legal sufficiency of the prior violent felony aggravator, except to suggest that the North Carolina conviction was too old - a claim that was properly rejected. Kelly v. Dugger, 597 So.2d 262, 264 (Fla. 1992) (appellate counsel not ineffective for not arguing that prior robbery was to old to be considered in aggravation, as age of a prior conviction is no bar to its consideration). Primarily, Hardwick alleged that trial counsel should have, in effect, presented mitigating circumstances with regard to the prior convictions; i.e., that the North Carolina aggravated assault was provoked and that Hardwick was intoxicated when he committed a separate robbery after having murdered Keith Pullum (the motion does not mention the kidnapping conviction) (PC-R 17780). Thus, he has never preserved any viable contention that the aggravator was legally insufficient. 13

Hardwick cites to the Eleventh Circuit panel opinion allegedly questioning the finding of this aggravator. Petition at 39. Although Hardwick fails to provide a pinpoint cite, the relevant discussion is contained in footnote 122 of the panel opinion. 320 F.3d at 1151. This footnote contains a discussion of the prior violent felony convictions that is wholly gratuitous because it is unrelated to any issue raised on appeal to that Court by Hardwick, or argued by either party. Furthermore, it is not a correct statement of Florida law. The footnote suggests (a) that the North Carolina conviction for assault with a deadly weapon (committed while Hardwick was in prison), might not qualify as “violent,” and (b) because the 29

supports Hardwick’s death sentence, Ring can have no possible application to his case. 523 U.S. 224 (1998).

Almendarez-Torres v. United States,

And so this Court has consistently held.

See, e.g., Belcher v. State, 28 Fla. L. Weekly S575 (Fla. July 10, 2003) (in light of trial court's finding of fact on the prior violent felonies, “it is unnecessary for us to address any effect

Apprendi

remaining

and

Ring

aggravating

may

have

on

circumstances,

the

validity

including

HAC,

of as

the a

foundation for the death sentence in this case”); Duest v. State, 28 Fla. L. Weekly S501 (Fla. June 26, 2003) (rejecting claims

under

aggravating

Ring factor

because, of

a

inter

previous

alia,

case

conviction

involved of

a

the

felony

involving violence); Lugo v. State, 28 Fla. L. Weekly S159 (Fla.

robbery and kidnapping were actually committed after the murder of Keith Pullum, they may not have qualified as prior convictions under Florida law. In fact, it would appear that assault with a deadly weapon, like robbery, is inherently “violent,” Simmons v. State, 419 So.2d 316 (Fla. 1982) (robbery is violent as matter of law), and even if it were not, any error would have been harmless in light of the two other violent felony convictions. Johnson v. State, 465 So.2d 499, 506 (Fla. 1985). As to the post-murder violent felonies, it is wellsettled that the relevant inquiry is whether the defendant has been adjudicated guilty at the time of sentencing. The prior violent felony aggravator has been found applicable to convictions for crimes committed before the murder, contemporaneous to the murder, and after the murder - so long as the conviction was obtained by the time of sentencing. King v. State, 390 So.2d 315, 320 (Fla. 1980); Correll v. State, 523 So.2d 562, 568 (Fla. 1988); Elledge v. State, 346 So.2d 998 (Fla. 1977). 30

February 20, 2003) (same); Doorbal v. State, 837 So.2d 940, 963 (Fla. 2003) (same). CONCLUSION Hardwick’s claims are procedurally barred and meritless. His petition for writ of habeas corpus should be denied. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL

_________________________________ CURTIS M. FRENCH Senior Assistant Attorney General Florida Bar No. 291692 OFFICE OF THE ATTORNEY GENERAL The Capitol Tallahassee, FL 32399-1050 (850) 414-3300

31

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Richard Kuritz, 1301 Riverplace Blvd, Suite 2600, Jacksonville, FL 32207, this 2nd day of October, 2003.

__________________________________ CURTIS M. FRENCH Senior Assistant Attorney General

CERTIFICATE OF FONT AND TYPE SIZE Undersigned

counsel

certifies

that

this

pleading

was

computer generated using 12 point Courier New.

_________________________________ CURTIS M. FRENCH Senior Assistant Attorney General

32