The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM SWEET, KOSTANTINOS
FOTOPOULOS, AND GLEN ROGERS,
Plaintiffs,
v. Case No. 3:22-cv-574-TJC-LLL
THE HONORABLE CARLOS G. MUÑIZ,
Defendant.
ORDER
This § 1983 procedural due process action is before the Court on
Defendant Chief Justice Carlos G. Muñiz’s Motion to Dismiss Plaintiffs’
Amended Verified Complaint. (Doc. 23). Plaintiffs William Sweet, Kostantinos
Fotopoulos, and Glen Rogers jointly responded in opposition to the Motion.
(Doc. 26).
I. BACKGROUND1
Plaintiffs are three death-row inmates in the custody of the Florida
Department of Corrections. (Doc. 19 ¶¶ 5–7). Plaintiffs are proceeding on a
counseled Amended Complaint under 42 U.S.C. § 1983 against Chief Justice
1 These facts, assumed as true, are taken from the Amended Complaint.
(Doc. 19).
Carlos G. Muñiz in his official capacity as the Chief Justice of the Florida
Supreme Court. Id. ¶ 5(g). Plaintiffs’ allegations stem from their dissatisfaction
with their representation by Capital Collateral Regional Counsel (CCRC) in
their post-conviction proceedings and their inability under Florida law to file
pro se claims regarding the effectiveness of CCRC. Id. ¶¶ 5(h), 6(h), 7(h).
Representation by CCRC is governed by Chapter 27 of the Florida
Statutes. Id. ¶¶ 5(a), 6(a), 7(a). Plaintiffs allege that § 27.711(12), Florida
Statutes, gives them “the assurance of ‘quality representation’ and monitoring
of such performance.” Id. ¶¶ 5(j), 6(j), 7(j). Based on this entitlement to “quality
representation,” Plaintiffs allege that the Florida Supreme Court has violated
Plaintiffs’ procedural due process rights by failing to “adopt a state-wide
definition of ‘quality representation,’” failing to adopt “a mechanism for
enforcement” to ensure “quality representation,” failing to provide
“representation by counsel to address the failure of ‘quality representation,’”
barring Plaintiffs’ claims as “‘ineffective assistance’ of CCRC” claims, and
barring Plaintiffs from “raising any of these issues pro se.” See generally id.
Plaintiffs seek a declaratory judgment that § 27.711(12), Florida
Statutes, “has created a liberty interest in procedural due process rights
requiring the Florida Supreme Court to define what constitutes ‘quality
representation’ by CCRC,” a declaratory judgment that the Florida Supreme
Court must establish procedures to evaluate the performance of CCRC,
injunctive relief that would require the Florida Supreme Court to permit pro se
death-row inmates to file claims under § 27.711(12), nominal damages, and a
writ of mandamus compelling the Florida Supreme Court to “establish a
definition of ‘quality representation’ as required by the Florida legislature and
to establish such rules of procedure to give meaningful effect to the legislative
mandate.” Id. ¶ 9.
Chief Justice Muñiz argues that the Court should dismiss Plaintiffs’
claims because Plaintiffs lack standing to sue, their claims are barred by state
sovereign immunity, they fail to state a claim for injunctive or declaratory relief,
and federal courts do not have jurisdiction to issue writs of mandamus
compelling the Florida Supreme Court to perform a duty. See Doc. 23.
II. LEGAL STANDARD
A motion to dismiss brought under Federal Rule of Civil Procedure
12(b)(1) for lack of standing attacks the district court’s subject matter
jurisdiction. Article III, § 2 of the United States Constitution limits federal
jurisdiction to actual cases or controversies. “The plaintiff has the burden to
clearly and specifically set forth facts sufficient to satisfy Art. III standing
requirements.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir.
2005) (quotation marks and citations omitted). To satisfy the “‘irreducible
constitutional minimum’ of standing,” the “plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)).
“To establish injury in fact, a plaintiff must show that he or she suffered
‘an invasion of a legally protected interest’ that is ‘concrete and particularized’
and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 339 (quoting
Lujan, 504 U.S. at 560). Additionally, when a plaintiff seeks prospective relief,
he must “allege facts from which it appears there is a substantial likelihood that
he will suffer injury in the future.” Mack v. USAA Cas. Ins. Co., 994 F.3d 1353,
1357 (11th Cir. 2021) (quoting Malowney v. Fed. Collection Deposit Grp., 193
F.3d 1342, 1346 (11th Cir. 1999)). “And that future injury must be ‘real,’
‘immediate,’ and ‘definite.’” Id. (quoting Malowney, 193 F.3d at 1347).
III. DISCUSSION
Plaintiffs fail to establish an injury in fact because they have not alleged
an invasion of a legally protected interest. See Spokeo, 578 U.S. at 339.
Plaintiffs allege that their legally protected interest arises from § 27.711(12),
Florida Statutes. See generally Doc. 19. The statute provides:
The court shall monitor the performance of assigned counsel to
ensure that the capital defendant is receiving quality
representation. The court shall also receive and evaluate
allegations that are made regarding the performance of assigned
counsel. The Justice Administrative Commission, the Department
of Legal Affairs, or any interested person may advise the court of
any circumstance that could affect the quality of representation,
including, but not limited to, false or fraudulent billing, misconduct,
failure to meet continuing legal education requirements,
solicitation to receive compensation from the capital defendant, or
failure to file appropriate motions in a timely manner.
FLA. STAT. § 27.711(12). Section 27.7002(1), Florida Statues, provides that
Chapter 27 of the Florida Statutes “does not create any right on behalf of any
person, provided counsel pursuant to any provision of this chapter, to challenge
in any form or manner the adequacy of the collateral representation provided.”
FLA. STAT. § 27.7002(1). Nevertheless, Plaintiffs argue that “[w]hen state law
mandates that a government body ensure a defendant is receiving quality
representation, a liberty interest in receiving quality representation is created
warranting protection under the Due Process Clause of the Fourteenth
Amendment.” (Doc. 26 at 5).
However, the Supreme Court of the United States has refused to extend
a constitutional right to counsel to prisoners, including death-sentenced
prisoners, mounting collateral attacks upon their convictions. See Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987); Murray v. Giarratano, 492 U.S. 1, 7–10
(1989) (plurality opinion). The Eleventh Circuit has held the same: “this court
has consistently held that there is no federal constitutional right to counsel in
post[-]conviction proceedings.” Barbour v. Haley, 471 F.3d 1222, 1227 (11th Cir.
2006). It follows that without a constitutional right to post-conviction counsel,
there is no constitutional right to effective assistance of post-conviction counsel.
See Coleman v. Thomas, 501 U.S. 722, 752 (1991) (citing Wainwright v. Torna,
455 U.S. 586 (1982)); see also Evitts v. Lucey, 469 U.S. 387, 396 n.7 (1985). The
Supreme Court has also held that when states choose to offer assistance to
prisoners seeking post-conviction review, as Florida has, the states “have
substantial discretion to develop and implement” those programs and need not
comply with “the full panoply of procedural protections” that the Constitution
requires be given to defendants with a constitutional right to counsel. Finley,
481 U.S. at 559.
The Court is not aware of any Eleventh Circuit cases on the narrow issue
presented by Plaintiffs, but other circuits have considered it.2 The Eighth
Circuit held that “[t]he Supreme Court has. . . left little doubt as to its view that
a state’s decision to grant a right to counsel in post-conviction proceedings does
not give rise to a due process claim if counsel performs deficiently.” Simpson v.
Norris, 490 F.3d 1029, 1034 (8th Cir. 2007). A district court in the Southern
District of Ohio addressed a similar claim:
[P]etitioner argues that the Ohio legislature, by providing for the
appointment of post[-]conviction counsel for death row inmates,
Ohio Rev.[]Code § 2953.21(I), created a liberty interest in, or due
process right to, the effective assistance of post[-]conviction counsel.
The fact of the matter is that petitioner has not cited, and the Court
is not aware of, any case holding that this proposition entitles death
2 Cases decided outside the Eleventh Circuit are not binding on this
Court, but the Court may consider them as persuasive authority. See, e.g.,
United States v. Rushin, 844 F.3d 933, 938–39 (11th Cir. 2016).
row inmates as a matter of constitutional law to counsel in
post[-]conviction proceedings, or to minimum guarantees of
effectiveness once counsel is provided.
Stojetz v. Ishee, 389 F. Supp. 2d 858, 890 (S.D. Ohio 2005). Similarly, this Court
declines to find that Florida’s statute creates a liberty interest in receiving
“quality representation.” Accordingly, Plaintiffs have not established an injury
in fact.3 Plaintiffs’ Amended Complaint (Doc. 19) is therefore dismissed for lack
of standing.4
IV. CONCLUSION
Because the Court finds it does not have jurisdiction over Plaintiffs’
claims, it need not address the remainder of Chief Justice Muñiz’s arguments.
Accordingly, it is hereby
ORDERED:
1. Defendant Chief Justice Carlos G. Muñiz’s Motion to Dismiss
Plaintiffs’ Amended Verified Complaint (Doc. 23) is GRANTED.
3 Since Plaintiffs have failed to establish an injury in fact, the Court need
not continue the standing analysis to consider traceability or redressability.
4 Even if Plaintiffs did have standing, they fail to state a claim upon which
relief can be granted. FED. R. CIV. P. 12(b)(6). “[A] § 1983 claim alleging a denial
of procedural due process requires proof of three elements: (1) a deprivation of
a constitutionally-protected liberty or property interest; (2) state action; and (3)
constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232
(11th Cir. 2003). Because Plaintiffs do not have a constitutionally-protected
liberty interest in effective post-conviction counsel, they do not have a § 1983
claim for deprivation of that right.
2. The Amended Verified Complaint (Doc. 19) is DISMISSED
without prejudice based on lack of standing.
3. Plaintiffs’ Motion for Summary Judgment (Doc. 31) is DENIED as
moot.
4, The Clerk of Court shall enter judgment dismissing the case
without prejudice, terminate any pending motions, and close the case.
DONE AND ORDERED at Jacksonville, Florida, this 15th day of
August 2023.
\ '} TIMOTHY J. CORRIGAN
mas” United States District Judge
hkf
copies to:
Counsel of Record