The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JACK RILEA SLINEY,
Petitioner,
v. Case No: 2:06-cv-670-JES-NPM
SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
OPINION AND ORDER
This matter comes before the Court on Petitioner Jack Rilea
Sliney’s Motion for Relief from Judgment Pursuant to Rule 60 of
the Federal Rules of Civil Procedure (Doc. 42) and Request for
Evidentiary Hearing (Doc. 43), the Secretary of the Florida
Department of Corrections’ Response (Doc. 48), and Sliney’s Reply
(Doc. 51).
In 1993, a Florida court convicted Sliney of first-degree
murder and sentenced him to death. The conviction withstood
direct appeal and state collateral challenges, and Sliney sought
federal habeas corpus relief in this Court. He asserted six
grounds for relief, but only one is relevant here. Sliney claimed
his trial attorney, Kevin Shirley, rendered ineffective assistance
of counsel due to an actual conflict of interest that adversely
affected his performance. The ground was based on Shirley’s
relationship with Detective Lloyd Hamilton Sisk.
In Ground 6 of Sliney’s initial federal habeas petition, he
alleged that Sisk was charged with crimes against a minor years
earlier. The charges were dismissed after a mistrial, but Sisk
was fired from his job with the Charlotte County Sheriff’s Office.
Shirley represented Sisk in his appeal to the Career Services
Review Board, and in a wrongful termination suit. Shirley also
represented Sisk in his divorce. Both cases concluded before
Sliney hired Shirley. However, Shirley was representing Sisk’s
son in a divorce case while representing Sliney. Shirley did not
tell Sliney about his relationship with the Sisk family, even
though Sisk participated in the investigation of Sliney and
testified in a suppression hearing and as a rebuttal witness at
trial.
The Court1 found the Florida Supreme Court applied the correct
legal standard, then explained why the rejection of Sliney’s claim
was a reasonable application of that standard:
Here, as the Florida courts recognized, Petitioner has
alleged a potential conflict of interest because counsel
was put in a position where he had to cross-examine his
former client. Lightbourne, 829 F.2d at 1023 (citation
omitted)(noting potential conflict when attorney had to
cross-examine his former client). The record evidence
shows, however, that counsel’s former client, Detective
Sisk, was not the lead detective in the case against
Sliney. Detective Sisk’s activity in the case consisted
of assisting with Petitioner’s arrest and being present
1 United States District Judge Charlene Edwards Honeywell
decided Sliney’s habeas petition. The case was reassigned to the
undersigned judge on October 30, 2018.
for the initial part of Sliney’s confession. Exh. A11 at
1175. Sisk’s participation at trial was even more
limited as he was called only as a rebuttal witness to
testify about Sliney’s appearance at the time of his
arrest and whether he appeared intoxicated at that time.
Id. at 1169-1175. Sisk testified that Sliney did not
appear intoxicated during the arrest and was not
physically ill while at the police station. On cross-
examination, counsel elicited testimony from Sisk in
which Sisk admitted that he was not in the interview
room during Petitioner’s taped statement and was not
present with Sliney at all times during the morning of
his arrest. Exh. A11 at 1174-1175. Thus, Sisk was not a
critical witness to the State’s case and merely provided
cumulative testimony to that offered by Detective
Twardzick regarding Sliney’s appearance.
Indeed, counsel had previously represented Sisk in civil
matters: first, a lawsuit concerning reinstatement of
his employment, and then a divorce proceeding. The Court
presumes that Detective Sisk shared confidential
information with his counsel during these proceedings
related to the subject of his representation. However,
Sisk’s civil cases had no relation whatsoever to
Petitioner’s trial. Any information counsel learned
about Sisk before representing Sliney was entirely
irrelevant to Sliney’s case. Moreover, as the State
court found, Petitioner failed to present any evidence
to show that the cases were substantially and
particularly related, because the only testimony
collateral counsel elicited during the hearing was
Petitioner Sliney’s testimony. While Petitioner now
submits that he is unsure what “expert” testimony he
should have presented to the postconviction court, the
Court’s review of the record shows that the post-
conviction court merely pointed out that Petitioner
failed to present testimony from Attorney Shirley on the
matter. Significantly, collateral counsel never elicited
testimony from either Attorney Shirley or Detective Sisk
during the evidentiary hearing about the scope and
nature of counsel’s prior representation of Sisk. Thus,
the Court finds that counsel’s earlier representations
of Sisk were not substantially and particularly related;
and, as such, counsel was not operating under an actual
conflict of interest.
Assuming only arguendo that an actual conflict of
interest existed in this case, Petitioner was also
required to establish that the conflict caused an
adverse effect on his representation. In denying
Petitioner relief on this claim, the Florida courts
focused on Petitioner’s failure to establish an adverse
effect. “Adverse effect” has three necessary elements
that a petitioner must establish:
First, he must point to ‘some plausible
alternative defense strategy or tactic [that]
might have been pursued. . . . . Second, he
must demonstrate that the alternative strategy
or tactic was reasonable under the facts.
Because prejudice is presumed, . . . . the
petitioner ‘need not show that the defense
would necessarily have been successful if [the
alternative strategy or tactic] had been used,
‘rather he only need prove that the
alternative ‘possessed sufficient substance
to be a viable alternative.’ . . . . Finally,
he must show some link between the actual
conflict and the decision to forego the
alternative strategy of defense. In other
words, ‘he must establish that the alternative
defense was inherently in conflict with or not
undertaken due to the attorney’s other
loyalties or interests.’ . . . . It bears
repeating, however, that ‘[p]rejudice is
presumed only if the defendant demonstrates
that . . . ‘an actual conflict of interest’
adversely affected his lawyer’s performance.’
Freund, at 861.
Petitioner argues that Shirley did not cross-examine
Sisk on matters Petitioner brought to his attention
during trial because he was operating under a conflict
of interest. The State courts determined that Petitioner
failed to show an adverse effect because Petitioner did
not testify to the substance of the matters he requested
counsel to raise during the cross-examination of Sisk,
which he alleges counsel failed to raise. Instead, the
Florida Supreme Court noted that Petitioner acknowledged
that counsel brought out all of the allegations he
wanted, including allegations that he was intoxicated at
the time of his confession. The record evidence does not
show that counsel was impaired in his ability to cross-
examine Sisk because of his prior representation of the
rebuttal witness. The Florida Supreme Court’s decision
was not contrary to, or an unreasonable application of,
this clearly established federal law.
The Florida Supreme Court’s decision did not involve an
unreasonable determination of the facts. Therefore,
Petitioner is denied relief on Ground Six.
(Doc. #25 at 53-58.)
Sliney now seeks relief from judgment under Federal Rule of
Civil Procedure 60(b)(6) because he has uncovered additional
details about Shirley’s relationship with Sisk. In addition to
the two civil matters identified in Ground 6, Shirley represented
Sisk in the criminal trial that led to his firing. And while
representing Sisk’s son in his divorce, Shirley tried to get Sisk
and his ex-wife visitation rights with their minor grandchildren.
Shirley charged Sisk and his son reduced rates for his
representation because he knew Sisk socially from his time working
at the State Attorney’s Office. Sliney supports these new factual
claims with evidence, including an affidavit from Shirley, state
court documents, and news articles. Sliney also attacks his prior
attorneys’ failure to discover and present these additional facts.
The first question the Court must answer is whether it has
jurisdiction to consider Sliney’s Rule 60 motion. The answer
hinges on whether the Court treats the motion as a second habeas
petition. That matters because 28 U.S.C. § 2244(b)(3)(A) requires
state prisoners to obtain authorization from the appropriate court
of appeals before filing a second or successive habeas petition.
Without such authorization, a district court may not consider a
second or successive petition.
The Supreme Court held in Gonzalez v. Crosby, 545 U.S. 524
(2005) “that a Rule 60(b) motion is to be treated as a successive
habeas petition if it: (1) ‘seeks to add a new ground of relief;’
or (2) ‘attacks the federal court’s previous resolution of a claim
on the merits.’” Williams v. Chatman, 510 F.3d 1290, 1293-94
(11th Cir. 2007) (quoting Gonzalez, 545 U.S. at 532). The Court
gave further guidance by explaining what it meant by “on the
merits”:
The term “on the merits” has multiple usages. We refer
here to a determination that there exist or do not exist
grounds entitling a petitioner to habeas corpus relief
under 28 U.S.C. §§ 2254(a) and (d). When a movant
asserts one of those grounds (or asserts that a previous
ruling regarding one of those grounds was in error) he
is making a habeas corpus claim. He is not doing so
when he merely asserts that a previous ruling which
precluded a merits determination was in error-for
example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar.
Gonzalez, 545 U.S. at 532 n.4 (internal citation omitted). A Rule
60(b) motion is not a successive petition if it “attacks, not the
substance of the federal court’s resolution of a claim on the
merits, but some defect in the integrity of the federal habeas
proceedings.” Id. at 532.
Sliney argues he properly filed his motion under Rule 60(b)
because he attacks a defect in the habeas proceeding—specifically,
his former collateral counsel’s failure to fully investigate
Shirley’s conflict of interest. The Court disagrees. First,
reopening the case on that basis would be futile because the
ineffectiveness of collateral counsel is not a valid ground for
habeas relief. Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d
1246, 1262-63 (11th Cir. 2014) (citing Martinez v. Ryan, 566 U.S.
1 (2012)). Second, Sliney’s motion seeks to reopen the case so
he can relitigate a claim the Court already denied, not to correct
some procedural error. Sliney’s motion attacks the denial of
Ground 6 “on the merits,” as that phrase is used in Gonzalez.
Accordingly, Sliney’s motion is a second federal habeas petition.
Because Sliney did not obtain authorization to file a second
petition from the Eleventh Circuit, this Court lacks jurisdiction
to consider it.
Alternatively, Sliney’s Rule 60(b) motion is untimely. Rule
60(b)(2) allows a district court to grant relief from a judgment
based on newly discovered evidence, but only on motion made within
one year of the judgment. Rule 60(b)(6), the catchall provision,
is not subject to the one-year requirement, but the subsections of
Rule 60(b) are mutually exclusive. See Pioneer Inv. Servs. Co.
v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 393 (1993). A
party who fails to timely seek relief for newly discovered evidence
may not seek relief under the catchall provision more that a year
after the judgment. See id. Although Sliney purports to bring
his motion under Rule 60(b) (6), it is based on newly discovered
evidence of Shirley’s alleged conflict of interest. Thus, Sliney
can only bring his motion under Rule 60(b) (2), and the one-year
period to do so has passed. The request for a hearing will be
denied as moot.
Accordingly, it is hereby
ORDERED :
1. Petitioner Jack Rilea Sliney’s Motion for Relief from
Judgment Pursuant to Rule 60 of the Federal Rules of Civil
Procedure (Doc. 42) is DISMISSED.
2. Petitioner Jack Rilea Sliney’s Request for Evidentiary
Hearing (Doc. 43) is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this 18th day
of March 2024,
J me pop ff
J9GHN E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
SA-FTMP-1
Copies:
Counsel of Record