Opposition Brief — Chadwick Willacy, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections, et al.

No. 17-7853

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2017

CHADWICK WILLACY,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE ELEVENTH CIRCUIT COURT OF APPEALS

RESPONDENT'S BRIEF IN OPPOSITION

PAMELA JO BONDI

ATTORNEY GENERAL

The Capitol

Tallahassee, Florida 32399

LISA-MARIE LERNER

Assistant Attorney General

Florida Bar No. 698271

1515 N. Flagler Drive, 9" Floor

West Palm Beach, FL 33401

Phone: (561) 837-5000

Facsimile: (561) 837-5108

Lisamarie.lerner@myfloridalegal.com

CAPITAL CASE

QUESTION PRESENTED

As re-stated by Respondent:

Should certiorari review be denied because the petition does not present a

reviewable claim, does not conflict with the decision of any state or federal court,

and merely asks this court to second-guess the considered decision of the Eleventh

Circuit regarding whether: (1) Willacy failed to present the issue about a juror’s

actual bias to the state court, leaving the issue unexhausted; (2) the Eleventh

Circuit conducted a threshold inquiry into the underlying merits of the two claims

which were denied COA; and the Eleventh Circuit and the Florida Supreme Court

correctly applied the AEDPA and Strickland standards in determining if Willacy

had met the demands of Strickland?

TABLE OF CONTENTS

QUESTION PRESENTED (AS RESTATED BY RESPONDENT ).........cccessseees i

TABLE OF CONTENTS ... ec ceeeesseeseeseeeseeseceseesseeeseceeeesseeeseseseeesesseesesseeeesenes il

TABLE OF AUTHORITIES... eeecsecsecssesecesceseecnseesseceeeeseeesesseseeesneeaeerseaes lil

CITATION TO OPINION BELOW 000... ceeeceeseceseceeececeeesececeececseeeseserenseeeeeeeaees 1

JURISDICITON oo. eeceececsceceesesecssececsececeeeeseeseesseeseseesseeeaeeaeeneceeeesessesseerensees 1

STATEMENT OF THE CASE AND FACTS 000 cecesecececceeseeeeeseeensenseseenseensens ]

REASONS FOR DENYING THE WRIT)... ee ceeeeeeeeeeseceaeeeeseeeessessenseneeseens 1]

ISSUE I — CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE THE PETITION DOES NOT PRESENT A

REVIEWABLE CLAIM, DOES NOT CONFLICT WITH THE

DECISION OF ANY STATE OR FEDERAL COURT, AND

MERELY ASKS THIS COURT TO SECOND-GUESS THE

CONSIDERED DECISION OF THE ELEVENTH CIRCUIT

REGARDING AN UNEXHAUSTED ISSUE OF JUROR BIAS. .........0.... 11

ISSUE II - THERE IS NO BASIS FOR CERTIORARI REVIEW OF

THE ELEVENTH CIRCUIT COURT OF APPEAL’S DECISION

DENYING A CERTIFICATE OF APPEALABILITY...0... ee ceeeeeeseees 20

ISSUE I - THE ELEVENTH CIRCUIT PROPERLY ANALYZED

THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

UNDER THIS COURT’S PRECEDENT ....... cc eceeesceseceseeecneeeeseteeeesenes 23

CONCLUSION ooo ccc eceeeseceesccseessecserseeseesesscescessenseeaeeeseeseesaesaeeeseseessessesseetseeaes 32

CERTIFICATE OF SERVICE... eee eeeceeecesseseeeseeeeeceesseeceeessaeenseeeseessesseneseeens 33

ii

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey,

530 U.S. 466... cccccsscsscessneesssecssessseessscsseccaecseensecsaeeuseeesssesesessssecsusseseesessusssessecssssssuevesecreseuascnevesaeessaeesatecavecsnacesuers 7

Bartlett v. Stephenson,

535 U.S. 1301 (2002) oo... ccc ecescssscssscsnecensseecsssvereceauecsnseseseesssscenasecssescsessnseessesessssaeesssecessssssssssssecccacevscesneesreeseneneres 18

Bolender

TO F.3d ooo ccccccccsccsscecssscessecseccnsssesscssseescssscsesessusssscssssssussstussssecsasevsasesseccsasesnsevasenseseaverssessuccateceevsissetssesseeuars 17, 22

Brown v. State

143 So.3d 392 (Fla. 2014)... ccccccccsscesseesscencessseessesesseeeseesneescsseeessssesssessususssssssseueessssesceceasesiuensesesesenaesacersacensuees 27

Bryan v. Dugger,

641 S0.2d 61 (F1A.1994) oe cccecceseesecsscsseesessensecseeenecseessevuesseecsecesescascauecssseseseesesesscasecsseeeesssessvssessssascunesatecsevsneenes 30

Burger v. Kemp,

483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)... ccccccccccsesesesceseestserscseesseeserssesssesessssssecseeseessuvscensveeeseseveaeene 3]

Butts v. GDCP Warden,

850 F.3d 1201 (11th Cir, 2017)... ccccccccscccsneseseseseessseesseeccsecessucessessscessesseusessssecsasecssrsseusaseuacevseevtsessenerenanens 17

Cargill v. Turpin

120 F.3d 1366 (11th Cir, 1997) occ ccscesecesseesssecssessseecseseseesecsssseesecsusessssesusssesssscessusaecsascesseeaessreessasersaeess 16

Carroll v. State

815 So.2d 601 (Fla.2002).....ccccccccccseeseessessessccecssesseceseesscesecssseeacesssesessseesessssesssseceuscssessscasessessessseversavsevssveceeeaeveates 29

Castillo v. Fla., Sec'y of DOC,

722 F.3d 1281 Cth Cir, 2013)... ccc cccessesccsscessescecssessecsecscevsrscsesesessscescssessesssesatesscatacsssecessssseedsesesavasesaeracersaes 25

Cleveland v. State,

ALT S0.2d 653 (Fla. 1982) occ ccccccssccssessscesecesscestecsecesasesssscsseceseesessscsssevsucesssesssesesussssascussusssvsaessasevsuassuceeasentueersass 19

Crawford v. Head

311 F.3d 1288 (1 lth Cir. 2002)... cceccccsecsssessseeesecssseensesccenseesscssseessscscscesssessesssscsaecnssosesnascesasecateeessvaseneanens 27

Darden v. Wainwright,

477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)... ccc ccc cccssccsecesesessecsseesnecsseesessessuessecseecsasesseseeeevnasecnaaes 31

Dorsey v. Chapman

262 F.3d L181 (Lith Cir, 2001) occ cccesesseeseesseesessteeseseesesssneseseeseessscssceressessssseesssessessessesseessusasensvacersnsenevees 15

Estelle v. McGuire,

502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)... cc ceccccssscsecsscseesesessessseesesessescseessecsscsessussessssrscenersners 16, 22

Evans v. Sec'y, Dep't of Corr.,

703 F.3d 1316 (11th Cir. 2013)... ccccesccssccecssseesssesseeceneeesseeeeecessssuesessucesscssecessucsseccassesersneceaeessasesaeeaseretaneensers 26

Evans y. State

946 S0.2d 1 (Fla.2006)..... ccc ccccccseeeescsscecscesseesssceseeceseesseecssesessecsesusvscscessussussssecsssessssssessasesersasesseceacersussnevecuseceaners 31

Freeman v. State

852 So.2d 216 (Fla.2003) 0... cccccccssssssssesssessescssesssesseecseescecsesssessceessessesssecsessesssccsecsnsseseesssscsscsessesesssseseersevenersareeaees 31

Griffin v. State

866 So.2d 1 (Fla.2003) ccc ccecsesssssesseestecsecsesnesnscssessecssesseessscssecsescesessscsnssssatsssssseeseessecsevssecsesssssecansesersavseveaeceasenae 30

Haliburton v. Singletary,

691 S0.2d 466 (F1A.1997) occ cccccccsscescesseesceesssceseveasecssnacseecsssesensecesseveneseaecesssssserssusssscsssscsnsnevneessesersecaneseererensees 30

Hardwick v. Sec'y, Fla. Dep't of Corr.,

803 F.3d S41 (11th Cir, 2015)... ccc cc ccccscsscssseseecseesescesecsrecerecsscressecssscesseessecssessesevsesseusasunevseveevsessceuseseaeeeses 27

Hohn v. United States,

524 U.S. 236 (1998) ....ccccccccccssscesscesesseseeesseeascsuscesseecseesseeccsaeesssecseescauscsssesusessssecsecussusscecsaserssensevscecasessssvasereveceeaaces 20

Holland v. State

916 So.2d 750 (Fla.2005) cc ccccccccssessesccesessessecsscesseseecssessscasscsescssensvcsscusessevsscasesesssecsscasonsevsevsevsceeaevauesesssetseranevaes 29

Marshall v. State

854 So.2d 1235 (Fla.2003)......cccccccccssscssssccsessscescnsecseesssceesessccssesscseessscssssssesscvesssessevstcssseseusessusasensensevsecarsasenarenaes 29

Mason v. Allen,

605 F.3d 1114 C1 Lth Cir, 2010). eececccsscssessesseessesseceesscenscesseessesseersesssessssseseesessssssencssecssesesssessessessavsevenserseenas 14

ili

Miller-El v. Cockrell,

537 U.S. 322 (2003) ...ccccccscccssscsseeesecsscscesscccessesseescecssseesssseesessecsaneecssecseecnsecssssccaeeneecssescssssuvessesesusgessseessessesaseevnevenes 21

O’Sullivan v. Boerckel,

526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)... ccccsscscesscessesscesseeseseseeesecssssscsseseessesseeseacssassecessasessees 14

Pace v. McNeil

556 F.3d 1211 (11th Cir, 2009)... ec ccccccessessecscesscsecseseesseseesscsesecsesaesstesssacsecnecaeersesesseussseesavcassecessacserevaaessenaenss 26

Pope v. Sec’y, Dep’t of Corr.,

680 F.3d 1271 (Lith Cir. 2012). cece ecccccssccseessesscesseesecscecasssacesesseesssessesssesseeseseecseecesesssssuesesaseseasscscsseeecessevarees 14

Porter v. McCollum,

130 S.Ct. 447 (2009) ooo. cccesccssscssscssscesesseeeseeessenseeesscessessneceescessesuseessescessuenesessessseeeatecssusssesessesseesesssscaccenecenisaeeass 23

Reed v. State

875 SO.2d 415 (Fla.2004) ce ccccsscssssecessessseesseeeseeecseeeeseeesesseveessessecesauessesesseceseeaeessseessssessssessesssessssessssscsaseereneesas 31

Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70 (1955) ooo. ccecccesssssecsscescsssesensacesseceeseessceesstevscesseseeeseenescssasueeeaseeeasesseenssesceecesssssssssessesesssecssesserseeeses 18, 28

Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)......ccccecccssssssessesseenecsessseessecsesssesseeseessccsscsecesssssesessevaneeseseese 9

Robinson v. State,

913 So. 2d 514 (Fla. 2005)... cccccccccsseccsseeescessseesseceesseceecesseesseessaeesesesseecueessssesteseecenssccescsssevsseccasssssseessessesensusenaees 9

Rockford Life Insurance Co. v. Illinois Department of Revenue,

482 U.S. 182 (1987) oo. cccecccssessscsscesesceessesessenseesscsetesasensessessecseessesssesseessssseessscatcssssetesseseessucsevsteesecevesensuseesecensensessaes 20

Rogers v. McMullen,

673 F.2d 1185 (11th Cir. 1982)... cccccccccsseeseecoseceesseesesseseesseesessesseeeseesessscseecseessseceessecssscssessesssueersersssessssseesseres 17

Schriro v. Summerlin,

542 U.S. B4Bb ccc ccccccsccseccssesessecssessssecessseeseeceesessscsesscsesessecsesesssucssscsssesuscsssscssussueesssevsasesaeesaecteestssesaeeaeseaaceneecanere 9

Slack v. McDaniel

529 U.S. 473 (2000) ...cccecccecccccsecsseesesveseecssscesseeeneeceseeeeasessasssnesssesesutesssassesessssveeecnseesnscsssesessessssscesssessvessvsseersusessneees 21

Sochor v. Sec'y, Dep't of Corr.,

685 F.3d 1016 CL 1th Cir, 2012)... cccccccseesseccseceenseesceseseesaeesensesseacseeesseecsecensesensseseescsesdessessessusesdsersssesseserssenss 26

Stano v. State

460 S0.2d 890 (Fla. 1984)... ccc cccccsccessseesseessscesecesseecsueeaeesesesseeesesesseecsseessescssscssesuecssecssacsssscssessssavadessesstaseraeeese 27

Suggs v. McNeil,

609 F.3d 1218 Cth Cir, 2010)... cece cceeecssssesneesssccseecesecessessesvevsevssesssssssscscresseecaasssecsssepaessevseeereerteneees 25

Texas v. Mead.

A465 US. 1041 (1984) ooo cccccscccscescseessscceesscescessseeeessesseecsseeusenseeesasessesesseececessessesseesseseccaresesssssuesaseussensetssseenae 18, 28

United States v. Johnston,

268 U.S. 220 (1925) on cceccccccsccsccsssesseeessscecsseesesesseecsecssseseusenssecsssesasescscsssessssessssssessasonsessacesseevesestacerseseseveneeeses 18, 28

United States v. Wood,

299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936) ...cccccccccsscsscssessecsseesscnseseseseseessscssesssesssseseasesseeesseseccseesecsesessseeeeues 17

Wiggins v. Smith,

539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)... ccccecccccsccccsccsesercssesseesecerceseceessecceussuessecssssterseseesatens 25, 29

Willacy I,

967 So. 2d 135-138, 145-146 ooo ccc cccecccscnseccseesscussescescsecussssecessseveusssevsisecssssosaesesrsesecsaersneacessuacecseeetenseeseraceees 9

Willacy v. State,

640 So.2d 1079 (Fla. 1994) ooo cceececcseesseeseeseesseeseeessensesseessssteessessucseeesscaesesssauesessesesscsecsessacasesssessessassesersaees Passim

Willacy v. Secretary for Dept. of Corrections,

703 Fed. Appx. 744 (1 1th Cir.2017) oo.ceccccccscescssesesneseeeesenesseseecenecseneceesecaeseeseseceesesesaesessesesesseneeeeseseesseeesseseeseens 1, 28

Willacy v. Secretary, Florida Department of Corrections,

703 Fed.Appx. 746-747, 751-52 (Lith Cir. 2017) (11th Cir, 2017)... ccccccceccncesecssesesscsscseerssesesssssesssereeeecans 18

Willacy v. State,

696 So. 2d 693 (Fla. 1997)... ccccccccccssccscessesscssevseecsesesscscnsessesseeesceseeseusucesssssssessscseensesessecsacensessdvateussenveaeesesass 1, 23

Willacy v. State,

967 So. 2d 131, (Fla. 2007)... ccc ccccsssecsscseseseeesesseecstesecsseessesesesascateesecsecssevsessecsecssensscsssseessuvsseesevsussssensaseaseraseaeees 1

iv

Statutes

2B U.S.C. §2253(C)(2) .ccccccccscccssssseececsscseccstessessecssecsascstesecseccaceseensessessesssesscaesesesesecasacsasesescesecseseecssesssaceesssersserseeeeeess 21

28 U.S.C. 82254 oo ccccccccccssscssessesescesecscesscessssseessceascssscssussecseesasessestsasessescensesseecstcnsucseesseesssesarecessacenscssesseeseceuseeseeateases 21

28 U.S.C. 82254 (d)....cccccccscsseseescscessensessesavsscseesesnecsessecssesauseensenssseuevscecesecseeaeeneeseenssseesesaccssessecsasaecasesanseseeseresessteecsusess 32

28 U.S.C. § 12541). cccccescsscsseeneesescessessencescessenseseeseenceseesseneesensesevseceesesausesssssasesensensesasesacseassessesecaeeasessceesesseneatents 1, 20

article I, section 17 of the Florida Constitution ............c.ccccccscsscsssseesceeceesesseesnecsaesvessecesseeeseesessessacenseeneeensensensesits 7,9

Fla. Stat. § 40.013(1) (1991) ..o.cccccccccesssssenseseeseeseesesseeesesseenseccscessesesessuseeseessesasessnsessenseeassasesaesessesseaesneseenesss 13, 16, 19

section 921.141(6)(b), Florida Statutes ...........ccccccsscccsscessessscessecesessscescesseevsrsesensecseeessetecsaeeesscecneecateeeseessesenseeesuesesssese 8

section 921.141(6)(f), Florida Statutes 20... cee cescecesseeseeessnesceseseeseeaeecesesseveesseescesesateaecseensaetoreseesesenesseeseseeseases 8

section 921.141(6)(h), Florida Statutes 0.0... ccecccccssesscssessesseseesesesseceseesensnsneeseeaceneeseessenasssesucaeasessseessssesessesseecseaesaeee 8

Rules

Florida Rule of Criminal Procedure 3.850 ......cccccccsccsccsccssessesseescesscsseseescscessessesseccatesscnscesscestcssecascessssatseeseeeetaeeets 6

Florida Rule of Criminal Procedure 3.300(a); (15) oo... ecceceesseceescseeseerssesseseesecsceeeeacesseseeneeneesacsesseeeeesavsesensnsesseaeeeeaees 7

Rule 10 of the Rules of the Supreme Court of the United States 00.0.0. cecceeessseereceesesnensesseeessneenes 12, 18, 20, 21, 28

CITATION TO OPINION BELOW

The decision which Petitioner seeks discretionary review of is Willacy v.

Secretary for Dept. of Corrections, 703 Fed.Appx. 744 (11 Cir.2017) on July 12,

2017.

JURISDICTION

Petitioner, Chadwick Willacy, is seeking jurisdiction pursuant to 28 U.S.C. §

1254(1).

STATEMENT OF THE CASE AND FACTS

The Florida Supreme Court reviewed Willacy’s case three times on appeal.

See Willacy v. State, 640 So.2d 1079 (Fla. 1994)(hereinafter Willacy I), Willacy

v. State, 696 So. 2d 693 (Fla. 1997) (hereinafter Willacy II), and Willacy v. State,

967 So. 2d 131, (Fla. 2007) (hereinafter Willacy II). The Florida Supreme Court

summarized the factual and procedural history below in Willacy III as follows:

On September 5, 1990, Marlys Sather returned home

unexpectedly to find Willacy, her next-door neighbor, burglarizing

her house. Willacy bludgeoned Sather and bound her ankles with

wire and duct tape. He choked and strangled her with a cord with a

force so intense that a portion of her skull was dislodged. Willacy

then obtained Sather's ATM pin number, her ATM card, and the

keys to her car; drove to her bank; and withdrew money out of

her account. Willacy hid Sather's car around the block while he

made trips to and from the house. He placed stolen items on Sather's

porch for later retrieval, took a significant amount of property

from Sather's house to his house, and then drove the car to

1

Lynbrook Plaza where he left it and jogged back to Sather's home.

Upon his return, Willacy disabled the smoke detectors, doused

Sather with gasoline he had taken from the garage, placed a fan

from the guest room at her feet to provide more oxygen for the fire,

and struck several matches as he set her on fire.

When Sather failed to return to work after lunch, her employer

notified the Sather family of her absence. Sather's son-in-law

went to her home and found shotgun and several electronic items

lying on the back porch. Inside the home, he found Sather's body.

Medical testimony established that her death was caused by

inhalation of smoke from her burning body.

Law enforcement officers conducted an investigation into Sather's

murder, uncovering a large amount of evidence linking Willacy

to the murder. Willacy's fingerprints were found on the fan at

Sather's feet, the gas can, and a tape rewinder at Sather's house.

Witnesses reported seeing a man matching Willacy's description

near Sather's house and driving Sather's car on the day of the

murder. Further, Willacy's girlfriend, Marisa Walcott, telephoned

law enforcement officers after discovering a woman's check register

in Willacy's wastebasket. Law enforcement officers recognized the

check register as belonging to Sather and subsequently arrested

Willacy. While executing a search warrant on Willacy's home,

law enforcement agents uncovered some of Sather's property, as well

as several articles of clothing containing blood consistent with

Sather's blood type.

Willacy was charged by indictment with first-degree premeditated

murder, burglary, robbery, and arson. Judge Theron Yawn

presided over the trial. On October 17, 1991, the jury convicted

Willacy on all four counts. Following the penalty phase, the jury

recommended death by a vote of nine to three, and Judge Yawn

sentenced Willacy to death.FN2

FN2. Judge Yawn found four aggravating factors: the

murder was committed (1) while engaged in the

commission of arson; (2) for pecuniary gain; (3) in

an especially heinous, atrocious, or cruel manner; and

(4) to avoid arrest. The sole statutory mitigating

2

factor was Willacy's lack of prior criminal activity,

and the two nonstatutory mitigating factors were

Willacy's history of nonviolence and his attempts at

self-improvement while in jail.

Willacy appealed to this Court but subsequently moved for

temporary relinquishment of jurisdiction in order for the trial court

to hold an evidentiary hearing on his motion for a new trial. In his

motion for a new trial, Willacy claimed that juror Clark, the

foreman of Willacy's trial in 1991, was under prosecution for

grand theft. Jurisdiction was relinquished and on October 12,

1992, Judge Yawn conducted a hearing on Willacy's motion.

Among the witnesses at the hearing, the court heard testimony

from Willacy's trial counsel, the prosecutors in his case, and juror

Clark. The prosecutors testified that they became aware of Clark's

status during Willacy's trial and immediately informed Willacy's

trial counsel. Willacy's trial counsel denied receiving _ this

information during trial. Following the hearing, Judge Yawn

issued anorder denying Willacy's motion for a new trial, finding

that the State informed Willacy's trial counsel of Clark's status

during trial.

During oral argument on direct appeal, the parties thoroughly

debated the issue of juror Clark's eligibility.FN3 Willacy's

counsel asserted that Clark was under prosecution and, therefore,

statutorily ineligible to serve as a juror until he entered into a pretrial

intervention (PTI) agreement. According to Willacy's counsel,

because Clark did not sign a PTI contract until after Willacy's trial,

Clark was disqualified. The State countered that Clark was eligible

to serve because he was approved for PTI prior to Willacy's trial.

Alternatively, the State argued that because Willacy's trial counsel

failed to object to Clark during trial, the matter was waived. This

Court affirmed the convictions but vacated the death sentence and

remanded the case for a new penalty phase based on Willacy's claim

that the trial court did not give defense counsel an opportunity to

rehabilitate a juror who said she was opposed to the death penalty.

Willacy I, 640 So. 2d at 1082. As tothe controversy regarding

juror Clark, this Court held:

FN3. The eight issues raised on direct appeal were:

(1) the court committed reversible error when it refused

the defense an opportunity to rehabilitate a prospective

juror; (2) a prospective juror was improperly

challenged based on his race; (3) the jury foreman was

ineligible to serve; (4) the court improperly found

that Willacy's statements were voluntarily made; (5)

the killing was not committed to avoid arrest; (6) the

killing was not heinous, atrocious, or cruel; (7) the

court improperly weighed the mitigating and

aggravating factors; and (8) death is an inappropriate

penalty. Willacy I, 640 So. 2d at 1081 n. 2.

Since Clark was not under prosecution, Willacy's

motion for a new trial was properly denied.

Moreover, during the trial the State informed

Willacy's counsel of Clark's status and his counsel

voiced no objection. By failing to make a timely

objection, Willacy waived the claim he now seeks to

assert. We affirm the trial court's decision. Willacy I,

640 So. 2d at 1083.

At resentencing, Willacy was represented by new counsel and Judge

Yawn again presided. The Statepresented evidence of the crime and

testimony of Sather's son and two daughters. Willacy presented the

testimony of relatives and friends. The court followed the jury's

eleven-to-one recommendation and sentenced Willacy to death,

finding five aggravating factors,FN4 no statutory mitigating factors,

and thirty-one nonstatutory mitigating factors of little weight. FN5 On

direct appeal after resentencing, Willacy raised eleven issues.FN6

This Court denied each of those claims and affirmed Willacy's

death sentence. Willacy II, 696 So. 2d at 694.

FN4. The five aggravating factors were: (1) the

murder was committed in the course of a felony; (2)

the murder was committed to avoid lawful arrest; (3)

the murder was committed for pecuniary gain; (4) the

murder was especially heinous, atrocious, or cruel

(HAC); and (5) the murder was committed in a cold,

calculated, and premeditated manner (CCP).

4

FN5. The nonstatutory mitigating factors were that

Willacy (1)-(3) exhibited kindness, compassion, and

concern for others; (4) enjoyed the love and affection

of his family; (5)-(6) enjoyed the respect and

admiration of his peers and _ his family; (7)

demonstrated a desire and a _ willingness to help

others; (8)-(9) was a leader and arole model to his

peers; (10) maintained strong ties to his family; (11)

exhibited appropriate demeanor and behavior during the

resentencing hearing; (12) exhibited love for his

family; (13)-(14) was a good and loyal friend and a

good and obedient son; (15) was unselfish; (16)

contributed to the lives of others; (17) showed the

proper respect for his elders; (18)-(19)

demonstrated honesty and responsibility; (20)was a

hard worker; and (21) voluntarily sought help for his

drug problem. While in school, Willacy (22) enjoyed

the respect and confidence of his teachers and coaches;

(23) did not experience any academic or disciplinary

problems; (24) was a disciplined and dedicated member

of his high school track team; (25) demonstrated a

willingness to help his teammates and otherwise be a

team player; (26) was the captain of his high school

track team and enjoyed numerous’ honors in

connection with his talents as a runner; (27) had no

history of previous violent conduct; and (28) had a

good upbringing without serious disciplinary

problems. Judge Yawn also considered (29)-(30) any

other aspect of Willacy's character or background; and

(31) any other factor deemed appropriate.

FN6. The eleven issues Willacy raised on direct

appeal after resentencing were: (1) the denial of

Willacy's motion for recusal of the judge; (2) the

admission of inflammatory evidence; (3) the finding

that the murder was heinous, atrocious, or cruel (HAC);

(4) the finding that the murder was committed to

evade arrest; (5) the finding that the murder was

committed for pecuniary gain; (6) the finding that the

5

murder was committed in a cold, calculated, and

premeditated manner (CCP); (7) the proportionality of

the death sentence; (8) the admission of victim impact

evidence; (9) the refusal to strike jurors for cause; (10)

cumulative error; and (11) the constitutionality of the

death penalty statute.

On May 11, 1998, Willacy filed a motion to vacate judgment of

conviction and sentence pursuant to Florida Rule of Criminal

Procedure 3.850 with special request for leave to amend. On March

18, 2002, Willacy filed an amended motion for postconviction

relief in which he raised thirty-one issues. Seventeen of Willacy's

claims were summarily denied by order on September 24,

2003.FN7 An _ evidentiary hearing was granted on Willacy's

remaining fourteen claims.FN8 The evidentiary hearing was held

on December 3 through 5 and 19, 2003, and February 16, 2004.

On November 23, 2004, the trial court issued an order denying

the remaining fourteen claims. Willacy timely filed this appeal.

FN7. Willacy's claims that were summarily denied

included: (3) Willacy was denied a fair trial due to

the State's failure to inform the court of juror Clark's

statutory ineligibility; (4) counsel was ineffective for

waiving the appointment of independent counsel to

litigate the facts and circumstances regarding juror

Clark's pending felony charges; (5) counsel was

ineffective for failing to fully present to the trial

court during the hearing on October 12, 1992, all

aspects of the pretrial intervention program and juror

Clark's status as pending prosecution at the time of his

jury service; (6) counsel was ineffective for failing to

object to juror Clark's ineligibility to serve as a

juror; (8) the trial court applied an incorrect standard

of review or law in denying Willacy's motion for a

new trial; (9) Willacy was denied a fair trial due to juror

misconduct; (11) counsel was ineffective for failing to

timely move to disqualify Judge Yawn from

presiding over the second penalty phase proceeding;

(12) the trial court erred by failing to follow the

procedure outlined in Spencer v. State, 615 So. 2d

6

688 (Fla. 1993), in resentencing Willacy in 1995; (14)

jurors were not sworn prior to voir dire in the

original trial as required by Florida Rule of Criminal

Procedure 3.300(a); (15) counsel was ineffective for

failure to object to the trial court's failure to swear the

jury prior to voir dire in the original trial; (16) the

trial court erred in concluding that there was probable

cause for Willacy's arrest and search of his home;

(20) the trial court erred in failing to properly

instruct the jury during the 1995 penalty phase

proceeding on the distinction between regular

premeditation and the higher standard of cold,

calculated, and premeditated murder; (26) the

indictment violated the Sixth Amendment and Apprendi

v. New Jersey, 530 US. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), because it failed to include

aggravating circumstances; (27) Florida's death

penalty statute is unconstitutional under the Sixth

Amendment and Apprendi because the jury was not

instructed that they must unanimously find beyond a

reasonable doubt any aggravating circumstance; (28)

the trial court's failure to instruct the jury that they

must unanimously find that the aggravating

circumstances outweigh the mitigating circumstances

in order to recommend a death sentence violated the

Sixth Amendment and Apprendi; (29) the trial court's

failure to require a unanimous binding jury verdict as

to the death penalty was unconstitutional under

Apprendi; (30) lethal injection and Florida's

procedures implementing lethal injection constitute

cruel or unusual punishment in violation of the

Eighth Amendment and article I, section 17 of the

Florida Constitution.

FN8. These claims all pertained to the ineffectiveness

of trial counsel: (1) failure to raise an independent act

defense; (2) failure to investigate potentially

exculpatory evidence; (7) failure to inquire of juror

Clark during voir dire regarding his eligibility to

serve; (10) failure to prepare fully and adequately for

7

trial by retaining a fingerprint or crime scene expert;

(13) failure to seek to disqualify the trial judge

based on the trial court's use of a sentencing order

which had been prepared prior to the Spencer

hearing; (17) failure to object to evidence introduced

at trial; (18) failure to request a jury instruction on

felony murder and the law of principals; (19) failure

to request an Enmund v. Florida, 458 U.S. 782, 102

S.Ct. 3368, 73 L.Ed.2d 1140 (1982), jury instruction;

(21) failure to present evidence of a_ statutory

mitigating circumstance pursuant to section

921.141(6)(f), Florida Statutes (Supp.1990); (22)

failure to present statutory mitigating circumstances

pursuant to section 921.141(6)(b), Florida Statutes

(Supp.1990); (23) failure to present statutory mitigating

circumstances pursuant to section 921.141(6)(h),

Florida Statutes (Supp.1990); (24) failure to present

mental health testimony to rebut the State's claim

that the murder was committed in a cold, calculated,

and premeditated manner; (25) waiver of the

presentencing investigation report; and (31) cumulative

error.

II. 3.850 MOTION FOR POSTCONVICTION RELIEF

Willacy appeals the denial of his motion for postconviction

relief, raising seven issues: (1) the trial court erred in denying an

evidentiary hearing on claims 4, 6, and 15 of his motion for

postconviction relief; (2) counsel was ineffective for failing to

assert the independent act defense; (3) counsel was ineffective

for failing to move to recuse the trial judge at the resentencing

proceeding; (4) counsel was ineffective for failing to investigate

and present evidence of statutory and nonstatutory mitigating

factors; (5) counsel was ineffective for failing to inquire

regarding juror Clark's status; (6) the trial court erred in failing

to retroactively apply this Court's decision in Lowrey v. State,

705 So. 2d 1367 (Fla. 1998); and (7) the trial court erred in denying

Willacy's motion for postconviction DNA testing.

Ill. PETITION FOR WRIT OF HABEAS CORPUS

In his petition for writ of habeas corpus, Willacy raises seven

issues: (1) appellate counsel was ineffective for failing to raise on

direct appeal lack of probable cause to arrest Willacy or to search

Willacy's residence; (2) Willacy was denied his constitutional

right to a fair trial by having a juror who was pending prosecution

serve as the foreman on his jury; (3) appellate counsel was

ineffective for failing to raise on direct appeal the fundamental

error resulting from the trial court's failure to swear prospective

jurors; (4) appellate counsel was ineffective for failing to argue

that the jury was improperly instructed as to the aggravating

circumstance of cold, calculated, and premeditated (CCP); (5)

Willacy was sentenced to death in violation of Ring v. Arizona, 536

U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (6) death by

lethal injection violates article I, section 17 of the Florida

Constitution and the Eighth Amendment of the United States

Constitution; and (7) Willacy's Eighth Amendment right against

cruel and unusual punishment may be violated as he may be

incompetent at the time of execution. Issues (2), (5), (6), and (7) are

either without merit or not yet ripe for review and need not be

discussed in detail. FN14

FN14. Because this Court determined on direct

appeal that juror Clark was eligible to serve on

Willacy's jury, issue (2) is without merit. Issue (3) is

essentially the same as claim 15 of Willacy's motion

for postconviction relief and was already disposed of

above. Willacy's Ring claim fails because Ring does

not apply retroactively. See Schriro v. Summerlin, 542

US. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004);

Johnson v. State, 904 So.2d 400 (Fla. 2005). Also

without merit is Willacy's claim challenging Florida's

procedure of execution by lethal injection. See Sims

v. State, 754 So. 2d 657, 668 (Fla. 2000). Finally,

Willacy's claim that he may be incompetent at the

time of execution is not yet ripe for review. See

Robinson v. State, 913 So. 2d 514, 524 n. 9 (Fla. 2005).

Willacy I, 967 So. 2d 135-138, 145-146.

9

Willacy also filed a successive state habeas petition on September 29,

2009 which was denied by the Florida Supreme Court on March 19, 2010.

Prior to Willacy’s September 29, 2009, successive state habeas petition,

Willacy had filed a federal habeas petition in the United States District Court,

Middle District of Florida on April 22, 2008. Willacy’s federal habeas petition was

held in abeyance while the district court allowed him to exhaust additional

constitutional claims in state court. After the resolution of his successive

state habeas petition, Willacy filed an amended federal habeas petition on

June 16, 2013. On July 18, 2014, the district court issued an order denying

the amended petition and declined to issue a certificate of appealability

(“COA”). Willacy filed a motion to alter or amend judgement and/or for

reconsideration of the denial of a COA on August 14, 2014. The district court

denied Willacy’s motion, but the Eleventh Circuit granted a COA as to three

issues. That court later denied relief.

10

REASONS WHY THE WRIT SHOULD BE DENIED

I

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE

THE PETITION DOES NOT PRESENT A REVIEWABLE

CLAIM, DOES NOT CONFLICT WITH THE DECISION OF

ANY STATE OR FEDERAL COURT, AND MERELY ASKS

THIS COURT TO SECOND-GUESS THE CONSIDERED

DECISION OF THE ELEVENTH CIRCUIT REGARDING AN

UNEXHAUSTED ISSUE OF JUROR BIAS.

In his first claim, Willacy asserts that he was denied his constitutional right

to a fair and impartial jury because a juror, Edward Clark, failed to answer his jury

eligibility questions accurately and “shared the same prosecutor” who tried

Willacy’s case. He also contends that his trial counsel was ineffective for failing to

adequately inquire into Clark’s background during voir dire. He argues that the

Eleventh Circuit failed to consider that he had made a federal constitutional claim

under this issue and, instead, had only considered the state statutory element of the

issue. Cave asks this Court to conduct a new factual determination rather than

giving the state court’s factual determination the deference that is required under

AEDPA. The issue of a constitutional violation based on actual juror bias is

unexhausted and cannot provide an avenue for relief. Finally, Willacy cites no law

or case which is in conflict with the decision of the Eleventh Circuit.

Consequently, this petition should be denied.

11

Certiorari review is not a matter of right, but of judicial discretion. It is

granted only for compelling reasons. Rule 10 of the Rules of the Supreme Court of

the United States identifies the relevant considerations in determining the propriety

of certiorari review:

Review on a writ of certiorari is not a matter of right, but of judicial

discretion. A petition for a writ of certiorari will be granted only for

compelling reasons. The following, although neither controlling nor

fully measuring the Court's discretion, indicate the character of the

reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict

with the decision of another United States court of appeals on the

same important matter; has decided an important federal question in a

way that conflicts with a decision by a state court of last resort; or has

so far departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower court, as to

call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal

question in a way that conflicts with the decision of another state court

of last resort or of a United States court of appeals;

(c ) a state court or a United States court of appeals has decided an

important question of federal law that has not been, but should be,

settled by this Court, or has decided an important federal question in a

way that conflicts with relevant decisions of this Court.

Willacy does not cite any decision from any court of appeals on this issue and there

is no conflict between the Eleventh Circuit’s decision and that of any other circuit.

He merely asserts that the circuit court erred in saying that the district court applied

the proper standard under AEDPA, then proceeds to reargue his position in the

underlying petition, and launches into the merits of the underlying issue. He makes

12

no attempt to explain how any potential error in the actual ruling below merits this

Court’s certiorari review.

On appeal from the district court’s denial of habeas relief, the Eleventh

Circuit fully reviewed the factual findings and legal rational made by the state

court. That court stated:

B. Motion for New Trial

Following his conviction and first death sentence, Willacy moved for

a new trial. As relevant to this appeal, Willacy asserted that he was

denied a fair trial because the State failed to disclose that jury foreman

Clark was at the time of the trial under prosecution. Testimony

adduced at an evidentiary hearing showed that Clark had been arrested

approximately eight months before trial and charged with grand theft.

His case was submitted for a pretrial intervention program (“PTI”)

coordinated by Christopher White, the lead prosecutor on Willacy’s

case. Clark was accepted into PTI five days before jury selection

began in Willacy’s case but did not receive notice of his acceptance

into PTI until after he was seated as a juror.* White had knowledge of

Clark’s participation in the program during Willacy’s trial but failed

to inform the trial judge.

4 Clark signed an agreement to participate in the program

in exchange for a term of probation after Willacy was

convicted.

Florida law at the time of Willacy’s trial provided that “[n]o person

who is under prosecution for any crime ... shall be qualified to serve

as a juror.” Fla. Stat. § 40.013(1) (1991). Willacy argued:

[T]he state had a legal obligation to inform the court as well as the

defense upon learning this information. However, the state only

made a half-hearted and ineffective effort to inform the defense,

they failed to follow up on the information to confirm it, and they

totally failed to inform the court. The result of these defaults was

to deprive defendant of a lawfully constituted jury, requiring a new

13

trial.

Memorandum of Law in Support of Defendant’s Motion for New

Trial, R. 3656 (emphasis added). In support, Willacy cited several

cases concerning a party’s right to a fair trial, including three

addressing a criminal defendant’s Sixth Amendment fair trial right.°

The trial court denied the motion for new trial.

5 We reject the State’s contention and the district court’s

conclusion that Willacy’s fair trial claim is procedurally

barred from our review. The district court found that this

claim was barred because “it was raised on direct appeal

and decided adversely to Petitioner,” and “[i]t does not

appear that Petitioner raised this claim in his appeal of

the denial of his motion for postconviction relief.” Doc.

84 at 21. But the district court’s own finding

demonstrates why Willacy’s claim is properly before this

Court.

A petitioner must give the state courts “one full

opportunity to resolve [his claim] by invoking one

complete round of the State’s established appellate

review process.” See O’Sullivan v. Boerckel, 526 U.S.

838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). In so

doing, the petitioner must “fairly present” his claim to the

state courts. Mason v. Allen, 605 F.3d 1114, 1119 (11th

Cir. 2010). Willacy has done both.

Willacy fairly presented his claim that the State

violated his right to a fair trial by asserting in his motion

for new trial and direct appeal to the Florida Supreme

Court that the State’s failure to inform the trial court of

Clark’s status was error and by citing and discussing

Sixth Amendment fair trial case law. Although Willacy’s

arguments throughout this direct review process were

less refined than they are now, we conclude that a

“reasonable reader would understand the claim’s

particular legal basis and specific factual foundation” to

be the same here as in the state courts. Pope v. Sec’y,

Dep’t of Corr., 680 F.3d 1271, 1286 (11th Cir. 2012)

(alterations and internal quotation marks omitted).

Indeed, the state postconviction trial court understood the

14

claim Willacy asserted on direct review to be based on

his “right to a fair trial,” the same right he has asserted in

federal court. Order Denying in Part Defendant’s

Amended Motion for Postconviction Relief at 3, 5.

Willacy thus gave the state courts “one full

opportunity” to address and resolve his claim that his

right to a fair trial was violated when the State failed to

notify the trial court of Clark’s status. Boerckel, 526 US.

at 845, 119 S.Ct. 1728. Nothing more was required. See

id. To exhaust a claim, a petitioner does not have “to ask

the state for collateral relief, based on the same evidence

and issues already decided by direct review.” Jd. at 844,

119 S.Ct. 1728. In any event, the State expressly waived

any exhaustion defense in its pleadings to the district

court. See Response to Amended Petition, Doc. 75 at 25

(‘Petitioner has exhausted each of the 12 issues raised in

the habeas petition. To the extent Petitioner may not have

exhausted any part of a claim, Respondents waive

exhaustion and note that any such claim would be

procedurally defaulted.”). A “state’s explicit waiver of

[the exhaustion] defense before the district court

forecloses it being asserted here.” Dorsey v. Chapman,

262 F.3d 1181, 1187 (11th Cir. 2001).

Willacy fairly presented his fair trial claim to the

state courts throughout one full round of state appellate

review. Thus, his claim is not subject to a procedural bar.

C. First Direct Appeal

The Florida Supreme Court affirmed the denial of Willacy’s motion

for new trial, concluding, as to juror Clark: “Willacy mistakenly

equates Clark’s placement in the Pretrial Intervention Program with

prosecution. Pretrial intervention is merely an alternative to

prosecution. Since Clark was not under prosecution, Willacy’s motion

for a new trial was properly denied.” Willacy I, 640 So.2d at 1082-83

(citation and internal quotation marks omitted). Nevertheless, because

the trial court erroneously denied the defense an opportunity to

rehabilitate a prospective juror when the juror expressed concern

about recommending the death penalty, the Florida Supreme Court

vacated Willacy’s death sentence and remanded for a new sentencing

hearing. /d. at 1082.

15

A. Fair Trial and Guilt Phase Ineffective Assistance of Counsel

Claims

[1]Two of the claims in Willacy's certificate of appealability—his fair

trial claim and his guilt phase ineffective assistance of counsel

claim—are founded on the same assertion: that jury foreman Clark

was under prosecution during Willacy's trial and therefore was

ineligible to serve as a juror under Florida law. See Fla. Stat. §

40.013(1) (1991). Based on this assertion, Willacy contends that the

State's failure to bring the fact of Clark's prosecution to the attention

of the trial court resulted in the deprivation of his right to a fair trial.

And, Willacy argues, in failing to question Clark effectively during

voir dire to reveal this pending prosecution, trial counsel rendered

ineffective assistance in violation of Willacy's right to counsel. Both

of these claims must fail: the Florida Supreme Court determined that

Clark was not under prosecution within the meaning of Florida law,

and “[w]e are not at liberty to challenge” that conclusion. Cargill v.

Turpin, 120 F.3d 1366, 1381 (11% Cir. 1997).

The Supreme Court has warned that “it is not the province of a federal

habeas court to reexamine state court determinations on state law

questions. In conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or

treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-70,

112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (concluding that a federal due

process claim based on the alleged improper admission of evidence

must fail when that evidence was in fact properly admitted under state

law). Here, the Florida Supreme Court dismissed Willacy's argument

that Clark's placement in PTI was equivalent to prosecution under

Florida law, holding that “[p]retrial intervention is merely an

alternative to prosecution,” and “Clark was not under prosecution.”

Willacy I, 640 So.2d at 1082-83 (internal quotation marks omitted).

Under Estelle, we cannot disturb the Florida Supreme Court's

determination.

The Florida Supreme Court's conclusion that Clark was not under

prosecution precludes relief on Willacy's fair trial and guilt phase

ineffective assistance of counsel claims. Willacy's fair trial claim

based on Clark's status is foreclosed because under Florida law Clark

was eligible to serve on the jury (and not considered to harbor a

16

potential for bias).7 Willacy's ineffective assistance of counsel claim

based on Clark's status also fails because more effective voir dire

would not have revealed Clark's ineligibility to serve as a juror. See

Bolender, 16 F.3d at 1573 (“[T]he failure to raise nonmeritorious

issues does not constitute ineffective assistance.”).

7 Although the Florida Supreme Court's determination

that Clark was not under prosecution does not necessarily

foreclose any argument that Clark was biased, see

Estelle, 502 U.S. at 68, 112 S.Ct. 475, it forecloses

Willacy's claim for relief. This is because Willacy did not

meaningfully argue in state or federal district court that

Clark was unconstitutionally biased notwithstanding his

eligibility to serve. As our precedent makes clear, juror

eligibility does not necessarily end the bias inquiry. See

Rogers v. McMullen, 673 F.2d 1185, 1188 (11th Cir.

1982). An eligible juror may still have “actual or

implied” bias such that his empanelment would result in

an unconstitutional conviction. See United States v.

Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 81 L.Ed. 78

(1936) (“The bias of a prospective juror may be actual or

implied; that is, it may be bias in fact or bias conclusively

presumed as [a] matter of law.”). But Clark's eligibility

ends the inquiry in this case. At best, Willacy made

passing references to the notion of actual or implied bias,

but even those references were tethered to Clark's alleged

ineligibility to serve as a juror as a matter of state law.

This was insufficient to put the state courts and the

district court on notice of any argument that Clark,

despite being eligible, was a biased juror. See Butts v.

GDCP. Warden, 850 F.3d 1201, 1208 (11th Cir. 2017)

(“Passing references are not enough to present and

preserve an issue.”). Indeed, for this reason, Willacy

lacks a certificate of appealability on any claim that Clark

was biased notwithstanding his eligibility to serve.

Accordingly, we affirm the denial of relief on both of these claims.

17

Willacy v. Secretary, Florida Department of Corrections, 703 Fed.Appx. 746-747,

751-52 (11" Cir. 2017). That court correctly cited and applied this Court’s

precedence and interpretation of AEDPA. Willacy cites to no state or federal case

that conflicts with the decision of the Circuit Court -- this claim is insufficient, on

its face, to justify the exercise of this Court’s certiorari jurisdiction. See, Rule 10,

Rules of the Supreme Court of the United States.

Furthermore, this Court should decline to exercise its certiorari jurisdiction

because, in order to examine the specific issue in this case, it would be necessary

for this Court to engage in a fact-intensive review. That is inappropriate for

certiorari review. The law is well-settled that this Court does not grant a certiorari

"to review evidence and discuss specific facts." United States v. Johnston, 268 U.S.

220, 227 (1925); Texas v. Mead, 465 U.S. 1041 (1984). This Court is "consistent

in not granting the certiorari except in cases involving principles, the settlement of

which is of importance to the public as distinguished from that of the parties." Rice

v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70 (1955). See also Bartlett

yv. Stephenson, 535 U.S. 1301, 1304 (2002) (issues with few, if any, ramifications

beyond the presenting case do not satisfy any of the criteria for exercise of

certiorari jurisdiction).

In this petition, Willacy is arguing that Clark was biased, not the claim he

presented to the Florida courts. The Eleventh Circuit properly found that Willacy

18

could not argue this in his federal habeas petition that his federal constitutional

right to an unbiased juror was violated where he failed to fully present that

argument to the state court. Citing federal cases in a brief does not mean that he

presented the argument that Clark was actually biased to the Florida Supreme

Court. Doorbal v. State, 983 So.2d 464, 482 (Fla. 2008); Bryant v. State, 901 So.2d

810, 827-28 (Fla. 2005); Duest v. State, 555 So.2d 849, 852 (Fla. 1990). When he

appealed the denial of a new trial to the Florida Supreme Court he did so on the

basis that Clark was ineligible under state law to serve as a juror, which was the

basis for the motion in the first place. The Florida Supreme Court found:

In his final voir dire challenge, Willacy claims that Clark was under

prosecution when selected as a juror and seating him violated section

40.013(1), Florida Statutes (1991).7 We disagree. Willacy mistakenly

equates Clark's placement in the Pretrial Intervention Program with

prosecution. Pretrial intervention is “merely an alternative to

prosecution.” Cleveland v. State, 417 So.2d 653, 654 (Fla.1982).

Since Clark was not under prosecution, Willacy’s motion for a new

trial was properly denied. Moreover, during the trial the State

informed Willacy's counsel of Clark's status and his counsel voiced no

objection. By failing to make a timely objection, Willacy waived the

claim he now seeks to assert. We affirm the trial court's decision.

Willacy I, 640 So. 2d at 1082-83 (footnote omitted). The issue in state court was

clearly restricted to the interpretation of a state statute and the Eleventh Circuit’s

denial of relief was proper under AEDPA. Certiorari should be denied.

19

I

THERE IS NO BASIS FOR CERTIORARI REVIEW OF THE

ELEVENTH CIRCUIT COURT OF APPEAL’S DECISION

DENYING A CERTIFICATE OF APPEALABILITY.

In the next claim, Willacy maintains that the Eleventh Circuit failed to

conduct a threshold inquiry into the underlying merits of two of his claims for

which the court denied a certificate of appealability (“COA”). The two claims were

that the state court failed to grant a new trial on the basis of juror Clark’s arrest,

discussed above, and that his trial counsel was ineffective for failing to object to

the seating of Clark on the jury. He argues that since the Eleventh Circuit simply

denied the request for a COA without discussion, that it failed to consider the

underlying merits of the two claims. Willacy is incorrect and the petition should be

denied.

This Court has held that jurisdiction exists to entertain certiorari petitions

challenging the denial of a COA by the circuit courts. Hohn v. United States, 524

U.S. 236, 253 (1998) (holding Supreme Court “has jurisdiction under § 1254(1) to

review denials of applications for certificates of appealability by a circuit judge or

a panel of a court of appeals.”). Although the failure to meet the considerations in

Rule 10 is not controlling, this Court has noted that cases which have not divided

the federal or state courts or presented important, unsettled questions of federal law

do not usually merit certiorari review. Rockford Life Insurance Co. v. Illinois

20

Department of Revenue, 482 U.S. 182, 184, n. 3 (1987). As no compelling reason

for review has been offered under Rule 10, certiorari should be denied.

Congress mandates that a prisoner seeking collateral relief under 28 U.S.C.

§2254 does not have an automatic right to appeal a district court's denial or

dismissal of his federal petition. Instead, the petitioner must first seek and obtain a

COA. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A COA may be granted

only where there is “a substantial showing of the denial of a constitutional right,”

28 U.S.C. §2253(c)(2), which this Court has interpreted to require that the

“petitioner must demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 326 (2003)

(observing that to be entitled to a COA a petitioner must show that “jurists of

reason could disagree with the district court’s resolution of his constitutional claim

or that jurists could conclude that issues presented are adequate to deserve

encouragement to proceed further.”). The decision to grant a COA requires a

threshold inquiry into the underlying merit of the claims. Miller-El, 537 U.S. at

327 (citing Slack, 529 U.S. at 481). This Court has maintained that issuance of “a

COA must not be pro forma or a matter of course.” Miller-El, 537 U.S. at 337. The

petitioner must actually prove that he meets the above standard before a COA can

issue. Id, at 337-38. The Eleventh Circuit’s denial of the certificate on Willacy’s

21

two claims was proper. Reasonable jurists would not disagree, thus, Willacy

deserves no encouragement to pursue the matter further.

As discussed in the first claim, the Florida Supreme Court held that Clark

was not ineligible to sit as a juror under Florida law. The trial court had denied the

motion for a new trial properly under the relevant statute and the Florida Supreme

Court affirmed that denial. Willacy’s assertions that Clark was indeed ineligible

are wrong. Since Clark was eligible to serve, the denial of the motion for a new

trial was appropriate. Willacy I, 640 So.2d at 1083. As noted by the Eleventh

Circuit, federal courts cannot interfere with a state court’s interpretation of state

law. Estelle v. McGuire, 502 U.S. 62, 67-70, 112 S.Ct. 475 (1991). It was clear on

the record and in the district court’s order denying relief that Willacy could never

prevail on this particular claim and the denial of the COA was correct.

The same is also true for the second claim involving the ineffective

assistance of counsel claim regarding juror Clark. If there was no basis to object to

Clark serving, then counsel could not be ineffective for not objecting to him based

on being ineligible. Bolender v. Singletary, 16 F.3d 1547, 1573 (11™ Cir. 1994).

The record establishes that the district court addressed each of Willacy’s claims

raised in his federal habeas petition. Willacy challenges the resolution reached by

the state and federal courts in rejecting his Strickland claim. Mere disagreement is

not a basis for the exercise of this Court’s certiorari jurisdiction.

22

Il

THE ELEVENTH CIRCUIT PROPERLY ANALYZED THE

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM UNDER

THIS COURT’S PRECEDENT.

In his final claim, Willacy argues that both the Eleventh Circuit and the

Florida Supreme Court unreasonably applied the Strickland standards in analyzing

his penalty phase ineffective assistance of counsel claims. He says that both courts

committed the type of error addressed in Porter v. McCollum, 130 S.Ct. 447, 454

(2009) by unreasonably discounting the mitigation evidence presented in the

evidentiary hearing in the post-conviction litigation.

The Eleventh Circuit recounted the record and analyzed the issue as follows:

D. Resentencing Proceedings

At the sentencing phase at issue here, the State called a number of

witnesses to testify to explain to the new jury the crime and the

evidence linking Willacy to it. See Willacy I, 696 So.2d at 694. The

State also presented the testimony of Sather’s son and two daughters

to illustrate for the jury the impact of her death. Each of Sather’s adult

children testified to the close relationship Sather shared with her

children and grandchildren and to the grief and loss they had

experienced as a result of the murder.

Defense counsel presented nine witnesses in mitigation, all friends

and family of Willacy’s. The witnesses, who all knew Willacy as a

child, testified to his positive traits—namely, that he was a

considerate, respectful, thoughtful, and well-liked child and

adolescent. Several of these witnesses also testified that Willacy had a

drug problem: he became addicted to crack cocaine in high school and

sought treatment, although he later relapsed. Willacy’s younger sister

Heather and two of his childhood friends testified that Willacy

enjoyed a strong relationship with his family. But Willacy’s mother

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and father told the jury that his father, Colin Willacy, was “very hard”

on his children. Ex. G-19 at 2826 (testimony of Audrey Willacy); id.

at 2836 (testimony of Colin Willacy). Colin testified that he “inflicted

corporal punishment if ... Chad were to do anything, and never once

would Chad in any way respond ... in a violent way.” Id. at 2837.

After hearing this testimony, the jury recommended a death sentence

by a vote of 11 to 1. Willacy IH, 967 So.2d at 136. The trial judge

found five aggravating circumstances: the homicide was (1)

committed in the course of a felony; (2) committed to avoid lawful

arrest; (3) committed for pecuniary gain; (4) especially heinous,

atrocious, or cruel (“HAC”); and (5) committed in a cold, calculated,

and premeditated manner without any pretense of moral or legal

justification (“CCP”). See id. at 136 n.4. The judge found no statutory

mitigating factors and 31 nonstatutory mitigating factors, all of which

it found carried little weight. See id. at 136 & n.5 (listing nonstatutory

mitigating factors). After weighing these factors, the judge adopted

the jury’s recommendation and imposed a death sentence.

E. Second Direct Appeal and State Postconviction Proceedings

The Florida Supreme Court affirmed Willacy’s death sentence on

direct appeal. Willacy IT, 696 So.2d 693 (Fla. 1997), cert. denied, 522

U.S. 970, 118 S.Ct. 419, 139 L.Ed.2d 321 (1997). Willacy then

initiated state postconviction proceedings, in which, as relevant here,

he asserted that counsel from the guilt phase of his trial, Kurt

Erlenbach, rendered ineffective assistance in failing to conduct

adequate voir dire of jury foreman Clark; and counsel from the guilt

phase of his trial, James Kontos, rendered ineffective assistance in

failing to investigate and present an adequate case in mitigation of the

death penalty. The trial court conducted an evidentiary hearing on

both of these claims.

B. Penalty Phase Ineffective Assistance of Counsel Claim

[2]Willacy asserts that his trial counsel was ineffective in failing to

investigate and present evidence about his history of childhood

physical abuse and mental health problems during the penalty phase

and that there is a reasonable probability that, had the jury heard that

evidence, it would have recommended a sentence other than death.

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