Opposition Brief — Bill Paul Marquardt, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections, et al.

CASE NO. 18-5738

IN THE SUPREME COURT OF THE UNITED STATES

BILL PAUL MARQUARDT,

Petitioner,

v.

JULIE L. JONES, SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

CAROLYN M. SNURKOWSKI*

Assistant Attorney General

Florida Bar No. 158541

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Florida Bar No. 112839

Office of the Attorney General

444 Seabreeze Blvd. Suite 500

Daytona Beach, Florida 32118

Telephone: (386) 238-4990

Facsimile: (886) 226-0457

capapp@myfloridalegal.com

carolyn.snurkowski@myfloridalegal.com

patrick.bobek@myfloridalegal.com

COUNSEL FOR RESPONDENTS

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Whether certiorari review should be denied where (1) Petitioner does

not provide any compelling reason to grant the writ as required under

Rule 10 of this Court’s rules; (2) Petitioner filed a pro se writ of

certiorari when he is represented by counsel; (3) Petitioner's

competence to proceed in postconviction has been questioned; and (4)

the U.S. Eleventh Circuit Court Appeals correctly ruled in affirming

the Middle District of Florida’s order denying Petitioner the right to

proceed pro se, and in finding they lacked jurisdiction to review the

order to stay proceedings.

TABLE OF CONTENTS —

CONTENTS

QUESTIONS PRESENTED FOR REVIEW .............csccsssssssssesssssccsssessceteseeessessesescesees i

TABLE OF CONTENTS 0... cccccesceescesseesssesceesceeceseessesseeceecoeessesneesaeesaeeseesseentseaseseensnes ii

TABLE OF AUTHORITIES Www... cee eeceseseeceeseeseeesesseeseceseeseetesseeseeeseeeseesseeseuseseanasaes iil

CITATION TO OPINION BELOW. ..0000. cc ececsesseesseeeeseeeessesceatesseesseesuecseecseceesesssssees 1

STATEMENT OF JURISDICTION. 00... eececeseceeeeseeeneesaeeaeesaeesscessecsecseeeeetseceeaes 1

STATEMENT OF THE CASE .oo..c. ec eeccesesceeseeseeeeeseeeecenaceeessesececseesseeseessaseeeeeeneeeneeess 1

REASONS FOR DENYING THE WRIT uo... eeceescceeceeseeeeceeeseeeseeesecesseesseesseessneeseees 6

Certiorari Review Should Be Denied Because: (1) Petitioner does not

provide any compelling reason to grant the writ as required under Rule

10 of this Court’s rules; (2) Petitioner filed a pro se writ of certiorari

when he is represented by counsel; (8) Petitioner’s competence to

proceed in postconviction has been questioned; and (4) the U.S.

Eleventh Circuit Court Appeals correctly ruled in affirming the Middle

District of Florida’s order denying Petitioner the right to proceed pro

se, and in finding they lacked jurisdiction to review the order to stay

PLOCCECINGS. 00... eeeeeeeecceeseceeescecsecccesseeessuecseueessuecsseeessuseseecsaueceueeseseseseseesseceaeess 6

CONCLUSION 0.00. eeeeesecseeeeneesseessesesseeseseaseeseeescesseesaeesssessuessaeessnecseeseeeessaseeeses 11

COUNSEL FOR RESPONDENTS ...0.. eee cecsecseeseeseeeeeteceeeeessesneeseseesseeseecseeseeseeesneas 11

CERTIFICATE OF SERVICE o.oo. c ec eeccecceseeceeeesreecseesceesseesseessneeeseeeseeesatessecsecesseees 12

ri

TABLE OF AUTHORITIES

Cases

Braxton v. United States,

BOO U.S. 344 (1991)... cccccccccsssccccesccsccesesseccsssccccssececesseseecsessececceeeeeans

Faretta v. California,

AZZ U.S. 806 (1975) oo... cccccccccescccesscccesecsscsecescesceseceucesseseseesssesecseseessesesees

Godinez v. Moran,

509 U.S. 389 (1993) ......ccccccccescccesscccssssscccccsssscccssssecesssevesececercussenseeeeess

Indiana v. Edwards,

554 U.S. 164 (2008) .......eccecccccsccceeccceestccessccccssecesecesscsesseccssecessecesseveees

Marquardt v. Florida,

136 S. Ct. 218 (2015)... .eccccccccccccsccccccceccscsensceceessensecsecssstecusesecseseeeeesees

Marquardt v. Sec’y, Fla. Dept. of Corr.,

720 F. Appx 550 (11th Cir, 2017) ....cccccsccssecsessseesesscessecsesssesesseeeseesessen

Marquardt v. State,

156 So.3d 464 (Fla. 2015).......ccccccccsscccccesscccscestececcsecsenssessessscsecseseeveees

Martinez v. Court of Appeal of California, Fourth Appellate Dist,

B28 U.S. 152 (2000) on... eee cceceeceseseeseecessessecsscsensesessenesscsessesevesecsenseausnsas

Myers v. Johnson,

76 F.3d 1330 (th Cir. 1996) ..........ccccccccccsscccsessccccssccccesecseceesscecseeseceeece

Rockford Life Insurance Co. v. [Hlinois Dept. of Revenue,

A482 U.S. 182 (1987) oc. .ccccccccscccccccsccccesssccsssccccscceccccsssscseescesscecssseesecences

Spencer v. State,

615 So.2d 688 (Fla. 1993)........cccccccccccesecssccccecessesecccesssseeteeseessceseceecseseees

Statutes

28 U.S.C. § 2254 vccecccccccccscccescesccssececsrsesersecesscsucsesussucatsassssessesusseeseaseaces

Rules

Florida Rule of Criminal Procedure 3.851 .......cc.cccccccccsecccsceceececenccececece

US. Sup. Ct. B. WO... cccccccccccccccccccceeecsscccccuscececcccceccecescsceseccessanserenseeseesees

ili

Page(s)

CITATION TO OPINION BELOW

The decision of the United States Circuit Court of Appeals, Eleventh Circuit,

is found at Marquardt v. Sec’y, Fla. Dept. of Corr., 720 F. Appx 550 (11th Cir. 2017).

STATEMENT OF JURISDICTION

The judgment of the Eleventh Circuit was entered on December 28, 2017.

(Pet. App. A). Petitioner does not explain what statute he is asserting jurisdiction

under, but Respondents would point the Court to 28 U.S. § 1254(1). Respondents

agree that this statutory provision sets out the scope of this Court’s certiorari

jurisdiction, but submit that this case is inappropriate for the exercise of this

Court’s discretionary jurisdiction.

STATEMENT OF THE CASE

On March 15, 2000, Margarita Ruiz and her daughter Esperanza “Hope”

Wells were found murdered in their home in Sumter County. Marquardt v. State,

156 So.3d 464, 469 (Fla. 2015). When police arrived pursuant to a 911 call, they

discovered that someone had broken in through a screen door. /d. at 470. The

medical examiner was able to reconstruct how the victims were attacked. Jd. Ruiz

was shot twice in the kitchen, but initially survived and fled through the house into

a bedroom. /d. There she was tracked down, shot a third time in the spine causing

her to collapse, and then was stabbed in the neck. /d. Wells was found in the same

bedroom and had been shot once in the head from a distance of less than eighteen

inches, and then was stabbed in the neck eight times. Jd. DNA collected at the scene

yielded profiles that included the two victims and a third unidentified person. The

police also found a latent palm print at the scene. Jd. at 470-71.

A separate investigation in Wisconsin into the murder of Mary Marquardt,

Petitioner’s mother, which occurred on March 13, 2000, eventually led the police to

Marquardt. /d. When Marquardt was arrested on March 18, 2000 for that murder,

Wisconsin police collected a gun, a knife found in his pocket, and the clothes he was

wearing and tested them for DNA. /d. 471-72. DNA profiles of three individuals

were found on the jacket and on the knife, one of whom was Marquardt, the other

two consisting of two unidentified females who were most likely mother and

daughter. /d. The investigation also discovered that Marquardt had traveled from

Valdosta, Georgia to Long Key, Florida, between March 14, 2000, and March 15,

2000. Jd. at 472.

Marquardt was acquitted of the murder of his mother, but an attorney

involved in the case sought to identify the sources of DNA found when Marquardt

was arrested. /d. at 471. His research ultimately led him to the unsolved murders of

Ruiz and Wells, and he contacted Sumter County law enforcement. /d. Further

DNA testing revealed that the unknown DNA sample retrieved from Ruiz’s and

Wells’ home matched Marquardt, and that the unknown DNA contributors found on

his clothes and knife matched Ruiz and Wells. Jd. at 472-73.

On October 12, 2011, Marquardt was convicted by a jury for the first-degree

murders of Ruiz and Wells, and burglary of a dwelling with a firearm. /d. at 473.

Marquardt waived a penalty-phase jury and elected to represent himself. Jd.

Marquardt then declined to present mitigation; however, appointed standby counsel

presented mitigation in his stead. /d. at 474.

After the penalty-phase and Spencer! hearings, the trial court sentenced

Marquardt to death for each murder, and to life for the burglary of a dwelling with

a firearm. Jd. at 475. The trial court found that the State had proven beyond a

reasonable doubt the existence of four statutory aggravating circumstances: (1)

HAC (assigned great weight); (2) CCP (assigned great weight); (3) the capital

felonies were committed while Marquardt was engaged in the commission of a

burglary (assigned great weight); and (4) Marquardt had previously been convicted

of another felony involving the use or threat of violence, based on a conviction for

aggravated burglary in Wisconsin (assigned some weight). /d. The trial court found

two statutory mitigating circumstances: (1) that Marquardt's capacity to appreciate

the criminality of his conduct or to conform his conduct to the requirements of the

law was substantially impaired (assigned some weight); (2) other factors in

Marquardt's background that would mitigate against imposition of the death

penalty, based on Marquardt being a law abiding citizen who was close to his family

before there were reported instances of criminal activity (assigned minimal weight),

and the fact that he was never previously violent toward anyone (assigned minimal

weight). Jd. The trial court found two nonstatutory mitigating circumstances: (1)

Marquardt's good behavior during the proceedings (assigned minimal weight); and

(2) Marquardt's good behavior while in jail (assigned minimal weight). Jd.

1 Spencer v. State, 615 So.2d 688 (Fla. 1993).

3

Marquardt’s conviction and sentence were upheld on direct appeal on

January 22, 2015. Marquardt v. State, 156 So.3d 464 (Fla. 2015). This Court denied

his writ of certiorari on October 5, 2015, and his sentence and conviction became

final. Marquardt v. Florida, 136 S. Ct. 213 (2015).

Thereafter, postconviction proceedings in Marquardt’s case commenced in

state court, and Marquardt was represented by the Office of Capital Collateral

Regional Counsel (CCRC-M). On September 21, 2016, Marquardt’s counsel filed a

motion for postconviction relief in state court pursuant to Florida Rule of Criminal

Procedure 3.851, along with a motion to determine competency. The issue relating

to Marquardt’s competency is still being litigated in the state postconviction court.

Also, in September 2016, Marquardt filed a pro se petition for habeas corpus

pursuant to 28 U.S.C. § 2254 in the Middle District of Florida. Marquardt v, Sec’y,

720 Fed. Appx. at 551. In the district court, Marquardt filed, among other motions,

a motion to represent himself and to appoint standby counsel. /d at 552. The

motion was opposed both by the State of Florida and his appointed counsel, CCRC-

M. /d. CCRC-M told the court that they had been representing Marquardt in state

court since May 4, 2015, and had motions currently pending in state court. Jd. They

claimed that Marquardt had several meritorious claims not included in his pro se

petition, and which have not been exhausted in state court, and therefore requested

a stay and abeyance of Marquardt’s § 2254 proceeding. /d. On December 20, 2016, a

magistrate judge denied Marquardt’s motion to proceed pro se and have standby

counsel, and granted CCRC-M’s motion to hold the case in abeyance. /d. On

February 22, 2017, the district court denied Marquardt’s motion to reconsider the

magistrate judge’s order and granted again CCRC-M’s request to hold the case in

abeyance. Jd.

Marquardt then appealed the February order to the Eleventh Circuit Court of

Appeals, specifically challenging the district court’s decision holding his petition in

abeyance and denying standby counsel and self-representation. Jd. at 553. The

Eleventh Circuit held that the district court did not abuse its discretion in denying

Marquardt’s motion to proceed pro se. The circuit court also found that Marquardt

lacked standing to challenge the order granting a stay in his case; therefore, the

Eleventh Circuit had no jurisdiction to review that order. Marquardt filed this pro

se petition for writ of certiorari challenging the Eleventh Circuit Court of Appeals

conclusions.

REASONS FOR DENYING THE WRIT

Certiorari Review Should Be Denied Because: (1) Petitioner does not

provide any compelling reason to grant the writ as required under

Rule 10 of this Court’s rules; (2) Petitioner filed a pro se writ of

certiorari when he is represented by counsel; (3) Petitioner’s

competence to proceed in postconviction has been questioned; and (4)

the U.S. Eleventh Circuit Court Appeals correctly ruled in affirming

the Middle District of Florida’s order denying Petitioner the right to

proceed pro se, and in finding they lacked jurisdiction to review the

order to stay proceedings.

The Eleventh Circuit's ruling and Marquardt’s writ challenging it provide

this Court with no “compelling reason” that would justify granting discretionary

jurisdiction. See U.S. Sup. Ct. R. 10. The primary purpose for which this Court

uses its certiorari jurisdiction is to resolve conflicts among the United States courts

of appeals and state courts “concerning the meaning and provisions of federal law.”

Braxton v. United States, 500 U.S. 344, 348 (1991). Cases that do not divide the

federal or state courts or that do not present important, unsettled questions of

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

Illinois Dept. of Revenue, 482 U.S. 182, 184, n. 3 (1987).

Marquardt has not and cannot point to any decision from this Court or the

circuit courts that conflicts with the Eleventh Circuit’s ruling below. On the

contrary, the Eleventh Circuit applied the principles of law handed down by this

Court and other circuits in reaching its ruling. See Martinez v. Court of Appeal of

California, Fourth Appellate Dist., 528 U.S. 152 (2000); Myers: v. Johnson, 76 F.3d

1330 (5th Cir. 1996). The Eleventh Circuit held, as this Court has before, that there

is no right to self-representation in appellate matters. Marquardt’s argument that

6

he is being denied his constitutional rights due to being assigned an appellate

attorney is not supported by any precedent. Marquardt does not identify any

conflict with any federal courts, and presents no unresolved, pressing federal

question. He instead is merely disagreeing with the Eleventh Circuit's application

of relevant federal precedent. Therefore, he has failed to provide any reason, let

alone a compelling one, necessary for this Court to exercise its discretionary

jurisdiction.

Marquardt contends that the district court violated his constitutional rights

by denying his request to represent himself, denying his request to discharge his

attorneys by declaring his attorneys as opposing parties in his petition, and by

holding his petition in abeyance. There is no constitutional right to hybrid

representation. Moreover, there is no evidence to suggest that Marquardt’s

attorneys are deficient in their performance or have divided loyalties.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a

defendant “has a constitutional right to proceed without counsel when he

voluntarily and intelligently elects to do so.” Jd. at 807. Still, “the right to selfrepresentation is not absolute. . .” Martinez, 528 U.S. at 161 (2000). In fact, the

right to self-representation does not apply to postconviction proceedings. /d. at 160

(explaining that rights presented under the Sixth Amendment “are presented

strictly as rights that are available in preparation for trial and at the trial itself.”)

Nonetheless, even when there is no right to self-representation, a court has

discretion to allow a lay person to proceed pro se. When exercising that discretion,

the court must balance the court’s “interest in ensuring the integrity and efficiency

of the trial” and “the defendant’s interest in acting as his own lawyer.” On appeal,

that balance favors the court’s interest. Jd. at 162-63. Furthermore, the law is wellsettled that a criminal defendant does not have a right to self-representation and

the simultaneous assistance of counsel. See Myers, 76 F.3d at 1335 (“there is no

constitutional right to hybrid representation.”)

Here, in Marquardt’s motion to appoint standby counsel, Marquardt

specifically stated that he desired to proceed pro se, but he also wanted the

assistance of standby counsel in the event he needed help with legal research. In

denying Marquardt’s request to proceed pro se and appoint standby counsel to help

with legal research, the district court reasoned that Marquardt is not formally

trained in the law, and that the issues governing his case are complex. The court

also reasoned that issues existed as to Marquardt’s competency to proceed with his

postconviction case. The court noted that Marquardt has been appointed counsel to

represent him in his state and federal cases. His attorneys are experienced

postconviction attorneys who had given the court no reason to doubt the

effectiveness of their representation. Thus, based on the balance of competing

interests, the district court denied Marquardt’s request to appoint standby counsel.

As the Eleventh Circuit found below, the facts make it clear that it was not

an abuse of discretion to deny Marquardt self-representation. The facts of his case

are complex, and his currently-pending appeals involve complex issues related to

ineffective assistance of counsel and proper exhaustion in state courts before

proceeding in federal court. Marquardt has no legal training and three doctors have

recently found him not competent to proceed. In addition, he has well-experienced

capital attorneys to represent him in both state and federal courts.

As noted above, there are also questions about Marquardt’s current

competency to proceed in his cases, much less represent himself. This Court has

held that the standard of competence for waiving counsel is identical to the

standard of competence for standing trial. See Godinez v. Moran, 509 U.S. 389, 396-

97 (1993). In state court, along with their motion for postconviction relief, CCRC-M

filed a motion to determine competency. The trial court appointed three doctors to

evaluate Marquardt’s competency to proceed, all of whom have opined that he is not

competent. There has not been a formal adjudication from the state court on the

issue yet, but given the existence of those three reports, there is some reason to

doubt Petitioner’s competence to waive counsel and represent himself. Even at trial,

a defendant, although competent to stand trial, may nonetheless be denied the right

to self-representation where mental issues not rising to the level of incompetency

would hinder or inhibit exercise of that right. See Indiana v. Edwards, 554 U.S.

164, 177-78 (2008)(“We consequently conclude that the Constitution permits judges

to take realistic account of the particular defendant's mental capacities by asking

whether a defendant who seeks to conduct his own defense at trial is mentally

competent to do so.”).

Additionally, the Eleventh Circuit correctly determined they had no

jurisdiction to rule on the district court’s order holding the § 2254 petition in

abeyance pending the outcome of his state motions. In reaching this conclusion they

held:

[Als we have explained, the district court did not abuse its discretion in

denying Marquardt’s motion to proceed pro se. Under these particular

circumstances, Marquardt’s counsel therefore acted on Marquardt’s

behalf when counsel moved to stay the federal proceedings pending

exhaustion of the state remedies. This type of decision is a strategic

one by which Marquardt is bound unless counsel sought the stay in

bad faith or with divided loyalty to Marquardt. Nothing in the record

allows us to conclude that counsel here acted either in bad faith or

with divided loyalty to Marquardt. Marquardt is therefore bound by

counsel’s decision to seek the stay. And since counsel, representing

Marquardt, prevailed on the motion to stay, Marquardt is not an

aggrieved party. He therefore lacks standing to appeal the order

granting stay.

Marquardt v. Sec’y, 720 Fed. Appx. at 556-57.

Since Marquardt cannot proceed pro se, he is bound by the strategic decisions

of his attorneys. When their motion to stay the proceedings was granted, both he

and his counsel prevailed. Therefore, the Eleventh Circuit correctly concluded that

Marquardt lacked standing to appeal a ruling that was in his favor.

10

CONCLUSION

Based on the foregoing, Respondents respectfully request that this Court

deny the petition for writ of certiorari.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

Tallahassee, Florida

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CAROLYN M. SNURKOWSKI*

Assistant Attorney General

Florida Bar No. 158541

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Florida Bar No. 112839

Office of the Attorney General

444 Seabreeze Blvd. Suite 500

Daytona Beach, Florida 32118

Telephone: (886) 238-4990

Facsimile: (886) 226-0457

capapp@myfloridalegal.com

doris. meacham@myfloridalegal.com

patrick.bobek@myfloridalegal.com

COUNSEL FOR RESPONDENTS

11