Petition for Writ of Certiorari — Jose Antonio Jimenez, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections, et al.
Supreme Court briefDec 13, 2018
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CAPITAL CASE
EXECUTION IMMINENT
EXECUTION SCHEDULED FOR DECEMBER 13, 2018, 6:00 p.m.
DOCKET NO. _______
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2018
444444444444444444444444444444444
JOSE ANTONIO JIMENEZ,
Petitioner,
vs.
JULIE JONES,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS FLORIDA,
Respondent.
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PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
444444444444444444444444444
*MARTIN J. McCLAIN
Fla. Bar No. 0754773
Telephone: (305) 984-8344
martymcclain@earthlink.net
LINDA MCDERMOTT
Fla. Bar No. 0102857
Telephone: (850) 322-2172
lindammcdermott@msn.com
McClain & McDermott, P.A.
141 N.E. 30th Street
Wilton Manors, Florida 33334
*COUNSEL OF RECORD
QUESTIONS PRESENTED--CAPITAL CASE
1.
Where a numerically-second § 2254 motion raises an
actionable Brady/Giglio violation that (a) the government
suppressed until after the conclusion of the defendant’s
numerically-first § 2254 motion, and (b) the defendant could not
have discovered until the government revealed it, does the
Constitution and this Court’s precedent require that the
numerically-second § 2254 motion not be subjected to the
“gatekeeping” requirements of a “second or successive” motion?
2.
Whether the State’s failure to “set the record
straight” under Banks v. Dretke when it has withheld favorable
information and/or evidence or presented false or misleading
testimony during depositions denying the existence of exculpatory
material, and the State’s failure to “set the record straight”
continues for 24 years through collateral proceedings including a
first 2254 petition, can the State’s failure to honor its due
process obligation serve to preclude the filing of a “second in
time” habeas petition under Panetti v. Quarterman when the
Giglio/Brady violations are discovered by happenstance over the
State’s objection nearly 24 years after a defendant’s trial and
11 years after the first 2254 petition was denied?
3.
Is the Eleventh Circuit’s rule – that no matter the
circumstances leading up to the late discovery of exculpatory
information, any Brady or Giglio claim that arises after the
first-in-time habeas petition is filed is to be considered
“second or successive” – consistent with the exceptions noted by
this Court in Panetti v. Quarterman?
i
4.
Whether nine years after a 2254 petition filed by a
petitioner under sentence of death has been denied, a state
supreme court’s announcement that the reference in the capital
sentencing statute used to impose petitioner’s sentence, facts
that a judge was to consider before imposing a death sentence are
actually elements of capital murder which the State must prove
beyond a reasonable doubt under In re Winship in order for a
defendant to be death eligible, is a second habeas petition
asserting that the petitioner’s death sentence stands in
violation of due process under Fiore v. White and Bunkley v.
Florida, or a “second in time” petition under Panetti v.
Quarterman?
ii
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED--CAPITAL CASE . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . .
ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . iii
CITATION TO OPINIONS BELOW. . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
. . . . . . . 2
PROCEDURAL CONTEXT FOR INSTANT CERTIORARI PETITION. . . . . . . 2
REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . .
10
THE ELEVENTH CIRCUIT ERRONEOUSLY AFFIRMED THE DISTRICT
COURT’S DISMISSAL OF JIMENEZ’S SECOND-IN-TIME § 2254
PETITION AS “SECOND AND SUCCESSIVE.” UNDER THE REASONING OF
PANETTI V. QUARTERMAN, JIMENEZ’S CLAIMS ARE NOT “SECOND OR
SUCCESSIVE” BECAUSE THEY WERE NOT RIPE AT THE TIME HE FILED
HIS FIRST-IN-TIME § 2254 PETITION AND THUS ARE AN EXCEPTION
TO § 2244 (B)(3)(A) . . . . . . . . . . . . . . . . . . . 10
CONCLUSION
. . . . . . . . . . . . . . . . . . . . . . . . .
24
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . .
24
iii
TABLE OF AUTHORITIES
CASES
PAGE
Asay v. State
224 So. 3d 695 (Fla. 2017) . . . . . . . . . . . . . . . 19
Banks v. Dretke
540 U.S. 668 (2004) . . . . . . . . . . . . . . . . . .
18
Bousley v. United States
523 U.S. 614 (1998) . . . . . . . . . . . . . . . . . .
21
Boyd v. United States
754 F.3d 1298 (11th Cir. 2014) . . . . . . . . . . . . .
14
Brady v. Maryland
373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . 10, 18
Bunkley v. Florida
538 U.S. 835 (2003) . . . . . . . 4, 10, 20, 21, 22, 23, 24
Duest v. State
855 So. 2d 33 (Fla. 2003) . . . . . . . . . . . . . . . . 8
Fiore v. White
531 U.S. 225 (2001) . . . . . . . . . . . . . 4, 10, 21, 24
Ford v. Wainwright
477 U.S. 399 (1986) . . . . . . . . . . . . . . . . . .
12
Giglio v. United States
405 U.S. 150 (1972) . . . . . . . . . . . . . . . . . .
10
Hurst v. State
202 So. 3d 40 (Fla. 2016) . . . . . . . . 8, 10, 18, 19, 24
In re Winship
397 U.S. 358 (1970) . . . . . . . . . . . . . . . 4, 10, 20
Jimenez v. Florida Dep’t of Corrections
481 F.3d 1337 (11th Cir. 2007) . . . . . . . . . . . . . . 3
Jimenez v. State
__ So. 3d __, 2018 WL 4784203 (Fla. 2018)
. . . . . . . . . . . . . . . . . . . . . 3, 4, 5, 6, 9, 10
Jimenez v. State
703 So. 2d 437 (Fla. 1997) . . . . . . . . . . . . . . .
3
Jimenez v. State
247 So. 3d 395 (Fla. 2018) . . . . . . . . . . . . . . .
4
iv
Magwood v. Patterson
561 U.S. 320 (2010) . . . . . . . . . . . . . . . . . .
13
McKendry v. State
641 So. 2d 45 (Fla. 1994) . . . . . . . . . . . . . . . . 9
Mills v. Moore
786 So. 2d 532 (Fla. 2001) . . . . . . . . . . . . . . .
7
Mullaney v. Wilbur
421 U.S. 684 (1975) . . . . . . . . . . . . . . . . . .
19
Napue v. Illinois
360 U.S. 264 (1959) . . . . . . . . . . . . . . . . . .
18
Panetti v. Quarterman
551 U.S. 930 (2007) . . . . . . . . . 4, 11, 12, 13, 14, 22
Richardson v. United States
526 U.S. 813 (1999) . . . . . . . . . . . . . . . . . .
Scott v. United States
890 F.3d 1239 (11th Cir. 2018) . . . . . . . . . . .
19
16, 17
Schriro v. Summerlin
542 U.S. 348 (2004) . . . . . . . . . . . . . . . . . .
20
Stewart v. United States
646 F.3d 856 (11th Cir. 2011) . . . . . . . . . . . . . . 14
Tompkins v. Sec’y, Dep’t. of Corrections
557 F.3d 1257 (11th Cir. 2009) . . . . . . . . .
15, 16, 17
Whatley v. State
35 So. 80, 81 (Fla. 1903) . . . . . . . . . . . . . . . . 8
v
DOCKET NO. _______
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2018
444444444444444444444444444444444
JOSE ANTONIO JIMENEZ,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
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PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Petitioner, JOSE ANTONIO JIMENEZ, is a condemned prisoner
in the State of Florida. Petitioner respectfully urges that this
Honorable Court issue its writ of certiorari to review the
decision of the Eleventh Circuit Court of Appeals.
PENDING EXECUTION DATE - December 13, 2018
On November 15, 2018, the Governor rescheduled Petitioner’s
execution for December 13, 2018.
CITATION TO OPINIONS BELOW
The Eleventh Circuit’s decision appears as Jimenez v.
Secretary, and is Attachment A to this petition. The Eleventh
1
Circuit’s order denying panel and en banc rehearing is
Attachment B to this petition. The district court’s order
dismissing Mr. Jimenez’s petition is Attachment C to this
petition. The Florida Supreme Court’s October 4, 2018, opinion
is Attachment D to this petition.
STATEMENT OF JURISDICTION
Petitioner invokes this Court’s jurisdiction to grant the
Petition for Writ of Certiorari to the Eleventh Circuit Court of
Appeals on the basis of 28 U.S.C. § 1254(1). The Eleventh
Circuit entered its opinion on December 13, 2018
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the Constitution of the United States
provides in relevant part:
No persons . . . shall . . . be deprived of life,
liberty or property, without due process of law.
The Eighth Amendment to the Constitution of the United
States provides in relevant part:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel or unusual punishments
inflicted.
The Fourteenth Amendment to the Constitution of the
United States provides in relevant part:
No State shall . . . deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
PROCEDURAL CONTEXT FOR INSTANT CERTIORARI PETITION
The Petitioner, Jose Antonio Jimenez, is a death-sentenced
inmate in the State of Florida. In 1994, he was tried and
convicted of one count of first degree murder and one count of
2
burglary with assault in Dade County, Florida. A penalty phase
proceeding followed. The advisory jury returned a unanimous death
recommendation as to his conviction for first degree murder. On
direct appeal, the Florida Supreme Court affirmed both the
convictions and the death sentence. Jimenez v. State, 703 So. 2d
437 (Fla. 1997), cert. denied, 523 U.S. 1123 (1998).
Following the affirmance of his convictions and death
sentence, Jimenez sought both state and federal collateral relief
from both his conviction and his sentence of death. The history
of his robust state collateral litigation, which is not
necessarily germane to the issues presented herein, is set forth
in the Florida Supreme Court’s most recent opinion affirming the
denial of the postconviction motion Jimenez filed under the
pending death warrant. See Jimenez v. State, 2018 WL 4784203
(Fla. Oct. 4, 2018), cert. filed, U.S. Sup. Ct. Case No.18-6970.
The course of Jimenez’s federal habeas litigation is described in
the Eleventh Circuit opinion that gives rise to the instant
petition, see Attachment ***, as well as in its prior opinion
affirming the denial of Jimenez’s first-in-time habeas petition.
See Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337 (11th Cir.),
cert. denied, 552 U.S. 1029 (2007).
The procedural context giving rise to the instant petition
and the questions presented by Jimenez is as follows. On December
10, 2018, Jimenez filed a second-in-time petition pursuant to 28
U.S.C. § 2254 in the United States District Court for the
Southern District of Florida (DE:1). The petition raised three
constitutional grounds for relief. First, it raised a due process
3
claim under Fiore v. White, 531 U.S. 225 (2001), In re Winship,
397 U.S. 358 (1970), and Bunkley v. Florida, 538 U.S. 835 (2003),
that the Florida Supreme Court had rejected on June 28, 2018.
See Jimenez v. State, 247 So.3d 395 (Fla. 2018), cert. denied,
2018 WL 4681996 (U.S. Dec. 3, 2018).
His second claim was the
Giglio and Brady claim that the Florida Supreme Court rejected
without any evidentiary development on October 4, 2018. See
Jimenez v. State, 2018 WL 4784203 (Fla. Oct. 4, 2018), petition
for cert. filed, U.S. Sup. Ct. Case No. 18-6970. The third claim
he pled in the petition was a legal argument he was still at the
time in the process of exhausting in the Florida Supreme Court
regarding the passage of a new Florida constitutional amendment
and its potential effect on Jimenez’s sentence.1
Aware that he had previously filed a federal habeas
petition, Jimenez asserted in his second-in-time § 2254 petition
that the district court had jurisdiction over each of his claims
as they were “second-in-time” within the meaning of Panetti v.
Quarterman, 551 U.S. 930 (2007).
That is, Jimenez argued that
they did not exist or were unripe at the time that his first-intime petition was litigated and were therefore not a “second or
successive” petition subject to dismissal pursuant to 28 U.S.C. §
1
Subsequent to the filing of his second-in-time petition,
the Florida Supreme Court issued an order denying the claim
regarding the new constitutional amendment. See Jimenez v. Jones,
Fla. Sup. Ct. Case No.18-1999 (Fla. Dec. 12, 2018). In light of
the Florida Supreme Court’s decision, Jimenez did not pursue that
ground in his appeal to the Eleventh Circuit following the
dismissal of his second-in-time petition by the district court.
Thus, that ground was not before the Eleventh Circuit and it is
not before this Court.
4
2244(b)(3)(A). He contended that under Panetti, claims that were
not available to be presented in the first-in-time petition were
not “second or successive” and the district court had
jurisdiction to consider them as if they had been presented in an
initial habeas petition.
Specifically as to the Brady/Giglio claim, Jimenez contended
that the due process violations alleged in his second-in-time
petition were not ripe at the time he filed his first habeas
petition because the State had hidden the exculpatory information
from him for more than 25 years. Subsequent to the signing of his
death warrant in July, 2018, Jimenez sought public records from
the North Miami Police Department (NMPD), the law enforcement
agency involved in the homicide investigation. Despite the fact
that the NMPD had, some 18 years earlier, provided to Jimenez
what it represented was its entire file on the homicide and
Jimenez’s involvement in it, the NMPD, in complying with the
July, 2018, records request, sent “its entire unredacted file” to
the records repository, a centralized warehouse where records in
Florida capital cases are maintained; the repository subsequently
sent Jimenez’s collateral counsel the “entire unredacted file”
over the State’s objection. Jimenez, 2018 WL 4784203 at *2. As
the Florida Supreme Court explained:
Although NMPD objected to and the postconviction court
ultimately denied Jimenez’s public records request to
NMPD, NMPD sent its entire, unredacted file to the
repository as a courtesy before the postconviction
court entered its denial order so that there could be a
comparison between it and NMPD’s prior submission. The
repository received NMPD’s submission on July 25, 2018,
and on July 30, 2018, Jimenez obtained an order from
the postconviction court allowing him to access those
5
records even though they had not been redacted, subject
to a prohibition against releasing any confidential or
exempt records without permission from the
postconviction court. The records repository began
emailing Jimenez’s counsel the records that same day
and also sent Jimenez’s counsel a CD containing the
records (over 1,000 pages), which was received the next
day, July 31, 2018.
Id.
After collateral counsel received the unredacted file from
NMPD, he and his investigator “saw handwritten documents that
they did not recognize.” Id. After a comparison was made between
the NMPD’s 1999 submission and its 2018 production, “Jimenez’s
counsel ultimately confirmed that 81 pages of handwritten records
had not been previously disclosed.” Id. Counsel “further
confirmed that there was no indication in NMPD’s prior submission
that records had been withheld or public records exemptions
claims.” Id. It is the information contained in these 81 pages of
handwritten notes that formed the basis for Jimenez’s
Brady/Giglio claims that he first raised in state court and then
in his second-in-time § 2254 petition.2
2
The most noteworthy handwritten notes concerned the two
lead detectives’ meeting with Jimenez for 45 minutes upon
Jimenez’s arrest. The police reports and the testimony of the
detectives indicated that the detectives informed Jimenez of the
charges and let him read the affidavit in support of the warrant.
He became angry seeing that someone had said he was a known
burglary, he began to cry, and indicated he did not want to talk.
At that late point, the detectives said Jimenez was given his
Miranda warnings. When asked why was it that the Miranda warning
were not administered until nearly 45 minutes had past, one of
the detectives testified in a deposition that was because up
until then Jimenez was not talking.
However, the handwritten notes from this 45 minute time
period show that Jimenez did talk about what he had done the
(continued...)
6
As to the Fiore/Winship/Bunkley ground raised in Jimenez’s
second-in-time habeas petition, Jimenez explained that, at the
time of the victim’s murder, Fla. Stat. § 921.141(3) provided:
“Notwithstanding the recommendation of a majority of the jury,
the court, after weighing the aggravating and mitigating
circumstances, shall enter a sentence of life imprisonment or
death.” If the court decides to impose a death sentence, it must
“set forth in writing its findings upon which the sentence of
death is based.” Ibid. The governing statute did not make a
defendant eligible for death until “findings by the court that
such person shall be punished by death.” § 775.082(1)
It for the
trial court who was required to find “the facts ... [t]hat
sufficient aggravating circumstances exist” and “[t]hat there are
insufficient mitigating circumstances to outweigh the aggravating
circumstances.” § 921.141(3).
In Mills v. Moore, 786 So. 2d 532, 538 (Fla. 2001), the
Florida Supreme Court explained: “When section 775.082(1) is read
in pari materia with section 921.141, Florida Statutes, there can
be no doubt that a person convicted of a capital felony faces a
maximum possible penalty of death.” The statute was read to
merely require the presence of one aggravator to render a
defendant subject to a death sentence. State v. Steele, 921 So.
2
(...continued)
Friday night in question, which neighbors he had talked to and
who lived in what apartment. The notes also revealed that he told
the detectives that he had knocked on the victim’s door and hour
before the homicide, but she was on the phone. In short, the
notes show that the police detectives did not tell the truth in
the police reports and in their trial and deposition testimony.
7
2d 538, 545-46 (Fla. 2005); Duest v. State, 855 So. 2d 33, 49
(Fla. 2003).
Then in Hurst v. State, 202 So. 3d 40 (Fla. 2016), the
Florida Supreme Court construed the same language in § 921.141 to
mean:
Thus, before a sentence of death may be considered by
the trial court in Florida, the jury must find the
existence of the aggravating factors proven beyond a
reasonable doubt, that the aggravating factors are
sufficient to impose death, and that the aggravating
factors outweigh the mitigating circumstances.
Id at 53.
[A]ll the findings necessary for imposition of a death
sentence are “elements” that must be found by a jury,
and Florida law has long required that jury verdicts
must be unanimous. Accordingly, we reiterate our
holding that before the trial judge may consider
imposing a sentence of death, the jury in a capital
case must unanimously and expressly find all the
aggravating factors that were proven beyond a
reasonable doubt, unanimously find that the aggravating
factors are sufficient to impose death, unanimously
find that the aggravating factors outweigh the
mitigating circumstances, and unanimously recommend a
sentence of death.
Id. at 57-58.
It was the same statute, the same statutory language.
However, that language was understood to mean that the
statutorily identified facts were elements in Hurst v. State
where the crime at issue occurred on May 2, 1998.
The Florida Constitution precluded a legislative change to a
criminal statute from “affect[ing] the prosecution or punishment
of a crime committed before [the amendment] took effect.” Whatley
v. State, 35 So. 80, 81 (Fla. 1903). “The statutory penalty in
effect at the time a crime is committed ordinarily controls the
8
punishment at sentencing.” McKendry v. State, 641 So. 2d 45, 49
(Fla. 1994) (Shaw, J., dissenting).
So in Hurst v. State, the Florida Supreme Court construed
what the statute meant on May 2, 1998, as to what facts were
elements. The same statute at issue in Hurst v. State was in
place at the time of the homicide that Jimenez stands convicted
of. Yet, neither the jury nor the judge in Jimenez’s case were
told that these statutorily identified facts elements. This claim
did not become available for Jimenez to raise until the Florida
Supreme Court’s decision in Hurst v. State.
On December 10, 2018, the district court ordered the State
to respond to Jimenez’s second-in-time petition, and directed it
file the state court record (DE:6). On December 11, 2018, the
State filed its response but not the state court record (DE:9).
On December 12, 2018, Jimenez filed a reply to the State’s
response, as well as a motion to compel the State to file and
serve the state court record (DE:14, 15). Within minutes of the
State later electronically filing the record (DE:16), the
district court dismissed Jimenez’s petition for want of subjectmatter jurisdiction and denied a COA (DE:17). The district court
denied Jimenez’s motion to compel the filing of the state court
record as moot, adding that the court found it “unnecessary” to
review the record before dismissing Jimenez’s petition (DE:19).3
3
Later in the afternoon of December 12, 2018, the Florida
Supreme Court entered an order denying Jimenez’s habeas petition
that contained the claim he had filed in his federal habeas
despite the fact it was not exhausted. Jimenez v. Jones, SC18(continued...)
9
REASONS FOR GRANTING THE WRIT
THE ELEVENTH CIRCUIT ERRONEOUSLY AFFIRMED THE DISTRICT
COURT’S DISMISSAL OF JIMENEZ’S SECOND-IN-TIME § 2254
PETITION AS “SECOND AND SUCCESSIVE.” UNDER THE
REASONING OF PANETTI V. QUARTERMAN, JIMENEZ’S CLAIMS
ARE NOT “SECOND OR SUCCESSIVE” BECAUSE THEY WERE NOT
RIPE AT THE TIME HE FILED HIS FIRST-IN-TIME § 2254
PETITION AND THUS ARE AN EXCEPTION TO § 2244 (B)(3)(A).
On December 10, 2018, Jimenez filed a second-in-time § 2254
petition alleging three constitutional claims for relief. Ground
One alleged that the Eighth Amendment and the Due Process Clause
of the Fourteenth Amendment required the Florida Supreme Court’s
construction of Fla. Stat. § 921.141 in Hurst v. State, 202 So.3d
40 (Fla. 2016), to be applied in his case under Fiore v. White,
531 U.S. 225(2001), In re Winship, 397 U.S. 358 (1970), and
Bunkley v. Florida, 538 U.S. 835 (2003). Ground Two alleged
newly-discovered violations of Brady v. Maryland, 373 U.S. 83
(1963), and Giglio v. United States, 405 U.S. 150 (1972). These
due process violations were discovered by Jimenez’s collateral
counsel in public records disclosed for the first time by the
North Miami Police Department (NMPD) on July 30, 2018.4 Ground
3
(...continued)
1999 (Fla. Dec, 12, 2018). As a result of this order, Jimenez did
not pursue that ground in his appeal to the Eleventh Circuit.
4
As the Florida Supreme Court noted in its recent opinion in
Jimenez’s case, the “NMPD had, ... more than 18 years before
Jimenez’s post-warrant request, submitted records to the records
repository pursuant to the provisions of rule 3.852(h), that
apply to cases like Jimenez’s, in which the mandate affirming the
conviction and sentence of death was issued prior to rule 3.852's
effective date of October 1, 1998.” Jimenez v. State, 2018 WL
4784203 at *2 (Fla. Oct. 4, 2018). Prior to 1998, state agencies
were notified by the Florida Attorney General’s Office to provide
(continued...)
10
Three of the petition alleged claims related to the recent
passage of a new constitutional amendment in Florida; the
dismissal of Ground Three is not a subject of this appeal as the
Florida Supreme Court denied it on state law grounds.
A.
PANETTI v. QUARTERMAN
The AEDPA curtailed a state prisoner’s ability to file a
second petition for a writ of habeas corpus in federal court. “A
claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless” certain, narrow
circumstances exist. 28 U.S.C. § 2244(b)(2).5 This Court
addressed this provision in Panetti v. Quarterman, 551 U.S. 930
(2007), and explained:
The phrase “second or successive” is not self-defining.
It takes its full meaning from our case law, including
decisions predating the enactment of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 110
Stat. 1214. See Slack v. McDaniel, 529 U.S. 473, 486,
120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing
Martinez–Villareal, supra); see also Felker v. Turpin,
4
(...continued)
public records in a particular case to the records repository;
the records were thus not requested by the capital defendant but
sent automatically by state agencies upon notification by the
Attorney General’s Office. The records disclosed by the NMPD in
2018 were not included in the NMPD’s disclosure in 1999.
5
The narrow circumstances set forth in the statute are: 1)
“the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable,” or
“the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence [and
the facts supporting the claim] “would be sufficient to establish
by clear and convincing evidence that . . . no reasonable
factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2244(b)(2)(A),(B).
11
518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827
(1996). The Court has declined to interpret “second or
successive” as referring to all § 2254 applications
filed second or successively in time, even when the
later filings address a state-court judgment already
challenged in a prior § 2254 application. See, e.g.,
Slack, 529 U.S., at 487, 120 S.Ct. 1595 (concluding
that a second § 2254 application was not “second or
successive” after the petitioner's first application,
which had challenged the same state-court judgment, had
been dismissed for failure to exhaust state remedies);
see also id., at 486, 120 S.Ct. 1595 (indicating that
“pre-AEDPA law govern[ed]” the case before it but
implying that the Court would reach the same result
under AEDPA); see also Martinez–Villareal, supra, at
645.
* * *
Our earlier holding does not resolve the jurisdictional
question in the instant case. Martinez–Villareal did
not address the applicability of § 2244(b) “where a
prisoner raises a Ford claim for the first time in a
petition filed after the federal courts have already
rejected the prisoner's initial habeas application.”
Id., at 645, 118 S.Ct. 1618, n. Yet the Court's
willingness to look to the “implications for habeas
practice” when interpreting § 2244 informs the analysis
here. Id., at 644, 118 S.Ct. 1618. We conclude, in
accord with this precedent, that Congress did not
intend the provisions of AEDPA addressing “second or
successive” petitions to govern a filing in the unusual
posture presented here: a § 2254 application raising a
Ford-based incompetency claim filed as soon as that
claim is ripe.
* * *
In the usual case, a petition filed second in time and
not otherwise permitted by the terms of § 2244 will not
survive AEDPA's “second or successive” bar. There are,
however, exceptions. We are hesitant to construe a
statute, implemented to further the principles of
comity, finality, and federalism, in a manner that
would require unripe (and, often, factually
unsupported) claims to be raised as a mere formality,
to the benefit of no party.
Panetti, 551 U.S. at 943-45, 947 (emphasis added).
The specific constitutional claim that the habeas petitioner
raised in Panetti was one premised upon Ford v. Wainwright, 477
12
U.S. 399 (1986), i.e. that the petitioner was not competent to be
executed as required by the Eighth Amendment. As this Court
pointed out, such a claim could not ripen until the capital
defendant had a scheduled execution. As a result, the petitioner
in Panetti could not raise the Ford claim in his first federal
habeas petition because there was no scheduled execution. This
Court specifically concluded that the subsequent habeas petition
raising a Ford claim was not a “second or successive” habeas
petition within the meaning of 28 U.S.C. § 2244(b)(2). It is
worth reiterating that after opening the door for the
presentation of a Ford claim in a habeas petition that was not
the first habeas petition filed by the petitioner, this Court in
Panetti stated: “In the usual case, a petition filed second in
time and not otherwise permitted by the terms of § 2244 will not
survive AEDPA's ‘second or successive’ bar. There are, however,
exceptions.” Panetti, 551 U.S. at 947 (emphasis added). This use
of the plural (exceptions) clearly suggested that there was not
just one exception for habeas petitions raising Ford claims.
Other exceptions to the usual circumstance barring a second in
time habeas petition exist.6
6
In Magwood v. Patterson, 561 U.S. 320, 331-21 (2010), this
Court referenced Panetti in the following fashion:
Although Congress did not define the phrase “second or
successive,” as used to modify “habeas corpus
application under section 2254,” §§ 2244(b)(1)-(2), it
is well settled that the phrase does not simply
“refe[r] to all § 2254 applications filed second or
successively in time,” Panetti v. Quarterman, 551 U.S.
930, 944, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); see
(continued...)
13
B.
THE ELEVENTH CIRCUIT COURT’S DECISIONS ON WHAT CIRCUMSTANCES
CONSTITUTE SECOND-IN-TIME PETITIONS
The Eleventh Circuit has addressed the Panetti exceptions.
In Stewart v. United States, 646 F.3d 856 (11th Cir. 2011), the
Eleventh Circuit considered “whether Stewart’s numerically second
§ 2255 motion is ‘second or successive’” when it raised a new
claim challenging Stewart’s career offender enhancement after the
state court convictions underlying the enhancement were vacated.
The state court convictions were vacated four years after
Stewart’s numerically first § 2255 had been dismissed as timebarred. Id. at 857-58. Stewart filed his numerically second §
2255 forty-five days after the state court convictions were
vacated.
Applying Panetti, the Eleventh Circuit concluded that
Stewart’s numerically second § 2255 motion was not a second and
successive motion because Stewart’s claim had only just ripened.
Thereafter, in Boyd, the Eleventh Circuit addressed Stewart and
explained:
[T]he bar on second or successive motions applies when,
for example, a petitioner could have raised his or her
claim for relief in an earlier filed motion, but
without a legitimate excuse, failed to do so. Stewart,
646 F.3d at 859.
Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014)
(emphasis added). Thus, consistent with Panetti, the Eleventh
6
(...continued)
id., at 947, 127 S.Ct. 2842 (creating an “exceptio[n]”
to § 2244(b) for a second application raising a claim
that would have been unripe had the petitioner
presented it in his first application)....
14
Circuit recognized that when a factual basis for a claim did not
exist at the time of a petitioner’s first petition for writ of
habeas corpus, a second in time petition was “not second or
successive and § 2255(h)’s gatekeeping provision did not apply.”
Id. at 1302.
However, in Tompkins v. Sec’y, Dep’t. of Corrections, 557
F.3d 1257 (11th Cir. 2009), the Eleventh Circuit was presented
with an appeal from the district court’s dismissal of a secondin-time § 2254 petition that included a claim pursuant to Gardner
v. Florida, 430 U.S. 349, (1977); a claim about ex parte
communication between the sentencing judge and prosecutor; claims
of violations of Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972); a claim that
execution after such a long delay would violate Tompkins’
constitutional rights; and a claim involving lethal injection
procedures. As to the Gardner, Brady and Giglio claims, the
Eleventh Circuit found the claims precluded by the bar on “second
or successive” petitions: “Tompkins would have us hold that any
claim based on new evidence is not ‘ripe’ for presentation until
the evidence is discovered, even if that discovery comes years
after the initial habeas petition is filed.” Tompkins, 557 F.3d
at 1260. The court set forth its reasoning: “the Gardner, Brady,
and Giglio claims Tompkins wants to raise are claims that can be
and routinely are raised in initial habeas petitions. The
violation of constitutional rights asserted in these kinds of
claims occur, if at all, at trial or sentencing and are ripe for
inclusion in a first petition.”
15
In Scott v. United States, 890 F.3d 1239 (11th Cir. 2018),
the Eleventh Circuit addressed the issue of a district court’s
denial of a second-in-time §2255 motion by a federal prisoner who
discovered potentially exculpatory evidence that had been
withheld by the government prior to trial. The panel initiated
its discussion by setting out the scenario raised by Scott’s
circumstances:
An actionable Brady violation—where the government
withholds evidence that reasonably probably changes the
outcome of a defendant’s trial—deprives the defendant
of a fundamentally fair trial. Yet because of the
nature of a Brady violation, a defendant, through no
fault of his own, may not learn that such a violation
even occurred until years after his conviction has
become final and he has already filed a motion for
post-conviction relief concerning other matters.
Scott, 990 F.3d at 1243.
Ultimately, the Eleventh Circuit in Scott determined that it
could not distinguish Tompkins’ reasoning from the facts
presented in Scott’s case and thus, under the prior-precedent
rule, it was bound to apply Tompkins to hold that “a second-intime collateral motion based on a newly revealed Brady violation
is not cognizable if it does not satisfy one of AEDPA’s
gatekeeping criteria for second-or-successive motions.” Id.
Despite being obliged to apply the Tompkins’ rule, in the
Scott panel’s view, “Tompkins got it wrong” because
it eliminates the sole fair opportunity for these
petitioners to obtain relief. In our view, the Supreme
Court precedent, the nature of the right at stake here
(the right to a fundamentally fair trial), and the
Suspension Clause of the U.S. Constitution, Art. I, §
9, cl. 2, do not allow this. Indeed, they require the
conclusion that a second-in-time collateral claim based
on a newly revealed actionable Brady violation is not
second-or-successive for purposes of AEDPA.
16
Consequently, such a claim is cognizable, regardless of
whether it meets AEDPA’s second-or-successive
gatekeeping criteria.
Scott, 890 F.3d at 1243 (emphasis added). The Scott panel
concluded that Tompkins “prohibits second-in-time collateral
petition based on all types of Brady claims—actionable and
inactionable, alike—simply because they are Brady claims.” Id.
Accordingly, Scott’s § 2255 motion was found to be an
impermissible “second or successive” motion under Tompkins, even
though the Scott panel believed that the reasoning of Tompkins
was “fatally flawed.” Id. at 1258.
This conflict within the Eleventh Circuit calls for this
Court to address due process violations like in Jimenez’s case
where rather than disclose, the State instead erroneously
represented that it possessed no undisclosed favorable
information in violation of Napue v. Illinois, 360 U.S. 264, 268
(1959), Brady v. Maryland, 373 U.S. 83 (1963), and Banks v.
Dretke, 540 U.S. 668 (2004).
C.
THE DUE PROCESS CLAIM QUALIFIES AS AN EXCEPTION UNDER
PANETTI
Here, at the time of his trial, direct appeal, state
postconviction proceedings, and initial federal habeas corpus
proceedings, the State failed to disclose information in its
possession that was favorable to Jimenez. The information was
only disclosed when Jimenez’s death warrant had been signed and
his execution imminent. Indeed, the recently disclosed evidence
would also have been critical for the courts to review in terms
17
of conducting the constitutionally required cumulative analysis.
See Kyles v. Whitley, 514 U.S. 419 (1995).
“When police or prosecutors conceal significant exculpatory
or impeaching material in the State’s possession, it is
ordinarily incumbent on the State to set the record straight.”
Banks, 540 U.S. at 675-76. Thus, a rule “declaring ‘prosecutor
may hide, defendant must seek,’ is not tenable in a system
constitutionally bound to accord defendants due process.” Id. at
696. However, that is exactly what occurred. Under Panetti, the
presentation of these constitutional violations at this time
after the discovery of the factual basis of a previously unripe
claim does not render this “a second or successive” petition
within the meaning of the AEDPA, particularly where the State
erroneously claimed no favorable information had been withheld
and never corrected that misrepresentation.
D.
THE FIORE v. WHITE CLAIM QUALIFIES AS AN EXCEPTION UNDER
PANETTI
Jimenez’s Fiore claim did not exist before the Florida
Supreme Court issued its decision in Hurst v. State, 202 So. 3d
40 (Fla. 2016), and construed § 921.141 to identify the elements
of capital murder:
[A]ll the findings necessary for imposition of a death
sentence are “elements” that must be found by a jury,
and Florida law has long required that jury verdicts
must be unanimous. Accordingly, we reiterate our
holding that before the trial judge may consider
imposing a sentence of death, the jury in a capital
case must unanimously and expressly find all the
aggravating factors that were proven beyond a
reasonable doubt, unanimously find that the aggravating
factors are sufficient to impose death, unanimously
find that the aggravating factors outweigh the
18
mitigating circumstances, and unanimously recommend a
sentence of death.
Id. 57. This aspect of Hurst v. State was discussed in Asay v.
State, 210 So. 3d 1 (Fla. 2016):
[O]ur retroactivity analysis in Johnson hinged upon our
understanding of Ring's application to Florida's
capital sentencing scheme at that time. Thus, we did
not treat the aggravators, the sufficiency of the
aggravating circumstances, or the weighing of the
aggravating circumstances against the mitigating
circumstances as elements of the crime that needed to
be found by a jury to the same extent as other elements
of the crime.
Asay v. State, 210 So. 3d at 15-16 (emphasis added). Thus, in
Florida, Hurst v. State changed the elements of capital murder.
In Richardson v. United States, 526 U.S. 813, 817 (1999),
this Court observed:
Calling a particular kind of fact an “element” carries
certain legal consequences. Almendarez–Torres v. United
States, 523 U.S. 224, 239, 118 S.Ct. 1219, 140 L.Ed.2d
350 (1998). The consequence that matters for this case
is that a jury in a federal criminal case cannot
convict unless it unanimously finds that the Government
has proved each element. Johnson v. Louisiana, 406 U.S.
356, 369–371, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)
(Powell, J., concurring); Andres v. United States, 333
U.S. 740, 748, 68 S.Ct. 880, 92 L.Ed. 1055 (1948); Fed.
Rule Crim. Proc. 31(a).
When a statute uses elements to distinguish between a lower
and higher degree of an offense, due process requires the
elements necessary for higher degree of the offense to be proven
by the State beyond a reasonable doubt. Mullaney v. Wilbur, 421
U.S. 684, 698 (1975) (“The safeguards of due process are not
rendered unavailing simply because a determination may already
have been reached that would stigmatize the defendant and that
might lead to a significant impairment of personal liberty.”).
19
In Schriro v. Summerlin, 542 U.S. 348 (2004), this Court
indicated that substantive rulings regarding the scope of a
criminal statute should be applied retroactively:
New substantive rules generally apply retroactively.
This includes decisions that narrow the scope of a
criminal statute by interpreting its terms, see Bousley
v. United States, 523 U.S. 614, 620-621, 118 S.Ct.
1604, 140 L.Ed.2d 828 (1998), as well as constitutional
determinations that place particular conduct or persons
covered by the statute beyond the State's power to
punish, see Saffle v. Parks, 494 U.S. 484, 494-495, 110
S.Ct. 1257, 108 L.Ed.2d 415 (1990); Teague v. Lane, 489
U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)
(plurality opinion). Such rules apply retroactively
because they “necessarily carry a significant risk that
a defendant stands convicted of ‘an act that the law
does not make criminal’ ” or faces a punishment that
the law cannot impose upon him. Bousley, supra, at 620,
118 S.Ct. 1604 (quoting Davis v. United States, 417
U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)).
Schriro, 542 U.S. at 351-52 (emphasis added) (footnote omitted).7
While the construction of § 921.141 is a question of state
law, how and to whom a state’s substantive criminal law defining
a criminal offense is applied must comport with the Due Process
Clause of the Fourteenth Amendment under Fiore v. White, 531 U.S.
225 (2001), and In re Winship, 397 U.S. 358 (1970). See Bunkley
v. Florida, 538 U.S. 835 (2003). A judicial decision construing
substantive criminal law or identifying the elements of a
criminal offense is substantive law. It is not a procedural rule.
7
Jimenez’s claim is NOT a Sixth Amendment claim under Hurst
v. Florida, 136 S.Ct. 616 (2016). His claim arises from the
statutory construction of § 921.141, Fla. Stat., set forth in
Hurst v. State which identified the elements of capital murder,
the degree of murder higher than first degree murder. A
conviction of capital murder is necessary for range of punishment
to increase to give the judge at sentencing the discretion to
impose a death sentence. The circumstances in Florida are those
that Schriro v. Summerlin noted would not be governed by Teague
v. Lane.
20
The analyses used to determine when a new procedural rule is to
be applied retroactively do not apply to the issues Petitioner
raises. Bousley v. United States, 523 U.S. 614, 620 (1998)
(“[B]ecause Teague[v. Lane, 489 U.S. 288 (1989)] by its terms
applies only to procedural rules, we think it is inapplicable to
the situation in which this Court decides the meaning of a
criminal statute enacted by Congress.”).
In Fiore v. White, 531 U.S. 225, 226 (2001), this Court
addressed the import of the Due Process Clause in the context the
substantive law defining a criminal offense:
We granted certiorari in part to decide when, or
whether, the Federal Due Process Clause requires a
State to apply a new interpretation of a state criminal
statute retroactively to cases on collateral review.
See Bunkley v. Florida, 538 U.S. 835, 841-42 (2003) (“The proper
question under Fiore is not just whether the law changed. Rather,
it is when the law changed. The Florida Supreme Court has not
answered this question; instead, it appeared to assume that
merely labeling L.B. as the ‘culmination’ in the common
pocketknife exception’s ‘century-long evolutionary process’ was
sufficient to resolve the Fiore question. 833 So.2d, at 745. It
is not. Without further clarification from the Florida Supreme
Court as to the content of the common pocketknife exception in
1989, we cannot know whether L.B. correctly stated the common
pocketknife exception at the time he was convicted.”). In Card v.
Jones, 219 So. 3d 47 (2017), Johnson v. State, 205 So. 3d 1285
(Fla. 2016), death sentences were vacated and the cases remanded
for new penalty phase proceedings at which the juries will be
21
called upon to determine whether Jim Card and Paul Johnson are
guilty of capital murder for homicides committed in 1981. Thus,
the substantive law set forth in Hurst v. State will be the
governing substantive criminal law for homicides committed in
1981. The Due Process Clause requires the statutory construction
announced in Hurst v. State to govern as to the homicide
occurring in 1992 for which Jimenez was convicted of first degree
murder. Since he was not and has not been convicted of capital
murder, Jimenez’s death sentence stands in violation of the Due
Process Clause and the Eighth Amendment. Under the statutory
construction set forth in Hurst v. State, the only sentence that
can be imposed upon a defendant convicted of just first degree
murder (not capital murder) is life imprisonment.
At the time of Jimenez’s first habeas petition, the Fiore
claim was not ripe; it did not exist. Under Panetti v.
Quarterman, the district court has jurisdiction to hear Jimenez’s
Fiore claim because it is not a “second or successive” habeas
application. It is merely a “second in time” habeas application.
See Boyd v. United States, 754 F.3d at 1301;
In re Jones, 652
F.3d at 605; United States v. Obeid, 707 F.3d at 902-03.
In Bunkley v. Florida, 538 U.S. 835 (2003), this Court
reversed the Florida Supreme Court’s decision in Bunkley v.
State, 833 So. 2d 739 (Fla. 2002). At issue in Bunkley v. State
was whether he was entitled to relief from his conviction of
armed burglary as a result of the Florida Supreme Court’s
decision in L.B. v. State, 700 So. 2d 370 (Fla. 1997), which
construed the statutory provision defining what constituted a
22
“weapon,” the possession of which was a necessary element of
armed burglary. The statute provided that a common pocketknife
was not a weapon for purposes of the criminal offense of armed
burglary. In L.B, the Florida Supreme Court ruled that a knife
with a blade of four inches or less was a common pocketknife
under the statute, and thus not a weapon for purposes of armed
burglary.
Bunkley v. State used the retroactivity analysis set forth
in Witt v. State to concluded that the decision in L.B., a case
of statutory construction, was not retroactive and Bunkley could
rely upon the decision since his convicction was final before
L.B. was decided.
This Court vacated the decision in Bunkley v. State saying:
“Fiore controls the result here. As Justice Pariente stated in
dissent, ‘application of the due process principles of Fiore’ may
render a retroactivity analysis ‘unnecessary.’ 833 So.2d, at 747.
The question here is not just one of retroactivity.” Bunkley v.
Florida, 538 U.S. at 840. The Court elaborated:
Although the Florida Supreme Court has determined that
the L.B. decision was merely an “evolutionary
refinement” in the meaning of the “common pocketknife”
exception, it has not answered whether the law in 1989
defined Bunkley's 2 ½- to 3-inch pocketknife as a
“weapon” under § 790.001(13). Although the L.B.
decision might have “culminat[ed] ... [the]
century-long evolutionary process,” the question
remains about what § 790.001(13) meant in 1989. 833
So.2d, at 745. If Bunkley's pocketknife fit within the
“common pocketknife” exception to § 790.001(13) in
1989, then Bunkley was convicted of a crime for which
he cannot be guilty-burglary in the first degree.
Bunkley v. Florida, 538 U.S. at 840-41.
23
The Florida Supreme Court’s use of the Witt analysis to
decide that the statutory construction of § 921.141 set forth in
Hurst v. State without consideration of Fiore v. White and the
Due Process Clause implications is contrary to well-established
law, i.e. Bunkley v. Florida.
As explained in Bunkley, the question is when did Florida’s
substantive criminal law make it necessary for a fact finder to
find that the statutorily identified facts set forth in § 921.141
had been established before a death sentence could be imposed.
In Hurst v. State, the Florida Supreme Court indicated that
this fact finding had been a longstanding requirement:
However, the imposition of a death sentence in Florida
has in the past required, and continues to require,
additional factfinding that now must be conducted by
the jury. As the Supreme Court long ago recognized in
Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112
L.Ed.2d 812 (1991), under Florida law, “The death
penalty may be imposed only where sufficient
aggravating circumstances exist that outweigh
mitigating circumstances.” Id. at 313, 111 S.Ct. 731
(emphasis added) (quoting § 921.141(3), Fla. Stat.
(1985)).
Hurst v. State, 202 So. 3d at 53. The citation of Parker v.
Dugger is particularly pertinent given that the decision issued
in 1991, a year before the homicide at issue in Jimenez’s case.
CONCLUSION
Based on the foregoing, Petitioner submits that certiorari
review is warranted to review the decision of the Eleventh
Circuit Court of Appeals in this cause.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing petition
has been furnished by electronic service to Lisa Marie Lerner,
24
Assistant Attorney General, Office of the Attorney General, 1515
N. Flagler Drive, Suite 900, West Palm Beach, FL 33401, on
December 13, 2018.
/s/. Martin J. McClain
MARTIN J. MCCLAIN
Fla. Bar. No. 0754773
LINDA MCDERMOTT
Fla. Bar No. 0102857
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, Florida 33334
Telephone: (305) 984-8344
COUNSEL FOR MR. JIMENEZ
25
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.