Opposition Brief — Gerald Delane Murray, Petitioner v. Florida

NO. 18-8546

IN THE SUPREME COURT OF THE UNITED STATES

GERALD DELANEY MURRAY,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Jennifer A. Donahue

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

Capital Case

Question Presented

Whether this Court should grant certiorari where Petitioner’s state

post-conviction claims of newly discovered evidence and ineffective

assistance of counsel were properly adjudicated by the Florida

Supreme Court and petitioner does not present an important or

unsettled question of law worthy of this Court’s certiorari review.

Table of Contents

Question Presented ............:.ccccccccececceecceececeesesssenccecececeeceeeeseeeseceensauaceaseeeeeeeateeseseseanences i

Table of Content ............ccccssesnseccceccceccceccesceeeceesssscensceesceeseeeeeeenssesssencaeneaeeaeeeseseeseenseeees i

Table of Citations ..............ccccccsssssseneeceeeeeeeeseeeeeeesseneneeeeeeseeeeceeeseeneceeseseessenseeesessenaeeesenes iv

Opinion Below ...............ccccccccccseeecececeusesesssceesseseesscececeeeeeteceeeeeeseeeceseceneueneasucenoneoeaenesseaes 1

JSUTISGICEION «00.0.0... cc ccccccececceceesessanecnnecanecanceneceseesersuecscsnansenseeseeeeeersnenetteceseneeeeeseeeeettentenseses 1

Statement of the Case and Facts.............:ccccccssseceeecessnenceeeeeesnneeesensdecceceeresessnecenertensenees 2

Reasons for Denying the Writ..............c.ccsesseececceeceececsssscceececsseneesseceueceussssececeaaeensesseeeeess 5

Issue I: There is No Basis for Certiorari Review Regarding the

Sufficiency of Post-Conviction Counsel’s Representation ..............::ccccccceeeeees 5

Issue II: There is No Basis for Certiorari Review of Ineffective

Assistance of Counsel for Failure to Raise Batson Where Petitioner

Failed to Demonstrate Both Deficiency and Prejudice as Required by

SEVICKIAIA .....ccccccccccssscccscncccscccucccccsccesecsceescceucccesccassceusssecavccseucccssecssnceavccees

Issue III: There is No Basis for Certiorari Review Where Petitioner’s

Ineffective Assistance of Trial Counsel Claims Were Denied Because

Petitioner Failed to Demonstrate Both Deficiency and Prejudice as

Required by Strickland and Newly Discovered Evidence Claims Were

Properly Denied Under State Law and Resolution of These Fact

Specific Claims Does Not Implicate an Important or Unsettled

Question of Law or Conflict Among Courts...................:.:seseseeecseeeeeeeeeeeeeeeees

Newly Discovered Evidence Regarding Anthony Smith Was

Properly Demieg ..............ccccceccssssnseccecccecceceeesssensnnsacnacececececeeeeaeeseeeaeees

Newly Discovered Evidence Regarding James Dixon Was

Properly Denied ..............ccescecsessssecceeceeceeseeeseusnsssaceeseceseeseceeeeeeeseeerensenee

Trial Counsel Was Not Ineffective for Failing to Retain a

MicrosCopist..............:ccsssseseececcccccecsesseeseeececcsssseeceececeeeaseeseeeeesasceeesees eee

.. 10

Counsel Was Not Ineffective Because He Repeatedly Objected to

the Chain of Custody ................cccccccccccccessececnecseceeseenceccensceeeasssssssseaseeeeees 23

Counsel Was Not Ineffective Because He Objected to the

Testimony of John Wilson .................ccscceseessssscececeesceesscnscssnnnsnccecececeeeeees 25

27

Conclusion ..........ccscccceccsccceccotceeccceccccnecceccetecessececcecceccucceccecccsccsccsscsceerecsecescsecsseaneauceuasas

Table of Citations

Cases

Apodaca v. Oregon, 406 U.S. 404 (1972) ...ccccccecccscccessscscecescseecececscecesecersaresecsneverss 9

Armstrong v. State, 642 So. 2d 730 (Fla. 1994) oo... csccesscccsssessessccssscsersesscessscceesecess 18

Bartlett v. Stephenson, 585 U.S. 1801 (2002).....0....ccccecceececceecesccceccecsccecesseceesnceneners 15

Davis v. Ayala, 135 S.Ct. 2187 (2015) ......cceccsssssssccssessssscssssesscescsscescesesecsessecseeseaeeeeeee 10

Davis v. State, 26 So. 3d 519 (Fla. 2009) ...........cccesccsececesccececcecesccecseceesssesecacscecececeaes 17

Foster v. Chatman, 186 S.Ct. 1737 (2016) .0.......cccccsssceccesecesscceccecscccssscsecensceseceeeceess 11

Gordon v. State, 75 So. 83d 200 (Fla. 2011) ........ccccccccccscesccsscessecccseccenccsesceserseescseceseees 8

Harrington v. Richter, 562 U.S. 86 (2011) ........eccsssssessssessesessssscenscseesesssecsesesseecsceceeees 22

Herrera v. Collins, 506 U.S. 890 (1998) .......c.cccccccsscessesssececeesceccersceceesaceecesesesceceseeees 20

Hurst v. State, 202 So. 3d 40 (Fla. 2016) «0.0... e.ecsseesessesecseneeeesteeesecesececeesaesecesaeeeeees 5, 9

Jimenez v. State, 997 So. 2d 1056 (Fla. 2008) ..........cccccccccceccccsssccsscccesecsccecsecesseeceeece 17

Johnson v. California, 545 U.S. 162 (2008)............ sesueseeueseeseaceusaeeneaeseaeeaeeneaneneeseaeeetes 10

Knight v. State, 211 So. 3d 1 (Pla. 2016)..........ccccccccseeseessessesseseessscsscsscsecscsscssessseseeees 8

Lambrix v. State, 39 So. 3d 260 (Fla. 2010)............ccccccseccceccccccsecececccececesseeeseseseeeesanss 18

Martinez v. Court of Appeal of Cal, 528 U.S. 152 (2000) .0......eseeeeecccscecceececceeeceeesees 8

Michel v. Louisiana, 350 U.S. 91 (1955)......ccccccssccssecccscccccssccsssscecccecesstecssccesseseanceeceess 16

Miller-El v. Cockrell, 587 U.S. 822 (2008) ........cccccccccssecsssssscesseseeceeeseceeseseneeseeeeeene 13, 14

Murray v. Florida, 558 U.S. 949 (2009)............cccceecccesceccceccseceecseecececesesesceessecesssseesacens 1

Murray v. Giarratano, 492 U.S. 1 (1989) occ. isccsccsccssssesssssecceescoceccstececsseecseresseeeeesenees 8

Murray v. State, 20 So. 3d 849 (Fla. 2009) .0.......cccccccssesessscsesescsesscsesecsseseesesesseeesenecaens 7

Murray v. State, 3 So. 3d 1108 (Fla. 2009) 0.0... cece cecseesesseccceseseneeeseceseresseeeseees passim

Murray v. State, 838 So. 2d 1073 (Fla. 2002) ......ccccccscssecsssscscceserseecceccecessceseceetecaes 25

Pennsylvania v. Finley, 481 U.S. 551 (1987) ..........cecccseccccccecsececcevecccesecsecesesscecesaers 8

Powers v. Ohio, 499 U.S. 400 (1991) o......sesessesesseseeseceeseeseseeseeseeseneesesescsessesseesteaeseaees 10

iv

Spann v. State, 91 So. 3d 812 (Fla. 2012) .......ccccccccscssccsssscssecssseesssssesssscsssceesseessseaneens 18

State v. Murray, 262 So. 3d 26 (Fla. 2018) ......ccccccccceccscsscssscessesssecsseecsesessseseee passim

State v. Spaziano, 692 So. 2d 174 (Fla. 1997) ......ccccccsccsccsssssssesssssssessestessessensenseess 18

Strickland v. Washington, 466 U.S. 668 (1984) ........cccecsscccssesssessctsesesesseees 15, 16, 26

Taylor v. State, 260 So. 3d 151 (Fla. 2018) wo... cece ccscscceseeesssseessesssceseesseesesesneees 21

Tompkins v. State, 994 So. 2d 1072 (Fla. 2008) ........c.cccccssssccsscscessessesceseseevsssneecsesess 16

United States v. Johnston, 268 U.S. 220 (1925) .........ccccsccscccssccssesscesecessessesssesssceeeens 15

United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) .........ccecccccecccccscccessccessecseeceres 23

Other Authorities

2B U.S.C. § 2B ceccseccccsssssesccssssscsssssssssssesssssuvecsssssuscssssucesssssssvessessuesscsessssecesssssuessensseecees 1

Pla. R. Crim, P. 8.8510... ccccccssssssenseeesennenceaecenecaeeeeseesesennsceaaaesseeseeseaseeeseneesesseaees 17

Sup. Ct. BR. 10... ccccccccscecessneeseeeeceeeecesseccesscassseseeeeeeeceseeeesceescecceseeesesaeeneessneesessesseess 2

IN THE SUPREME COURT OF THE UNITED STATES

NO. 18-8546

GERALD DELANEY MURRAY,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

Opinion Below

This appeal arises from the Florida Supreme Court’s denial of Petitioner’s

post-conviction motion and state habeas petition, which appears as State v. Murray,

262 So. 3d 26 (Fla. 2018). The Florida Supreme Court’s direct appeal decision

appears as Murray v. State, 3 So. 3d 1108 (Fla. 2009), cert. denied, Murray v.

Florida, 558 U.S. 949 (2009).

Jurisdiction

This Court’s jurisdiction to review the final judgment of the Florida Supreme

Court is authorized by 28 U.S.C. § 1257. However, this Court should decline to

exercise jurisdiction in this case because the Florida Supreme Court’s decision does

not implicate an important or unsettled question of federal law, does not conflict

with another state court of last resort or a court of appeal of the United States, and

does not conflict with relevant decisions of this Court. Sup. Ct. R. 10. No

compelling reasons exist in this case and this Petition for a writ of certiorari should

be denied. Sup. Ct. R. 10.

Statement of the Case and Facts

Petitioner was tried, convicted, and sentenced to death for the 1990 murder

of Alice Vest. Murray, 3 So. 3d at 1112.

The evidence presented at the fourth trial revealed that on September

15, 1990, the victim, Alice Vest, arrived home around 11:30 p.m. after

having dinner with a friend. When her friend called the next morning

on September 16, however, Ms. Vest did not answer the phone.

Concerned, the friend called one of Ms. Vest's neighbors and asked him

to check on her. The neighbor went to Ms. Vest's home and observed

that one of her window screens was out of the window and that her

screen door was propped open. Her phone lines had been cut. After

telling his wife to call 911, the neighbor and another man looked inside

the home and discovered Ms. Vest's body draped off of her bed with her

head on the floor.

According to the medical examiner's testimony, the cause of death was

strangulation with multiple stab wounds as a contributing factor. Ms.

Vest was also badly beaten with a metal bar, a candlestick holder, and

a broken bottle that left bruising around her neck, breasts, and knees.

She also had a black eye, a broken jaw, multiple contusions, and at

least twenty-four stab wounds over her face, neck, upper and lower

back, abdomen and thigh. Most of the stab wounds were knife wounds,

but some were consistent with infliction by a pair of scissors found

near her body. Ms. Vest had been strangled with a web belt and two

electrical cords. She was also both vaginally and anally raped.

7d. at 1112-13. Murray was found guilty of first-degree murder, burglary of a

dwelling with assault, and sexual battery and the jury recommended death by a

vote of eleven-to-one. /d. at 1112.

At sentencing, Murray instructed his trial counsel not to introduce any

mitigation evidence. Murray, 3 So. 3d at 1114. The trial court

found four aggravating factors: (1) Murray was previously convicted of

three felonies involving violence (great weight); (2) he was engaged in

a burglary and/or sexual battery at the time of the commission of the

murder (immense weight); (3) the crime was committed for financial

gain (some weight); and (4) the crime was especially heinous, atrocious

and cruel (great weight). The trial court rejected two statutory

mitigating circumstances: (1) the crime was committed by another

person, and Murray's participation was relatively minor; and (2)

Murray's capacity to appreciate the criminality of his conduct was

substantially impaired. However, the trial court found the following

nonstatutory mitigating circumstances: (1) the untimely death of

Murray's wife (very little weight); (2) Murray was incapable of forming

relationships with people (very slight weight); (3) he had problems as a

youth (little weight); (4) his lack of education and little contact with his

father (slight weight); and (5) his mental evaluation after his arrest for

aggravated assault (little weight).

Id.

On direct appeal, Murray raised the following 11 claims:

(A) the trial court erred by admitting hair evidence recovered from the

victim's body; (B) the trial court erred by admitting hair evidence

recovered from the victim's nightgown; (C) the trial court erred by

admitting the testimony of a hair and fiber expert and limiting

Murray's cross-examination of him; (D) the trial court erred by denying

Murray's motion to dismiss his indictment; (E) the trial court erred by

denying Murray's right to interview grand jury witnesses; (F) the trial

court erred in allowing the State to strike an African-American juror

without providing a legitimate race-neutral reason; (G) the trial court

erred by denying Murray's motion for a mistrial due to juror

misconduct; (H) the trial court erred in not giving the jury further

instruction regarding the meaning of “abiding conviction of guilt” when

requested; (I) the trial court erred in allowing former trial testimony to

be read to the jury; (J) the trial court erred in not dismissing his case

because of double jeopardy: and (K) there was insufficient evidence to

convict Murray of the offenses charged. None of these claims warrant

relief.

Murray, 3 So. 3d at 1112, 1114. The Florida Supreme Court denied the claims and

affirmed Murray’s convictions and sentence of death. /d. at 1126. Additionally, the

Florida Supreme Court in reviewing sufficiency of the evidence found that the

following evidence presented at trial is consistent with Murray's guilt:

(1) the testimony of a jailhouse informant (Smith) detailing Murray's

confession; (2) the evidence collected from the scene and the testimony

of the medical examiner which, together, confirmed the details of the

crime as Murray related them to Smith; (3) the testimony of several

witnesses who placed Murray with ‘Taylor in the vicinity of the crime

near the time the crime was committed; (4) testimony describing the

presence of two different shoe prints as well as multiple weapons,

implying that more than one person committed this crime; (5) the

implication of consciousness of guilt since Murray left town the next

day and later escaped from incarceration; (6) evidence connecting

Murray and Taylor to Ms. Vest's stolen jewelry; (7) the incriminating

statements Murray made to Detective O'Steen; and (8) the presence of

pubic hair recovered from Ms. Vest's body and nightgown which was

found to have the same microscopic characteristics as Murray's known

pubic hair.

Jd. at 1125.

Murray filed a post-conviction motion that was amended four times and had

two evidentiary hearings. Murray, 262 So. 3d at 35. During post-conviction, DNA

testing was performed on previously untested hair samples. (1 SPCR at 2621,

2640). The State’s expert identified one hair which matched Murray’s DNA at 1 in

700 billion. (1 SPCR at 2658-66, 2677). The post-conviction court granted Hurst v.

State relief and ordered a new penalty phase but denied all other claims. /d.

The State appealed the grant of Hurst v. State relief. Murray, 262 So. 3d at

35. Murray cross-appealed raising the following claims: 1) newly discovered

evidence: regarding State witness Anthony Smith, 2) ineffective assistance of

counsel for failing to call a defense expert microscopist, 3) newly discovered

evidence regarding State witness Joseph DiZinno, 4) ineffective assistance of

counsel for failing to object to hearsay testimony, 5) ineffective assistance of counsel

for failing to call a defense shoe print expert, 6) that the post-conviction court erred

in not holding an evidentiary hearing on eight other claims, and 7) newly discovered

evidence regarding an alternative perpetrator. Jd. at 35-43. Murray also filed a

state habeas petition raising ineffective assistance of appellate counsel for failing to

raise claims related to 1) the burglary jury instruction, 2) the for cause challenge of

Juror Vaccaro, 3) for representing Murray both at trial and on direct appeal, 4)

State witness John Wilson’s testimony regarding chain of custody, 5) State witness

DiZinno’s testimony regarding preparation of hair sample slides, and 6)

prosecutorial misconduct based on inconsistent testimony of State witnesses. Jd. at

43-46. The Florida Supreme Court affirmed the circuit court’s grant of Hurst v.

State relief and denial of all other claims. /d. at 46; Hurst v. State, 202 So. 3d 40

(Fla. 2016).

Reasons for Denying the Writ

Issue I: There is No Basis for Certiorari Review Regarding the Sufficiency of

Post-Conviction Counsel’s Representation

Petitioner seeks certiorari review of the Florida Supreme Court’s summary

denial of Petitioner’s numerous pro se pleadings, primarily requesting appointment

of new post-conviction counsel, while Petitioner was currently represented by court-

appointed post-conviction counsel. Since there is no federal constitutional right to

counsel during state post-conviction proceedings and no right to court-appointed

counsel of choice, there is no federal basis of relief for Petitioner. Thus, certiorari

review should be denied.

As a preliminary matter, Petitioner is currently pending re-sentencing

pursuant to Hurst v. State. Petitioner’s conviction is not final because there is no

sentence and Petitioner has yet to undergo federal habeas review of these issues.

Because of this procedural posture, this Court should not grant certiorari review.

On May 8, 2017, Murray filed a pro se motion, which was supplemented

three times, in the Florida Supreme Court requesting “conflict” counsel.! The

Florida Supreme Court ordered both the State and court-appointed post-conviction

defense counsel to respond. After receiving Murray’s two replies to State and

defense counsel’s responses, the Court denied Murray’s request for substitution of

post-conviction counsel noting that a conflict of interest does not arise due to

defendant's disagreement with counsel’s strategy and noting that there is no

constitutional right to court-appointed counsel of choice. Thereafter, Murray filed

12 additional pro se pleadings during the pendency of the appeal, many of which

demonstrated a desire to re-litigate the denial of substitution of post-conviction

counsel. On December 20, 2018, the Florida Supreme Court issued its opinion in

this case and issued an order denying the 12 pending pro se motions.

1 Pleadings related to this case can be found on the online docket for the Florida

Supreme Court here:

http://onlinedocketssc.flcourts.org/DocketResults/CaseDocket?Searchtype=Case+Nu

mber&Case Year=2017&CaseNumber=707

Murray has complained about current and former post-conviction counsel

over the entire course of his post-conviction proceedings. Starting in 2009 with his

first court-appointed post-conviction counsel, Murray filed “Emergency” Pro-Se

Motion for Appointment of Competent/Conflict Free Counsel for Post Conviction.

(PCR at 2852-55). Therein, Petitioner alleged that his counsel took too long to visit

him, did not know the law, complained that the case was a “burden” on the law

firm, refused to hire an investigator, had a conflict of interest because of his

friendship with the assistant state attorney, and that Petitioner and his counsel

had “irreconcilable differences” which precluded them working together during postconviction. (PCR at 2852-55). Murray attempted to appeal the denial of his

request, but his appeal was denied. Murray v. State, 20 So. 3d 849 (Fla. 2009).

Murray continued to file pro se requests for new counsel and the trial court

eventually appointed new counsel in February 2010, stating “it is apparent that the

relationship between the defendant and his counsel has deteriorated to the point

that it would be impossible for Mr. Anderson to communicate with his client and

pursue defendant’s postconviction claims.” (PCR at 3120). In addition to filing

numerous pro se motions to have his post-conviction counsel removed, Murray also

filed numerous other pro se motions, such as one to disqualify all of the judges in

the circuit in which his post-conviction proceedings were taking place.

Despite being appointed new counsel, Murray continued to file pro se motions

requesting “conflict free counsel” as Murray was unsatisfied with his new counsel as

well. In a 2016, the trial judge filed an order denying one such request for new

counsel. In the order, the trial judge remarked that “Defendant’s repeated baseless

requests for conflict-free counsel are an abusive attempt to delay the proceedings -

exactly what Defendant is accusing counsel and the State of doing. Defendant’s

actions are frustrating these proceedings and wasting judicial resources.” (PCR at

13427). A footnote in the order noted that “Since 2011, Defendant has filed at least

eleven requests (motions and letters) for conflict-free counsel.” (PCR at 13427).

There is no federal constitutional right to counsel for indigent prisoners,

including in capital cases, seeking state post-conviction relief. Murray v.

Giarratano, 492 U.S. 1, 7-8, 10 (1989) (citing Pennsylvania v. Finley, 481 U.S. 551

(1987)). Additionally, there is no federal constitutional right of self-representation

on appeal. Martinez v. Court of Appeal of Cal., 528 U.S. 152, 160-61 (2000). There

is also no state based right to self-representation on appeal. Gordon v. State, 75 So.

3d 200, 202 (Fla. 2011) (concluding “that death-sentenced appellants do not have a

federal or state constitutional right to proceed pro se in appeals from postconviction

proceedings”). There is also no entitlement to court appointed counsel of choice and

new counsel is only appointed upon showing of adequate grounds. Knight v. State,

211 So. 3d 1, 16-17 (Fla. 2016). :

Murray’s claim is also without merit. Murray’s post-conviction counsel

zealously represented him throughout the proceedings and raised appropriate

claims in post-conviction. Though Murray argues that he was “denied the ability to

present multiple Brady/Giglio violations and ineffective trial counsel issues because

counsel was attempting to sabotage Petitioner’s case and conceal the State’s

misconduct in his case,” the record directly refutes these accusations. (Pet. at 8);

Murray, 262 So. 3d at 35-37, 41 (claims regarding Anthony Smith were fully

litigated at two evidentiary hearings and on appeal, as well as numerous other

Brady/Giglio claims). Regarding Murray’s claim that “defendant’s own witnesses”

undermined claims, the trial court was remarking on the excessive number of

claims that lacked evidence, claims which Murray now argues he was unable to

raise, but that were in fact raised and found to be so baseless that they border “on

an abuse of process and waste of judicial resources.” (Pet. at 8). The trial court is

primarily referring to the testimony at the evidentiary hearing of defense expert

Jason Beckert, who testified that errors noted in a Department of Justice review of

the case should not have been considered errors. Jd. at 39.

Additionally, Murray is being re-sentenced in accordance with Hurst v. State

since he received a non-unanimous jury recommendation in the prior proceedings.

Murray, 262 So. 3d at 35; Hurst v. State, 202 So. 3d at 58. This is State based relief

that would not have been granted to Murray under federal law as Hurst v. Florida

is not retroactive to Murray under federal law and does not require jury unanimity.

Hurst v. Florida, 136 S.Ct. 616 (2016); Lambrix v. Sex’y, Dep’t of Corr., 872 F.3d

1170, 1182 (11th Cir. 2017) (“No U.S. Supreme Court decision holds that its Hurst

decision is retroactively applicable.”); Apodaca v. Oregon, 406 U.S. 404 (1972).

Because there is no federal constitutional right to counsel during state postconviction proceedings, Petitioner cannot claim imeffective assistance of post-

conviction counsel. Certiorari review should be denied.

Issue IT: There is No Basis for Certiorari Review of Ineffective Assistance of

Counsel for Failure to Raise Batson Where Petitioner Failed to

Demonstrate Both Deficiency and Prejudice as Required by

Strickland

Petitioner seeks certiorari review of the Florida Supreme Court’s denial of

various ineffective assistance of trial counsel claim for failing to request a Batson

inquiry or object to the court’s abbreviated Batson inquiry for multiple jurors.

Batson v. Kentucky, 476 U.S. 79 (1986). However, trial counsel did request a

Batson inquiry and the prosecutor provided race-neutral reasons for the peremptory

strikes. Since trial counsel did ask for a race-neutral reason for the strikes, the

prosecution provided race-neutral explanations, and the Court found that the

challenge was made on a race-neutral basis, Murray cannot demonstrate either

deficient performance or prejudice as required by Strickland. Thus, certiorari

should be denied.

Certainly, a defendant may object to the exclusion of a juror if the exclusion

is solely based on the juror’s race, even when the defendant and the excluded juror

do not share the same race. Powers v. Ohio, 499 U.S. 400, 402 (1991). However,

Murray, as a white male, is not the typical defendant to raise a Batson challenge for

the exclusion of black and Asian jurors. See Johnson v. California, 545 U.S. 162,

164 (2005) (3 of 12 peremptory challenges were used to strike all three black

prospective jurors resulting in an all white jury for a black defendant); Davis v.

Ayala, 135 S.Ct. 2187, 2193-94 (2015) (prosecution used seven peremptory

challenges to strike all of the black and hispanic jurors in a trial for a hispanic

10

defendant); Foster v. Chatman, 136 S.Ct. 1737, 1743 (2016) (prosecution used

peremptory challenges on strike the remaining four black prospective jurors in the

trial for a black defendant).

Batson requires that if a defendant makes a prima facie showing that a

peremptory challenge has been exercised on the basis of race, the prosecution must

offer a race-neutral basis for striking the juror and the court must determine

whether the defendant has demonstrated purposeful discrimination. Batson, 476

U.S. at 96-98. Based on the face of Murray’s trial record, his trial defense counsel

was not deficient for failing to raise Batson challenges because he did, in fact, raise

Batson. Nor was counsel deficient in failing to object to the Batson inquiry being

abbreviated because the inquiry by the trial court was held in accordance with

Batson. The prosecution provided race-neutral reasons for the challenge of two

black and one Asian potential jurors. The judge found these race-neutral reasons to

be persuasive, and even re-evaluated the challenges at the conclusion of the

prosecution’s peremptory strikes.

After the State raised the first peremptory challenge, on Dr. McIntosh, trial

defense counsel requested a race-neutral reason for the challenge, noting that in the

original panel of potential jurors, “there were only 17 black jurors out of 70” and

remarked that “the state now has struck two Oriental jurors and now striking Dr.

McIntosh who is also — not only a minority but also in a wheelchair... .” (Trial

Record (TR) at 325-26). The trial judge noted that the earlier challenges were for

cause and the potential jurors were excused based on the cause that was

11

articulated. (TR at 326). The trial judge then asked the prosecution for a raceneutral reason. (TR at 326). The prosecutor explained that since the State would

be calling scientific witnesses, he was concerned that Dr. McIntosh would substitute

his own expertise for that of the experts who testified. (TR at 327). The prosecutor

also noted that Dr. McIntosh had been arrested before and may have some

animosity toward police officers. (TR at 327). The court found that these were

“logical and rational reasons to excuse the doctor” that were race-neutral, but that

he might “revisit” his decision later depending on any other challenges by the

prosecution. (TR at 328).

The State’s second peremptory challenge was of Ms. Ocampo. (TR at 328).

The defense requested a race-neutral reason for the challenge as “Ms. Ocampo also

is Oriental.” (TR at 329). The prosecutor’s stated reason for the strike was that Ms.

Ocampo indicated that she was “morally opposed to the death penalty.” (TR at

329). Ms. Ocampo stated earlier in the voir dire that she was “born and raised

Catholic and I know we have this law” but that she has “some deep morals inside”

her. (TR at 121). The court accepted the challenge on Ms. Ocampo. (TR at 329).

The State’s ninth peremptory challenge was of Mr. Jones and the court sua

sponte requested a race-neutral reason. (TR at 333). The State had a note that

Mr. Jones stated “it depends” when asked if he was for or against the death penalty.

(TR at 333). When asked how he felt about the death penalty, Mr. Jones answered

“the way I feel about it whether he or she guilty or not guilty I don’t have anything

against it whether he or she guilty or not guilty.” (TR at 137). Later, Mr. Jones

12

stated that he agreed with the death penalty but could not give a number from one

to five indicating the strength of support for the death penalty. (TR at 280, 283).

The court “tentatively” allowed the strike, noting that “Ms. Hobbs is a black female

and Mr. Ramsey is a black male and you haven’t moved to strike them” so he did

not “believe there is a racial pattern.” (TR at 334). On direct appeal, the Florida

Supreme Court denied a claim of reversible error for allowing the prosecution to

strike Mr. Jones without providing a legitimate race-neutral reason. Murray, 3 So.

3d at 1119-21.

At the conclusion of the peremptory challenges, defense counsel asked the

court to “revisit the issue” of Mr. Jones. (TR at 336). The judge reiterated that

since the State had not moved to strike Ms. Hobbs and Mr. Ramsey, the strike of

Mr. Jones still appeared to be for race-neutral reasons. (TR at 336).

In addition to failing to prove deficient performance, Murray also cannot

demonstrate prejudice because there is no evidence of systematic exclusion of black

jurors in this case.

In Miller-Ei, this Court concluded that a certificate of appealability should

have been granted after the district court denied the petitioner's claim regarding

Batson merely by accepting “without question the state court’s evaluation of the

demeanor of the prosecutors and jurors.” Miller-El v. Cockrell, 537 U.S. 322, 341

(2003). Of a pool of 108 jurors, only 20 were black and 9 were excused for cause or

by agreement of the parties. /d. at 331. All but 1 of the remaining 11 black jurors

were excluded by peremptory strikes exercised by the prosecutors, eliminating 91%

13

of eligible black jurors in contrast to 18% of the eligible non-black jurors. Jd.

Additionally, the “manner in which members of the venier were questioned varied

by race.” Jd. at 332.

Unlike Miller-El, in Murray’s case, 17/70 potential jurors were black, only

two of the State’s ten peremptory strikes were used on black individuals, and two

black individuals sat on the actual jury in this case. There is no evidence of

systematic exclusion of black jurors in this case. Thus, Murray has failed to

demonstrate that he was prejudiced even if counsel was deficient in objecting on

Batson grounds.

Trial counsel was not deficient in failing to raise Batson challenges because

he did, in fact, raise the challenges. Additionally, even if counsel was deficient,

Murray was not prejudiced as there is no evidence of systematic exclusion of black

individuals from the jury in this case. Certiorari should be denied.

14

Issue III: There is No Basis for Certiorari Review Where Petitioner's

Ineffective Assistance of Trial Counsel Claims Were Denied Because

Petitioner Failed to Demonstrate Both Deficiency and Prejudice as

Required by Strickland and Newly Discovered Evidence Claims Were

Properly Denied Under State Law and Resolution of These Fact

Specific Claims Does Not Implicate an Important or Unsettled

Question of Law or Conflict Among Courts

Petitioner seeks certiorari review of the Florida Supreme Court’s denial of

various ineffective assistance of trial counsel and newly discovered evidence claims.

However, in adjudicating these claims, the Florida Supreme Court properly applied

Strickland to the claims of ineffective assistance of counsel and state law

requirements to the newly discovered evidence claims. Resolution of these fact

specific claims below does not turn on any unsettled or conflicting interpretation of

constitutional law. See Bartlett v. 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); United States v. Johnston, 268 U.S.

220, 227 (1925) (“We do not grant certiorari to review evidence and discuss specific

facts.”). Since the Florida Supreme Court did not decide an important federal

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

resort or a United States court of appeals, and the opinion does not conflict with

this Court’s relevant decisions, certiorari should be denied.

To establish ineffective assistance of counsel, a defendant must demonstrate

both that his counsel was deficient and that this deficiency prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption

against deficiency and “scrutiny of counsels performance must be highly

15

deferential.” Jd. at 689. In examining deficiency, a defendant must demonstrate

“that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Jd. at 687. Further,

“the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.” Jd. at 689 (quoting

Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight... .” Jd. Additionally, in order to demonstrate prejudice, the defendant

must demonstrate that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

-outcome.” Id. at 694.

In order to obtain relief in light of newly discovered evidence, a defendant

must meet a two-prong State based test that is not in contravention with this

Court’s decisions and does not conflict with the decisions other state courts of last

result or with the decisions of the federal appellate courts. “First, the evidence

must not have been known by the trial court, the party, or counsel at the time of

trial, and it must appear that the defendant or defense counsel could not have

known of it by the use of due diligence.” Yompkins v. State, 994 So. 2d 1072, 1086

(Fla. 2008). The second prong requires that the newly discovered evidence must

weaken the case “so as to give rise to a reasonable doubt as to his culpability” or

“would probably yield a less severe sentence.” Jd. (citations omitted). Further, to

16

-“be considered timely filed as newly discovered evidence, the successive [postconviction] motion [is] required to have been filed within one year of the date upon

which the claim became discoverable through due diligence.” Jimenez v. State, 997

So. 2d 1056, 1064 (Fla. 2008); Fla. R. Crim. P. 3.851.

Newly Discovered Evidence Regarding Anthony Smith Was Properly

Denied

Murray argues that the Florida Supreme Court should have granted him a

new trial based on newly discovered evidence that could be used to impeach the

State’s witness, Anthony Smith. However, because this. additional impeachment

evidence would not “produce an acquittal on retrial,” this claim was properly denied

by the Florida Supreme Court. Murray, 262 So. 3d at 35-37. Since this decision is

not in contravention with federal law, certiorari review should be denied.

Recantation testimony is properly viewed with great suspicion. It

upsets society’s interest in the finality of convictions, is very often

unreliable and given for suspect motives, and most often serves merely

to impeach cumulative evidence rather than to undermine confidence

in the accuracy of the conviction. For these reasons, a witness’

recantation of trial testimony typically will justify a new trial only

where the reviewing judge after analyzing the recantation is satisfied

that it is true and that it will “render probable a different verdict.”

Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 (1984) (citing Brown v. State, 381

So. 2d 690, 692-93 (Fla. 1980)). “[Rlecanted testimony that is alleged to constitute

newly discovered evidence will mandate a new trial only if (1) the court is satisfied

that the recantation is true, and (2) the recanted testimony would probably render a

different outcome in the proceeding.” Davis v. State, 26 So. 3d 519, 526 (Fla. 2009)

17

(citing Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994)). Additionally,

credibility is a critical issue in a newly discovered evidence claim that relies on an

admission of perjury. Spann v. State, 91 So. 3d 812, 816 (Fla. 2012). In these

circumstances, the Florida Supreme Court is “highly deferential to the trial court”

because “the trial judge is there and has a superior vantage point to see and hear

the witnesses presenting the conflicting testimony. The cold record on appeal does

| not give appellate judges that type of perspective.” Jd. (quoting Lambrix v. State,

39 So. 3d 260, 272 (Fla. 2010); State v. Spaziano, 692 So. 2d 174, 178 (Fla. 1997)).

“[Slix months after his indictment for the murder of Alice Vest, Murray

escaped from prison. One of his co-escapees, Anthony Smith, testified that, while

out, Murray told him about his role in Vest’s murder.” Murray, 3 So. 3d at 1118.

Smith’s testimony was consistent at all four of Appellant’s trials. Smith was

impeached during trial with his deal with the State to waive the death penalty in

his first-degree murder case in exchange for his testimony in Murray’s case,

impeached with his eight prior felonies, and Smith admitted seeing information

about Appellant’s case on television. After testifying at Murray’s fourth trial, Smith

filed a post-conviction motion in his case and sent a letter to the prosecutor,

recanting his testimony in an attempt to coerce the State into reducing the sentence

in his case.

At the evidentiary hearing in Murray’s case, Smith admitted that he lied

about the State coercing him to testify against Murray, stating that he was mad

about having to testify against Murray again after the State reminded Smith that

18

he had to testify based on the conditions of his own plea deal. Smith confirmed that

he “didn’t lie” in his trial testimony.

Smith’s testimony was not the only evidence the State presented of

Appellant’s guilt. Murray, 3 So. 3d at 1125. Additionally, the post-conviction court

was convinced that Smith’s recantations were false, as Smith readily admitted at

the evidentiary hearings. The post-conviction court found Smith’s testimony at the

evidentiary hearings was credible, a finding to which this Court owes great

deference as the court was able to personally observe Smith testify at the

evidentiary hearing. Further, Smith’s recantations would not alter the outcome of a

new trial as they would merely be additional impeachment material only. At a fifth

trial, Smith’s testimony would be consistent with the previous four trials. Murray,

262 So. 3d at 36-37.

Because Murray cannot demonstrate that Smith’s recantation is true or that

the additional impeachment evidence would render an acquittal on retrial, denial of

the claim was appropriate and not in contravention with federal law. Thus,

certiorari review should be denied.

Newly Discovered Evidence Regarding James Dixon Was Properly

Denied

Murray argues that the Florida Supreme Court should have granted him a

new trial based on newly discovered evidence that according to James Dixon,

Walton Holton was the actual perpetrator. However, Dixon’s affidavit is “directly

and conclusively refuted” by the record at trial. Murray, 262 So. 3d at 42-43. Since

19

this decision is not in contravention with federal law, certiorari review should be

denied.

Affidavits submitted decades after trial that purport to claim the innocence of

defendants “are not uncommon, especially in capital cases. They are an

unfortunate although understandable occurrence. It seems that, when a prisoner's

life is at stake, he often can find someone new to vouch for him. Experience has

shown, however, that such affidavits are to be treated with a fair degree of

skepticism.” Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor, J., concurring)

(commenting on an “11th hour” affidavit alleging an alternate perpetrator “with no

reasonable explanation for the nearly decade-long delay” which “conveniently blame

a dead man-someone who will neither contest the allegations nor suffer punishment

as a result of them”).

In a successive post-conviction motion, Murray submitted an affidavit from

James Dixon, wherein Dixon claims that Holton confessed to murdering Ms. Vest

and pawning her jewelry. Murray, 262 So. 3d at 42. Dixon claims he waited so long

to come forward because he was afraid of Mr. Holton, who is now dead. However,

Dixon does not state when Mr. Holton died. Mr. Holton could have died more than

25 years ago as this crime took place in 1990. Though Mr. Holton testified in the

co-defendant’s case, he did not testify in Murray’s case because he was undergoing

chemotherapy.

Mr. Dixon’s affidavit does not refute the facts and evidence presented at both

Murray and Taylor’s trials. Murray, 262 So. 3d at 43; Taylor v. State, 260 So. 3d

20

151, 161 (Fla. 2018). Specifically, Dixon’s affidavit does no refute the following:

(1) testimony from Joseph DiZinno, the expert at the FBI, matching

the pubic hair recovered from Ms. Vest's body and nightgown with the

microscopic characteristics as Murray's pubic hair; (2) the testimony of

Smith detailing Murray's confession; (3) evidence connecting Murray

and Taylor to Ms. Vest's jewelry; and (4) incriminating statements

Murray made to Detective O'Steen. The bag of jewelry, including a

sailboat piece that the detective discussed at both Murray and Taylor's

trials, was found buried in a bag at Taylor's former place of residence.

Murray, 262 So. 3d at 42-43.

Thus, Murray cannot show that Mr. Dixon’s affidavit would probably produce

an acquittal on retrial, as required to be considered newly discovered evidence. The

trial record on its face directly refutes the version of events presented by Dixon.

Murray’s claim was properly denied. As this decision was not in contravention with

federal law, certiorari should also be denied.

Trial Counsel Was Not Ineffective for Failing to Retain a

Microscopist

Murray alleges that his trial counsel was deficient in failing to call an expert

microscopist to rebut the testimony of the State hair expert, Dr. Joseph DiZinno.

However, Murray’s trial counsel consulted with an expert microscopist prior to trial,

made a strategic decision not to call the expert as a witness at trial, and used the

information from the consultation to cross-examine the State expert. Murray, 262

So. 3d at 37-38. The Florida Supreme Court found that Murray failed to prove

deficient performance or prejudice. /d. at 38. This finding was not in contravention

with or a misapplication of federal law and certiorari should be denied.

21

“In many instances cross-examination will be sufficient to expose defects in

an expert’s presentation.” Harrington v. Richter, 562 U.S. 86, 111 (2011). Here,

trial counsel consulted with a hair and fiber expert, Skip Palenik, and made a

strategic decision not to call him as a defense expert. Murray, 262 So. 3d at 38; (1

SPCR at 2544). Mr. Kuritz testified that he did not call Mr. Palenik at trial

because:

there were no hairs. They were consumed in DNA tests. So it wasn’t

like I could send him these slides and say, give me what you think and

here’s some known samples of Murray and give me some comparisons.

There was nothing for him to look at other than the notes.

So I sent him the notes. ... He went through it and that’s where I was

going with the coarse hair and, you known, the curly or dark or those

kind of things. ...

So I consulted with him. He gave me information for cross

examination, which I utilized and J didn’t feel I needed — any reason to

bring him down....

Sometimes I don’t call an expert if I don’t — if I don’t think they’re

going to be able — if [the prosecutor] is going to be, at the end of the

day, saying, you can’t say this to them and use my expert against me, I

will just use what I’m told for cross examination so that the State

doesn’t use my expert against me.

(1 SPCR at 2545-46). Mr. Palenik also confirmed that he could not determine if

DiZinno’s findings were incorrect because he had no hairs to examine, that he gave

Mr. Kuritz information to cross-examine the State expert, and that he often does

not actually testify. (1 SPCR at 2598-2601).

Murray cannot show counsel’s performance was deficient for failing to retain

an expert witness when counsel consulted with an expert and made a strategic

22

decision not to call that expert at trial. Murray also cannot show that he was

prejudiced by trial counsel’s failure to call an expert when counsel used the expert’s

advice to rigorously cross-examine the State’s expert to establish the necessary

facts. Murray, 262 So. 3d at 38.

Because Murray failed to demonstrate that trial counsel’s performance was

deficient and that he was prejudiced by the deficiency, the Florida Supreme Court

properly denied the claim of ineffective assistance of counsel. As this decision was

not in contravention with federal law, certiorari should also be denied.

Counsel Was Not Ineffective Because He Repeatedly Objected to the -

Chain of Custody

Murray argues his trial counsel was ineffective for failing to move for a

mistrial because of a Brady/Giglio violation because the State’s failure to disclose

that the State’s expert witness, Joseph DiZinno, did not put his initials on the slides

of hair evidence, but instead, his assistant who prepared the slides put his initials

on the evidence. However, counsel did object, then cross-examined DiZinno, and

moved for a mistrial. Murray failed to demonstrate deficient performance and

prejudice and the Florida Supreme Court properly denied this claim of ineffective

assistance of counsel. Murray, 262 So. 3d at 38-39. This Court should deny

certiorari.

The State did not possess or suppress this information and no Brady violation

occurred. United States v. Stewart, 433 F.3d 273, 298-99 (2d Cir. 2006) (an expert

witness who is not part of the prosecution team does not justify attributing expert’s

23

knowledge to the prosecutors). Further, the State need not present every link in the

chain of custody. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1 (2009)

(noting that “we do not hold, and it is not the case, that anyone whose testimony

may be relevant in establishing the chain of custody, authenticity of the sample, or

accuracy of the testing device, must appear in person as part of the prosecution’s

case”). There was also no false testimony presented in violation of Giglio. By his

testimony at the fourth trial, DiZinno did not recall which of the lab assistants was

the one who mounted the slides. He also testified that it was common practice at

the time the samples were reviewed in his lab for the assistant to write the initials

of the analyst since they were preparing the slides for that specific analyst, in this

case, they were prepared for DiZinno so his initials were placed on the chain of

custody documents.

Counsel was not deficient for failing to object as he rigorously cross-examined

DiZinno regarding this inconsistency. Additionally, this information was not

material or prejudicial because the hair evidence was not the only evidence of

Appellant’s guilt. Murray, 3 So. 3d at 1126.

Because Murray failed to demonstrate that trial counsel’s performance was

deficient and that he was prejudiced by the deficiency, the Florida Supreme Court

properly denied the claim of ineffective assistance of counsel. Murray, 262 So. 3d at

41. As this decision was not in contravention with federal law, certiorari should

also be denied.

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