Supplemental Brief — William Earl Sweet, Petitioner v. Florida

No. 20-5786

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________________________________________

WILLIAM EARL SWEET,

PETITIONER

VS.

STATE OF FLORIDA,

RESPONDENT

SUPPLEMENTAL BRIEF OF PETITIONER

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

ATTACHMENT

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM EARL SWEET,

Petitioner,

v.

Case No. 3:18-cv-874-J-34JRK

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

______________________________

ORDER

Petitioner William Sweet, an inmate of the Florida penal system, initiated this action

on July 12, 2018, by filing, with the assistance of counsel, a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1), with exhibits (Pet. Ex.; Doc. 2). In the

Petition, Sweet challenges a 1991 state court (Duval County, Florida) judgment of

conviction for first-degree murder, three counts of attempted first-degree murder, and

armed burglary. Sweet was sentenced to death for his first-degree murder conviction.

Sweet raises one ground for relief, alleging newly discovered evidence in the form of

witness testimony exonerates him.1 Petition at 17-24.2 On October 2, 2018, the Court

stayed the case to await final resolution of a pending state postconviction motion. Doc.

11. The Court lifted the stay twice in order to receive status reports. Docs. 12, 15, 20.

Following receipt of the second status report, Respondents filed a motion to dismiss for

Sweet alleges that Eric Wilridge and Marcene Cofer’s newly discovered

testimony proves that his death sentence is constitutionally unreliable. Petition at 17.

2 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

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lack of subject matter jurisdiction. See Respondents’ Motion to Dismiss for Lack of

Jurisdiction (Motion; Doc. 23). The Court ordered Sweet to respond, Doc. 24, which

Sweet did on August 21, 2010, see Petitioner’s Response to Respondents’ Motion to

Dismiss for Lack of Jurisdiction (Response; Doc. 27). Respondents filed a brief in reply.

See Respondents’ Reply to the Response to the Motion to Dismiss for Lack of Jurisdiction

(Reply; Doc. 29).

In the Motion, Respondents argue that the Court lacks jurisdiction over this case

because Sweet failed to obtain prior authorization from the Eleventh Circuit to file a

successive habeas petition under § 2254. Motion at 1-2. Respondents note that on

January 18, 2005, Sweet filed in the Middle District of Florida a petition for writ of habeas

under § 2254, case number 3:03-cv-00844-20. Id. at 5. A jurist of this Court dismissed

that petition as untimely. See Sweet v. Crosby, No. 3:03-CV-844-J-20, 2005 WL 1924699,

(M.D. Fla. Aug. 8, 2005), aff'd sub nom. Sweet v. Sec'y, Dep't of Corr., 467 F.3d 1311

(11th Cir. 2006). While Respondents acknowledge that the United States Supreme Court

has held there is an exception to the pre-approval requirement for filing a successive

habeas petition, they contend that exception does not apply to Sweet’s claim raised in the

Petition. Motion at 9-11. Alternatively, Respondents contend that should the Court find it

has jurisdiction, then it should deny relief on the merits of the Petition. Id. at 12-23.

In his Response, Sweet acknowledges that he filed a previous federal habeas

petition but contends that the instant Petition is not considered second or successive

under the law. Response at 3-4. Relying on Panetti v. Quarterman, 551 U.S. 930 (2007),

Sweet maintains that because the witness testimony was not available at the time he filed

his original habeas petition or by the time his original petition was dismissed, the instant

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Petition is not successive.3 Response at 4-10. According to Sweet, neither he nor his

counsel were aware of Eric Wilridge’s testimony until 2015, and law enforcement was

unaware of him during the original homicide investigation. Id. at 7. Moreover, Sweet avers

that because federal law requires him to exhaust claims in state court before raising them

in a federal habeas petition, he could not immediately file a habeas petition on this claim

in 2015, and thus it was not ripe until the state courts finished reviewing the claim. Id. at

9-10. Sweet also argues that the Court should treat his original petition as a nullity

because it was untimely and, as such, never properly filed. Id. at 10-15. Regarding

Respondents’ alternative argument, Sweet asserts that the Court should not rule on the

merits of the Petition because the Court does not have access to the complete record on

appeal nor have Respondents properly responded to the Petition. Id. at 15-18. Sweet also

requests leave to amend the Petition. Id. at 18-20.

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state

prisoner’s federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic &

Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). After a prisoner pursues one

petition for federal habeas corpus relief, Congress has acted - in the interest of ending

repetitive habeas filings by convicted prisoners - to require, as a jurisdictional matter, that

an applicant filing a second or successive habeas petition first must “move in the

appropriate court of appeals for an order authorizing the district court to consider the

application.” 28 U.S.C. § 2244(b)(3)(A). Federal law provides that a second or successive

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Sweet also argues that Respondents should be barred from raising a

jurisdictional argument because Sweet argued in the Petition that it was not successive,

and Respondents waited approximately two years to file the Motion. Response at 4. The

Court finds this argument unavailing in light of the procedural history of this case,

specifically because the Court granted Sweet’s request to stay the proceedings.

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habeas petition that raises a claim not presented in a prior petition may not be dismissed

if “the factual predicate for the claim could not have been discovered previously through

the exercise of due diligence” and the newly discovered evidence “if proven and viewed

in light of the evidence as a whole, would be sufficient to establish by clear and convincing

evidence that, but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B). However, pursuant

to § 2244(b)(3)(A), the court of appeals, not a district court, shall determine whether to

permit a petitioner to file a second or successive petition raising a claim based on newly

discovered evidence. See also Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1260

(11th Cir. 2009) (noting the proper procedure for bringing a second or successive habeas

petition is to obtain from the Eleventh Circuit an order authorizing the district court to

consider the second or successive petition).

In Panetti, the United States Supreme Court held a district court did not lack

jurisdiction to consider a second or successive habeas petition that raised a claim under

Ford v. Wainwright, 477 U.S. 399 (1986), that the petitioner was incompetent to be

executed, because the claim was not ripe at the time the petitioner filed his original

habeas petition. Panetti, 551 U.S. at 945. However, the holding in Panetti is limited only

to claims asserting that a petitioner is incompetent to be executed. Tompkins, 557 F.3d

at 1259. In Tompkins, the Eleventh Circuit specifically addressed the argument that

claims based on new evidence fall within the Panetti exception because they are not ripe

for presentation until the evidence is discovered. Id. at 1260. In rejecting this argument,

the Court explained that the petitioner’s argument was “not what the Supreme Court in

Panetti meant by ‘ripe.’” Id. The Eleventh Circuit elaborated by stating:

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The reason the Ford claim was not ripe at the time of the first

petition in Panetti is not that evidence of an existing or past

fact had not been uncovered at that time. Instead, the reason

it was unripe was that no Ford claim is ever ripe at the time of

the first petition because the facts to be measured or proventhe mental state of the petitioner at the time of execution-do

not and cannot exist when the execution is years away.

Id. Thereafter, the Eleventh Circuit noted that “[t]he stringent requirements that a

petitioner must meet before being allowed to assert a claim in a second habeas petition

because of newly discovered facts about events that occurred before the filing of the first

petition are contained in § 2244(b)(2)(B),” and found that petitioner failed to meet those

requirements. Id.

Based on a plain reading of § 2244(b) and Tompkins, which is binding on this

Court, Sweet’s argument that he can raise a claim based on newly discovered evidence

in a second or successive petition without first seeking pre-approval from the Eleventh

Circuit is without merit. Regarding Sweet’s contention that his first petition was untimely

and therefore should be treated as a nullity, the Eleventh Circuit has also rejected this

argument. See Jackson v. Blakely, 762 F. App’x 1003, 1004 (11th Cir. 2019); Pray v.

Dep’t of Corr., 779 F. App’x 713, 714 (11th Cir. 2019) (citing Jordan v. Sec’y, Dep’t of

Corr., 485 F.3d 1351, 1353 (11th Cir. 2007)) (“Petitions dismissed as time-barred by the

Antiterrorism and Effective Death Penalty Act’s one-year limitations period are considered

to have been dismissed with prejudice, and subsequent petitions qualify as second or

successive.”). Thus, the dictates of § 2244(b) control here and, therefore, the Court must

dismiss the Petition without prejudice to Sweet’s right to seek approval from the Eleventh

Circuit to file a second or successive petition. See Joyner v. Inch, No. 4:20CV337-MWHTC, 2020 WL 5604677, at *2 (N.D. Fla. Aug. 17, 2020), report and recommendation

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adopted, No. 4:20CV337-MW/HTC, 2020 WL 5604044 (N.D. Fla. Sept. 17, 2020) (finding

that the petitioner “must first seek authorization from the Eleventh Circuit to file a

successive petition, even one based on newly discovered evidence.”).

Accordingly, it is

ORDERED:

1.

Respondents’ Motion (Doc. 23) is GRANTED.

2.

This case is DISMISSED without prejudice.

3.

The Clerk shall enter judgment dismissing this case without prejudice,

terminate any pending motions, and close the case.

4.

The Clerk shall send Petitioner an Application for Leave to File a Second

or Successive Habeas Corpus Petition. If he desires to file a second or successive

habeas petition in this Court, he may complete the application and file it in the Eleventh

Circuit Court of Appeals.

DONE AND ORDERED in Jacksonville, Florida this 5th day of November, 2020.

Jax-8

c:

Counsel of Record

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