Opposition Brief — Donald David Dillbeck, Petitioner v. Florida
Supreme Court briefMay 6, 2021
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CAPITAL CASE
No. 20-7665
Hn the
Supreme Court of i Gnited States
DONALD DAVID DILLBECK,
Petitioner,
Uv.
STATE OF FLORIDA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SUPREME COURT
BRIEF IN OPPOSITION
ASHLEY Moopy
Attorney General of Florida
CAROLYN M. SNURKOWSKI
Associate Deputy Attorney General
Counsel of Record
CHARMAINE M. MILLSAPS
Senior Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
CAPITAL APPEALS
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3300
capapp@myfloridalegal.com
CAPITAL CASE
QUESTION PRESENTED
Whether this Court should grant review of a decision of the Florida
Supreme Court holding that the petitioner was not diligent, as required
by a state rule of court, in raising a claim of newly discovered evidence of
mental mitigation based on a diagnosis that was recognized years earlier?
TABLE OF CONTENTS
PAGE(S)
QUESTION PRESENTED .........0. 0.0.00 cece i
TABLE OF CONTENTS ...... 0... 02 eee eee eee nee ii
TABLE OF AUTHORITIES ............0..0.0 2005 eee ii
OPINION BELOW........... 0.0.0. e eee eeeee 1
JURISDICTION. ... 2... tee eee teens 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........... 3
STATEMENT OF THE CASE AND PROCEDURAL HISTORY. ............... 4
Facts of the murder .... 2.0.2.0... cece eee eee nee nees 4
Prior proceedings in the state and federal courts...................2.00005 4
Current third successive state postconviction proceedings ................. 5
REASONS FOR DENYING THE WRIT............... 0220.20: eee eee eee 8
ISSUET 1... een eens 8
WHETHER THIS COURT SHOULD GRANT REVIEW OF A
DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT
THE PETITIONER WAS NOT DILIGENT AS REQUIRED BY A
STATE RULE OF COURT, IN RAISING A CLAIM OF NEWLY
DISCOVERED EVIDENCE OF MENTAL MITIGATION BASED ON
A DIAGNOSIS THAT WAS RECOGNIZED YEARS EARLIER?
The Florida Supreme Court’s decision in this case ................. 9
Florida’s time limitations and diligence requirements ............. 10
Issue was not properly raised below......................002005 13
No conflict with this Court’s due process jurisprudence ............ 14
No conflict with other appellate courts... 2.0.0.0... 00.0000 ccc uuee 18
Poor vehicle due to threshold issues.................-0000: ..... 20
Diligence requirements regarding a new mental diagnosis.......... 22
CONCLUSION. .... 00... eee ence eee eee 25
i
TABLE OF AUTHORITIES
CASES PAGE(S)
Adams v. Roberison,
520 U.S. 83 (1997) 20. eee e eens 13,14
Adarand Constructors, Inc. v. Mineta,
534 U.S. 103 (2001)... eee eee nee 13
Amendments to Fla. Rules of Criminal Procedure 3.851, 3.852, & 3.993,
802 So.2d 298 (Fla. 2001)... 2... enn nen 11
Bowles v. Sec’y, Fla. Dep’t of Corr.,
935 F.3d 1176 (11th Cir. 2019),
cert. denied, Bowles v. Inch, 140 S.Ct. 26 (2019) .... 0... 0... ee eee 20
Braxton v. United States,
500 U.S. 344 (1991)... nce eee eee 18
Brown v. State,
304 So.3d 248 (Fla. 2020)... ee ee eee eens 11
Cardinale v. Louisiana,
394 U.S. 437 (1969) ..0 0 eee ene eees 13
Clark v. Davis,
850 F.3d 770 (5th Cir. 2017) 2... eee eens 19
Cox v. Horn,
757 F.3d 113 (8d Cir. 2014)... ce eee eee eenees 19
Cutter v. Wilkinson,
B44 U.S. 709 (2005)... ee cece cece cee ceceeeeeecuceceevtereaseees 13
Davis v. State,
443 N.W.2d 707 (lowa 1989)... 2... ee eee eee e ees 19
Day v. State,
770 S.W.2d 692 (Mo. 1989) .. 0. ee eee eens 19
Delaney v. Matesanz,
264 F.3d 7 (1st Cir. 2001) .. 22.2 ee eee eens 18
Dillbeck v. Florida,
514 U.S. 1022 (1995) 20. ee eee ee eee eee eee 4,9
Dillbeck v. McNeil,
4:07-cv-388, 2010 WL 419401 (N.D. Fla. Jan. 29, 2010) ..................0... 5
Dillbeck v. McNeil,
4:07-cv-388, 2010 WL 3958639 (N.D. Fla. Oct. 7, 2010) ...................... 5
ii
Dillbeck v. McNeil,
10-11042-P (11th Cir.) 02. ee eee eee eens 5
Dillbeck v. State,
643 So.2d 1027 (Fla. 1994)... 0.0. ee eee eee eee 4
Dillbeck v. Staite,
882 So.2d 969 (Fla. 2004) 2.0... ee eee eee e nee 4,22
Dillbeck v. State,
964 So.2d 95 (Fla. 2007)... eee eee eee ee teens 4,22
Dillbeck v. State,
168 So.3d 224 (Fla. 2015)... 2... eee eee eens 4
Dillbeck v. State,
234 So.3d 558 (Fla. 2018), cert. denied, Dillbeck v. Florida, 189 S.Ct. 162 (2018)) . 4
Dillbeck v. State,
304 So.3d 286 (Fla. 2020)... 1.2... eee passim
Dillbeck v. Tucker,
565 U.S. 862 (2011) 1... eet e eee nee 5
Dist. Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52 (2009)... 2. ne teen eens 14-15
Felker v. Turpin,
518 U.S. 651 (1996) .. 0. een eee eee eee eeeee 16
Green v. White,
223 F.3d 1001 (9th Cir. 2000) ... 2... eee 18
Herrera v. Collins,
506 U.S. 390 (1998)... ee eee eee eens 11,14
Holland v. Florida,
560 U.S. 631 (2010) .. 0... eee eee eee 15
House v. Bell,
547 U.S. 518 (2006)... eee eee ene nee 20
Howell v. Mississippt,
548 U.S. 440 (2005) .. 0. ee eee eee eens 13,14
Hyatt v. United States,
207 F.3d 831 (6th Cir. 2000) .... 2.2.0... eee eee 18
In re Hill,
777 F.8d 1214 (11th Cir. 2015) .. 20.2... eee 20
lv
Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp.,
510 U.S. 27 (1998) 20 ee eee ence eee e eee enes 20
Jimenez v. State,
997 So.2d 1056 (Fla. 2008)... eens 10,12
Johnson v. Lee,
186 S.Ct. 1802 (2016)... eee eee eee eee 12
Johnson v. Singletary,
938 F.2d 1166 (11th Cir. 1991) (en bane)... 6... eee 21
Johnson v. United States,
544 U.S. 295 (2005) «6. ee ee eee tenet e nes 16-17
Long v. Miller,
541 Fed. Appx. 800 (10th Cir. 2018)... 2... eee eee ee 18
Long v. State,
271 So.3d 938 (Fla. 2019),
cert. denied, Long v. Florida, 139 S.Ct. 2635 (2019)..................2205- 11,12
Lucidore v. New York State Div. of Parole,
209 F.3d 107 (2d Cir. 2000)... 2.2. eee eee 18
McKinney v. Arizona,
140 S.Ct. 702 (2020)... ence ene ene 21
McQuiggin v. Perkins,
569 U.S. 388 (2018) 2.0. ce ce eee eee ee ener eens 15
Martinez v. Ryan,
566 U.S. 1 (2012) 0. ee eee eee e teen ees 15,19
Miller v. Marr,
141 F.3d 976 (10th Cir. 1998)... 2.2 cee 18
Moses v. Joyner,
815 F.3d 163 (4th Cir. 2016) .. 22... eee eee 19
Paez v. Sec’y, Fla. Dep’t of Corr.,
947 F.3d 649 (11th Cir. 2020), cert. denied, Paez v. Inch, 141 8.Ct. 309 (2020) .... 5
People v. Germany,
674 P.2d 345 (Colo. 1988) ... 2... ee eee e nee eee 19
Pizzuto v. Blades,
673 F.3d 1008 (9th Cir. 2012) .. 2... ee eee 20
Pruett v. Stephens,
608 Fed.Appx. 182 (5th Cir. 2015)... 2.2... 0. ees 19
Ring v. Arizona,
536 ay. S. 584 (2002) Se ee wee ee eee ee te wee wilelin & Hatin 5,21
Ritter v. Smith,
811 F.2d 1398 (11th Cir. 1987)... 0. eee ens 19
Rockford Life Ins. Co. v. Il. Dep’t of Revenue,
482 U.S. 182 (1987) 2.06 eee een eee ees 18
Rodgers v. State,
288 So.3d 1038 (Fla. 2019),
cert. denied, Rodgers v. Florida, 141 8.Ct. 398 (2020) ......... 0... cc eee ees 12
Ryan v. Schad,
570 U.S. 521 (2018) 2. ee eee e eee eee eee 15
Sawyer vu. Whitley,
505 U.S. 333 (1992) 2... eee eee eee eee e eens 20
Silva-Martinez v. Fla. Dep’t of Corr.,
808 Fed.Appx. 846 (11th Cir. 2020)... 00.0.0... cece cece cece ee cececeeeeeees 5
Skinner v. Switzer,
562 U.S. 521 (2011) 20 eee eee eee 14
Tamayo v. Stephens,
740 F.3d 986 (5th Cir. 2014) 2.0. ce eee eens 19
Thompson v. Calderon,
151 F.3d 918 (9th Cir. 1998) .. 2... ee eee eens 20
Torres-Arboleda v. Dugger,
636 So.2d 13821 (Fla. 1994)... cc ee eee eee eee enna 12
Turner v. Johnson,
177 F.3d 390 (5th Cir. 1999) .. 0... ee eens 18
United States v. Williams,
504 U.S. 36 (1992) 2... ce eee eee neee 13
Walker v. Martin,
562 U.S. 807 (2011) 2. eee eens 13
Walker v. Sauvinet,
92 U.S. 90 (1875) o.oo eee ec cece cece cesesucutucuteeveeuenteeernes 13
Weaver v. Massachusetts,
137 S.Ct. 1899 (2017)... eo ec cc ccecee eee ce ceeeeeeeeeeeeceueenees 24
Wyzykowski v. Dep’t of Corr.,
226 F.3d 1213 (11th Cir. 2000) ... 2.2... eee 18
vi
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V... 2... eee cee eee ence eens Passim
U.S. Const. amend. XIV... 1... nee eee eens 3
STATUTES
18 U.S.C. § 8600... eee e eens 15
28 U.S.C. § 1257(a). o.oo cece cence cece ee ceeeuseseuteeesenensers 2
28 U.S.C. § 2101)... ccc e cece cece cence eeeeccuceeeteaveteeueereaens 2
28 U.S.C. § 2244. 00 eee eee eae 15,18,20
28 U.S.C. § 2255... ete eens 16,17,18
RULES
Fed. R. Civ. P. G0 is. sci. ei ee Bele BW Be Glee Be eee eee eee 19
Fla. R. Crim. P. 3.851... 2.0.0.0. ee ee eee eee ees 9,10,11,12
Sup. Ct. R10... ccc ccc ccc ccc cece cece eceeuteueeustuetunteetenes 14,17
Sup. Ct. R.13.8...0..0. cece cece cece ec ceuseeeusenteueenseveeeneeas 2,16
OTHER AUTHORITIES
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013)... 00... 0. eee eee 6,9,17,23,24
vii
IN THE
SUPREME COURT OF THE UNITED STATES
No. 20-7665
DONALD DAVID DILLBECK, Petitioner,
v.
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
The Florida Supreme Court’s opinion is reported at Dillbeck v. State, 304 So.3d 286
(Fla. 2020) (SC20-178).
JURISDICTION
On September 3, 2020, the Florida Supreme Court affirmed the trial court’s denial
of the successive postconviction motion. On September 18, 2020, Dillbeck filed a
motion for rehearing. The State filed a response to the rehearing. On October 30,
2020, the Florida Supreme Court denied the rehearing. On March 29, 2021, Dillbeck
filed a petition for a writ of certiorari in this Court. The petition was timely. See Sup.
Ct. R. 13.3; 28 U.S.C. § 2101(d).' Jurisdiction exists pursuant to 28 U.S.C. § 1257(a).
' This Court extended the deadline to timely file a petition for writ of certiorari from 90 days to
150 days due to COVID-19. See Order of March 19, 2020.
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution, which provides:
No person shall be .. . deprived of life, liberty, or property, without due process
of law...
U.S. Const. amend. V.
The Fourteenth Amendment to the United States Constitution, section one, which
provides:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
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.
U.S. Const. amend. XIV, § 1.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Facts of the murder
Dillbeck was convicted of the 1990 first-degree murder, armed robbery, and armed
burglary of Faye Vann. Dillbeck v. State, 643 So.2d 1027, 1028 (Fla. 1994), cert. dented,
Dillbeck v. Florida, 514.U.S. 1022 (1995). Dillbeck was in prison for life, after entering
a plea to the murder of an on-duty deputy with the deputy’s own gun, when he escaped
from a work detail. He stabbed a woman to death in the Tallahassee Mall parking lot
in an attempted carjacking to further his escape. Id.
Prior proceedings in the state and federal courts
The Florida Supreme Court affirmed Dillbeck’s convictions and sentence of death
on direct appeal. Dillbeck, 643 So.2d at 1028. One of the issues in the direct appeal
was a a claim that the trial court erred in refusing to allow him to present evidence of
fetal alcohol effects caused by his mother’s alcoholism during pregnancy in the guilt
phase. Jd. at 1028-30. Dillbeck was permitted to present the fetal alcohol effects
diagnosis to the jury as mitigation in the penalty phase and the judge at sentencing.
In the initial postconviction proceedings, the Florida Supreme Court denied
Dillbeck’s state habeas petition and affirmed the denial of one of his initial
postconviction claims but remanded to the trial court to reconsider the remaining
claims in the initial postconviction motion. Dillbeck v. State, 882 So.2d 969 (Fla. 2004).
Following the remand, the Florida Supreme Court affirmed the denial of the remainder
of the initial postconviction claims. Dillbeck v. State, 964 So.2d 95 (Fla. 2007).
The Florida Supreme Court also affirmed the denial of his first successive
postconviction motion, Dillbeck v. State, 168 So.3d 224 (Fla. 2015), and his second
successive postconviction motion. Dillbeck v. State, 234 So.3d 558 (Fla. 2018), cert.
dented, Dillbeck v. Florida, 139 S.Ct. 162 (2018).
In 2007, Dillbeck filed a federal habeas petition in federal district court raising a
claim based on Ring v. Arizona, 536 U.S. 584 (2002), well as numerous claims of
ineffectiveness of counsel. The district court denied the numerous claims raised in the
original habeas petition and dismissed as untimely the claims raised in the amended
petition. Dillbeck v. McNeil, 4:07-cv-388, 2010 WL 419401 (N.D. Fla. Jan. 29, 2010);
Dillbeck v. McNeil, 4:07-cv-388, 2010 WL 3958639 (N.D. Fla. Oct. 7, 2010). Following
aremand, the district court denied a certificate of appealability (COA). Dillbeck, 2010
WL 3958639 at *4. The Eleventh Circuit denied COA as well. Dillbeck v. McNeil, 10-
11042-P (11th Cir.). This Court denied review. Dillbeck v. Tucker, 565 U.S. 862 (2011)
(No. 10-11017).
Current third successive state postconviction proceedings
On May 9, 2019, Dillbeck, represented by state postconviction counsel, registry
counsel Baya Harrison, filed a third successive postconviction motion raising a claim
of newly discovered evidence of mitigation based on a diagnosis of Neurodevelopmental
Disorder associated with Prenatal Alcohol Exposure (ND-PAE). (2020 Succ. PC ROA
4-28).?_ Dillbeck asserted that he suffers from ND-PAE based on the reports of several
mental health experts that he attached to the 2019 third successive postconviction
motion. (2020 Succ. PC ROA 29-287). The written reports of Dr. Natalie Novick Brown
of Northwest Forensic Associates in Washington State, who is a clinical and forensic
psychologist with a specialty in developmental disabilities, wrote a 67-page report,
? The record on appeal is available online on the Florida Supreme Court’s website under the case
number SC20-178 at:
https://efactssc-public.flcourts.org/casedocuments/2020/178/2020-178_record_136782_record.pdf. A
federal court may properly take judicial notice of state court’s pleadings that are available online.
Silva-Martinez v. Fla. Dep't of Corr., 808 Fed. Appx. 846, 848 (11th Cir. 2020) (holding the federal district
court did not abuse its discretion by taking judicial notice of electronic state court records citing Paez
v. Sec’y, Fla. Dep't of Corr., 947 F.3d 649, 651-52 (11th Cir. 2020), cert. denied, Paez v. Inch, 141 S.Ct.
809 (2020)).
dated May 1, 2019. (2020 Succ. PC ROA 29-287 at Att. A at 1-67).° Attached to Dr.
Brown’s report were the reports of Dr. Paul Connor, Dr. Wesley D. Center, and Dr.
Richard Adler. (2020 Succ. PC ROA 29-287 at Att. A at 70; Att. A at 79; Att. A at 119-
136). Dr. Faye E. Sultan of Northpoint Psychological Associates in Davidson, North
Carolina, who is a psychologist, wrote a 22-page report, dated May 1, 2019. (2020 Succ.
PC ROA 29-287 at Att. C). Dr. Richard S. Adler of Seattle, Washington, who is a
forensic psychiatrist, wrote a report, dated May 1, 2019. (2020 Succ. PC ROA 29-287
at Att. E).
On May 30, 2019, the State filed an answer to the third successive postconviction
motion asserting that the claim was untimely because it had not been brought within
one year of the date of new diagnosis of ND-PAE being published in the Diagnostic and
Statistical Manual, Fifth Edition (DSM-V), in 20138, as required by Florida law. (2020
Succ PC ROA 288-312). Alternatively, the State asserted that the claim of newly
discovered evidence of mitigation was meritless arguing the new diagnosis would not
result in a lesser sentence.
On June 21, 2019, Dillbeck filed a reply. (2020 Succ. PC ROA 319-330). The reply
asserted that there was a difference between a diagnosis of fetal alcohol effects and a
diagnosis of ND-PAE. Dillbeck also argued that the relevant date should be the date
of the diagnosis, not the date of the publication of the new diagnosis in the DSM-V, as
the State had asserted. (2020 Succ. PC ROA 320-322). On July 8, 2019, the defendant
also filed a memorandum of law regarding the timeliness of the successive motion in
the state trial court. (2020 Succ. PC ROA 360-368).
On June 28, 2019, the state postconviction court held a case management
conference to hear the arguments of counsel. (2020 Succ. PC ROA 331-359). On
3 The reference to the attachments are to the attachments as they were filed in the state trial
court but the entire appendix is available on the Florida Supreme Court's website as part of the record
on appeal. (2020 Succ. PC ROA 29-287).
January 28, 2020, the state postconviction court summarily denied the claim of newly
discovered evidence and dismissed the successive postconviction motion as untimely.
(2020 Succ. PC ROA 372-375).
Dillbeck appealed the denial of his third successive postconviction motion to the
Florida Supreme Court. The Florida Supreme Court held that Dillbeck was not
diligent in obtaining the diagnosis and therefore, the successive postconviction motion
was untimely. Dillbeck v. State, 304 So.3d 286 (Fla. 2020) (SC20-178). Dillbeck filed
a motion for rehearing and the State filed a response to the rehearing motion.
Dillbeck, represented by state postconviction counsel registry counsel Baya
Harrison III and federal habeas counsel, the Capital Habeas Unit of the Federal Public
Defender’s Office of the Northern District of Florida (CHU-N), then filed a petition for
a writ of certiorari from the Florida Supreme Court’s opinion in this Court.
REASONS FOR DENYING THE WRIT
ISSUE I
WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION OF
THE FLORIDA SUPREME COURT HOLDING THAT THE PETITIONER
WAS NOT DILIGENT, AS REQUIRED BY A STATE RULE OF COURT, IN
RAISING A CLAIM OF NEWLY DISCOVERED EVIDENCE OF MENTAL
MITIGATION BASED ON A DIAGNOSIS THAT WAS RECOGNIZED YEARS
EARLIER?
Petitioner Dillbeck asserts that this Court should grant review of the Florida
Supreme Court’s denial of his claim of newly discovered evidence of mental mitigation
based on a diagnosis of Neurodevelopmental Disorder associated with Prenatal Alcohol
Exposure (ND-PAE). This issue is purely a matter of state law. A state supreme court
is entitled to impose time limitations and diligence requirements in state
postconviction litigation and is certainly entitled to do so in successive postconviction
litigation. To the extent the issue can be viewed as a federal due process issue at all,
there is no conflict between this Court’s due process jurisprudence and the Florida
Supreme Court’s decision in this case. This Court has never held, or even hinted, that
time limitations or diligence requirements on successive postconviction claims raised
in state court violate due process. There is no conflict with this Court. Nor is there any
conflict between the decisions of any other federal appellate court or any other state
supreme court and the Florida Supreme Court's decision in this case. Federal habeas
courts enforces time limitations in federal habeas litigation and impose diligence
requirements in federal habeas litigation as well. Dullbeck cites no federal circuit
court case or state supreme court case holding that time limitations or diligence
requirements in successive state postconviction litigation violate the federal due
process clause. Furthermore, this case is a poor vehicle because there are threshold
issues. Reasonable time limits and diligence requirements do not violate due process.
Because the petition presents an issue over which there is no conflict among the courts
and that involves a threshold issue, this Court should deny review of this claim.
8
The Florida Supreme Court’s decision in this case
Dillbeck appealed the state trial court’s denial of his third successive postconviction
motion to the Florida Supreme Court. Dillbeck v. State, 304 So.3d 286 (Fla. 2020)
(SC20-178). The Florida Supreme Court concluded that Dillbeck was not diligent and
therefore, his successive postconviction claim was untimely.
The Florida Supreme Court first noted that the successive claim was filed under
Florida Rule of Criminal Procedure 3.851. Dillbeck, 304 So.3d at 287. The Florida
Supreme Court then explained that Dillbeck’s claim of newly discovered evidence was
“based on reports written in 2019 by three doctors, one of whom diagnosed him with
Neurodevelopmental Disorder associated with Prenatal Alcohol Exposure (ND-PAE),
a diagnosis that was first recognized in the 2013 publication of the Diagnostic and
Statistical Manual, Fifth Edition (DSM-5).” Id. The Florida Supreme Court noted that
the postconviction trial court had “dismissed the motion as untimely.” Id.
The Florida Supreme Court then explained that a motion for postconviction relief
in a capital case must be filed within one year of the date the defendant’s conviction
and sentence become final to be considered timely. Dillbeck, 304 So.3d at 287 (citing
Fla. R. Crim. P. 3.851(d)(1)). The Florida Supreme Court noted that Dillbeck’s
conviction and sentence became final in 1995. Id. (citing Dillbeck v. Florida, 514 U.S.
1022 (1995), and Fla. R. Crim. P. 3.851(d)(1)(B)). The Florida Supreme Court then
explained that there is an exception to the one-year time limit if “the facts on which the
claim is predicated were unknown to the movant or the movant’s attorney and could
not have been ascertained by the exercise of due diligence.” Jd. (citing Fla. R. Crim. P.
3.851(d)(2)(A)).
The Florida Supreme Court noted that the new diagnosis of ND-PAE was included
in the DSM-V, published in 2013, and qEEG scans have been used in Florida since
2005. Dillbeck, 304 So.3d at 287-88. The Florida Supreme Court then stated that
Dillbeck asserted that his claim “first arose on May 10, 2018, when he was evaluated
by Dr. Faye Sultan, and that May 10, 2018, is the earliest potential date the one-year
clock could have started to file his claim based on this newly discovered evidence” and
that therefore, he had until May of 2019 to timely file the claim. Jd. at 288. The
Florida Supreme Court disagreed explaining that any newly discovered evidence claim
must be filed “within one year of the date upon which the claim became discoverable
through due diligence.” Id. (citing Jimenez v. State, 997 So.2d 1056, 1064 (Fla. 2008)).
The Florida Supreme Court reasoned that the facts on which the claim was predicated
was the diagnosis of ND-PAE and qEKG results “could have been discovered by the
exercise of due diligence as early as 2013, when ND-PAE became a diagnosable
condition.” Id. at 288. The Florida Supreme Court concluded that “Dillbeck and his
counsel failed to exercise diligence by waiting until 2018 to pursue evaluation, testing,
and a diagnosis of ND-PAE.” Id. The Florida Supreme Court affirmed the
postconviction court’s dismissal of the third successive postconviction motion as
untimely.
Florida’s time limitations and diligence requirements
The Florida Rule of Criminal Procedure governing Collateral Relief After Death
Sentence Has Been Imposed and Affirmed on Direct Appeal, rule 3.851(d), provides:
Time Limitation.
(1) Any motion to vacate judgment of conviction and sentence of death shall be
filed by the defendant within 1 year after the judgment and sentence become
final. For the purposes of this rule, a judgment is final:
(A) on the expiration of the time permitted to file in the United States
Supreme Court a petition for writ of certiorari seeking review of the
Supreme Court of Florida decision affirming a judgment and sentence
of death (90 days after the opinion becomes final); or
(B) on the disposition of the petition for writ of certiorari by the United
States Supreme Court, if filed.
10
(2) No motion shall be filed or considered pursuant to this rule if filed beyond
the time limitation provided in subdivision (d)(1) unless it alleges:
(A) the facts on which the claim is predicated were unknown to the
movant or the movant’s attorney and could not have been ascertained
by the exercise of due diligence, or
(B) the fundamental constitutional right asserted was not established
within the period provided for in subdivision (d)(1) and has been held
to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file the motion.
The Florida Supreme Court adopted this rule of court requiring diligence in 2001.
Amendments to Fla. Rules of Criminal Procedure 3.851, 3.852, & 3.993, 802 So.2d 298,
303 (Fla. 2001). It was this rule that was cited by the Florida Supreme Court in
support of its diligence requirement in this case. Dillbeck, 304 So.3d at 287 (citing Fla.
R. Crim. P. 3.851(d)(2)(A)).
Florida actually has no time limits on claims of newly discovered evidence
whatsoever. A defendant can find new evidence several decades after his conviction
or penalty phase and can present that new evidence to a Florida court. Cf. Herrera v.
Collins, 506 U.S. 390, 410-11 (1993) (noting that, at that time, Texas was one of 17
States that required a motion for a new trial based on newly discovered evidence to be
made within 60 days of judgment). And Florida’s concept of newly discovered evidence
is much broader than the federal concept of actual innocence because it includes newly
discovered evidence of impeachment as well as newly discovered evidence of mitigation,
just as the claim of new evidence in this case does. Brown. v. State, 304 So.3d 243, 274
(Fla. 2020) (addressing a claim of newly discovered evidence of impeachment); Long v.
State, 271 So.3d 938, 942 (Fla. 2019) (addressing a claim of newly discovered evidence
of mitigation and explaining that when a defendant seeks to attack his death sentence,
not his conviction, then the test for newly discovered evidence becomes whether “the
newly discovered evidence would probably yield a less severe sentence”), cert. denied,
Long v. Florida, 139 S.Ct. 2635 (2019). In Florida, provided a defendant diligently
seeks the new evidence and then files a motion raising the new evidence within one
11
year after he discovers it, the Florida courts will entertain the claim. Jimenez v. State,
997 So.2d 1056, 1064 (Fla. 2008) (“To be considered timely filed as newly discovered
evidence, the successive rule 3.851 motion was required to have been filed within one
year of the date upon which the claim became discoverable through due diligence.”).
The time limitation is on filing the claim, not on the discovery of the new evidence
itself.
Opposing counsel argues that there is a new “trend” of requiring diligence in
Florida regarding claims of newly discovered evidence and cites a few recent Florida
Supreme Court cases as support for that statement. Pet. at 13 (citing Long v. State,
271 So.3d 938, 942 (Fla. 2019) (citing Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-
25 (Fla. 1994)), cert. denied, Long v. Florida, 139 S.Ct. 2635 (2019); and Rodgers v.
State, 288 So.3d 1038, 1039 (Fla. 2019) (citing Jimenez v. State, 997 So.2d 1056, 1064
(Fla. 2008)), cert. denied, Rodgers v. Florida, 141 S.Ct. 398 (2020)).4 But the cases
cited in those newer cases as support for the diligence requirement rebut any claim
that this is a new trend. The Florida Supreme Court in Long cited the case of
Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla. 1994), and the Florida
Supreme Court in Rodgers cited the case of Jimenez v. State, 997 So.2d 1056, 1064
(Fla. 2008). The supporting cases were decided in 1994 and 2008. In this case, the
Florida Supreme Court again cited Jimenez, decided in 2008 in support of its diligence
requirement, as well as a state rule of court adopted in 2001. Dillbeck, 304 So.3d at 288
(citing Jimenez). This “trend” is well over two decades old. The cases cited in the
petition merely establish that the Florida Supreme Court routinely follows the state’s
long-standing diligence requirement. Cf. Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016)
(noting that state rules are “adequate” for federal habeas litigation if they are “firmly
* This Court denied the petition in Rodgers v. Florida, 141 S.Ct. 398 (2020) (No. 20-5117), which
involved a similar attacks on Florida’s time limitations and diligence requirements as those being
presented in this petition.
12
established and regularly followed” citing Walker v. Martin, 562 U.S. 307, 316 (2011)).
Florida’s time limitations and diligence requirements are both well established and
routinely followed.
Issue was not properly raised below
This Court does not grant review of questions raised for the first time in this Court.
This Court is “a court of final review and not first view.” Adarand Constructors, Inc.
v. Mineta, 534 U.S. 108, 110 (2001); Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005).
This Court’s traditional rule precludes a grant of certiorari when the question raised
in the petition was either not presented to the lower court or was not ruled upon by the
lower court. United States v. Williams, 504 U.S. 36, 41 (1992) (discussing the concept
of “not pressed or passed upon below”); Cardinale v. Louisiana, 394 U.S. 437, 438
(1969) (dismissing the writ of certiorari as improvidently granted where the issue was
not raised, preserved, or passed upon in the state courts below); Walker v. Sauvinet, 92
U.S. 90, 93 (1875). This Court refuses to entertain issues that were not properly
presented to the state supreme court. Adams v. Robertson, 520 U.S. 83, 88 (1997)
(dismissing the writ as improvidently granted where the issue was not raised with “fair
precision and in due time”); Howell v. Mississippi, 543 U.S. 440, 441 (2005) (dismissing
the writ of certiorari as improvidently granted where the issue was not raised as a
federal constitutional issue).
The issue of whether a state having a filing deadline for state postconviction
motions violates the federal due process clause was not raised below in the Florida
Supreme Court. Opposing counsel relied exclusively on Florida caselaw in the initial
brief when arguing that the state trial court erred in finding the third successive
postconviction motion to be untimely. IB at 19-34. The argument presented to the
Florida Supreme Court was a case-specific argument mainly focused on diligence.
13
There was no argument that the Florida Supreme Court should not have any time
limitations or diligence requirements on claims based on a new mental diagnosis made
in the initial brief. Opposing counsel did not cite Dist. Attorney’s Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52 (2009), to the Florida Supreme Court in the
briefs which is the main case he relies upon in his petition in this Court.
The issue being raised in the petition was not raised below, as required by Adams
and Howell. This Court should not grant review of an issue that is being raised for the
first time in this Court.
No conflict with this Court’s due process jurisprudence
There is no conflict between the Florida Supreme Court’s decision in this case and
this Court’s due process jurisprudence. Sup. Ct. R. 10(c) (listing conflict with this Court
as a consideration in the decision to grant review). In Herrera v. Collins, 506 U.S. 390,
410-11 (1998), a plurality of this Court held that Texas’ refusal to entertain a claim of
newly discovered evidence of innocence, raised eight years after the conviction, did not
transgress “fundamental fairness.” See also Herrera, 506 U.S. at 427-28 (Scalia, J.,
concurring) (noting there is “no basis” in the text of the Constitution or tradition for
finding a right to demand judicial consideration of newly discovered evidence of
innocence brought forward after conviction because a convicted defendant has received
“all the process that our society has traditionally deemed adequate” and observing the
traditional avenue to raise such claims is a pardon).
Opposing counsel points to Dist. Attorney’s Office for Third Judicial Dist. v.
Osborne, 557 U.S. 52 (2009), as a basis for the federal due process claim. Pet at 6-8.
But Osborne “left slim room” for due process challenges to state postconviction
proceedings. Skinner v. Switzer, 562 U.S. 521, 525 (2011). Osborne concerned a due
process challenge to Alaska’s postconviction procedures regarding DNA evidence that
14
implicated actual innocence. Osborne, 557 U.S. at 64. This Court in Osborne explained
that the due process protections at trial are “not parallel” to the due process protections
at the postconviction stage because a defendant at the postconviction stage “has
already been found guilty at a fair trial, and has only a limited interest in
postconviction relief.” Id. at 69. Under Osborne, federal courts “may upset a State's
postconviction relief procedures only if they are fundamentally inadequate.” Id. at 69.
The Osborne Court endorsed Alaska’s diligence requirement regarding DNA testing as
well as other states’ diligence requirements. Id. at 64, 70 Moting that under Alaska’s
statute, a defendant must “diligently” pursue DNA testing); Jd. at 63 (“States also
impose a range of diligence requirements.”). The Osborne Court also relied on the
federal DNA testing statute. Jd. at 70 (citing 18 U.S.C. § 3600(a)). But that federal
statute contains a rebuttable three-year time limit on seeking DNA testing. §
3600(a)(10)(A). And this Court in Osborne ultimately concluded that there was
“nothing inadequate” about Alaska’s postconviction procedures regarding DNA testing
and rejected the due process challenge to them. Id. at 69.
A state having reasonable time limitations and reasonable diligence requirements
does not render its postconviction procedures fundamentally inadequate. Osborne, if
anything, endorses time limitations and diligence requirements in state postconviction
litigation. There is no conflict with Osborne.
This Court has also imposed timing and diligence requirements in federal habeas
litigation including when dealing with claims of actual innocence. Ryan v. Schad, 570
U.S. 521, 523 n.2, 526 n.3 (2018) (concluding that a motion to vacate based on Martinez
v. Ryan, 566 U.S. 1 (2012), which had been decided approximately four months before
the motion was filed, was dilatory and was not filed within a reasonable time absent
an explanation for the delay); Holland v. Florida, 560 U.S. 631, 649 (2010) (requiring
diligence on the part of the petitioner to warrant equitable tolling of the statute of
15
limitations); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (holding that, while
diligence was not a bar to consideration of a gateway claim of innocence, “timing” was
properly considered when evaluating the strength and validity of such a claim of
innocence and stating that unexplained delays bear on that determination).
This Court has upheld the prohibition on successive federal habeas petitions.
Felker v. Turpin, 518 U.S. 651, 663 (1996) (holding 28 U.S.C. § 2244(b) does not violate
the suspension clause). The time limitation in this case was applied to a third
successive postconviction claim. And, of course, this Court itself has time limitations,
such as a time limitation for filing petitions for writ of certiorari. Sup. Ct. R. 13.3.
The petition also discusses, at some length, this Court’s decision in Johnson v.
United States, 544 U.S. 295 (2005), which the State had provided as supplemental
authority to the Florida Supreme Court. Pet. at 9-12. In Johnson, this Court held that
the vacating of two Georgia state convictions, that had been used to enhance a federal
sentence, restarted the clock to timely file a federal habeas petition, under the habeas
statute of limitations in 28 U.S.C. § 2255(f)(4), but that the petitioner could not file a
habeas petition in federal court because he had not been diligent. The Johnson Court
concluded that, under the habeas statute, a petitioner could timely file a federal habeas
petition if the petition was filed within a year of the prior conviction being vacated by
the state court. But the Johnson Court explained that this was only true if the habeas
petitioner had “shown due diligence.” Jd. at 302. This Court emphasized the federal
habeas statute of limitations “clear policy” mandating “promptness.” Jd. at 311. The
Johnson Court thought that time limitations and a diligence requirement regarding
new claims were necessary to prevent turning federal courts into “a forum for difficult
and time-consuming reexaminations of stale state proceedings.” Id. at 303. The
Johnson Court noted the problem with starting a limitations period based on the
defendant’s own conduct of bringing the claim, regardless of “how long he may have
16
slumbered.” Id. at 296. This Court then determined that Johnson had not been diligent
in challenging his prior convictions in state court because he waited over three years
from his federal sentencing to file the challenges to the prior convictions in the state
court. Id. at 311. The Court found that Johnson waiting over 21 months after his
federal sentence was final to go into state court was unreasonable and noted that
Johnson offered no explanation for that delay. Jd. This Court concluded: “Johnson fell
far short of reasonable diligence in challenging the state conviction.” Jd. This Court
found that Johnson was not diligent because he had waited nearly two years to
challenge his prior state convictions.
Opposing counsel misses the entire thrust of this Court’s decision in Johnson which
was defendants must bring claims promptly. This Court required that federal § 2255
petitioners be diligent. Johnson supports the State’s position, not Dillbeck’s. This can
readily been seen from opposing counsel quoting the dissent rather than the majority.
Pet. at 11-12.
Waiting many years after the new diagnosis is established by publication in the
DSM-V to bring a successive postconviction claim based on that new diagnosis is not.
being prompt. The Florida Supreme Court in this case did exactly what this Court in
Johnson did — both courts require diligence in bringing claims. As the Florida
Supreme Court properly concluded, Dillbeck was not diligent. Like Johnson, Dillbeck
“slumbered” on this claim. Indeed, Dillbeck waited even longer than Johnson.
Dillbeck waited six years after the publication of the DSM-V recognizing the new
diagnosis to bring this claim. Dillbeck’s third successive postconviction motion was
filed five years late, while Johnson’s motion was filed approximately two years late.
There is no conflict between the Florida Supreme Court’s decision in this case and
this Court’s due process jurisprudence and certainly not with this Court’s decision in
Johnson. Because there is no conflict with this Court, review should be denied.
17
No conflict with other appellate courts
There is no conflict between the Florida Supreme Court’s decision in this case and
that of any federal appellate court or state court of last resort. Sup. Ct. R. 10(b) (listing
conflict among federal appellate courts and state supreme courts as a consideration in
the decision to grant review). As this Court has observed, a principal purpose for
certiorari jurisdiction “is to resolve conflicts among the United States courts of appeals
and state courts concerning the meaning of provisions of federal law.” Braxton v.
United States, 500 U.S. 344, 347 (1991). Issues that have not divided the courts or are
not important questions of federal law do not merit this Court’s attention. Rockford
Life Ins. Co. v. Hl. Dep't of Revenue, 482 U.S. 182, 184 n.3 (1987). In the absence of
such conflict, certiorari is rarely warranted.
The federal appellate courts have upheld time limitations and diligence
requirements in federal habeas litigation, which is the functional equivalent to state
postconviction proceedings. The federal habeas statutes, 28 U.S.C. § 2255(f) and 28
U.S.C. § 2244(d)(1), contain a one-year statute of limitations for both federal and state
prisoners. The federal circuit courts have upheld that time limitation against various
constitutional attacks.°
5 See, e.g., Delaney v. Matesanz, 264 F.3d 7, 12 (1st Cir. 2001) (stating that “reasonable” time
limits in federal habeas litigation are not an unconstitutional suspension of the writ); Lucidore v. New
York State Div. of Parole, 209 F.3d 107, 118 (2d Cir. 2000) (concluding that because the one-year statute
of limitations leaves habeas petitioners with a “reasonable” opportunity to have their claims heard on
the merits it is not an unconstitutional suspension of the writ); Turner v. Johnson, 177 F.3d 390, 391-93
(5th Cir. 1999) (rejecting a due process challenge to the AEDPA statute of limitations reasoning that the
limitations period did not render the habeas remedy “inadequate or ineffective”); Hyatt v. United States,
207 F.3d 831, 832 (6th Cir. 2000) (rejecting due process, ex post facto, and Suspension Clause attacks on
§ 2255(f)); Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (rejecting a Suspension Clause attack on
§ 2244(d)(1)); Long v. Miller, 541 Fed. Appx. 800, 802 (10th Cir. 2013) (denying a COA regarding a due
process attack on the federal statute of limitations, § 2244(d)(1), citing Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998), and also citing cases from the Second, Fifth, Ninth, and the Eleventh Circuit rejecting
constitutional attacks on the federal habeas statute of limitations); Wyzykowski v. Dep’t of Corr., 226
F.8d 1213, 1217 &n.3 (11th Cir. 2000) (concluding the time limitation does not render habeas ineffective
or inadequate, and therefore is not an unconstitutional suspension of the writ of habeas corpus citing
other circuit cases in a footnote).
18
The federal courts also have time limitations and diligence requirements regarding
motions to reopen habeas cases as well. Fed. R. Civ. P. 60(c)(1) (stating that any Rule
60(b)(1)-(3) motions must be filed within one year); Fed. R. Civ. P. 60(c)(1) (stating that
any Rule 60(b)(4)-(6) motions “must be made within a reasonable time”). And in the
case of Rule 60(b)(6) motions to reopen a federal habeas case based on a change in the
law, the reasonable time is a few months.®
Other states also often have time limitations and diligence requirements in their
state postconviction proceedings and their respective state supreme courts have
rejected various attacks, including due process attacks on those limitations and
requirements.’ Dillbeck cites to no decision of any federal circuit court or state
supreme court that has held that a state’s time limitations or diligence requirements
on postconviction claims violate the federal due process clause, much less do so in the
successive postconviction context.
® Cox v. Horn, 757 F.3d 118, 116 (3d Cir. 2014) (observing that a Rule 60(b)(6) motion to reopen
a closed federal habeas case, based on the new decision of Martinez v. Ryan, that was filed roughly 90
days after the decision was “close enough” to that decision to be deemed filed within a reasonable time,
as required by the federal rules of civil procedure); Moses v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016)
(concluding that a Rule 60(b)(6) motion that was filed more than two years after the new decision was
untimely); Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (concluding a Rule 60(b)(6) motion to
reopen based on a new decision was not brought within a “reasonable time” because it was filed nearly
eight months after the new decision); Pruett v. Stephens, 608 Fed.Appx. 182, 186 (5th Cir. 2015)
(concluding a Rule 60(b)(6) motion based on a new decision that was filed more than 19 months after the
new decision was untimely); Clark v. Davis, 850 F.3d 770, 782 (5th Cir. 2017) (concluding a Rule 60(b)(6)
motion based on a new decision that was filed nearly 16 months after the new decision was untimely);
see also Ritter v. Smith, 811 F.2d 13898, 1402 (11th Cir. 1987) (affirming the district court granting a
60(b)(6) motion based on an intervening change in the law, in part, because the State filed the 60(b)(6)
motion only three months after the Supreme Court decision).
7 See, e.g., People v. Germany, 674 P.2d 345, 350 (Colo. 1983) (upholding the state’s time
limitation on postconviction claims to prevent stale claims and advance finality); Davis v. State, 443
N.W.2d 707 (lowa 1989) (holding the state’s time limitation on postconviction claims did not violate due
process); Day v. State, 770 S.W.2d 692, 695 (Mo. 1989) (upholding the state’s time limitations on
postconviction motions as reasonable and serving the legitimate end of avoiding delay and preventing
stale claims).
19
There is no conflict between the Florida Supreme Court’s decision and that of any
federal circuit court of appeals or that of any state supreme court. Because there is no
conflict among the lower appellate courts, review should be denied.
Poor vehicle due to threshold issues
This Court does not normally grant review of cases with threshold issues. Cf. Izumi
Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27 (1993) (dismissing
the writ of certiorari as improvidently granted when there was a threshold issue).
There are two threshold issues in this case.
The first threshold issue in this case is whether this Court even recognizes the
concept of newly discovered evidence of mitigation. It is an open question whether this
Court recognizes the concept of a freestanding claim of innocence of the crime. House
v. Bell, 547 U.S. 518, 554-55 (2006) (declining to answer the question left open about
the existence of a freestanding actual innocence claim). But Dillbeck is not raising a
claim of innocence regarding his conviction; he is raising a claim regarding his
sentence. This claim is akin to a claim of innocent of the death penalty. Bowles v.
Sec’y, Fla. Dep’t of Corr., 935 F.3d 1176, 1182 (11th Cir. 2019) (stating that the
“actually innocent of the death penalty” exception based on Sawyer v. Whitley, 505 U.S.
333 (1992), did not survive the AEDPA quoting Jn re Hill, 777 F.3d 1214, 1225 (11th
Cir. 2015)), cert. denied, Bowles v. Inch, 140 S.Ct. 26 (2019); but see Pizzuto v. Blades,
673 F.3d 1003, 1010 (9th Cir. 2012) (recognizing a claim of actual innocence of the
death penalty and stating that § 2244(b)(2) applies not only to the underlying
conviction but also to the death penalty citing Thompson v. Calderon, 151 F.3d 918,
923 (9th Cir. 1998)). Dillbeck’s new evidence of mitigation relates to his sentence, not
his conviction.
20
And this claim does not even actually rise to the level of a claim of innocent of the
death penalty because it does not attempt to negate all of the aggravating factors (or
even involve a per se mitigator, such as intellectual disability). McKinney v. Arizona,
140 S.Ct. 702, 707 (2020) (explaining that, under Ring v. Arizona, capital defendants
are entitled to a jury determination of any fact that increases their maximum
punishment to death which in a capital case is “the finding of an aggravating
circumstance”); Johnson v. Singletary, 938 F.2d 1166 (11th Cir. 1991) (en banc)
(explaining, in a pre-AEDPA case, that a claim of actual innocence of the death penalty
requires the petitioner present new evidence that negates all of the aggravating
factors). Rather, this is a claim of newly discovered evidence of mitigation that could
impact his sentence. This Court has never even hinted that there is such a concept as
newly discovered evidence of mitigation, much less that state courts are required to
recognize such a concept as a matter of federal due process law. It cannot be a federal
due process violation to put limits on a type of claim that this Court would not
recognize at all. This Court would have to first address whether the concept of new
discovered evidence of mitigation even exists.®
® As the State argued in the Florida Supreme Court, which does recognize the concept of newly
discovered evidence of mitigation as a matter of state law, the diagnosis of ND-PAE would not result in
a life sentence at any new penalty phase. The first jury heard the old similar diagnosis of fetal alcohol
effects yet recommended a death sentence nonetheless. And the original sentencing judge found the old
diagnosis of fetal alcohol effects as mitigation yet sentenced Dillbeck to death nonetheless too. The
original sentencing judge discounted the old diagnosis based on Dillbeck’s mental abilities, such as
playing chess and taking college courses. But Dillbeck’s real-world abilities undermine his new
diagnosis, just as readily as they undermined his old diagnosis. And, even if the diagnosis of ND-PAE
somehow increased the mitigation value of the old diagnosis of fetal alcohol effects in the eyes of either
the jury or the judge, it would still not outweigh the compelling facts of this case or the powerful
aggravation present in this case. Dillbeck nearly killed a man in Indiana while attempting to steal his
truck. Then, after fleeing from that crime to Florida, about two weeks later, Dillbeck murdered an
on-duty deputy by shooting the deputy twice with the deputy’s own gun. And, then many years later,
Dillbeck escaped from a work detail while serving a life sentence and murdered yet again, this time
stabbing a woman to death in an attempted carjacking designed to further his escape. That factual
scenario speaks for itself in terms of aggravation. As the state postconviction court concluded, the new
diagnosis of ND-PAE was “not of such a nature” that it “would probably yield a less severe sentence in
a new penalty phase.” This is a weak claim of newly discovered mitigation.
~21
The second threshold issue is whether the current diagnosis of ND-PAE can even
be properly classified as “new.” Dillbeck presented a diagnosis of fetal alcohol effects
as mitigation at the penalty phase in 1991 and the trial court found fetal alcohol effects
as mitigation in its sentencing order. Dillbeck v. State, 964 So.2d 95, 100 (Fla. 2007)
(noting that trial counsel had argued in closing in the penalty phase that Dillbeck
suffered from fetal alcohol syndrome which resulted in brain damage); Dillbeck v.
State, 882 So.2d 969, 970 n.5 (Fla. 2004) (noting that the sentencing court found as
non-statutory mitigation that “Dillbeck suffers from fetal alcohol effect as a result of
his mother’s alcohol consumption”). The prior diagnosis of fetal alcohol effects is a
forerunner to the current diagnosis of ND-PAE. A slight twist on an old diagnosis is
not properly characterized as a “new” diagnosis for purposes of time limitations. The
State made this argument in its answer brief filed in the Florida Supreme Court and
it would assert that same argument again in any merits brief filed in this Court. This
Court would have to decide whether the current diagnosis of ND-PAE can even be
considered new before reaching the question of whether time limitations and diligence
requirements in state successive postconviction litigation violate due process.
Dillbeck totally ignores these threshold issues in his petition to this Court but this
Court would have to address these threshold issues. Because this case involves two
threshold issues, this case is a poor vehicle.
Diligence requirements regarding a new mental diagnosis
The Florida Supreme Court’s time limitations and diligence requirements
regarding a new mental diagnosis are reasonable. Contrary to opposing counsel
argument, it is not an “impossibly high” standard to mandate that the capital defense
bar keep abreast of developments in the most recognized source for mental diagnoses,
the DSM, and then have their client examined for any new diagnosis within a year of
22
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[Read from a scan; the first 30 pages.]
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.