Opposition Brief — Edward T. James, Petitioner v. Florida

DOCKET NO. 21-7015

IN THE SUPREME COURT OF THE UNITED STATES

EDWARD THOMAS JAMES,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

ASHLEY MOODY

ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Office of the Attorney General

PL-01 The Capitol

Tallahassee, Florida 32399

Telephone: (850) 414-3300

capapp@myfloridalegal.com

caroyln.snurkowski@myfloridalegal.com

patrick.bobek@myfloridalegal.com

QUESTION PRESENTED

[Capital Case]

Whether the Florida Supreme Court’s holding that Petitioner’s claim of

incompetency to stand trial—a claim raised 22 years after his case became final,

and which Petitioner had knowingly and voluntarily waived when he declined to

pursue an earlier postconviction motion—was procedurally barred violates the Due

Process Clause.

TABLE OF CONTENTS

CONTENTS

QUESTION PRESENTED...0000..0....cccccccccccceesseeeeeeseseeeeseeaceesseeeesaceeeesesccssesecserecsenseeeeeees i

TABLE OF CONTENTS 00... cee eescceeseeceeesecceeeeeenneneeeessaneessaseeeaneesesneeseaeesesueeeeeecenseees rv

TABLE OF AUTHORITIES... ceeccecceccceessecceeeeesseceeeseseeeeeeeeeeceecesseneessetecsssevesensnees ili

STATEMENT OF THE CASE .000.....cccecccccesesecceeesccneeeeeeseeeeeseeeceeaneesseseesseeeeesseesanseseceees ili

REASONS FOR DENYING THE WRIT ..000. eee ccceeceeeeeseeeenaeeeseneesseaeeesseeeeeesssnsees 7

The Court should deny certiorar...................cccccceccceeceeeeeeescsecenssevsnsssecceneauavceceess 7

A. Petitioner’s case does not implicate the circuit split he alleges,

which is illusory in any CVENE. ............cccccccseeeeesensesessssesneeesesccccccecececucurscenscseeeneees 7

B. This case 18 & poor Vehicle. ..............ccssseeeeeeeceseseeecesevseecssccccnsaseasccesceeansaes 13

C. Petitioner’s due process claim fails on the merits. ........0..cccccccccceceseeseeee 16

CONCLUSION ...0 ccc cceecccceeeee tense snecenesceesesaaaeceeesananeeseessaeeceeeeeeeaeeeseedsessneessneesseeeeeeesses 19

TABLE OF AUTHORITIES

Page(s)

CASES

Battle v. United States,

419 F.3d 1292 (11th Cir. 2005)... ieee ce cecccccecsecceesececcsseeceecescesetaeeseceessecanecseaeees 8

Burket v. Angelone,

208 F.3d 172 (4th Cir. 2000) .........cccccccesesssccesenecescsscssesessecseceesecsessenssesensaesseaseseensessass 7

Case v. Hatch,

731 F.3d 1015 (10th Cir. 2018)... cee cccccceccccsceecscceesssescsesesceceseseecseesecctecesesetsacees 17

Coleman v. Thompson,

BOL U.S. 722 (1991) .o..eeececccscccecssccssesescssessssscesesseecccsecscsssecsnseseaseeseeseesteacecseseneees 13

Durocher v. Singletary

623 So. 2d 482 (Fla. 1998) oo... cceccsccsecssssssessssscccscessceceeesscccesscreesesseeseseeeceseceseucess 3, 14

Dusky v. United States,

362 U.S. 402 (1960)... cccccccsescsscesscsesscsessessesseeansassseceesscensacecsseesssseucscsssscsesscasees 13

Green v. United States,

B55 U.S. 184 (1957)... cccccecscsssscscssesscssssesescsesecseseesecsesscsessusscesneesssssssseessesssssesersesceses 17

Herb v. Pitcairn,

B24. U.S. 117 (1945)... cccescsessccccsecsessersecesscesecseecsecseesseessensesseseessesecsecsecsecsasensavsncenens 13

Hill v. State,

A783 So. 2d 1253 (Fla.1985) .....cccccccccscscsssscsessesscsessecssessceeeeeseesesecsesscecsessssscesseaeeeens 16

Hodges v. Colson,

727 F.8d 517 (6th Cir. 2018)... ccccccccsesssesecssscsecsecesceeesseesseseeseseessessecsecsesesesesseneses 17

James v. Florida,

118 S.Ct. 569 (1997)... ccccscsssscsssseesecsessecsesseteeseesecseesseesseseeeseseesensessesssssccssserscseesenees 3

James v. Singletary,

957 F.2d 1562 (11th Cir.1992). 0.0... ccccccccseescsscessessesecereeessesseeeeeesesseecesecssessesseeseases 13

James v. State,

323 So.3d 158 (Fla. 2021) wo.ccccccccccsccscsscsssssccssevssesescccssscsscsecssesesseseasseseseeasees passim

James v. State,

695 So. 2d 1229 (Fla. 1997) oo... ccecccecccssscesscsccccssssecescsecesscescssceseseessesesseseessececensecence 1,2

dames v. State,

974 So. 2d 365 (Fla. 2008) .......cccccsccscsscssescsscsceeececcesessesseeceessecseseuseaseesesseaees 3, 4, 9, 14

Jimenez v. State,

997 So. 2d 1056 (Fla. 2008) ........ccccccccssscsscessesscsessessecssssecausessecsesscsessessssessssceesees 5, 19

Jones v. State,

A78 So. 2d 846 (Fla. 1985) ......ccccccccsscssssscsseseeseesecseeceeceeesencaeesessessecssceesecsscessssvesssseess 16

Lawrence v. Sec’y, Fla. Dep't. of Corr.,

700 F.3d 464 (11th Cir. 2012).......cccccccsesesecsscscesessessecsecessessessesecsesscsecssssssssceceseseeess 8

Lay v. Royal,

860 F.3d 1807 (LOth Cir. 2017) ......cccccccsccsessesscesscssessecssesseseeseseeestesesscsessesscsnses 17,18

Martinez-Villareal v. Lewis,

80 F.3d 1301 (9th Cir. 1996)..........:ccccceceecceccecceeccesccecceecceececeeecscetececersessceasesseeuees 7,17

Medina v. Singletary,

59 F.3d 1095 (11th Cir. 1995)... .ccceccccccesceccecceeceenceeccescescecececcecseeenseneseneeuens 7, 8,14

O'Sullivan v. Boerckel,

526 U.S. 838 (1999)... ceccceccecccessecceccsescecceececcvscceesssccsscesecececcacersceesesecesaeesesesuseaeanee 17

Pardo v. Sec’y, Fla. Dep’t of Corr.,

587 F.3d 1093 (11th Cir. 2009)... ccecesesesscecstsccsssessssssessscesesseessesesecseeseseenens 8,14

Raheem v. GDCP Warden,

995 F.3d 895 (11th Cir. 2021)... ccccesccssscsssscsscccesuscecsssccesseceeensessaceeseseassteacenseees 8

Rogers v. Gibson,

173 F.3d 1278 (Oth Cir. 1999)... cece cesccsccccscccesescecscccsesseesceseeessesescesceeseaseneeeeaees 7

Rowland v. State, .

A2 So.3d 503 (Miss. 2010) ......ccccccesessecsccscsesssccsceccsccesesceesscceescsececscesenceeseceseeeseneesace 12

Sawyer v. Whitley,

945 F.2d 812 (5th Cir, 1991)... eee ccecccsssscesscsessecsssssessssnecssssesesseevseeeeseceseeeseeseesens 7

Smith v. Moore,

137 F.8d 808 (4th Cir. 1998) .......cccceccccscsceseccsscesscccesscesesscecseceecessessecsesenseeneceessseneeess 17

Smith v. State,

149 So.3d 1027 (Miss. 2014) ..c.cccccccccsccssccscsecssscsscesscsscssccssscssesssssessessescnsseesseaneaees 12

State v. Painter,

426 N.W.2d 513 (Neb. 1988) ........ccccsessesecccsccescsecccesccesscsccecesecesseesecceasesecseasseccereesees 12

State v. Rehbein,

455 N.W.2d 821 (Neb. 1990) .......ccccccecsscessccesscessccesscesessseceseescesseesecseecasensceeneessaeesee 12

Texas v. Mead,

AGB U.S. 1041 (1984)... cece ceccccccesecssecsccesscsececcccccsnecsecessccessecesseseseesaeseaceeeesaneasesers 16

Thomas v. Wainwright,

788 F.2d 684 (11th Cir. 1986) ........cccccccccceccecceceseccecceaceeacceccesseesceeesseseccesseaessecsesseeacens 9

Thompson v. State,

88 So.8d 312 (Fla. 2012) oo... cecsccsccecscecccsccssccsscceeessacceeseeesceseaesecacencesaceeaeeesssaeeeseesees 16

United States v. Curtis,

344 F.3d 1057 (10th Cir. 2003) .......ccceccecceseccesccssccecccceccesececeacecsacesecseceeecseescsaeetseesees 17

United States v. Johnston,

QGBB U.S. 220 (1925) oo. eeecececccesscscecsccessescececcsscesecceasecseceseceesceseeseesaeseaseeseseseesesseeatess 16

Weekley v. Jones,

76 F.3d 1459 (8th Cir. 1996) ......cceccccccsecccececseccesecceceseesecccesecceesceeseneeecerssecseeneeeeaees 7

Wright v. Sec’y Dep't of Corr.,

278 F.3d 1245 (L1th Cir. 2002)... .ccccccccscccccscccsscsssccssccceccsececsecsenecsssssesessnseseneees 8,9

STATUTES

18 U.S.C. § 2254 vccccccccsccscssscsscsscssssccssssscsssscsscsscsscsssrscsssesscssecesenscsscseesccaseaauacsecsseaesesaees 8

28 U.S.C. § D257 veecccccsccccsscsscsccsssscsesesssesssvsesecsececsssecseesessesssssesacaseasscsssssssssaseesseaeeceeeees 13

lv

RULES

Fla. R. Crim. P. 8.851 200. ccecceeccee cece seucceccececcescccsvcnssececcceccersecesseneeesenscseeaseasess 18

Fla. R. Crim. P. 3.851(d)(1), (2) oo... eee ceccesscceesecescceseccesecesencceseaceeeeseeeesasecssecueeseeesacs 18

Fla. R. Crim. P. 3.8510G)(2) ooo... cecscccecssccccsncceesccceceacecscceseessceceeeenscensesessaceceseetsecessecs 5

Fla. R. Crim. P. 3.851 (d)(2) (a)... cccceccssccssssssescsseccsssessceecsccsseencasesessacessansaceessasenensatansess 9

STATEMENT OF THE CASE

Petitioner was convicted for the September 19, 1993, rape and murder of

eight-year-old Toni Neuner, and the murder of her grandmother, Betty Dick. After

fleeing the state, he was eventually captured on October 6, 1993. He gave two taped

confessions and ultimately pleaded guilty to two counts of first-degree murder,

aggravated child abuse, attempted sexual battery, kidnapping, grand theft, grand

theft of an automobile, and two counts of capital sexual battery. He then proceeded

to a penalty phase with a jury.

The record shows that on the night of the murders Petitioner attended a

party at Todd Van Fossen’s house. James v. State, 695 So. 2d 1229, 1230 (Fla.

1997). While there for a few hours, Petitioner drank between six and twenty-four

beers and appeared intoxicated by the time he left. Jd. On his way home to Betty’s

house, where he was renting a room, one witness testified to seeing Petitioner

consume LSD, although Petitioner himself testified he did not remember doing so

and always had good experiences with LSD when he did. /d. at 1230; 1233. After

returning home he drank some gin, ate a sandwich, and retired to his room. /d. at.

1231.

Later in the night he came into the living room where Betty’s four

grandchildren were asleep and grabbed one, Toni, by the neck and strangled her,

hearing bones pop in her neck. /d. Believing her to be dead, he then removed her

clothes and had vaginal and anal intercourse with her before tossing her behind his

bed. /d. Petitioner then went to Betty’s room to have sex with her, and when he

1

arrived, he hit her in the back of the head with a pewter candlestick. /d. Betty woke

and started screaming, “Why, Eddie, Why?’ /d. This awakened another of Betty’s

granddaughters, Wendi Neuner, who witnessed Petitioner stabbing Betty with a

knife. Jd.

When Petitioner spotted Wendi, he tied her up and stashed her in a

bathroom. /d. He then grabbed a butcher knife from the kitchen and stabbed Betty

in the back in case she was not already dead. Jd. He removed her pajama bottoms

but ultimately did not also rape her. Jd. As he was covered in blood, he showered in

the bathroom where he’d left Wendi before gathering some clothes and stealing

Betty’s purse, jewelry, and car. /d. He drove across the country, stopping

periodically to sell jewelry for money, before being captured in California. Jd.

Dr. Shashi Gore performed the autopsy on the two victims. /d. Betty suffered

twenty-one stab wounds to the back, which penetrated organs and fractured ribs,

and more stabs to her neck, face, and ear. /d. She died within a few minutes due to

massive bleeding and shock from her injuries. Toni died from asphyxia due to

strangulation, however the amount of blood pooled in her pelvic cavity indicated she

was still alive when Petitioner raped her. /d.

Following deliberations, the jury recommended a sentence of death for each

murder. The trial court found the existence of three aggravating factors for each

murder: 1) each murder was especially heinous, atrocious, or cruel; 2) Petitioner

was contemporaneously convicted of another violent felony; and 3) each murder was

committed during the course of a felony. The court found sixteen mitigating factors.

2

After finding the aggravating factors outweighed the mitigators, the trial court

followed the jury’s recommendation and sentenced Petitioner to death for each

murder.

Petitioner’s convictions and sentence were affirmed by the Florida Supreme

Court on direct appeal and this Court denied review on December 1, 1997. James v.

Florida, 118 S.Ct. 569 (1997).

Petitioner filed his first motion for postconviction relief on May 27, 1998.

That motion did not assert that Petitioner was incompetent to proceed at the time

he entered his plea, or at any time. After subsequent amendments the trial court set

an evidentiary hearing. However, on March 10, 2003, Petitioner filed a pro se

motion to voluntarily dismiss his postconviction proceedings. James v. State, 974

So. 2d 365, 366 (Fla. 2008). The trial court held a hearing to ensure Petitioner was

competent to proceed and understood the consequences of dismissal, following a

procedure mandated by the Florida Supreme Court in Durocher v. Singletary.) Id.

at 366-67 (requiring that, before a court may dismiss a capital postconviction

proceeding at the defendant’s request, the court must find that “the waiver is made

voluntarily, knowingly, and intelligently,” meaning that the defendant “has the

capacity to ‘understand the consequences of waiving collateral counsel and

proceedings”).

During that hearing, the trial court explained that dismissing his

postconviction motion would result in an end to further challenges to his conviction

1 See 623 So. 2d 482, 483 (Fla. 1993).

and sentence, and Petitioner said that he did not wish to contest his execution:

THE COURT: And that means that this case is basically going to be

over.

[PETITIONER]: I’m sort of hoping that that’s going to be the outcome

of this hearing here .. . . It will be all said and done with and the State

can go ahead and proceed in carrying out its sentence.

Id. at 367-68.

After a “comprehensive Durocher inquiry,” the trial court found that

Petitioner was competent to waive his right to postconviction counsel and

proceedings. Jd. at 367. On April 22, 2003, the trial court entered an order

dismissing Petitioner’s motion and discharging collateral counsel.

In 2005, Petitioner contacted his previous attorneys requesting to reinstate

his postconviction motion. After a hearing with the trial court his request was

denied, and he appealed to the Florida Supreme Court. That court found that the

trial court “conducted a comprehensive Durocher inquiry in 2003...in complete

accord with our opinion in Durocher,” and affirmed the trial court’s ruling that

Petitioner had been competent to waive his postconviction proceedings. /d. at 367-

68. Petitioner did not seek certiorari from that decision.

Thirteen years later, in August 2018, the Capital Habeas Unit for the Office

of the Federal Public Defender for the Northern District of Florida was appointed to

represent Petitioner in relation to federal habeas claims. That office filed an initial

federal habeas petition on December 18, 2018, which prompted Capital Collateral

Regional Counsel (“CCRC”) to move for reappointment to exhaust Petitioner’s state-

court claims. CCRC Middle filed the motion, and simultaneously raised a conflict of

interest. The motion was granted, and the trial court appointed CCRC North to

represent Petitioner.

On November 14, 2019, Petitioner filed a motion for postconviction relief

alleging in part that he was incompetent at the time he pleaded guilty, during his

penalty phase and sentencing, and when he waived postconviction counsel.

Following briefing by the parties and a case management conference, the circuit

court denied Petitioner’s motion because his claims were untimely under Florida

state criminal rules of procedure. It explained:

At the case management conference, the Court first addressed the

timeliness of the [instant successive] motion. For the first time, the

Defendant argued that he was incompetent to enter his plea or waive

his rights to pursue collateral relief in 2003. Defendant’s argument

regarding this issue fails. The Defendant has not given any legal

justification for waiting nearly seventeen years after the voluntary

dismissal of his motion to claim he was incompetent to enter that

waiver. The initiation of a federal petition does not constitute newly

discovered evidence that would authorize a defendant to override a

prior voluntary waiver or overcome the time bar. “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.”

Jimenez v. State, 997 So. 2d 1056, 1064 (Fla. 2008), as revised on

denial of reh’g (Sept. 29, 2008), as revised on denial of reh’g (Dec. 18,

2008). He asserts that he was incompetent to dismiss his collateral

motion, but issues relating to his competence to waive his rights would

have been discoverable within one year of that waiver. See id.; Fla. R.

Crim. P. 3.851(d)(2). Notably, he did not claim that he was

incompetent to make the decision in his 2006 action to rescind his

waiver or at any time until 2019. This Court finds that ground 3 is

untimely. Accordingly, the other substantive claims raised in grounds

1, 2, and 5 are also untimely.

James v. State, 323 So.3d 158, 160 (Fla. 2021).

5

The Florida Supreme Court affirmed the ruling that the claims were

untimely. /d. at 160-61. In doing so, it wrote that “James’s convictions and

sentences have been final for more than twenty-three years, and James makes no

argument as to why he believes these claims were timely or why the trial court

erred in dismissing them as untimely.” Jd. The court likewise found that “because

the issue of James’s competency to waive his state postconviction proceedings was

raised and resolved in a prior postconviction proceeding, it 1s procedurally barred

and not subject to relitigation in the instant proceeding.” /d. at 161.

REASONS FOR DENYING THE WRIT

The Court should deny certiorari.

Petitioner asks this Court to review the Florida Supreme Court’s decision

affirming the denial of his postconviction motion. In support, he points to a

perceived ack of consensus among federal courts as to whether a state procedural

bar is applicable in cases like his. But the facts of his case do not implicate that

circuit split; his case would be a poor vehicle for resolving it in any event; and the

courts that recognize that a defendant can procedurally default a claim of

substantive competency are correct.

A. Petitioner's case does not implicate the circuit split he alleges, which is

illusory in any event.

1. Petitioner identifies an alleged federal circuit split on the question whether

a defendant's failure to raise a substantive competency claim in state court

procedurally bars him from raising that claim in a federal habeas corpus

proceeding. Compare Medina v. Singletary, 59 F.3d 1095, 1111 (11th Cir. 1995);

Rogers v. Gibson, 173 F.3d 1278, 1289 (10th Cir. 1999), with Martinez-Villareal v.

Lewis, 80 F.3d 1301, 1806-07 (9th Cir. 1996); Weekley v. Jones, 76 F.3d 1459, 1461

(8th Cir. 1996) (en banc); Burket v. Angelone, 208 F.3d 172, 191 (4th Cir. 2000):

Sawyer v. Whitley, 945 F.2d 812, 823-24 (5th Cir. 1991). For several reasons, his

case does not implicate that perceived split.

First, the cases on Petitioner’s preferred side of the split address the

circumstance where a defendant has actively challenged his conviction and sentence

in state court but merely failed to present the state courts with a substantive

competency challenge. In that circumstance, the Tenth and Eleventh Circuits say,

the defendant’s failure to raise the claim in state court should not bar him from

raising it in a federal habeas proceeding under 18 U.S.C. § 2254.

But the trial court and Florida Supreme Court in Petitioner's case did not

base their finding of procedural default on the mere failure to raise a substantive

competency claim in state court. Rather, they pointed to Petitioner’s extreme delay

in bringing the claim in state court. See James, 323 So. 3d at 160-61. Indeed, as the

Florida Supreme Court observed, not only had Petitioner’s “convictions and

sentences been final for more than twenty-three years,” Petitioner “maldel no

argumént as to why he believes these claims were timely or why the trial court

erred in dismissing them as untimely.” Jd. It is one thing when a defendant fails to

raise a claim in state court but otherwise promptly raises the claim in federal court;

it is quite another when the defendant engages in a decades-long, unexplained

failure to present the claims for timely adjudication.?

2 The Eleventh Circuit decisions Petitioner cites at page 7 of the Petition involve

varying degrees of procedural defaults in the state courts, but none involved a claim

of lengthy and unexcused delay. See Medina v. Singletary, 59 F.3d 1095, 1111 (11th

Cir. 1995) (considering a substantive competency claim even though defendant did

not raise it on direct appeal); Wright v. Sec’y Dep’t of Corr., 278 F.3d 1245, 1258-59

(llth Cir. 2002) (same); Battle v. United States, 419 F.3d 1292, 1298 (11th Cir.

2005) (same); Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1101 n.3 (11th Cir.

2009) (same); Lawrence v. Sec’y, Fla. Dep’t. of Corr., 700 F.3d 464, 481 (11th Cir.

2012) (considering a substantive competency claim even though defendant did not

raise the claim either on direct appeal or in state habeas); Raheem v. GDCP

Warden, 995 F.3d 895, 929 (11th Cir. 2021) (same, but where defendant raised his

mental health throughout the state-court proceedings).

8

Second, the courts on Petitioner’s preferred side of the split were not

presented with another unique feature of this case: that Petitioner himself

voluntarily, knowingly, and intelligently waived his right to challenge his conviction

and sentence in state postconviction proceedings. Florida law guaranteed Petitioner

a full and fair opportunity to present postconviction challenges to his sentence,

including the claim that newly discovered evidence established his incompetency to

proceed at the trial stage. Fla. R. Crim. P. 3.851 (d)(2)(a). But in 2003, Petitioner

announced that he wished to waive his pending postconviction proceedings. James

v. State, 974 So. 2d 365, 366 (Fla. 2008). Following a hearing at which Petitioner

was thoroughly colloquied on that decision, the trial court found that Petitioner was

competent and understood the rights he was giving up. /d. at 367-68. The Florida

Supreme Court affirmed that ruling, and Petitioner did not seek certiorari. /d.

Though Petitioner asserts that he would be entitled to raise his substantive

competency claim in the Eleventh Circuit, that is not the case. True enough, the

Eleventh Circuit has said that a defendant’s failure to raise a competency claim in

state court will “generally” not preclude him from raising a substantive competency

claim on federal habeas review. Wright, 278 F.3d 1245, 1259. But Petitioner ignores

the Eleventh Circuit’s decision in Thomas v. Wainwright, 788 F.2d 684 (11th Cir.

1986), which carves out an exception to that general rule. In Thomas, the court of

appeals refused to entertain the same type of claim Petitioner raises here,

distinguishing its earlier cases on the ground that the defendant in Thomas (1)

failed to raise the claim on direct appeal; (2) failed to raise the claim in his first

9

rounds of state and federal habeas corpus petitions; and (8) failed to adequately

explain those earlier failures. /d. at 688. Because a “defendant is [not] free to drop

the [competency] issue or later pick it up as it suits his purposes,” the Eleventh

Circuit held that the defendant’s claim was procedurally defaulted. Moreover, the

court pointed to the weakness of the defendant’s factual support for the claim,

noting that—not unlike in Petitioner's case—“[plresent counsel have employed

experts who, nine years after the fact on the eve of the scheduled execution, have

concluded that Thomas was incompetent to stand trial.” Jd.

Based on that ruling, it is likely that the Eleventh Circuit, were it to consider

Petitioner’s theories, would reject them. Even now, Petitioner has offered no

credible explanation for why, at some earlier point in the proceedings, he could not

have raised his competency claim. And as explained in depth below, the factual

support for his current claim is equal parts scant and late-breaking.

It makes sense that the reasoning of Petitioner’s preferred cases does not

stretch so far as to cover these facts. When a defendant is in fact incompetent, the

Tenth and Eleventh Circuits appear to reason that it is unfair to hold him

accountable for the failure to challenge the conditions under which his conviction

and sentence were obtained. Those cases therefore turn on the assumption that the

defendant may have been incompetent at all times throughout direct appeal and

postconviction proceedings, thus excusing the failure to litigate the claim. But that

is decidedly not true in Petitioner’s case. The trial court in 2003 carefully

adjudicated the question of Petitioner’s mental fitness for the materially identical

10

purpose of waiving his right to counsel and his right to level a postconviction

challenge. That court and the Florida Supreme Court found that Petitioner was

competent. From then on, no conceivable justification could exist for Petitioner’s

failure to litigate any alleged concern for his competency at the trial stage.

In other words, the unique facts of Petitioner’s case do not implicate the split

he alleges because he would lose even in the jurisdictions where the law in this area

is most favorable.

Third, at any rate, the split is largely illusory. Though Petitioner touts two

circuits that allow defendants to raise substantive competency claims, he produces

no case in which a defendant actually obtained habeas relief. Rather, every case he

cites addressing the merits of a procedurally defaulted substantive competency

claim holds that the claim warranted no ultimate relief; in each, the defendant

failed to meet his burden of offering clear and convincing evidence of his

incompetency at the time of trial. As a result, none of those discussions of

procedural default mattered to the outcome, and it is far from clear that those cases

involve anything more than dicta. See “Obiter dictum,” Black’s Law Dictionary

(11th ed. 2019) (defining dicta as “[a] judicial comment made while delivering a

judicial opinion, but one that is unnecessary to the decision in the case and

therefore not precedential (although it may be considered persuasive)”).

As for a couple of state-court decisions that Petitioner asserts as part of his

alleged split, none resulted in a ruling in favor of the defendant, and none hold that

the Due Process Clause forbids states from imposing procedural bars in the

11

competency context. Though Petitioner cites (Pet. 12-13) State v. Painter, 426

N.W.2d 513 (Neb. 1988), as a case that goes his way, it actually goes the opposite.

The Nebraska Supreme Court there declined to consider the defendant’s

freestanding competency claim based on its “longstanding rule that a motion for

postconviction relief may not be used to obtain review of issues which could have

been raised on direct appeal.” Jd. at 280. It considered only the defendant’s

ineffective-assistance-of-counsel claim predicated on counsel’s failure to timely

investigate the defendant’s competency—a claim which, under state rules of

procedure, need not have been raised on direct appeal. See id. at 280, 283-84. The

court ultimately denied relief. Id. at 284; see also State v. Rehbein, 455 N.W.2d 821,

287 (Neb. 1990).

Petitioner also relies on cases from Mississippi, Pet. 13, but those appear to

be based not on any constitutional requirement that state courts consider

procedurally defaulted substantive competency claims, but on Mississippi’s

interpretation of its own statute governing postconviction proceedings. See Smith v.

State, 149 So.3d 1027, 1031 (Miss. 2014); Rowland v. State, 42 So.3d 503, 506-08

(Miss. 2010) (interpreting Mississippi's Uniform Post—Conviction Collateral Relief

Act to permit defaulted claims involving “fundamental rights”). And even assuming

those cases recognize a constitutional rule in the State of Mississippi, it is unlikely

to apply in the case of Petitioner's extreme delay and knowing, voluntary, and

intelligent waiver of the right to seek postconviction relief.

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B. This case is a poor vehicle.

If this case implicates a split, it is a poor vehicle for other reasons. To begin

with, Petitioner has presented no meaningful evidence in support of his substantive

competency claim, and thus no reason to believe that he could prevail on remand

even if the Florida courts were required to consider his claim on the merits. See

Coleman v. Thompson, 501 U.S. 722, 730 (1991) (‘When this Court reviews a state

court decision on direct review pursuant to 28 U.S.C. § 1257, it is reviewing the

judgment; if resolution of a federal question cannot affect the judgment, there is

nothing for the Court to do.”). As this Court explained in Herb v. Pitcairn, its “only

power over state judgments is to correct them to the extent that they incorrectly

adjudge federal rights.” 324 U.S. 117, 125-126 (1945). Consequently, the Court is

“not permitted to render an advisory opinion, and if the same judgment would be

rendered by the state court after we corrected its views of federal laws, our review

could amount to nothing more than an advisory opinion.” /d. at 126.

Here, had the Florida Supreme Court addressed the merits of Petitioner's

competency claim the outcome of the proceedings would not have been different.

Petitioner was seeking an evidentiary hearing on the issue of his competency at the

time of his guilty pleas, penalty phase hearing and sentencing, and postconviction

waivers. “A defendant is considered competent to stand trial if ‘he has sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding, and [if] he has a rational as well as factual understanding of the

proceedings against him.” James v. Singletary, 957 F.2d 1562, 1574 (11th Cir.1992)

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(quoting Dusky v. United States, 362 U.S. 402 (1960)). To show entitlement to a

postconviction evidentiary hearing on a substantive competency claim, “the

standard of proof is high [and] the facts must positively, unequivocally, and clearly

generate the legitimate doubt.” Medina, 59 F.3d at 1106 (citations omitted). “[T]he

petitioner must present a preponderance of ‘clear and convincing evidence’ of

‘positive’, ‘unequivocal’, and ‘clear’ facts ‘creating a real, substantial and legitimate

doubt’ as [to] his competence.” Pardo v. Sec’y, Fla. Dep't of Corr. 587 F.3d at 1101

(quoting Medina, 59 F.3d at 1106).

Despite his arguments to the contrary, Petitioner fell well short of presenting

the required clear and convincing evidence that would give rise to a real,

substantial, and legitimate doubt as to his competency at any part of the

proceedings. The crime in this case occurred in 1993 and Petitioner pleaded guilty

in 1995. He waived his postconviction counsel in 2003 and—following a proceeding

governed by the Florida Supreme Court’s decision in Durocher v. Singletary, 623 So.

2d 482 (Fla. 1993)—the circuit court found that he was competent to waive both his

right to counsel and his right to postconviction proceedings. That finding was

affirmed by the Florida Supreme Court on appeal. James v. State, 974 So. 2d 365

(Fla. 2008).

At no time during any of these proceedings, from 1993 to 2008, did any of

Petitioner's trial, appellate, or postconviction attorneys, prosecutors, or judges ever

express any concern as to his competency to proceed. To this day, current counsel

has been unable to produce a statement from any of those attorneys expressing such

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concerns. In fact, the only testimony from any of his attorneys is the opposite: One

of his trial attorneys testified in 2001 that he did not observe any mental health

issues when he would meet with Petitioner, but that he had made such observations

with other clients. Resp. App. at 19—20. To the contrary, Petitioner was helpful and

“seemed to be very intelligent.” Resp. App. at 21. He was even interviewed by a

psychiatrist prior to his penalty phase trial, Dr. E. Michael Gutman, who never

exhibited any concerns as to Petitioner’s competency.

The two experts Petitioner cites now did not see him until 2018, 23 years

after he pled guilty. Importantly, neither expert claims that Petitioner was

incompetent when they evaluated him or that he was incompetent at the time of his

pleas or postconviction waivers: they instead merely express concern as to his

current cognitive impairments. Pet. App. at 425; 430. They also both note that his

currently impaired condition is a result of cognitive decline over time, meaning he

was in worse condition when they saw him in 2018 than he would have been in 1995

or 2008. Pet. App. at 424; 428. And yet, even in 2018 neither expert found him

incompetent to proceed. Indeed, despite these alleged impairments, when one

expert administered an IQ test, he determined that Petitioner had a 105 1Q, which

is above the average of 100.

This case is also a poor vehicle for resolving any purported split because of

the numerous other avenues Petitioner himself claims to possess to litigate his

substantive competency claim. As Petitioner points out, Florida law itself affords

defendants the right to present otherwise procedurally barred substantive

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competency claims if the circumstances strongly suggest actual incompetency. See

Thompson v. State, 88 So.3d 312, 317 n.1 (Fla. 2012) (citing Jones v. State, 478 So.

2d 346, 347 (Fla. 1985); Hill v. State, 473 So. 2d 1253 (Fla.1985)). That Petitioner

failed to meet that exception does not mean that Florida’s procedural rules

unconstitutionally preclude him from litigating a valid incompetency claim. And

even if Petitioner had raised such a claim in the state court and sought to challenge

the state court’s denial on that basis, “[p]ostconviction claims of incompetency are

extremely fact-dependent.” /d. The law is well-settled that this Court does not grant

a certiorari “to review evidence and discuss specific facts.” United States v.

Johnston, 268 U.S. 220, 227 (1925); Texas v. Mead, 465 U.S. 1041 (1984).

More than that, Petitioner claims to have the right to raise his substantive

competency claim in the Eleventh Circuit despite his procedural default in state

court. Pet. 7. If he is correct (which he is not), then this Petition is largely

irrelevant—whatever the outcome here, he will be allowed to raise his claim in

federal court. By Petitioner's own reasoning, then, this issue is unimportant in the

context of this case.

C. Petitioner’s due process claim fails on the merits.

Finally, Petitioner fails to demonstrate any constitutional infirmity in the

procedural bar applied by the Florida Supreme Court or the Fourth, Fifth, Eighth,

and Ninth Circuits. In a concurring opinion, Judge Briscoe of the Tenth Circuit

Court of Appeals gave a breakdown of the differences between waiver and

procedural default, and offered good policy reasons why substantive competency

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claims should be subject to procedural default:

The problem with our using the Supreme Court’s statement in Pate as

our guide, as some of our sister circuits have aptly noted, is that the

defenses of waiver and procedural default are very different. The

waiver doctrine rests upon a defendant’s “voluntary knowing

relinquishment of a right.” Green v. United States, 355 U.S. 184, 191,

78 S.Ct. 221, 2 L.Ed.2d 199 (1957); see United States v. Curtis, 344

F.3d 1057, 1066 (10th Cir. 2003). In contrast, the procedural default

rule is designed “to ensure that state prisoners not only become

ineligible for state relief before raising their claims in federal court, but

also that they give state courts a sufficient opportunity to decide those

claims.” O’Sullivan v. Boerckel, 526 U.S. 838, 853, 119 S.Ct. 1728, 144

L.Ed.2d 1 (1999). Moreover, the procedural default rule relies solely on

the fact that a “claim was rejected by the state court on independent

and adequate state grounds.” Martinez—Villareal v. Lewis, 80 F.3d

1301, 1307 (9th Cir. 1996). Given this distinction, some of our sister

circuits have reasonably held that substantive competency claims,

while not subject to waiver, are subject to the usual procedural default

rules that apply to most other constitutional issues. E\g., Hodges v.

Colson, 727 F.3d 517, 540 (6th Cir. 2013) (“Although it is true that

substantive competency claims cannot be waived, they can be

procedurally defaulted. We hereby hold that substantive competency

claims are subject to the same rules of procedural default as all other

claims that may be presented on habeas.”); Smith v. Moore, 137 F.3d

808, 819 (4th Cir. 1998); Martinez—Villareal, 80 F.3d at 1306-07.

Lay v. Royal, 860 F.3d 1307, 1318-19 (10th Cir. 2017, Briscoe, concurring).

Judge Briscoe went on to explain that circuit courts that do not recognize

these state procedural bars run counter to the restrictions Congress placed on

federal habeas review under the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). Jd. at 1819. AEDPA was enacted not only to “afford the appropriate

respect for the finality of state court proceedings,” but also “to conserve judicial

resources and to streamline the federal habeas process.” Jd. (quoting Case v. Hatch,

731 F.3d 1015, 1045 (10th Cir. 2013)). Petitioner’s proposed approach—which lends

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him no support in any event—undermines those interests. It also puts federal

courts in an odd procedural posture because it would allow a court to grant federal

habeas relief based on a claim that was never addressed on the merits by state

courts. Jd.

The sweeping rule Petitioner apparently advances—that a state defendant

can procedurally default a substantive competency claim under no set of

circumstances, including circumstances as extreme as his own—makes little sense.

Even granting that the Due Process Clause requires some limited exception to

normal rules of procedural default, that exception would apply only insofar as the

defendant nevertheless raised the substantive competency claim at the earliest

practicable moment. For example, under the best-case scenario for Petitioner, the

Due Process Clause might have afforded him some limited window after he

regained competency within which to challenge his conviction and sentence.

Further delay after that point would be unjustifiable. But Petitioner has not shown

that he acted swiftly upon reattaining competency (again, the State disputes that he

was ever incompetent to begin with); as the Florida Supreme Court noted,

Petitioner failed so much as to attempt to explain why it took him 22 years to raise

his current claim, and never alleged that he filed his most recent claim within a

year of reattaining competency, as Florida Rule of Criminal Procedure 3.851 would

otherwise demand. James, 323 So. 3d at 160-61; see Fla. R. Crim. P. 3.851(d)(1), (2)

(requiring postconviction motions to be filed within one year after the judgment and

sentence become final unless the “facts on which the claim is predicated were

18

unknown to the movant or the movant's attorney and could not have been

ascertained by the exercise of due diligence”); Jimenez v. State, 997 So. 2d 1056

(Fla. 2008) (1-year statute of limitations governing claims of newly discovered

evidence in the capital habeas context runs from the “date upon which the claim

became discoverable through due diligence”).

Thus, whatever the merits of the rule in the Tenth and Eleventh Circuits, the

rationale of cases like Medina and Rogers affords defendants no right to flout

indefinitely the rules that states have created to ensure the orderly administration

of justice and the finality of criminal convictions.

CONCLUSION

Based on the foregoing, Respondent respectfully requests that this Court

deny the petition for writ of certiorari.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL _

Lba MU AME WL, tA, LLU 7

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Florida Bar No. 158541

Counsel of Record

PATRICK BOBEK

Assistant Attorney General

Office of the Attorney General

PL-01 The Capitol

Tallahassee, Florida 32399

Telephone: (850)414-33300

capapp@myfloridalegal.com

carolyn.snurkowski@myfloridalegal.com

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