Opposition Brief — David Byron Russ, Petitioner v. Florida

DOCKET NO. 22-6882

IN THE SUPREME COURT OF THE UNITED STATES

DAVID BYRON RUSS,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Office of the Attorney General

P1-01, The Capitol

Tallahassee, Florida 32399

Telephone (850) 414-3300

caroyln.snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

[Capital Case]

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

incompetency to stand trial—a claim raised nearly ten 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 PAGES

QUESTION PRESENTED ....00.....eccccceceenceeeeseceeeeeneeeseeteessncesseasesseuseeecessnesecesssssnsensenenees i

TABLE OF CONTENTS ........cccccccecceccceesssceeeeeeeeenesauececcueeeseeecsecessseeseeeeessneeeesessseeeeeesees li

TABLE OF AUTHORITIES |... cececsceeesseceensececsseeeeneceeeaseesseneeessesseceeseeeseaneessees ii

STATEMENT OF THE CASE oo. ceeeesneesesenecssceeceneeecseeeessseeseesensneeeeseeesssasessenenss 1

REASONS FOR DENYING THE WRIT ..............cccccccssccsescessnseecseeeesessseeseeceeessereesenenss 5

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

which is illusory in Any CVENE. ...........ccceccccseesseeeeseneeeceeseeeneenaceneceueescssceccessececseccs 5

B. This case is a poor Vehicle. ...........ccccececesecsesssesesnsscsseuscesceuccseneeeuccecceseauens 11

C. Petitioner’s due process claim fails on the merits. ...........0......ccssseseseeeee 15

CONCLUSION 0.0... eececceeeesseneeesssnenseeecsneeesaeeessseesenssasessaeeeeaesenseecaeeeeeeseeeenseeseneeees 17

CERTIFICATE OF SERVICE ooo ee cecceecesneeeeesneeeeceneeseneeeseneesessnaeeeeessessanseassaesenes 1

TABLE OF AUTHORITIES

PAGE(S)

CASES

Battle v. United States,

A19 F.3d 1292 (11th Cir. 2005)... cceeesccccescessssscsseccsscecsssesecesscecsececssecssecsseeeseneseses 6

Burket v. Angelone,

208 F.3d 172 (4th Cir. 2000).....0...ccccsecesccccecscescccscccseseccesccseceseesececaceesaesencceeeaseeeeeeees 5

Case v. Hatch,

731 F.3d 1015 (LOth Cir. 2013).......cccccsccsssssscsscssccsscsssssscssssecsescesessesesecesessseeseeeenes 16

Coleman v. Thompson,

BOL U.S. 722 (1991) ..ceeccecccssesecccssccesccecscesessccecsscscecssccssecssscsceseveccesseessesceaeesenseeeaeess 11

Durocher v. Singletary,

623 So. 2d 482 (Fla. 1998) ......eeccccesccscsesseceseccsssseccsecevsccccsesseeessceesscesestecenseseseeeeseeeaaee 3

Dusky v. United States,

362 U.S. 402 (1960) ooo. eee ceeecscccsessscessssccessseccsvececesecssecessevscecssescesesscsuecesseseseceeserens 12

Green v. United States,

355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).....ccccceccccscscssescscscssseseseseesees 15

Herb v. Pitcairn

324 U.S. 117 (1945) ooo. ceecesecscsscccccsccecsscccccsscescsssecscecccseceeccesaeeceesecsesecesecesceesensneeesate 11

Hill v. State,

AT3 So. 2d 1253 (Fla.1985) ........csscccescscccseccsssceceseccseseesscceccsseseceesecsneeesececenaeeesensceass 14

Hodges v. Colson,

727 F.3d 517 (6th Cir. 2013)... ccccccccecseccceccccseecscscccesscecssssceseacesacsesseeesseseeeseneeesnes 15

James v. Singletary,

957 F.2d 1562 (11th Cir, 1992)... ccc ccceccsccscccsessecsscsescesscesssaseseesecceesseceeeseneeesenseeess 12

James v. State,,

323 So.8d 158 (Fla. 2021) ......ec.ccccccssccceccccseccceceececeseseceseceessssccessensesecaccesecesccessseess 17

Jimenez v. State,

997 So. 2d 1056 (Fla. 2008) .0.......ccececceseecccceeecccceeeeeccceecceeecsesscessceeseesessccessnacecenceeess 17

Jones v. State,

A7T8 So. 2d 846 (Fla. 1985) .......cccccscccceccceeccesscceecceccceeccscccaccessceceesesesecesceeseceeeseeseens 14

Koon v. Dugger,

619 So.2d 246 (Fla. 1998) .o...eecccccccsccessccccesscccecscececcecseccecsececcesseesaneesanceessaceeeeseneeeacens 2

Lawrence v. Sec’y, Fla. Dep’. of Corr.,

700 F.3d 464 (11th Cir. 2012)... ..ececececsscceseccececceseccececcesssecesceseceecessscccecseccessceeeseens 6

Lay v. Royal,

860 F.3d 1307 (10th Cir. 2017, Briscoe, concurring) .......0....cccccccsseseseesseeeeeeees 15, 16

Martinez Villareal v. Lewis,

80 F.3d 1301 (Oth Cir. 1996) .......c.cccccccccssscssccssessessessssscecssessssevsssecesnsesseeseaeeeaeees 5,15

ill

Medina v. Singletary,

59 F.3d 1095 (11th Cir. 1995)... cece ccccsessecccesssecessecsssccusssssesosssecesseessesessanes 5, 6, 12

O'Sullivan v. Boerckel,

526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)... ccccceeeseeseeseesseeeeeeens 15

Pardo v. Sec’y, Fla. Dep't of Corr.,

587 F.3d 1098 (11th Cir. 2009). 0.0... cccccccecscecssceseesseseeseseesessesecssesessesseeeesneeeseeeeees 6, 12

Raheem v. GDCP Warden,

995 F.3d 895 (11th Cir. 2020)... ccc cccccccsessscecccceececeeseccesecceescccesseceseseceseserseneneeteeeaes 6

Rogers v. Gibson,

173 F.3d 1278 (LOth Cir. 1999).........ccccccccccsscsssesscessesessessessecesssceessesessecsesneeensesensseeseees 5

Rowland v. State,

42 So.3d 503 (Miss. 2010) ooo... ceeceeseessccccccesessccsecesccssessevevececeseceeseeseeseeeereeesersuaeeees 10

Russ v. State,

73 So.3d 178 (Fla. 2011) ...cccecccccccessecsscsssssseesessencscceesessecaeseesecessseaecaeseeeseseseseneeaes 1,2

Russ v. State,

107 S0.3d 406 (Fla. 2012) oo..ccceccccccccssssscssssscseessessesssscsssseecseesecesseceesessuseeseeeeneseaseesees 3

Russ v. State,

2022 WL 1055029 (Fla. 2022)... eee cccccececesssseeseccssesesscesssssessssessssessessasessecsssaceees 4,6

Sawyer v. Whitley,

945 F.2d 812 (Sth Cir, 1991)... ceceesseeeescsssssssssessssssssssessssssesssecsesscssssecesesseees 5

Smith v. Moore,

187 F.3d 808 (4th Cir. 1998)... eee ceeesesecesseesssseecseccsssssssscssesssesssssesssessessaeeveneeee 15

Smith v. State,

149 So.3d 1027 (Miss. 2014) oo... ceececceesesecceecccsscccecesscceseceessscccssssecsececssesceesecesencevee 10

State v. Painter,

426 N.W.2d 513 (Neb. 1988)... eeescccccceesseccccecesscceessrecssceceseecucecsseesecesssseaseeseeaees 9

State v. Rehbein,

455 N.W.2d 821 (Neb. 1990) .........cccccceccsscsseesecssecsessesecsecsesecsecseesessesesseeseasecescesceses 10

Texas v. Mead,

AGB U.S. 1041 (1984) occ cccccecescsscscsceecsssecscscesssssseecececsescsssssesssesessseceesuseeeneeesesess 14

Thomas v. Wainwright,

788 F.2d 684 (11th Cir. 1986)... ceceesecccccecesssccccsscccessceesssccessceessacecssasecersesereeeeees 7

Thompson v. State,

88 So.3d 312 (Fla. 2012) oo... ccceccccescsscsscsscsccssscssessssescescsesseseecesecscseseesesseseecseeeeseeses 14

United States v. Curtis,

344 F.3d 1057 (Oth Cir. 2003)... cceeeeecccceccssecccesscceessceessececseceesnseesssssececesseeacers 15

United States v. Johnston,

268 U.S. 220 (1925) eee ececcecesescesessscccccccceseseeccescsssececessececesssssecessaseesesnnaceeeeseeeseesees 14

Weekley v. Jones,

76 F.3d 1459 (8th Cir, 1996)... ecececesecescssecccessceccscesecccscesesseseecesscssscesecseceeceececsnes 5

Wright v. Sec’y Dep’ of Corr.,

278 F.3d 1245 (11th Cir. 2002)... eeseeeccceceessececsscecssccecssecececsecssceeseseaaeseseseesers 6

Wright v. Sec’y Dep‘t of Corr.,

278 F.3d 1245 (11th Cir. 2002) .......ccccccccscsssccssccssecssesscssessecsececcscccessscscessesesessssassasees 7

STATUTES

18 U.S.C. § 2254 oocceccecccsccscccesescscsvcsssscscsevsesssessssesscsscavscsssscevsessuacsctacsveucecacenesersececsers 6

28 U.S.C. § 1257 oo ccceccecesesessescssscsccsseesessessseessesscsscsesscacsssacsesesecavacsevavsceccassecsevaseeeees 11

RULES

Fla. R. Crim. P. 3.851 .........ccccccccccccccosccccsscscceceucecevcccucseaecutcucencaucencastssceececcssenescanaueneaces 17

Fla. R. Crim. P. 3.851(d)(1), (2) ...cccccccccccssccscecescccssccccescccccccsscseesecsesaceeccessesesecssecencesenees 17

Fla. R. Crim. P. 3.851 (d)(2)(a).....ccccccccccecccesccsssccessccccesscescssscsesscesssssssessessccesessesecesscees 7

STATEMENT OF THE CASE

Petitioner was convicted for the May 7, 2007 murder of Madeleine Leinen.

The night before, May 6, 2007, Petitioner was found asleep in his car by a Longwood

Police Officer. Russ v. State, 73 So.3d 178, 183 (Fla. 2011). He had been on a tenday crack binge and had drugs in the car, so when the office tried to make contact,

Petitioner sped off. /d. During the pursuit, Petitioner abandoned his car and was

able to hide on a roof adjacent to the home of his eventual victim. Jd. The next

morning he saw Leinen leave her home and decided to make her his victim. /d.

Leinen returned home shortly after 6:00 p.m., which is when Petitioner killed her

and absconded with her car and many of her valuables. /d. at 184. He immediately

attempted to withdraw her money from an ATM but was unsuccessful, then started

making his way toward Texas. /d. On May 8, 2007, Leinen’s body was found by one

of her friends, facedown in a bathroom, her hands and feet tightly bound with rope

and rope ligature around her neck. /d. The medical examiner observed a variety of

injuries on Leinen: injuries from strangulation with a neck ligature; three

lacerations to her scalp consistent with blunt force trauma; four stab wounds, three

to her back and one to her head; facial bruising; fractured ribs; and a dislocated

clavicle. Jd. Several items of the victim’s jewelry were recovered from a pawnshop in

Texas, and Petitioner was ultimately apprehended in Denton, Texas on May 16,

2007. Id.

Petitioner was indicted on five charges: 1) first-degree premeditated murder;

2) kidnapping with a deadly weapon; 3) carjacking; 4) robbery with a deadly

1

weapon; and 5) burglary with assault or battery. /d. On February 6, 2008!, knowing

the State intended to seek the death penalty and without a plea offer in place,

Petitioner pled guilty as charged to four of the charges, and to the lesser-included

offense of grand theft to count 3. /d. Petitioner first expressed a desire to waive

mitigation and a penalty phase jury through counsel on April 9, 2008, and despite

the court’s urgings to change his mind, maintained this stance. /d. at 184-5. On

April 80 and May 1, 2008 the court held a Koon? hearing to ensure Petitioner

understood the implications of his waiver. Jd. at 185. Following the hearing the

court accepted Petitioner’s waivers, ordered a presentence investigation report, and

appointed special counsel to present mitigation. Jd.

Following the penalty phase the trial court found the existence of four

aggravating factors: the capital felony was 1) committed while the defendant was

engaged in the commission of a kidnapping; 2) committed for pecuniary gain} 3)

especially heinous, atrocious, or cruel; and 4) committed in a cold, calculated, and

premeditated manner. /d. at 187. The court found the existence of two statutory

mitigators and seven nonstatutory mitigators. /d. After weighing the aggravators

and mitigators, Petitioner was sentenced to death. Jd. Petitioner’s convictions and

sentences were upheld on direct appeal, and he did not seek review by this Court.

Id, at 200.

1 While the Florida Supreme Court opinion reads, “February 6, 2009”, this appears

to be a scrivener’s error as a review of the trial docket and plea form confirms a date

of February 6, 2008.

2 Koon v. Dugger, 619 So.2d 246 (Fla. 1993)

2

Shortly after his postconviction proceedings commenced, Petitioner filed a

motion to dismiss those proceedings and discharge his collateral counsel on

November 1, 2011. Russ v. State, 107 So.3d 406 (Fla. 2012). On January 19, 2012,

the court held a hearing pursuant to Durocher v. Singletary, 623 So. 2d 482 (Fla.

1993) to determine Petitioner’s competency and evaluate whether he understood the

consequences of waiving counsel and collateral proceedings. Huss, 107 So.3d at 406.

Following that hearing and a lengthy colloquy the court found him competent and

issued an order discharging counsel and collateral proceedings. Jd. His collateral

counsel appealed that order, and the Florida Supreme Court approved of the trial

court’s procedure and affirmed the finding that he was competent to waive his

postconviction proceedings. Jd.

Petitioner’s case then lay dormant for several years until June 2018, when

the Capital Habeas Unit of the Federal Public Defender for the Northern District of

Florida (“CHU”) moved to be appointed as Petitioner’s federal counsel. Pet. App. at

452-7. The district court granted the motion, and CHU ultimately filed a habeas

petition on December 23, 2018, as well as a motion to stay the federal proceedings

pending exhaustion of the claims in state court, which was granted.

On April 17, 2019, the state circuit court appointed Collateral Capital

Regional Counsel — North to represent Petitioner, and on December 30, 2020,

Petitioner filed a motion for postconviction relief, alleging, among other things, his

incompetency at the time of his plea, penalty phase waivers, and postconviction

waivers. The state filed a response on January 19, 2021, and on July 16, 2021, the

3

motion was summarily dismissed as untimely and procedurally barred. On

February 8, 2022, these findings were affirmed by the Florida Supreme Court on

appeal. Russ v. State, 2022 WL 1055029 (Fla. 2022).

REASONS FOR DENYING THE WRIT

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 lack 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, 1306-07 (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 delay in

bringing the claim in state court and inability to meet any of the time limitation

exceptions. Auss, 2022 WL 1055029 at 1. 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 decade-long, unexplained

failure to present the claims for timely adjudication.?

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

3 The Eleventh Circuit decisions Petitioner cites at page 9 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

(11th 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).

6

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. Pro. 3.851 (d)(2)(a). But in 2011, Petitioner

announced that he wished to waive his pending postconviction proceedings.

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. The Florida Supreme Court affirmed that ruling, and Petitioner did

not seek certiorari.

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 v. v. Sec’y Dep't of Corr., 278 F.3d 1245,

1259 (11th Cir. 2002). 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 7homas, 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 rounds of state and federal habeas corpus

petitions; and (3) failed to adequately explain those earlier failures. Jd. 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

7

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—‘“I[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 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 2011 carefully

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

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

8

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

competency context. Though Petitioner cites Siate 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

9

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.”

Id. 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. Jd. at 284; see also

State v. Rehbein, 455 N.W.2d 821, 287 (Neb. 1990).

Petitioner also relies on cases from Mississippi, 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 Mississippis 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.

Finally, any split perceived by Petitioner is irrelevant to his case. Petitioner

litigated his alleged incompetency in state court and his claim was rejected as

untimely and procedurally barred under Florida state case law. This has no

implication on his ability or non-ability to raise a substantive competency claim

without a procedural bar in federal court, and so again, his case does not implicate

10

any split among the courts.

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, 324 U.S.

117 (1945) 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.”

Id. 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

11

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) (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, 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 2007, and he pled guilty, waived a

penalty phase jury, and waived mitigation in 2008. His attorneys appealed and his

convictions and sentence were upheld in 2011, and he waived postconviction

proceedings and discharged collateral counsel that same year. It wasn’t until 2018

when CHU was appointed to representation that the topic of competency was ever

mentioned. At no time during any of these proceedings, from 2007 to 2018, 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

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expressing such concerns.

The four experts Petitioner cites now did not see him until 2018, 11 years

after his crimes. Importantly, not one of the four experts 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 that Petitioner’s

mental issues impacted his ability to function and make rational choices; this is a

far cry from the standard of “incompetent to proceed”. While they express in

different ways he is less able to cope with stress or is negatively impacted by his

upbringing and drug use, none can say that he was incompetent to proceed, just

that his ability to make good choices was lower than a person without those deficits.

Pet. App. at 468-518. The best example of how none of these doctors were able to

establish incompetency either today or at the time he pled actually comes from Dr.

Edwards’s report:

The best analogy from my experience is that . . . he was like a car

whose headlights only extend 10 feet. The headlights in this analogy

represent Mr. Russ’s forethought. A fully functioning adult of his

intelligence could see the long term implications of one’s actions and

take appropriate or corrective steps.

Pet. App. at 505. That is not the description of someone who meets the criteria for

being incompetent to proceed. In fact, that analogy could likely apply to the vast

majority of criminal defendants: when people commit crimes they are typically not

thinking about the consequences, looking ahead, or being worried about what

happens next. They are in the moment. Dr. Edwards merely described the mindset

of the typical criminal defendant, not one who is so functionally impaired that he is

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incompetent to proceed with his case. While Petitioner’s retained experts

consistently use the word “impaired” and similar terms throughout their reports,

they never once assert that he is now, or was then, incompetent.

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

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, “[plostconviction claims of incompetency are

extremely fact-dependent.” Jd. 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

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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

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, 1807 (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. #.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).

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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). /d. 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.” /d. (quoting Case v. Hatch,

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

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—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);

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as the Florida Supreme Court noted, Petitioner failed so much as to attempt to

explain why it took him nearly a decade 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 v.

State, 323 So.3d at 158, 160-61 (Fla. 2021); 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

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.

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CONCLUSION

Based on the foregoing, Respondent respectfully requests that this Court

deny the petition for writ of certiorari.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

d J:

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar No. 158541

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Florida Bar No. 112839

Office of the Attorney General

PL-01 The Capital

Tallahassee, Florida 32399

Telephone (850) 414-3300

carolyn.snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

COUNSEL FOR RESPONDENT

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