Petition for Writ of Certiorari — William Graves, III, Petitioner v. Florida
Supreme Court briefOct 16, 2023
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NO:
IN THE SUPREME COURT OF THE UNITED STATES
Supreme Court, U.S.
FILED
OCT 1 8 2023
WILLIAM GRAVES
PETITIONER
OFFICE OF THE CLERK
VS.
STATE OF FLORIDA
RESPONDENT
PETITION FOR WRIT OF CERTIORARI
FROM FLORIDA SUPREME COURT
DENYING PETITION FOR WRIT OF PROHIBITION
PETITIONER PRO SE
WILLIAM GRAVES, DC# 113141
TOMOKA CORRECTIONAL INSTITUTION
3950 TIGER BAY RD.
DAYTONA BEACH, FL. 32124.
4.
FEDERAL QUESTION PRESENTED
WHETHER THE STATE OF FLORIDA HAS CREATED RULES OF
CRIMINAL AND APPELLATE PROCEDURE THAT ARBITRARILY
AND UNREASONABLY ENCROACHES UPON THE PERSONAL
RIGHTS AND LIBERTIES OF PRO SE LITIGANTS AND RUNS
AFOUL OF THE CONSTITUTIONAL GUARANTEE TO ACCESS TO
THE COURTS; SUBSTANTIVE DUE PROCESS OF LAW; AND
EQUAL
PROTECTION
FOURTEENTH
AS
SECURED
AMENDMENTS
OF
CONSTITUTION.
ii
BY THE
THE
FIRST AND
UNITED
STATES
LIST OF PARTIES / CORPORATE DISCLOSURE STATEMENT
United States Court Rule 29.6 requires Petitioner to file a corporate
Disclosure Statement listing all interested parties to the proceeding that do not
appear in the caption on the cover page of this petition, A list of all parties to the
proceeding in the court whose judgment is the subject of this Petition is as follows:
1.
Burger, Justice, Fifth District Court of Appeal.
2.
Canady, Justice, Florida Supreme Court.
3.
Cohen, Justice, Fifth District Court of Appeal.
4.
Couriel, Justice, Florida Supreme Court.
5.
Edwards, Justice, Fifth District Court of Appeal.
6.
Evander, Justice, Fifth District Court of Appeal.
7.
Feigenbaum, Bryan, State Attorney.
8.
Francis, Justice, Florida Supreme Court.
9.
Grosshans, Justice, Florida Supreme Court.
10.
Hutcheson, Michael, R. Trial Court Judge.
11.
Koller, Pamela, J. Attorney General.
12.
Purdy, James, Public Defender.
13.
Sasso, Justice, Florida Supreme Court.
14.
Sawaya, Justice, Fifth District Court of Appeal.
15.
Torpy, Justice, Fifth District Court of Appeal.
16.
Wallis, Justice, Fifth District Court of Appeal.
in
TABLE OF CONTENTS
OPINIONS BELOW
(D
JURISDICTION
(2)
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
(3)
PROCEDURAL HISTORY
(6)
STATEMENT OF THE CASE
(7)
REASONS FOR GRANTING A WRIT OF CERTIORARI
(11)
STANDARD OF REVIEW
(12)
ARGUMENT IN SUPPORT
(14)
REQUEST FOR CERTIFICATION OF QUESTION TO FLORIDA SUPREME
COURT
(37)
CONCLUSION
(37)
iv
INDEX TO APPENDICES
APPENDIX (A) FLA. SUPREME COURT ORDER DENYING WRIT OF PROHIBITION
APPENDIX (B) SPENCER ORDER(S)
APPENDIX (C) CHARGING INFORMATION
APPENDIX (D) VERDICT FORM
APPENDIX (E) JUDGMENT/SENTENCE
APPENDIX (F) 5/22/06: 5/24/06: and 7/18/06 RECORDS REQUEST
APPENDIX (G) STATES RESPONSE
APPENDIX (H) 1st NEWLY DISCOVERED EVIDENCE POST CONVICTION MOTION
APPENDIX (I) COURT ORDER
APPENDIX (J) INITIAL BRIEF
APPENDIX (K) 2nd NEWLY DISCOVERED EVCIDENCE POST CONVICTION MOTION
APPENDIX (L) COURT ORDER
APPENDIX (M) COURT DOCKET ENTRY SHEET
APPENDIX (N) FIFTH DCASHOW CAUSE ORDERS
APPENDIX (O) RESPONSE(S) TO ORDER'S TO SHOW CAUSE
APPENDIX (P) NEW PETITION FOR HABEAS CORPUS RELIEF
APPENDIX (Q) PETITION FOR WRIT OF PROHIBITION
APPENDIX (R) CHRISTOPHER BROWN MANDAMUS
APPENDIX (S) CHRISTOPHER BROWN APPELLATE ORDER
APPENDIX (T) APPOINTMENT OF COUNSEL
V
CASES
TABLE OF AUTHORITIES CITED
PAGE NO:
Atkins v. State, 663 So. 2d 624 (Fla. 1995)
(29)
Baker v. State 878 So.2d 1236 (Fla. 2004)
(27)
Bounds v. Smith 97 S. Ct 1491 (1977)
(13)
Brown v. State, 4D22-2172 (Fla. 4th DCA12/27/22)
(23)
Carter v. State 173 So.3d 1052 (Fla. 3rd DCA 2015)
(23)
Clark v. State, 236 So. 3d 481 (Fla. 4th DCA 2018)
(32)
Collins v. Harker Heights 112 S. Ct 1061 (1992)
(12) (21)
Cottle v. State 733 So.2d 963 (Fla. 1999)
(28)
Daniels v. Williams 106 S. Ct 662 (1983)
(12) (21)
DeShaney v. Winnebago County Dep't of So. Ser. 109 S. Ct 998 (1989)
(21)
Dobbert v. Florida 97 S. Ct 2290 (1977)
(13)
Espinosa v. State 262 So.3d 114 (Fla. 3rd DCA 2018)
(23)
Gallant v. State 898 So.2d 1156 (Fla. 2nd DCA 2005)
(30)
Garcia v. State 212 So.3d 479 (Fla. 3rd DCA 2017)
(22)
Gaston v. State 141 So.2d 627 (Fla. 4th DCA 2014)
(22)
Hodgson v. Minnesota 110 S. Ct 2926 (1990)
(13)
Howarth v. State, 843 So. 2d 351 (Fla. 5th DCA 2003)
(35)
Huffman v. State 192 So. 3d 687 (Fla. 2nd DCA 2d 6)
(24)
In Re: Amendments To Fla. R. Crim. & App. P., 132 So. 3d 734 (Fla. 2013)
(15)
In Re McDonald 109 S. Ct 993 (1989)
(14)
In Re Sindram 111 S. Ct 546 (1991)
(14)
Johnson v. Avery 89 S. Ct 747 (1969)
(13)
Jones v. State 591 So.2d 911 (Fla. 1991)
(28) (29)
Kirksey v. State, 433 So. 2d 1236 (Fla. 1st DCA 1983)
(29)
Lamb v. State 212 So. 3d 1108 (Fla. 5th DCA 2017)
(35)
Martin v. District of Columbia Court of Appeals 113 S. Ct 397 (1992)
(14)
McDonald v. State, 117 So. 3d 412 (Fla. 2013)
(29)
Miller v. State, 926 So. 2d 1243 (Fla. 2006)
(29)
vi
Moore v. East Cleveland 97 S. Ct 1932 (1977)
(12)
Muehleman v. State 3 So. 3d 1149 (Fla. 2009)
(26)
Myles v. Crews 116 So.3d 1256 (FJa. 2013)
(23)
Palko v. Connecticut 58 S. Ct 149 (1937)
(12)
Petit-Homme v. State, 205 So. 3d 848 (Fla. 4th DCA2016)
(31)
Quindlen v. Prudential Ins. Co. of Am., 482 F.2d 876 (5th Cir. 1973)
(29)
Reno v. Flores 113 S. Ct 1439 (1993)
(12) (14)
Romer v. Evans 116 S. Ct 1620 (1996)
(13)
Sandin v. Conner 115 S. Ct 2293 (1995)
(20)
Sapp v. State 238 So.3d 875 (Fla. 5th DCA2018)
(23)
Snyder v. Massachusetts 54 S. Ct 330 (1934)
(12)
Sparkman v. McClure, 498 So. 2d 892, (Fla. 1986)
(29)
State v. Spencer 751 So.2d 47 (Fla. 1999)
(11)
Strickland v. Washington 104 S. Ct 2052 (1984)
(28)
Taylor v. State, 279 So. 3d 1274 (Fla. 5th DCA2019)
(35)
Thomas v. State 1 So.3d 194 (Fla. 4th DCA2005)
(25)
Tribbitt v. State 339 So. 3d 1029 (Fla. 2nd DCA2022)
(31)
Washington v.Glucksberg 117 S.Ct 2258 (1997) -
(14) (21) (25)
Wolff v. McDonnell 94 S. Ct 2963 (1974)
(13)
Zatko v. California 112 S. Ct 355 (1991)
(14)
STATUTE AND RULES
Article 1. Section 21 Fla. Const.
(13)
First Amendment U.S.C.
(3)
Fourteenth Amendment U.S.C.
(3)
Fla. R. Crim. P, Rule 3.850(n)
(3)
Fla. R. App. P, Rule 9.150(a)
(37)
Fla. R. App. P, Rule 9.410(a)
(5)
Fla. Stat. §68.093
(17)
28 U.S.C. §1257(a)
(2)
Vll
!
IN THE SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a Writ of Certiorari issue to review the
judgment below.
OPINIONS BELOW
[ ] For cases from Federal Courts:
The Opinion of the United States Court of Appeals appears at Appendix N/A
to the Petition and is:
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The Opinion of the United States District Court appears at Appendix N/A
to the Petition and is:
or,
[ ] reported at
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
[X] For cases from State Courts:
The Opinion of the Highest State Court to review the merits appears at
Appendix (A) to the Petition and is:
[ ] reported at
.: or,
[X] has been designated for Publication but is not yet reported; or,
[ ] is unpublished.
The Opinion of the Lower Court appears at Appendix N/A to the Petition and is
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
l
JURISDICTION
[ ] For cases from Federal Courts: N/A
The date on which the United States Court of Appeals decided my case was.
N/A
[ ] No petition for rehearing was timely filed in my case.
[ ] A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: N/A, and a copy of the order denying rehearing
appears at Appendix.
[ ] An extension of time to file the petition for a writ of certiorari was granted to
and including (date) on (date) in Application No. N/A.
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
[X] For Cases From State Courts:
The date on which the highest state court decided my case was July 19th 2023.
A Copy of that Decision appears at Appendix (A).
[ ] A timely petition for rehearing was thereafter denied on the following date:
and a copy of the order denying rehearing appears at Appendix N/A.
[ ] An extension of time to file the petition for a writ of certiorari was granted to
and including (date) on (date) in Application No. N/A.
The Jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
ARTICLE I. UNITED STATES CONSTITUTION
CONGRESS
SHALL
MAKE
NO
LAW
RESPECTING
AN
ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE
EXERCISE
THEREOF;
OR ABRIDGING. THE
FREEDOM
OF
SPEACH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE
PEACEABLY
TO
ASSEMBLE,
AND
TO
PETITION
THE
GOVERNMENT FOR A REDRESS OF GRIEVANCES.
ARTICLE XIV. UNITED STATES CONSTITUTION
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 LAW.
FLORIDA RULE CRIMINAL PROCEDURE 3.850 (n) SANCTIONS
No motion may be filed pursuant to this rule unless it is filed in good faith
and with a reasonable belief that it is timely, has potential merit, and does
not duplicate previous motions that have been disposed of by the court.
(1)
By signing a motion pursuant to this rule, the defendant certifies that:
the defendant has read the motion or that it has been read to the defendant
and that the defendant understands its content; the motion is filed in good
faith and with a reasonable belief that it is timely filed, has potential merit,
and does not duplicate previous motions that have been disposed of by the
court; and, the facts contained in the motion are true and correct.
3
(2)
The defendant shall either certify that the defendant can understand
English or, if the defendant cannot understand English, that the defendant
has had the motion translated completely into a language that the
defendant understands. The motion shall contain the name and address of
the person who translated the motion and that person shall certify that he
or she provided an accurate and complete translation to the defendant.
Failure to include this information and certification in a motion shall be
grounds for the entry of an order dismissing the motion pursuant to
subdivision (f)(1), (f)(2), or (f)(3).
(3)
Conduct prohibited under this rule includes, but is not limited to,
the following: the filing of frivolous or malicious claims; the filing of
any motion in bad faith or with reckless disregard for the truth; the
filing of an application for habeas corpus subject to dismissal
pursuant to subdivision (m); the willful violation of any provision of
this rule; and the abuse of the legal process or procedures governed
by this rule.
The court, upon its own motion or on the motion of a party, may
determine whether a motion has been filed in violation of this rule.
The court shall issue an order setting forth the facts indicating that
the defendant has or may have engaged in prohibited conduct.
The order shall direct the defendant to show cause, within a reasonable
time limit set by the court, why the court should not find that the defendant
has engaged in prohibited conduct under this rule and impose an
appropriate sanction.
Following the issuance of the order to show cause and the filing of any
response by the defendant, and after such further hearing as the court may
deem appropriate, the court shall make a final determination of whether
the defendant engaged in prohibited conduct under this subdivision.
4
(4)
If the court finds by the greater weight of the evidence that the
defendant has engaged in prohibited conduct under this rule, the
court may impose one or more sanctions, including:
(A) contempt as otherwise provided by law;
(B) assessing the costs of the proceeding against the defendant;
(C) dismissal with prejudice of the defendant ts motion;
(D) prohibiting the filing of further pro se motions under this rule
and directing the clerk of court to summarily reject any further
pro se motion under this rule:
(E) requiring that any further motions under this rule be signed by
a member in good standing of The Florida Bar, who shall certify
that there is a good faith basis for each claim asserted in the
motion; and/or
(F) if the defendant is a prisoner, a certified copy of the order be
forwarded to the appropriate institution or facility for consideration
of disciplinary action against the defendant, including forfeiture of
gain time pursuant to Chapter 944, Florida Statutes.
(5)
If the court determines there is probable cause to believe that a
sworn motion contains a false statement of fact constituting
perjury, the court may refer the matter to the state attorney.
FLORIDA RULE APPELLATE PROCEDURE 9.410 SANCTIONS
(a) Courts Motion: After 10 days notice, on its own motion, the court may
impose sanctions for any violation of these rules, or for the filings of any
proceeding, motion, brief, or other document that is frivolous or in bad faith,
—such sanctions may include reprimand, contempt, striking of briefs, or
pleadings, dismissal of proceedings, cost, attorneys fee's.
5
PROCEDURAL HISTORY
D-
This Writ of Certiorari is premised upon the denial of Petitioners Writ of
Prohibition by the Florida Supreme Court, which Order was rendered on July 19th
2023. See Exhibit (A) of Appendix. (Order)
2).
Petitioners Writ of Prohibition sought relief from what is known as a
(Spencer Order) in the State of Florida issued by the Fifth District Court of Appeal
prohibiting Petitioner from filing any further pro se Petitions or Appeals in that
Court. See Exhibit (B) of Appendix. (Spencer Orders)
3).
The purpose of seeking relief from the (Spencer Order's) was founded upon
the basis that: (1). The Fifth District Court of Appeal had recently receded from
prior precedent in which it relied to deny Petitioners Post Conviction Claim on:
and (2). Under the dictates of a (Spencer Order) the Clerk of Court is prohibited
from accepting any further filings submitted by a pro se litigant.
4).
Thus, while Petitioner would be entitled to have the prior Post Conviction
Appeal [Reconsidered] under Florida law based on this fact, and relief granted in
his case from a natural life sentence, because Florida's Rule's of Court do not
contain any Procedural Safe-Guards to protect against the arbitrary deprivation of
a pro se litigants Right to Access the Courts in these and other similar instance(s),
Petitioner will subsequently die in prison under a Rule of law found to be in
violation of the Federal Constitution and this Courts controlling precedent
warranting Certiorari review in the instant case.
6
STATEMENT OF THE CASE
5).
On March 8th 2001. Petitioner was arrested in Volusia County Florida and
charged by Information with: [Ct. I. Armed Robbery] See Exhibit (C) of Appendix.
(Information)
6).
On June 14th 2002. Petitioner proceeded to trial and was found guilty as
charged. See Exhibit (D) of Appendix. (Verdict Form)
7).
On August 5th 2002. Petitioner was Sentenced as a Prison Releasee
Reoffender (PRR) to Natural Life in Prison. See Exhibit (E) of Appendix.
(Judgment & Sentence)
8).
Petitioners Direct Appeal was Affirmed by the Fifth District Court of Appeal on
July 29th 2003. See Graves v. State 852 So. 2d 252 (Fla. 5th DCA 2003)
9).
Petitioner filed a timely Rule 3.850 post conviction motion, to which was
likewise denied and affirmed by the District Court of Appeal on May 17th 2005. See
Graves v. State 905 So. 2d 146 (Fla. 5th DCA 2005)
10). On May 22nd 2006: May 24th 2006: and July 18th 2006: Petitioner submitted
numerous Request to the State Attorneys Office; Public Defenders Office and the
Clerk of Court as to whether there had been any Plea Offers made in his case
prior to proceeding to trial. See Exhibit (F) of Appendix. (Records Request)
11). On July 25th 2006. the State Attorney provided Petitioner with a Response
stating that a [3—4 Year Plea Offer] was made by their office prior to trial, and
that Trial Counsel had confirmed such, stating that it had been put on the record
and rejected. See Exhibit (G) of Appendix. (States Response)
12). On August 22nd 2006. Petitioner filed a Second Rule 3.850 Motion based on
Newly Discovered Evidence, alleging his Trial Counsel was Ineffective for failing
to convey the States Plea Offer to him and Attached a Sworn Affidavit thereto in
support thereof. See Exhibit (H) of Appendix. (Motion)&(Affidavit)
7
13). On October 12th 2006. the Trial Court entered an order denying the motion
based on the contention that Petitioner failed to demonstrate due diligence, in
relation to this Newly Discovered Evidence claim. See Exhibit (I) of Appendix
(Court Order)
14). Petitioner timely Appealed the Trial Courts denial of his Newly Discovered
Evidence Motion to the Fifth DCA, resulting in Case No: 5D06-3728. to which
Petitioner filed an Initial Brief in support thereof. See Exhibit (J) of Appendix.
(Brief)
13). Consequently however, On December 26th 2006. The Fifth DCA Affirmed
Petitioners post conviction Appeal. See Graves v. State 945 So. 2d 522 (Fla. 5th
DCA 2006)
16). On January 12th 2007. Petitioner filed a Third Rule 3.850 Motion asserting
the [Same Claim of Newly Discovered Evidence] based on Trial Counsels
failure to convey the [3—4 Year Plea Offer] made by the State and asserted a
specific factual basis explaining his reason for seeking Public Records, in relation
to whether any plea offers were made in his case and the cause of the delay in
doing so. See Exhibit (K) of Appendix. (Motion) & (Affidavit)
17). However, on February 16th 2007. The Trial Court again entered an Order
denying Petitioners Third 3.850 Motion based on the fact that despite Petitioners
attempt to explain his delay in seeking Public Records Request,
such
explanation was inadequate in showing that he acted with due diligence in
obtaining these Records. See Exhibit (L) of Appendix. (Order)
18). Petitioner timely Appealed the Trial Courts Order to the Fifth DCA resulting in
Case No: 5D07-1224. to which was likewise Affirmed on July 17th 2007. See
Graves v. State 959 So. 2d 1202 (Fla. 5th DCA 2007).
8
19). Since the denial of his Third 3.850 Post Conviction Motion on August 6th2007. Petitioner has initiated (Four-4) separate post conviction proceedings in the
Trial Court related to his criminal conviction on: August 29th 2012; May 18th 2015:
January 22nd 2018: and April 10th 2019: See Exhibit (M) of Appendix. (Docket)
20). These separate collateral criminal proceedings were likewise Appealed to
the Fifth DCA in Case No's: 5D12-3706: 5D16-1406: 5D17-1960: 5D18-530: and
5D19-1663: See Exhibit (M) of Appendix. (Docket)
21). As a result of these separate post conviction proceeding(s), the Trial Court
issued a Spencer Order on Mav 1st 2019. precluding Petitioner from filing any
further pro se filings. See Exhibit (M) of Appendix. (Docket)
22). On February 26th 2018 and May 22nd 2018 respectively, the Fifth DCA
likewise issued Orders to Show Cause as to why Petitioner should not be
prohibited from filing any further pro se Appeals. See Exhibit (N) of Appendix.
(Orders)
23). On February 7th 2018 and June 1st 2018 respectively, Petitioner filed
Response(s) to the Courts Show Cause Order(s). See Exhibit (O) of Appendix.
(Responses)
24). Consequently, On June 11th 2018 and November 15th 2019 respectively, The
Fifth DCA entered Orders pursuant to State v. Spencer 751 So.2d 47 (Fla. 1999)
prohibiting Petitioner from filing any further pro se Petitions or Appeals in that
Court. See Exhibit (B) of Appendix. (Orders)
25). Conversely, Petitioner has recently learned that the Trial Courts denial, as
well as the Appellate Courts Affirmance of his Newly Discovered Evidence Claim
was based upon an erroneous interpretation of the law, to which the Fifth DCA has
since recognized and rectified in subsequent case(s), and granted relief to other
9
I
similarly situated Criminal Defendant(s) on the [Same Identical Claim] in which
Petitioners post conviction Appeals were Affirmed under. See Taylor v. State. 279
So. 3d 1274 (Fla. 5th DCA2019))
26). Pursuant to Florida Law, a Litigant may request the Appellate Court, under
the principles of Habeas Corpus, to Reconsider a previous decisions, despite the
law of the case, when it can be shown that the Court erred when affirming a prior
Appeal and failure to Reconsider the prior decision will result in a Manifest
Injustice. See Bakery. State 878 So.2d 1236 (Fla. 2004)
27). However, due to the Appellate Courts Spencer Order, the Clerk of the Fifth
DCA will not accept any further pro se pleadings from Petitioner, which has
operated to deprive him of his Constitutional Rights To Access To The Court and
the ability to challenge the Appellate Courts previous denials of his post conviction
Appeals through a valid Petition for Habeas Corpus Relief. See Exhibit (P) of
Appendix (“New Petition For Habeas Corpus Relief”)
28). On April 19th. 2023. Petitioner submitted a Petition For Writ of Prohibition
to the Florida Supreme Court, requesting a Writ compelling the Fifth District Court
of Appeal to show cause as to: (1). Whether there exist a lawful basis to support its
Order prohibiting Petitioner from filing any other pro se filings, and (2). Whether
such Order should not be Rescinded in light of the fact that the prior per curiam
affirmance(s), in which the Spencer Order is premised, was directly based upon
an Erroneous Interpretation of Law, to which the Fifth DCA has since recognized
and implicitly receded therefrom in subsequent Appellate Case(s). See Exhibit (Q)
of Appendix (Petition For Writ of Prohibition)
29). On July 19th 2023. the Florida Supreme Court denied Petitioners request for
Prohibition Relief, thus, this Petition for Writ of Certiorari ensues upon the following
facts, argument and citation of authorities. See Exhibit (A) of Appendix. (Order)
10
REASONS FOR GRANTING A WRIT OF CERTIORARI
The State Court of Florida has promulgated Rules of Criminal and Appellate
Procedure that are found to be Repugnant to the Constitution, Treaties, or Laws of
the United States, and has decided an Important Question of Federal Law in a way
that conflicts with relevant decisions of this Court.
FACTS IN SUPPORT
In the case at bar, Petitioner is a pro se litigant, unskilled in the law and in
the past (22) years, since his conviction in 2001. he has filed (7) collateral criminal
proceedings in the Trial Court, and a total of (8) proceedings in the Appellate
Court. See Exhibit (M) of Appendix. (Docket)
Conversely, based on these facts, the Trial Court and the Appellate Court
found that Petitioners filings constituted an abuse of the Post Conviction and
Appellate process, and subsequently entered Order(s) prohibiting Petitioner from
filing any further pro se filings in his case. See Exhibit(s) (M) & (B) of Appendix.
(Docket) & (Orders)
The Procedural Bar(s) in question are directly premised upon Florida Rules of
Criminal and Appellate Procedure, Rule(s) 3.850(n) and 9.410(a) and the Florida
Supreme Courts holding in State v. Spencer 751 So.2d 47 (Fla. 1999) where the
Court stated:
We have recognized the importance of the constitutional guarantee of
citizen access to the courts under Art- I. Sect. 21, Fla. Const., Thus,
denying a pro se litigant the opportunity to file future petitions is a
serious sanction, especially where the litigant is a criminal defendant
who has been prevented from attacking his conviction, sentence, or
However, any citizen, including a citizen
conditions of confinement,
attacking his or her conviction, abuses the right to pro se access by
filing repetitious and frivolous pleadings, thereby diminishing the ability
of the courts to devote their finite resources to the consideration of
legitimate claims.
li
STANDARD OF REVIEW
Petitioners Constitutional Claim rest entirely on the Due Process Clause of
the Fourteenth Amendment, the most familiar office of that Clause is to provide a
guarantee of fair procedure in connection with any deprivation of life, liberty, or
property by a State, i.e. (Procedural Due Process)
Petitioners Claim also rest on the Substantive Component of the Clause
that protects individuals liberty against “Certain government actions regardless of
the fairness of the procedures used to implement them.” i.e. (Substantive Due
Process) See Daniels v. Williams 106 S. Ct 662 (1983)
The Due process Clause guarantees more than fair process, and the
“Liberty” it protects includes more than the absence of physical restraint. Collins v.
Harker Heights 112 S. Ct 1061 (1992)(quoting Daniels v. Williams, supra), The
Clause provides heightened protection against government interference with
certain fundamental rights and liberty interest. Reno v. Flores 113 S. Ct 1439
(1993).
This Courts established method of Substantive-Due Process Analysis has
two primary features: First, this Court has regularly observed that the Due
Process Clause specifically protects those fundamental rights and liberties which
are, objectively, “Deeply Rooted” in this Nations History and Traditions, e.g.
Moore v. East Cleveland 97 S. Ct 1932 (1977): Snvder v. Massachusetts 54 S. Ct
330 (1934)(“So rooted in the traditions and conscience of our people as to be
ranked as fundamental”) and “implicit in the concept of ordered liberty.” such
that “neither liberty nor justice would exist if they were sacrificed.” Palko v.
Connecticut 58 S. Ct 149 (1937)
Second, this Court has required in Substantive Due Process Cases a
“Careful Description” of the asserted fundamental liberty interest. Flores supra.
113 S. Ctat 1447.
12
This Nations History, legal traditions, and practices, thus, provide the crucial
“guidepost for responsible decision makingCollins, supra, 112 S. Ct at
1068, that direct and restrain this Courts exposition of the Due Process Clause.
There are two sources of the Right to Access the Courts, Florida's
Constitution
specifically
guarantee's
a
Citizen's Access
to
Courts.
See
Article I, Section 21 Fla. Const, which provides;
THE COURTS SHALL BE OPEN TO EVERY PERSON FOR REDRESS
OF ANY INJURY AND JUSTICE SHALL BE ADMINISTERED
WITHOUT SALE, DENIAL OR DELAY.
The Constitution of the United States does not, however, contain a specific
Clause providing for this Right, this Court nevertheless has held that there is such
a Right arising from several Constitutional Provisions, including the First
Amendment, The Due Process Clause, and The Equal Protection Clause, and
have upheld these universal tradition(s) and Right(s). See Bounds v. Smith 97 S.
Ct 1491 (1977)(Prisoners have fundamental Constitutional Right to adequate,
effective, and meaningful Access to Courts to challenge violation of constitutional
rights): and Johnson v. Avery 89 S. Ct 747 (1969)(Prisoners Right of Access to
Courts may not be denied or obstructed): Wolff v. McDonnell 94 S. Ct 2963 (1974)
(Due Process Clause's prohibit government from infringing on prisoners liberty
interest without due process of law): and Dobbert v. Florida 97 S. Ct 2290 (1977)
(Equal Protection Clause prohibits government from treating similarly situated
individuals differently from one another when there is no rational relation between
the dissimilar treatment and any legitimate penological interest)
In the Substantive Due Process and Equal Protection Analysis, this Court
utilizes the “Goal-Method Test” for cases in which a fundamental right is taken.
See e.g. Romerv. Evans 116 S. Ct 1620 (1996)(Equal Protection): and Hodgson
v. Minnesota 110 S. Ct 2926 (1990)(Subsfanf/Ve Due Process)
13
In the Goal-Method Analysis, if the interest which is being taken is a
fundamental interest, then the means or method employed by the Court Rule or
Statute to remedy the asserted problem must meet not only the Rational Basis
Test, but also the Strict Scrutiny Test.
Under Substantive Due Process Goal-Method Analysis, if a State enacts
Court Rules or Legislation that infringes fundamental rights, Courts will review the
law under a Strict Scrutiny Test and uphold it only when it is “Narrowly Tailored to
serve a compelling State interest.” Reno v. Flores 113 S. Ct 1439 (1993),
“Narrowly Tailored” means that “the method for remedying the asserted
malady must be strictly tailored to remedy the problem in the most effective
way [and] ... “must not restrict a persons rights more than absolutely
necessary.” See also Washington v. Glucksbera 117 S. Ct 2258 (1997)
ARGUMENT IN SUPPORT
POINT I.
WHETHER FLORIDA RULES OF CRIMINAL AND APPELLATE
PROCEDURE
ARE
NARROWLY
TAILORED
TO
SERVE
A
COMPELLING STATE INTEREST
Petitioner does not dispute the fact that Florida Rule(s) of Criminal and
Appellate Procedure 3.850(n) and 9.410(a) meet the Rational Basis Test under
this Courts precedent. See In Re McDonald 109 S. Ct 993 (1989)(Pro Se Litigant
barred from further filings without payment of docket fee based upon 73 separate
frivolous filings); In Re Sindram 111 S. Ct 546 (1991)(Same—Based upon 43
separate frivolous filings); Zatko v. California 112 S. Ct 355 (1991)(Same—Based
upon 73 separate frivolous filings); and Martin v. District of Columbia Court of
Appeals 113 S. Ct 397 M992)(Same—Based upon 45 separate frivolous filings)
14
POINT II.
WHETHER FLORIDA RULE(S) OF CRIMINAL AND APPELLATE
PROCEDURE ARE NARROWLY TAILORED IN A MANNER THAT
DOES NOT RESTRICT A PERSONS RIGHTS MORE THAN
ABSOLUTELY NECESSARY
Petitioner would aver however, that Florida Rule(s) of Criminal and
Appellate Procedure 3.850(n) and 9.410(a) fail to meet the Strict Scrutiny Test
under this Courts precedent, where the Rule(s).do not contain any Procedural
Safe-Guards to ensure that the Right of Access to the Courts is not abrogated
unreasonably or imposed in a discriminatory fashion in violation of the Equal
Protection and Due Process Clause of the U.S. Constitution.
In support of this factual proposition, Petitioner would show that the
compelling State interest behind Florida Rules of Criminal and Appellate
procedure, Rule(s) 3.850(n) and 9.410(a). was to prevent Vexatious litigation from
interfering with the business of the Court System, focusing on meritless litigation,
the Florida Supreme Court adopted Recommendations made by the (Steering
Committee) on Post Conviction Relief to include Sanctions against pro se litigants
prohibiting the Clerk of Court from accepting further pro se filings unless such
filings are signed by an Attorney in good standing with the Florida Bar. See In Re:
Amendments To The Florida Rules of Criminal and Appellate Procedure 132 So.
3d 734 (Fla. 2013)(Effective July 1st 2013) which provided:
(3) Conduct prohibited under this rule includes, but is not limited to,
the following: the filing of frivolous or malicious claims; the filing of
any motion in bad faith or with reckless disregard for the truth; the
filing of an application for habeas corpus subject to dismissal
pursuant to subdivision (m); the willful violation of any provision of
this rule; and the abuse of the legal process or procedures governed
by this rule.
15
The court, upon its own motion or on the motion of a party, may
determine whether a motion has been filed in violation of this rule.
The court shall issue an order setting forth the facts indicating that
the defendant has or may have engaged in prohibited conduct.
The order shall direct the defendant to show cause, within a reasonable
time limit set by the court, why the court should not find that the defendant
has engaged in prohibited conduct under this rule and impose an
appropriate sanction.
Following the issuance of the order to show -cause and the filing of any
response by the defendant, and after such further hearing as the court may
deem appropriate, the court shall make a final determination of whether
the defendant engaged in prohibited conduct under this subdivision.
(4) If the court finds by the greater weight of the evidence that the
defendant has engaged in prohibited conduct under this rule, the
court may impose one or more sanctions, including:
(A) contempt as otherwise provided by law;
(B) assessing the costs of the proceeding against the defendant;
(C) dismissal with prejudice of the defendant ts motion;
(D) prohibiting the filing of further pro se motions under this rule and
directing the clerk of court to summarily reject any further pro se
motion under this rule;
(E) requiring that any further motions under this rule be signed by a
member in good standing of The Florida Bar, who shall certify that
there is a good faith basis for each claim asserted in the motion; and / or
(F) if the defendant is a prisoner, a certified copy of the order be forwarded
to the appropriate institution or facility for .consideration of disciplinary
action against the defendant, including forfeiture of gain time pursuant
to Chapter 944, Florida Statutes.
FLORIDA RULE APPELLATE PROCEDURE 9.410 SANCTIONS
(a) Courts Motion: After 10 days notice, on its own motion, the court may
impose sanctions for any violation of these rules, or for the filings of any
proceeding, motion, brief, or other document that is frivolous or in bad faith,
—such sanctions may include reprimand, contempt, striking of briefs, or
pleadings, dismissal of proceedings, cost, attorneys fee's.
16
Consequently however, these Rule(s) are Unreasonably Broad, where they
fail to contain Procedural Safe Guards to prevent the State Courts from abusing
their power and employing the Rule(s) as an instrument of oppression, specifically
in light of the fact that these Rule(s) fail to include:
(a).
(b).
(c).
(d).
Any specific amount of pro se pleadings that can be filed in an individual
case prior to sanctions being imposed.
The right to appeal from a sanction order.
Any exception to the Rule that would allow further review should the law
change or new evidence be discovered.
Any other means to obtain relief when justice so requires.
Petitioner would demonstrate the short coming(s) of these Rule(s) by
comparison with Florida law itself, where the Legislature, when promulgating the
Florida Vexatious Litigant Law under Fla. Stat. §68.093 included several
procedural safe guards to ensure that the Right to Access the Court for a pro se
litigant is not restricted more than absolutely necessary, where the Statute
provides in relevant part:
(1) This section may be cited as the Florida Vexatious Litigant Law.
(2) As used in section, the term:
(a) Action means a civil action governed by the Florida Rules of Civil
Procedure and proceedings governed by the Florida Probate Rules, but
does not include actions concerning family law matters governed by the
Florida Family Law Rules of Procedure or any action in which the Florida
Small Claims Rules apply.
(b) Defendant means any person or entity, including a corporation,
association, partnership, firm, or governmental entity, against whom an
action is or was commenced or is sought to be commenced.
(c) Security means an undertaking by a vexatious litigant to ensure
payment to a defendant in an amount reasonably sufficient to cover the
defendants anticipated, reasonable expenses of litigation, including
attorney's fees and taxable costs.
17
(d) Vexatious litigant means:
1. A person as defined in s. 1.01(3) who, in the immediately preceding 5year period, has commenced, prosecuted, or maintained, pro se, five
or more civil actions in any court in this state, except an action
governed by the Florida Small Claims Rules, which actions have been
finally and adversely determined against such person or entity; or
2. Any person or entity previously found to be a vexatious litigant pursuant
to this section.
An action is not deemed to be finally and adversely determined if an
appeal in that action is pending. If an action has been commenced on
behalf of a party by an attorney licensed to practice law in this state, that
action is not deemed to be pro se even if the attorney later withdraws from
the representation and the party does not retain new counsel.
(3)(a) in any action pending in any court of this state, including actions
governed by the Florida Small Claims Rules, any defendant may move
the court, upon notice and hearing, for an order requiring the plaintiff to
furnish security. The motion shall be based on the grounds, and
supported by a showing, that the plaintiff is a vexatious litigant and is not
reasonably likely to prevail on the merits of the action against the moving
defendant.
(b) At the hearing upon any defendants motion for an order to post
security, the court shall consider any evidence, written or oral, by witness
or affidavit, which may be relevant to the consideration of the motion. No
determination made by the court in such a hearing shall be admissible on
the merits of the action or deemed to be a determination of any issue in
the action. If, after hearing the evidence, the court determines that the
plaintiff is a vexatious litigant and is not reasonably likely to prevail on the
merits of the action against the moving defendant, the court shall order
the plaintiff to furnish security to the moving defendant in an amount and
within such time as the court deems appropriate.
(c) If the plaintiff fails to post security required by an order of the court
under this section, the court shall immediately issue an order dismissing
the action with prejudice as to the defendant for whose benefit the
security was ordered.
18
(d) If a motion for an order to post security is filed prior to the trial in an
action, the action shall be automatically stayed and the moving defendant
need not plead or otherwise- respond to the complaint until 10 days after
the motion is denied. If the motion is granted, the moving defendant shall
respond or plead no later than 10 days after the required security has
been furnished.
(4) In addition to any other relief provided in this section, the court in any
judicial circuit may, on its own motion or on the motion of any party, enter
a prefiling order prohibiting a vexatious litigant from commencing,
pro se, any new action in the courts of that circuit without first
obtaining leave of the Administrative Judge of that Circuit.
Disobedience of such an order may be punished as contempt of court by
the Administrative Judge of that Circuit. Leave of Court shall be granted
by the Administrative Judge only upon a showing that the proposed
action is Meritorious and is not being filed for the purpose of delay or
harassment. The Administrative Judge may condition the filing of the
proposed action upon the furnishing of security as provided in this section.
(5) The Clerk of the Court shall not file any new action by a vexatious
litigant pro se unless the vexatious litigant has obtained an order
from the Administrative Judge permitting such filing. If the Clerk of
the Court mistakenly permits a vexatious litigant to file an action pro se in
contravention of a prefiling order, any party to that action may file with the
clerk and serve on the plaintiff and all other defendants a notice stating
that the plaintiff is a pro se vexatious litigant subject to a prefiling order.
The filing of such a notice shall automatically stay the litigation against all
defendants to the action. The Administrative Judge shall automatically
dismiss the action with prejudice within 10 days after the filing of such
notice unless the plaintiff files a Motion for Leave to file the action. If the
Administrative Judge issues an order permitting the action to be filed, the
defendants need not plead or otherwise respond to the complaint until 10
days after the date of service by the plaintiff, by United States mail, of a
copy of the order granting leave to file the action.
(6) The Clerk of a Court shall provide copies of all prefiling orders to
the Clerk of the Florida Supreme Court, who “shall maintain a
registry” of all vexatious litigants.
(7) The relief provided under this section shall be cumulative to any other
relief or remedy available to a defendant under the laws of this state and
the Florida Rules of Civil Procedure, including, but not limited to, the relief
provided under s. 57.105.
19
Based upon the provisions of Florida's Vexatious Law, the Legislature
itself included:
(a).
A specific amount of pleadings that can be filed, in a specified time period.
(b).
A means to still obtain review by posting security if an opposing party so
moves the court for an order.
(c).
Allowing a pro se litigant to seek leave from an (Administrative Judge) of the
Circuit to file additional pleadings, and;
(d).
Upon a showing that the pleading has merit, to allow such pleading to be
filed with the Court for review.
Notwithstanding, and unlike Rule(s) 3.850(n) and 9.410(a): Fla. Stat.
T*
§68.093 specifically directs the Clerk of Court to forward a pro se pleading to an
(Administrative Judge) for review on the merits, rather than refusing to file it
altogether and sending it directly back to a pro se litigant without any action taken
on it at all, in other words, Fla. Stat §68.093 contains procedural safe guards to
ensure the Right of Access to the Courts is not abrogated entirely, but only to the
extent necessary to protect the interest it was created to protect.
Conversely, the same cannot be said for the State Courts promulgation of
Rule(s) 3.850(n) and 9.410(a). where these Rule(s) not only interfer with a pro se
litigants protected liberty interest, i.e. (Access to the Courts), but because these
Rule(s) lack Procedural Safe Guards to protect against unjustified deprivations, it
cannot be said that these Rule(s) do not violate Substantive Due Process of Law.
See Sandin v. Conner 115 S. Ct 2293 (1995)(“Protected liberty interest can be
created by State law, Statute or Regulation,” “A Violation of Procedural and
Substantive Due Process requires (1) that the State has interfered with the
inmates protected liberty or property interest and (2) that procedural safe guards
were constitutionally insufficient to protect against unjustified deprivations). I.d. at
2300-2301.
20
As this Court stated in Flores supra, the Fourteenth Amendment "forbids
the government to infringe.... fundamental’ liberty interest at all, no matter
what process is provided, unless the infringement is narrowly tailored to serve
a compelling state interest,” and "must not restrict a persons right any more
than absolutely necessary.” See Washington v. Glucksberg 117 S. Ct 2258
(1997)
The text and history of the Due Process Clause supports Petitioners Claim
that the State of Florida's duty to provide Access to the Courts is a Substantive
Component of the Due Process Clause.” See Collins v. City of Harker Heights,
Tex. 112 S. Ct 1061 (1992) citing DeShanev v. Winnebago Countv Dep't of Social
Services 109 S. Ct 998 (1989)(“The Due Process Clause of the Fourteenth
Amendment was intended to prevent government 'from abusing [its] power, or
employing it as an instrument of Oppression'”).
Petitioner would contend that the Due Process Clause of its own force
requires that Rules of Court satisfy certain minimal standards for Convicted Felons
challenging their conviction and sentences, The “Process” that the Constitution
guarantees in connection with any deprivation of liberty, thus includes a continuing
obligation to satisfy certain minimal standards to ensure that the Right to Access to
the Court for a pro se litigant is not entirely abrogated. Collins id. at 112 S. Ct
1061.
Furthermore, by requiring the government to follow appropriate procedures
when its agents decide to “deprive any person of life, liberty, or property,” the Due
Process Clause promotes fairness in such decisions, and by baring certain
government actions regardless of the fairness of the procedures used to
implement them, it serves to prevent government power from being "Used for
Purposes of Oppression.” See Daniels v. Williams 106 S. Ct 662 (1986) citing
DeShanev supra 109 S. Ct at 998.
21
In addition to the violation of Due Process, Petitioner would further show that
Rule(s) 3.850(n) and 9.410(a) contrive the Equal Protection Clause of the
Fourteenth Amendment as well, where, while the Fifth DCA premised its Order
prohibiting any other pro se filings in Petitioners case, based upon the
aforementioned Rule of law, there is no Bright Line Rule expressly stated in the
Rule(s) provisions as to the maximum number of filings a pro se litigant can
make before he should be barred in the Courts, and as a result thereof, not only
are similarly situated individuals treated differently from one another, but there is
no rational relationship between the dissimilar treatment and the interest the
Rule(s) were promulgated to protect, in that the Rule(s) are applied at will by the
Courts of Florida in an Uneven and Discriminatory fashion to Florida pro se
litigants. See Gaston v. State 141 So.2d 627 (Fla. 4th DCA 2014) where the Court
there held:
We find that the trial court abused its discretion in barring defendant
from further pro se filings after his Third post conviction motion,.....
Florida Courts have long recognized the need for judicial economy and
importance of curtailing the egregious abuse of the judicial process. See
Nevertheless,
e.g. Bivins v. State 35 So.3d 67 (Fla. 1st DCA 2010),
barring a criminal pro se litigant from filing future petitions has been
described as an [“Extreme Remedy”] which should be reserved for
those who have repeatedly filed successive, frivolous and meritless
claims which were not advanced in good faith. Therefore, We reverse
the trial courts order prohibiting defendant from filing any future pro se
pleadings.
See also Garcia v. State 212 So.3d 479 (Fla. 3rd DCA 2017) where the Court there
followed the holding in Gaston supra, and specifically stated:
While there is no bright line rule on the maximum number of
filings a pro se litigant can make before he is barred,....[W]e do
not think the Three (3) filings in this case justify such a serious
The filing of Three (3) post conviction motions in a
sanction,
Sixteen year period does not rise to the level of being an egregious
abuse of the judicial process which would warrant such an order,
thus, [W]e reverse the order prohibiting Garcia from filing future pro se
filings.
22
Petitioner would aver that because he only filed a total of (8) Appellate
proceeding in his case in the past (22) Years, the facts clearly failed to prove an
egregious abuse of the judicial process that warranted an order prohibiting
him from filing any other pro se filings, specifically where there was no
showing: “that his Previous Appellate Proceedings were not advanced in
Good Faith”
Compare Sapp v. State 238 So.3d 875 (Fla. 5th DCA 2018)(Thirty Six (36)
pro se filings prior to Spencer Order being issued): Mvles v. Crews 116 So.3d
1256 (Fla. 2013)(Twenty Three (23) pro se filings prior to Spencer Order being
issued): Carter v. State 173 So.3d 1052 (Fla. 3rd DCA 2015)(Seventeen (17) pro
se filings prior to Spencer Order being entered): and Espinosa v. State 262 So.3d
114 (Fla. 3rd DCA 2018)(Twenty One (21) pro se filings prior to Spencer Order
being entered).
Petitioner would contend that a good example of the way these Rule(s) are
applied in an Uneven and Discriminatory manner to similarly situated pro se
litigants in the State of Florida occurred in the case of Brown v. State, 4D22-2172
(Fla. 4th DCA 12/27/22)
In 2010. Christopher Brown had been convicted in Indian River County of
Attempted Transfer of Cocaine within 1,000 feet of a church, and sentenced to
Life imprisonment.
Subsequently thereafter, Christopher Brown filed [Two-2] 3.850 post
conviction relief motion(s), however, upon the filing of the Second Motion, the
Trial Court issued a (Spencer Order) under Rule 3.850(n) barring Brown from
filing any further pro se filings.
23
In 2022. Christopher Brown discovered that the Crime of Attempted
Transfer of Cocaine is a Non-Existent Crime in the State of Florida, however,
because of the Trial Courts (Spencer Order), Brown was precluded from filing
any other pleading in the Trial Court to obtain relief from an otherwise illegal
conviction and Life sentence.
Brown, having no other procedural remedy at hand, filed a Petition for Writ of
Mandamus in the Fourth District Court of Appeal seeking an Order from the
Appellate Court quashing the Trial Courts (Spencer Order) and allowing him to
proceed with a new 3.850 motion. See Exhibit (R) of Appendix. (Christopher
Brown Mandamus)
Consequently however, despite the fact that the Appellate Court found merit
with the argument presented, it denied relief with directions for Brown to seek
collateral relief in the Trial Court by retaining an Attorney. See Exhibit (S) of
Appendix. (Christopher Brown 12/27/22 Court Order)
However, because Christopher Brown has no family or funds to hire an
Attorney, and due to the fact that Rule 3.850(n) contains no “Exceptions” to the
Sanction Rule, he will be left to die in prison for a crime that does not even exist in
the State of Florida.
Notwithstanding, and contrary to the Fourth District Court of Appeals decision
in Christopher Browns case, the Florida Second District Court of Appeal, faced
with an identical situation involving a (Spencer Order) in Huffman v. State 192 So.
3d 687 (Fla. 2nd DCA 2016), Reversed and Remanded for the Trial Court to
Appoint Huffman an Attorney to represent him in a post conviction motion due to
the Trial Courts entree of a Spencer Order, to which is authorized by Florida
Statute and Court Rule.
24
Based upon this analogy of law, when Petitioner submitted his Petition For
Writ of Prohibition to the Florida Supreme Court seeking relief from the Appellate
Courts Spencer Order, he also submitted a Motion for the Appointment of
Counsel on his quest for (Reconsideration) of the prior Appellate proceeding.
See Exhibit (T) of Appendix. (Motion For Appointment of Counsel)
Consequently however, because “No Rights Exist under Appellate Rule or
the Florida Constitution to seek review of a Spencer Order in the Florida
Supreme Court prohibiting a pro se litigant from filing any other pro se filings, the
Court had no Jurisdiction to entertain the merits of Petitioners Petition, and
dismissed it on procedural grounds.
Thus, it cannot be said that these particular Rule(s) do not infringe upon
Rights secured by the Florida and U.S. Constitution. See Thomas v. State 1 So.3d
194 (Fla. 4th DCA2005) where the Court there held in its reversal:
Because a Spencer Order affects a pro se litigants access to the
court, the litigant has the right to challenge whether the Order was
warranted and whether the proper procedure was followed. See
e.o. Rogers v. State 916 So.2d 899 (Fla. 4th DCA2005),....
Moreover, as this Court has recognized an (Order) restricting further
pro se filings “cannot restrict or frustrate in any way an Appeal
taken from that Order.”
Therefore, utilizing the analysis traditionally used in Strict Scrutiny Review,
this Court should conclude that the Sanction Clause of Rule 3.850(n) and
9.410(a) restricts and impedes the filing of many more types of Inmate Petitions
which were identified by the Court to be the malady being targeted, in other words,
even assuming the Court Rules satisfy the “compelling interest” prong, the
Court Rules are not Strictly Tailored, i.e., (their overbroad), Therefore, it does
not meet the Strict Scrutiny Test set forth in Washington v. Glucksberg 117 S. Ct
2258(1997)
25
Furthermore, in order to find that a Right has been violated it is not
necessary for the Rule to produce a procedural hurdle which is absolutely
impossible to surmount,... only one which is significantly difficult.
Since the procedural hurdles caused by these Court Rules can and in some
cases do rise to the level of a denial of Access to the Courts, this Court should
come to the conclusion they are Unconstitutionally Broad under the Due Process
and Equal Protection Clause of the Fourteenth Amendment of the U.S.
Constitution.
Based upon the foregoing, Petitioner would aver that he has clearly
demonstrated that these particular Rule(s) also violate the Equal Protection
Clause of the Fourteenth Amendment warranting Certiorari Review in the case at
bar. See Dobbert supra (Equal Protection claim stated when Party demonstrated
(1) that similarly situated individuals intentionally have been treated differently from
one another by the government, and (2) that there is no rational relation between
the dissimilar treatment and any legitimate penological interest)
ERROR NOT HARMLESS
In the case at bar, Petitioner made the argument to the Florida Supreme
Court that the Fifth DCA Erred when it denied his post conviction Appeals based
upon an erroneous interpretation of law, and that such Order prohibiting further
pro se filings should not be allowed to stand.
Petitioner supported his argument with the fact that the Doctrine of Manifest
Injustice contains an [“Exception”] to the Rule that allows for such an Order to
be Rescinded, when failure to Reconsider a prior decision will result in a Manifest
Injustice. See Muehleman v. State 3 So. 3d 1149 (Fla. 2009)
26
For this reason, a claim asserted by a litigant that an Appellate Court erred in a
prior Appellate decision, may challenge that decision, v.i.a. Writ of Habeas
Corpus, and have the Appellate Court reconsider it, despite The Law of The
Case. See Baker v. State 878 So.2d 1236 (Fla. 2004)
As such, it was Petitioner's argument, that, not only did he have standing to
bring a Habeas Corpus Petition requesting the Fifth District Court of Appeals to
Reconsider it's prior decisions, denying his post conviction claim based on
Counsels failure to convey a favorable plea offer, but should Petitioner be allowed
to file a Habeas Corpus Petition with the Fifth DCA, there was a reasonable
probability that Relief would be granted, resulting in Petitioners Life Sentence
being reduced to [3-4 Years], and his immediate release from prison.
Petitioner based his argument on the fact that the cause of the Appellate
Courts misapplication of the law to Petitioners case, directly stemmed from case
precedent emanating from the Florida Supreme Court, to which, not only caused
confusion on the issue, but rendered the law governing such claim vague and
ambiguous.
More specifically,
Petitioner asserted that at the time his Appellate
proceedings were pending in the Fifth DCA in [2006-2007], the law in Florida
governing this particular Post Conviction Claim, consisted of Two competing
theories, that was further comprised of Two Different Standards of Review
governing Each, to which, as a result thereof, rendered these Standards
Mutually Exclusive, and thus, caused valid claims, (such as Petitioners) to be
summarily denied without cause.
27
In Support of this Factual Proposition Petitioner Proffered the following:
FIRST: In Jones v. State 591 So.2d 911 (Fla. 1991) The Florida Supreme Court
developed the Standard governing Newly Discovered Evidence Claims, that
was comprised of Two specific prongs which consisted of:
[1]. The asserted facts “must have been unknown by the trial court, by the
party, [or] by counsel at the time of trial, and it must appear that defendant [or]
his counsel could not have known of them by the, use of diligence.
[2]. The Newly Discovered Evidence must be of such nature that it would probably
produce an acquittal.
SECOND:
In Cottle v. State 733 So.2d 963 (Fla. 1999) The Florida Supreme
Court developed the Standard governing Claims for Ineffective Assistance of
Counsel when Counsel fails to Convey a Plea Offer made to a Defendant by the
State, that was further comprised of the following fhree prongs:
[1]. Counsel failed to relay a plea offer;
[2]. Defendant would have accepted it; and
[3]. The plea would have resulted in a lesser sentence.
Consequently, when the Court developed the Cottle Standard, it did so
under the guise of Strickland v. Washington 104 S. Ct 2052 (1984) governing
claims of Ineffective Assistance of Counsel, with the thought in mind of [such
claim] being raised in a [“Timely Rule 3.850 Motion”].
However, at the time these decisions were rendered, there was no common
ground established by the Court, as to how to apply the Cottle Standard, to a
Claim of Newly Discovered Evidence under the Jones test, to which, as a result
thereof, caused valid claims, (such as Petitioners) to be summarily denied
without cause.
28
More specifically, the Rule authorizing claims of Newly Discovered
Evidence as an exception to the two-year procedural bar is written in the
disjunctive, using the word ["or"],
■■••
“The use of this particular disjunctive word
in the Rule indicates that an alternative is intended.” Sparkman v. McClure. 498
So. 2d 892, (Fla. 1986) see also Kirksev v. State. 433 So. 2d 1236, n.2 (Fla. 1st
DCA 1983)("[W]e note the general rule that 'the use of a disjunctive in a statute
indicates alternatives and requires that those alternatives be treated separately."'
(quoting Ouindlen v. Prudential Ins. Co. of Am.. 482.F.2d 876 (5th Cir. 1973)).
Therefore, in order to meet the exception to the two-year procedural bar, the
evidence could not have been known to the defendant or, alternatively, to
Counsel; that is, if either the defendant or Counsel knew of the evidence, it is
not newly discovered.
Abundant case law also set forth this disjunctive standard. See, e.g.,
Jones v. State. 709 So. 2d 512 (Fla. 1998)("First, in order to be considered newly
discovered, the evidence 'must have been unknown by the trial court, by the party,
[or] by Counsel at the time of trial, and it must appear that defendant [or] his
Counsel could not have known [of it] by the use of diligence."
This reading and application of the disjunctive is consistent with numerous
cases emanating from the Florida Supreme Court, where the Court had clearly
stated that evidence known to trial counsel is not newly discovered such that
the procedural bar of post conviction motions is lifted. See Atkins v. State,
663 So. 2d 624 (Fla. 1995)("Moreover, the photographs clearly are not newly
discovered evidence, which could lift the procedural bar, since their existence
was known to trial counsel"), see also Miller v. State. 926 So. 2d 1243 (Fla.
2006) (“Because Miller's trial counsel was aware of the Evidence at the time
of trial" Miller "failed to demonstrate the [First prong] of the Jones test for
newly discovered evidence) See also McDonald v. State. 117 So. 3d 412 (Fla.
29
2013)(affirming summary denial of post conviction motion where "[a]ll the evidence
upon which McDonald relies was known to him or his counsel, or was
discoverable by due diligence, in 2002 or earlier").
Accordingly, not only have the Courts of Florida determined that the pleading
requirement for ineffective assistance of counsel claims for failure to convey a plea
offer, are mutually exclusive from those asserting newly discovered evidence, but
because Counsels knowledge of a proposed plea deal would be directly imputed
to the defendant for purposes of such claim, under the competing standards of
review, such claim would automatically fail as a matter of law, in that where the
allegation is that Counsel knew of the Offer and failed to convey it, the first prong
of Jones cannot be met.
Petitioner would aver, that the only Appellate Court in Florida to actually
entertain this particular claim and reach a proper determination on the law in
regards to both Standards of Review, was Gallant v. State 898 So.2d 1156
(Fla. 2nd DCA 2005) where the Court there reversed the denial of a post conviction
claim based on trial counsel's failure to convey a plea offer holding:
A trial counsel's failure to convey a plea offer can constitute ineffective
assistance of counsel. Whitten v. State. 841 So. 2d 578 (Fla. 2d DCA 2003)
(citing Cottle v. State. 733 So. 2d 963 (Fla. 1999)).
In order to state a prima facie case of ineffective assistance of counsel
based on failing to convey a plea offer, the defendant must allege (1) that
counsel failed to communicate a plea offer; (2) that the defendant would
have accepted the plea offer but for the inadequate communication; and (3)
that acceptance of the plea offer would have resulted in a lesser sentence.
Whitten. 841 So. 2d at 579.
If the claim is sufficiently alleged, the court should order an evidentiary
hearing. Cottle. 733 So. 2d at 969 n.6...... “An inherent prejudice results
from a defendant's inability, due to counsel's neglect, to make an
informed decision whether to plea bargain, which exists
independently of the objective viability of the actual offer.” Id.
30
Accepting, as we must, the truth of Gallant's allegations, a prima facie
case of ineffective assistance of counsel by failing to convey a plea
offer is demonstrated, and he is entitled to an evidentiary hearing.
There is no conclusive proof in the record that he knew or should have
known that the State had made a four-year offer when he filed his original
Rule 3.850 motion. Thus, Gallant's claim is, therefore, founded upon
Newly Discovered Evidence and shall not be barred. Accordingly, We
reverse the order of the circuit court and remand for an evidentiary hearing.
However, despite the (2005) decision rendered in Gallant supra, it wasn't
until most recently, that the Appellate Courts of Florida actually aligned themselves
with the Gallant decision, and started providing relief to criminal defendants, to
which they had been entitled to all along. See Tribbitt v. State 339 So. 3d 1029
(Fla. 2nd DCA 2022) where the Court there best explained the evolvement of this
issue:
Marcus Tribbitt appeals the summary denial of his Florida Rule of
Criminal Procedure 3.850 motion, which asserted one claim of
ineffective assistance of counsel based on newly discovered
evidence.
Mr. Tribbitt argued that his circumstances were "virtually identical"
to those in Petit-Homme v. State. 205 So. 3d 848 (Fla. 4th DCA
2016), where the defendant claimed his half-brother told him about a
previously unconveyed plea offer Seventeen years after his
conviction, and the Fourth District held that those allegations were
facially sufficient to support an ineffective assistance of counsel claim
based on newly discovered evidence. Id. at 849.
The post conviction court summarily denied Mr. Tribbitt’s motion,
concluding that (1) it was time-barred "in that [Mr. Tribbitt] could have
discovered this claim during his 2010 post conviction practice" and (2)
Mr. Tribbitt's mother's affidavit did "not show that probation was not a
part of the offer" because "[c]ounsel informed the mother that she
needed to check her notes" and "[n]o follow up with counsel was
conducted."
Under Petit-Homme and other district court precedent that bound the
post conviction court, Mr. Tribbitt's claim was facially sufficient and
was not procedurally-or time-barred.
31
A defendant can file a Rule 3.850 Motion after the two-year time limit
if his claim is predicated on "newly discovered facts." See Fla. R.
Crim. P. 3.850(b)(1): Blake v. State. 152 So. 3d 66 (Fla. 2d DCA2014)
(discussing the "newly discovered facts" exception).
A motion based on newly discovered facts must be filed "within [two]
years of the time the new facts were or could have been discovered
with the exercise of due diligence." Fla. R. Crim. P. 3.850(b)(1).
In two decisions featuring facts quite similar to those at hand, the
Fourth District held that the defendants alleged facially sufficient
claims outside the two-year time limit by asserting they first learned of
a previously unconveyed plea offer through a third party and then
promptly filed Rule 3.850 motions. See Clark v. State. 236 So. 3d 481
(Fla. 4th DCA 2018); Petit-Homme. 205 So. 3d at 849.
As did the post conviction court here, the post conviction courts in
Petit-Homme and Clark concluded that the defendants could have
discovered these plea offers sooner with due diligence.
The Fourth District disagreed, reasoning in Petit-Homme that a third
party's knowledge of a plea offer should not be imputed to the
defendant for purposes of the two-year deadline prescribed in
Rule 3.850(b). See Petit-Homme. 205 So. 3d at 849.
Two years later, the Fourth District specifically stated that "trial
counsel's knowledge of the plea offer is not imputed to
[the defendant] for purposes of the newly discovered fact exception
of Rule 3.850(b)." Clark 236 So. 3d at 482. See also Taylor v.
State. 248 So. 3d 280 (Fla. 5th DCA 2018)(reversing summary denial
of Rule 3.850(b)(1) motion where defendant alleged that he learned
of unconveyed plea offer Eleven years after his conviction)
Accordingly, Mr. Tribbitt's motion was facially sufficient, and "[n]o
procedural hurdles prevented the post conviction court from
considering the merits of [Mr. Tribbitt's] newly discovered evidence
claim." See Forbes v. State. 269 So. 3d 677 (Fla. 2d DCA 2019).
Though we agree with the post conviction court that the mother's
affidavit does not conclusively "show" that the State offered Mr.
Tribbitt a twenty-year plea offer without probation, Mr. Tribbitt was
not required to make such a showing at this stage of the
proceeding.
32
Instead, Mr. Tribbitt would be required to prove at an evidentiary
hearing that the twenty-year plea offer existed. See Forbes. 269 So.
3d at 680 (holding that to succeed on an ineffective assistance of
counsel claim based on an uncommunicated plea offer, the defendant
must prove the existence of the offer at an evidentiary hearing);
see generally Freeman v. State. 761 So. 2d 1055, 1061 (Fla. 2000)
(explaining that the defendant only "bears the burden of establishing a
prima facie case based upon a legally valid claim" before an
evidentiary hearing); Green v. State. 857 So. 2d 304, 305 (Fla. 2d
DCA2003) (holding that the defendant "ha[s] the burden of proving his
claim of ineffective assistance of counsel" at "an evidentiary hearing"
on the Rule 3.850 motion),
Because no record evidence conclusively refutes Mr. Tribbitt’s
allegation that this plea offer existed, [W]e too are bound to accept Mr
Tribbitt's allegations as true.
Mr. Tribbitt sufficiently alleged due diligence by claiming that he first
learned of the plea offer from a third party three months before he filed
his motion. See Petit-Homme. 205 So. 3d at 849; Clark. 236 So. 3d
at 482; accord Forbes. 209 So. 3d at 679.
Mr. Tribbitt also "demonstrated" the operative due diligence facts
by attaching his mother's affidavit in which she confirmed Mr_
Tribbitt's allegations and time-line to his motion.
While it can be argued that Mr. Tribbitt's allegations and his mother's
affidavit are conclusory because they don't explain why he couldn't
have discovered this plea offer sooner, nothing in this record
conclusively refutes Mr. Tribbitt's allegation to the contrary. See
Clark. 236 So. 3d at 483 (stating that reversal of summary denial of
Rule 3.850 motion was required where record did not conclusively
refute defendant's allegation that he could not have learned of the plea
offer with due diligence during the two-year time limit).
As was the case in Clark. [W]e "express no opinion on the merits of
[Mr. Tribbitt's] allegations or whether he could have learned of the
offer with due diligence." See Clark. 236 So. 3d at 482, and as was
the case in Clark, this "record simply fails to conclusively refute the
claim, so reversal is required."
We reverse and remand for the post conviction court to either hold an
evidentiary hearing or attach to its order portions of the record that
refute Mr. Tribbitt's claim.
33
Petitioner would aver, that the Court(s) decisions in Tribbitt: Petit-Homme:
Clark: Forbes: and Taylor supra, not only recognized the error between these
Two Competing Standards of Review, but expanded post conviction litigation
beyond the limits of what had previously been established by the Courts when
Petitioners Appellate proceedings were pending in [2006-2007], to which, should
entitle Petitioner to Reconsideration of his prior Appellate proceeding(s), where it
is abundantly clear that his post conviction Appeals were Affirmed under an
erroneous interpretation of the law.
In support of the Right to Reconsideration, Petitioner would show that
when the Fourth District issued Petit-Homme in 2016. like Gallant, the Court
focused on the ineffective assistance of counsel case law rather than on the
operative language of Rule 3.850(b)(1) to reverse the summary denial of a
newly discovered evidence claim alleging counsel's failure to convey a plea
offer. However, Petit-Homme does not discuss how counsel's knowledge of the
plea offer satisfies the newly discovered evidence requirements. Rather, it states
only that "[knowledge of the plea offer by [defendant's] half-brother is not
imputed to [defendant] "for purposes of timeliness. 205 So. 3d at 849.
Furthermore, two years later, in Clark, the Fourth District relied on PetitHomme to reverse the summary
denial of a Rule 3.850(b)(1) motion alleging
*
newly discovered evidence in the form of counsel's failure to convey a plea offer.
236 So. 3d at 482.
The Court in Clark expressly disagreed with the post conviction court's
determination that "the plea offer was not newly discovered evidence because
Clark's counsel was aware of the offer." instead concluding that "[i]n these
circumstances, trial counsel's knowledge of the plea offer is not imputed to
[defendant] for purposes of the newly discovered fact exception to Rule 3.850
(b)(1)." Id.
34
In Howarth. an earlier decision addressing the summary denial of a petition
for writ of error coram nobis, the Court held: that "[a] prima facie case for relief is
not made by couching other claims in terms of newly discovered evidence or by
characterizing previously known information as newly discovered." moreover,
"[cjiaims of ineffective assistance of counsel are not errors of fact that are
cognizable in a traditional Petition for writ of error coram nobis.)
Thus, based upon the fact that the Fifth DCA has implicitly receded from
Lamb, and Howarth. when it issued its subsequent decision in Taylor supra,
it cannot be said that Petitioner is not entitled to have the prior Appellate decisions
denying his post conviction Appeals reconsidered, where, not only was the Courts
decisions announced in Lamb, and Howarth found to be based upon an
erroneous interpretation of the law, to which Petitioners post conviction Appeals
were directly denied under, but because the Fifth DCA has subsequently rectified
such error in Taylor supra, it cannot be said that Reconsideration is not
warranted, specifically where, failure to do so will certainly result in a manifest
injustice being committed in Petitioners case.
Thus, based on the aforementioned principles of law, it cannot be said that
Petitioner did not have standing to have the Fifth District Court of Appeal
(Reconsider) its prior Appellate Decision(s) in Case No'(s): 5D06-3728: and
5D07-1224: under the principles of Habeas Corpus to Correct the Manifest
Injustice committed in Petitioners case.
36
REQUEST FOR CERTIFICATION OF QUESTION
FLORIDA APPELLATE RULE 9.150(a) — DISCRETIONARY PROCEEDINGS
TO REVIEW CERTIFIED QUESTIONS FROM FEDERAL COURTS
Pursuant to Florida Appellate Procedure, Rule 9.150(a) —Applicability..
The Florida Supreme Court is obligated to entertain Certified Questions from the
United States Supreme Court when no controlling precedent exist to resolve the
issue at bar, this Rule provides:
On either its own motion or that of a party, the Supreme Court of the
United States or a United States Court of Appeals may Certify One-1 or
more questions of law to the Supreme Court of Florida if the answer is
determinative of the cause and there is no controlling precedent of the
Supreme Court of Florida.
CONCLUSION
Wherefore, based upon the foregoing facts, argument, and citation of
authorities, Petitioner respectfully moves this Honorable Court to grant review
under its Certiorari Jurisdiction and Reverse and Remand to the Florida Supreme
Court a Certified Question as to whether its Rule(s) of Criminal and Appellate
Procedure are Unreasonably Over-Broad and Violative of the Substantive Due
Process Clause of the Fourteenth Amendment that operate to arbitrary deprive
Florida Prisoners of their Rights to Access to the Courts.
Respectfully Submitted
IS/
William Graves, DC# 113141
Tomoka Correctional Institutional
3950 Tiger Bay Road
Daytona Beach, FI. 32124
37
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.