IN THE SUPREME COURT OF FLORIDA

CASE NO. __________

MARK ASAY, DARRYL BARWICK, ERIC BRANCH, ANTHONY BRYAN, ELMERCARROLL, ROGER CHERRY, RONALD CLARK, WILLIAM CRUSE, MARK DAVIS,SAMUEL DERRICK, ERNEST DOWNS, ALFRED FENNIE, RONNIE FERRELL, JOHNFREEMAN, MARK GERALDS, ROBERT GLOCK, OLEN GORBY, TOMMY GROOVER,JOHN HARDWICK, RONALD HEATH, ROBERT HENDRIX, CLARENCE HILL, GEORGEHODGES, BARRY HOFFMAN, RUDOLPH HOLTON, PAUL JOHNSON, DAVIDJOHNSTON, CLARENCE JONES, HARRY JONES, GREGORY KOKAL, RAYMONDKOON, JOHN MAREK, JUAN MELENDEZ, ANTONIO MELTON, THOMAS MOORE,MICHAEL MORDENTI, ASKARI MUHAMMAD, JOE NIXON, RODERICK ORME, BRUCEPACE, DAVID PITTMAN, ANTHONY PONTICELLI, RICHARD RANDOLPH (MALIKABDUL SAJJAD), MILO ROSE, A.D. RUTHERFORD, MICHAEL SHELLITO, DERRICKTYRONE SMITH, STEVEN STEIN, WILLIAM SWEET, STEVEN TAYLOR, FRANKWALLS, TONY WATTS, FRED WAY, GARY WHITTON, JERRY WICKHAM, JOHNNYWILLIAMSON, CURTIS WINDOM, AND THOMAS WYATT,

Petitioners,

v.

ROBERT BUTTERWORTH, and theState of Florida,

Respondents.

PETITION FOR WRITS OF MANDAMUS AND PROHIBITIONAND OTHER EXTRAORDINARY RELIEF

AND PETITION INVOKING THIS COURT’S ALL-WRITS JURISDICTIONGREGORY C. SMITHCapital Collateral CounselNorthern RegionFlorida Bar No. 279080

ANDREW THOMASChief Assistant CCC - NRFlorida Bar No. 0317942OFFICE OF THE CAPITAL

COLLATERAL COUNSEL1533-B South Monroe StreetTallahassee, FL 32301(850) 488-7200Counsel for Petitioners

1 Statement of attorney Brad Thomas, “the governor’s top policy adviser on the deathpenalty.” Jo Becker and William Yardley, Bush Backs Off Firm Limit to Death Row Appeals, St.Petersburg Times, January 5, 2000, at 1A. For a description of the process DPRA would imposeon Florida see, Stephen B. Bright, Death in Texas, The Champion, July 1999. Texas cases reportonly three capital habeas petitioners to be time-barred. In the relatively short period that Floridahas privatized its capital representation scheme, at least six people sentenced to death in this Statehave had untimely applications filed or none at all. See, e.g., Rule 3.850 Motion filed in State v.Hamilton, Case No. 94-150-CF-1 (Fla. 3rd Cir. Nov. 8, 1999). This represents ten percent of thetotal cases being handled by private state-paid lawyers from 1998 through 1999.

2 A synopsis of the statute’s provisions appear at Appendix A of this Petition.

3 Jones v. State, 591 So.2d 911, 915 (Fla. 1991).

4 Ventura v. State, 673 So.2d 479, 481 (Fla. 1996).

5 Carter v. State, 706 So.2d 873 (Fla. 1997).

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I.

INTRODUCTION & STATEMENT OF ISSUES

“What I hope is that we become like Texas . . . .”1

On January 14, 2000 Governor Bush signed into law the Death Penalty Reform Act of 2000

(hereinafter “DPRA”).2 DPRA poses the following questions of critical and immediate importance

to this Court’s exclusive plenary jurisdiction over all capital post-conviction matters:

1. May the legislature enact rules of court?

2. May the legislature amend rules of court?

3. If a person sentenced to death presents newly discovered evidence of innocence of“such a nature that it would probably produce” an acquittal on retrial or a sentenceless than death, or that establishes a violation of Florida law or the Constitution,3 arethe courts prohibited from granting habeas corpus relief to such a person in asuccessive or “untimely” post-conviction action?

4. If the state “fail[s] to furnish relevant information,”4 or if other impediments such asmental incompetence5 interfere with the ability of a person sentenced to death to pleadclaims for habeas corpus relief, are courts prohibited from allowing amendment after

6 Although cautioned by four former Chief Justices of this Court, Judge Stanley Morris, JudgeO.H. Eaton, the President of the Florida Bar, the Public Interest Section of the Florida Bar, andthe present and incoming presidents of the American Bar Association that DPRAunconstitutionally encroached upon this Court’s exclusive powers and impaired Petitioners’access to courts, the statute’s proponents were undaunted.

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such impediment is removed, or must the court dismiss the application with prejudiceand find that all later claims are procedurally barred?

5. Are lawyers subject to sanctions for filing pleadings containing claims that a courtlater determines are procedurally barred or from filing pleadings that are authorizedby this Court’s rules and precedent?

There is a critical need for this Court to render a decision that will advise attorneys and the

lower courts whether and how DPRA controls capital habeas corpus litigation. For more than 30

years, rule 3.850, its predecessor, and this Court’s cases applying the rules were the primary and

necessary vehicles for providing the habeas corpus relief guaranteed in Florida’s Declaration of

Rights. Roy v. Wainwright, 151 So.2d 825 (Fla. 1963); State v. Bolyea, 520 So.2d 562, 563 (Fla.

1988); Teffeteller v. Dugger, 734 So.2d 1009, 1025 (Fla. 1999) (claims not pursued in rule-3.850

motion could not be raised in original habeas corpus petition in Florida Supreme Court). If DPRA

repealed rule 3.850 and the rules intended to complement it in capital cases, and if DPRA’s proposed

procedures must be enforced, the following spectacle has been created: innocent people legally may

be executed in the state of Florida; people whose convictions and death sentences were the product

of unreliable procedures resulting from constitutional violations legally may be executed; and this

Court (and petitioners) must tolerate sub-par lawyering by members of the Florida Bar in the process.

The Legislature does not have those prerogatives.6

1. What Can be Filed

7 As discussed in section IV.B.1, infra, DPRA’s “dual track” scheme would require initialhabeas corpus actions to be investigated and fully litigated at a time when law enforcementrecords related to the case are exempt from disclosure under chapter 119, Florida Statutes. DPRA § 6.

8 DPRA section 8 would require that each claim be “fully detailed,” and that memoranda oflaw must be “concise,” or the entire application must be dismissed with prejudice without anopportunity for amendment.

9 DPRA section 9 provides that the “Governor may proceed to issue a warrant for execution”upon the affirmance of a the denial of habeas corpus relief by this Court. Compare, Comment onAdoption of Fla.R.Crim.Pro. 3.851 (governor agrees not to sign death warrants until conclusionof state and federal habeas corpus review).

10 This section would hold that a claim is barred “unless the facts underlying the claim, ifproven and viewed in light of the evidence as a whole, would be sufficient to establish by clearand convincing evidence that, but for constitutional error, no reasonable fact finder would havefound the defendant guilty of the underlying offense.”

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DPRA would guarantee injustice and unfairness, the absence of due process, and the unequal

protection of the laws. Through the interaction of arbitrary timing provisions that prevent capital

habeas corpus petitioners from having access to relevant information,7 vague but unforgiving pleading

requirements, DPRA § 8,8 an absence of notice and an opportunity to be heard, id., and absolute

prohibitions on amendment and expansion of time, id., DPRA would ensure that people sentenced

to death will not receive meaningful initial habeas corpus review. At the conclusion of this break-

neck process, during which the state can pit one of the condemned person’s lawyers against the other,

DPRA would authorize Petitioners’ executions before they can initiate federal habeas corpus review.9

In cases of “successive” applications for habeas corpus relief, DPRA would prohibit Florida courts

from granting relief to petitioners who can establish through newly discovered evidence their

innocence, ineligibility for the death penalty, or that their convictions or death sentences were the

product of constitutional violations. DPRA § 6.10

11 In State v. Dougan, Case No. 74-4139 (Fla. 4th Cir. Ct.), the State is arguing that anattorney on the statewide registry “should not be appointed pursuant to [the Registry Actbecause] . . . there is a reasonable concern that [the attorney’s] appointment will result in furtherdelays in this case through [the attorney’s] litigation challenging aspects of the Registry Act asapplied here.” The State’s motion is attached hereto as Appendix B.

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2. The Appearance of Counsel

Under DPRA, habeas corpus relief would not be “grantable of right, freely and without cost.”

Art. I, § 13, Fla. Const. Capital habeas corpus petitioners would have to be willing to forfeit the right

to effective counsel, access to public records, and the right to raise claims of constitutional error. If

a person sentenced to death had the temerity to assert her right to competent or conflict-free counsel

in capital post-conviction proceedings, Peede v. State, 24 Fla. L. Weekly S391 (Aug. 19, 1999);

Spalding v. Dugger, 526 So.2d 71, 71 (Fla. 1988); Graham v. State, 372 So.2d 1363, 1366 (Fla.

1979), DPRA would require the court to threaten the condemned petitioner with the withdrawal of

state resources unless the request for competent legal counsel is “immediately” withdrawn. DPRA

§ 5. At the same time, the State is taking the position that only lawyers who will not challenge the

statutory fee caps or restrictions on the scope of representation imposed by sections 27.710, 27.711,

Florida Statutes (1999), should be appointed under those provisions.11 Lawyers compensated by the

state for representing people sentenced to death would be prohibited from filing any pleading that is

not authorized by the statutes, and risk being prosecuted for the unauthorized expenditure of funds

if they do so. DPRA § 2 (state-paid lawyers may only file pleadings authorized by statute), § 5 (no

state resources may be expended in violation of act).

3. This Court’s Place in Florida’s Social and Political Fabric

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a. Rules

The effects DPRA would have on the exercise and enforcement of Petitioners’ fundamental

rights implicates this Court’s most fundamental constitutional role: interpreting and applying the

Declaration of Rights contained in Article I of the Florida Constitution, and the Due Process and

Equal Protection Clauses of the United States Constitution. Traylor v. State, 596 So.2d 957, 962

(Fla. 1992). This “stalwart set of basic principles” requires this Court’s protection “from the unjust

encroachment of state authority–from whatever official source.” Id., 596 So.2d at 963. DPRA’s

intended infringement of fundamental rights cannot satisfy the strict scrutiny this Court must give it.

See Chiles v. State Employees Attorney's Guild, 734 So. 2d 1030, 1033 (Fla. 1999); Haag v. State,

591 So. 2d 614, 616 (Fla. 1992)(holding that the writ of habeas corpus is a fundamental right). “The

unconstitutionality of [such] a statute may not be overlooked or excused for reasons of

inconvenience.” City of Tallahassee v. Public Employees Relations Commission, 410 So.2d 487,

490 (Fla. 1981).

b. Courts Protect

DPRA’s intended assault on the Florida Constitution extends beyond the “fundamental

guarantees enumerated in Florida’s Declaration of Rights,” Haag v. State, 591 So.2d 614, 616 (Fla.

1992), to the judicial independence secured by Article V of the Constitution and the separation of

powers provision of Article II. “It is axiomatic that the courts must be independent and must not be

subject to the whim of either the executive or legislative departments. The security of human rights

and the safety of free institutions require freedom of action on the part of the court.” Rose v. Palm

Beach City, 361 So.2d 135, 137 n.7 (Fla. 1978); see also Makemson v. Martin County, 491 So.2d

1109, 1113 (Fla. 1986) (“courts have authority to do things that are essential to the performance of

12 The State of Florida is named as Respondent in place of the individual courts presiding overPetitioner’s cases pursuant to Florida Rule of Appellate Procedure 9.100(e)(1). The judges of thelower tribunals are named in Appendix C.

7

their judicial functions”). “[W]here the fundamental rights of individuals are concerned, the judiciary

may not abdicate its responsibility and defer to legislative or administrative arrangements.” Rose, 361

So.2d at 137.

II.

JURISDICTION

Pursuant to Florida Rule of Appellate Procedure 9.100(a), and article V, section 3(b), Florida

Constitution, Petitioners invoke this Court’s jurisdiction to issue writs of prohibition and mandamus,

and its jurisdiction to issue all writs necessary to the complete exercise of its jurisdiction. DPRA

necessarily implicates the Court’s exclusive plenary jurisdiction over all types of capital post-

conviction matters, State of Florida v. Fourth District Court of Appeal, 690 So.2d 70, 71 (Fla.

1997) (“we now hold that in addition to our appellate jurisdiction over sentences of death, we have

exclusive jurisdiction to review all types of collateral proceedings in death penalty cases”); Orange

County v. Williams, 702 So.2d 1246 (Fla. 1997) (transfer of appeal to this Court “based upon our

plenary jurisdiction over death penalty cases. See art. V, § 3(b)(1), Fla. Const.”), its exclusive

jurisdiction over practice and procedures in the courts, Article V, section 2(a), Florida Constitution,

and its exclusive jurisdiction over the practice of law and discipline of lawyers. Article V, section

3(a), Florida Constitution.12 Under these extraordinary circumstances, jurisdiction is proper under

the “all writs” clause. See State ex rel. Chiles v. Public Employees Relations Commission, 630 So.2d

1093, 1095 (Fla. 1994) (“the all writs clause could arguably be invoked as a basis for” the court’s

exercise of jurisdiction over a case involving the court’s exclusive jurisdiction to regulate the practice

13 Petitioners are aware that this Court ordinarily “prefers that the constitutionality of a statutebe considered first by a trial court.” Dickinson, 251 So.2d at 271. In view of the large number ofcases that would be effected by DPRA–cases pending in this Court and at various stages in trialcourts throughout the state–and the responsibilities of so many attorneys employed by the State,“the functions of government will be adversely affected unless an immediate determination ismade by this Court.” Ibid.

Should the Court decide that the constitutionality of DPRA and its various effects on thetrial, appeal, and habeas corpus process should be decided in individual cases as the issues arise,Petitioners respectfully request that this Court enter orders either remanding the matter to therespective circuit courts, or requiring briefing in this Court in the cases pending on direct appeal. A list of the effected cases and the courts in which they are pending is attached hereto atAppendix C.

8

of law); Britt v. Chiles, 704 So.2d 1046 (Fla. 1997); Dickinson v. Stone, 251 So.2d 268 (Fla. 1971).13

In view of the large number of cases involved, the limited resources available to seek relief, and the

irreparable harm that will result from application of DPRA to Petitioners, there is no adequate remedy

at law for the relief Petitioners seek.

III.

NATURE OF RELIEF SOUGHT

Petitioners ask this Court to issue the following relief:

1. Writs of prohibition and mandamus directing that the circuit courts listed in AppendixC not apply any of the provisions of the Death Penalty Reform Act of 2000 in Petitioners’cases, directing that those provisions are tolled during the pendency of this action, that no baror waiver provision of DPRA is currently in effect, and mandating that Petitioners be heldharmless during this action;

2. Writs of prohibition directing that Respondents not assert DPRA as a basis forremoving, sanctioning, or otherwise interfering with the representation provided by the Officeof the Capital Collateral Counsel, Northern Region (“CCC-NR”), and that Respondents notuse this action as a basis for reporting that the CCC-NR has violated DPRA;

3. Writs of prohibition directing that Respondents not assert or rely upon any bar,waiver, timing, or pleading provision contained in DPRA;

4. A declaration that DPRA or portions thereof are unconstitutional and therefore void;

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5. A declaration that the provisions of DPRA that are inconsistent with this Court’s rulesand cases regarding the procedures for and substantive parameters of habeas corpus,postconviction, or collateral review and relief, are unconstitutional or otherwise void andtherefore not binding on Petitioners or Respondents;

6. All writs necessary to provide the injuctive and declaratory relief necessary to thisCourt’s exclusive jurisdiction over interpretation of the federal and state Constitutions, itsexclusive jurisdiction over capital habeas corpus matters, its exclusive jurisdiction ro regulatepractice and procedures in the courts and the practice of law, and to protect the rights ofPetitioners under the state and federal Constitutions, the rules and precedent of this Court andthe laws of the State of Florida;

7. Hold in abeyance all cases for which fully-funded, conflict-free capital habeas counselare not available to provide proper representation until each and every person subject toDPRA has such counsel;

8. Such other relief as the Court may deem necessary and proper in the interests ofequity and justice.

Petitioners also seek leave to supplement and amend this petition. Due to the length,

complexity, and incoherence of DPRA Petitioners are unable to present in this petition all available

grounds for challenging the constitutionality of the statute. Petitioners also request oral argument.

14 Bernhardt v. State, 288 So.2d 490, 497 (Fla. 1974) (“Rules of practice and procedureadopted by this Court supersede any legislative enactment governing practice and procedure to[the] extent that statute and rule may be inconsistent.”).

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IV.

ARGUMENT AND CITATIONS OF AUTHORITY

A. DPRA’S ATTEMPTED AMENDMENT OF THEPROCEDURES FOR SEEKING HABEAS CORPUS RELIEFIN CAPITAL CASES VIOLATES THE SEPARATION OFPOWERS DOCTRINE OF FLORIDA’S CONSTITUTION ANDEXCEEDS THE SCOPE OF THE LEGISLATURE’SAUTHORITY UNDER ARTICLE V, § 2(a), FLORIDACONSTITUTION

DPRA is doomed by two well-settled rules of Florida constitutional law: (1) the Florida

Supreme Court has exclusive authority to create, promulgate, amend, and adopt rules of practice and

procedure in the courts, Article. I, section 2(a), Florida Constitution, and (2) duly adopted rules of

court prevail over inconsistent statutes.14 DPRA violates these basic constitutional principles by

purporting “to comprehensively address . . . the process by which an offender sentenced to death may

pursue postconviction and collateral review of the judgment and the sentence of death,” and by

purporting to repeal rule 3.850 “to the extent it is inconsistent with this act.” DPRA sec. 10

(“repealer provision”).

DPRA violates the separation of powers doctrine of Florida constitutional law. Art. II, § 3,

Fla. Const. The statute’s repealer of rule 3.850 is ineffective, and leaves rule 3.850 in effect and

unchanged. Other portions of DPRA–sections 2 through 9, 11, and 16 through 18--are inconsistent

with this Court’s rules and cases governing the pursuit and scope of habeas corpus and the practice

of law in Florida, and are therefore unconstitutional. Because little of DPRA can withstand

constitutional scrutiny, the entire statute falls. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.

15 Article V, § 2(a), Florida Constitution provides that while the “supreme court shall adoptrules for the practice and procedure in all courts [and]. . . [t]hese rules may be repealed bygeneral law enacted by two-thirds vote of the membership of each house of the legislature.” Id. (emphasis added).

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1978).

1. The Repealer is Ineffective

DPRA would not “repeal” rule 3.850 within the meaning of Article V, section 2(a), Florida

Constitution.15 The repealer provision attempts to amend rule 3.850 by imposing the statute’s version

of the rule’s procedures for some cases, but not others. DPRA would apply only to people sentenced

to death and only to challenges to capital convictions and sentences. Rule 3.850 would remain the

procedural vehicle for obtaining habeas relief, State v. Bolyea, 520 So.2d 562 (Fla. 1988), for all

people convicted of non-capital crimes and people sentenced to life imprisonment. Teffeteller v.

Dugger, 734 So.2d 1009, 1025 (Fla. 1999) (Florida Supreme Court’s original habeas corpus

jurisdiction may not be invoked to raise claims that could have and should have been raised on appeal

or in rule-3.850 proceeding); Parker v. Dugger, 550 So.2d 459, 460 (Fla. 1989) (same). Even as

applied to people sentenced to death those provisions of rule 3.850 that are not “inconsistent with

this act” would remain in effect. Substitution of one set of procedures in only one class of cases is

not a “repeal.” See Swan v. State, 322 So.2d 485, 489 (Fla. 1975) (Legislature’s power to repeal

allows for abrogation or nullification not amendment of rule); Blacks’s Law Dictionary 1299 (Sixth

Ed.)(repeal is the “abrogation or annulling of a previously existing law by the enactment of a

subsequent statute which declares that the former law shall be revoked and abrogated”).

Procedural aspects of a statute that attempt to control how substantive rights will be enforced

are unconstitutional. Johnson v. State, 336 So.2d 93, 95. (Fla. 1976) (statute purporting to create

16 Even if the repeal of rule 3.852 is upheld under DPRA’s severability clause, DPRA § 21,the procedures for requesting public records and funneling them through the Bureau of Archives,DPRA § 3, are unconstitutional. Section 3 of DPRA amends section 119.19, Florida Statutes. The history of section 119.19 makes it perfectly clear that its provisions are procedural, unrelatedto exemptions, Article I, § 24(a) & (c), Florida Constitution, and therefore beyond theLegislature’s influence. Section 119.19 began in 1998 as a repeal of the rule this Court adoptedto govern the procedures for the production of public records. Ch. 98-198, Laws of Fla. Inadopting the original rule 3.852 this Court was careful not to exceed its constitutional authorityby effecting capital habeas petitioners’ substantive right to public records. In re Amendment toFlorida Rule of Criminal Procedure–Capital Postconviction Public Records Production, 683So.2d 475, 476 (Fla. 1996). That the 1998 legislation provided for repealing the original rule3.852 by a two-thirds vote is evidence that the Legislature viewed rule 3.852 as a duly adoptedrule of procedure falling under Article V, section 2(a) of the Florida Constitution. This Court’ssubsequent action in adopting a new version of rule 3.852 based on section 119.19 demonstratesthe Court’s view that the statute was procedural. Little of section 119.19 was changed by DPRA. As in 1998, the Legislature’s inclusion of rule 3.852 within DPRA’s repealer provision is tellingevidence that the Legislature views the most recent version of section 119.19 as procedural.

12

procedure for expungement of court records in criminal cases where no previous right had been

granted by legislature was “an encroachment upon the judicial function and, therefore,

unconstitutional to that degree”).

[T]he Constitution establishes judicial power in the court system andvests this Court with the power of administration of the court system,including the establishment of judicial rules of practice and procedure. . . [W]hile such rules may be repealed by a general law . . . the powerto initiate them rests in this Court.16

Johnson v. State, 336 So.2d at 95 (footnote citing Article V, sections 1 and 2, Florida Constitution

omitted)(emphasis added). Legislative amendments to procedural rules are not allowed.

Legislature has the constitutional right to repeal any rule of theSupreme Court by a two-thirds vote, . . . it has no constitutionalauthority to enact any law relating to practice and procedure . . . .[A]ttempted amendment is beyond the powers of the Legislature asthe Supreme Court is given exclusive authority to promulgate rules ofpractice and procedure in the courts. In other words, under theConstitution the Legislature may veto or repeal, but it cannot amendor supersede a rule . . . .

13

In re Clarification of Florida Rules of Practice and Procedure (Florida Constitution, Article V,

Section 2(a)), 281 So.2d 204, 204-205 (Fla. 1973) (emphasis added). In sum, “the Legislature’s

power to abrogate a court rule extends only to repeal and does not include the power of

amendment.” Swan, 322 So.2d at 489 (Fla. 1975)(emphasis added).

Nevertheless, in enacting DPRA, the legislature attempted (unconstitutionally) to arrogate the

power to promulgate rules to govern applications for habeas corpus relief on behalf of people

sentenced to death. State v. Ashley, 701 So.2d 338, 342 (Fla. 1997) (under Article II, section 3,

Florida Constitution “no branch of state government can arrogate to itself powers properly inhering

in a separate branch”). DPRA section 6 provides that “in every capital case in which the trial court

imposes a sentence of death on or after the effective date of this act, this section shall govern all

postconviction proceedings in state court.” (emphasis added). DRPA section 7 purports to “govern

all capital postconviction actions in cases in which the trial court imposed the sentence of death before

the effective date of this act.” DPRA sections 8 and 9 provide that these sections “shall regulate the

procedures in actions for capital postconviction relief commencing after the effective date of this act

unless and until such procedures are revised by rule or rules adopted by the Florida Supreme Court

which specifically reference this section.” The brash “unless and until” proviso demonstrates that

the Legislature has assumed a power to impose rules of practice and procedure on the courts that is

coextensive with this Court’s powers under Article V. Such attempts have repeatedly been held

unconstitutional. Johnson, supra; Swan, supra.

2. Provisions of DPRA that are Inconsistent with thisCourt’s Rules and Cases are Unconstitutional

DPRA’s repealer provision–in its purpose and effect and amendment of rule 3.850–is

17 DPRA’s provisions for seeking habeas corpus relief fall squarely within this definition of“procedure.” The statute dictates the manner in which habeas corpus relief must be sought:through an action filed in the trial court. DPRA §§ 6-9. Its provisions are to be the sole mannerand method for pursuing postconviction remedies in a capital case. Id., see § IV.B, infra. DPRA’s meticulous pleading rules purport to control the form of applications for habeas corpusrelief. DPRA § 8. Finally, the act prescribes what the process of the habeas action will be, fromthe filing of the application through the response, hearings, and rulings in the trial court, to theappeal and further habeas review in this Court. DPRA §§ 6-8.

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ineffective. The Legislature cannot by statute overrule this Court’s cases interpreting the

Constitution, Chiles v. Phelps, 714 So. 2d 453, 456 (Fla. 1998). See also Plante v. Smathers, 372

So. 2d 933, 935 (Fla. 1979)(construing Article II, section 8 of the Florida Constitution); Ervin v.

Collins, 85 So. 2d 852, 855 (Fla. 1956)(stating the duty of the Florida Supreme Court is to effectuate

the “words employed in the [Constitution]”); State ex rel. Young et al. v. Duval County, 79 So. 692,

687 (Fla. 1918)(holding “the judicial power that is vested in the courts shall not be exercised by the

Legislature or by the Governor.”), and Article V, section 2(a) of the Florida Constitution vests this

Court with exclusive jurisdiction over the creation and adoption of rules governing the “course, form,

manner, means, method, mode, order, process or steps by which a party enforces substantive rights

or obtains redress for their invasion.”17 Haven Federal Savings & Loan v. Kirian, 579 So.2d 730,

732 (Fla. 1991). Where a statute is in conflict with a rule adopted by this Court, the statute is

unconstitutional. TGI Fridays v. Dvorak, 663 So.2d 606 (Fla. 1995). DPRA cannot change that rule

of Florida constitutional law.

As conceded in the statute’s repealer provision, much of DPRA is “inconsistent with” rule

3.850, a rule that remains in effect in all cases. Under this Court’s precedent, those sections that are

inconsistent with the rule are void. Bernhardt, supra, 288 So.2d at 496-97 (“Rules of practice and

procedure adopted by this Court supersede any legislative enactment governing practice and

18 Chief Justice Harding recently noted that “justice is the foundation upon which our systemof government was built. Inherent within the concept of justice is the fair processing of cases.” Nixon v. Singletary, Case No. SC93192 (Fla. Jan. 27, 2000)(Harding, C.J., concurring), slip op.at 17. DPRA’s version does not “render all persons their due.” Ibid.

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procedure to [the] extent that the statute and rule may be inconsistent.”). Even if the purported

repealer of rule 3.851 is upheld as severable from the repealer of rule 3.850, DPRA § 21, the

remaining sections of DPRA are unconstitutional insofar as they are inconsistent with the remaining,

effective rule 3.850 and the cases interpreting and applying the rule. Bernhardt, supra. “Where rules

and construing opinions have been promulgated by this Court relating to the practice and procedure

of all courts and a statutory provision provides a contrary practice or procedure . . . the statute must

fall.” School Board of Broward County v. Surette, 281 So.2d 481 (Fla. 1973) (emphasis added),

receded from on other grounds, School Board of Broward County v. Price, 362 So.2d 1337 (Fla.

1978). The provisions of DPRA that conflict with this Court’s precedent are discussed in the

following section.

B. DPRA’S RESTRICTIONS ON HABEAS CORPUS REVIEWAND RELIEF FOR PEOPLE SENTENCED TO DEATHVIOLATE THE DUE PROCESS AND EQUAL PROTECTIONPROTECTIONS OF THE FEDERAL AND STATECONSTITUTIONS AND ARTICLE I, SECTION 13, FLORIDACONSTITUTION

DPRA apportions “justice”18 in an unequal, arbitrary, perverse, and unconstitutional manner.

People convicted of non-capital crimes and people convicted of capital crimes but sentenced to life

receive all the due process, access to courts, rights to competent legal representation, and the right

to habeas corpus relief that was available before DPRA. People sentenced to death, and who receive

state-financed legal representation, are specifically denied the rights which the Florida and federal

Constitutions must afford all people seeking habeas corpus relief.

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1. DPRA’s Shell Game

In habeas corpus actions “the procedures by which the facts of the case are determined

assume an importance fully as great as the validity of the substantive rule of law to be applied.”

Wingo v. Wedding, 418 U.S. 461, 474 (1974) (internal quotation omitted). DPRA’s capital case

exception to the normal procedures for ferreting out claims of innocence and constitutional violations

proves the rule. Through a combination of pleading deadlines and standards of review, DPRA

attempts to guarantee that people sentenced to death will have unequal and ultimately meaningless

access to justice.

Here is how it works. Florida law provides that under Article I, section 24, Florida

Constitution, all people are entitled to public records. This fundamental constitutional right applies

to both capitally-sentenced and non-capitally sentenced people who are pursuing claims of innocence

and constitutional error in habeas corpus proceedings. Muehleman v. Dugger, 623 So. 2d 480, 481

(Fla. 1997); Walton v. Dugger, 634 So. 2d 1059, 1062 (Fla. 1993); Provenzano v. Dugger, 561 So.

2d 541, 547 (Fla. 1990); Smith v. State, 696 So. 2d 814, 816 (Fla. 2d DCA 1997); Roesch v. State,

596 So. 2d 1214, 1215 (Fla. 2d DCA 1992); Campbell v. State, 593 So. 2d 1148, 1149 (Fla. 1st

DCA 1992). People sentenced to death and people sentenced to imprisonment also have a

fundamental constitutional right to raise claims of constitutional error that are “dehors the record,”

Waley v. Johnston, 316 U.S. 101, 104 (1942), after their convictions and sentences become final.

Art. I, § 13, Fla. Const.; Haag v. State, 591 So.2d 614, 616 (Fla. 1992). People who are not

sentenced to death may still do so. Under DPRA, those people will have two years after the

conviction becomes final to investigate their cases, Fla.R.Crim.Pro. 3.850, and may amend their

motions as they discover new facts outside the filing time. Brown v. State, 596 So. 2d 1026 (Fla.

19 Public records could establish, for example, that a person was incompetent during trial, orunder the influence of antipsychotic medication; that jurors or the judge were not impartial; that aviolation of United States v. Henry, 447 U.S. 264 (1980), or Massiah v. United States, 377 U.S.201 (1964) occurred; that the person convicted is actually innocent; or that the state suppressedmaterial exculpatory information. See, e.g., Young v. State, 739 So.2d 553 (Fla. 1999); State v.Gunsby, 670 So.2d 920 (Fla. 1996).

20 DPRA section 3 also makes relatively minor changes in the complicated and inefficientscheme for funneling public records to capital habeas corpus petitioners through the Bureau ofArchives. See § 119.19, Fla. Stat. (Supp. 1998).

17

1992)(“two-year limitation does not preclude the enlargement of issues raised in a timely-filed first

motion for post-conviction relief”); Shaw v. State, 654 So. 2d 608 (4th DCA 1995)(allowing

amendment of Rule 3.850 motion); Rozier v. State, 603 So. 2d 120, 121 (Fla. 5th DCA 1992)(noting

that amendments to Rule 3.850 motions are commonplace). Bryant v. State, 271 So. 2d 808, 809

(Fla. 3d DCA 1973)(allowing amendment to pleadings when timely sought).

By requiring people sentenced to death to pursue habeas relief during “ongoing prosecutions

or appeals from convictions and sentences which have not become final,” when law enforcement

records are exempt from disclosure, State v. Kokal, 562 So.2d 324, 326 (Fla. 1990); § 119.07(3)(d),

Fla. Stat. (1999), DPRA would mandate the withholding of relevant information that could form the

basis for a host of claims of constitutional error, innocence, or entitlement to a sentence less than

death.19 None of DPRA’s strict filing deadlines or pleading requirements may be tolled or extended

due to the pendency of public records requests or any other violation of law; the statute explicitly

prohibits such extensions or amendments. DPRA §§ 3, 6, 9. Thus, DPRA section 3 attempts to

overrule this Court’s cases holding that the state “may not fail to provide relevant information and

then argue that the claim need not be heard on its merits because of an asserted procedural default

that was caused by the State’s failure to act.”20 Ventura v. State, 673 So.2d 479, 481 (Fla. 1996).

21 This would effectively overrule the constitutionally compelled rule of Scott v. Dugger, 604So.2d 465 (Fla. 1992) (newly discovered evidence that equally culpable codefendant received lifesentence entitled petitioner to life sentence).

18

Once a conviction and sentence become final and a person sentenced to death has access to

the law enforcement records related to his case, DPRA springs its trap. In a cynical but highly

effective twist, DPRA allows people sentenced to death to request records after a death warrant has

been signed, and provides that previously undisclosed information must be provided. DPRA § 3

(amending 119.19(7)(d)). But by then habeas corpus relief is not “grantable of right.” Art. I, § 13,

Fla. Const. It can only be granted if the petitioner can prove by clear and convincing evidence that

“but for constitutional error, no reasonable fact finder would have found the defendant guilty of the

underlying offense.” DPRA § 6. If the information rightly withheld during initial habeas corpus

review gives rise to a constitutional violation that would entitle the petitioner to a resentencing or a

life sentence, the courts are simply prohibited from granting any relief.21

This arbitrary and fundamentally unfair effort to shield constitutional violations from state

habeas corpus review only in capital cases violates Petitioners’ rights to due process and equal

protection of the laws.

2. “Bound by Technicality”

Rules governing criminal procedure in Florida are “‘intended to provide for the just

determination of every criminal proceeding. They shall be construed to secure simplicity in procedure

and fairness in administration.’” Haag, 591 So.2d at 616, quoting Fla.R.Crim.Pro. 3.020. With

respect to applications for habeas corpus relief, this Court has held that the writ of habeas corpus

19

is not to be circumscribed by hard and fast rules or technicalities . . .. [I]t is the responsibility of the court to brush aside formaltechnicalities and issue such appropriate orders as will do justice. Inhabeas corpus the niceties of the procedure are not anywhere asimportant as the determination of the ultimate question as to thelegality of the restraint. Anglin v. Mayo, 88 So.2d 918, 919-20 (Fla.1956).

This Court must presume that the Legislature was aware of the Court’s rules and cases

providing for habeas corpus review in capital cases when it enacted DPRA. Wood v. Fraser, 677

So.2d 15, 18 (Fla. 2d DCA 1996)(“Florida's well-settled rule of statutory construction that the

legislature is presumed to know the existing law when a statute is enacted, including ‘judicial

decisions on the subject concerning which it subsequently enacts a statute.’” quoting Collins Inv. Co.

v. Metropolitan Dade County, 164 So.2d 806, 809 (Fla.1964)); Schwartz v. Geico General Ins. Co.,

712 So.2d 773, 775 (Fla. 1998)(“the legislature is ‘presumed to know the existing law when it enacts

a statute.’” quoting Williams v. Jones, 326 So.2d 425, 437 (Fla.1976)). Contrary to this Court’s

precedent interpreting and applying Article I, section 13 of the Florida Constitution, and in violation

of the Due Process Clause of the Fourteenth Amendment, DPRA is intended to impose strict,

unwavering, complex, arbitrary, and vague procedural requirements in capital habeas corpus cases.

DPRA allows no room for error. Here are some examples: (1) If an application for habeas

corpus relief is filed late, regardless of the reason, all claims are barred, DPRA sections 7-9, and a

death warrant will issue. DPRA §§ 4, 9. (2) If the application lacks a

fully detailed allegation of the factual basis for any claim, includingthe attachment of any document supporting the claim, the name andaddress of any witness, the attachment affidavits of the witness or aproffer of the testimony; . . . and [a] concise memorandum ofapplicable case law as to each claim asserted[,]

then the courts are prohibited from considering the entire application. DPRA § 8 (“Any capital

22 If the petitioner is incompetent or her lawyer fails to communicate developments in thecase, for example the date on which the direct appeal brief is filed, she will lose the right to habeascorpus review without notice. This is a due process violation.

23 In Huff v. State, 622 So.2d 982 (Fla. 1993), this Court held that in capital cases hearingsmust be held in order to give the petitioner and opportunity to argue the merits of her petition andfor an evidentiary hearing. The rule in Huff was subsequently codified as Flroida Rule of CriminalProcedure 3.851(c). DPRA section 9 attempts to overrule Huff and amend the rules of procedureby requiring trial courts to conduct such hearings only “if a hearing has been requested by the

20

postconviction action that does not comply with any requirement of this section or other applicable

provision in law shall not be considered in any state court.”)(emphasis added). There are no second

chances; no amendments are allowed. Id. If a lawyer says too little about the facts supporting “any

claim,” or too much about the law, i.e., the memorandum is not “concise,” the application must be

dismissed and all claims barred.

(3) If a capital habeas petitioner is incompetent and therefore cannot verify the application

under oath, this Court has held that the petitioner’s attorney may verify the application. Carter v.

State, 706 So.2d 873, 876 (Fla. 1997). DPRA section 8 requires that applications be made under

oath, and requires that courts must dismiss with prejudice any application for habeas corpus relief that

does not comply with “any . . . applicable provision of law.” DPRA § 8.

(4) An incompetent habeas petitioner cannot “cooperate with and assist postconviction

counsel.” Under DPRA, if a trial court finds that a person sentenced to death is not cooperating, or

is “obstructing the postconviction process”–whatever that means--the Legislature will exercise its

power over the public fisc and prohibit the further expenditure of state resources on behalf of that

person, even if she is incompetent.22

(5) Applications for habeas corpus relief can be dismissed with prejudice and summarily

denied without a hearing.23 DPRA provides Petitioners with no “real opportunity to be heard and to

defendant or the defendant’s capital postconviction counsel.”

24 This aspect of DPRA would overrule Peede v. State, 1999 WL 628787, 24 Fla. L. WeeklyS391 (Fla. 1999), and prevent cases such as Muehleman v. State, CRC 83-04924CFANO (Fla. 6th

Cir. Ct. Oct. 1998), attached hereto at Appendix D. In Meuhleman, the petitioner complainedthat he was not receiving effective representation. The trial court agreed and removedMuehleman’s counsel from the case. DPRA prevents court’s from taking action “to be sure that[a petitioner] receives effective representation.” Peede, 1999 WL 628787 at *2 n.5.

21

defend . . . before judgment is rendered against them,” State ex rel. Gore v. Chillingworth, 171 So.

649, 654 (1936). The trial court will give no notice of what was wrong with the pleading (a missing

address? a wordy memorandum?), and, in any case, the court is prohibited from allowing the

petitioner or her counsel to cure the deficiency through amendment. This is a denial of due process.

Wildwood Properties, Inc., v. Archer of Vero Beach, Inc., 621 So.2d 691 (4th DCA 1993) (circuit

court's order striking appellant's pleading violated due process because of court's failure to give

appellant notice and opportunity to be heard); Kuechenberg v. Creative Interiors, Inc., 424 So.2d

145 (4th DCA 1982) (a party to be sanctioned for a discovery violation must first be given notice and

an opportunity to be heard and offer mitigating or extenuating evidence, striking pleadings and

entering a default judgment or some lesser sanction set out in Florida Rule of Civil Procedure

1.380(b) is a sanction “most severe”).

(6) Even if a person sentenced to death knows her lawyer is failing to provide effective

representation, and the person seeks replacement counsel, nothing can be done about it.24 If the

petitioner complains, DPRA requires the courts give the petitioner one opportunity to withdraw the

request for effective representation. If the request is not “immediately” withdrawn, no further state

resources may be spent on the person’s pursuit of habeas corpus relief. DPRA § 6.

DPRA’s filing requirements and bar provisions are in direct conflict with the decisions of this

22

Court providing the standard for “full and fair exercise of the right” to habeas corpus review. This

Court has held that

simplicity and fairness are equally promoted by the right to habeascorpus relief that emanates from the Florida Constitution and has beenpartially embodied within Rule 3.850. Art. I, § 13, Fla. Const.;Bolyea, 520 So.2d at 563; Fla.R.Crim.Pro. 3.850. The fundamentalguarantees enumerated in Florida’s Declaration of Rights should beavailable to all through simple and direct means, without needlesscomplication or impediment, and should fairly be administered in favorof justice and not bound by technicality. Art. I, Fla. Const.

Haag, 591 So.2d at 616. DPRA’s inflexible limitation and bar provisions, its vague, complex and

unduly burdensome pleading rules, are “[in]consistent with the simplicity and fairness demanded by

both the Florida Rules of Criminal Procedure and article I, sections 13 of the Florida Constitution.”

Id., 591 So.2d at 617.

Faced with such an unconstitutional legislative restraint on the ability of courts to ensure that

habeas corpus relief is “grantable of right” “it is the responsibility of the court to brush aside formal

technicalities and issue such appropriate orders as will do justice.” Anglin, supra.

3. Inflexible

DPRA requires courts to dismiss with prejudice any untimely or technically flawed application

for habeas corpus relief, but only if it is filed on behalf of a person sentenced to death. Petitioners

maintain the Legislature had no authority to create such restrictions in the first place. See § IV.A,

supra. Additionally, to the extent the statute does not allow habeas petitioners to make any showing

that the deficiencies in their pleadings should not prejudice them, DPRA is an unconstitutional

attempt to overrule this Court’s precedent applying the due process clause of the state and federal

constitutions.

25 Significantly, although DPRA was modeled on the procedure created under Article 11.071,Texas Code of Criminal Procedure, the sponsors of DPRA omitted the part of the Texas law thatprovides a mechanism for consideration of untimely habeas petitions where the petitioners lawyersfailed to file a timely petition. Art. 11.071, § 4A, Vernon’s Tex. C.C.P. (1999).

23

This Court has held that in non-capital cases

due process entitles a prisoner to a hearing on a claim that he or shemissed the deadline to file a rule 3.850 motion because his or herattorney had agreed to file the motion but failed to do so in a timelymanner. Accordingly, . . . if the prisoner prevails at the hearing, he orshe is authorized to belatedly file a rule 3.850 motion challenging hisor her conviction or sentence.

Medrano v. State, 1999 WL 816 255, 24 Fla. L. Weekly S477 (Fla. Oct. 14, 1999), quoting, Steele

v. Kehoe, 24 Fla. L. Weekly S237 (Fla. May 27, 1999)(internal quotation marks omitted). Where

a non-capital petitioner makes the showing required in Steele, he or she may pursue habeas corpus

relief directly in the appropriate appellate court. Medrano, at *2. Under DPRA, if similar

circumstances obtain, no claims for habeas corpus relief could be heard by any state court even where

the lawyer’s failure to file a timely application was the result of illness, incompetence, an act of God,

excusable neglect, or any other reason that would suffice for any other litigant in any other action in

this State.25 DPRA § 8. In fact, DPRA specifically prohibits courts from granting any extension of

time due to “the failure of the defendant or the defendant’s postconviction counsel to timely

prosecute a case,” and prohibits this Court from reviewing a decision denying an extension of time.

DPRA § 6.

DPRA’s strict limitations are in direct conflict with Steele and Medrano, the well established

right to effective assistance of counsel in capital post-conviction cases, Hoffman v. Haddock, 695

So.2d 682, 684 (Fla. 1997)(in absence of funding for capital habeas counsel case could not proceed

to evidentiary hearing); Remeta v. State, 559 So.2d 1132, 1135 (Fla. 1990)(right to effective and

26 Petitioners would also note that when this Court adopted rule 3.851 it found it was

important to emphasize that the governor agrees that absent thecircumstances where a competent death-sentenced individualvoluntarily requests that a death warrant be signed, no deathwarrants will be issued during the initial round of federal and statereview, providing that counsel for death penalty defendants isproceedings in a timely and diligent manner.

Comment on Adoption of Fla.R.Crim.Pro. 3.851. DPRA, which was sponsored and made a partof the special session by Governor Bush, provides that “the Governor may proceed to issue awarrant for execution” upon the denial of habeas corpus relief by this Court. DPRA § 9(amending § 924.059(7), Fla. Stat.).

24

fully-funded assistance of counsel in capital clemency proceedings); Spaulding v. Dugger, 526 So.2d

71, 72 (Fla. 1988); and this Court’s judgment in adopting rule 3.851 to allow for the amendment and

supplementation of capital postconviction motions beyond the one-year filing deadline.

Fla.R.Crim.Pro. 3.851(b)(3) (“time limitation shall not preclude the right to amend or to supplement

pending pleadings pursuant to these rules”). When this Court reduced the filing time for rule 3.850

motions in capital cases from two years to one, its “justification for the reduction . . . [was that a]

capital prisoner will have counsel immediately available to represent him or her in a postconviction

proceeding, while counsel is not provided or constitutionally required for noncapital defendants . .

. .” Court Commentary on Adoption of Fla.R.Crim.Pro. 3.851. As provided in rule 3.851(b)(4),

when the Capital Collateral Representative was unable to provide effective representation to its clients

and meet the filing deadline, this Court established a filing schedule for capital postconviction motions

which was intended to be fair to the State and defense. DPRA makes no such provision for fairness.

There is no justification for overruling this Court’s decision prescribing a one-year filing period, and

reducing that period to 180 days from the filing of the petitioner’s initial brief on appeal.26

4. The “Execution of the Innocent Act”

27 The leading sponsor of DPRA and “the Senate’s point person on the death penalty,” Sen.Locke Burt, maintains that DPRA’s successor “standard is a very tough one – tougher than thefederal standard.” Jo Becker and Willaim Yardley, Bush Backs Off Firm Limit to Death RowAppeals, St. Petersburg Times, January 5, 2000. That is certainly true. The Anti-terrorism andEffective Death Penalty Act (“AEDPA”) also allows federal courts to grant relief forconstitutional violations that can be raised retroactively. 28 U.S.C. § 2244(b). DPRA does not.

25

a. Only Innocent

People in Florida who are convicted of crimes, including first degree murder, who are not

sentenced to death, are entitled to habeas corpus relief if, in an untimely or successive rule-3.850

motion, they can demonstrate through newly discovered evidence that they would probably be

acquitted on retrial. Jones v. State, 591 So.2d 922 (Fla. 1991). This evidence need not prove a

constitutional violation, only innocence. If such a person is innocent, his or her detention is unlawful

and, at a minimum, he or she must be retried. Fla.R.Crim.Pro. 3.850.

DPRA mandates the opposite result for people sentenced to death. A man or woman on

death row, who, in a successive application for habeas corpus relief, can establish through newly

discovered evidence that he or she would probably be acquitted or receive a life sentence on retrial,

Jones, supra, may not be granted habeas corpus relief. DPRA imposes on people sentenced to

death the additional burden of establishing by clear and convincing evidence that “but for

constitutional error, no reasonable fact finder would have found the defendant guilty of the underlying

offense.”27 DPRA § 6. As noted supra, regardless of the constitutional violation, no habeas corpus

relief may be granted in Florida upon a demonstration that a person facing execution probably would

not be sentenced to death on resentencing or who is innocent of the death penalty under federal or

Florida law. In other words, DPRA mandates the execution of demonstrably innocent people while

preserving habeas corpus relief for innocent people sentenced to imprisonment.

26

In adopting the Jones standard, this Court receded from a standard that is less stringent than

DPRA’s. This Court held that the standard of Hallman v. State, 371 So.2d 482 (Fla. 1979), could

not stand because it was “almost impossible to meet.” Jones, 591 So.2d at 915. An impossible

standard neither comports with due process, nor serves to ensure that habeas corpus relief is

“grantable of right.” DPRA is unconstitutional for those reasons alone.

b. No Penalty Phase Relief

This Court has also held that person who presents newly discovered evidence of a kind that

would probably result in the petitioner receiving a sentence less than death on resentencing is entitled

to habeas corpus relief. Jones, supra. DPRA forbids any habeas corpus relief to such a person. In

Scott v. Dugger, 604 So.2d 465 (Fla. 1992), this Court applied Jones and held that a postconviction

petitioner is entitled to receive a life sentence based on newly discovered evidence that his equally

culpable codefendant received a life sentence. DPRA attempts to overrule Jones and Scott, and to

prohibit Florida courts from granting any penalty relief in an untimely or successive application for

habeas corpus relief. DPRA § 6. Because DPRA prohibits any habeas corpus relief from a death

sentence, Florida courts would be precluded from granting relief even where the petitioner was

innocent of the death penalty under the United States Constitution. See Sawyer v. Whitley, 505 U.S.

333 (1992).

c. No Cure for Constitutional Error

Rules 3.850 and 3.851 provided that habeas corpus relief is available to petitioners who

present evidence establishing a constitutional violation that could not have been discovered earlier

through the exercise of due diligence. Fla.R.Crim.Pro. 3.850(b)(1); Comment on Adoption of

Fla.R.Crim.Pro. 3.851; Richardson v. State, 546 So.2d 1037 (Fla. 1989). DPRA section 6 prohibits

27

Florida courts from granting habeas corpus relief based on any untimely or successive petition that

establishes a constitutional violation through newly discovered evidence. As explained supra,

DPRA’s timing and bar provisions attempt to overrule the rule that the state may not fail to provide

information relevant to a claim then assert a procedural default, Ventura, supra, at the same time it

virtually mandates the withholding of law enforcement records during the time when the application

is being prepared.

Under DPRA, a person such as Raleigh Porter who was denied an impartial trial judge at

sentencing--a right considered so fundamental to the trial process that it can never be waived, Arizona

v. Fulminante, 499 U.S. 279, 309-310 (1991)--could not be granted habeas corpus relief. Porter v.

State, 723 So.2d 191 (Fla. 1998). May the Legislature bar the courts of this state from providing

habeas corpus relief in cases of newly discovered constitutional violations? In other words, may the

Legislature require executions based on judgments of Florida courts that violate the state or federal

Constitutions? Not if the writ of habeas corpus must be “grantable of right.” Article I, section 13,

Florida Constitution.

Finally, Rule 3.850 provides that a person who is not sentenced to death is entitled to habeas

corpus relief if she can establish the violation of a “fundamental constitutional right . . . [that] was

not established within the [limitations period] and [that] has been held to apply retroactively.” By

limiting the scope of habeas corpus relief in capital cases to cases of innocence plus a constitutional

violation, DPRA prohibits equal application of this rule to people sentenced to death. DPRA § 6.

DPRA attempts to overrule the rules and cases of this Court that are “intended to provide a

complete and efficacious post-conviction remedy to correct convictions on any grounds which subject

them to collateral attack.” Roy v. Wainwright, 151 So.2d 825, 828 (Fla. 1963)(emphasis added).

28 Anthony G. Amsterdam, Forward to Liebman & Hertz, Federal Habeas Corpus Practiceand Procedure at v.

28

For people seeking habeas corpus relief from capital convictions and sentences DPRA“booby-trap[s]

the trail with obvious blockades flanked by apparent detours that lead only to ambushes.”28 In certain

cases it prohibits courts from granting habeas corpus relief on grounds of innocence, constitutional

violations without a showing of innocence, and with respect to death sentences. This is not the “full

and fair exercise of the right” to habeas corpus relief, Haag, 591 So.2d at 616, which this Court has

held necessary to identify and correct constitutional errors in capital cases.

The statute is unconstitutional. “[T]he legislature cannot enact a statute that overrules a

judicially established legal principle enforcing or protecting a federal or Florida constitutional right.”

Munoz v. State, 629 So.2d 90, 98 (Fla. 1993). As explained in the preceding sections, DPRA would

overrule, among other cases, Anglin v. Mayo, 88 So.2d 918 (Fla. 1956); Roy v. Wainwright, (Fla.

1963); Richardson v. State, 546 So.2d 1037 (Fla. 1989); Ventura v. State, (Fla. 1990); Jones v. State,

591 So.2d 922 (Fla. 1991); Haag v. State, 516 SO.2d 614 (Fla. 1992); Scott v. Dugger, 604 So.2d

465 (Fla. 1992); Huff v. State, 622 So.2d 982 (Fla. 1993); Carter v. State, 734 So.2d 873 (Fla. 1997);

and Steele v. Kehoe, 24 Fla. L. Weekly S 237 (Fla. May , 1999). Were DPRA’s provisions to be

given effect, they would guarantee an absence of due process, equal protection, and meaningful

access to independent judicial review of habeas corpus actions for people sentenced to death.

C. DPRA VIOLATES DEFENDANTS’ RIGHTS TOCOMPETENT, CONFLICT-FREE REPRESENTATION ATTRIAL, ON APPEAL, AND IN HABEAS CORPUSPROCEEDINGS; THE REDUCTIONS IN TIME AND SCOPEOF REVIEW CANNOT BE JUSTIFIED

If DPRA’s provisions are controlling, time is ticking away for the 86 people whose capital

29 The CCC-NR believes approximately 14 cases are within the Northern Region. Counselhave not been able to determine the exact number at this time. Additionally, there is no way toknow how many death sentences will be imposed in the trial courts between this date of filing andwhen this Court decides these issues.

30 DPRA section 14 provides that the funds earmarked for providing counsel under the act areto spent on private Registry attorneys.

29

convictions and sentences have been appealed to this Court.29 Yet the statute provides no mechanism

for the appointment or compensation of counsel in those cases. No funds were made available for

the CCC-NR to absorb these cases.30 Consigning these cases to the registry of private attorneys who,

according to the boasts of DPRA’s sponsors are ready to take them on, poses a serious ethical

dilemma for the CCC-NR. See § III, supra. Those petitioners will not receive equal resources or as

experienced representation. Historically, based on the record of registry attorneys thus far, there is

at least a ten percent chance that because registry attorneys missed critical filing deadlines their clients

may receive no state or federal habeas corpus review at all. DPRA’s inflexible filing and pleading

requirements make the danger of such representation even greater.

1. No Lawyers

Insofar as DPRA purports change the scope and timing of capital habeas corpus in Florida,

the statute would radically effect the current and soon-to-be clients of the Office of the Capital

Collateral Counsel for the Northern Region of Florida (hereinafter “CCC-NR”), as well as the

Regional Counsel and the lawyers practicing under him.

Prior to DPRA, CCC-NR was handling 59 cases. Sections 2, 4, 5, 7, and 8, of DPRA would

require that CCC-NR amend or file “complete” applications for habeas corpus relief in 27 of those

cases by January 8, 2001, plus however many cases in the CCC-NR’s jurisdiction that are either

pending on direct appeal or are in the trial court with a sentence of death. This last figure is

31 DPRA section 6 provides that the trial courts must appoint either the capital collateralregional counsel or private Registry counsel to represent a person sentenced to death. If theregional counsel is appointed, he must either accept the appointment or withdraw within 30 days. Id. (amending § 924.056(1)(a), Fla. Stat.). If for any reason, including ethical reasons, CCC-NR“cannot comply with the provisions of chapter 924,” the court must appoint counsel from theregistry. DPRA § 6 (amending § 924.056(1)(a)).

30

necessarily speculative because section 6 of DPRA would require CCC-NR to file additional

applications for habeas corpus relief in cases where no death sentence has yet been imposed.

DPRA provides no mechanism for the appointment of counsel in the many cases pending

before this Court on the day of enactment. Yet the statute imposes a filing deadline of January 8,

2001, on those cases, and requires that the “capital collateral regional counsel shall represent each

person convicted and sentenced to death in this.” § 27.702(1), Fla. Stat. (1999). This Court has held

that the provision of (1) state-funded capital habeas corpus lawyers who are (2) “fully funded and (3)

available to provide (4) proper representation for (5) all death penalty defendants” is necessary to

justify a reduction in the time for filing applications for habeas corpus relief in Florida courts. Court

Commentary upon Adoption of Fla.R.Crim.Pro. 3.851. In the absence of these conditions a rule

reducing filing times “necessarily would have to be repealed.” Id.

Despite DPRA’s radical reduction of the time in which people sentenced to death may seek

habeas corpus relief–from one year after finality of conviction and sentence to 180 days after filing

of initial brief on appeal–not one of these five preconditions has been met. (1) Were the CCC-NR

to affirmatively abandon responsibility for the cases within his region, as DPRA requires him to do

in certain circumstances,31 those cases will not necessarily go to lawyers with state or federal habeas

corpus experience or training. (2) Based on the CCC-NR’s experience and professional judgment,

Registry lawyers cannot be considered “fully funded” because of the strictly controlled incremental

32 The funding of registry attorneys is further complicated by the statutory requirement thatthey enter into a third-party fee agreement with the Comptroller, who is a constitutional officer ofthe executive branch of Florida Government. § 27.710, Fla. Stat. (1999). DPRA deepens theinherent conflict created by this arrangement by (1) making the Comptroller responsible for theform of the contract, (2) appropriating moneys for compensation directly to the Comptrollerrather than the Justice Administration Commission, and (3) providing that all requests forcompensation be first presented to the “Comptroller’s contract manager . . . who shall havestanding to file pleadings and appear before the court to contest any motion for order approvingpayment.” DPRA § 16 (amending 27.711(3)(13)). In other words, an officer of the prosecutorialarm of government dictates the terms of defense counsel’s representation, has custody and controlover the expenditure of funds on the case, is required to be provided confidential informationregarding what the attorney is doing on the case, and can argue against counsel beingcompensated while the case is ongoing. No attorney could ethically agree to such anarrangement. R.Regulating Fla. Bar 4-1.7(b) (duty to avoid limitation on independentprofessional judgment; 4-1.8(f) (lawyer cannot accept compensation for representation from thirdparty if it would interfere with exercise of lawyer’s independent professional judgment orattorney-client relationship); 4-5.4(d) (lawyer shall not permit a person who pays the lawyer torender legal services for another to direct or regulate the lawyer’s professional judgment inrendering such legal services).

31

fee caps imposed on them and the cap on costs and expenses.32 The State has recently taken the

position that attorneys who would challenge the statutory fee caps should be replaced by the CCC-

NR, and not be appointed under section 27.710, Florida Statutes (1999). See State’s Motion to

Appoint Capital Collateral Regional Counsel (North), Case No. 74-4139 (4th Cir. Ct. Jan. 27, 2000),

Appendix B. Because there is no mechanism for providing counsel to these abandoned clients, and

there is no evidence that competent habeas corpus lawyers have been found to take their cases,

counsel are not (3) “available to provide (4) proper representation.” The CCC-NR is aware of at

least six cases in which Registry lawyers failed to file rule 3.850 motions before the expiration of state

and federal filing deadlines. In one of the cases within the CCC-NR’s jurisdiction–a case which the

CCC-NR sent to the Registry because he could not provide the defendant with competent

counsel–both the state and federal filing times were missed and the motion that was filed was only

33 Compare this motion with those described in Bright’s Death in Texas, supra note 1.

34 The Rules Regulating the Florida Bar allow attorneys to make good faith arguments forthe expansion, modification, or reversal of existing law. R. Regulating Fla. Bar 4-3.1. This Courthas specifically authorized pleading claims in anticipation of factual development in capitalpostconviction cases. Ventura v. State, 673 So.2d 479 (Fla. 1996).

35 Lawyers are prohibited from entering into any “employment agreement that restricts therights of the lawyer to practice after the termination of the relationship.” R. Regulating Fla. Bar4-5.6. Of course, any retrial or resentencing would take place after the termination of the registrycounsel’s contractual relationship with the Comptroller. See 27.710, Fla. Stat. (1999) (appointedcounsel are required to represent the client until “the sentence is reversed, reduced, or carried out,or unless permitted to withdraw . . . .”). CCR attorneys may and have represented their clientson retrial and resentencing.

32

four pages long. It is attached to this petition at Appendix E.33

Because the registry provides unequal representation when compared to what clients who

remain with CCC-NR may receive, proper representation is not being provided to (5) “all penalty

defendants.” Representation by a sole practitioner without the assistance of experienced capital

habeas counsel is not, in any capital habeas corpus case, “proper representation.” Additionally, the

registry statute contains prohibitions on lawyers doing things or being compensated for doing things

that CCC-NR attorneys may do, and that may be necessary and appropriate in capital litigation. As

detailed in the Senate Staff Analysis of the DPRA,

Certain limitations are placed on attorneys who are appointedpursuant to the registry statute:

* * *# An attorney may not file repetitive or frivolous pleadings that

are not supported by law or facts.34

# An attorney may not represent the death-sentenced defendantduring a retrial, a resentencing proceeding, or in a proceedingcommenced under ch. 940, F.S. (executive clemency).35

# An attorney may not represent the death-sentenced defendantin a proceeding challenging a conviction or sentence otherthan the conviction and sentence of death for which the

36 This restriction, which is not imposed on CCC-NR attorneys, prohibits registry attorneysfrom pursuing postconviction challenges to a death sentence based in Johnson v. Mississippi, 486U.S. 578 (1988).

37 This restriction prohibits registry attorneys from taking various steps that may be necessaryin capital habeas corpus litigation, for example, suing for access to clients, for access to juvenileor other records. This Court rejected an argument that state-funded postconviction attorneys maynot pursue any civil litigation other than habeas corpus review. State ex rel. Butterworth v.Minerva, et al, No. 88-612, Order Denying Petition for Writ of Quo Warranto (Fla. 1997).

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appointment was made.36

# An attorney may not represent the death-sentenced defendantin any civil litigation other than habeas corpus proceedings.37

SENATE STAFF ANALYSIS AND ECONOMIC INCOME STATEMENT, SB 12A at 6, Jan. 5, 2000.

Additionally, although the registry statute requires appointed lawyers to remain on the case

until the sentence is carried out, section 27.710(3), Florida Statutes (1999), it also prohibits appointed

lawyers from being compensated for any “repetitive or successive collateral challenges to a conviction

and sentence of death which is affirmed by the Supreme Court and undisturbed by any collateral

litigation.” § 27.711(1)(c), Fla. Stat. (1999). The statute contains a detailed fee schedule describing

what pleadings registry lawyers may be compensated for filing. That schedule, which the statute

specifies “is the exclusive means of compensating a court-appointed attorney who represents a capital

defendant,” section 27.711(3), Florida Statutes (1999), contains no provision for compensating an

attorney for successive litigation or paying any costs after initial collateral proceedings are over. §

27.711(4), Fla. Stat. (1999). This means that when a registry attorney’s client is facing imminent

execution, the state does not even provide resources for the lawyer to travel to the prison and see her

client. Obviously, the CCC-NR has resources to at least partially fund successive litigation, and can

perform such essential attorney responsibilities as monitoring the status of a mentally ill client who

may be incompetent to be executed, see Ford v. Wainwright, 477 U.S.399 (1986), not to mention

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the basically human responsibility of standing by a client who faces imminent death. The CCC-NR

cannot ethically consign any client to such non-representation.

2. Undue Influence

“[I]t is the constitutional obligation of the State to respect the professional independence of

the public defenders whom it engages.” Polk County v. Dodson, 454 U.S. 312, 321, 102 S.Ct. 445,

451, 70 L.Ed. 2d 509 (1981). Accord, State ex rel Smith v. Brummer, 426 So. 2d 532, 533 (Fla.

1982). DPRA, the Registry Act, and the State’s application of them in Dougan exhibit disrespect for

this principle. Through the legislation, the state seeks to control the state-paid attorneys representing

indigent death row inmates, requires layers of lawyers to simultaneously represent the conflicting

interests of the inmates, and terminates the attorney-client relationship (for indigents only) before the

litigation is concluded. The constitution is violated in the presence of “various kinds of state

interference with counsel’s assistance.” Strickland v. Washington, 466 U.S. 668 (1984); United

States v. Cronic, 466 U.S. 648, 659 & n.25 (1984). The DPRA is a model of state interference.

DPRA details how capital postconviction cases are to be litigated by state-funded attorneys,

and sets forth unprecedented and extortionate threats of sanctions against counsel who dare to litigate

creatively and vigorously on behalf of indigent death-sentenced inmates. These threats are an affront

to the adversarial system of criminal justice, and to the authority of this Court to regulate the practice

of law. “The very premise of our adversary system of criminal justice is that partisan advocacy on

both sides of a case will best promote the ultimate objective that the guilty be convicted and the

innocent go free.” Herring v. New York, 422 U.S. 853, 862 (1975). Cronic, 466 U.S. at 655-56.

Yet the legislature “strongly encourage[s]” judges to sanction counsel for an array of reasons ranging

from frivolous pleadings to obstructing the administration of justice. DPRA § 17. These vague and

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undefined grounds for sanctions put capital postconviction counsel litigating within the bounds of the

law at risk, creating a direct conflict with their clients.

Additionally, DPRA prohibits state-paid attorneys from filing pleadings that are not

specifically authorized by the statute, DPRA § 2, and states that it is the intent of the Legislature that

no state resources be expended in violation of the act. DPRA § 5. Under these provisions counsel

face possible prosecution for misuse of state resources merely for filing pleadings that are authorized

by this Court and that must be filed according to the lawyers’ duties of loyalty and independence.

Counsel has an “overarching duty,” Strickland, 466 U.S. at 688, to “advanc[e] ‘the undivided

interests of his client.’” Dodson, 454 U.S. at 318-319 (quoting Ferri v. Ackerman, 444 U.S. 193,

204, 100 S.Ct. 402, 409, 62 L.Ed.2d 355 (1979)). For example, pleadings that would raise a claim

of incompetency for execution are not authorized by the statute. Ford v. Wainwright, 477 U.S. 399

(1986).

DPRA’s threat of serious sanction also tread on this Court’s authority to regulate the practice

of law, In re Florida State Bar Ass'n, 186 So. 280, 285-286 (1938) (“The power to regulate the bar

is inherent in the courts and cannot be taken from them by the Legislature”), and the power of

contempt, “a basic function of [the judicial] branch.” Walker v. Bentley, 678 So. 2d 1265, 1267

(1996).

By imposing these threats and restrictions on state-funded counsel DPRA ensures that those

on death row who can afford counsel, or who have the benefit of pro bono counsel will receive

unfettered representation, while the poor will not. This violates equal protection. See Green v. State,

620 So.2d 188 (Fla. 1993)(finding equal protection violation where trial court refused funds to court-

appointed counsel to petition for a writ of certiorari where it was shown certiorari is sought on behalf

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all capital clients of public defender office). “There can be no equal justice where the kind of trial

a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 17-19 (1956).

V.

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that the relief requested in this

Petition be granted.

Respectfully submitted,

________________________________GREGORY C. SMITHCapital Collateral CounselNorthern RegionFlorida Bar No. 279080

ANDREW THOMASChief Assistant CCC - NRFlorida Bar No. 0317942