Opinion
No. SC12–1759.
11-03-2014
Ernest Charles DOWNS, Appellant(s) v. STATE of Florida, Appellee(s).
Opinion
Ernest Charles Downs, a prisoner under sentence of death, appeals the circuit court's order summarily denying his fourth motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns a motion for postconviction relief from sentence of death, this Court has jurisdiction under article V, section 3(b)(1), of the Florida Constitution.
We previously affirmed Downs' conviction and sentence of death, see Downs v. State, 386 So.2d 788 (Fla.1980), and also rejected his appeal from the denial of postconviction relief, see Downs v. State, 453 So.2d 1102 (Fla.1984). However, because of a change in the law requiring a jury to be able to consider nonstatutory mitigating factors in sentencing, we granted a new sentencing phase. The jury voted eight to four to recommend the death penalty. See Downs v. State, 572 So.2d 895 (Fla.1990) (affirming the second sentence of death). Since that time, Downs has filed previous unsuccessful, successive postconviction motions. See, e.g., Downs v. State, 740 So.2d 506 (Fla.1999) (affirming denial of relief in first postconviction motion); Downs v. State, 977 So.2d 572 (Fla.2007) (affirming denial of relief in second successive postconviction motion).
On appeal, Downs raises four claims: (1) the circuit court erred in summarily denying his motion because it was not untimely and, even if it was, there was newly discovered evidence; (2) the circuit court erred in denying his postconviction motion without an evidentiary hearing because Downs alleged specific facts in his motion that supported his claims; (3) he was entitled to postconviction relief because his original trial counsel was ineffective; and (4) he was entitled to a hearing under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), to discuss his complaints about his postconviction counsel.
We reject Downs' newly discovered evidence arguments in his first claim as untimely and without merit because they were filed well outside the one-year time limitation for postconviction relief and do not meet the newly discovered evidence exception set forth in Florida Rule of Criminal Procedure 3.851(d)(2). First, as to the recently executed affidavits, only the John Barfield affidavit would be admissible because it was signed within the one-year time limitation. The Walter Morrison affidavit was executed in 2004. To be considered timely filed as newly discovered evidence, Downs' successive postconviction motion must have been filed within one year of the date upon which the claim became discoverable through due diligence. Downs filed the first version of this motion in 2008. Additionally, the Morrison affidavit would not qualify as newly discovered evidence because it is inadmissible hearsay and it is predicated on the same facts as the Barfield affidavit. Turning to the Barfield affidavit, the facts on which it is predicated have been known to Downs since as early as 1989 when Barfield, who is now deceased, testified as to them in Downs' resentencing proceeding. Moreover, the affidavit would be inadmissible evidence because it is hearsay not falling under any exception. Downs cannot transform this untimely, procedurally barred claim into a timely claim simply by attaching a new affidavit. Second, as to Barfield's release from prison, this does not qualify as newly discovered evidence. Downs knew there was a possibility of Barfield being released since Barfield's death sentence was reduced to life imprisonment without the possibility of parole for twenty-five years by this Court in 1981. Third, as to the lead exposure articles, these also do not qualify as newly discovered evidence. We have previously rejected the proposition that new research studies are newly discovered evidence in Foster v. State, 132 So.3d 40, 72 (Fla.2013), and Schwab v. State, 969 So.2d 318, 325 (Fla.2007). Fourth, as to the American Bar Association article that Downs cited as newly discovered evidence that Florida's death penalty is unconstitutional, this does not qualify as newly discovered evidence. This same article has been consistently rejected as newly discovered evidence by us as a “compilation of previously available information related to Florida's death penalty system.” See, e.g., Rutherford v. State, 940 So.2d 1112, 1117 (Fla.2006). Furthermore, Downs has not established how any of this evidence that has come to light since his trial is of “such a nature that it would probably produce an acquittal on retrial.” Jones v. State, 709 So.2d 911 (Fla.1991) (emphasis in original).
We reject Downs' second claim because an evidentiary hearing was not necessary. Because none of his arguments are timely or qualify as newly discovered evidence, there was no question of fact and no need for an evidentiary hearing.
We reject Downs' arguments in his third claim as untimely and procedurally barred. Downs contends that his trial attorney, Richard Brown, was ineffective in Downs' original trial in 1977. These claims filed in 2008 are all untimely because they are well after the one-year time limitation of Rule 3.851. Downs asserted that the United States Supreme Court case of Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), entitles him to obtain an adjudication on the merits of his claims for ineffective assistance of trial counsel because his initial-review collateral counsel was ineffective. However, we have previously rejected the argument that Martinez creates a constitutional right to raise ineffective assistance of collateral counsel claims in state proceedings. See, e.g., Lambrix v. State, 139 So.3d 298, at *1 (Fla.2014) ; Howell v. State, 109 So.3d 763, 774 (Fla.2013) ; Mann v. State, 112 So.3d 1158, 1164 (Fla.2013). Further, they are procedurally barred as successive since Downs admitted that these claims have all been raised and litigated in his previous proceedings. See Hunter v. State, 29 So.3d 256, 267 (Fla.2008).
Finally, we reject Downs' fourth claim that he should have been granted a Nelson hearing. We have held that, in order to trigger the right to a Nelson hearing, a defendant must make a clear and unequivocal statement of his wish to discharge counsel. Davis v. State, 136 So.3d 1169, 1209 (Fla.2014) ; Logan v. State, 846 So.2d 472, 477 (Fla.2003) ; Morrison v. State, 818 So.2d 432, 440 (Fla.2002). Downs did not seek to discharge counsel in his motion. Moreover, the Nelson inquiry cannot be used to address past ineffective assistance of counsel. See Brown v. State, 75 So.3d 352, 353 (Fla. 1st DCA 2011) ; Boaz v. State, 135 So.3d 506, 507 (Fla. 5th DCA 2014). Downs' motion was untimely because it was submitted after all the proceedings were finished.
Accordingly, for the foregoing reasons we affirm the circuit court's order summarily denying Downs' motion for postconviction relief.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.