Opinion
Nos. SC14–1011 SC14–2040.
04-15-2015
James D. FORD v. STATE of Florida. James D. FORD, Appellant/Petitioner(s), v. Julie L. Jones, ETC., Appellee/Respondent(s).
Opinion
James D. Ford (Ford), a prisoner under sentence of death, appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court's order.
This Court previously affirmed Ford's convictions and sentences of death on direct appeal, Ford v. State, 802 So.2d 1121 (Fla.2001), and upheld the denial of postconviction relief, Ford v.. State, 955 So.2d 550 (Fla.2007). A state habeas petition was not filed with the initial postconviction motion in this Court.
Ford filed his current successive postconviction motion on March 20, 2013. The trial court issued its order denying relief on all claims on December 20, 2013, and this appeal followed. On appeal, Ford raises three claims: (1) he is entitled to postconviction relief because Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), establish an equitable right to bring ineffective assistance of postconviction counsel claims; (2) the current lethal injection protocol in Florida is unconstitutional; and (3) non-unanimous jury verdicts recommending the death sentence violate evolving standards of human decency under the Eighth Amendment.
We reject Ford's first and third claims as untimely because the claims at issue do not meet the specific exceptions set forth in Florida Rule of Criminal Procedure 3.851(d)(2), which address when a court can consider a postconviction motion filed more than one year after the judgment and sentence become final. Specifically, as to the ineffective assistance of counsel claim, Ford asserts that during the proceedings on his initial motion for postconviction relief, postconviction counsel was deficient in arguing claims of ineffective assistance of trial counsel. This Court has already rejected the general proposition that a defendant can bring ineffective assistance of postconviction counsel claims in state proceedings based on Martinez or Trevino. See Kormondy v. State, 154 So.3d 341, 354 (Fla.2015) ; Banks v. State, 150 So.3d 797, 799–800 (Fla.2014) ; Howell v. State, 109 So.3d 763, 774 (Fla.2013) ; Gore v. State, 91 So.3d 769, 778 (Fla.2012).
Ford's third claim, challenging this Court's general jurisprudence that nonunanimous jury recommendations of the death sentence are constitutional, has also been repeatedly rejected by this Court. See McLean v. State, 147 So.3d 504, 514 (Fla.2014) ; Kimbrough v. State, 125 So.3d 752, 754 (Fla.2013) ; Mann v. State, 112 So.3d 1158, 1162 (Fla.2013). Ford was convicted of sexual battery with a firearm, child abuse, and two counts of first-degree murder following a jury trial for the murders of Greg and Kimberly Malnory in the presence of their daughter, Maranda Malnory. Ford, 802 So.2d at 1125–26. In the penalty phase, the jury recommended the death penalty by a vote of eleven to one for each murder. Id. at 1126. Ford received a sentence of 19.79 years imprisonment for the sexual battery conviction, five years for the child abuse conviction, and the death sentence for each murder. Id. at 1125. Thus, at the guilt phase the jury unanimously found that Ford committed another capital felony, the contemporaneous murder, and the fact that both murders were committed during the commission of a sexual battery, satisfying the constitutional requirements. See Parker v. State, 904 So.2d 370, 383 (Fla.2005) ; Doorbal v. State, 837 So.2d 940, 963 (Fla.2003). To the extent that Ford argues the circuit erred in not holding an evidentiary hearing, these two claims were purely legal and previously rejected by this Court so the circuit court properly summarily denied relief. See Mann, 112 So.3d at 1162.
Regarding the lethal injection claim, we have consistently held that the current lethal injection protocol in Florida is not unconstitutional based on the drugs used. See Davis v. State, 142 So.3d 867, 871–73 (Fla.2014) ; Henry v. State, 134 So.3d 938, 946–49 (Fla.2014) ; Muhammad v. State, 132 So.3d 176, 195–96 (Fla.2013). However, the United States Supreme Court recently granted certiorari in Warner v. Gross, 83 2015 WL 302647 (U.S. Jan. 23, 2015), in which the plaintiffs argue that Oklahoma's three-drug lethal injection protocol using midazolam hydrochloride as the first drug, as Florida does, is unconstitutional. We issued a stay of execution for Jerry William Correll, a prisoner under sentence of death who had an active death warrant in Florida, based on the Supreme Court's grant of certiorari. See Florida v. Correll, 2015 WL 787038 (U.S. Feb. 25, 2015). Because Ford does not have an active death warrant and because it is unclear whether the Supreme Court will rule this protocol unconstitutional, we deny this claim without prejudice for Ford to raise in a successive postconviction motion in the event the protocol is declared unconstitutional.
As to the habeas petition, Ford argues he should be permitted to file a belated habeas petition just as this Court allows the filing of belated postconviction motions. According to Florida Rule of Criminal Procedure 3.851(d)(3), a petition for writ of habeas corpus shall be filed simultaneously with the initial brief filed on behalf of a capital prisoner in the appeal of the circuit court's order on the initial motion for postconviction relief. Ford alleges that his collateral counsel failed to file a petition for writ of habeas corpus in his initial postconviction proceeding because of counsel's own neglect and unfamiliarity with Florida Rule of Criminal Procedure 3.851. However, we have held that there are no exceptions to untimely filed habeas petitions. See Griffin v. McCollum, 22 So.3d 67, *1 (Fla.2009). We reject Ford's invitation to establish a new exception allowing a defendant to file a habeas petition for the first time in a successive postconviction proceeding.
We also reject this claim because Ford did not meet the criteria for proving ineffective assistance of appellate counsel, which is the same standard for proving ineffective assistance of trial counsel claims under Strickland v. Washington, 466 U.S. 668 (1984). Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). Ford failed to show that performance of counsel was deficient or that counsel's deficiency undermined confidence in the outcome of the proceedings. See id. The jury in Ford's case was presented with significant evidence that Ford committed the murders. See Ford, 802 So.2d at 1125–26. Therefore, this claim is also without merit.
For the foregoing reasons, we affirm the circuit court's order denying Ford's successive motion for postconviction relief and deny his petition for writ of habeas corpus.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.