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Supreme Court of Florida
_____________________
No. SC02-01 & SC02-02
_____________________
AMOS LEE KING,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________________________
AMOS LEE KING,
Petitioner,
vs.
MICHAEL W. MOORE, etc.,
Respondent.
[January 16, 2002]
PER CURIAM.
Amos Lee King, a prisoner under sentence of death and an active death
warrant, has filed in this Court a successive petition for writ of habeas corpus and
motions seeking a stay of execution. King
also appeals an order of the circuit
court
denying a successive motion for postconviction relief filed under Florida Rule of
1. We commend Circuit Judge Susan F. Schaeffer for her thorough, orderly,
and expedited consideration of matters before the trial court. Her orders in this
case, especially the case management order and the twenty-seven page order
denying postconviction relief, cogently framed the previous history and issues
under consideration. See State v. King, Nos. 77-02173CANOO & 77-
01696CFANO (Fla. 6th Cir. Ct. orders filed
Nov. 26, 2001, nunc pro tunc to
Nov.
21, 2002, & Jan. 1, 2002).
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Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla.
Const. We deny the successive petition for writ of habeas corpus and affirm the
trial court’s denial of the successive 3.851 motion. We also deny King’s separate
request to stay his execution while he seeks an application for a writ of certiorari
from the United States Supreme Court.1
BACKGROUND
The facts of this case are set forth in our initial opinion on direct appeal, in
which we affirmed King’s first-degree murder
conviction and death sentence for
the
murder of Natalie Brady. See King v. State, 390 So. 2d 315, 316-17 (Fla. 1980),
cert. denied, 450 U.S. 989 (1981).
In 1981, King instituted his first rule 3.850 motion for postconviction relief,
and then Governor Bob Graham signed King’s first death warrant. This Court
affirmed the trial court’s denial of the 3.850 motion and denied King’s request for a
stay of execution. See King v. State, 407 So. 2d 904, 905 (Fla. 1981). While
King’s postconviction relief appeal was pending before this Court, King petitioned
2. The trial court found in aggravation that: (1) the murder was committed
while King was under sentence of imprisonment; (2) King had previously been
convicted of a violent felony; (3) King knowingly created a great risk of death to
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for federal habeas corpus relief. The United States District Court for the Middle
District of Florida granted a stay of execution
but, in an unpublished decision,
later
vacated that stay when it denied King’s federal habeas petition.
On appeal of the district court’s denial, the Eleventh Circuit Court of
Appeals denied King the requested habeas relief with regard to his convictions but
granted relief as to the death sentence. See King v. Strickland, 714 F.2d 1481,
1495 (11th Cir. 1983). The United States Supreme Court vacated the Eleventh
Circuit’s opinion and remanded to the Eleventh Circuit for reconsideration in light
of the Supreme Court’s decision in Strickland
v. Washington, 466 U.S. 668
(1984).
See Strickland v. King, 467 U.S. 1211 (1984). On remand, the Eleventh Circuit
applied Strickland and again vacated King’s
death sentence, finding that King’s
trial
counsel was ineffective during the penalty
phase. See King v. Strickland, 748
F.2d
1462, 1465 (11th Cir. 1984), cert. denied, 471 U.S. 1016 (1985). The court
reinstated its prior opinion as to all other issues previously decided. See id.
After conducting new penalty proceedings, the trial court followed the jury’s
unanimous recommendation and again imposed a sentence of death upon King.
The trial court found five aggravators2 and no mitigators. This Court affirmed the
many persons by setting fire to the victim’s home; (4) the murder was committed
while King was engaged in the commission of the crimes of burglary and sexual
battery; and (5) the murder was especially wicked, evil, atrocious, or cruel.
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death sentence on direct appeal but struck
the aggravator of a great risk of death
to
many persons. See King v. State, 514 So. 2d 354, 360 (Fla. 1987), cert. denied,
487 U.S. 1241 (1988). Then Governor Bob Martinez signed King’s next death
warrant in October 1988, setting King’s execution for 7 a.m. on November 30,
1988. King filed a 3.850 motion with the trial court on November 28, 1988. The
trial court summarily denied the motion that day. King appealed to this Court the
circuit court’s 3.850 denial, petitioned
for a writ of habeas corpus, and requested
a
stay of execution. In an unpublished order
on November 29, 1988, we granted
the
stay of execution and remanded the 3.850 motion to the trial court for its further
consideration. See King v. State, 538 So. 2d 1255 (Fla. 1988) (table). On remand
after an evidentiary hearing, the trial court denied King’s rule 3.850 motion. We
affirmed that denial on appeal. See King v. State, 597 So. 2d 780 (Fla. 1992). We
also denied King’s petition for writ of
habeas corpus. See King v. Dugger, 555
So.
2d 355 (Fla. 1990).
In 1992, King filed a habeas corpus petition in the federal district court. In a
1998 unpublished decision, the district court denied the habeas petition. The
Eleventh Circuit affirmed the district
court’s denial of relief, see King v. Moore,
196
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F.3d 1327 (11th Cir. 1999), and the Supreme Court denied King’s petition for
certiorari. See King v. Moore, 531 U.S. 1039 (2000).
While he sought relief in the federal system, King instituted several more
postconviction motions in the state system. King filed a pro se habeas corpus
petition in this Court on February 7, 1997, which we denied without opinion. See
King v. Singletary, 695 So. 2d 700 (Fla.
1997) (table). On January 24, 1997,
King
filed a pro se motion for postconviction
relief and habeas corpus petition in the
trial
court, which the trial court dismissed
without prejudice. King refiled those
identical
papers in the trial court on February 3, 2000, but withdrew them on October 26,
2000. On October 3, 2001, King filed another pro se motion for postconviction
relief in the trial court.
DEATH WARRANT PROCEEDINGS
On November 19, 2001, Governor Jeb Bush signed King’s third death
warrant, the second after resentencing.
Execution was set for 6 p.m. on
Thursday,
January 24, 2002. The trial court held a case management conference on
November 21, 2001, and established a schedule governing all further proceedings
before the trial court pending the resolution of the status of the Capital Collateral
Counsel–Middle’s (CCRC-M) representation of King. The case management
order included filing deadline dates for public records requests and pleadings and
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established tentative dates for further
hearings if needed. At a November 29,
2001,
hearing, King withdrew a separately filed pro se motion to dismiss CCRC-M as
counsel and stated that he wanted CCRC-M as his counsel. The trial court then
struck King’s October 3, 2001, pro se postconviction motion because King was
represented by CCRC-M.
Thereafter, CCRC-M filed additional public record requests with six
agencies and sought DNA testing of vaginal
washings and a rectal swab taken
from
the murder victim, Natalie Brady. Pursuant to section 925.11, Florida Statutes
(2001), and Florida Rule of Criminal Procedure 3.853, the trial court found the
DNA request to be sufficient and ordered the State to respond. The State
responded with a copy of a report generated
by the Office of the State Attorney
for
the Sixth Judicial Circuit which was prepared during the summer of 2001,
anticipating the October 1, 2001, effective date of section 925.11. That report
concluded that the vaginal washings and
rectal swab no longer existed and
therefore
could not be tested.
The trial court held a hearing on December 10, 2001, regarding the public
records and DNA requests. At this hearing,
the trial court accepted testimony
from
Debra Lewis, the Records Custodian, and Larry Bedore, the Director of
3. The trial court found Dr. Joan Wood to be unavailable due to illness.
4. King contends that: (1) the trial court erred in concluding that there was
no bad faith on the part of the State regarding the destruction of the vaginal
washings and rectal swab; (2) trial counsel were ineffective for their failure to
investigate and preserve forensic evidence; (3) trial counsel was ineffective for
counsel’s failure to adequately conduct voir dire; (4) King is "actually innocent of
first-degree murder and felony murder and of the death penalty"; (5) King’s initial
postconviction counsel was ineffective for failure to raise various arguments; (6)
Florida’s death sentencing statute is unconstitutional
as applied in light of
Apprendi
v. New Jersey, 530 U.S. 466 (2000); (7) lethal injection or Florida’s procedures
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Operations for the Pinellas County Medical Examiner’s Office.3 The trial court
also accepted testimony from Lieutenant Wallace Colcord, the Technical Services
Supervisor, and Linda Johansen, an attorney for the Pinellas County Sheriff’s
Office. After the December 10 hearing, the trial court dismissed King’s motion for
DNA testing because the trial court ruled
that the forensic evidence (i.e., the
vaginal
washings and rectal swab) no longer existed and therefore could not be tested.
Subsequently, on December 18, 2001, King filed a successive 3.851 motion
and raised eight claims for relief. The State responded to the 3.851 motion on
December 20, 2001. On December 21, 2001,
the trial court held a hearing
pursuant
to Huff v. State, 622 So. 2d 982, 983 (Fla.
1993), at which all parties agreed
there
was no need for a further evidentiary hearing. The trial court entered an order on
January 1, 2002, denying all relief. King
appeals the denial of his 3.851 motion
and
raises eight claims.4 King raises eleven separate claims in his habeas petition.5
implementing lethal injection constitute cruel punishment, unusual punishment, or
both; and (8) the trial court and prosecutor engaged in an improper ex parte
communication during the 1977 trial, and postconviction counsel was ineffective
for failing to raise this issue.
5. King contends that: (1) appellate counsel was ineffective for failing to
challenge the trial court’s rulings allowing a State witness to testify that blood on
King’s clothes was human blood; (2) appellate
counsel was ineffective for failing
to
challenge the trial court’s ruling which allowed the State to bolster James
McDonough’s credibility with irrelevant information; (3) appellate counsel was
ineffective for failing to challenge inadmissible hearsay statements made during
Carlos Hudson’s testimony; (4) appellate counsel was ineffective for failing to
challenge inadmissible hearsay statements made during Detective Bragdon’s
testimony; (5) appellate counsel was ineffective for failing to raise as an appellate
point the prosecutor’s improper future dangerousness argument during the guilt
phase closing; (6) the prosecutor committed fundamental error in the guilt phase
closing argument when the prosecutor denigrated defense counsel; (7) appellate
counsel was ineffective for failing to address on direct appeal the ex parte
communication between the trial court and the prosecutor; (8) appellate counsel
was ineffective or violated a duty by failing to ensure the preservation of physical
evidence; (9) Florida’s death sentencing statute is unconstitutional as applied in
light of Apprendi v. New Jersey, 530 U.S.
466 (2000); (10) incarceration on
death
row for twenty-five years violates the
Eighth Amendment’s prohibition against
cruel
and unusual punishment; and (11) Florida’s clemency process violates the Due
Process and Equal Protection Clauses of the United States and Florida
Constitutions.
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During the pendency of the proceedings before this Court, King filed in the
trial court a motion seeking the release
of evidence for DNA testing. In that
motion,
King sought mitochondrial DNA (mtDNA) testing of the hair fragment found on
Brady’s nightgown and three hairs obtained in the pubic hair combing of Brady.
King also sought testing using the Short
Tandum Repeat Typing DNA (STR
DNA)
6. The Florida Department of Law Enforcement (FDLE) lab had previously
attempted to test the fingernail scrapings
taken from Brady and found the sample
to
be insufficient for testing purposes utilizing the STR DNA method.
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method from an independent laboratory of the fingernail scrapings taken from
Brady.6 King also sought the release and
testing of the known standard samples
for
King and Brady. After a hearing on January 8, 2002, the trial court denied King’s
motion. King filed an amended motion, and the trial court ordered the State to
respond. After accepting further arguments at a hearing on January 11, 2002, the
trial court, on January 13, 2002, denied the amended motion. King appealed the
trial court’s ruling.
SUCCESSIVE 3.851 MOTION
King’s first contention is that the trial court erred in concluding that there was
no bad faith on the part of the State regarding the destruction of the vaginal
washings and rectal swab. The trial court wrote:
This court has read the entire state’s DNA report and the entire
transcript of the December 10, 2001 hearing. After doing so, this
court makes the following findings: 1. That the vaginal washings and
the rectal swabs were destroyed by someone in the medical
examiner’s office, either immediately after they were tested, or within
one to two years after they were taken, as was customary in all cases
where such specimens were obtained and tested in house, as was done
in this case. 2. There was no knowledge of DNA testing in 1977,
1978, or 1979. 3. No one connected to the medical examiner’s office,
the sheriff’s office, or the state attorney’s office could have known
when these specimen’s were obtained or destroyed that they might
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someday be scrutinized for DNA, to either include Mr. King as the
secretor in the vaginal washings, or to exclude him.
After making the above factual findings, it is apparent that Mr.
King cannot be given any relief requested as to Claim I. The landmark
case of Arizona v. Youngblood, 488 U.S. 51 (1988), and all cases
since, requires a defendant to show bad faith on the part of the person
destroying the evidence before any relief can be afforded.
"But we think the Due Process Clause requires a different
result when we deal with the failure of the State to
preserve evidentiary material of which no more can be
said than that it could have been subjected to tests, the
results of which might have exonerated the defendant . . .
. We therefore hold that unless a criminal defendant can
show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a
denial of due process of law."
Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988).
. . . In 1977-1979, no one knew that DNA matching would
become the forensic tool for identification that it has become. Thus,
the state, through the medical examiner, could not have known at the
time the washings, and the swab were destroyed that they would ever
be of any benefit to the defense for DNA testing. Thus, the defendant
cannot show that the state, through the medical examiner’s office,
made a "conscious effort to prevent the defense from securing the
evidence."
The defendant cannot show bad faith on the part of the Pinellas
County Medical Examiner’s Office when someone, presumably Dr.
Wood, the Assistant Medical Examiner at the time, destroyed the
washings and swab. Before 1981, Florida Statute 406.13 (1973) did
not even require the medical examiner’s office to maintain such
specimens for any length of time. It merely provided that "any
evidence or specimen coming into the possession of said medical
examiner in connection with any investigation or autopsy may be
retained by him or be delivered to one of the law enforcement officers
assigned to the investigation of the death." F.S. 406.13 (1973)
7. The trial court also commented:
While this may not be pertinent to the claim as raised, this court
feels compelled to point out to the defendant that if he had not
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(emphasis mine). It was only when the Administrative Code was
amended in 1981 that the requirement that the type specimens involved
here "shall be retained for one year, and afterwards at the discretion of
the medical examiners" (emphasis mine) was included. The 1981
Amendment to the Administrative Code is still in effect today. See
Fla. Admin. Code Ann. R. 11G-2.004(1)(h) and (4)(b) (2001); F.S. §
406.13 (2001). Thus, even today, the medical examiner could destroy
a specimen such as a vaginal washing or rectal swab after one year. In
this case, which occurred in 1977, whether the vaginal washing and
swab were destroyed immediately after they were tested for blood
types, or whether they were retained for one or two years before they
were destroyed, they were not destroyed contrary to any law in
existence, the medical examiner had no reason to believe the specimen
could ever be of any use to exonerate Mr. King in the future, they were
not destroyed contrary to any existing policy that existed at the Sixth
Circuit Medical Examiner’s Office, and in sum, nothing about the
destruction of either the vaginal washing or the rectal swabs shows any
required bad faith on the part of the medical examiner, and thus, the
state. Without a showing of bad faith, the defendant simply cannot
prevail.
State v. King, Nos. 77-02173CANOO & 77-01696CFANO, order at 11-12 (Fla.
6th Cir. Ct. order filed Jan. 1, 2002).
We find competent, substantial evidence in the record which supports the
trial court’s factual findings. We find no error with the trial court’s application of
Youngblood that King has failed to demonstrate bad faith on behalf of the State.
See Youngblood, 488 U.S. at 58.7
destroyed the pants he had been wearing on the night of the murder,
and the attempted murder, the blood present on those pants could
have been tested at the time of his trial to see if it matched the blood
type of the victim, Mrs. Brady, as the state suggested, or the blood
type of the victim, corrections officer James McDonough, as the
defense suggested. The pants the defendant wore on the night of this
homicide, and attempted homicide would have been introduced into
evidence at King’s trial, and would still be in evidence at the clerk’s
office. Today, the blood on those same pants could be analyzed for
DNA, and if it still existed in sufficient quantity to be tested, Mrs.
Brady’s DNA could be either included or excluded. This potential
evidence was lost to the state and the defendant, both at trial and now,
through the exclusive actions of the defendant. Since the defendant
admitted to the detectives that he had stabbed James McDonough,
(although he contended it was in self defense) when he agreed to talk
to the detectives in this case after he turned himself in, and he knew
they were seeking his pants worn the night in question, why did he take
them on a wild goose chase in search of the pants? (R. 1706-1708,
1752-1762. Please note that all record pages referred to in this order
are attached in sequence as composite exhibit A). One can only
surmise that the blood type present on the pants was not helpful to the
defendant’s position then or now.
State v. King, order at 12-13.
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King’s second contention is that his trial counsel was ineffective for failing to
preserve forensic evidence. The trial court ruled:
The short answer to this claim is that it is procedurally barred.
Ineffective assistance of counsel at both the guilt-innocence phase and
at the sentencing phase was previously litigated at the trial court where
an evidentiary hearing was held in 1981, and co-counsel and another
experienced defense attorney testified about counsel, Tom Cole’s,
who was then deceased, deficiencies. The trial court denied relief on
this claim. This claim was appealed to the Florida Supreme Court,
and they denied relief. King v. State, 407 So. 2d 904 (Fla. 1981). A
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habeas petition was taken to the Middle District of Florida raising
ineffective assistance of counsel. The Honorable William J. Castagna
denied relief on this claim. This decision was appealed to the Eleventh
Circuit, which denied the defendant’s ineffective assistance of counsel
claim at the guilt-innocence phase, but granted relief as to the claimed
ineffective assistance of counsel at the penalty phase. King v.
Strickland, 714 F.2d 1481 (11th Cir. 1983). The Eleventh Circuit
reviewed their decision again in accordance with the United States
Supreme Court’s then recent case of Strickland v. Washington, 466
U.S. 668 (1984), and arrived at the same decision. King v. Strickland,
748 F.2d 1462 (11th Cir. 1984).
In 1992, the defendant filed another habeas petition in the
Middle District of Florida. One of the claims raised was Claim IX,
"Mr. King was denied the effective assistance of counsel at the guiltinnocence
phase of his capital trial, in violation of the Sixth, Eighth,
and Fourteenth Amendments. Execution of Mr. King in light of newly
discovered evidence of innocence would violate the Eighth and
Fourteenth Amendments." Middle District Judge Susan C. Bucklew
denied defendant’s claims, including Claim IX in a 96-page
memorandum, unpublished opinion. The defendant appealed this
denial of his habeas petition to the Eleventh Circuit, which didn’t
discuss this claim, but only listed it as one of the Claims dealt with by
the Middle District Judge. King v. Moore, 196 F.3d 1327, 1337 (11th
Cir. 1999).
State v. King, order at 13-14. We agree with the trial court that this claim is
procedurally barred.
King’s third contention is that trial counsel was ineffective for counsel’s
failure to adequately conduct voir dire. The trial court ruled:
This claim is procedurally barred. In addition, defendant failed
to comply with [Florida Rule of Criminal Procedure] 3.851(e)(2)(B),
which requires a successive motion to state the reason any claim was
not raised previously. If the reason is that the complained of
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information, that Mrs. Demuth’s father was a law enforcement officer,
was uncovered by a reporter for the St. Petersburg Times in 1996,
there is still no reason given why this could not have been uncovered
by exercising due diligence by collateral counsel. Additionally, Mr.
Cole and Mr. Rondolino, defendant’s trial counsel, may have known
this. As this court suggested at the hearing, there has always been a
place on the juror questionnaires, which are provided to counsel in
every case, that asks if the juror is related to any one in law
enforcement. (T. 46-47, Hearing 12/21/01). For all we know, Mrs.
Demuth answered that question "yes," and as the state suggests in
their response to defendant’s 3.851 motion, defendant’s attorneys
were "satisfied to have Demuth, a mother of four children still at home
and a substitute elementary teacher, on the panel."
Additionally, there is no suggestion that the defendant suffered
any prejudice because Mrs. Demuth, or any other juror was on his
panel. The state’s evidence, although circumstantial, was strong
enough for the jury in Mr. King’s trial to unanimously vote for guilty as
charged. There is no suggestion, nor could there be, that another jury
would have found differently. Thus, the defendant cannot show the
required prejudice to succeed in this claim.
State v. King, order at 16. We agree with the trial court’s determination of this
issue.
King’s fourth contention is that King is "actually innocent of first-degree
murder and felony murder and of the death penalty." The trial court ruled:
King has presented no "exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence that was not
presented at his first trial," thus, there is no "new reliable evidence"
that can give Mr. King relief on this claim.
The evidence used to convict King at his trial in 1977 may have
been circumstantial, but not one shred of it has changed in 24 years,
and he has presented no new evidence, except his claim on the vaginal
washings, which is sheer speculation as to whether or not if they were
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available to be tested, and could be tested, the result would even be
exculpatory. The washings might, as the state had hoped, have
produced the final damning blow to Mr. King. The only real thing
which exists to show "actual innocence" is Mr. King’s saying it is so,
and this is neither new nor sufficient for relief to be granted.
State v. King, order at 19.
We agree with the trial court’s determination of this issue, and we find that
this issue is procedurally barred. See Jones v. State, 709 So. 2d 512, 520 n.6 (Fla.
1998) (finding procedural bar to claim of newly discovered evidence where claim
not timely presented); see also Mills v. State, 786 So. 2d 547, 549-50 (Fla. 2001).
In contention five, King argues that his initial postconviction counsel was
ineffective. The trial court commented:
[T]his claim must fail because both Florida law and the Federal law
makes clear that a defendant has no constitutional right to effective
collateral counsel. The Florida Supreme Court says, "However,
claims of ineffective assistance of postconviction counsel do not
present a valid basis for relief." Lambrix v. State, 698 So. 2d 247, 248
(Fla. 1997). In Pennsylvania v. Finley, 481 U.S. 551 (1987), the
Supreme Court refused to extend a due process requirement for
effective collateral counsel to situations where a state, like Florida, has
opted to afford collateral counsel to indigent inmates.
State v. King, order at 21.
We agree with the trial court that King’s contention fails because his claim
does not state a valid basis for relief.
See Murray v. Giarratano, 492 U.S. 1
(1989);
Pennsylvania v. Finley, 481 U.S. 551 (1987); Lambrix v. State, 698 So. 2d 247
8. King’s arguments in his seventh contention regarding lethal injection have
been repeatedly rejected by this Court
and are therefore meritless. See
Provenzano
v. State, 761 So. 2d 1097, 1099 (Fla. 2000) (holding execution by lethal injection
does not constitute cruel punishment or unusual punishment or both); Sims v.
State, 754 So. 2d 657, 666-69 (Fla. 2000), cert. denied, 528 U.S. 1183 (2000)
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(Fla. 1996), not followed on other grounds,
Williams v. State, 777 So. 2d 947
(Fla.
2000). For this same reason, King’s eighth
contention fails to state a valid basis
for
relief.
King’s sixth contention, that Apprendi applies to Florida’s capital sentencing
statute and the maximum sentence under the statute is death, has been decided
adversely to King’s position. See Mills v. Moore, 786 So. 2d 532, 537-38 (Fla.
2001), cert. denied, 121 S. Ct. 1752 (2001); see also Brown v. Moore, 26 Fla. L.
Weekly S742 (Fla. Nov. 1, 2001) (rejecting claims that aggravating circumstances
are required to be charged in indictment, submitted to jury during guilt phase, and
found by unanimous jury verdict); Mann
v. Moore, 794 So. 2d 595, 599 (Fla.
2001)
(same). We are aware that the United States Supreme Court very recently granted
certiorari in State v. Ring, 25 P.3d 1139 (Ariz. 2001), cert. granted, 70 U.S.L.W.
3246 (U.S. Jan. 11, 2002); however, we decline to grant a stay of execution
following our precedent on this issue, on which the Supreme Court has denied
certiorari. Thus, King is not entitled to relief on this issue.
King’s remaining claim is meritless and does not require discussion.8 As
(Florida Department of Corrections procedures for the application of lethal
injection do not constitute cruel and unusual punishment).
9. Claims one, two, three, four, five, six, and eight are procedurally barred
as those claims could have and therefore should have been raised in a previous
state petition for habeas corpus. See Johnson, 647 So. 2d at 109.
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King’s claims are either procedurally barred
or meritless, we affirm the trial
court’s
denial of King’s postconviction motion.
SUCCESSIVE PETITION FOR HABEAS CORPUS
Most of King’s habeas claims are procedurally barred in this successive
habeas corpus petition as those claims should have been raised previously. See
Johnson v. Singletary, 647 So. 2d 106, 109 (Fla. 1994) ("Successive habeas
corpus petitions seeking the same relief are not permitted nor can new claims be
raised in a second petition when the circumstances
upon which they are based
were
known or should have been known at the time the prior petition was filed.").9
Claims seven and nine are procedurally barred as they were raised in King’s most
recent 3.850 motion and are not properly relitigated in this habeas petition. See
Parker v. Dugger, 550 So. 2d 459, 460 (Fla.1989) ("[H]abeas corpus petitions are
not to be used for additional appeals on questions which . . . were raised . . . in a
rule 3.850 motion . . . ."). Claim ten,
regarding King’s extended stay on death
row,
is meritless. See Rose v. State, 787 So. 2d 786, 805 (Fla. 2001) (denying same
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claim for inmate on death row longer than King), petition for cert. filed, No. 01-
7229 (U.S. Oct. 31, 2000); Knight v. State,
746 So. 2d 423, 437 (Fla. 1998)
(time
on death row more than twenty years), cert. denied, 528 U.S. 990 (1999). Claim
eleven, regarding challenges to Florida’s clemency process, likewise is meritless.
See Provenzano v. State, 739 So. 2d 1150, 1155 (Fla. 1999); see also Glock v.
Moore, 776 So. 2d 243, 252-53 (Fla. 2001).
Therefore, we deny King’s
successive
habeas corpus petition.
REQUEST FOR MITOCHONDRIAL DNA TESTING
King filed in the trial court a motion to release evidence for additional DNA
testing on January 7, 2002. In that motion, King sought mtDNA testing of the hair
fragment found on Brady’s nightgown and three hairs obtained in the pubic hair
combing of Brady. King also sought additional and independent testing using the
STR DNA method of the fingernail scrapings taken from Brady. The FDLE lab
previously had concluded, using the STR DNA method, that the sample was
insufficient for testing purposes. King also sought the release of the known
standard samples for King and Brady.
After a hearing on January 8, 2002, the State asserted that King had failed to
file a sufficient motion. The trial court denied King’s motion, in part because of
King’s failure to adhere to the procedural
requirements of rule 3.853. King filed
an
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amended motion on January 11, 2002, and the trial court ordered the State to
respond. After accepting further arguments at a hearing on January 11, 2002, the
trial court, on January 13, 2002, denied
the amended motion. The trial court
ruled:
The court has now had the benefit of the defendants amended
motion, the state's response thereto, the hearing held on the original
motion on January 8, 2002, and the brief hearing on the amended
motion on January 11, 2002. As to the three items sought by the
defendant to be re-tested, the court finds as follows:
1. The hair fragment found on Natalie Brady's nightgown:
According to the attachment filed with the state's response, this
fragment was a body hair, unknown as to where it came from,
the arms, the legs, or some other part of the body. It was too
small of a fragment to determine if it was Negroid or Caucasian
in origin. It was too small a fragment to be microscopically
matched to any known samples. When Patrolman Rosario
Coniglione, Tarpon Springs Police Department, found Mrs.
Brady, she was laying on her back in the porch door threshold
area, presumably having crawled from her bedroom, where the
fire was started, to that area where she expired. Her nightgown
was up over her breast area, and she was naked, except for the
nightgown. He and Officer Dawson found her and dragged her
out of the burning house, where she was eventually covered
with a sheet. Mrs. Brady was examined by the medical
examiner preliminarily at the scene, and was identified by two
neighbors at the scene. Many other fire and police personnel
were at the scene. This hair fragment could have been
transferred from any one's hair that was on Mrs. Brady's floor
as she crawled from her bedroom to the back door, from any
one's hair that was on her porch area where she expired, from
any one's hair that was on the ground outside her house where
she was dragged away from the fire, from the perpetrator of the
rape and murder, from one of the men who dragged her away
from the burning house, from the medical examiner, from one of
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those who identified her, from any other fire or police personnel
present, or from Mrs. Brady. Thus, even if this fragment of a
body hair could be further re-tested for DNA, and it was
determined that it didn't come from Mrs. Brady, or from Mr.
King, this court cannot make the required finding under the
statute or the rule, that there exists a reasonable probability that
the defendant would be acquitted, or that he would receive a life
sentence if the requested re-testing were allowed. Fla. Stat. §
925.11(2)(f)3; Fla. R. Crim. P. 3.853 (c)(5)(C).
2. The three hairs obtained from the pubic hair
combings of the victim: As part of the
investigation of this homicide, pubic hair combings
of the victim, Mrs. Brady, were obtained and sent
to the FBI lab for analysis. The FBI report says
"Specimen Q2 [which is Mrs. Brady's pubic
combings] contained three brown pubic hairs of
Caucasian origin, two of which are partially
charred. The uncharred portions of these hairs and
the one hair which is not charred are
microscopically like the hairs contained in K2. [K2
is the known pubic hair sample from Mrs. Brady.]
In all probability, these hairs originated from the
person represented by K2." See FBI Report, p. 3,
attached as Exhibit A. It is clear that the three
pubic hairs from the pubic combings from Mrs.
Brady are Mrs. Brady's pubic hairs. This is no
surprise. This is what you expect from pubic
combings from any person—their own pubic hairs.
Occasionally, there may be a pubic hair from the
perpetrator of a rape in a rape victim's pubic hair
combings. But not in this case. All three pubic
hairs from the combings microscopically matched
the known pubic hairs of Mrs. Brady. Since these
three pubic hairs originated from the victim, this
court cannot make the required finding under the
statute or the rule, that there exists a reasonable
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probability that the defendant would be acquitted
or would receive a life sentence if the requested
re-testing were allowed. See Statute and Rule
sections in 1., above.
3. The fingernail scrapings taken from the victim: The
defendant admits in his motion that, unlike the
hairs, there is not another method of DNA testing
of these fingernail scrapings. The only method of
testing fingernail scrapings is that which was used
by the Florida Department of Law Enforcement
(FDLE) to test the scrapings in this case. The type
testing done by the FDLE is called Short Tandum
Repeat Typing DNA testing (STR DNA). The
defendant merely suggests that the results of the
FDLE analysis that there was insufficient material
for STR DNA analysis might be wrong. There is
no provision in the statute or the rule for re-testing
once testing has been done by FDLE. This would
be particularly true when, as here, there is no
showing that the FDLE test is inaccurate, or there
is any other type DNA test that can be done. If
re-testing were allowed of the fingernail scrapings
in this case, re-testing would have to be allowed for
every DNA test performed by FDLE for every
defendant who did not like the result obtained by
the FDLE test. This is not required, not
contemplated, nor appropriate under either the new
statute or the new rule.
The defendant has not filed a motion for Postconviction DNA
Testing as contemplated by Fla. Stat. §925.11, or Fla. R. Crim. P.
3.853. The defendant has filed a Postconviction Motion for
Additional DNA Testing. There is no statute or rule that requires
additional DNA testing. The defendant admits in his motion that all the
evidence he wants this court to order re-tested has already been tested
for STR DNA by the Florida Department of Law Enforcement. He
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admits that the results of the DNA testing performed by FDLE were
inconclusive because there was insufficient quality or quantity to
perform an STR DNA analysis. Even if there were a provision for
re-testing, as to the fingernail scrapings, the defendant has shown no
good cause why that specimen should be re-tested by anyone.
Assuming the defendant may have shown good cause for a laboratory
other than FDLE to re-test the pubic hairs, and the body hair fragment,
since the FDLE does not conduct mitochondrial DNA analysis, this
court, for the reasons stated in 1. and 2. above, cannot make the
required finding under the statute or the rule, that there exists a
reasonable probability that the defendant would be acquitted or would
receive a life sentence if the requested mitochondrial DNA re-testing
were allowed. Fla. Stat. § 925.11(2)(f)3; Fla. R. Crim. P.
3.853(c)(5)(C).
State v. King, Nos. 77-02173CANOO & 77-01696CFANO, order at 1-3 (Fla. 6th
Cir. Ct. order filed Jan. 13, 2002) (alterations in original).
We find no error in the trial court’s determination that King has not made the
required showing, pursuant to rule 3.853, for testing the hairs in this case. We
likewise approve the trial court’s order
in respect to the fingernail scrapings for
the
reasons stated in the trial court’s order.
CONCLUSION
We affirm the trial court’s denial of King’s successive 3.850 motion, deny
the successive habeas corpus petition, and deny all pending motions for stay of
execution. We also deny King’s separate motion for a stay of execution pending
his application for a writ of certiorari from the United States Supreme Court.
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No motion for rehearing will be allowed.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, and LEWIS,
JJ., concur.
QUINCE, J., recused.
Two Cases:
An Appeal from the Circuit Court in and for Pinellas County,
Susan F. Schaeffer, Judge - Case Nos. 77-01696CFANO &
77-02173CFANO
and An Original Proceeding - Habeas Corpus
Bill Jennings, Capital Collateral Regional Counsel - Middle, Richard E. Kiley,
Assistant CCC, and April E. Haughey, Assistant CCC, Tampa, Florida,
for Appellant/Petitioner
Robert A. Butterworth, Attorney General, and Carol M. Dittmar and Stephen D.
Ake, Assistant Attorneys General, Tampa, Florida,
for Appellee/Respondent
TUESDAY, JANUARY 15, 2002
CASE NO.: SC02-1
Lower Tribunal Nos.:
CRC77-02173CFANO &
CRC77-01696CFANO
AMOS LEE KING vs. STATE OF FLORIDA
___________________________________________________________________
Appellant(s) Appellee(s)
Appellant's Pro Se pleading entitled "Response to January 11, 2002 Nelson
Hearing" filed in this Court on January 14, 2002, is hereby denied to the extent it
seeks relief.
WELLS, C.J., and SHAW, HARDING, ANSTEAD,
PARIENTE and LEWIS,
JJ.,
concur.
QUINCE, J., recused.
A True Copy
Test:
tc
Served:
C. MARIE KING
APRIL E. HAUGHEY
RICHARD EDWARD KILEY
AMOS LEE KING, JR.
CAROL M. DITTMAR
STEPHEN D. AKE
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