Dailey v. State

283 So.3d 782

James Milton DAILEY, Appellant,

v.STATE of Florida, Appellee.

James Milton Dailey, Petitioner,

v.Mark S. Inch, etc., Respondent.

No. SC19-1780

No. SC19-1797

Supreme Court of Florida.

November 12, 2019

Eric Pinkard, Capital Collateral Regional Counsel, and Chelsea Rae Shirley, Julissa R. Fontán, and Kara R. Ottervanger, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida; Seth Miller, Innocence Project of Florida, Inc., Tallahassee, Florida; Laura Fernandez, New Haven, Connecticut; and Cyd Oppenheimer, New Haven, Connecticut, for Appellant/Petitioner

Ashley Moody, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Christina Z. Pacheco and Lisa Martin, Assistant Attorneys General, Tampa, Florida, for Appellee/Respondent

PER CURIAM.

James Milton Dailey, a prisoner under sentence of death and an active death warrant, appeals the circuit court's order dismissing in part and denying in part his third successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm, and we also deny Dailey's motion for stay of execution and his petition for a writ of habeas corpus.

BACKGROUND

On May 6, 1985, fourteen-year-old Shelly Boggio's "nude body was found floating in the water near Indian Rocks Beach in Pinellas County, Florida." Dailey v. State , 965 So. 2d 38, 41 (Fla. 2007). Boggio "had been stabbed repeatedly, strangled, and drowned." Id. A jury found Dailey guilty of Boggio's first-degree murder and unanimously recommended death. Dailey v. State , 594 So. 2d 254, 256 (Fla. 1991). The trial court followed the recommendation. Id.

On direct appeal, we affirmed Dailey's conviction but reversed the sentence. Id. at 259. The trial court again sentenced him to death on remand, and we affirmed. Dailey v. State , 659 So. 2d 246, 248 (Fla. 1995), cert. denied , 516 U.S. 1095, 116 S.Ct. 819, 133 L.Ed.2d 763 (1996). In 2007, we affirmed the circuit court's denial of Dailey's initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Dailey , 965 So. 2d at 48.

Dailey subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida. Dailey v. Sec'y, Fla. Dep't of Corr. , No. 8:07-cv-1897-T-27MSS, 2008 WL 4470016, at *1 (M.D. Fla. Sept. 30, 2008). The federal district court dismissed or denied all claims and declined to issue a certificate of appealability. Id. at *10 ; Dailey v. Sec'y, Fla. Dep't of Corr. , No. 8:07-CV-1897-T-27MAP, 2011 WL 1230812, at *32 (M.D. Fla. Apr. 1, 2011), amended in part, vacated in part , No. 8:07-CV-1897-T-27MAP, 2012 WL 1069224, at *8 (M.D. Fla. Mar. 29, 2012) (amending opinion to include the denial of an additional claim of ineffective assistance of counsel and denying motion for certificate of appealability to the Eleventh Circuit Court of Appeals).

In 2018, we affirmed the circuit court's denial of Dailey's first successive postconviction motion. Dailey v. State , 247 So. 3d 390, 391 (Fla. 2018). Dailey's second successive postconviction motion was denied in part and dismissed in part by the circuit court; we affirmed on October 3, 2019. Dailey v. State , 279 So.3d 1208 (Fla. 2019).

After Governor DeSantis signed Dailey's death warrant on September 25, 2019, Dailey filed a third successive motion for postconviction relief. The motion raised four claims: (1) his execution would be unconstitutionally arbitrary; (2) newly discovered evidence proves that he is actually innocent and that the State committed Brady¹ and Giglio² violations; (3) the circuit court would violate his constitutional rights if it did not order the Florida Department of Corrections (DOC) to comply with his requests related to defense execution witnesses; and (4) the totality of his punishment—including over thirty years spent on death row—violates the Eighth Amendment.

Following an evidentiary hearing on one newly discovered evidence claim, the circuit court entered an order dismissing in part and denying in part the motion.

ANALYSIS

In this Court, Dailey appeals the denial of postconviction relief and the denial of certain records requests filed after the Governor signed his death warrant. Dailey also filed a habeas petition in this Court. We affirm the postconviction court's denial of relief and deny his habeas petition.

Arbitrariness of Execution

In his first claim, Dailey contends that the circuit court erred in summarily rejecting his claim that his execution would be so arbitrary as to violate the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Because the record conclusively shows that Dailey is not entitled to relief, we affirm. See Fla. R. Crim. P. 3.851(f)(5)(B) ("If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion may be denied without an evidentiary hearing.").

Dailey argues that the circuit court wrongly concluded that "some of the arguments raised in" support of "this ground amount[ed] to untimely or procedurally barred claims." These included his "facial challenges to the clemency or warrant [selection] process," his assertion that his execution would be arbitrary because he is actually innocent, and his claim that he had been denied the chance to present newly discovered evidence at an updated clemency hearing.

We agree that Dailey's actual innocence claim is procedurally barred. Dailey has already unsuccessfully raised an actual innocence claim in his second successive postconviction motion. Dailey , 279 So.3d at 1217–18. He cannot present the claim again "by merely reframing it as a challenge to the warrant." Moreover, we have repeatedly held that freestanding actual innocence claims are not cognizable under Florida law. Id. ; Tompkins v. State , 994 So. 2d 1072, 1089 (Fla. 2008).

The remaining claims fail on the merits. We have consistently rejected the assertion that the warrant selection process is arbitrary because there are no standards that constrain the Governor's discretion in determining which warrant to sign. See, e.g. , Hannon v. State , 228 So. 3d 505, 509 (Fla. 2017) ; Bolin v. State , 184 So. 3d 492, 502-03 (Fla. 2015) ; Mann v. State , 112 So. 3d 1158, 1162-63 (Fla. 2013) ; Ferguson v. State , 101 So. 3d 362, 366 (Fla. 2012) ; Gore v. State , 91 So. 3d 769, 780 (Fla. 2012) ; Valle v. State , 70 So. 3d 530, 551-52 (Fla. 2011). Related challenges to the clemency process have also been denied. See, e.g. , Johnston v. State , 27 So. 3d 11, 24 (Fla. 2010) ; Marek v. State , 8 So. 3d 1123, 1129-30 (Fla. 2009). And to the extent Dailey asserts that his execution would be arbitrary because he was not granted an additional clemency proceeding at which to present newly discovered evidence, his claim is foreclosed by our caselaw. See, e.g. , Grossman v. State , 29 So. 3d 1034, 1044 (Fla. 2010) ; Johnston , 27 So. 3d at 25-26. Accordingly, we conclude that the circuit court properly rejected this claim.

Newly Discovered Evidence, Brady , and Giglio

Dailey next argues that the circuit court erred in rejecting his claim that newly discovered evidence proves the State committed Brady and Giglio violations. We disagree.

In order to demonstrate entitlement to relief based on newly discovered evidence, two requirements must be satisfied. First, "the evidence ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.’ " Jones v. State , 709 So. 2d 512, 521 (Fla. 1998) (alteration in original) (quoting Torres-Arboleda v. Dugger , 636 So. 2d 1321, 1324-25 (Fla. 1994) ). Second, the "evidence must be of such nature that it would probably produce an acquittal on retrial." Id. (citing Jones v. State , 591 So. 2d 911, 915 (Fla. 1991) ). "If," as here, "the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence." Walton v. State , 246 So. 3d 246, 249 (Fla. 2018) (citing Jones , 591 So. 2d at 915 ), cert. denied , ––– U.S. ––––, 139 S. Ct. 1184, 203 L.Ed.2d 218 (2019). To be timely, a claim based on newly discovered evidence must be brought within one year of the date upon which it became discoverable. Jimenez v. State , 997 So. 2d 1056, 1064 (Fla. 2008).

Dailey claims that newly discovered evidence exists in the form of: testimony from James Slater, a former assistant state attorney; statements made by Edward Coleman, a former inmate who was previously incarcerated with Dailey; and statements made by David Howsare, a former correctional officer. He also raises a Brady claim based on Slater's testimony and a Giglio claim based on Coleman's statements. We address each claim below.

James Slater

Dailey first alleges that the circuit court erred in denying his claim that testimony from James Slater constitutes newly discovered evidence proving that the State committed a Brady violation. When the lower court has ruled on a claim following an evidentiary hearing, we review "the trial court's findings on questions of fact, the credibility of witnesses, and the weight of the evidence for competent, substantial evidence." Green v. State , 975 So. 2d 1090, 1100 (Fla. 2008). The lower "court's application of the law to the facts," however, is reviewed de novo. Id.

In support of his postconviction motion below, Dailey attached an affidavit from former Assistant State Attorney James Slater. In the affidavit, Slater recalled that he worked at the State Attorney's Office in Pinellas County at the time the victim, Shelly Boggio, was murdered. He stated that he was involved in the investigation of Boggio's death and the resulting prosecution of Jack Pearcy, Dailey's codefendant. Slater explained that he remembered being called to the crime scene where...