Foster v. State

1

JERMAINE FOSTER, Appellant, v. STATE OF FLORIDA, Appellee.

No. SC2023-0831

Supreme Court of Florida

August 29, 2024

An Appeal from the Circuit Court in and for Orange County, Jalal A. Harb, Judge Case No. 481993CF012001000AOX

Linda McDermott and Lauren Rolfe, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida and Eric Pinkard, Capital Collateral Regional Counsel, and Julissa R. Fontan, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Doris Meachum, Assistant Attorney General, Daytona Beach, Florida for Appellee

SASSO J.

Jermaine Foster, a prisoner under sentences of death, appeals the circuit court's denial of his successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V § 3(b)(1), Fla. Const. For the reasons we explain below we affirm the denial of postconviction relief.

I.

A.

In 1994, Appellant Jermaine A. Foster ("Foster") was convicted of two counts of first-degree murder, one count of attempted first- degree murder, and four counts of kidnapping, for which the jury ultimately recommended two death sentences. Foster v. State, 679 So.2d 747, 751 (Fla. 1996). Following the sentencing hearing, the trial court sentenced Foster to death. Id. On appeal, we affirmed his convictions and sentences. Id. at 756. The U.S. Supreme Court denied certiorari review. Foster v. Florida, 520 U.S. 1122 (1997).

Foster then sought postconviction relief based on intellectual disability claims, filing his first motion in 2002. Before the postconviction court ruled on his motion, but following an evidentiary hearing that included testimony concerning Foster's mental abilities, the U.S. Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002), holding that "death is not a suitable punishment for a mentally retarded criminal," as "such punishment is excessive" and offends the Eighth Amendment. Id. at 321. So after the postconviction court denied his motion, Foster appealed to this Court seeking relief based on Atkins, among other grounds.

After oral argument, we relinquished jurisdiction to the postconviction court for an evidentiary hearing on one of Foster's claims. Foster v. State, 929 So.2d 524, 528 (Fla. 2006). The postconviction court also reviewed Foster's evidence allegedly supporting his Atkins claim and concluded that he failed to establish "the necessary prongs to show mental retardation." See id. at 531-33. We affirmed the postconviction court in all respects. Id. at 537.

B.

After the U.S. Supreme Court decided Hall v. Florida, 572 U.S. 701 (2014), which this Court decided should be applied retroactively in Walls v. State (Walls I), 213 So.3d 340, 346 (Fla. 2016), Foster filed a successive motion for postconviction relief, again asserting an intellectual disability claim. Foster v. State, 260 So.3d 174, 179 (Fla. 2018). The postconviction court summarily denied Foster's motion without an evidentiary hearing, concluding that his claim was procedurally barred because all three prongs of the intellectual disability test had already been considered. Id. On appeal, we concluded that because Hall and Walls I required a different standard by which Foster had not yet had the opportunity to present evidence, Foster was entitled to a Hall-compliant evidentiary hearing. Id. We therefore remanded to the postconviction court for such a hearing but affirmed the postconviction court's denial of Foster's other claims. Id. at 181.

C.

On May 21, 2020, before Foster's Hall-compliant hearing took place in the postconviction court, this Court decided Phillips v. State, 299 So.3d 1013 (Fla. 2020). In Phillips, we held that the Walls I decision was clearly erroneous and that Hall should not be given retroactive application. Id. at 1019-21. Relying on Phillips, the State moved for cancellation of the Hall-compliant hearing in Foster's case and requested that the postconviction court dismiss his intellectual disability claim. However, at a hearing on the State's motion, the State conceded that based on our intervening decision in State v. Okafor, 306 So.3d 930 (Fla. 2020), the postconviction court could not deviate from our mandate requiring an evidentiary hearing in Foster's case. Accepting the State's concession, in orders dated February 8, 2021, and February 18, 2021, the postconviction court denied the State's motion for summary denial of Foster's intellectual disability claim. The postconviction court cited Okafor and concluded that because the State filed its motion after the statutorily imposed 120-day deadline to recall the mandate, "the mandate for [the court] to hold an evidentiary hearing on the intellectual disability claim remains undisturbed."

D.

On March 31, 2022, this Court decided Thompson v. State, 341 So.3d 303 (Fla. 2022). We had previously remanded Thompson's case for an evidentiary hearing following our decisions in Hall and Walls I, but Phillips was decided before the hearing was held. The State argued below that our decision in Phillips was an intervening change in law that eliminated the need for the hearing. Id. at 305. The trial court agreed and denied Thompson's claim. Id. On appeal, we affirmed, concluding that, unlike in Okafor, where the defendant's sentence had been "wiped . . . clean" by this Court's mandate vacating it, in Thompson's case the death sentence was final and fully intact. Id. at 306. We further concluded that Phillips represented a change in the relevant fundamental controlling legal principles, and therefore constituted an exception to the law of the case doctrine. Id. As a result, because of the finality of Thompson's sentence and the decision in Phillips, we held that Thompson could not succeed on his Hall-based disability claim. Id.

On the same day Thompson was decided, the State filed a renewed motion for summary denial of Foster's intellectual disability claim. The State argued that, while the postconviction court had denied its previous motion based on Okafor, Thompson distinguished Okafor in cases such as Foster's. In response, Foster argued that the State had waived and abandoned the claim that Hall does not retroactively apply.

The postconviction court granted the State's renewed motion on May 3, 2023, and denied Foster's intellectual disability claim. In doing so, the postconviction court concluded that Phillips constituted an intervening change in controlling case law, Hall did not apply retroactively, and the State's concession as to the applicability of Okafor did not constitute a waiver of the argument that Hall is not retroactive. This appeal follows.

II.

Foster raises three issues on appeal. Specifically, he argues that the postconviction court erred when it (1) concluded that Phillips was correctly decided and is applicable in Foster's case, (2) summarily denied Foster's request for an evidentiary hearing, and (3) concluded that the State did not waive its argument against a retroactive application of Hall when it initially conceded that Phillips did not apply under existing precedent. We disagree.

A.

Foster's intellectual disability claim, in large part, relies on retroactive application of Hall. But Phillips forecloses that prospect. So, Foster now argues that Phillips was wrongly decided. Consistent with our decision in Walls v. State (Walls II), 361 So.3d 231, 233-34 (Fla. 2023), we reject Foster's invitation to recede from Phillips. See, e.g., id.; Thompson, 341 So.3d at 306; Nixon v. State, 327 So.3d 780, 783 (Fla. 2021); Pittman v. State, 337 So.3d 776, 777 (Fla. 2022); Freeman v. State, 300 So.3d 591, 594 (Fla. 2020); Cave v. State, 299 So.3d 352, 353 (Fla. 2020). And because we reject Foster's invitation to recede from Phillips, his second argument fails as well. As the postconviction court properly concluded, Foster is procedurally barred from the relief he seeks based on this Court's current precedent of Nixon and Thompson. See Thompson, 341 So.3d at 306 (affirming summary denial of Hall-based intellectual disability claim); Nixon, 327 So.3d at 783 (declining to review the merits of a Hall-based intellectual disability challenge).

B.

Foster's argument that the State was precluded from challenging the retroactive application of Hall also falls short.

In support of this point, Foster relies on appellate waiver cases that are inapplicable here. For example, Foster relies on Godinez v. Moran, 509 U.S. 389, 397 n.8 (1993), in which the U.S. Supreme Court declined to address an argument regarding retroactive application of a decision where the issue of retroactivity was not raised in the lower courts or in the petitioner's petition for writ of certiorari. Foster also cites Schiro v. Farley, 510 U.S. 222, 229 (1994), in which the U.S. Supreme Court declined as a matter of discretion to address the State's argument regarding retroactivity where the State had not raised the argument in its petition for writ of certiorari.

Here unlike the circumstances in Schiro and Godinez, the State essentially sought reconsideration of a non-final order after Thompson clarified and limited Okafor's application. So, even characterizing the State's comments at the first hearing as a concession as to whether Okafor permitted the trial court to deviate from this Court's mandate, the concession was not binding. See, e.g., Landmark Am. Ins. Co. v. Pin-Pon Corp., 267 So.3d 411, 412 (Fla. 4th DCA 2019) (noting stipulations to questions of law are not binding); Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002) (noting court was not bound by State's mistaken concession regarding the applicability of case law to the issue before ...