Long v. State, SC19-726

271 So.3d 938

Robert Joe LONG, Appellant,

v.STATE of Florida, Appellee.

No. SC19-726

Supreme Court of Florida.

May 17, 2019

Robert A. Norgard of Norgard, Norgard & Chastang, Bartow, Florida, for Appellant

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

PER CURIAM.

Robert Joe Long a/k/a Bobby Joe Long, a prisoner under sentence of death and an active death warrant, appeals the postconviction court's order denying his third successive motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction, see art. V, § 3(b)(1), Fla. Const., and affirm for the reasons below.

BACKGROUND

Long pleaded guilty to the 1984 first-degree murder, kidnapping, and sexual battery of Michelle Simms and was thereafter sentenced to death for Simms's murder in accordance with his jury's unanimous recommendation. See Long v. State , 529 So.2d 286 (Fla. 1988) ; Long v. State , 610 So.2d 1268 (Fla. 1992).¹ Long's sentence of death for Simms's murder has been final since 1993. See Long v. Florida , 510 U.S. 832, 114 S.Ct. 104, 126 L.Ed.2d 70 (1993). In the decades since, Long has unsuccessfully challenged his convictions and death sentence numerous times. See Long v. State , 118 So.3d 798 (Fla. 2013) (affirming denial of initial rule 3.851 motion); Long v. State , 183 So.3d 342 (Fla. 2016) (affirming denial of first successive rule 3.851 motion); Long v. State , 235 So.3d 293 (Fla. 2018) (affirming denial of second successive rule 3.851 motion).²

Long filed his current challenge to his death sentence—his third successive under rule 3.851 —after the governor signed his death warrant on April 23, 2019. After holding an evidentiary hearing on Long's as-applied challenge to Florida's lethal injection protocol, the postconviction court denied his motion. This appeal followed.

ANALYSIS

In this appeal, Long argues that the postconviction court erred (1) in summarily denying his claim that scientific advances in the assessment, quantification, and consequences of brain injury and brain damage since his 1989 sentencing constitute newly discovered evidence requiring a new sentencing proceeding; (2) in denying his as-applied challenge to Florida's lethal injection protocol and in summarily denying his challenges to Florida's use of a three-drug protocol and use of etomidate; (3) in summarily denying his claim that adding execution to the length of time he has spent on death row violates the Eighth and Fourteenth Amendments and binding norms of international law; (4) in denying him Hurst³ relief; (5) in refusing to order the Florida Department of Corrections (DOC) to comply with his requests related to defense execution witnesses; (6) in denying his claim that the Eighth Amendment categorically exempts him from execution because he suffers from severe traumatic brain injury and severe mental illness; and (7) in denying certain of his post-warrant public records requests. None of these claims warrants relief.

(1) Newly Discovered Evidence

Long first argues that scientific advances in the assessment, quantification, and consequences of brain injury and brain damage since his 1989 sentencing constitute newly discovered evidence entitling him to a new penalty phase and that the postconviction court erred in failing to grant an evidentiary hearing on this claim. We disagree.

We have explained the standard of review applicable to the summary denial of a postconviction motion as follows:

A postconviction motion may be summarily denied only "[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief." Fla. R. Crim. P. 3.851(f)(5)(B), (h)(6) ; see also Parker v. State , 904 So.2d 370, 376 (Fla. 2005) ("As a general proposition, a defendant is entitled to an evidentiary hearing on any well-pled allegations in a motion for postconviction relief unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient."). "Because a postconviction court's decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review."

Marek v. State , 8 So.3d 1123, 1127 (Fla. 2009). In reviewing a trial court's summary denial, "this Court must accept the defendant's allegations as true to the extent that they are not conclusively refuted by the record." Tompkins v. State , 994 So.2d 1072, 1081 (Fla. 2008). However, mere conclusory allegations do not warrant an evidentiary hearing. Anderson v. State , 220 So.3d 1133, 1142 (Fla. 2017) ; see also LeCroy v. Dugger , 727 So.2d 236, 238 (Fla. 1998) ("[S]peculation and conjecture about what ... letters and notes and opinions and cryptic references may suggest is not sufficient to warrant an evidentiary hearing, much less relief.") (quoting trial court's order).

Jimenez v. State , 265 So.3d 462, 480-81 (Fla.), cert. denied , ––– U.S. ––––, 139 S.Ct. 659, 202 L.Ed.2d 509 (2018).⁴

To establish that he is entitled to a new penalty phase based on newly discovered evidence, Long must make the two-prong showing required by Jones v. State , 709 So.2d 512 (Fla. 1998), namely:

First, in order to be considered newly discovered, 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." Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

Id. at 521 (citation omitted) (quoting Torres-Arboleda v. Dugger , 636 So.2d 1321, 1324-25 (Fla. 1994) ). Because Long is seeking to vacate his death sentence, not his conviction, Jones 's 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) (quoting Swafford v. State , 125 So.3d 760, 767 (Fla. 2013) ).

The record conclusively shows that Long cannot satisfy either prong of the Jones test. First, the evidence is not newly discovered. Rather, as the postconviction court found, "[Long] has waited more than 30 years and until after the issuance of his death warrant to first raise this claim," even though he "has clearly been aware of his TBI [traumatic brain injury ] and temporal lobe epilepsy diagnoses since the [1989] penalty phase" and has filed an initial and two successive postconviction motions since then. See Long , 610 So.2d at 1271-72 (summarizing the mental health evidence presented during Long's penalty phase). Although the field of neuroscience is constantly evolving, and although Long relied on two tests that became available within the last year—NeuroQuant imaging and a new test for chronic traumatic encephalopathy (CTE)—to support his request for an evidentiary hearing, the attachments to his motion reference research and studies much older than one year prior to the date that Long filed his motion, and none of them state that the NeuroQuant imaging or new CTE test are the advances critical to Long's claim. Accordingly, the record in this case conclusively shows that, with the exercise of due diligence, Long could have pursued this claim years before his death warrant was signed. Cf. Branch v. State , 236 So.3d 981, 986 (Fla. 2018) (explaining that "scientific research with respect to brain development does not qualify as newly discovered evidence" if based on previously available data); Morton v. State , 995 So.2d 233, 245-46 (Fla. 2008) ("Although this 2004 brain mapping study had not yet been published at the time of [the defendant's] trials, [the defendant] or his counsel could have discovered similar research at that time that stated that the human brain was not fully developed until early adulthood."); Schwab v. State , 969 So.2d 318, 325-26 (Fla. 2007) (stating that "this Court has not recognized ‘new opinions’ or ‘new research studies’ as newly discovered evidence" in holding that "recent scientific articles regarding brain anatomy and sexual offense" were not newly discovered evidence).

However, even if Long could meet the first prong of Jones , he could not meet the second. As the postconviction court found, Long "already presented testimony and evidence regarding [his] TBI and temporal lobe epilepsy at his [1989] penalty phase," and Long's "jury still unanimously recommended that the death penalty be imposed." In light of this testimony, the sentencing court found that Long had established the two statutory mental health mitigators. Long , 610 So.2d at 1272 (finding, as mitigating circumstances, "(1) that Long's capacity to appreciate the criminality of his conduct or conform his actions to the law was substantially impaired, and (2) that the capital felony was committed while Long was under the influence of extreme mental or emotional disturbance"). However, the sentencing court relied on evidence of the "deliberate steps [Long] took to accomplish his nefarious scheme of seeking out, abducting, sexually battering and then killing [the victim],"—plus evidence that Long told the State's mental health expert that he "would not have committed this crime" had he "encountered a police officer prior to the murder of [the] victim"—to conclude that Long did not "lack[ ] the cognitive volitional and moral capacity to act with the degree of culpability associated with the imposition of a sentence of death." Id. at 1273. None of the scientific advances at issue establishes that traumatic brain injury or temporal lobe epilepsy is the sole cause of offenses such as those that Long committed against the victim in this case; nor do they negate the sentencing court's finding that the evidence is inconsistent with Long's claim...