IN THE SUPREME COURT OF FLORIDA

GREGORY MILLS,

Petitioner,

v. CASE NO. SC01-338

MICHAEL W. MOORE, Secretary,

Florida Department of Corrections,

Respondent.

/

RESPONSE TO CONSOLIDATED PETITION FOR WRIT OF HABEAS CORPUS,

PETITION FOR EXTRAORDINARY RELIEF, AND

MOTION TO REOPEN DIRECT APPEAL

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

KENNETH S. NUNNELLEY

ASSISTANT ATTORNEY GENERAL

Fla. Bar #0998818

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238-4990

Fax # (904) 226-0457

COUNSEL FOR RESPONDENT

i

 

TABLE OF CONTENTS

 

TABLE OF CONTENTS .......................i

TABLE OF AUTHORITIES .................... ii

RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS ........1

RESPONSE TO JURISDICTIONAL STATEMENT .............8

THE PETITION IS UNTIMELY ...................8

RESPONSE TO GROUNDS FOR RELIEF ............... 10

I. THE "APPRENDI" CLAIM .................. 10

II. THE TEDDER CLAIM .................... 15

CONCLUSION ......................... 18

CERTIFICATE OF SERVICE ................... 19

CERTIFICATE OF COMPLIANCE .................. 19

ii

 

TABLE OF AUTHORITIES

CASES

 

Almendarez-Torres v. United States,

523 U.S. 224 (1998) .................... 13

 

Amendment to Florida Rules of Appellate Procedure,

685 So.2d 773 (Fla. 1996) ..................9

 

Anderson v. Singletary,

688 So.2d 462 (Fla. 4th DCA 1997) ..............9

 

Apprendi v. New Jersey,

120 S. Ct. 2348 (2000) ......... 10, 11, 12, 13, 14, 15

 

Booth v. Maryland,

482 U.S. 496 (1987) .....................7

 

Clemons v. Mississippi,

494 U.S. 738 (1990) .................... 12

 

Coker v. Georgia,

433 U.S. 584 (1977) .................... 15

 

Costello v. United States,

365 U.S. 265 (1961) .....................9

 

Elledge v. State,

346 So.2d 998 (Fla.1977) ...................7

 

Francis v. Dugger,

908 F.2d 696 (11th Cir. 1990) ............... 17

 

Gideon v. Wainwright,

372 U.S. 335 (1963) .................... 15

 

Harris v. Alabama,

513 U.S. 504 (1995). .................... 12

 

Hildwin v. Florida,

490 U.S. 638 (1989) .................... 14

 

In re Joshua,

224 F.3d 1281 (11th Cir. 2000) ............... 15

iii

 

Jones v. Florida,

 

2001 WL 166496 (Fla. 2 DCA 2001) .............. 15

 

Keen v. State,

 

2000 WL 1424523 (Fla., Sept. 28, 2000) ......... 16, 17

 

McCray v. State,

699 So.2d 1366 (Fla. 1997) ................ 9,10

 

Mills v. Dugger,

559 So.2d 578 (Fla. 1990). ...............4, 7, 8

 

Mills v. Florida,

475 U.S. 1031 (1986) .....................3

 

Mills v. Moore,

528 U.S. 1082 (2000) ................... 7, 8

 

Mills v. Singletary,

161 F.3d 1273 (11th Cir. 1998). .............7, 18

 

Mills v. Singletary,

 

No. 92-1184-CIV-ORL-19 (M.D.Fla. Aug. 19, 1996) .......5

 

Mills v. Singletary,

606 So.2d 622 (Fla. 1992) ................ 5, 8

 

Mills v. State,

476 So.2d 172 (Fla. 1985) ......... 2, 3, 7, 8, 16, 17

 

Mills v. State,

603 So.2d 482 (Fla. 1992) ..................4

 

Parker v. Dugger,

498 U.S. 308 (1991) .....................5

 

Proffitt v. Florida,

428 U.S. 242 (1976). ................ 11, 12, 14

 

Remp v. State,

248 So.2d 677 (Fla. 1st DCA 1970) ..............9

 

San Martin v. State,

717 So.2d 462 (Fla. 1998) ................. 17

iv

 

Shere v. State,

742 So.2d 215 (Fla. 1999) ................. 11

 

Smith v. Wainwright,

425 So.2d 618 (Fla. 2d DCA 1982) ...............9

 

Spaziano v. Florida,

468 U.S. 447 (1984) .................... 14

 

State v. Washington,

453 So.2d 389 (Fla. 1984) ................. 15

 

State v. Weeks,

 

2000 WL 1694002 (Del. Nov. 9, 2000) ............. 14

 

Strickland v. Washington,

466 U.S. 668 (1984) .....................4

 

Tedder v. State,

322 So.2d 908 (Fla. 1975). ..........3, 11, 15, 16, 17

 

Walton v. Arizona,

497 U.S. 639 (1990) .................. 12, 13

 

Witherspoon v. Illinois,

391 U.S. 510 (1968) .................... 12

 

Xiques v. Dugger,

571 So.2d 3 (Fla. 2d DCA 1990) ................9

 

STATUTES

 

28 U.S.C. § 2254 ........................5

 

Fla. Stat. § 921.141 (1979) ...............2, 3, 6

 

Florida Rule of Appellate Procedure 9.140(j)(3)(B) .......9

 

Florida Rule of Criminal Procedure 3.850 ............3

1

 

RESPONSE TO PETITION FOR HABEAS CORPUS

 

The procedural history set out on pages 1-3 of Mills’

petition is argumentative, incomplete, and is denied. The State

relies on the following statement of the facts of the case and

procedural history.

On direct appeal, the Florida Supreme Court summarized the

facts of this case in the following way:

The evidence at the trial showed that Gregory Mills

and his accomplice Vincent Ashley broke into the home

of James and Margaret Wright in Sanford between two

and three o'clock in the morning, intending to find

something to steal. When James Wright woke up and left

his bedroom to investigate, Mills shot him with a

shotgun. Margaret Wright awakened in time to see one

of the intruders run across her front yard to a

bicycle lying under a tree. Mr. Wright died from loss

of blood caused by multiple shotgun pellet wounds.

Ashley, seen riding his bicycle a few blocks from the

Wright home, was stopped and detained by an officer on

his way to the crime scene. Another officer saw a

bicycle at the entrance to a nearby hospital emergency

room, found Mills inside, and arrested him. At police

headquarters officers questioned both men and

conducted gunshot residue tests on them. Then they

were released.

At trial Mills' roommate [Sylvester Davis] testified

that he and his girlfriend [Viola May Stafford] hid

some shotgun shells that Mills had given them, that

Mills had been carrying a firearm when he left the

house the night of the murder, and that Mills had said

he had shot someone. He also stated that Mills told

him that a city worker had found a shotgun later shown

to have fired an expended shell found near the

victim's home.

After the murder, Ashley was arrested on some

unrelated charges. He then learned that Mills had told

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his roommate and his girlfriend about the murder and

that they in turn had told the police, so he decided

to tell the police about the incident. Ashley

testified that Mills entered the house (through a

window) first, that he, Ashley, then handed the

shotgun to him, and that he then entered the house

himself. Ashley saw the man in the house had awakened

and was getting up, so he exited the house and ran to

his bicycle. Then he heard the shot and ran back to

the house, where he saw Mills. They both departed the

scene on their bicycles, taking separate routes.

Ashley was granted immunity from prosecution for these

crimes and also for several unrelated charges pending

against him at the time he decided to confess and

cooperate.

Mills testified in his defense. He said that he

arrived home from work on May 24 at around 9:30 p.m.

Then he went out, first to one bar, then another,

playing pool and socializing. He went home afterwards

but could not sleep, he said, because of a toothache

and a headache, so he went to the hospital emergency

room. There police officers took him into custody.

 

Mills v. State, 476 So.2d 172, 174-75 (Fla. 1985), cert. denied,

475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986).

The Eleventh Circuit Court of Appeals summarized the

procedural history of Mills’ case in the following way:

The State of Florida charged Mills through an

indictment dated June 29, 1979, with four counts

relating to the May 25, 1979 shooting of Wright: (1)

first degree felony murder (Count I); (2) burglary

(Count II); (3) aggravated battery (Count III); and

(4) possessing a firearm despite a prior felony

conviction (Count IV). On August 16, 1979, a jury

trial commenced. After the trial judge denied Mills's

motion for judgment of acquittal, the jury returned

verdicts of guilty on the charges of first degree

felony murder, burglary and aggravated battery. (FN2)

At the penalty phase of the proceedings on the first

degree murder conviction, the jury recommended that

3

 

Mills receive a life sentence. On April 18, 1980, the

trial judge overrode the jury's recommendation after

finding that the aggravating factors surrounding

Mills's crime outweighed the absence of statutory

mitigating factors pursuant to Florida Statute §

921.141, and sentenced Mills to death. (FN3)

On direct appeal to the Florida Supreme Court, Mills

raised the following issues: (1) whether sufficient

evidence supported his felony murder conviction; (2)

whether he received ineffective assistance of counsel

because of a conflict of interest in the public

defender's office; (3) whether the trial court

violated his confrontation rights in abridging

cross-examination of Ashley; (4) whether the trial

court erred in admitting gunshot residue tests; (5)

whether his conviction for aggravated battery was

improper; (6) whether his convictions for both felony

murder and burglary were improper; and (7) whether the

trial judge's override of the jury's recommendation

was improper. See Mills, 476 So.2d at 175, 179.

The Florida Supreme Court affirmed Mills's convictions

and sentences for felony murder and burglary, but

vacated the sentence and conviction for aggravated

battery. See Mills, 476 So.2d at 175, 177. The

Florida Supreme Court held that Mills's contentions

concerning ineffective assistance and gunshot residue

tests were meritless, and that the trial court did not

abridge Mills's right to confront the witnesses

against him. See Mills, 476 So.2d at 175-77. The

Florida Supreme Court then analyzed the trial judge's

override of the jury's recommendation at Mills's

sentencing. It found that the trial judge had found

the existence of no mitigating factors and the

following six aggravating factors pursuant to Florida

Statute § 921.141: (1) under sentence of imprisonment;

(2) previous conviction of violent felony; (3) great

risk of death to many persons; (4) felony murder; (5)

pecuniary gain; and (6) heinous, atrocious or cruel.

The Florida Supreme Court held that the following

aggravating factors were improper: (1) great risk of

death to many persons; (2) pecuniary gain; and (3)

heinous, atrocious or cruel. It affirmed the remainder

of the aggravating factors, as well as the trial

4

 

court's finding that no mitigating factors existed.

 

See Mills, 476 So.2d at 177-79. The Florida Supreme

Court affirmed the trial judge's imposition of the

death sentence, holding that the override complied

with Tedder v. State, 322 So.2d 908 (Fla. 1975). (FN4)

The United States Supreme Court denied Mills's

petition for writ of certiorari. Mills v. Florida, 475

U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986).

The Governor of Florida signed Mills's death warrant,

and Mills thereafter moved for post-conviction relief

pursuant to Florida Rule of Criminal Procedure 3.850.

The trial court denied all requested relief. Mills

appealed the trial court's denial to the Florida

Supreme Court, petitioned for a writ of habeas corpus

and requested a stay of execution. The Florida Supreme

Court denied Mills's petition for habeas corpus, but

reversed the trial court's summary denial of his 3.850

motion and directed the trial court to hold an

evidentiary hearing on Mills's 3.850 claim of

ineffective assistance relating to his lawyer's

failure to develop and present evidence that would

tend to establish statutory or nonstatutory mental

mitigating circumstances. See Mills v. Dugger, 559

So.2d 578, 579 (Fla. 1990). (FN5)

The trial court held an evidentiary hearing pursuant

to the Florida Supreme Court's remand. Mills called

numerous witnesses at the evidentiary hearing,

including: his trial attorneys, one of whom testified

that "with the benefit of hindsight" she would have

looked at mental health evidence; two psychologists

who testified that Mills had some brain damage and

satisfied the criteria for two statutory mental

mitigators; and his sister and one of his brothers,

who recounted Mills's difficult upbringing. The trial

court held that Mills failed to show that his lawyer's

performance was deficient under Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

The Florida Supreme Court affirmed, holding that

Mills's lawyer's admission that "with the benefit of

hindsight" he would have investigated mental health

evidence "illustrates the Supreme Court's concern [in

5

 

ineffective assistance claims] 'that every effort be

made to eliminate the distorting effects of

hindsight.'" Mills v. State, 603 So.2d 482, 485 (Fla.

1992) (quoting Strickland, 466 U.S. at 689, 104 S.Ct.

2052). The Florida Supreme Court found that Mills also

failed to satisfy the prejudice prong of Strickland,

holding that "Mills has not demonstrated a reasonable

probability that the currently tendered evidence would

have produced a reversal of the judge's override of

the jury's recommendation." Mills, 603 So.2d at 486.

Mills then filed a petition for extraordinary relief

and for writ of habeas corpus with the Florida Supreme

Court. He raised two issues in the petition: (1) the

Florida Supreme Court performed an inadequate harmless

error analysis in affirming the death sentence; and

(2) the felony-murder aggravator is an

unconstitutional automatic aggravating circumstance in

felony murders. The Florida Supreme Court found both

issues to be procedurally barred. Mills v. Singletary,

606 So.2d 622, 623 (Fla. 1992).

After exhausting state remedies, Mills filed a

petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 in the United States District Court for

the Middle District of Florida. He claimed that: (1)

he received ineffective assistance of counsel at the

penalty and sentencing phase; (2) the trial court and

the Florida Supreme Court failed to evaluate

adequately mitigation evidence in contravention of

 

Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112

L.Ed.2d 812 (1991); (3) the Florida Supreme Court

erred in upholding the jury override despite its

invalidating three aggravating factors; (4) his

sentence rested upon an unconstitutional automatic

aggravating factor (felony murder); (5) the jury

override resulted in an arbitrary, capricious and

unreliably-imposed death sentence; (6) the trial court

violated his confrontation rights when it precluded

certain impeachment and cross-examination of witness

Ashley; (7) he received ineffective assistance of

counsel because of a conflict of interest in the

public defender's office; (8) the trial judge

erroneously considered nonstatutory aggravating

factors in overriding the jury's recommendation of a

6

 

life sentence, and his lawyer rendered ineffective

assistance in failing to object; (9) the trial judge

erred in failing to find mitigating factors; (10) the

trial court erred in admitting testimony and evidence

of gunshot residue tests; (11) he received ineffective

assistance of counsel at the guilt phase of his trial;

(12) the trial court erred in admitting as rebuttal

evidence results from the gunshot residue test; (13)

the government engaged in prosecutorial misconduct at

the sentencing hearing; and (14) the failure to

transcribe the bench conferences resulted in trial

error and ineffective assistance of counsel. The

district court found that all of Mills's claims were

either meritless or procedurally barred, and therefore

denied Mills's section 2254 petition in a 51-page

order. See Mills v. Singletary, No. 92-1184-CIV-ORL-19

(M.D.Fla. Aug. 19, 1996).

FN2. Florida later filed a nolle prosequi as

to Count IV.

FN3. The trial court found that the

following statutory aggravating factors

supported Mills's death sentence: (1) under

sentence of imprisonment when he committed

the murder; (2) previously convicted of a

felony involving the use or threat of

violence; (3) knowingly creating a great

risk of death to many persons; (4) murder

committed while Mills was engaged in the

commission of or an attempt to commit or

flight after committing the robberies; (5)

pecuniary gain; (6) heinous, atrocious or

cruel. The trial court additionally found

that the following statutory mitigating

factors were not present: (1) no

significant history of prior criminal

activity; (2) murder committed while Mills

was under the influence of extreme mental or

emotional disturbance; (3) the victims were

participants or consented to Mills's acts or

conduct; (4) Mills was an accomplice in the

murder that another committed, or Mills's

participation in the murder was minor; (5)

Mills acted under extreme duress or under

7

 

the substantial domination of another; (6)

Mills's capacity to appreciate the

criminality of his conduct or to conform his

conduct to the requirements of the law was

substantially impaired; (7) Mills's age at

the time of the crime. See Fla. Stat. §

921.141 (1979). The trial court also

sentenced Mills to ten years of imprisonment

on Count II (burglary) and five years of

imprisonment on Count III (aggravated

battery), with the sentences running

concurrently.

FN4. Specifically, the Florida Supreme Court

held that

the facts suggesting a sentence of death are

so clear and convincing that virtually no

reasonable person could differ. There are

three valid statutory aggravating

circumstances, and the trial judge has found

that there are no valid mitigating

circumstances. The purported mitigating

circumstances claimed by Mills, but not

found by the trial judge, are not sufficient

to outweigh the aggravating circumstances

nor do they establish a reasonable basis for

the jury's recommendation.

 

Mills, 476 So.2d at 179 (construing Tedder,

 

322 So.2d at 910).

FN5. Mills included seven claims in his

petition for writ of habeas corpus: (1) the

Florida Supreme Court decided wrongly on

appeal the issue of Mills not being allowed

to impeach his codefendant; (2) the trial

judge's override of the jury's

recommendation was improper; (3) appellate

counsel was ineffective because Mills should

have been resentenced pursuant to Elledge v.

State, 346 So.2d 998 (Fla.1977); (4) the

trial court erred in finding an automatic

aggravating factor (felony murder); (5) the

1 The United States Supreme Court denied review on January

10, 2000. The habeas petition now before this Court is dated

February 12, 2001, and is the first action in this case since

the denial of certiorari.

 

8

 

trial court erred in allowing gunshot

residue test evidence; (6) the trial court

impermissibly shifted to Mills the burden of

proving life to be the proper penalty; and

(7) consideration of victim impact evidence

violated Booth v. Maryland, 482 U.S. 496,

107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The

Florida Supreme Court held that "Mills

raised most of these issues on direct appeal

or in his 3.850 motion; others should have

been raised, if at all, on appeal.... Claims

1, 2, and 4 through 7 are ... procedurally

barred." Mills, 559 So.2d at 579 (citations

omitted). The Florida Supreme Court also

held that Mills's lawyer did not render

ineffective assistance on appeal. See Mills,

559 So.2d at 579.

 

Mills v. Singletary, 161 F.3d 1273, 1278-80 (11th Cir. 1998).

(emphasis added). The Eleventh Circuit Court of Appeals affirmed

the District Court’s denial of habeas corpus relief. Mills v.

Singletary, supra. The United States Supreme Court denied

certiorari review. Mills v. Moore, 528 U.S. 1082 (2000).1

 

RESPONSE TO JURISDICTIONAL STATEMENT

 

On page 4 of the petition, Mills sets out a jurisdictional

statement in which he asserts that this Court has jurisdiction

to "reopen" his "previous habeas and appeal proceedings".

Respondent agrees that this is a habeas petition, albeit a

successive one. Respondent does not concede that the petition is

9

 

properly filed.

 

THE PETITION IS UNTIMELY

 

Mills is before this Court seeking habeas corpus relief more

than 15 yeas after his conviction and sentence of death became

final for all purposes. Mills v. State, 476 So.2d 172 (Fla.

1985), cert. denied, 475 U.S. 1031 (1986). Mills’ first state

habeas corpus petition was denied on March 1, 1990. Mills v.

Dugger, 559 So.2d 578 (Fla. 1990). Mills filed a second state

habeas corpus petition which was denied, on procedural bar

grounds, on October 22, 1992. Mills v. Singletary, 606 So.2d 622

(Fla. 1992). The petition before this Court is Mills’ third

habeas petition, and it was filed more than one year after the

United States Supreme Court denied Mills’ petition for

certiorari to the Eleventh Circuit Court of Appeals, which was

the last action of any sort taken in this case. Mills v. Moore,

 

120 S.Ct. 804 (2000).

This delay is unconscionable, dilatory, and, in fact, the

claims contained in the present petition are similar to the

claims contained in Mills’ second habeas petition, which was

denied on procedural grounds. These claims are repititious of

the claims already presented to this Court, and, consequently,

should be denied as vexatious and abusive.

 

Florida Rule of Appellate Procedure 9.140(j)(3)(B) provides

10

 

that:

A petition alleging ineffective assistance of

appellate counsel shall not be filed more than two

years after the conviction becomes final on direct

review unless it alleges under oath with a specific

factual basis that the petitioner was affirmatively

misled about the results of the appeal by counsel.

That rule took effect on January 1, 1997, and is clearly

applicable to Mills’ case. See, Amendment to Florida Rules of

Appellate Procedure, 685 So.2d 773 (Fla. 1996). Further, in

 

McCray v. State, this Court stated:

Generally, laches is a doctrine asserted as a defense,

which "requires proof of (1) lack of diligence by the

party against whom the defense is asserted, and (2)

prejudice to the party asserting the defense."

 

Costello v. United States, 365 U.S. 265, 282, 81 S.Ct.

534, 543, 5 L.Ed.2d 551 (1961). This doctrine is

properly applied to habeas corpus petitions "when the

delay in bringing a claim for collateral relief has

been unreasonable and the state has been prejudiced in

responding to the claim." Anderson v. Singletary, 688

So.2d 462, 463 (Fla. 4th DCA 1997). See also Xiques v.

Dugger, 571 So.2d 3 (Fla. 2d DCA 1990); Smith v.

Wainwright, 425 So.2d 618 (Fla. 2d DCA 1982); Remp v.

State, 248 So.2d 677 (Fla. 1st DCA 1970). Moreover,

the doctrine of laches has been applied to bar a

collateral relief proceeding when, from the face of

the petition, it is obvious that the state has been

manifestly prejudiced and no reason for an

extraordinary delay has been provided. Anderson

 

(petition filed fifteen years after appeal was decided

and saying nothing to justify delay barred by laches

where trial transcripts and appellate records had been

destroyed). This Court has implemented time

restrictions in the filing of collateral relief

petitions because inmates must not be allowed to

engage in inordinate delays in bringing their claims

for relief before the courts without justification and

because convictions must eventually become final. As

11

 

time goes by, records are destroyed, essential

evidence may become tainted or disappear, memories of

witnesses fade, and witnesses may die or be otherwise

unavailable.

This case represents a perfect example of why the

doctrine of laches should be applied to bar some

collateral claims for relief. McCray has waited

fifteen years to bring this proceeding and has made no

representation as to the reason for the delay.

Moreover, his claim is based on a brief reference to

a collateral crime in his trial, which occurred

seventeen years ago. This claim could and should have

been raised many years ago. The unwarranted filings of

such delayed claims unnecessarily clog the court

dockets and represent an abuse of the judicial

process.

 

McCray v. State, 699 So.2d 1366, 1368 (Fla. 1997). While this

habeas petition does not specifically allege ineffective

assistance of appellate counsel, it is nonetheless untimely and

abusive. The claims contained in the petition have been

repeatedly litigated by Mills, and the "basis" set out in this

petition is no more than an attempt to prevent this case from

becoming final by attempting to force a square peg into a round

hole in an effort to maintain a proceeding, however devoid of

legal support it may be. That is an abuse of process, and the

petition should be dismissed as untimely.

 

RESPONSE TO GROUNDS FOR RELIEF

 

I. THE "APPRENDI" CLAIM

On pages 6-20 of the petition, Mills argues that Apprendi

v. New Jersey, 120 S. Ct. 2348 (2000), stands for the

12

 

proposition that "the jury must determine death eligibility".

 

Petition, at 12. Because that is so, or so the argument goes,

Florida’s death sentencing scheme which allows the sentencing

judge to reject the jury’s recommended sentence must therefore

be invalid. This claim is not a basis for relief for the

following independently adequate reasons.

The first reason that the Apprendi-based claim is not

available to Mills is that it is not preserved. Despite Mills’

claim to the contrary, the due process/right to jury trial basis

of the Apprendi decision was not raised on direct appeal -- his

primary issue in that appeal was that the rejection of the

jury’s advisory was erroneous under Tedder v. State. While it is

true that Mills used the phrase "right to trial by jury and due

process" in a footnote to his Initial Brief, it is also true

that that is insufficient to preserve, or even present, the

constitutional claim. See, e.g., Shere v. State, 742 So.2d 215,

216-18 n. 6 (Fla. 1999). The claim now made by Mills, which is

that jury sentencing is constitutionally required in a death

penalty case, was not presented to this Court on direct appeal,

and, consequently, is not preserved for any purpose. This claim

is procedurally barred.

Further, it has never been suggested that a death sentence

can only be imposed by a jury. That was a central issue in

13

 

Proffitt v. Florida, and the United States Supreme Court

rejected such a claim, stating:

This Court has pointed out that jury sentencing in a

capital case can perform an important societal

function, Witherspoon v. Illinois, 391 U.S. 510, 519

n. 15, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968), but

it has never suggested that jury sentencing is

constitutionally required. And it would appear that

judicial sentencing should lead, if anything, to even

greater consistency in the imposition at the trial

court level of capital punishment, since a trial judge

is more experienced in sentencing than a jury, and

therefore is better able to impose sentences similar

to those imposed in analogous cases.

 

Proffitt v. Florida, 428 U.S. 242, 252 (1976). (emphasis added).

Subsequently, the same claim was rejected in Walton v. Arizona,

 

497 U.S. 639 (1990), and Clemons v. Mississippi, 494 U.S. 738

(1990), where the United States Supreme Court specifically

rejected any argument that the Constitution requires that a jury

impose a sentence of death or make the findings that are a

prerequisite to such a sentence. Likewise, in Harris v.

Alabama, the United States Supreme Court stated:

 

The Constitution permits the trial judge, acting

alone, to impose a capital sentence. It is thus not

offended when a State further requires the sentencing

judge to consider a jury's recommendation and trusts

the judge to give it the proper weight.

 

Harris v. Alabama, 513 U.S. 504, 515 (1995). (emphasis added).

In Apprendi, the United States Supreme Court held that any

fact, other than a prior conviction, that increases the penalty

2 Apprendi was concerned with the New Jersey "hate crime

enhancement" provisions, which provided for increased penalties

for specified "hate crimes" -- an enhanced sentence could be

imposed if the sentencing judge found, by a preponderance of the

evidence, that the purpose of the crime was to intimidate based

upon, inter alia, race. Apprendi v. New Jersey, 120 S.Ct. at

2364.

 

14

 

for a crime beyond the statutory maximum must be submitted to a

jury and proven beyond a reasonable doubt. Apprendi v. New

Jersey, 120 S.Ct. at 2362-63. 2 That holding is inapplicable to

capital sentencing, as the Apprendi Court expressly stated:

Finally, this Court has previously considered and

rejected the argument that the principles guiding our

decision today render invalid state capital sentencing

schemes requiring judges, after a jury verdict holding

a defendant guilty of a capital crime, to find

specific aggravating factors before imposing a

sentence of death. Walton v. Arizona, 497 U.S. 639,

647-649, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); id.,

at 709-714, 110 S.Ct. 3047 (STEVENS, J., dissenting).

For reasons we have explained, the capital cases are

not controlling:

"Neither the cases cited, nor any other

case, permits a judge to determine the

existence of a factor which makes a crime a

capital offense. What the cited cases hold

is that, once a jury has found the defendant

guilty of all the elements of an offense

which carries as its maximum penalty the

sentence of death, it may be left to the

judge to decide whether that maximum

penalty, rather than a lesser one, ought to

be imposed.... The person who is charged

with actions that expose him to the death

penalty has an absolute entitlement to jury

trial on all the elements of the charge."

 

Almendarez-Torres, 523 U.S., at 257, n. 2,

118 S.Ct. 1219 (SCALIA, J., dissenting)

3 In effect, the United States Supreme Court held that "death

is different", as Justice Thomas suggested in his concurring

opinion. Apprendi v. New Jersey, 120 S.Ct. at 2380.

 

4 Walton noted that constitutional challenges to Florida’s

sentencing scheme have been repeatedly rejected, noting Proffitt

v. Florida, supra, Hildwin v. Florida, 490 U.S. 638 (1989), and

 

Spaziano v. Florida, 468 U.S. 447 (1984).

 

15

 

(emphasis deleted).

 

Apprendi v. New Jersey, 120 S.Ct. at 2366. (emphasis added).3

 

Mills’ argument is simply not supported by the Apprendi

 

decision, and, in fact, is squarely foreclosed by it. Death is

the maximum penalty for first-degree murder in the State of

Florida, and, once the defendant has been convicted of an

offense for which death is a possible penalty, it is

constitutionally permissible to remove the jury from the

sentencing equation. See, e.g., Apprendi, supra; Walton, supra;

Proffitt, supra.4

 

To the extent that further discussion of this claim is

necessary, the Delaware Supreme Court has rejected an Apprendi-based

challenge to that state’s capital sentencing statute. The

Delaware Court expressly held that it was "not persuaded that

 

Apprendi’s reach extends to state capital sentencing schemes in

which judges are required to find specific aggravating factors

before imposing a sentence of death." State v. Weeks, 2000 WL

1694002 (Del. Nov. 9, 2000). The aggravating factors contained

16

 

in the Delaware statute do not constitute additional elements of

capital murder, and the finding of such aggravators did not

"expose the defendant to a greater punishment than that

authorized by the jury’s guilty verdict." Apprendi, supra. In

other words, reliance on Apprendi in the capital sentencing

context is an attempt to force a square peg into a round hole.

Because Apprendi has no effect on capital sentencing

(because it expressly does not apply to such proceedings), it is

not a "change in the law". However, to the extent that Mills’

"change in the law" argument deserves elaboration, it is clear

that, even if Apprendi had some effect on capital sentencing, it

would not be available to Mills. As this Court has held:

In Witt, we reiterated our adherence to the very

limited role for post-conviction proceedings even in

death penalty cases. We emphasized that only major

constitutional changes of law which constitute a

development of fundamental significance, such as in

 

Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53

L.Ed.2d 982 (1977), and Gideon v. Wainwright, 372 U.S.

335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may be raised

for the first time under rule 3.850. We held that

evolutionary refinements in the criminal law,

affording new or different standards for admissibility

of evidence, for procedural fairness, for

proportionality review of capital cases and other like

matters do not compel abridgment of the finality of

judgments and are not cognizable under rule 3.850.

 

State v. Washington, 453 So.2d 389, 392 (Fla. 1984). Apprendi is

inapplicable to this case, and, even if that decision did

5 The Eleventh Circuit Court of Appeals has held that

 

Apprendi does not apply to cases on collateral review. In re

Joshua, 224 F.3d 1281 (11th Cir. 2000). The Second District

Court of Appels has followed that rationale. Jones v. Florida,

2001 WL 166496 (Fla. 2 DCA 2001).

 

17

 

somehow apply, it would not provide a basis for relief.5

 

II. THE TEDDER CLAIM

 

On pages 21-47 of the petition, Mills argues, yet again,

that this Court violated Tedder when it affirmed the death

sentence imposed on him following the sentencing court’s

rejection of the jury’s advisory sentence. This claim has been

repeatedly litigated by Mills, and, in its most recent form, is

based on his claim that Keen v. State "conclusively establishes

that the standard announced in [Tedder] was arbitrarily not

applied to Mr. Mills’ case on direct appeal." Petition, at 21.

Mills goes on to argue that the "failure to consistently apply

 

Tedder is a violation of [Federal] due process." Id.

 

On direct review of Mills’ death sentence, this Court held:

Mills contends that the court erred in sentencing him

to death after receiving the jury's recommendation

that he be sentenced to life imprisonment. A jury's

recommendation of life should be accorded great

weight, and should be followed unless the facts

suggesting a sentence of death are so clear and

convincing that virtually no reasonable person could

differ. See Tedder v. State, 322 So.2d 908 (Fla.

1975).

We hold that the trial judge's findings in support of

the sentence of death even without the finding of

18

 

especially heinous, atrocious and cruel, meet the

 

Tedder standard. We find that the facts suggesting a

sentence of death are so clear and convincing that

virtually no reasonable person could differ. There are

three valid statutory aggravating circumstances, and

the trial judge has found that there are no valid

mitigating circumstances. The purported mitigating

circumstances claimed by Mills, but not found by the

trial judge, are not sufficient to outweigh the

aggravating circumstances nor do they establish a

reasonable basis for the jury's recommendation. We

conclude that the imposition of a sentence of death

after a jury recommendation of life was proper in this

case.

 

Mills v. State, 476 So.2d 172, 179 (Fla. 1985). (emphasis

added). The highlighted language from this Court’s direct appeal

affirmance of Mills’ death sentence establishes that, contrary

to Mills’ claims, this Court applied well-settled law in

reaching a decision in this case. In fact, in Keen, this Court

stated the standard for sustaining a death sentence after an

advisory recommendation of life in the following terms:

The appropriate standard in analyzing a jury override

is well-known: "To sustain a jury override, this Court

must conclude that the facts suggesting a sentence of

death are 'so clear and convincing that virtually no

reasonable person could differ.'" San Martin v. State,

717 So.2d 462, 471 (Fla. 1998) (quoting Tedder v.

State, 322 So.2d 908, 910 (Fla. 1975)). "In other

words, we must reverse the override if there is a

reasonable basis in the record to support the jury's

recommendation of life." San Martin, 717 So.2d at 471

(citations omitted).

 

Keen v. State, 2000 WL 1424523 (Fla., Sept. 28, 2000). Keen

 

demonstrates nothing other than the fact that this Court’s

19

 

original decision in this case correctly affirmed Mills’ death

sentence. This claim is procedurally barred.

To the extent that further discussion of this claim is

necessary, Mills advanced this claim unsuccessfully in his

Federal petition for habeas corpus relief. In affirming the

denial of relief, the Eleventh Circuit Court of Appeals held:

The Florida Supreme Court's opinion on direct review

reveals that the Florida courts did not impose Mills's

death sentence in an arbitrary and discriminatory

manner. The court reviewed Mills's sentencing and

invalidated three of the aggravating factors that the

trial court had found. The court also agreed with the

trial court's finding that no mitigating factors

existed and held that "the facts suggesting a sentence

of death are so clear and convincing that virtually no

reasonable person could differ." Mills, 476 So.2d at

179. The Florida Supreme Court complied with the

mandate of Tedder, and, as the district court held,

Mills's case is similar to Francis v. Dugger. See

Francis, 908 F.2d at 704 (holding that override was

not arbitrary and discriminatory where jury's

recommendation of life imprisonment may have been the

product of defense counsel's highly impassioned

closing argument, where defendant had a prior criminal

history and where no valid statutory mitigating

factors and three statutory aggravating factors

existed).

 

Mills v. Singletary, 161 F.3d 1273, 1283 (11th Cir. 1998).

Despite the arguments contained in Mills’ petition, there is no

basis for disturbing a conviction and sentence that became final

more than fifteen years ago. While Mills has attempted to "base"

this petition on recently-decided cases, the true facts are that

those cases have no effect whatsoever on this case, and, in

20

 

fact, are inapplicable to this case. Mills’ efforts to generate

a basis for relief are an abuse of process, and this abusive,

untimely petition should be dismissed in all respects.

 

CONCLUSION

 

Mills’ habeas corpus petition is untimely, and, as such, is

an abuse of process. Moreover, the claims contained in the

petition are not only procedurally barred, but also meritless.

All requested relief should be denied.

21

 

Respectfully submitted,

ROBERT A BUTTERWORTH

ATTORNEY GENERAL

KENNETH S. NUNNELLEY

ASSISTANT ATTORNEY GENERAL

Florida Bar #0998818

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238-4990

Fax (904) 226-0457

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above

Response has been furnished by U.S. Mail to U.S. Mail to Todd G.

Scher, Litigation Director, Capital Collateral Regional Counsel,

101 N.E. 3 rd Avenue, Suite 400, Ft. Lauderdale, FL 33301, on this

day of March, 2001.

Of Counsel

CERTIFICATE OF COMPLIANCE

This response is typed in Courier New 12 Point.

KENNETH S. NUNNELLEY

ASSISTANT ATTORNEY GENERAL