IN THE SUPREME COURT OF FLORIDA

Case No. SC02-58

LINROY BOTTOSON,

Petitioner,

CAPITAL CASE: DEATH

MICHAEL MOORE, WARRANT SIGNED

Secretary, Florida EXECUTION SET FOR

Department of Corrections, FEBRUARY 5, 2002

Respondent.

REPLY TO RESPONSE TO

CONSOLIDATED PETITION FOR WRIT OF HABEAS CORPUS

AND MOTION TO REOPEN 3.850 APPEAL

WILLIAM JENNINGS MARK E. OLIVE

Capital Collateral Regional Counsel Fla. Bar No. 0578533

Middle Region Law Offices of Mark E. Olive, P.A.

PETER J. CANNON 320 West Jefferson Street

Assistant CCRC Tallahassee, Florida 32301

Fla. Bar No. 109710 850-224-0004

ERIC C. PINKARD TIMOTHY P. SCHARDL

Assistant CCRC Fla. Bar No. 0073016

Fla. Bar No. 651443 801 K. Street, 10th Floor

ELIZABETH A. WILLIAMS Sacramento, California 95814

Staff Attorney 916-498-6666

Fla. Bar No. 0967350

Office of the Capital Collateral

Regional Counsel

3801 Corporex Park Drive, Suite 201

Tampa, Florida 33619

813-740-3544

(Facsimile) 813-740-3554

Counsel for Petitioner

I. SUMMARY OF ARGUMENT

Linroy Bottoson was denied due process and equal protection of the law when

four members of this Court arbitrarily declined to conduct de novo review of his

ineffective assistance of counsel claims and relied upon nonexistent "evidence" to

deny his claim under Hitchcock v. Dugger, 481 U.S. 983 (1987). That much is

conceded as Respondent did not present any facts or argument to counter the facts

and the legal analysis in Mr. Bottoson’s equal protection claim. The uncontested

violation of Mr. Bottoson’s right to a fair appeal of his rule 3.850 motion on the same

terms as other similarly situated death-sentenced persons constitutes grounds for

revisiting the claims raised in that appeal. See Dowd v. United States ex rel. Cook,

340 U.S. 206, 209 (1951) ("Under the peculiar circumstances of this case, nothing

short of an actual appellate determination of the merits of the [claims raised by Mr.

Bottoson]– according to the procedure in ordinary cases–would cure the original

denial of equal protection of the law.").

Comparing the merits of Mr. Bottoson’s ineffective-assistance claim to the

recent Supreme Court’s landmark decision in Williams v. Taylor, 529 U.S. 362

(2000), the first case in which the Court granted relief on a performance-based

ineffectiveness claim, and to those cases in which this Court conducted de novo

review of such a claim, shows that Mr. Bottoson is entitled to relief. This too was

conceded as Respondent could not present any facts or argument contesting that the

merits of Mr. Bottoson’s claims are as strong or stronger than those in Williams.

It was appropriate for Mr. Bottoson to bring his claims challenging the ruling of

this Court in a habeas corpus petition brought to this Court because this Court has

said "We are the only court that has the power to change the law of the case

established by this Court." Brunner Enterprises v. Department of Revenue, 452

So.2d 550 (Fla. 1984). Mr. Bottoson’s petition was timely and appropriately brought

under this Court’s cases in which it has, on habeas corpus and rule-3.850 review,

reached the merits of claims arising under recent Supreme Court decisions such as

Williams and Apprendi v. New Jersey, 530 U.S. 466 (2000). See, e.g., Mills v.

Moore, 786 So.2d 532 (Fla. 2001). In each capital post-conviction case raising an

Apprendi claim, including cases in which the petitioner, like Mr. Bottoson raised the

claim in a second habeas corpus petition, this Court denied the claim on the merits.

If this Court is to deny Mr. Bottoson’s claim, it must do so on the merits.

II. ARGUMENTS IN REPLY

A. THE UNCONTESTED DUE PROCESS AND EQUAL PROTECTION VIOLATIONS

THAT OCCURRED DURING THE PREVIOUS APPEAL CONSTITUTE

GROUNDS FOR REVISITING MR. BOTTOSON’S INEFFECTIVE-ASSISTANCE

AND HITCHCOCK V. DUGGER CLAIMS

Section V.A of Mr. Bottoson’s habeas corpus petition set out the elements of

an equal protection violation. Petitioner argued that on appeal from the denial of his

initial Rule 3.850 motion this Court arbitrarily denied him a process of review that was

necessary for him to have access to relief, regardless of how strong his case was. He

showed that in fourteen cases decided by this Court before and after the decision in

his case, this Court conducted independent, plenary review of an ineffective-assistance

claim that had been denied by a trial court, found a constitutional violation, and granted

relief. In eight of the fourteen cases in which this Court did that, the petitioner was

permanently removed from death row. Petitioner also showed that only if this Court

conducts de novo review can a death-sentenced person in his position obtain relief for

a Sixth Amendment violation. Thus, Petitioner showed he was subjected to arbitrary

and disparate treatment that violated his fundamental right to meaningful habeas corpus

review under article 1, section 13 of the Florida Constitution, and that may result in his

arbitrary execution. Respondent did not contest any of these facts.

"It is only in the case of error that prejudicially denied fundamental constitutional

rights that this Court will revisit a matter previously settled by the affirmance of a

conviction or sentence." Kennedy v. Wainwright, 483 So.2d 424, 426 (Fla. 1986).

In light of the State’s decision not to contest the merits of Mr. Bottoson’s claims, he

1 Under this Court’s precedent Respondent cannot honestly say that when

Mr. Bottoson’s ineffective-assistance claim was reviewed, "[t]his Court correctly

applied the prevailing law (Strickland v. Washington, 466 U.S. 668 (1984)) and

affirmed the trial court’s denial of Rule 3.850 relief." Resp. at 9. When this Court

affirmed the trial court’s denial of Mr. Bottoson’s ineffective assistance claim, it

said the "evidence presented below was conflicting. However, there was

competent, substantial evidence to support the judge’s findings and conclusions."

Bottoson v. State, 674 So.2d 621, 625 (Fla. 1996). Only three months after this

Court denied Mr. Bottoson’s claim, it held that under the same law Mr. Bottoson

relied upon, i.e. Strickland, "an ineffective assistance of counsel claim is a mixed

question of law and fact subject to plenary review." Rose v. State, 675 So.2d 567,

571 (Fla. 1996). Decisions of this Court prior to Mr. Bottoson’s 3.850 appeal also

applied de novo review to ineffective-assistance claims, and reversed erroneous

denials of relief. See, e.g., Torres-Arboleda v. State, 636 So.2d 1321 (Fla. 1994);

(continued...)

clearly meets this test.

In its Response, the State did not dispute any of the following: (a) that the

requirements of due process and equal protection apply to Rule 3.850 appeals in this

Court (Allen v. Butterworth, 756 So.2d 52, 54 (Fla. 2000)); (b) that the "Fourteenth

Amendment * * * does require that the state appellate system be free of unreasoned

distinctions," Ross v. Moffitt, 47 U.S. 600, 612 (1974); (c) that for purposes of an

equal protection analysis "[postconviction] review has now become an integral part

of the [Florida death-penalty] system," Griffin v. Illinois, 351 U.S. 12, 18 (1956); (d)

that "[s]tatistics show that a substantial portion of [death sentences] are reversed by

state [postconviction] courts," Griffin, 351 U.S. at 18-19; (e) that this Court’s cases

clearly show that the arbitrary refusal of the majority to conduct de novo review in this

case was an "unreasoned distinction" that foreclosed the possibility of Mr. Bottoson

enforcing in this Court his Sixth Amendment right to effective assistance of counsel. 1

1(...continued)

Heiney v. State, 620 So.2d 171 (Fla. 1993); Garcia v. State, 622 So.2d 1325 (Fla.

1993); Phillips v. State, 608 So.2d 778, 783 (Fla. 1992); Bassett v. State, 541

So.2d 596 (Fla. 1989); Stevens v. State, 552 So.2d 1082 (Fla. 1989); Eutzy v.

State, 536 So.2d 1014 (Fla. 1988); Holmes v. State, 429 So.2d 297 (Fla. 1983).

Decision of this Court’s subsequent to Rose make it even more clear that this Court

did not correctly apply Strickland. See, e.g., Stephens v. State, 748 So.2d 1028,

1032 (Fla. 1999).

Having decided not to contest that Mr. Bottoson’s equal protection rights were

violated, Respondent has waived any merits-based objection to this Court

reconsidering Mr. Bottoson’s claims in order to remedy that violation. See Cannady

v. State, 620 So.2d 165, 170 (Fla. 1993)(state waived right to assert issue as grounds

for remand). "The law is well settled that failure to raise an available issue constitutes

an admission that . . . error occurred." Johnson v. State, 660 So.2d 637, 645 (Fla.

1995)(defendant’s failure to raise issue in appellate brief constituted an admission that

no error occurred); State v. Wells, 539 So.2d 464, 468 n.4 (Fla. 1989)(by failing to

raise issue on appeal state waived issue of defendant’s privacy interest in borrowed

car); Thomas v. State, 599 So.2d 158, 161 n.1 (Fla. 1st DCA 1992)(improper for state

to assert waiver in motion for rehearing of appeal after failing to raise issue in its

answer brief).

It is conceded that this Court did not apply the law in this case the way it did

in other cases. If, as Mr. Bottoson does not doubt, "[i]nherent in the concept of

justice is the fair processing of cases," Nixon v. Singletary, 758 So.2d 618, 626 (Fla.

2000) (Harding, C.J., concurring), it is reasonable to conclude that an essential element

of justice is missing from this case. Comparing the previous, narrowly obtained,

results in this case to this Court’s appointment standards, to Makemson v. Martin

County, 491 So.2d 1109 (Fla. 1986), and White v. Board of County Comm’rs, 537

So.2d 1376 (Fla. 1989), to Rose v. State, 675 So.2d 567 (Fla. 1996) and Stephens v.

State, 748 So.2d 1028 (Fla. 1999), and comparing the merits of Mr. Bottoson’s claims

with the Supreme Court’s reasoning in Williams, no one can say this case involved the

"[p]roper administration of laws." Nixon, op. cit. The prior holdings stand out from

the "constant and perpetual disposition of legal matters," ibid., like the thirteenth chime

of a clock.

Mr. Bottoson returns to this Court while facing imminent execution and praying

he will receive due process of law:

A course of legal proceedings according to those rules and

principles which have been established in our systems of

jurisprudence for the enforcement and protection of private

rights.

Nixon, supra (internal quotation omitted) (emphasis added).

B. RELIEF SHOULD BE GRANTED BECAUSE IT IS UNDISPUTED THAT UNDER

WILLIAMS V. TAYLOR, 529 U.S. 362 (2000), MR. BOTTOSON WAS DENIED

EFFECTIVE ASSISTANCE OF COUNSEL

1. Application of Williams to this Case Shows Mr. Bottoson

is Entitled to Relief

In the Introduction and section V.B of his Petition, Mr. Bottoson set forth in

detail how the facts of his case compare to the facts of Williams v. Taylor, the first

and only case in which the Supreme Court granted habeas corpus relief on a

performance-based ineffective assistance of counsel claim. Petitioner also detailed

several errors of law that the Supreme Court’s decision in Williams reveals were

present in this Court’s prior review of Mr. Bottoson’s claims. Respondent did not

and could not provide this Court with a single citation to the record or to any case to

dispute Mr. Bottoson’s assertion that he is entitled to relief under Williams.

Respondent simply chose to ignore Williams. Having done so, the State has

conceded error. See Cannady v. State, 620 So.2d 165, 170 (Fla. 1993) (state waived

right to assert issue as grounds for remand); State v. Wells, 539 So.2d 464, 468 n.4

(Fla. 1989) (by failing to raise issue on appeal state waived issue of defendant’s

privacy interest in borrowed car); Thomas v. State, 599 So.2d 158, 161 n.1 (Fla. 1st

DCA 1992)(improper for state to assert waiver in motion for rehearing of appeal after

failing to raise issue in its answer brief).

The State’s decision not to dispute Mr. Bottoson’s entitlement to relief on the

merits under Williams, constitutes exceptional circumstances under which this Court

may revisit its prior decision and grant relief.

2. Dr. Kirkland’s Timely Filed Affidavit Shows that the

Evidence that Mr. Bottoson was Actively Psychotic at the

Time of the Crime is Unrebutted

It is undisputed that the United States Court of Appeals for the Eleventh Circuit

denied habeas corpus relief to Mr. Bottoson based on a series of stacked inferences

and what the court took to be the implications of Dr. Robert Kirkland’s testimony at

post-conviction evidentiary hearing. Mr. Bottoson challenged those inferences and

supposed implications in his petition for rehearing of the Eleventh Circuit’s opinion.

On February 28, 2001, the rehearing petition was denied. Bottoson v. Moore, 251 F.3d

165 (11th Cir. 2001) (mem.). Mr. Bottoson’s timely petition for writ of certiorari, in

which he also challenged the Eleventh Circuit’s reasoning by conjecture, was denied

on October 9, 2001. Bottoson v. Moore, 531 U.S. ___, 122 S. Ct. 357 (2001).

On January 11, 2002, Dr. Kirkland executed an affidavit explaining that it would

be wrong to infer from or find implicit in his testimony that a psychiatrist could not

conclude that Mr. Bottoson’s schizophrenia was in an acute phase at the time of the

crime in this case. That affidavit was filed in this Court and the trial court the same

day Dr. Kirkland signed it.

Under this Court’s precedent, which Respondent chooses to ignore, claims in

a habeas corpus petition are timely if they are submitted without "inordinate delay."

McCray v. State, 699 So.2d 1366 (Fla. 1997). Under this standard, Respondent’s

claim that Dr. Kirkland’s affidavit is untimely is untenable. Petitioner had no reason

to ask Dr. Kirkland whether it was correct for the Eleventh Circuit to infer things from

his testimony until the court actually drew the inferences. Consequently, his counsel

were duly diligent in contacting Dr. Kirkland after the Eleventh Circuit ruled. See

Williams v. Taylor, 529 U.S. 420, 440-444 (2000) (capital habeas counsel duly diligent

where commenced investigation once on notice of need for particular investigation).

Respondent apparently questions whether Dr. Kirkland’s affidavit is an

"‘affidavit.’" Resp. at 10. Petitioner does not know what that means except that

Respondent is at a loss for any legitimate basis for attacking the true opinion of the

doctor from whose surmised opinion the Eleventh Circuit inferred an inference which

implied a conclusion that no one ever really reached.

Dr. Kirkland might well agree with Respondent that his affidavit is "self-serving,

[and] argumentative." Resp. at 9. Because the State and the courts have contrived

from his previous testimony, without giving him an opportunity to argue the merits of

these contrivances, reasons for executing Mr. Bottoson, Dr. Kirkland ought to be

commended for trying to preserve the integrity of his decisionmaking and trying to

prevent the twisting of his opinions into an unfounded rationalization for a wrongful

execution. The State should be similarly self-serving.

C. MR. BOTTOSON’S CLAIMS ARE PROPERLY BEFORE THIS COURT

Mr. Bottoson’s habeas corpus petition collaterally challenges his death sentence

as upheld in this Court’s rejection of the Sixth, Eighth, and Fourteenth Amendment

violations that occurred at trial. Mr. Bottoson seeks relief because a recently decided

case, Williams v. Taylor, 529 U.S. 326 (2000), and a study of this Court’s postconviction

review of ineffective-assistance claims, show that he is entitled to relief.

As Mr. Bottoson acknowledged in his petition, this Court previously rejected

his Hitchcock and Strickland claims. Under this Court’s cases, Mr. Bottoson was

required to return to this Court to seek relief under Williams, because this Court has

said, "We are the only court that has the power to change the law of the case

established by this Court." Brunner Enterprises v. Department of Revenue, 452

So.2d 550 (Fla. 1984).

In several cases, this Court has exercised its habeas corpus jurisdiction to

revisit, or at least decide whether to revisit, its prior post-conviction rulings in light of

2 Nothing in Respondent’s quotation from this Court’s opinion in Johnston

v. State, 708 So.2d 590 (Fla. 1998), indicates that the "true posture" of that case

was any different from what Mr. Bottoson said it was when this Court revisited its

prior decision. To the extent Respondent’s counsel now claims he did not ask this

Court to "open a case" in Johnston, he may want to reread the motion appended to

this Reply as Exhibit A.

new case law.2 See, e.g., Johnston v. Moore, 789 So.2d 262 (Fla. 2001) (holding that

Stephens v. State, 748 So.2d 1028 (Fla. 1999), does not apply retroactively and

reviewing prior ruling on ineffective-assistance claim to ensure de novo review was

conducted on appeal). Mr. Bottoson’s case presents unique circumstances not

present in those cases, however. First, Mr. Bottoson does not seek the retroactive

application of Stephens, he seeks the fair application of Strickland v. Washington, 466

U.S. 668 (1984), in light of Williams v. Taylor. Respondent does not dispute that Mr.

Bottoson’s ineffective-assistance claims are at least as strong as those in Williams.

Second, there is the stark contrast between the four-member majority opinion

erroneously applying competent-substantial-evidence review, and the dissenting

opinion based on de novo review of the record. Third, the majority in this case made

what are now unrefuted errors of fact and law. Respondent did not and could nor

dispute that when the majority of this Court denied Mr. Bottoson’s Hitchcock claim

it did so on the basis of a completely false reading of the record. Fourth, the State has

not disputed Mr. Bottoson’s assertion that this Court’s initial failure to conduct de

novo review violated his rights to due process and equal protection of the laws, and

calls into question the fairness of Florida’s administration of the death penalty.

In Owen v. State, 696 So.2d 715 (Fla. 1997), cited and quoted in the Petition,

this Court said it "has the power to reconsider and correct erroneous rulings in

exceptional circumstances and where reliance on the previous decision would result

in manifest injustice, notwithstanding that such rulings have become the law of the

case." Id., 696 So.2d at 720. "An intervening decision by a higher court is one of the

exceptional situations that this Court will consider when entertaining a request to

modify the law of the case." Ibid. In his Petition, Mr. Bottoson argued that Williams

v. Taylor, 529 U.S. 326 (2000), is such a case. Respondent does not dispute Mr.

Bottoson’s claim that comparing the merits of his case to Williams shows that he is

entitled to the relief that previously was denied.

In another capital case, Preston v. State, 444 So.2d 939 (Fla. 1984), this Court

applied the preestablished principle that "an appellate court does have the power to

reconsider and correct erroneous rulings notwithstanding that such rulings have

become the law of the case." Preston, 444 So.2d at 942. This Court lifted application

of the "law of the case" because ‘[t]he interest of justice, substantive due process

requirements and Florida’s constitutional and statutory scheme of death penalty review

jurisdiction support our decision to review this issue." Ibid. Accord Porter v. State,

723 So.2d 191 (Fla. 1998). Owen and Preston merely applied what this Court has

said in non-capital cases, i.e., that jurisdiction over an appeal necessarily includes

"authority to change the law of the case previously set forth." Jones v. State, 559

So.2d 204, 206 (Fla. 1990); Brunner Enterprises v. Department of Revenue, 452

So.2d 550 (Fla. 1984) ("We are the only court that has the power to change the law

of the case established by this Court").

In light of the State’s failure to assert any basis for rejecting, on the merits, Mr.

Bottoson’s claim that his rights were violated during the initial appeal of his Rule 3.850

motion, the interest of justice, substantive due process requirements, and Florida’s

constitutional and statutory scheme of death penalty review jurisdiction support a

decision to review Mr. Bottoson’s ineffective-assistance and Eighth Amendment

claims.

D. UNDER THIS COURT’S PRECEDENT THIS COURT MUST DENY

PETITIONER’S APPRENDI V. NEW JERSEY CLAIM ON THE MERITS

The United States Supreme Court has taken up the question raised in the final

claim of Mr. Bottoson’s habeas corpus petition, i.e., whether Walton v. Arizona, 497

U.S. 639 (1990), should be overruled in light of Apprendi v. New Jersey, 530 U.S.

466 (2001). Ring v. Arizona, No. 01-488, 70 U.S.L.W. 3442 (Jan. 11, 2002). Mr.

Bottoson filed his petition before he or his counsel knew of the Supreme Court’s

action in Ring. Subsequently, the Supreme Court granted a stay of execution in order

to hold King v. State, Nos. SC02-01 & SC02-02, pending the outcome of Ring. This

Court has held that "[b]ecause Apprendi did not overrule Walton, the basic scheme

in Florida is not overruled either." Mills v. Moore, 786 So.2d 532, 537 (Fla. 2001).

Mr. Bottoson acknowledged in his amended petition that in Mills this Court

rejected the same claim he raised. Respondent’s reliance upon Mills for the

proposition that Petitioner’s claim is procedurally barred is disingenuous. Resp. at 12

n.5. In Mills and in every other capital post-conviction case to raise the issue, this

Court rejected Apprendi claims on the merits. King v. State, No. SC02-01, 2002 WL

54414, 2002 Fla. LEXIS 25 (Fla. Jan. 16, 2002); Brown v. Moore, 800 So.2d 223 (Fla.

2001); Mann v. Moore, 794 So.2d 505 (Fla. 2001); Mills v. Moore, 786 So.2d 532

(Fla. 2001). As Justice Harding wrote in Mills, "it is not the function of this Court to

make new law on a case-by-case basis in order to reach a desired result. Once the law

has been established by this Court, it is our responsibility to apply that law uniformly

in all cases, regardless of the status of the players or the stakes of the game." Mills

v. Moore, 786 So.2d 532, 540 (Fla. 2001) (Harding, J., concurring). If this Court is

going to deny Mr. Bottoson’s Apprendi claim it must do so on the merits.

CONCLUSION

For the foregoing reasons as well as those raised in Mr. Bottoson’s petition for

writ of habeas corpus, and on appeal from the denial of his initial rule 3.850 motion,

this Court should enter a stay of execution, conduct independent, plenary review of

Mr. Bottoson’s claims, and thereafter vacate the sentence of death.

Respectfully submitted,

_____________________________

MARK E. OLIVE

Fla. Bar No. 0578533

Law Offices of Mark E. Olive, P.A.

320 West Jefferson Street

Tallahassee, Florida 32301

850-224-0004

850-224-3331 (facsimile)

Tim Schardl

801 K Street, 10th Floor

Sacramento, California 95822

(916) 498-6666

(916) 498-6656 (facsimile)

WILLIAM JENNINGS

CAPITAL COLLATERAL COUNSEL

MIDDLE REGION

_______________________________

PETER CANNON

Assistant CCRC

Fla. Bar No. 109710

ERIC PINKARD

Assistant CCRC

Fla. Bar No. 651443

OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL

3801 Corporex Park Drive, Suite 201

Tampa, Florida 33619

813-740-3544

813-740-3554 (facsimile)

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Reply to Response

to Petitioner’s Consolidated Petition for Writ of Habeas Corpus and Motion to

Reopen Rule 3.850 Appeal is being furnished by facsimile transmission to counsel for

Respondent, Assistant Attorney General Kenneth Sloane Nunnelley, Office of the

Attorney General 444 Seabreeze Boulevard, Suite 500, Daytona Beach, Florida 32818,

this 28th day of January, 2002.

CERTIFICATE OF COMPLIANCE

This motion was prepared using Times New Roman 14 point font.

_____________________________

MARK E. OLIVE

EXHIBIT A