Supreme Court of Florida

____________

No. SC00-1389

____________

Appellant,

vs.

Appellee.

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No. SC01-2866

____________

Petitioner,

vs.

Respondents.

[July 3, 2003]

PER CURIAM.

Joel Dale Wright (Wright) appeals an order entered by the trial court denying

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his second motion for postconviction relief pursuant to Florida Rule of Criminal

Procedure 3.850. He also petitions this Court for a writ of habeas corpus. We

have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. For the reasons discussed

below, we affirm the trial court’s denial of postconviction relief, and we deny

Wright's petition for a writ of habeas corpus.

The facts at trial have been thoroughly presented by Justice Blackmun in his

dissent from the United States Supreme Court’s denial of certiorari. The facts are:

On February 6, 1983, a woman was found murdered in the

bedroom of her home. She apparently had died the previous night

after being raped and stabbed. All the doors to her home were locked,

but a back window was found open. Several weeks later, Charles

Westberry told his wife that petitioner Joel Wright had come to

Westberry's trailer shortly after daylight on the morning of February 6

and had confessed to killing the victim. Wright lived with his parents

near the victim's home. Westberry's wife notified the police, and

Wright was arrested and tried for the crime. At trial, Westberry was

the State's principal witness. He testified that Wright had told him on

the morning of February 6 that Wright had entered the victim's house

through the back window to steal money, that the victim had

discovered him as he was wiping his fingerprints from her purse, and

that he had killed her because he did not want to return to prison.

According to Westberry, Wright counted out $290 he claimed to have

taken from the victim's home, and he asked Westberry to tell the

authorities that Wright had spent the previous night at Westberry's

trailer. Another witness [Paul House] for the State testified that,

approximately one month before the murder, he and Wright had stolen

money from the victim's home after entering through the window later

found open on February 6. The jury also was told that a fingerprint

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identified as Wright's had been found on a portable stove in the

victim's bedroom.

Wright took the stand and denied involvement in the murder. He

testified that he had returned home from a party at approximately 1

a.m. on February 6, but had found himself locked out. He claimed that

he then had walked along Highway 19 to Westberry's trailer, where he

had spent the night. He also presented a witness who testified that, late

on the night of February 5 and early in the morning of February 6, he

had seen a group of three men, whom he had not recognized, in the

general vicinity of the victim's home.

After the close of evidence but prior to final arguments, the

defense moved to re-open the case in order to introduce the testimony

of a newly discovered witness, Kathy Waters. Waters apparently had

read newspaper accounts of the trial, had listened to parts of the

testimony, and had discussed the trial with friends in attendance. She

offered to testify that, shortly after midnight on February 6, she had

seen a person who could have been Wright walking along Highway 19,

and had also observed three persons she did not recognize near the

victim's home. Waters claimed that she had not realized she possessed

relevant information until the morning her testimony was proffered,

and that she had come forward of her own volition. The trial judge

denied Wright's motion, noting that Florida's sequestration rule would

be rendered "meaningless" if, after discussing the case with others, a

witness were permitted "to testify in support of one side or the other,

almost as if that testimony were tailor-made." [Wright v. State,] 473

So. 2d 1277, 1279 ([Fla.] 1985). Although the State acknowledged that

the violation of the sequestration rule had been inadvertent, it argued

that the prosecution "could very well be substantially prejudiced" if

Waters were permitted to testify. Id., at 1280. Wright was convicted

and sentenced to die.

On appeal, the Supreme Court of Florida held that the trial

judge's rigid application of the State's sequestration rule was

inconsistent with Wright's Sixth Amendment right to present witnesses

in his behalf. The court affirmed the conviction, however, because it

deemed the error harmless.

Wright v. Florida, 474 U.S. 1094, 1094-95 (1986) (Blackmun, J., joined by

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Brennan, J., and Marshall, J., dissenting). Procedurally, the case progressed as

follows:

Joel Dale Wright was charged with killing a seventy-five-year-old

Palatka school teacher. On September 1, 1983, he was convicted of

first-degree murder, sexual battery, burglary of a dwelling, and grand

theft. The jury returned an advisory sentence of death and the trial

court, in accordance with that recommendation, imposed the death

sentence. This Court affirmed the convictions and the sentence of

death in Wright v. State, 473 So. 2d 1277 (Fla. 1985), cert. denied,

474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 909 (1986).

Wright v. State, 581 So. 2d 882, 882 (Fla. 1991). In February 1988 Wright filed his

first motion for postconviction relief, and the trial court granted an evidentiary

hearing. The trial court issued a detailed order denying relief. After the trial court

denied relief, but while the case was still pending on a motion for rehearing, Wright

filed a supplement to his 3.850 motion alleging that his public defender’s status as a

special deputy sheriff created a conflict of interest. The trial court considered the

substance of Wright’s supplemental claim, finding the claim identical to a claim

made by a different defendant in the Seventh Judicial Circuit, which had been

denied. The trial court ordered Wright to furnish any evidence that had not been

considered in the Seventh Circuit case. When Wright failed to respond, the trial

judge adopted the Seventh Circuit court’s findings and entered an order denying

relief.

Wright appealed. We affirmed the trial court’s denial of relief on most of the

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claims, but remanded the case for an evidentiary hearing on the claim of conflict of

interest due to his public defender’s service as a special deputy. See Wright, 581

So. 2d at 886 (citing Herring v. State, 580 So. 2d 135 (Fla. 1991)). We explained:

While it may seem to be a total duplication of effort, it is clear that the

trial judge in this case cannot adopt the factual findings of a trial judge

in a different case involving a different defendant, even though those

findings concern the same issue.

Wright, 581 So. 2d at 886. We granted Wright permission to consolidate his claim

with the claims of other defendants who also argued that Assistant Public Defender

Howard Pearl’s status as a special deputy sheriff affected his ability to provide

effective legal assistance. These claims were dubbed the "Pearl" claim, and heard

in December 1992 by Judge B. J. Driver.

Prior to the December 1992 hearing, Wright again amended his

postconviction motion based on documents provided by the Putnam County

Sheriff’s Department after a public records request under chapter 119, Florida

Statutes. Judge Driver severed Wright’s new claims from the Pearl claim because

Judge Driver was appointed to hear only the Pearl claim, and these new claims were

outside the scope of his appointment. Judge Driver denied relief on the Pearl claim,

finding that Assistant Public Defender Howard Pearl’s status as a special deputy

sheriff did not affect his ability to provide effective legal assistance. During the

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postconviction hearing on the Pearl claim, Judge Robert Perry, who presided over

Wright's trial, testified. Wright alleges he learned that Judge Perry also had special

deputy appointments in Duval, Volusia, and Orange Counties, but Judge Perry

testified that he did not recall whether he had a special deputy appointment in

Putnam County, where Wright was tried.

After Judge Driver denied relief on the Pearl claim, Wright sought a hearing

on the claims raised in the supplemental 3.850 motions which had been severed

from the Pearl claim. The case was reassigned and an evidentiary hearing was held

in March 1997, which was continued and completed in December 1997. In

addition to the issues heard, the trial court reconsidered Wright's Pearl claim based

on this Court's decision in Teffeteller v. Dugger, 676 So. 2d 369 (Fla. 1996), which

held that the December 1992 consolidated hearing violated due process. Wright

now appeals the trial court's order denying relief on his second postconviction

motion.

Wright's theory at trial was that someone else committed the murder. In both

his first and second postconviction motions, Wright asserted that the police failed

to adequately investigate other leads which would have shown that someone else

committed the murder. In this appeal of his second postconviction motion, Wright

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argues that (1) in the first postconviction proceeding in 1988, the trial court made

false findings of certain facts and this Court erroneously adopted those false facts

on appeal, the State failed to disclose exculpatory evidence as required under

Brady v. Maryland, 373 U.S. 83 (1963), and there was newly discovered evidence

of innocence admissible under Jones v. State, 591 So. 2d 911 (Fla. 1991); (2)

Wright’s appointed trial counsel, Howard Pearl, and Pearl’s investigator, Freddie

Williams, were bonded deputy sheriffs, a status which interfered with their ability to

provide effective assistance of counsel; (3) the trial judge, Robert Perry, failed to

reveal at the time of trial and at the time he presided over Wright’s first

postconviction proceeding that he was a special deputy sheriff, which would have

warranted disqualification; (4) Judge Perry’s standard practice was to request the

State to draft sentencing orders in capital cases which constitutes reversible error;

and (5) Judge A.W. Nichols, III, who presided over Wright’s second

postconviction proceeding, refused to timely rule on his motion for postconviction

relief, the State delayed disclosure of exculpatory materials, and both acts amount

to a denial of due process. We discuss each claim below.

Wright's first claim in this appeal involves three separate issues: First,

effect of any error, we must consider the evidence that would have been presented

but for the ineffectiveness of trial counsel. Wright presented a claim of ineffective

trial counsel at the first postconviction proceeding. We held then that Wright failed

to meet his burden of showing deficient performance under Strickland v.

Washington, 466 U.S. 668 (1984). See Wright, 581 So. 2d at 883. We did not

address the prejudice prong of the Strickland test. Because Wright failed to show

deficient performance of trial counsel, we will not address the evidence Wright

alleges would have been presented at trial but for the ineffectiveness of counsel.

See Downs v. State, 740 So. 2d 506, 518 n.19 (Fla. 1999).

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Wright argues that the trial court erred in denying his Brady claim in the first

postconviction proceeding. Second, he argues that there exists new Brady material

which entitles him to relief. Third, he argues that there is newly discovered

evidence in support of his innocence. Wright also argues that this Court should

consider the cumulative prejudicial effect of the Brady material from his first

postconviction proceeding, the Brady material he presents here, and the newly

under this first claim.

Wright alleges that in his first postconviction proceeding the trial court erred

in denying his Brady claim because the trial court made factual findings not in the

record. He further argues that this Court erroneously affirmed that denial of

postconviction relief on appeal. Wright seeks a reconsideration under Brady of

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three written statements made to police during the investigation of the murder. The

statements were made by Wanda Brown, Kimberly Holt, and Charlene Luce. In his

first postconviction hearing, Wright argued that defense counsel should have been

given copies of the written statements. The trial court in that proceeding denied

Wright's Brady claim, finding that defense counsel knew of the Brown and Luce

statements and had actually interviewed Holt during counsel's own investigation.

We affirmed that finding on appeal. See Wright v. State, 581 So. 2d 882 (Fla.

1991). Now, in his second postconviction motion, Wright argues that the first

postconviction trial court, and this Court thereafter, misconstrued the facts in the

record so that the Brady claim was erroneously denied.

However, Wright has failed to meet his burden to show the grounds for relief

he alleges here were not known and could not have been known at the time of the

earlier proceeding. See Foster v. State, 614 So. 2d 455 (Fla. 1992). His argument

that the first postconviction trial court misinterpreted the facts in the record was

raised and addressed in his appeal following that proceeding, and in a motion for

rehearing as well. Absent a showing that Wright did not know, or could not have

known, of the alleged misconstrued facts during the first postconviction

proceeding, the trial court in this proceeding properly denied relief. We will not

entertain a second appeal of claims that were raised, or should have been raised, in

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a prior postconviction proceeding. See Downs v. State, 740 So. 2d 506, 518 n.10

(Fla. 1999) (stating that claim raised in earlier postconviction motion is barred in

subsequent postconviction motion even if based on different facts); Atkins v. State,

663 So. 2d 624, 626 (Fla. 1995) (explaining that issues that were or could have

been presented in a postconviction motion cannot be relitigated in a subsequent

postconviction motion).

Wright also argues that the trial court erred in the first postconviction

proceeding by accepting the fact that two potential suspects, Henry Jackson

(Jackson) and Clayton Strickland (Strickland) were eliminated from police

investigation after they were given polygraph examinations which they purportedly

passed. In this second postconviction motion, Wright contends that the evidence

the trial court relied upon in making its factual finding in the first postconviction

proceeding, i.e., that Jackson and Strickland passed polygraph examinations, did

not actually exist, a fact which Wright only realized when the State did not produce

the polygraph examination results upon his public records requests made after the

first postconviction motion. In order to avoid a procedural bar on this claim,

Wright must allege new or different grounds for relief that were not known and

could not have been known at the time of his earlier postconviction motion. See

Christopher v. State, 489 So. 2d 22, 24 (Fla. 1986). Polygraph examination results

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for Jackson and Strickland were available for discovery at the time of trial and at

the time of Wright's first postconviction proceeding.

Wright admits that he sought production of the polygraph results for the first

time in 1997. At that time, Wright deposed Officer Derry Wayne Dedmon, who

would have conducted the polygraph examinations in question. Officer Dedmon

stated that in 1989 or 1990 he destroyed all of his polygraph records through 1984

by directive of the sheriff. The murder, police investigation, and trial in this case all

occurred in 1983. Any polygraph examinations administered to suspects during the

investigation of this case would have occurred in 1983 prior to Wright's trial, and

the results would still have been available in 1988 when Wright brought his first

postconviction motion. Thus, Wright has failed to demonstrate why he did not

raise the absence of polygraph examination results from the record in his first

postconviction proceeding and has failed to demonstrate that the absence of these

documents was not known and could not have been known to him at the time of

the earlier proceeding. See Foster.

Wright's claim that this Court should now reconsider certain factual issues

that had been previously raised and resolved in the the first postconviction

proceeding is not well taken. His arguments here are successive since they have

been previously litigated on their merits, and he has failed to show why these

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additional facts could not have been known at the time of the first postconviction

proceedings. See Downs; Atkins; Foster.

After his first postconviction proceeding in 1988, Wright made public

records requests from which he received numerous documents. The first set of

documents produced in 1991 included police investigation reports regarding

criminal activity in the neighborhood of the murder. Wright asserts that these

reports demonstrate that the police did not adequately investigate other potential

suspects, including Henry Jackson. A second set of documents was produced in

1996 and 1997. These documents, Wright argues, demonstrate failures and

inadequacies of the police investigation and demonstrate that the investigating

officer was dishonest. Wright also draws an inference from the lack of documents

which, he argues, would exist if the police adequately considered other suspects.

The documents Wright lists in his claim include Jackson's criminal history,

neighbors' complaints to police about Jackson, and police reports involving other

known criminals in the neighborhood which involve events completely unrelated to

those in this case. All of this information, he alleges, is Brady evidence and entitles

him to a new trial.

The United States Supreme Court announced in Strickler v. Greene, 527

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U.S. 263, 281-82 (1999), the three elements that a defendant must establish in order

to successfully assert a Brady violation: "The evidence at issue must be favorable

to the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued." Accord Occhicone v. State, 768 So. 2d 1037,

1041 (Fla. 2000). The burden is on the defendant to demonstrate that the evidence

he claims as Brady material satisfies each of these elements. Even where favorable

evidence is suppressed, a new trial will not be necessary where it is determined that

the favorable evidence did not result in prejudice. See Cardona v. State, 826 So.

2d 968 (Fla. 2002). The Court in Strickler explained that prejudice is measured by

determining "whether 'the favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.’"

Strickler, 527 U.S. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).

As noted above, the evidence Wright claims as Brady material consists of

information contained in police files concerning other possible suspects and other

criminal activity in the same neighborhood. This is the same type of evidence that

this Court recently addressed in Carroll v. State, 815 So. 2d 601 (Fla. 2002). In

Carroll, the defendant argued that the State withheld favorable evidence that

consisted of police investigative notes that linked the defendant with another

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suspect, that another person was believed by the family to be involved, and that

other crimes, including another rape, had occurred in the neighborhood. In denying

relief on this issue, we said, "As noted by the State, the prosecution is not required

to provide the defendant all information regarding its investigatory work on a

particular case regardless of its relevancy or materiality." Id. at 620. Likewise,

investigators in this case were not required to provide all of the notes and

information regarding their investigation. Thus, Wright has failed to demonstrate

that the evidence should have been disclosed.

However, even if the State should have disclosed the evidence, Wright has

not demonstrated prejudice by the failure to do so. In order to be entitled to relief

on a Brady claim, the defendant must also show that the evidence "is material either

to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution." Gorham v. State, 521 So. 2d 1067, 1069 (Fla. 1988). There has

been no such showing in the instant case. The mere possibility that undisclosed

items of information may have been helpful to the defense in its own investigation

does not establish constitutional materiality. See United States v. Agurs, 427 U.S.

97, 109-10 (1976); Gorham v. State, 521 So. 2d 1067, 1069. The fact of other

criminal activities and the existence of other criminals in the same neighborhood

where this murder occurred does not affect the guilt or punishment of this

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defendant.

We agree with the trial court's determination that the exculpatory effect of the

documents is merely speculative; therefore, we affirm the trial court's denial of relief

on this issue.

Wright claims that evidence produced as the result of the public records

requests made after the first postconviction motion constitutes newly discovered

evidence of innocence and requires a new trial. In order to qualify as newly

discovered evidence, 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 them by the use of diligence." Jones v. State, 591

So. 2d 911, 916 (Fla. 1991) (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.

1979)). If this test is met, the court must next consider whether the newly

discovered evidence is of such a nature as to probably produce an acquittal on

retrial. Id. at 915. Additionally, we have said that newly discovered evidence, by

its very nature, is evidence that existed but was unknown at the time of the prior

proceedings. See Porter v. State, 653 So. 2d 374, 380 (Fla. 1995).

In this case, none of the evidence Wright claims as newly discovered since

the first postconviction proceeding existed at the time of trial. For example, Wright

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presents a memorandum from 1986 criticizing the veracity of Officer Perkins, the

investigator in this case. He presents a police report filed by an elderly resident of

the neighborhood where the murder occurred that implies Henry Jackson hit the

resident on her head and stole her money. He also presents police reports

involving a witness against Wright who was a suspect in a different homicide.

None of these documents existed at the time of Wright's trial in 1983, so they are

not "newly discovered" evidence.

The trial court did not err in denying relief on this newly discovered evidence

claim.

Finally, Wright argues we must consider, in determining whether he is entitled

to a new trial, the cumulative effect of the evidence presented at trial, along with any

Brady evidence, newly discovered evidence, and evidence that would have been

presented at trial but for ineffective assistance of counsel. See State v. Gunsby,

670 So. 2d 920, 921 (Fla. 1996). We have considered and addressed Wright's

Brady claim and claim of newly discovered evidence, and found them to be without

merit. As discussed above, Wright may not relitigate the merits of his first

postconviction claims. Having found that each claim presented in this proceeding

lacks merit, we find no cumulative error. See Downs v. State, 740 So. 2d 506, 509

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n.5 (Fla. 1999) (finding that claim of cumulative error was without merit where the

court considered each individual claim and found them to be without merit).

Wright argues that a conflict of interest existed because his defense counsel,

Howard Pearl, held the status of a special deputy sheriff while defending Wright.

Wright contends that he was denied effective representation. The trial court

addressed this claim, finding that Pearl’s status as a special deputy did not in any

way affect his vigorous defense and posed no conflict of interest. On appeal of a

denial of a claim of ineffective assistance of counsel where an evidentiary hearing

was held, we afford deference to the trial court's findings of fact based on

competent, substantial evidence, and we independently review deficiency and

prejudice as mixed questions of law and fact. See Stephens v. State, 748 So. 2d

1028, 1033-34 (Fla. 1999).

As we stated in Hunter v. State, 817 So. 2d 786, 792 (Fla. 2002), a conflict

of interest claim emanates from the Sixth Amendment guarantees of effective

assistance of counsel. For claims of ineffective assistance of counsel based on a

conflict of interest, the defendant must demonstrate that counsel actively

represented conflicting interests and that an actual conflict of interest adversely

counsel, and this Court affirmed the trial court's determination that counsel's

performance was not deficient. See Wright v. State, 581 So. 2d 882, 886 (Fla. 1991).

Thus the only issue now before this Court is whether defense counsel had an actual

conflict of interest that caused him to render ineffective assistance. See Herring v.

State, 730 So. 2d 1264 (Fla. 1998).

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At the evidentiary hearing, Pearl was examined and cross-examined for

several hours. The trial court found that Pearl's status as a special deputy did not

in any way affect his vigorous defense and posed no conflict of interest. In

support, the trial court relied on the following: Pearl was characterized as a special

deputy from 1970 through 1989 in Volusia and Marion Counties, and the only

benefit he received from this status was his ability to carry a firearm. Pearl had no

authority to act as a deputy, received no income, maintained no certification, had

no training as a deputy, was issued no equipment, responded to no roll calls, was

not included on any duty rosters, never held himself out as a law enforcement

officer, never used his special deputy status to obtain information and never

received any information due to this status. When Pearl could legally obtain a

concealed weapons permit, he did so and thereafter resigned his status as a special

deputy. Additionally, there was no evidence presented that Pearl enjoyed this same

special deputy status in Putnam County, the site of Wright's trial. The trial judge

as well, and that Williams' status also amounts to the denial of effective assistance of

counsel. There is no evidence in support of this claim. The mere fact that Williams

was a member of Wright's "defense team," and was a special deputy, without more,

falls short of the demonstration Wright must make in support of this claim as set forth

in Quince v. State, 732 So. 2d 1059 (Fla. 1999). Although Williams testified at the

evidentiary hearing, he was not questioned about his status as a special deputy.

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concluded from these facts, which are supported in the record, that Pearl's status

did not pose a conflict of interest.

We agree with the trial court's conclusion. Indeed, it appears that Pearl's

status as a special deputy was an honorary one, carrying with it no duties or

obligations to the sheriff's office. Furthermore, we have examined Pearl's status as

a special deputy in similar circumstances and held that neither a per se nor actual

conflict of interest existed. See Teffeteller v. Dugger, 734 So. 2d 1009 (Fla. 1999);

Quince v. State, 732 So. 2d 1059 (Fla. 1999); Harich v. State, 573 So. 2d 303 (Fla.

1990).

Wright also asserts that Pearl's alleged conflict of interest caused him to

render ineffective assistance of counsel. However, Wright has failed to

demonstrate ineffective assistance because he has failed to demonstrate a conflict.

Moreover, Pearl testified that his loyalty was to his clients and he denied that his

efforts, actions, and representations on behalf of Wright were affected by his status

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Wright next claims he was denied due process because the trial judge, Judge

Perry, now deceased, was also a special deputy sheriff at the time of trial and, as

such, was biased. On this issue, the trial court found:

There was testimony that the trial [judge] may have been issued a card

of some sort by the Putnam County Sheriff. However, there was no

proof submitted that his name appeared on a list kept by the Sheriff’s

Office. Additionally, if one had been issued, it carried with it no

privileges and meant nothing. There is not even a suggestion in the

record that the trial judge ever used any such card in any manner, even

if he had one. There is also nothing to even suggest that having any

such card affected his rulings or conduct in any manner. As to the

trial judge’s disciplinary problems, there is absolutely nothing to show

his work or his status had any bearing on the 3.850 hearing and his

ruling herein.

Wright argues that Judge Perry's status, in and of itself, indicates that Wright

was denied a fair and impartial judge during his trial. However, Wright presents no

evidence that Judge Perry was not fair and impartial.

Wright also asserts that Judge Perry's status, in and of itself, would warrant

disqualification. He argues that had he known of this information at the time of

trial, he could have successfully moved to disqualify Judge Perry. A motion to

disqualify a judge "must be well-founded and contain facts germane to the judge's

undue bias, prejudice, or sympathy." Jackson v. State, 599 So. 2d 103, 107 (Fla.

relief, but was raised by the defendant in the supplemental 3.850 motion.

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1992). Wright fails to show that Judge Perry's mere possession of a special deputy

card resulted in partiality and bias and would have required the granting of a motion

to disqualify.

This record does not demonstrate that Judge Perry labored under a conflict

of interest.

Wright argues that Judge Perry’s "standard practice" was to have the State

The facts upon which Wright relies for this allegation come from deposition

testimony that was filed in another case in which Wright was not involved. Just as

a judge "cannot adopt the factual findings of a trial judge in a different case

involving a different defendant," Wright, 581 So. 2d at 886, Wright cannot cite

facts in another case to support his claim here. See, e.g., Maharaj v. State, 778 So.

2d 944, 951 (Fla. 2000) (stating that postconviction relief cannot be based on

actions in another case or on speculation). This claim is therefore denied.

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Wright claims he was denied due process because the trial court failed to

timely rule on his motion to depose Judge Perry. In support, Wright cites this

Court's decision in Jones v. State, 740 So. 2d 520 (Fla. 1999), in which we

concluded that the trial court’s twelve-year delay in conducting a hearing on

competency to stand trial despite being ordered to do so by this Court required us

to vacate the defendant's judgment and sentence. However, Wright makes no

analysis or legal argument based on the facts in his case. The defendant bears the

burden of establishing a prima facie case based upon a legally valid claim. Mere

conclusory allegations are not sufficient to meet this burden. See Atwater v. State,

788 So. 2d 223 (Fla. 2001); Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989) ("A

defendant may not simply file a motion for postconviction relief containing

conclusory allegations that his or her trial counsel was ineffective . . . ."). Wright

has failed to demonstrate a due process violation.

Wright’s final 3.850 claim is also brief and lacks development and legal

analysis. Wright argues that on his direct appeal this Court struck an aggravating

factor and then failed to conduct any harmless error analysis as required by Sochor

v. Florida, 504 U.S. 527 (1992). Rule 3.850 permits a criminal defendant to raise

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claims involving the trial court's judgment or sentence. See Fla. R. Crim. P. 3.850.

This issue does not relate to the judgment or sentence, but rather, relates to this

Court's opinion on direct appeal. This claim is inappropriate for 3.850

proceedings. As we stated in Hardwick v. Dugger, 648 So. 2d 100, 103 (Fla.

1995), "the trial court has no authority to review the actions of this Court." Thus,

the trial court properly denied this claim.

Wright also petitions this Court for a writ of habeas corpus. For the reasons

discussed below, we deny this petition.

The purpose of a writ of habeas corpus is to inquire into the legality of a

prisoner's present detention. See McRae v. Wainwright, 439 So. 2d 868 (Fla.

1983). Habeas corpus should not be used as a vehicle for presenting issues which

should have been raised at trial and on appeal or in postconviction proceedings.

Id. The habeas process is therefore most often used in death penalty cases to

challenge the effectiveness of appellate counsel. See Patterson v. State, 664 So. 2d

31, 31 (Fla. 4th DCA 1995) (citing a number of cases to illustrate the issues most

often raised in habeas proceedings: ineffective assistance of appellate counsel, the

denial of reasonable bail, and the legality of detention in extradition proceedings).

Wright raises four issues in his petition for writ of habeas corpus. Wright

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claims that (1) the State failed to disclose pertinent facts necessary for this Court’s

consideration; (2) appellate counsel failed to raise numerous meritorious issues on

appeal; (3) the presiding judge unconstitutionally made factual findings in support

of Wright’s death sentence in violation of Apprendi v. New Jersey, 530 U.S. 466

(2000); and (4) this Court failed to make an appropriate harmless error analysis

after striking an aggravating circumstance on direct appeal, in violation of Sochor v.

Florida, 504 U.S. 527 (1992). We deny relief on each issue.

Wright first argues that the State intentionally deceived this Court regarding

issues he raised in his direct appeal. In his direct appeal, Wright challenged

numerous rulings made by the judge at trial. Wright now asserts that the State was

in possession of, but did not divulge, pertinent information that would have

favorably resolved his challenges on appeal. This is a claim that was or could have

been presented in Wright's direct appeal or his 3.850 proceedings. Issues which

were or could have been presented in prior proceedings cannot be reconsidered in

a petition for writ of habeas corpus. See Mann v. Moore, 794 So. 2d 595, 600-01

(Fla. 2001). This procedural bar also acts to prohibit variant claims previously

decided. See Jones v. Moore, 794 So. 2d 579, 586 (Fla. 2001) (finding procedural

-25-

bar to habeas claim which was variant to claim previously addressed). This claim

is therefore procedurally barred.

In a footnote to this claim, Wright also asserts that appellate counsel failed to

address the State's misrepresentation in his reply brief, and thus rendered

ineffective assistance of appellate counsel. While claims of ineffective assistance of

appellate counsel are appropriate considerations in habeas corpus petitions, see

Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000), Wright does not develop

this issue beyond the bare assertion. In order to prevail on this issue, Wright would

have to show that "[appellate] counsel’s performance fell below an objective

standard of reasonableness and, but for counsel’s unprofessional errors, there is a

reasonable probability that the result of the proceedings would have been different."

Scott v. Dugger, 604 So. 2d 465, 469 (Fla. 1992). The defendant bears the burden

of establishing a prima facie case based upon a legally valid claim. Mere

conclusory allegations are not sufficient to meet this burden. See Kennedy v. State,

547 So. 2d 912, 913 (Fla. 1989). Wright’s conclusory allegation that appellate

counsel was ineffective is legally insufficient.

In his second claim, Wright argues that appellate counsel failed to raise

prosecutor’s "knowing presentation of false argument" to the jury; (2) failed to

raise the issue regarding Wright’s absence from the proceeding during the jury’s

request for a readback; (3) failed to raise the fact that Wright objected to the

State’s questioning of the hair expert; (4) in the appellate reply brief, failed to

contest the State’s assertion that Wright had not objected to the investigator’s

testimony at trial; (5) failed to challenge Wright’s absence from the initial inquiry of

potential jurors regarding their qualifications; and (6) failed to raise as error the trial

judge’s statement to the venire that the judge is responsible for sentencing

decisions.

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ineffective assistance of appellate counsel are reviewed under the standard

enunciated in Strickland v. Washington, 466 U.S. 668 (1984). The defendant must

demonstrate that counsel's performance was below that expected of competent

counsel and that counsel's deficient performance resulted in prejudice to the

defendant. However, claims of ineffective assistance of appellate counsel may not

be used to camouflage issues that should have been raised on direct appeal or in a

postconviction motion. See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla.

2000). Much of Wright’s claim that appellate counsel was ineffective involves

issues that were not preserved for appeal by trial counsel and should have been

raised in a 3.850 proceeding for ineffective assistance of trial counsel. Appellate

counsel has no obligation to raise issues on appeal that were not preserved for

review. See Robinson v. Moore, 773 So. 2d 1, 4 (Fla. 2000).

-27-

Specifically, Wright argues that "appellate counsel failed to raise the

prosecutor's ‘knowing presentation of false argument to the jury.’" This claim was

raised in Wright's first postconviction proceeding, see Wright v. State, 581 So. 2d

882, 884 (Fla. 1991), and will not be reconsidered in this habeas proceeding. See

Mann v. Moore, 794 So. 2d 595, 600-01 (Fla. 2001) (finding that the defendant's

claim was procedurally barred because the merits of the claim had been raised and

rejected in two prior proceedings).

Wright next argues appellate counsel failed to raise an issue regarding

Wright's absence from the proceeding concerning the jury's request for a readback.

In Wright's first motion for postconviction relief, he argued that the trial court

committed reversible error by communicating by written note with the jury in his

absence. The communications involved the same request for a readback Wright

now raises in this habeas petition under the guise of ineffective assistance of

appellate counsel. In affirming the denial of Wright's first postconviction motion,

we adopted the trial court's written order which stated that a claim involving

Wright's absence from the courtroom while the Court communicated with the

jurors should have been raised on direct appeal. See Wright v. State, 581 So. 2d

882, 885-86 (Fla. 1991). However, there was no objection at trial to the procedure

that was utilized in answering the jury's inquiry. Therefore, appellate counsel was

-28-

not ineffective for failing to raise an unpreserved issue. See Freeman v. State, 761

So. 2d 1055 (Fla. 2000).

Moreover, the defendant has failed to demonstrate that the procedure

employed by the trial court was erroneous. The jury communicated with the trial

judge that it wanted some testimony reread. After consultation with both the

defense attorney and the prosecutor, the judge sent a note to the jury asking for

specificity in regards to what it wanted the court to reread. Once that information

was ascertained, the State objected to the reading of the requested testimony, and

defense counsel objected, saying all of the witness's testimony should be read or

none. Therefore, the trial court decided no testimony would be read. In the

presence of the defendant, the trial judge instructed the jury to rely on its collective

memories regarding the testimony in question. This procedure was in substantial

compliance with Florida Rule of Criminal Procedure 3.410, which governs jury

requests to review evidence or receive additional instructions. Here, the judge's

instruction was given to the jury in person and in the presence of all parties.

See Hildwin v. State, 531 So. 2d 124, 126 (Fla. 1988) (finding that the judge

violated the rule by failing to return the jury to the courtroom after receiving a jury

request, but instead providing a written instruction for jurors to rely on their

memory of the testimony).

-29-

Wright next argues that appellate counsel failed to raise the fact that Wright

objected to the State's questioning of the hair expert. The hair expert was asked

how many times she had been called upon to match hair strands, and of those

occasions, how many times she was able to make a finding. Defense counsel

objected, arguing that the testimony sought was not the result of a scientific test and

was therefore "irrelevant and in terms of its scientific accuracy and reliability,

incompetent." Defense counsel argued that he stipulated to the expert's experience,

but that this question called for testimony related to statistical matters that was

scientifically unreliable. The objection was not on the ground that the testimony

was self-vouching, as Wright argues here. In order to preserve an issue for

appellate review, the issue must be presented to the lower court and the specific

legal argument or ground to be argued on review must be part of that presentation.

Otherwise, the error is not considered preserved. See Tillman v. State, 471 So. 2d

32, 35 (Fla. 1985). As stated above, appellate counsel is not ineffective for failing

to raise on appeal an issue that was not preserved. See Freeman, 761 So. 2d 1055.

Next, Wright asserts that appellate counsel failed to adequately reply to the

State's answer brief on appeal. Wright fails to make the appropriate showing for

consideration of a claim of ineffective assistance of counsel under Strickland, and

his conclusory allegations are insufficient to warrant relief. See Kennedy v. State,

-30-

547 So. 2d 912, 913 (Fla. 1989).

Wright also argues that appellate counsel failed to challenge both his and trial

counsel's absence from an off-the-record conference between the trial judge and at

least one potential juror, after which the judge excused the juror. The record

indicates that defense counsel was present in the courtroom when the trial judge

conducted his initial inquiries to the jury panel. In the initial inquiry phase, the trial

judge introduced court personnel and invited the potential jurors to approach the

bench if they had any hardships that would prevent them from serving. After this

invitation, there was an off-the-record discussion, whereupon the judge announced

that he would excuse juror number 125 because that juror was the only available

paramedic and full-time fire personnel in the community. Defense counsel made no

objection to the off-the-record discussions between the judge and persons who

approached the bench to discuss a potential hardship.

During the general qualification process under section 40.013(6), Florida

Statutes (1997), removal of a potential juror for hardship is within the trial court's

discretion. See Jones v. State, 749 So. 2d 561, 562 (Fla. 2d DCA 2000). The

Fifth District recently described the juror qualification proceeding stating, "Counsel

or a defendant does not ordinarily participate in this type of qualification process,

although neither is excluded from doing so. In many instances, counsel and the

-31-

defendant are not present because this preliminary qualification process occurs

days prior to the trial." O'Quendo v. State, 823 So. 2d 834, 836 (Fla. 5th DCA

2002). In this case, the record does not indicate whether defense counsel

participated in the off-the-record discussions with the potentially disqualified jurors.

However, the record clearly indicates no objection was raised by defense counsel

to the off-the-record discussions or the disqualification of any juror. Because the

issue was not preserved at trial, appellate counsel cannot be deemed ineffective for

failing to raise the issue on appeal. See Freeman v. State, 761 So. 2d 1055, 1069

(Fla. 2000) ("[I]neffective assistance of counsel cannot be argued where the issue

was not preserved for appeal . . . .").

Finally, Wright argues that appellate counsel failed to raise as error the trial

judge's statement to the venire that the judge is responsible for sentencing

decisions. This issue could have been raised on direct appeal if trial counsel had

preserved the error. Appellate counsel cannot be considered ineffective for failing

to raise issues which were not properly raised at trial or preserved for review. See

Freeman.

Wright’s third claim involves the constitutionality of his sentence based on

in Ring, it did not alter the exception for prior convictions. In this case, Wright was

also convicted of sexual battery, burglary, and grand theft.

Apprendi/Ring issue.

-32-

Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi holds that, "[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond

holding in Apprendi, making it applicable to capital cases. See Ring v. Arizona, 536

U.S. 584 (2002). We have subsequently considered the effect of Ring on Florida's

capital sentencing scheme in Bottoson v. Moore, 833 So. 2d 693 (Fla.), cert denied,

123 S. Ct. 662 (2002), and King v. Moore, 831 So. 2d 143 (Fla.), cert. denied, 123

S. Ct. 657 (2002). In Bottoson and King, we discussed the application of Ring and

Apprendi to Florida's capital sentencing scheme, and rejected the constitutional

challenge, as we do here. We also note that Wright was found guilty by the same

jury of burglary and sexual battery beyond a reasonable doubt. Therefore, we deny

Finally, Wright argues that this Court struck an aggravating circumstance on

-33-

direct appeal and failed to reweigh the remaining aggravating and mitigating

circumstances as required by Sochor v. Florida, 504 U.S. 527 (1992). Wright also

seems to argue that there was mitigating evidence presented that should have been

found by the trial court.

On direct appeal, we affirmed the trial court's order finding there were no

mitigating circumstances. See Wright, 473 So. 2d at 1282. Wright did not raise this

claim in a motion for rehearing following our opinion in his initial appeal. We

therefore conclude that he abandoned this claim. See Lightbourne v. State, 841 So.

2d 431, 442 (Fla. 2003) (finding that a claim which could have been raised in a

motion for rehearing but was not was abandoned and procedurally barred from

consideration in a postconviction proceeding); see also Garcia v. State, 816 So. 2d

554, 569 (Fla. 2002). Therefore, to the extent Wright argues this Court erred in

failing to find the existence of mitigation, this claim is procedurally barred.

We also deny Wright's claim made pursuant to Sochor v. Florida. On direct

appeal, we struck the cold, calculated, and premeditated (CCP) aggravating factor,

finding that the degree of heightened premeditation necessary for CCP was not

proved beyond a reasonable doubt. We stated: "Because the court properly found

there were no mitigating and three aggravating circumstances, we conclude the

imposition of the death penalty was correct and find it unnecessary to remand for a

introduced in October 2001. See Fla. R. Crim. P. 3.851.

after the defendant committed rape and burglary; (2) the murder was committed for

the purpose of avoiding or preventing a lawful arrest; and (3) the murder was

especially heinous, atrocious, or cruel.

-34-

new sentencing hearing. We also find the imposition of the death penalty in this

case is proportionately correct." Wright, 473 So. 2d at 1282 (citations omitted).

We note that both our decision on direct appeal and our decision in Wright's appeal

of the denial of his first 3.850 motion were issued prior to the Supreme Court's

decision in Sochor. This habeas petition, filed nearly ten years after this claim

We conclude that even after removing CCP from consideration of the valid

valid mitigating circumstances exist. "Striking one aggravating factor when there are

no mitigating circumstances does not necessarily require resentencing because, ‘[i]f

there is no likelihood of a different sentence, the error must be deemed harmless.’"

Sochor v. State, 619 So. 2d 285, 293 (Fla. 1993) (quoting Rogers v. State, 511 So.

2d 526, 535 (Fla. 1987). Under the circumstances of this case, we find that there is

no likelihood of a different sentence even if the CCP aggravator had been eliminated

from the trial court's consideration. Thus, the trial court's reliance on the

following aggravating circumstances:

-35-

unsupported aggravator was harmless error. See Bruno v. Moore, 838 So. 2d 485

(Fla. 2002); Sochor, 619 So. 2d at 293. We therefore deny relief on this claim.

For all of the reasons stated above, we affirm the trial court's denial of

postconviction relief. We also deny Wright’s petition for a writ of habeas corpus.

It is so ordered.

WELLS, PARIENTE, and QUINCE, JJ., and SHAW, Senior Justice, concur.

LEWIS, J., concurs in result only.

ANSTEAD, C.J., concurs in part and dissents in part with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF

FILED, DETERMINED.

ANSTEAD, C.J., concurring in part and dissenting in part.

For the reasons I expressed in my opinion in Duest v. State, No. SC00-2366

(Fla. June 26, 2003), I cannot agree with the majority's discussion of Ring v.

Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

The trial judge in this case found four aggravating circumstances, including

that the murder was committed after the defendant committed burglary and sexual

(1) the murder took place after the defendant committed rape and

burglary; (2) the murder was committed for the purpose of avoiding or

preventing a lawful arrest; (3) the murder was especially heinous,

atrocious, and cruel; (4) the murder was committed in a cold, calculated,

and premeditated manner without any pretense of moral or legal

justification.

Wright v. State, 473 So. 2d 1277, 1281 (Fla. 1985).

contemporaneous conviction of second-degree grand theft as a basis for rejecting the

claim, although grand theft is not one of the crimes listed as a statutory basis for

finding this aggravating circumstance. § 921.141(5)(d), Fla. Stat. (1983).

affected in situations where an aggravating circumstance is struck, I would also grant

Wright's motion to file supplemental briefing on the Apprendi and Ring issue.

-36-

phase verdict finding the defendant guilty of burglary and sexual battery may be

used to support the judge's finding of the aggravating circumstance based on the

support in Florida's statutory death penalty scheme authorizing the Court to do this.

Moreover, this holding ignores the fact that the trial judge found three important

additional aggravating circumstances and expressly utilized them in imposing the

death sentence. These additional findings included an aggravating circumstance that

we struck on appeal. See Wright, 473 So. 2d at 1282 (holding that the trial court

the death sentence in this case was expressly predicated upon factual findings made

-37-

by the judge alone, a practice directly contrary to the express mandate of Ring

forbidding sentences based upon circumstances found by the judge alone.

An Appeal from the Circuit Court in and for Putnam County,

A. W. Nichols, III, Judge - Case No. 83-0376-CF-52

and An Original Proceeding - Habeas Corpus

Martin J. McClain, Special Assistant CCRC-South, Brooklyn, New York, and Neal

Andre Dupree, CCRC-South, Office of the Capital Collateral Regional Counsel for

the Southern Region, Fort Lauderdale, Florida,

for Appellant/Petitioner

Charles J. Crist, Jr., Attorney General, and Judy Taylor Rush and Douglas T.

Squire, Assistant Attorneys General, Daytona Beach, Florida,

for Appellee/Respondent