_____________________________/

COMES NOW, Respondent, JAMES V. CROSBY, JR., by and through

the undersigned Assistant Attorney General, and hereby responds

to the Petition for Writ of Habeas Corpus filed in the abovestyled

case. Respondent respectfully submits that the petition

should be denied, and states as grounds therefor:

On his direct appeal Mordenti’s appellate counsel raised the

following issues:

1. WHETHER THE TRIAL COURT COMMITTED

FUNDAMENTAL ERROR BY PERMITTING THE

HUSBAND AND WIFE PROSECUTORS TO TRY THE

CASE;

2. WHETHER THE TRIAL COURT ERRED BY FAILING

TO REPLACE JUROR HAIGHT;

3. WHETHER THE TRIAL COURT ERRED BY

ALLOWING TESTIMONY OF THE VICTIM’S

MOTHER AS TO IDENTITY AND BY ADMITTING

2

PHOTOS OF THE VICTIM;

4. WHETHER THE LOWER COURT ERRED REVERSIBLY

BY ALLEGEDLY ADMITTING EVIDENCE OF

APPELLANT’S PRIOR INVOLVEMENT WITH

CRIME;

5. WHETHER THE TRIAL COURT ERRED IN

INSTRUCTING THE JURY ON THE "HAC"

AGGRAVATOR;

6. WHETHER THE LOWER COURT ERRED IN

PERMITTING A REFERENCE TO "CON ARTIST"

IN THE PROSECUTOR’S CLOSING ARGUMENT;

7. WHETHER THE LOWER COURT ERRED WHEN IT

ALLOWED THE STATE ALLEGEDLY TO

"THREATEN" TO REBUT THE MITIGATING

FACTOR OF NO SIGNIFICANT HISTORY

8. WHETHER THE LOWER COURT ERRED WHEN IT

INSTRUCTED THE JURY ON BOTH THE "CCP"

AGGRAVATOR AND FINANCIAL GAIN

AGGRAVATOR; AND

9. WHETHER THE DEATH SENTENCE IS

DISPROPORTIONATE.

This Court affirmed the judgment and sentence of death.

Mordenti v. State, 630 So. 2d 1080 (Fla. 1994), cert. denied,

Mordenti v. Florida, 512 U.S. 1227 (1994).

In Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000), this

Court summarized and reiterated its jurisprudence relating to

claims of ineffective assistance of appellate counsel.

Subsequent decisions also repeat these principles. Habeas

3

corpus petitions are the proper vehicle to advance claims of

ineffective assistance of appellate counsel but such claims may

not be used to camouflage issues that should have been raised on

direct appeal or in a post-conviction motion. Id. at 643;

Thompson v. State, 759 So. 2d 650, 660, n. 6 (Fla. 2000);

Hardwick v. Dugger, 648 So. 2d 100, 106 (Fla. 1994). The

Court’s ability to grant relief is limited to those situations

where the petitioner established first that counsel’s

performance was deficient because the "omissions are of such

magnitude as to constitute a serious error or substantial

deficiency falling measurably outside the range of

professionally acceptable performance" and second that the

petitioner was prejudiced because counsel’s deficiency

"compromised the appellate process to such a degree as to

undermine confidence in the correctness of the result."

Rutherford at 643. Groover v. Singletary, 656 So. 2d 424, 425

(Fla. 1995).

If a legal issue would in all probability have been found

to be without merit had counsel raised the issue on direct

appeal, the failure of appellate counsel to raise the meritless

issue will not render his performance ineffective. This is

generally true as to issues that would have been found to be

procedurally barred had they been raised on direct appeal. Id.

4

at 643. Appellate counsel is not deficient for failing to

anticipate a change in the law. Darden v. State, 475 So. 2d

214, 216-17, (Fla. 1985); Lambrix v. Singletary, 641 So. 2d 847

(Fla. 1994). Appellate counsel is not ineffective for not

convincing the Court to rule in his favor on issues actually

raised on direct appeal and the Court will not consider a claim

on habeas that counsel was ineffective for failing to raise

additional arguments in support of the claim on appeal.

Rutherford at 645. Appellate counsel will not be faulted for

failing to investigate and present facts in order to support an

issue on appeal since the "appellate record is limited to the

record presented to the trial court". Id. at 646. Finney v.

State, 660 So. 2d 674, 684 (Fla. 1995).

Procedurally barred claims not properly raised at trial

could not form a basis for finding appellate counsel ineffective

absent a showing of fundamental error, i.e. error that "reaches

down into the validity of the trial itself to the extent that a

verdict of guilty could not have been obtained without the

assistance of the alleged error." Id. at 646; Chandler v.

State, 702 So. 2d 186, 191, n. 5 (Fla. 1997).

Moreover, appellate counsel cannot be deemed ineffective for

failing to raise on appeal a claim of ineffective trial counsel.

Id. at 648. Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla.

5

1987). The habeas corpus writ may not be used to reargue issues

raised and ruled upon because petitioner is dissatisfied with

the outcome on direct appeal. Appellate counsel is not required

to raise every conceivable claim. See Atkins v. Dugger, 541 So.

2d 1165, 1167 (Fla. 1989) ("Most successful appellate counsel

agree that from a tactical standpoint it is more advantageous to

raise only the strongest points on appeal and that the assertion

of every conceivable argument often has the effect of diluting

the impact of the stronger points"). Accord, Waterhouse v.

Moore, 838 So. 2d 480 (Fla. 2002); Porter v. Crosby, 840 So. 2d

981 (Fla. 2003); Sweet v. Moore, 822 So. 2d 1269 (Fla. 2002);

P.B. Johnson v. Moore, 837 So. 2d 343 (Fla. 2002); Cherry v.

Moore, 829 So. 2d 873 (Fla. 2002); Lawrence v. State/Moore, 831

So. 2d 121 (Fla. 2002); Gilliam v. State/Moore, 817 So. 2d 768

(Fla. 2002); Carroll v. State/Moore, 815 So. 2d 601 (Fla. 2002);

Downs v. Moore, 801 So. 2d 906 (Fla. 2001); Mann v. Moore, 794

So. 2d 595 (Fla. 2001); Jones v. Moore, 794 So. 2d 579 (Fla.

2001); Happ v. Moore, 784 So. 2d 1091 (Fla. 2001).

It is not sufficient as Petitioner seems to suggest in his

pleading simply to assert that deficiency is established by the

fact that supporting authority for an alleged error was extant

or that prejudice is established if this Court did not address

the claim on a previous appeal. Such a formula would render

6

Strickland v. Washington, 466 U.S. 668 (1984) and its progeny a

dead letter. Rather, as stated by this Court in Bruno v. Moore,

838 So. 2d 485 (Fla. 2002), quoting Pope v. Wainwright, 496 So.

2d 798, 800 (Fla. 1986) this Court must determine:

"Whether the alleged omissions are of such magnitude

as to constitute a serious error or substantial

deficiency falling measurably outside the range of

professionally acceptable performance and, second,

whether the deficiency in performance compromised the

appellate process to such a degree as to undermine

confidence in the correctness of the result."

(Emphasis supplied) (27 Fla. L. Weekly at S1027)

Moreover, a claim of ineffective assistance of appellate

counsel may not be used to circumvent the rule that habeas does

not serve as a second or substitute appeal, may not be used as

a variant to an issue already raised, nor added as an issue

raised in the 3.850 motion and appeal. Fotopoulos v. State, 838

So. 2d. 1122 (Fla. 2002).

Petitioner contends, as we can best determine the assertion,

that either fundamental error has occurred or appellate counsel

rendered ineffective assistance on direct appeal because this

Court’s opinion referred to witness Horace Barnes as Mordenti’s

"cellmate." Since Horace Barnes was not Petitioner’s cellmate,

7

the argument goes, this Court’s "reliance upon this information

constitutes plain error and fundamental error not subject to

harmless analysis" (Petition, p. 10). This contention is

meritless and at or near the border separating the insubstantial

from the frivolous.

At trial Horace Barnes testified that he was residing at the

Lewisburg, Pennsylvania federal prison following a prosecution

by the U.S. Attorney’s Office in Tampa (DAR 745-746). He met

Mordenti in October or November of 1989 (DAR 747). The trial

court sustained the defense objection to the witness’s statement

that Mordenti when he met him "let me know that he was in the

mob" (DAR 747-750). Barnes testified that when he went to see

Mordenti at his car lot in St. Petersburg with Joel Darden, he

saw Darden purchase a gun from Mordenti (DAR 750). On cross

examination Barnes admitted to numerous - more than five -

convictions (DAR 750-751). The testimony clearly established

that Barnes first met Mordenti in October or November 1989 (the

murder of Thelma Royston had occurred in June of 1989) and that

they had met at Mordenti’s place of business in St. Petersburg.

Mordenti chastises appellate counsel for the argument at

page 49 of the Initial Brief in Issue IV relating to the

allegedly impermissible evidence of prior involvement with crime

which recites:

8

"Clearly, the electrifying information first

from his ex-wife that appellant had ‘throw

away pieces’ and that ‘he was dealing with

some people that were shady’ and finally,

from Barnes, that he had introduced himself

(to someone in prison, perhaps when he

himself was in prison?) as someone ‘in the

mob’ is not the kind of error that will not

effect the jury’s deliberations."

Despite appellate counsel’s spirited advocacy on this point,

this Court found the testimony of "mob" association to be error,

but barred for the failure to request a mistrial and even if not

barred constituted harmless error. Mordenti v. State, 630 So.

2d at 1084-1085 (Fla. 1994). Neither appellate counsel’s

reference to Barnes’ imprisonment nor this Court’s perhaps

elliptical shorthand reference to "cellmate" amounts to anything

more than de minimis error. There can be no meaningful

comparison between this asserted error and Reed v. State, 837

So. 2d 366 (Fla. 2002), where this Court ruled prospectively

that the giving of the standard jury instruction for aggravated

child abuse was fundamental error when it inaccurately defined

the disputed element of malice. The misdescription or

mischaracterization of Barnes as a "cellmate" does not approach

fundamental error or error that goes to the core and undermines

confidence in the outcome of the trial, or in this case the

has become so trivialized to embrace every factual misstatement

in an appellate opinion, there will be little need for concern

about prison overcrowding, as the jail doors will be open after

the most cursory literary review.

9

This Court has indicated in the past that minor factual

inaccuracies that occur in the Court’s opinions do not

necessarily require granting postconviction relief. See, e.g.,

Happ v. Moore, 784 So. 2d 1091, 1098-1099 (Fla. 2001)("...the

corrected facts do not significantly alter the events believed

to have occurred in this case.") Thus, the ineffective counsel

claim in Happ was meritless as the performance did not

compromise the appellate process to such a degree as to

undermine confidence in the fairness and correctness of the

appellate result. Id. at 1099. Appellate counsel is not

ineffective for not convincing the court to rule in his favor on

issues actually raised on direct appeal. Rutherford v. Moore,

774 So. 2d 637, 645 (Fla. 2000); Routly v. Wainwright, 502 So.

2d 901, 903 (Fla. 1987); Grossman v. Dugger, 708 So. 2d 249, 252

(Fla. 1997).

Petitioner also repeats the contention urged in the motion

for post-conviction relief and appeal from denial of relief

therein that Gail Mordenti was only provided use immunity, not

as reported complete immunity. No extended response is

10

necessary. The State will address that issue in the Answer

Brief in the post-conviction appeal brief. Suffice it to say,

the trial court denied post-conviction relief, noting that the

jury heard her direct examination and cross-examination

testimony including her understanding of the immunity provided

and the jury "could then evaluate her credibility" (R X, 1386-

87). Respondent would add that even if it could be concluded

that Gail Mordenti misdescribed the immunity granted -- i.e.,

that she actually received only use immunity instead of full

immunity -- that misdescription could only redound to the

benefit of Petitioner since the jury might mistakenly believe

the witness had been given a greater benefit (and hence had

greater motivation to embellish) than was actually the case.

Petitioner may not permissibly urge on his habeas petition

the same claim asserted in his 3.850 motion or appeal from 3.850

denial. Fotopoulos v. State, 838 So. 2d. 1122 (Fla. 2002);

Randolph v. State, 853 So. 2d 1051 (Fla. 2003).

Petitioner’s claim for relief on this first issue is

meritless; relief must be denied.

Petitioner next argues that he should be entitled to relief

11

under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d

556 (2002). For the reasons that follow, relief must be denied.

Initially, Respondent would submit that the instant claim

is procedurally barred since Mordenti did not raise any

assertion contemporaneously before or at trial, or on direct

appeal, pertaining to a claim about the Sixth Amendment and the

jury’s participation in regard to aggravating factors at penalty

phase. See McGregor v. State, 789 So. 2d 976, 977 (Fla.

2001)(Apprendi claim procedurally barred for failure to raise in

trial court); Barnes v. State, 794 So. 2d 590 (Fla.

2001)(Apprendi error not preserved for appellate review). It is

clear that Mordenti did not at the time of trial or direct

appeal assert a claim that the Sixth Amendment right to jury

trial required the jury to find aggravating factors. While

petitioner might contend that Ring v. Arizona had not been

decided at the time of trial, that fact does not suffice to

avoid the procedural default. What is important is not the

existence of a particular decision but whether the tools were

available to construct the argument. Engle v. Isaac, 456 U.S.

107, 133 (1982); Pitts v. Cook, 923 F.2d 1568, 1571-1572 (11th

Cir. 1991). The Sixth Amendment right to jury trial has always

been known and the tools have been available for the defense to

construct the argument. See Proffitt v. Florida, 428 U.S. 242,

12

252 (1976)(holding Constitution does not require jury

sentencing); Hildwin v. Florida, 490 U.S. 638 (1989)("This case

presents us once again with the question whether the Sixth

Amendment requires a jury to specify the aggravating factors

that permit the imposition of capital punishment in Florida.");

Spaziano v. Florida, 468 U.S. 447 (1984). The decision in Ring

was not required as a predicate for counsel for Ring to assert

his Sixth Amendment claim in a timely and appropriate fashion in

the Arizona trial court.

Secondly, this Court has repeatedly and consistently denied

relief requested under Ring. See King v. Moore, 831 So. 2d 143

(Fla. 2002); Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002);

Marquard v. State/Moore, 850 So. 2d 417, 431 n 12 (Fla. 2002);

Chavez v. State, 832 So. 2d 730, 767 (Fla. 2002); Bruno v.

Moore, 838 So. 2d 485 (Fla. 2002); Fotopoulos v. State, 838 So.

2d 1122 (Fla. 2002); Lucas v. State/Moore, 841 So. 2d 380 (Fla.

2003); Porter v. Crosby, 840 So. 2d 981 (Fla. 2003)("Contrary to

Porter’s claims, we have repeatedly held that the maximum

penalty under the statute is death and have rejected the other

Apprendi arguments."); Spencer v. State, 842 So. 2d 52 (Fla.

2003); Conahan v. State, 844 So. 2d 629 (Fla. 2003); Anderson v.

State, 841 So. 2d 390 (Fla. 2003); Cole v. State, 841 So. 2d 409

(Fla. 2003); Doorbal v. State, 837 So. 2d 940 (Fla. 2003);

13

Kormondy v. State, 845 So. 2d 41 (Fla. 2003)("Ring does not

require either notice of the aggravating factors that the State

will present at sentencing or a special verdict form indicating

the aggravating factors found by the jury."); R. S. Jones v.

State/Crosby, 845 So. 2d 55 (Fla. 2003); Lugo v. State, 845 So.

2d 74 (Fla. 2003); Lawrence v. State, 846 So. 2d 440 (Fla.

2003); Banks v. State/Crosby, 842 So. 2d 788 (Fla. 2003); Grim

v. State, 841 So. 2d 455 (Fla. 2003), Butler v. State, 842 So.

2d 817 (Fla. 2003) (relying on Bottoson v. Moore, 833 So. 2d

693 and King v. Moore, 831 So. 2d 143 to a Ring claim in a

single aggravator (HAC) case); Chandler v. State, 848 So. 2d

1031, 1034 n 4 (Fla. 2003); Pace v. State/Crosby, 854 So. 2d 167

(Fla. 2003); Cooper v. State/Crosby, ___ So. 2d ___, 28 Fla. L.

Weekly S 497 (Fla., June 26, 2003); Duest v. State, ___ So. 2d

___, 28 Fla. L. Weekly S 501 (Fla. June 26, 2003); Blackwelder

v. State, 851 So. 2d 650 (Fla. 2003); Wright v. State/Crosby,

___ So. 2d ___, 28 Fla. L. Weekly S 517 (Fla., July 3, 2003).

See also Nelson v. State, 850 So. 2d 514 (Fla. 2003); Caballero

v. State, 851 So. 2d 655 (Fla. 2003); Belcher v. State, 851 So.

2d 678 (Fla. 2003); Allen v. State/Crosby, ___ So. 2d ___, 28

Fla. L. Weekly S 604 (Fla., July 10, 2003); Fennie v.

State/Crosby, ___ So. 2d ___, 28 Fla. L. Weekly S 619 n 10

(Fla., July 11, 2003); Owen v. Crosby/State, 854 So. 2d 182

14

(Fla. 2003); McCoy v. State, 853 So. 2d 396 (Fla. 2003); Conde

v. State, ___ So. 2d ___, 28 Fla. L. Weekly S 669 (Fla., Sept.

4, 2003); Stewart v. State, ___ So. 2d ___, 28 Fla. L. Weekly S

700 (Fla., Sept. 11, 2003); Jones v. State/Crosby, ___ So. 2d

___, 28 Fla. L. Weekly S 701 (Fla., Sept. 11, 2003); Rivera v.

State/Crosby, ___ So. 2d ___, 28 Fla. L. Weekly S 704 (Fla.,

Sept. 11, 2003); Davis v. State, ___ So. 2d ___, 28 Fla. L.

Weekly S 692 (Fla., Sept. 11, 2003); F. Anderson v. State, ___

So. 2d ___, 28 Fla. L. Weekly S 731 (Fla., Sept. 25, 2003); J.

Henry v. State, ___ So. 2d ___, 28 Fla. L. Weekly S 753 (Fla.,

Oct. 9, 2003); Cummings-El v. State, ___ So. 2d ___, 28 Fla. L.

Weekly S 757 (Fla., Oct. 9, 2003); R. L. Johnston v. State, ___

So. 2d ___, 28 Fla. L. Weekly S 779, 783 (Fla., Oct. 16, 2003);

Owen v. State, ___ So. 2d ___, 28 Fla. L. Weekly S 790, 795

(Fla., Oct. 23, 2003).

Despite Petitioner’s attempt to cobble a majority view out

of excerpts of concurring opinions of a few individual justices

which have not commanded a majority view, the fact remains that

this Court has consistently maintained that, unlike the

situation in Arizona, the statutory maximum sentence for first

degree murder is death. See Mills v. Moore, 786 So. 2d 532,

536-538 (Fla. 2001); Mann v. Moore, 794 So. 2d 595, 599 (Fla.

15

61 (Fla. 2002)("This Court has defined a capital felony to be

one where the maximum possible punishment is death. [citation

omitted] The only such crime in the State of Florida is

first-degree murder, premeditated or felony.").

Petitioner’s contention that a prior felony conviction

aggravator is required for exemption is mistaken. See Butler v.

Third, any error must be regarded as harmless error. The

jury at the guilt phase unanimously found Mordenti guilty of

first degree murder and conspiracy to commit murder (DAR 1300-

02; DAR 1735). The jury was instructed on three aggravators:

(1) that the murder was committed for pecuniary gain; (2) that

the murder was particularly heinous, atrocious or cruel; and (3)

that the murder was cold, calculated and premeditated. The jury

was also instructed on the available mitigating circumstances

and that each aggravating circumstance must be proved beyond a

reasonable doubt before it may be considered in arriving at

their decision (DAR 1489-96). The jury adequately participated

in the sentencing process. See Hildwin v. Florida, 490 U.S. 638

(1989).

Moreover, the jury in fact and in effect found unanimously

the aggravating factors of heightened premeditation and

pecuniary gain in the guilt phase by the return of a guilty

16

verdict as to Count II, conspiracy to commit first degree

murder. Count II recites:

"COUNT TWO

The Grand Jurors of the County of

Hillsborough, State of Florida, charge that

on or about the 7th day of June, 1989, in

the County of Hillsborough and elsewhere in

the State of Florida, LARRY ROYSTON and

MICHAEL MORDENTI did unlawfully and

feloniously conspire, combine, confederate,

and agree with and among themselves and with

others, both known and unknown, to commit a

felony, to-wit: Murder in the First Degree,

in that LARRY ROYSTON did solicit MICHAEL

MORDENTI to kill THELMA ROYSTON in return

for a sum of money, and MICHAEL MORDENTI

having so agreed, did in fact murder or

cause the murder of THELMA ROYSTON by the

shooting of her with a firearm and the

stabbing of her with a knife, and said

MICHAEL MORDENTI did thereafter receive

money from LARRY ROYSTON in fulfillment of

this contract to commit murder for hire,

contrary to the form of the statute in such

cases made and provided, to-wit: Florida

Statute 782.04 (1) and 777.04 (3)." (DAR

1592)

The jury returned its verdict of guilty of conspiracy to

commit murder in the first degree "as charged" (DAR 1300; DAR

1735). Since the jury confirmed unanimously and beyond a

reasonable doubt that Mordenti had agreed to, and did, murder

Thelma Royston and that "MICHAEL MORDENTI did thereafter receive

money from LARRY ROYSTON in fulfillment of this contract to

commit murder for hire," it is clear that the jury found the

pecuniary gain factor at both guilt and penalty phases. Thus,

17

this case is in the same posture as a number of other cases

wherein this Court has rejected Ring challenges either because

of the presence of the prior felony conviction aggravator or the

presence of another felony with a unanimous jury verdict of

guilty.

Finally, Petitioner is not entitled to relief -- since Ring

v. Arizona is not retroactive to cases that have become final --

on collateral challenge.

In Teague v. Lane, 489 U.S. 288 (1989), the United States

Supreme Court announced that new constitutional rules of

criminal procedure will not be applicable to cases which have

become final before the new rules are announced, unless they

fall within an exception to the general rule. 489 U.S. at 310.

A case announces a new rule when it breaks new ground or imposes

a new obligation on the state or the federal government. To put

it differently, a case announces a new rule if the result was

conviction became final. Id. at 301. A case is final when the

judgment of conviction has been rendered, the availability of

appeal exhausted and the time for petition for certiorari has

elapsed. Mordenti’s case became final with this Court’s

affirmance of the judgment and sentence on direct appeal and the

denial of certiorari on June 20, 1994. Mordenti v. State, 630

not receive the benefit of Batson v. Kentucky, 476 U.S. 79

(1986), decided subsequently to petitioner’s conviction since

the absence of a fair cross section on the jury venire does not

undermine the fundamental fairness that must underlie a

conviction or seriously diminish the likelihood of obtaining an

accurate conviction. The rule requiring petit juries be

composed of a fair cross section of the community was not a

bedrock procedural element. Id. at 315.

18

So. 2d 1080 (Fla. 1994), cert. denied, 512 U.S. 1227 (1994).

The Teague Court announced two exceptions to the general rule on

non-retroactivity. First, a new rule should be applied

retroactively if it places a certain kind of primary, private

individual conduct beyond the power of the criminal law-making

authority to proscribe. Id. at 311. The second exception,

derived from an earlier view by Justice Harlan, requires that

of a particular conviction." Thus, this exception is limited in

scope to "those new procedures without which the likelihood of

an accurate conviction is seriously diminished." 489 U.S. at

this standard. In Sawyer v. Smith, 497 U.S. 227 (1990), the

Court rejected a defense argument that the second Teague

exception should be read only to include new rules of capital

sentencing that "preserve the accuracy and fairness of capital

sentencing judgments":

19

It is thus not enough under Teague to say

that a new rule is aimed at improving the

accuracy of trial. More is required. A

rule that qualifies under this exception

must not only improve accuracy, but also

fairness of a proceeding. (497 U.S. at

242.)

The Sawyer Court echoed Teague that the second exception is

directed only at new rules essential to the accuracy and

fairness of the trial and it is "unlikely that many such

components of basic due process have yet to emerge. 489 U.S. at

313." 497 U.S. at 243. Consequently, the petitioner was not

entitled to habeas relief by reliance on Caldwell v.

Mississippi, 472 U.S. 320 (1985), decided subsequently to when

his murder conviction became final. While Caldwell announced a

new rule, it did not come within the Teague exception for

"watershed rules fundamental to the integrity of the criminal

proceeding." 497 U.S. at 229. In Graham v. Collins, 506 U.S.

461 (1993), the Court held that a claim that the Texas capital

sentencing procedures barred the jury from giving effect to

particular mitigating evidence was held to propose a new rule.

Prior case law did not "dictate" the result requested. The new

rule sought by Graham did not decriminalize a class of conduct

nor did Graham’s special jury instructions concerning his

mitigating evidence of youth, family background and positive

20

character traits seriously diminish the likelihood of obtaining

an accurate determination in his sentencing proceeding. 506

U.S. at 477-478.

In Tyler v. Cain, 533 U.S. 656, 150 L.Ed.2d 632 (2001), a

petitioner argued in a second federal habeas petition that he

was entitled to the retroactive benefit of the jury instruction

rule in Cage v. Louisiana, 498 U.S. 39 (1990), that a jury

instruction is unconstitutional if there is a reasonable

likelihood that the jury understood the instruction to allow

conviction without proof beyond a reasonable doubt. The Court

denied relief noting that it had not made Cage retroactive.

Moreover, in footnote 7 of the opinion, the Court explained that

the second Teague exception is available only if the new rule

"alters our understanding of the bedrock procedural elements"

essential to the fairness of a proceeding. Even classifying an

error as structural does not necessarily alter our understanding

of these bedrock procedural elements. Nor can it be said that

all new rules relating to due process alter such understanding.

The second Teague exception is reserved only for truly

"watershed" rules, a small core of rules which not only

seriously enhance accuracy but also require observance of those

procedures that are implicit in the concept of ordered liberty.

See also Butler v. McKellar, 494 U.S. 407 (1990)(rejecting

21

collateral attack under the Teague retroactivity standard and

holding that Arizona v. Roberson, 486 U.S. 675 (1988) announced

a new rule even though the Court had said Roberson was directly

controlled by Edwards v. Arizona, 451 U.S. 477 (1981)):

But the fact that a court says that its

decision is within the "logical compass" of

an earlier decision, or indeed that it is

"controlled" by a prior decision, is not

conclusive for purposes of deciding whether

the current decision is a "new rule" under

Teague. Courts frequently view their

decisions as being "controlled" or

"governed" by prior opinions even when aware

of reasonable contrary conclusions reached

by other courts. . . That the outcome in

Roberson was susceptible to debate among

reasonable minds is evidenced further by the

differing positions taken by the judges of

the Courts of Appeals for the Fourth and

Seventh Circuits noted previously. It would

not have been an illogical or even a

grudging application of Edwards to decide

that it did not extend to the facts of

Roberson. (Id. at 415.)

Saffle v. Parks, 494 U.S. 484 (1990)(rejecting defense claim

that rule should be announced as to how the jury must consider

the mitigating evidence and even if declared such a new rule

would not be a watershed rule of criminal procedure implicating

the fundamental fairness and accuracy of the criminal

proceeding); Lambrix v. Singletary, 520 U.S. 518, 539-40

(1997)(holding that Espinosa v. Florida, 505 U.S. 1079 (1992)

announced a new rule under Teague but that neither of the two

exceptions were applicable: neither a class of private conduct

22

was placed beyond the power of the state to proscribe nor was it

a watershed rule implicating the fundamental fairness and

accuracy of the criminal proceeding).

Ring arises from application of Apprendi v. New Jersey, 530

U.S. 466 (2000) to Arizona’s capital scheme. Every federal

circuit court to address the issue has found that Apprendi is

not retroactive. E.g., United States v. Sanders, 247 F.3d 139,

146-51 (4th Cir. 2001)(finding that Apprendi’s requirements of

jury finding beyond a reasonable doubt of fact that increases

statutory maximum for an offense "are not the types of watershed

rules implicating fundamental fairness that require retroactive

application."); United States v. Brown, 305 F.3d 304 (5th Cir.

2002); Goode v. United States, 305 F.3d 378 (6th Cir.

2002)("Apprendi does not create a new ‘watershed rule.’");

Curtis v. United States, 294 F.3d 841 (7th Cir. 2002); United

States v. Moss, 252 F.3d 993, 996-1001 (8th Cir. 2001)("Apprendi

is not of watershed magnitude."); United States v.

Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002); United States

v. Mora, 293 F.3d 1213 (10th Cir. 2002); McCoy v. United States,

266 F.3d 1245 (11th Cir. 2001); Coleman v. United States, 329

F.3d 77 (2d Cir. 2003); Sepulveda v. United States, 330 F.3d 55

(1st Cir. 2003). Several state courts have similarly held that

Apprendi (and therefore Ring) does not apply retroactively.

23

E.g., Sanders v. State, 815 So. 2d 590 (Ala. Crim. App. 2001);

Whisler v. State, 36 P.3d 290 (Kan. 2001); State v. Sprick, 59

S.W.3d 515 (Mo. 2001); State v. Tallard, 816 A.2d 977 (NH

2003)(applying Teague test to deny Apprendi claim collaterally

in New Hampshire); People v. DeLaPaz, 791 N.E.2d 489 (Ill.

2003). In fact, the United States Supreme Court is clearly not

of the opinion that its holding in Apprendi is retroactive. It

has itself procedurally barred an Apprendi claim. See United

States v. Cotton, 122 S. Ct. 1781 (2002)(finding that Apprendi

error did not qualify as plain error, the federal equivalent of

fundamental error). See also In Re Johnson, 334 F.3d 403 n 1

(5th Cir. 2003)(noting that while the Court need not reach the

issue, "since the rule in Ring is essentially an application of

Apprendi, logical consistency suggests that the rule announced

in Ring is not retroactively available"); Moore v. Kinney, 320

F.3d 767, 771 n 3 (8th Cir. 2003)("Absent an express

pronouncement on retroactivity from the Supreme Court, the rule

from Ring is not retroactive"); Turner v. Crosby, 339 F.3d 1247,

1282 (11th Cir. 2003)(Turner is procedurally barred from bring

a Ring claim . . . and alternatively, Ring does not apply

retroactively to Turner); Colwell v. State, 59 P.3d 463 (Nev.

2002)(retroactive application of Ring on collateral review is

not warranted); State v. Towery, 64 P.3d 828 (Ariz. 2003)(Ring

24

does not apply retroactively); Cannon v. Mullin, 297 F.3d 989

(10th Cir. 2002)(Cannon has failed to make a prima facie showing

that the Supreme Court has made Ring retroactively applicable to

cases on collateral review); Sibley v. Culliver, 243 F.Supp.2d

1278 (U.S.D.C., M.D. Ala., N.D. 2003)("...the Court concludes

that Ring may not be applied retroactively to Sibley’s case

which is on collateral review"); State v. Lotter, 664 N.W.2d 892

(Neb. 2003)(holding that Ring announced a new rule of criminal

procedure which does not fall within either Teague exception to

rule of nonretroactivity, and thus denying relief on collateral

challenge to conviction); contra, State v. Whitfield, 107 S.W.3d

253 (Mo. 2003); Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.

2003).

Mordenti cannot prevail on his claim for entitlement to

relief by retroactive application of Ring in this postconviction

challenge. Ring announced a change in procedural law. In

Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that

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

statutory maximum for a crime must be presented to the jury and

proven beyond a reasonable doubt. Ring applied Apprendi to

Arizona’s sentencing scheme. As explained above, the maximum

sentence for first degree murder is death in Florida, unlike the

situation in Arizona. In any event, Ring only involves a

25

procedural question -- who decides a given question, the judge

or jury. The courts have recognized that jury involvement in

capital sentencing does not enhance accuracy. Not only is the

requirement of improving the accuracy of a trial unsatisfied by

application of Ring to the instant case, but also it is not a

bedrock procedural element essential to the fairness of a

proceeding, i.e., one that is implicit in the concept of ordered

Teague is inapplicable since prosecution for first degree murder

is not proscribed due to primary, private, individual conduct

beyond the power of the criminal law-making authority to

proscribe.

Similarly, Mordenti cannot prevail under this Court’s

standard of retroactivity under the principles of Witt v. State,

387 So. 2d 922 (Fla. 1980), which requires a decision of

fundamental significance which so drastically alters the

underpinnings of Mordenti’s death sentence that "obvious

injustice" exists. See New v. State, 807 So. 2d 52 (Fla. 2001);

Ferguson v. State, 789 So. 2d 306, 311 (Fla. 2001)(The Court

must consider three factors: the purpose served by the new case,

the extent of reliance on the old law; and the effect on the

administration of justice from retroactive application).

26

Mordenti cannot show that adoption of Ring satisfies these

criteria.

Petitioner’s claim for relief must be denied.

The substantive claim regarding the prosecutor’s remarks in

opening statement at the beginning of the penalty phase (DAR

1369) and in the closing penalty phase argument (DAR 1456, 1468-

69) is procedurally barred and not cognizable collaterally as

assertions of improper prosecutorial comments and arguments

should be urged on direct appeal and habeas corpus petitions do

not constitute a second appeal. See generally, Cherry v. State,

659 So. 2d 1069, 1072 (Fla. 1995); Doyle v. State, 526 So. 2d

909, 911 (Fla. 1988).

Habeas corpus petitions are the proper vehicle to advance

claims of ineffective assistance of appellate counsel but such

claims may not be used to camouflage issues that should have

been raised on direct appeal or in a post-conviction motion.

Rutherford v. Moore, 774 So. 2d 637, 647 (Fla. 2000); Thompson

v. State, 759 So. 2d 650, 657, n 6 (Fla. 2000); Hardwick v.

Dugger, 648 So. 2d 100, 106 (Fla. 1994).

Appellate counsel does not render ineffective assistance for

counsel, there is the complaint that:

"The prosecutor concluded:

Nothing that the defense can say,

nothing that the defense can do

can mitigate this murder. Any

killing of a human being is

27

failing to argue on appeal an issue that has not been preserved

by contemporaneous objection at trial. There were no defense

objections to the comments at DAR 1369, 1456, and 1468-69.

Since not preserved, counsel was not deficient in failing to

910 (Fla. 2001); Carroll v. State, 815 So. 2d 601, 621 (Fla.

2002); Cherry v. Moore, 829 So. 2d 873 (Fla. 2002); Lawrence v.

State, 831 So. 2d 121, 134 (Fla. 2002). The prosecutor’s

comments did not constitute fundamental error and were

appropriate advocacy as justice under the facts of this case --

a cold-blooded, premeditated contract killing merited the death

penalty given the paucity of any meaningful suggested

mitigation. There is no fundamental error. P. A. Brown v.

State/Crosby, 846 So. 2d 1114 (Fla. 2003).

Moreover, the current argument is a variant of the appellate

counsel’s complaint about the prosecutor’s remarks at DAR 1465-

atrocious. Any killing of a human

being is aggravating. Nothing

mitigates the killing of a human

being, but absolutely nothing at

all mitigates this. Nothing.

Nothing mitigates this." (DAR

1468-69)

28

previously ruled that the unpreserved issues raised did not

amount to fundamental error. Mordenti v. State, 630 So. 2d

1080, 1084 (Fla. 1994); see also Damren v. State/Crosby, 838 So.

2d 512 (Fla. 2003); Porter v. Crosby, 840 So. 2d 981 (Fla.

2003); Thompson v. State, 759 So. 2d 650, 657 n 6 (Fla. 2000).

Finally, the claim is procedurally barred as it was raised

as Issue XXIV in his Rule 3.850 motion and rejected as barred by

the trial court (R 5, 639-643; R 9, 1211). Habeas corpus may

not be used as a substitute or additional appeal of his postconviction

motion. Rutherford at 643; Gilliam v. State, 817 So.

2d 768, 781 n 20 (Fla. 2002); Randolph v. State, 853 So. 2d

1051, 1068 (Fla. 2003)("Additionally, this claim is a reargument

of a claim from Randolph’s 3.850 appeal couched in an

ineffectiveness of appellate counsel argument. Thus, to the

extent that Randolph is attempting to use this habeas petition

as a substitute or an additional appeal of his post conviction

motion, Randolph’s claim is denied. Hardwick v. Dugger, 648 So.

2d 100, 105 (Fla. 1994)"); Fotopoulos v. State, 838 So. 2d 1122

(Fla. 2002)(Citing such cases as Medina v. Dugger, 586 So. 2d

29

317, 318 (Fla. 1991), Thompson v. State, 759 So. 2d 650, 657 n

6 (Fla. 2000), and Mann v. Moore, 794 So. 2d 595, 600-01 (Fla.

2001), Court concludes that identical claims of ineffective

appellate counsel [as those raised in 3.850 appeal] were

procedurally barred).

The substantive claim is not cognizable on habeas corpus and

is procedurally barred, as it was a claim to be urged if at all

on direct appeal and habeas corpus does not function as a second

claim was not preserved for appellate review by objection below.

Appellate counsel is not ineffective for failing to argue

State/Crosby, 854 So. 2d 167 (Fla. 2003); Marquard v.

State/Moore, 850 So. 2d 417 (Fla. 2002); Randolph v.

State/Crosby, 853 So. 2d 1051 (Fla. 2003); P. A. Brown v.

State/Crosby, 846 So. 2d 1114 (Fla. 2003); Gore v. State/Crosby,

846 So. 2d 461 (Fla. 2003); R. Jones v. State/Crosby, 845 So. 2d

55 (Fla. 2003).

Moreover, the instant claim was asserted as Claim XXVI below

(R5, 646) which the trial court rejected as procedurally barred

30

(R9, 1213). It is impermissible to raise as a claim the same

issue or variant in both the 3.850 proceeding and habeas

(Fla. 2001); Parker v. Dugger, 550 So. 2d 459, 460 (Fla. 1989).

Additionally and alternatively the claim is meritless. The

record reflects that after the guilt phase juror Baker admitted

telling people he was on jury duty -- a murder trial -- and was

not to talk about it. He heard that Barry Cohen was a previous

defense attorney (DAR 1324-25). He told attorney Jimmy Muench

whom he saw in court that he was on a jury trial in a murder

case and wasn’t to discuss anything; he knew Muench because

Baker was a witness in a civil suit Muench was handling and had

been deposed (DAR 1325-28). The defense declined to ask Baker

questions but suggested making inquiry of the jurors

individually (DAR 1326, 1330). The court was apprised that

Cohen’s name was mentioned and during the trial (DAR 1331,

1349). The court then questioned each juror individually and

gave a similar opportunity to counsel as to whether they had

been exposed to anything or discussed the case (DAR 1333-1348).

All indicated there was not exposure that would limit their

impartiality. Juror Johnston indicated that while at work

31

someone mentioned that Royston committed suicide -- he did not

participate in the conversation and left the room (DAR 1342).

It would not affect his ability to be fair and impartial (DAR

1344). Defense counsel stated they heard a reasonable

explanation about Baker having heard about Mr. Cohen and there

was no problem with the other jurors; he talked to his client

about juror Johnston, then announced he had no further comment

on Johnston. The court ruled there was no reason to remove them

from the jury (DAR 1349-50). The defense had no objection to

the court excusing the alternate jurors at that time (DAR 1350).

This claim is barred and meritless.

This claim is procedurally barred because it could have been

raised as an issue on direct appeal and habeas corpus does not

Additionally, relief must be denied since Petitioner does

not allege facts -- only conclusions -- for his claim nor does

he allege prejudice. No relief is available where Petitioner

fails to demonstrate how a defective transcript prejudiced his

direct appeal. See Velez v. State, 645 So. 2d 42 (Fla. 4th DCA

32

1994); White v. Singletary, 939 F.2d 912, 914 (11th Cir. 1991);

Ferguson v. Singletary, 632 So. 2d 53, 58 (Fla. 1993); Cherry v.

State, 659 So. 2d 1069, 1071 n. 1 (Fla. 1995); Thompson v.

State, 759 So. 2d 650, 660 (Fla. 2000); Huff v. State, 762 So.

2d 476, 478 n. 2 (Fla. 2000); Freeman v. State, 761 So. 2d 1055,

1061 n. 3 (Fla. 2000)("Even if the Court were to assume that

failure to include this portion of the record fell measurably

below the standard of competent counsel, Freeman has not

demonstrated that the failure prejudiced him." Id. at 1073).

The transcript of the tape contention is meritless since

this Court had access to the actual tape for appellate review.

Furthermore, Petitioner has attempted here to reassert the

same claim as urged in Claim V below which the trial court

rejected as procedurally barred (R5, 570-574; R9, 1189-90).

Habeas corpus may not be used as a substitute or additional

The substantive claim regarding the jury instruction is not

33

cognizable on this petition and is procedurally barred since it

is an issue that could have been urged on direct appeal and

habeas corpus is not a second appeal. See Rutherford v. Moore,

774 So. 2d 637, 643 (Fla. 2000); Thompson v. State, 759 So. 2d

650, 660, n. 6 (Fla. 2000); Hardwick v. Dugger, 648 So. 2d 100,

106 (Fla. 1994).

Petitioner acknowledges that trial counsel did not object

to the instruction and thus it was not preserved for appellate

review. Appellate counsel is not deficient in failing to assert

an issue that has not been preserved by appropriate objection in

Additionally, Petitioner is impermissibly seeking to raise

here the same claim presented as Claim X below in the postconviction

motion which the trial court rejected as procedurally

Petitioner next contends that the prosecutor’s closing

34

arguments in the penalty phase (DAR 1465-69) were improper and

inflammatory and rendered the proceedings fundamentally unfair.

As to the substantive claim itself, any claim regarding the

prosecutor’s comments and arguments is procedurally barred as it

could have been urged on direct appeal and habeas corpus may not

be used as a substitute for, or a second, appeal. See Cherry,

As to an assertion that appellate counsel may have been

ineffective, counsel cannot be deemed derelict in failing to

argue claims that have not been preserved by proper and

contemporaneous objection in the trial court. See Rutherford,

Additionally, appellate counsel nevertheless did argue

unpreserved prosecutorial remarks found at DAR 1465-1469 in

Point V of the direct appeal brief and this Court determined

that many of the issues raised were barred and did not

constitute fundamental error. Mordenti v. State, 630 So. 2d

1080, 1084 (Fla. 1994).

The habeas corpus vehicle may not be used to reargue issues

raised and ruled upon, or a variant thereof because Petitioner

is dissatisfied with the outcome received on direct appeal.

Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987).

the victim’s eyes supported a finding of the HAC aggravator that

he was arguing to the jury.

35

None of the prosecutor’s now-challenged remarks qualify for

a finding of fundamental error, i.e., error that "reaches down

into the validity of the trial itself to the extent that a

verdict of guilty could not have been obtained without the

assistance of the alleged error." Rutherford v. Moore, 774 So.

2d 637, 646 (Fla. 2000); Chandler v. State, 702 So. 2d 186, 191

n. 5 (Fla. 1997)(describing "fundamental error" as error "so

prejudicial as to vitiate the entire trial"). In the penalty

phase, similarly, the alleged error must be such that the death

Respondent would further note that Petitioner asserted below

in his motion for post-conviction relief that the prosecutor had

given inflammatory and improper comments in the penalty phase at

Claim XIV (R5, 599-608) which the lower court rejected as

procedurally barred (R9, 1200). It is impermissible to raise

the same, or a variant of the same, issue in the habeas petition

36

This substantive claim is procedurally barred and is not

cognizable on habeas corpus review as it is a claim that could

have been and should have been raised on direct appeal and this

Court has repeatedly held that habeas corpus is not to be

Petitioner acknowledges that this Court’s opinions are to

the contrary but claims he is raising the issue "for purposes of

preservation." He may not permissibly do so, since he cannot

erase the procedural default simply by improperly urging it in

an untimely fashion. He must rather satisfy the cause and

prejudice test of Wainwright v. Sykes, 433 U.S. 72 (1977) and

since he has failed to do so, the claim remains procedurally

barred. Petitioner acknowledges that this Court has previously

rejected such claims challenging the constitutional validity of

n 6; Elledge v. State, 706 So. 2d 1340, 1347, n 9 (Fla. 1997);

Foster v. State, 679 So. 2d 747, 751-752, nn 4-5 (Fla. 1996).

Finally, relief must be denied since petitioner is repeating in

this petition a similar claim asserted and rejected below as

37

procedurally barred in Claim XXII of the post-conviction motion.

38

Honorable Court DENY Mordenti’s Petition for Writ of Habeas

Corpus.

foregoing has been furnished by U.S. Regular Mail, to Martin J.

McClain, Esq., 141 N.E. 30th St., Wilton Manors, FL 33334, this

10th day of November, 2003.

this response is 12-point Courier New, in compliance with Fla.

R. App. P. 9.210(a)(2).

Respectfully submitted,

Assistant Attorney General

Florida Bar I.D. No.: 0134101

Concourse Center 4

3507 E. Frontage Road, Ste. 200

Tampa, Florida 33607

(813) 287-7910

(813) 281-5501 Facsimile

COUNSEL FOR RESPONDENT

1If the doctrine of fundamental error as imagined by Petitioner

prior affirmance of the judgment and sentence on direct appeal.1

2001); Porter v. Crosby, supra; Shere v. Moore, 830 So. 2d 56,

State, supra.

not dictated by precedent existing at the time the defendant’s

2In Teague itself the court determined that the petitioner could

the new rule must "alter our understanding of the bedrock

procedural elements that must be found to vitiate the fairness

311-313.2 Subsequent Supreme Court decisions have reinforced

"‘alter our understanding of the bedrock

procedural elements’" essential to the

liberty as explained in Teague, supra, Sawyer, supra, and Tyler,

supra. It goes without saying that the first exception of