Thomas v. Secretary, Florida Department of Corrections et al
Filing
40
ORDER granting 24 MOTION to Dismiss for Lack of Jurisdiction; dismissing without prejudice 1 Petition for Writ of Habeas Corpus as an unauthorized second or successive habeas petition. Signed by Judge Timothy J. Corrigan on 4/7/2023. (JHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM GREG THOMAS,
Petitioner,
v.
Case No.: 3:17-cv-662-TJC-JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner William Greg Thomas is a Florida prisoner convicted and
sentenced to death for kidnapping and murdering his wife (“the wife-murder”).
Thomas v. State, 693 So. 2d 951, 951 (Fla. 1997) (“Thomas I”). 1 This case is
about his second Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 as
it relates to the wife-murder. (Doc. 1, “Second Petition.”) 2 Petitioner raises two
Under a negotiated plea agreement, Petitioner was also convicted and sentenced to life
in prison without the possibility of parole for murdering his mother (“the mother-murder”).
See Thomas v. State, 838 So. 2d 535, 539 & n.4 (Fla. 2003) (“Thomas II”).
1
Petitioner first sought federal habeas relief from the convictions and death sentence
for the wife-murder in Case Number 3:03-cv-237-TJC-PDB (“First Petition” or “First Habeas
Case”). The First Habeas Case was the subject of extensive litigation over equitable tolling
and the merits. See Thomas v. McDonough, 452 F. Supp. 2d 1203 (M.D. Fla. 2006) (“Thomas
III”); Thomas v. McNeil, No. 3:03-cv-237-TJC-PDB, 2009 WL 9081403 (M.D. Fla. Feb. 10,
2009) (“Thomas IV”); Thomas v. Sec’y, Fla. Dep’t of Corr., No. 3:03-cv-237-TJC-PDB, 2013 WL
11326723 (M.D. Fla. Sept. 3, 2013) (“Thomas V”); Thomas v. Att’y Gen., Fla., 795 F.3d 1286
(11th Cir. 2015) (“Thomas VI”); Thomas v. Att’y Gen. of Fla., No. 3:03-cv-237-TJC-PDB, 2018
WL 733631 (M.D. Fla. Feb. 6, 2018) (“Thomas VII”); Thomas v. Att’y Gen., 992 F.3d 1162 (11th
Cir. 2021) (“Thomas VIII”). The First Habeas Case is now closed.
2
1
grounds: (1) that throughout the trial and collateral proceedings, the State
violated its obligation to disclose exculpatory or impeachment evidence under
Mooney v. Holohan, 294 U.S. 103 (1935), Brady v. Maryland, 373 U.S. 83 (1963),
Giglio v. United States, 405 U.S. 150 (1972), and Banks v. Dretke, 540 U.S. 668
(2004) (“Brady/Giglio claims”); and (2) that Petitioner’s death sentence is illegal
because the Eighth and Fourteenth Amendments require the retroactive
application of Florida Statutes section 921.141 (2017) 3, which was passed after
Hurst v. Florida, 577 U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla.
2016), receded from by State v. Poole, 297 So. 3d 487 (Fla. 2020) (the “Hursttype claim”).
Respondents argue that the claims in the Second Petition are untimely,
procedurally defaulted, and meritless. (Doc. 8, Response.) Respondents also
move to dismiss the Second Petition as an unauthorized successive habeas
application. (Doc. 24, Motion to Dismiss; see also Doc. 8 at 8–13.) Petitioner has
replied to the Response (Doc. 13, Reply) and responded to the Motion to Dismiss
(Doc. 39, Response to Motion to Dismiss).
The Second Petition will be dismissed. Because litigation on the merits of
the First Petition had concluded in this Court when the Second Petition was
filed, and because neither ground in the Second Petition is exempt from the
Petitioner also cites Florida Statutes section 921.142, which is not relevant because
that statute deals with sentencing procedures for capital drug trafficking felonies.
3
2
“second or successive” bar under Panetti v. Quarterman, 551 U.S. 930 (2007),
the Second Petition is an unauthorized successive habeas application. See 28
U.S.C. § 2244(b)(3)(A). As a result, the Court lacks jurisdiction to entertain it.
I.
Procedural History
In 1991, Petitioner planned and executed the murder of his wife, Rachel,
to avoid paying his part of a settlement agreement in their pending divorce.
Thomas I, 693 So. 2d at 951. Petitioner later “killed his own mother to keep her
from talking to police about Rachel’s death.” Id. at 953. Petitioner admitted to
killing his mother and, for that crime, he was sentenced to life in prison. For
the wife’s murder, a jury convicted Petitioner of first-degree murder, burglary,
and kidnapping and recommended the death penalty by a vote of eleven to one.
Id. at 951. The judge imposed a death sentence based on five aggravating factors
and no mitigating circumstances. Id. (footnote omitted). On direct appeal, the
Florida Supreme Court affirmed Petitioner’s convictions and sentences,
including the death sentence. See id. at 953. His convictions and sentences
became final on November 17, 1997, when the United States Supreme Court
denied certiorari review. Thomas v. Florida, 522 U.S. 985 (1997). Later, the
Florida Supreme Court affirmed the denial of postconviction relief, finding that
Petitioner had received the effective assistance of counsel during the guilt and
penalty phases of trial. Thomas II, 838 So. 2d 535.
3
On March 24, 2003, attorney Mary Catherine Bonner moved this Court
to be appointed as Petitioner’s counsel for his yet-to-be-filed federal habeas
petition, suggesting that time was of the essence. (First Habeas Case, Doc. 1.)
On April 2, 2003, the Court granted that motion and appointed Bonner to
represent Petitioner. (Id., Doc. 4.) Nearly a year went by before finally, on
March 22, 2004––after AEDPA’s 4 limitations period had expired––Ms. Bonner
filed the First Petition on Petitioner’s behalf, raising eight grounds for relief.
(Id., Doc. 12.) 5
4
Antiterrorism and Effective Death Penalty Act, Pub. L. 104–132, 110 Stat. 1214 (1996).
Petitioner claimed: (1) he was denied due process of law because he was not informed
that his registry counsel could not represent him on the issue of whether he entered a knowing,
voluntary, and intelligent plea in the mother-murder case, even though the terms of that
agreement foreclosed his attack, directly or collaterally, on both of his convictions; (2)
Petitioner was denied the effective assistance of counsel because his trial attorney, Mr.
Richard Nichols, contrived to prevent review of his own ineffectiveness in the wife-murder
case by negotiating a plea agreement in the mother-murder case, in which Petitioner waived
his right to attack any guilt phase issues arising out of the wife-murder trial; (3) if Mr. Nichols
did not labor under an actual conflict of interest when he induced Petitioner to plead guilty in
the mother-murder case, the facts surrounding the plea establish ineffective assistance of
counsel; (4) the jurors were repeatedly misinformed and misled by instructions and arguments
that inaccurately diluted their sense of responsibility for sentencing, and defense counsel was
ineffective for failing to object and adequately litigate this issue; (5) Petitioner was denied the
effective assistance of counsel because Mr. Nichols had little interaction with Petitioner, failed
to investigate the circumstances of the case, failed to prepare for the trial or penalty phase,
and permitted his desire to have both opening and closing argument to override any judgment
that he could have exercised; (6) the jury was prejudiced when, at the end of the trial, the
prosecutor dropped a hangman’s noose on counsel’s table, and defense counsel was ineffective
for failing to object to that action; (7) Petitioner was denied the effective assistance of counsel
because Mr. Nichols failed to inform Petitioner that the guilty plea in the mother-murder case
could be an aggravating factor in the penalty phase of the wife-murder trial; and (8) Florida’s
capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584
(2002) (holding that the Sixth Amendment right to a jury trial precludes a sentencing judge,
sitting without a jury, from finding an aggravating circumstance necessary for the imposition
of the death penalty).
5
4
At first, the Court dismissed the First Petition with prejudice because it
was barred by AEDPA’s statute of limitations and the Court found that
Petitioner did not qualify for equitable tolling. Thomas III, 452 F. Supp. 2d at
1218. But then, on Petitioner’s motion, the Court agreed to reconsider the
matter, scheduled an evidentiary hearing, and heard testimony from Petitioner
and Ms. Bonner. In the meantime, the Eleventh Circuit decided Downs v.
McNeil, 520 F.3d 1311 (11th Cir. 2008), and Holland v. Florida, 539 F.3d 1334
(11th Cir. 2008), rev’d 560 U.S. 631 (2010), which elaborated on the standard
for establishing a right to equitable tolling under AEDPA. Given those decisions
and the facts developed at the evidentiary hearing, the Court determined that
Petitioner was entitled to equitable tolling based on the egregious misconduct
of his federal habeas counsel, Ms. Bonner. Thomas IV, 2009 WL 9081403, at
*5–10.
Having found that the statute of limitations did not bar the First Petition,
the Court entered an order on the merits in 2013 finding that Petitioner’s claims
did not entitle him to relief. Thomas V, 2013 WL 11326723. 6 Thus, the Court
The Court concluded that Grounds One through Three were procedurally defaulted, id.
at **10–13, that the underlying claims in Grounds Four and Six (alleging a Caldwell error
and that Petitioner was prejudiced by the prosecutor dropping a hangman’s noose on counsel’s
table at trial, respectively) were procedurally defaulted and the ineffective assistance claims
for not objecting to the same errors failed on the merits, id. at **13–15, 31–32, that Grounds
Five and Seven (which together raised eleven subclaims of ineffective assistance) failed under
§ 2254(d), id. at **16–31, and that Ground Eight (alleging that Florida’s death-sentencing
scheme violated Ring) both was procedurally defaulted and failed on the merits, id. at *32.
6
5
denied the First Petition, granted a certificate of appealability (COA) on three
ineffective assistance subclaims, denied a COA on the rest of the claims, and
entered judgment against Petitioner. See id. at *33.
Petitioner appealed the denial of the First Petition on the merits and
Respondents cross-appealed the decision to give Petitioner the benefit of
equitable tolling. In 2015, in light of more intervening decisions from the
Supreme Court and the Eleventh Circuit, the court of appeals remanded the
case for additional findings of fact concerning equitable tolling. Thomas VI, 795
F.3d at 1296–97. The Eleventh Circuit’s remand was limited to the equitable
tolling issue. Id. at 1297 n.3. As a result, the merits were outside the scope of
the limited remand and remained pending before the appeals court.
After the mandate issued in Thomas VI, this Court ordered additional
briefing and held another hearing about whether Ms. Bonner’s conduct was
egregious enough to warrant equitable tolling. (The hearing was nonevidentiary because Respondents stipulated that Ms. Bonner willfully missed
the filing deadline to tee up a challenge to AEDPA’s statute of limitations.) The
Court made additional findings of fact and concluded “that Ms. Bonner was
dishonest with her client,” that “she acted in bad faith and with divided loyalty,”
and that “Ms. Bonner’s bad faith, dishonesty, and divided loyalty resulted in
her ‘effectively abandoning’ her client.” Thomas VII, 2018 WL 733631, at *19
(M.D. Fla. Feb. 6, 2018). Thus, the Court concluded that Petitioner remained
6
entitled to equitable tolling. Id. at *22. The Eleventh Circuit then affirmed both
the ruling that Petitioner was entitled to equitable tolling and the denial of the
First Petition on the merits. Thomas VIII, 992 F.3d 1162.
While the First Petition was before this Court on the limited remand,
Petitioner filed the Second Petition in a separate case. But on March 29, 2018—
after the Court issued additional findings of fact in response to the limited
remand and returned the First Habeas Case to the Eleventh Circuit—
Petitioner moved for leave to amend the First Petition to add the new
Brady/Giglio and Hurst-type claims or to consolidate this case with the First
Habeas Case. (First Habeas Case, Doc. 241, Motion for Leave to Amend or
Consolidate.) The Court denied that motion without prejudice to refiling, if
appropriate, after the appeal was resolved. (Id., Doc. 248.) Petitioner did not
renew the motion after the Eleventh Circuit decided Thomas VIII.
II.
The Second Petition and the Parties’ Arguments
Petitioner raises two grounds in the Second Petition. First, he contends
that the State violated his right to due process by presenting false testimony or
suppressing exculpatory or impeachment evidence, in violation of Mooney, 294
U.S. 103, Brady, 373 U.S. 83, Giglio, 405 U.S. 150, and Banks, 540 U.S. 668.
(Doc. 1 at 7–57.) Federal habeas counsel 7 states that he stumbled upon the
Petitioner was represented by Martin McClain when he filed the Second Petition. Mr.
McClain passed away in 2022. Petitioner is now represented by the Capital Habeas Unit of
the Federal Defender’s Office for the Middle District of Florida.
7
7
factual basis for this ground in June 2016 while conducting a routine criminal
history check on Ahmad Dixon, one of the State’s witnesses at Petitioner’s trial.
(See id. at 8–13.) Dixon testified at the guilt phase that, in late August 1993
when he was an inmate at the Duval County jail, he walked in on a conversation
between Petitioner and an inmate named Adrian Cason. During that
conversation, according to Dixon, Petitioner admitted “he had chopped the bitch
[Petitioner’s wife] in the throat” and killed her. Thomas I, 693 So. 2d at 952 n.3.
When Dixon testified at Petitioner’s trial, he acknowledged he was facing a
federal drug charge and that he had pleaded guilty to it, but he denied facing
any state charges. (See Doc. 1 at 28–29.) Petitioner’s habeas counsel discovered
in June 2016 that Dixon was arrested on July 17, 1993, for a state drug crime
and an attempted sexual battery, that the state drug charge was filed and
dropped on August 9, 1993, and that an attempted sexual battery charge in
state court was dropped on January 26, 1994. (Id. at 8–13, 42–46.) Thus,
Petitioner alleges, Dixon lied and the State knowingly presented false
testimony when Dixon denied being the subject of state criminal charges.
Also in Ground One, Petitioner alleges that the State failed to disclose
that Adrian Cason––who was himself charged with first-degree murder––
struck a plea agreement in August 1993 to help the State prosecute Petitioner.
(Id. at 14–20, 33–42.) In exchange for being spared the death penalty, Cason
would plead guilty in his case and help gather evidence against Petitioner. So,
8
Petitioner asserts that Cason was acting as a State agent when he elicited
Petitioner’s confession in Dixon’s presence in late August 1993. But because the
State did not intend to use Cason as a witness for credibility reasons,
Petitioner’s theory goes, Cason ensured that someone else (Dixon) was present
when Cason elicited the confession. That way, the other person (Dixon) could
testify to the confession and Cason would reap the benefits of the cooperation
agreement. All of that, Petitioner argues, violated Petitioner’s Sixth
Amendment right not to be questioned without the assistance of counsel under
United States v. Henry, 447 U.S. 264 (1980). Petitioner argues that the State
was obligated to share this information and, had it done so, Petitioner could
have excluded Dixon’s testimony about the confession. 8
Next, Petitioner alleges that his death sentence is unlawful because it
was imposed contrary to the procedures prescribed in Florida Statutes section
Cason did not testify at trial, but Dixon did. That said, Dixon was only one of eight
witnesses to whom Petitioner had made an admission or other incriminating statement. See
Thomas I, 693 So. 3d at 952 n.3. Coworkers Johnny Brewer, Joseph Stewart, and Jimmy
Stewart, girlfriend Jennifer Howe, wife Christina Thomas, and inmates Bonner and Rhiles all
described statements in which Petitioner said he would kill the victim, that he knew the victim
had died (the victim was missing), or that he had been involved in her death. Id.
In addition, coworker Douglas Schraud testified that he was present when Petitioner
beat, bound, and abducted the victim in the trunk of her car. See id. at 952. Later the same
day, Petitioner was seen parking and abandoning the victim’s car at a mall after wiping down
her car with a towel. Id. Petitioner’s palm print was found on the hood of the victim’s car. Id.
In the victim’s home, there were signs of a struggle in the foyer, including blood on the
baseboard and vent. Id. There was also a tennis shoe print in the victim’s garage, and
witnesses testified that Petitioner was wearing tennis shoes on the day of the murder. Id.
When asked by police, Petitioner falsely denied owning any tennis shoes, and the next day he
collected all his tennis shoes and threw them away. Id.
8
9
921.141 (2017), which was passed after Hurst v. Florida, 577 U.S. 92 (2016),
and Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from by State v. Poole,
297 So. 3d 487 (Fla. 2020). (Doc. 1 at 57–75.) Section 921.141 codifies the
holding of Hurst v. State by requiring that, before a person can be sentenced to
death, a jury must unanimously (1) determine that the State has proven the
existence of at least one aggravating factor beyond a reasonable doubt and
identify each aggravating factor (if any) that was so proven, (2) determine that
sufficient aggravating factors support the death penalty, (3) determine that the
aggravating factors outweigh the mitigating circumstances, and (4) recommend
the death sentence. See Fla. Stat. § 921.141(2) (2017); see also Hurst v. State,
202 So. 3d at 53–54, 57. Because the judge found the existence of the
aggravating factors rather than the jury, and because the jury recommended
the death sentence by an eleven-to-one vote, Petitioner argues that his death
sentence goes against the post-Hurst version of Florida Statutes section
921.141. Petitioner insists that the Florida Legislature intended for section
921.141 to apply retroactively (with no apparent limitations). He also argues
that the post-Hurst version of section 921.141 must apply retroactively to him
under the Eighth Amendment and the Due Process and Equal Protection
Clauses of the Fourteenth Amendment.
Respondents move to dismiss the Second Petition as an unauthorized
successive habeas application. (Doc. 24.) Their argument is simple: Petitioner
10
filed the Second Petition after the Court denied the First Petition on the merits;
the claims could have been or were presented in the First Petition; and he did
not obtain authorization from the Eleventh Circuit to file a second habeas
application. Thus, under 28 U.S.C. § 2244(b)(3)(A), Respondents contend the
Court lacks jurisdiction to entertain the Second Petition.
Petitioner argues that the Second Petition is not “second or successive.”
(Doc. 39; see also Doc. 2 at 1–24; Doc. 13 at 3–28.) He contends his Brady/Giglio
claims did not “ripen” until his federal habeas counsel discovered the
exculpatory and impeachment evidence related to Ahmad Dixon and Adrian
Cason in June 2016. (Doc. 2 at 19–23.) Petitioner asserts that under Panetti,
551 U.S. 930, it is wrong to treat his Brady/Giglio claims as “second or
successive” because the State suppressed the exculpatory and impeachment
evidence, making the factual basis undiscoverable until after he had filed the
First Petition. Likewise, Petitioner argues that his Hurst-type claim did not
ripen until the Florida Legislature updated Florida Statutes section 921.141 in
2017. (Doc. 2 at 23–24.) Petitioner also argues that the Second Petition is not
successive because the First Petition was still pending when he filed the Second
Petition. (Doc. 13 at 16–17; Doc. 39 at 18–19.)
III.
The Second Petition is Second or Successive
AEDPA constrains a district court’s ability to entertain more than one
habeas petition attacking the same judgment. The law provides:
11
(1) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be
dismissed.
(2) A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(1)–(2). On top of that, “[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district
court must dismiss a successive habeas application “for lack of jurisdiction” if it
is filed without authorization from the court of appeals. Burton v. Stewart, 549
U.S. 147, 157 (2007).
“The phrase ‘second or successive’ is not self-defining,” but takes its “full
meaning” from the Supreme Court’s pre-AEDPA case law. Panetti, 551 U.S. at
943 (citations omitted). “In the usual case, a petition filed second in time and
12
not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second
or successive’ bar.” Id. at 947. But there are “exceptions.” Id. The Supreme Court
“has declined to interpret ‘second or successive’ as referring to all § 2254
applications filed second or successively in time, even when the later filings
address a state-court judgment already challenged in a prior § 2254
application.” Id. at 944. Considerations like whether the second petition is an
abuse of the writ, id. at 947, and the need to conserve judicial resources, avoid
piecemeal litigation, and “lend[ ] finality to state court judgments within a
reasonable time,” id. at 945–46, inform whether a subsequent petition is
considered “second or successive.” Applying these considerations, the Supreme
Court in Panetti held that a prisoner’s claim that he was incompetent to be
executed under Ford v. Wainwright, 477 U.S. 399 (1986), was not “second or
successive” even though it was raised for the first time in a numerically second
habeas petition. 551 U.S. at 947. That was so because “Ford-based
incompetency claims, as a general matter, are not ripe until after the time has
run to file a first federal habeas petition.” Id. at 943. “Mental competency to be
executed is measured at the time of execution, not years before then. A claim
that a death row inmate is not mentally competent means nothing unless the
time for execution is drawing nigh.” Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d
1257, 1260 (11th Cir. 2009) (citing Panetti, 551 U.S. at 946). Thus, it would
make no sense to impose “[a]n empty formality requiring prisoners to file
13
unripe Ford claims” years before the facts to be measured in relation to those
claims even exist. Panetti, 551 U.S. at 946. But Panetti confined its holding to
the “unusual posture” in which a Ford-based incompetency claim arises. Id. at
945; see Tompkins, 557 F.3d at 1259 (“The Panetti case involved only a Ford
claim, and the Court was careful to limit its holding to Ford claims.”).
The Eleventh Circuit applied Panetti in Tompkins, 557 F.3d 1257 (a §
2254 case involving a state inmate), and Scott v. United States, 890 F.3d 1239
(11th Cir. 2018) (a § 2255 case involving a federal inmate). The cases involved
similar facts. In both, the prisoners filed a second habeas petition or motion to
vacate based on newly discovered evidence that the government had violated
Brady and Giglio. The prisoners argued that their Brady and Giglio claims were
not “second or successive” because the claims were not “ripe” until they had
uncovered suppressed evidence of Brady and Giglio violations. See Tompkins,
557 F.3d at 1260; Scott, 890 F.3d at 1246. The Eleventh Circuit rejected that
argument in Tompkins, stating: “That is not what the Supreme Court
in Panetti meant by ‘ripe.’” 557 F.3d at 1260. The court explained:
The reason the Ford claim was not ripe at the time of the first petition in
Panetti is not that evidence of an existing or past fact had not been
uncovered at that time. Instead, the reason it was unripe was that no
Ford claim is ever ripe at the time of the first petition because the facts
to be measured or proven—the mental state of the petitioner at the time
of execution—do not and cannot exist when the execution is years away.
Id. (citations omitted). The Eleventh Circuit described Tompkins’ case as “the
usual case [where] a petition filed second in time and not otherwise permitted
14
by the terms of [28 U.S.C.] § 2244 will not survive AEDPA’s ‘second or
successive’ bar.” Id. (quoting Panetti, 551 U.S. at 947). The court reasoned:
Unlike a Ford [incompetency-to-be-executed] claim, the Gardner,
Brady, and Giglio claims Tompkins wants to raise are claims that can be
and routinely are raised in initial habeas petitions. The violation of
constitutional rights asserted in these kinds of claims occur, if at all, at
trial or sentencing and are ripe for inclusion in a first petition.
Id. Thus, the court held that a Brady or Giglio claim cannot avoid being
characterized as “second or successive” simply because it is based on a factual
predicate that was previously unknown. Likewise, the Scott panel found that
[u]ltimately, Tompkins binds us to conclude that in § 2255 cases, all
second-in-time Brady claims are “second or successive” under § 2255(h),
even if the petitioner could not reasonably have been expected to discover
the Brady violation and there is a reasonable probability that timely
disclosure of the suppressed evidence would have resulted in an
acquittal.
890 F.3d at 1259. But Scott described Tompkins’s reasoning as “fatally flawed”
and called on the Eleventh Circuit to revisit the issue en banc. Id. at 1248–58.
Still, Tompkins remains the law of this circuit.
Applying these lessons to Petitioner’s case, the Second Petition must be
dismissed as an unauthorized “second or successive” habeas application. A
petition is generally “second or successive” when a petitioner has “twice brought
claims contesting the same [sentence] imposed by the same judgment of a state
court.” Burton, 549 U.S. at 153. This is Petitioner’s second application for
habeas relief from the same judgment, which he filed after his First Petition
was denied on the merits. The defects Petitioner attacks––the suppression of
15
exculpatory or impeachment evidence at trial and the jury’s failure to find the
aggravating factors and to unanimously recommend the death sentence––
occurred at the guilt and penalty phases of trial, even if evidentiary or legal
support for these claims did not emerge until later. As a result, the Second
Petition is “second or successive.” Because Petitioner did not obtain
authorization from the Eleventh Circuit to file it, the Court lacks jurisdiction to
entertain it. See 28 U.S.C. § 2244(b)(3)(A); Burton, 549 U.S. at 157.
Thus, the Court must reject Petitioner’s argument that Ground One is not
“second or successive” under Panetti because the factual basis for his Brady and
Giglio claims was previously unavailable. Tompkins and Scott teach that a
second habeas petition will not avoid being treated as “second or successive”
simply because a Brady claim’s factual basis was not discoverable when the first
petition was filed. Rather, only defects that were nonexistent when the first
petition was filed will avoid being treated as “second or successive” later. Scott
v. United States, 81 F. Supp. 3d 1326, 1334 (M.D. Fla. 2015), aff’d, 890 F.3d
1239. But “[t]he violation of constitutional rights asserted in [Brady and Giglio]
claims occur[s], if at all, at trial or sentencing and are ripe for inclusion in a
first petition.” Tompkins, 557 F.3d at 1260. Even though Petitioner contends
Tompkins was wrongly decided, he “acknowledges this Court may be bound by”
16
it. (Doc. 39 at 2.) Thus, Tompkins and Scott bind this Court to dismiss Ground
One as second or successive. 9
Likewise, Ground Two cannot escape being treated as second or
successive. Petitioner argues that the Eighth and Fourteenth Amendments
require that the post-Hurst version of Florida Statutes section 921.141 (2017)
apply to him, and that his death sentence is unlawful because it was imposed
in a manner inconsistent with the statute. That is an artful restatement of the
Ring claim from the First Petition, where he argued his death sentence violated
the Sixth Amendment because the jury did not find the existence of the
aggravating factors necessary to qualify Petitioner for the death penalty. 10 The
This Court has expressed misgivings about subjecting prisoners to § 2244(b)(2)’s (or §
2255(h)’s) demanding standards where the government suppressed the evidentiary basis of a
Brady or Giglio claim until after the prisoner’s first habeas application has been resolved. See
Scott, 81 F. Supp. 3d at 1331, 1334–35. That said, this case does not appear to present the
same situation that Scott did. Petitioner’s federal habeas counsel was able to uncover the new
information related to Ahmad Dixon and Adrian Cason through a routine investigation of
criminal records. This being the case, the evidence was easily discoverable before 2017.
9
In Ring, the Supreme Court held that if a fact must be found to make a defendant
eligible for the death penalty, then that fact is effectively an element of a crime (because it
increases the maximum penalty) and must be proven to a jury beyond a reasonable doubt. 536
U.S. at 609. For that reason, the Supreme Court held that Arizona’s death-sentencing scheme,
under which a judge found the existence of any aggravating factors necessary to qualify a
defendant for a death sentence, violated the Sixth Amendment right to a jury trial. But the
Supreme Court later held that Ring, because it announced a new, non-watershed procedural
rule rather than a substantive rule, did not apply retroactively to anyone whose conviction
and sentence became final before Ring was decided. Schriro v. Summerlin, 542 U.S. 348, 358
(2004). Because Petitioner’s convictions and sentences became final on November 17, 1997––
nearly five years before Ring––he was not entitled to Ring’s retroactive application. Plus,
when the Court decided the First Petition, the rule in the Eleventh Circuit was that Florida’s
death-sentencing scheme did not violate Ring because Florida required the jury to render an
advisory verdict about the existence of aggravating factors and the judge had to give the jury’s
recommendation great weight. Thomas V, 2013 WL 11326723, at *32 (citing Evans v. Sec’y,
Fla. Dep’t of Corr., 699 F.3d 1249 (11th Cir. 2012)).
10
17
defect challenged in Petitioner’s Ring claim and the defect challenged in the
new Hurst-type claim are the same or similar: that the jury did not
unanimously find the existence of the aggravating factors or recommend the
death sentence. These defects are not new; they have existed since Petitioner’s
penalty phase and sentencing. Ground Two of the Second Petition simply
attacks the same (or similar) defect under a different legal theory.
True, Florida Statutes section 921.141 (2017) did not exist when
Petitioner filed his First Petition. But that is only because Hurst v. Florida, 577
U.S. 92, and Hurst v. State, 202 So. 3d 40 (whose holding the statute codifies),
had not been decided yet. Thus, Petitioner’s claim based on section 921.141 was
no more unavailable when he filed the First Petition than a claim based on
Hurst v. Florida or Hurst v. State. But AEDPA requires even claims based on a
previously unavailable United States Supreme Court decision to satisfy §
2244(b)(2)’s gatekeeping requirements. It would be anomalous if claims based
on a new rule of constitutional law announced by the United States Supreme
Court had to satisfy § 2244(b)(2) but not claims based on new state legislation
(at least where the new state legislation does not change the petitioner’s status
Three years after this Court denied the First Petition on the merits, the United States
Supreme Court applied Ring to Florida’s death-sentencing scheme and found that it too was
unconstitutional for the same reason as Arizona’s. Hurst v. Florida, 577 U.S. at 98–99. But
neither Ring nor Hurst v. Florida applies retroactively on collateral review. Lambrix v. Sec’y,
DOC, 872 F.3d 1170, 1182–83 (11th Cir. 2017) (“Lambrix VI”); Lambrix v. Sec’y, Fla. Dep’t of
Corr., 851 F.3d 1158, 1165 n.2 (11th Cir. 2017) (“Lambrix V”).
18
quo). 11 Congress created a channel for bringing second or successive petitions
based on new legal developments, and it chose to allow such petitions based
only on “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §
2244(b)(2)(A). “A plain reading of § 2244(b)(2) shows that there was no exception
established for perceived changes in state law and retrospective application to
federal habeas petitioners.” Jimenez v. Jones, No. 1:18-cv-25165-DMM, Doc. 17
at 9 (S.D. Fla. Dec. 12, 2018), aff’d sub nom. Jimenez v. Sec’y, Fla. Dep’t of Corr.,
758 F. App’x 682 (11th Cir. 2018). To hold that a second petition based on new
state legislation may proceed without satisfying § 2244(b) would subvert the
Petitioner cites In re Jones, 652 F.3d 603 (6th Cir. 2010), for the proposition that
Ground Two is not second or successive because it attacks statutory changes that happened
only after the filing of the First Petition. (Doc. 2 at 5–6, 24.) Jones is distinguishable. In Jones,
the Sixth Circuit held that a petitioner needed no authorization to file a numerically second
habeas petition to challenge statutory changes to Michigan’s parole system, the last of which
occurred after the petitioner filed his first habeas petition. 652 F.3d at 605–06. The petitioner
argued that “the cumulative effect of changes made to Michigan’s parole-review procedures in
1992 and 1999 … ‘produce[d] a sufficient risk of increasing the measure of punishment
attached’ to his conviction” to violate the Constitution’s Ex Post Facto Clause. Id. at 604. The
Sixth Circuit concluded that under Panetti, this claim was not “second or successive” because
(1) “Jones’s ex post facto claim was unripe when his initial petition was filed––the events
giving rise to the claim had not yet occurred,” and (2) “no useful purpose would be served
by requiring prisoners to file ex post facto claims in their initial petition as a matter of course,
in order to leave open the chance of reviving their challenges in the event that subsequent
changes to the state’s parole system create an ex post facto violation.” Id. at 605.
Unlike the new parole legislation in Jones, the new legislation here––Florida Statutes
section 921.141 (2017)––did not create a new defect. That Petitioner was sentenced to death
without a jury unanimously finding the existence of the aggravating factors and
recommending the death penalty is a fact that has existed since Petitioner was sentenced. But
the new parole legislation in Jones created a new defect by threatening to increase the
measure of punishment attached to the petitioner’s conviction. Put another way, Florida
Statutes section 921.141 (2017) did not change Petitioner’s status quo, whereas the new parole
legislation in Jones did by threatening to extend Jones’s period of incarceration.
11
19
statutory scheme erected by Congress to regulate habeas litigation. See Stewart
v. United States, 646 F.3d 856, 861 (11th Cir. 2011) (rejecting the theory that a
petition is non-successive any time a claim’s factual or legal basis was
previously unavailable, considering that the two grounds identified in §§
2244(b)(2) and 2255(h)––a new United States Supreme Court decision and
newly discovered evidence of innocence––are by definition previously
unavailable but still must satisfy the second-or-successive gatekeeping criteria
(citing Leal Garcia v. Quarterman, 573 F.3d 214, 221 (5th Cir. 2009))). 12
Petitioner also argues that his Second Petition is not “second or
successive” because when he filed it, the First Petition was pending on appeal
and the equitable tolling issue was before this Court on a limited remand. (Doc.
13 at 16–17; Doc. 39 at 18–19.) Thus, he argues, the “second or successive” bar
does not apply to the Second Petition because adjudication of the First Petition
was not final.
The Eleventh Circuit “has no published opinion establishing when the
adjudication of a [habeas petition] becomes final such that the ‘second or
successive’ limitation applies to all future [petitions].” Amodeo v. United States,
In any event, the Florida Supreme Court and the Eleventh Circuit have rejected
various iterations of the argument that Hurst v. Florida, Hurst v. State, or Florida Statutes
section 921.141 must, as a matter of the Eighth Amendment, due process, or equal protection,
apply retroactively to those (like Petitioner) whose convictions and death sentence became
final before Ring. See, e.g., Foster v. State, 258 So. 3d 1248, 1251–54 (Fla. 2018); Hitchcock v.
State, 226 So. 3d 216, 217 (Fla. 2017); Lambrix VI, 872 F.3d at 1182–83.
12
20
743 F. App’x 381, 385 (11th Cir. 2018). Rather, the court has given conflicting
signals in unpublished opinions and orders. See id. at 385 n.1 (citing United
States v. Terrell, 141 F. App’x 849, 850, 851–52 (11th Cir. 2005); In re
Cummings, No. 17–12949 (11th Cir. July 12, 2017)).
But it seems the Supreme Court strongly suggested an answer in
Gonzalez v. Crosby, 545 U.S. 524 (2005). There, the Supreme Court held that if
a Rule 60(b) motion presents one or more claims for relief or seeks to revisit a
district court’s denial of a habeas petition on the merits, the motion must be
treated as an unauthorized second or successive habeas application. Id. at 531–
32. Although the Rule 60(b) motion in Gonzalez was filed after the petitioner’s
first habeas case was no longer pending on appeal, see id. at 527, the Supreme
Court did not distinguish between a Rule 60(b) motion filed while the first
petition is pending on appeal and a Rule 60(b) motion filed sometime later, see
id. at 530–32. See Balbuena v. Sullivan, 980 F.3d 619, 639–40 (9th Cir. 2020)
(recognizing that “the petitioner in Gonzalez filed his Rule 60(b) motion after
the conclusion of his appeal from his initial petition,” but that “the Court’s
analysis did not turn on, or even address, the timing of the Rule 60(b) motion.”
(emphasis in original; citation omitted)). The Supreme Court surely knew that
Rule 60(b) motions can be, and often are, filed while an appeal is pending from
the denial of the first habeas petition. All the same, the Supreme Court
instructed that if a Rule 60(b) motion adds a new claim for relief, or attacks the
21
district court’s resolution of a claim on the merits based on newly discovered
evidence or a substantive change in the law, the motion is effectively a second
or successive habeas application and must be treated as such. Gonzalez, 545
U.S. at 531–32. Thus, it seems to make no difference whether the first habeas
petition is pending on appeal; a subsequent application for habeas relief will
still be treated as “second or successive” if it presents a claim for relief from the
conviction and sentence.
Indeed, Gonzalez explicitly approved of a lower court decision treating a
Rule 60(b) motion as a second or successive habeas application where the
motion was filed while the first petition was pending on appeal. See id. at 531
(citing Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002)). In Dunlap, the Seventh
Circuit consolidated for decision three appeals in which a prisoner challenged
the denial or dismissal of his Rule 60(b) motion. 301 F.3d at 875. One of those
prisoners, John Hunt, filed a Rule 60(b) motion based on Apprendi v. New
Jersey, 530 U.S. 466 (2000), “while his request for a certificate of appealability
from the district court’s denial of his habeas corpus application based on a
similar ground was pending in this court.” Dunlap, 301 F.3d at 876. The
Seventh Circuit concluded that the district court should have dismissed Hunt’s
Rule 60(b) motion as a second or successive habeas application barred by
AEDPA. See id. Referring to Dunlap and other lower court decisions, the
Supreme Court declared “[w]e think those holdings are correct.” Gonzalez, 545
22
U.S. at 531. Thus, a Rule 60(b) motion that presents a claim for relief will still
be considered a “second or successive” habeas application even if the first
petition is pending on appeal.
Other courts have applied Gonzalez to conclude that the pendency of the
first petition on appeal does not prevent a subsequent application for habeas
relief from being considered “second or successive.” In Ochoa v. Sirmons, for
example, the Tenth Circuit held “that the pendency of an appeal from the denial
of a first petition does not obviate the need for authorization of newly raised
claims” under § 2244(b). 485 F.3d 538, 539 (10th Cir. 2007). There, while the
denial of the prisoner’s first federal habeas petition was still on appeal, the
prisoner sought “to challenge his sentence on the basis that he is mentally
retarded and hence ineligible for the death penalty” under Atkins v. Virginia,
536 U.S. 304 (2002). Ochoa, 485 F.3d at 539. Relying on Whab v. United States,
408 F.3d 116 (2d Cir. 2005), the prisoner argued “that authorization under §
2244(b) is unnecessary so long as his first habeas action has not been finally
adjudicated on appeal.” The court rejected the prisoner’s argument, finding it
to be “clearly precluded by general principles in our case law addressing various
attempts to circumvent § 2244(b) requirements, particularly following the
Supreme Court’s decision in Gonzalez v. Crosby.” Ochoa, 485 F.3d at 540 (full
citation omitted). The court observed that “nothing in Gonzalez … or our other
cases suggests that whether a Rule 60(b) motion or other procedural vehicle
23
may be used to circumvent § 2244(b) depends on the incidental fact that an
appeal is or is not pending from the underlying habeas proceeding.” Id. at 541.
It reasoned:
The approach advocated by Mr. Ochoa would greatly undermine
the policy against piecemeal litigation embodied in § 2244(b). Multiple
habeas claims could be successively raised without statutory constraint
for as long as a first habeas case remained pending in the system. If the
proper treatment of post-judgment proceedings in habeas, carefully
explained in Gonzalez to prevent procedural circumvention of § 2244(b),
left open an exception this broad, that point would have been made
explicit in the statute or, at least, in the Supreme Court's primary
decision implementing the statute.
Id. Thus, the court concluded that the prisoner’s new Atkins claim was second
or successive despite the pending appeal in the first habeas case. Id. And the
Tenth Circuit is not alone in reaching such a conclusion. See, e.g., Terrell, 141
F. App’x at 850–51 (concluding that under Gonzalez, the district court correctly
treated the defendant’s “motion to reopen and reduce sentence” as an
unauthorized second or successive § 2255 motion, even though his appeal from
the denial of his first § 2255 motion was pending).
Turning back to Petitioner, that his First Petition was pending on appeal
when he filed his Second Petition does not prevent it from being considered
“second or successive.” If his Second Petition were a Rule 60(b) motion, it would
be considered a second or successive habeas application because the First
Petition was denied on the merits and the Second Petition presents two new
challenges to the convictions and death sentence in the “wife murder” case. See
24
Gonzalez, 545 U.S. at 530–32; Dunlap, 301 F.3d at 876. The Second Petition,
which Petitioner filed in a new civil case, is even more clearly a second or
successive petition than if it were couched as a Rule 60(b) motion. See Panetti,
551 U.S. at 947 (“In the usual case, a petition filed second in time and not
otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second or
successive’ bar.”); Burton, 549 U.S. at 153 (observing that a petition is generally
“second or successive” when a petitioner has “twice brought claims contesting
the same [sentence] imposed by the same judgment of a state court.”). 13
Nor does it matter that the First Habeas Case was before this Court on a
limited remand when Petitioner filed the Second Petition. The limited remand
concerned only equitable tolling and the merits of the First Petition were
outside the scope of that remand. Nothing the Court decided regarding
equitable tolling would have (or could have) changed the Court’s decision on the
merits of the First Petition. Thus, the pendency of the limited remand on
equitable tolling in the First Habeas Case does not prevent the Second Petition
from being considered “second or successive.” See Sasser, 999 F.3d at 615
For what it is worth, several appeals courts have held that the second or successive bar
applies once proceedings have concluded in the district court on the merits of the initial
petition, even if the first petition is still pending on appeal. See Phillips v. United States, 668
F.3d 433, 435 (7th Cir. 2012), as amended on denial of reh’g and reh’g en banc (Feb. 21, 2012);
Sasser v. Payne, 999 F.3d 609, 615 (8th Cir. 2021); Beaty v. Schriro, 554 F.3d 780, 783 & n.1
(9th Cir. 2009); Ochoa, 485 F.3d at 540. But some courts hold that the first habeas action is
not final, and the second or successive bar does not attach, until any appeals in the first habeas
action have been completed. See, e.g., Whab, 408 F.3d at 118 (decided one month before
Gonzalez); United States v. Santarelli, 929 F.3d 95, 104–05 (3d Cir. 2019); Clark v. United
States, 764 F.3d 653, 658 (6th Cir. 2014).
13
25
(“Sasser’s effort to bring new ineffective-assistance claims on remand
constituted an unauthorized second or successive habeas petition that should
have been dismissed.”). This conclusion is bolstered by the Eleventh Circuit’s
order denying Petitioner’s motion to relinquish jurisdiction to allow this Court
to consider the two new claims for relief. (First Habeas Case, Doc. 246.) The
Eleventh Circuit emphasized that its remand was strictly limited to the
equitable tolling issue, did not concern the merits, and did not “vacat[e] the
district court’s dismissal of [the] petition with prejudice.” Id. at 1–2 (citing
Thomas VI, 795 F.3d at 1291–97, 1297 n.3). The court added:
At present, the district court’s judgment denying Mr. Thomas’s initial
petition remains undisturbed, and so he may not amend his pleadings
under Federal Rule of Civil Procedure 15. See 28 U.S.C. § 2242; Fed. R.
Civ. P. 15(a); Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344
(11th Cir. 2010); Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
Instead, he may only add new claims pursuant to the authority in Federal
Rule of Civil Procedure 60, and any new claim will be treated as a second
or successive application. See U.S. ex rel. Atkins v. McInteer, 470 F.3d
1350, 1361 n.22 (11th Cir. 2006); Gonzalez v. Crosby, 545 U.S. 524, 531–
32 (2005). But if we vacate the district court’s judgment in this appeal
and remand for further proceedings, then (assuming our ruling does not
moot the new claims) Mr. Thomas’s attempt to amend his petition would
be governed by Rule 15, as his original petition proceedings would again
be ongoing. Thus, the outcome of this appeal will provide a clear standard
to govern any future amendment seeking to add new claims.
Id. at 2–3 (emphasis added). Thus, the Eleventh Circuit’s order confirms that
(1) the limited remand did not disturb the Court’s judgment, and (2) as long as
the judgment was undisturbed, any effort by Petitioner to add new claims would
be treated as a second or successive application.
26
None of this is to say Petitioner is without a remedy. He may still apply
to the Eleventh Circuit for authorization under § 2244(b) to file a second or
successive habeas petition. But he may not avoid those restrictions with the
filing of the Second Petition. 14
IV.
Conclusion
Having considered the Second Petition and the parties’ briefs, it is
ORDERED:
1. Respondents’ Motion to Dismiss the Second Petition as an
unauthorized successive habeas petition (Doc. 24) is GRANTED.
2. Petitioner’s second Petition for Writ of Habeas Corpus Under 28 U.S.C.
§ 2254 (Doc. 1) is DISMISSED WITHOUT PREJUDICE for lack of
jurisdiction.
The Court could not skip over the complexities of the second or successive analysis to
simply address the merits. “The bar on second or successive [petitions] is jurisdictional,” In re
Morgan, 717 F.3d 1186, 1193 (11th Cir. 2013), and a district court “may not assume
jurisdiction for the purpose of deciding the merits of the case,” Sinochem Int’l Co. v. Malaysia
Int’l Shipping Corp., 549 U.S. 422, 431 (2007). Thus, the Court had to resolve whether the
Second Petition is “second or successive”––and therefore whether the Court has jurisdiction–
–and the Court concludes it lacks jurisdiction.
14
27
3. The Clerk will enter judgment dismissing the Second Petition (Doc. 1)
without prejudice and close the file. 15
DONE AND ORDERED at Jacksonville, Florida this 7th day of April,
2023.
lc 19
C:
Counsel of record
William Greg Thomas, FDOC # 311509
No COA is required to appeal the dismissal for lack of subject matter jurisdiction of a
successive habeas petition. Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1264 n.3
(11th Cir. 2020) (citing Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004)).
15
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