Gill v. Secretary, Department of Corrections et al
Filing
112
ORDER granting 109 Motion to the extent Dana C. Hansen Chavis is granted leave to withdraw, denying 109 in all other respects; denying 111 motion for leave to reply; denying 62 Second Motion to Dismiss Petition as Untimely; denying 30 petition for writ of habeas corpus, dismissing with prejudice the action, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 10/14/2022. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RICARDO IGNACIO GILL,
Petitioner,
vs.
Case No. 3:18-cv-725-BJD-JBT
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
Status
Petitioner Ricardo Ignacio Gill, a Florida prisoner convicted and
sentenced to death, filed a Petition for Writ of Habeas Corpus Under 28 U.S.C.
§ 2254 (Petition) (Doc. 30, 187 pages).1 Petitioner contends he is entitled to
equitable tolling of the limitation period to file a federal habeas petition and
he claims actual innocence. 2
Id. at 15-24.
The operative response is the
1
The Court will refer to the Appendices attached to the Petition as (Docs. 30-1, 30-2, 30-3).
The Court references the page number assigned by the electronic filing system for each
Appendix.
2
The Court references the page number assigned by the electronic filing system for the
Petition, Second Response, Petitioner’s Response, Reply, and Surreply. Petitioner filed an
Unopposed Notice of Filing State Court Records (Doc. 75). The Court will refer to the
Records as “Rec.” The Court references the page number assigned by the electronic filing
system for these Records.
Second Motion to Dismiss the Federal Habeas Petition as Untimely (Second
Response) (Doc. 62).3 Respondents submit that the Petition is untimely filed,
and Petitioner is not entitled to equitable tolling as he caused his own delay,
he was not diligent, he was found to be competent by numerous doctors over
the years, including at the time of trial and sentencing and during the state
post-conviction proceeding, and there are no extraordinary circumstances. Id.
at 12-16. They also contend the actual innocence exception does not apply to
Petitioner. Id. at 17-18.
Petitioner filed a Response to Respondents’ Second Motion to Dismiss
Federal Habeas Petition as Untimely (Petitioner’s Response) (Doc. 81). 4 He
seeks equitable tolling and claims it is warranted as he was diligent as could
3
The Court will refer to Respondents’ Exhibits (Docs. 60 & 72) as “Ex.” The Court will,
where applicable, refer to the page number at the bottom center of each page of the exhibit.
To say the least, the record submitted to this Court is not user friendly as it is not presented
in sequential order and has been provided in a piecemeal fashion by both parties. For their
submission, Respondents note: “the record is not necessarily in chronological order, the tab
numbers in this checklist may appear out of chronological order.” (Doc. 60 at 1). As noted,
the tabs on the checklist appear out of order, and the tabs are actually not in sequential order.
In order to rectify some of the confusion caused by the lack of chronology in this record, the
Court has elected to reference the page numbers as indicated, not the tabs.
4
Petitioner refers to PageID #s. See (Doc. 81). The page identification numbers are not
the page numbers assigned by the electronic filing system. The page numbers assigned by
the electronic filing system are found at the top of the page and are simply referenced as
“Page” and the number. The PageID # tracks every page of every document filed in the case
beginning with page one of the first document; therefore, the Court will reference the page
number assigned by the electronic filing system for Petitioner’s Response, not the PageID #.
2
be expected from a person suffering a brain defect and there are extraordinary
circumstances (congenital brain defect that renders him incompetent, he was
incompetent during post-conviction proceedings, and post-conviction counsel
was deficient in this regard). Id. at 6-7. In Respondents’ Reply (Doc. 86),
they assert Petitioner fails to rebut the presumption of correctness under 28
U.S.C. § 2254(e)(1) and he is not entitled to equitable tolling. Id. at 2. Also,
Respondents address Petitioner’s substantive claim of incompetency. Id. at 919.
In Petitioner’s Surreply (Doc. 90), he reiterates that the removal of
counsel and dismissal of Petitioner’s case were extraordinary circumstances
that caused the late filing of the Petition. Surreply at 6.
As acknowledged by the parties, the Petition is untimely filed, filed well
beyond the Antiterrorism and Effective Death Penalty Act (AEDPA) one-year
statute of limitations. Petition at 17-18; Second Response at 2-3.
II.
Timeliness
Respondents assert the Petition is untimely. Petitioner concedes that
the Petition was filed beyond the AEDPA one-year statute of limitations.
Under AEDPA, there is a one-year period of limitation:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limitation period
shall run from the latest of 3
(A) the date on which the judgment became final
by the conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to filing
an application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by
such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
Pursuant to AEDPA, effective April 24, 1996, Petitioner had one-year
to file a timely federal petition pursuant to 28 U.S.C. § 2254. Wilcox v. Fla.
Dep’t of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998) (per curiam) (one-year from
date of enactment is adopted for convictions that became final prior to the
effective date of AEDPA), cert. denied, 531 U.S. 840 (2000); see Guenther v.
4
Holt, 173 F.3d 1328, 1331 (11th Cir. 1999), cert. denied, 528 U.S. 1058 (2000)
(same).
Review of the record shows Petitioner failed to comply with the
limitation period described above.
After judgment and conviction, Petitioner appealed to the Florida
Supreme Court (FSC). Ex. at 964, 966, 2227-2346. On July 9, 2009, the FSC
affirmed. Id. at 2348-87. Gill v. State, 14 So. 3d 946 (Fla. 2009) (per curiam).
The mandate issued on July 30, 2009. Ex. at 2388. The conviction became
final on October 7, 2009 (90 days after July 9, 2009) (According to rules of the
Supreme Court, a petition for certiorari must be filed within 90 days of the
appellate court’s entry of judgment on the appeal or, if a motion for rehearing
is timely filed, within 90 days of the appellate court’s denial of that motion.”).
The limitation period began running and ran for 362 days until
Petitioner, through counsel, filed a Rule 3.851 motion on Monday, October 4,
2010. Ex. at 2436-73. Respondents state, “this properly filed motion acted
to toll the federal limitations clock.”5 Second Response at 2. In an order filed
July 18, 2011, the circuit court dismissed the post-conviction proceeding and
discharged post-conviction counsel. Ex. at 2640-42; Rec. at 139-41. The FSC
5
The Court assumes arguendo that the period was tolled as Respondents do not dispute that
period of tolling.
5
affirmed the circuit court’s decision finding Petitioner competent to discharge
his post-conviction counsel and waive post-conviction proceedings.
State, 107 So. 3d 326, 328 (Fla. 2012); Ex. at 2832-35.
Gill v.
The record
demonstrates Petitioner filed a pro se motion for extension of time to file a
motion for rehearing on October 26, 2012 pursuant to the mailbox rule. Rec.
at 23-25. On November 28, 2012, the FSC denied the motion as untimely.
Id. at 22. Petitioner followed up with a December 6, 2012 pro se motion for
rehearing.
Id. at 5-21.
On January 14, 2013, the FSC struck the pro se
motion for rehearing as unauthorized. Id. at 4.
In his procedural history, Petitioner states the FSC denied rehearing on
Thursday, January 23, 2013.
Petition at 17-18.
The Petition, Second
Response, and the record provided to the Court are not a model of clarity on
this point. Petitioner states the FSC denied rehearing on January 23, 2013,
but he also states the FSC struck Petitioner’s pro se rehearing motion.
Petition at 17-18; 41. Respondents state the Court struck Petitioner’s pro se
motion on January 14, 2013, but make no reference to a motion for rehearing
denied on January 23, 2013. Second Response at 3; see Rec. at 4-21. The
FSC docket for Case Number SC11-1553 does not reference an additional
motion for rehearing and a rehearing denied on January 23, 2013. Therefore,
6
the Court assumes this is simply an error which followed from Petitioner
considering the published decision.6
The FSC struck Petitioner’s pro se motion for rehearing on Monday,
January 14, 2013.
Respondents submit that the clock began running on
Tuesday, January 15, 2013 and expired three days later on Friday, January
18, 2013. 7
However, with a few days remaining in the one-year period,
Petitioner did not file his federal petition until Monday, November 4, 2019,
years later. He readily admits his petition is several years late. Petition at
18.
Based on the history outlined above, the Petition filed on November 4,
2019 is untimely and due to be dismissed unless Petitioner can establish
equitable tolling of the statute of limitations is warranted.
Petitioner claims actual innocence.
Alternatively,
The Court will briefly address the
contention of actual innocence.
6
After reviewing the published decision of Gill, 107 So. 3d 326, it states rehearing denied
January 23, 2013; however, there is no rehearing denied on January 23, 2013 on the official
FSC docket (SC11-1553). Furthermore, after investigation, the archives (SC11-1553) do not
include a rehearing denied on that date.
7
Since Respondents do not assert that the unauthorized motion for rehearing did not toll
the one-year period, the Court assumes for the purposes of this opinion that it did toll. As
the Petition was filed many years later, this is a difference without any real distinction.
7
Upon review, Petitioner does not demonstrate that he has new evidence
establishing actual innocence.
He has not pointed to any evidence
demonstrating it is more likely than not that no juror, acting reasonably, would
have found him guilty beyond a reasonable doubt in light of new evidence. See
McQuiggan v. Perkins, 569 U.S. 383, 395 (2013) (restricting the miscarriage of
justice exception to a severely confined category of cases in which new evidence
shows it is more likely than not that no reasonable juror would have convicted
the petitioner).
Petitioner has made no attempt to make a credible showing of actual
innocence by offering new evidence that is directly probative of his innocence.
Instead, he asserts he has uncovered evidence establishing he is innocent of
the capital crime because he was insane at the time the crime was committed.
Petition at 21. Petitioner points to his lifelong history of profound mental
illness, his significant brain defect, and the overarching claim he was insane
at the time the crime was committed.
Although Petitioner claims mental illness, temporal lobe impairment,
and insanity at the time the crime was committed, he is required to show
factual innocence, not mere legal insufficiency. Bousley v. United States, 523
U.S. 614, 623 (1998). See Rozzelle v. Sec’y Fla. Dep’t of Corr., 672 F.3d 1000,
8
1012-13 (11th Cir. 2012) (per curiam) (finding factual innocence is required but
recognizing that the circuits differ on whether a complete affirmative defense,
such as insanity, shows factual or only legal innocence), cert. denied, 568 U.S.
914 (2012).
To the extent this Court broadly construes the Petition as
claiming legal innocence, not factual innocence, that will not win the day.
Although the question of whether the establishment of an affirmative
defense would qualify under Schlup v. Delo, 513 U.S. 298 (1995) has not been
resolved in the Eleventh Circuit, dicta in Rozzelle suggests that the Eleventh
Circuit would not extend a claim of this nature to satisfy the actual innocence
requirement as the exception is extremely rare, only applies to extraordinary
cases, and has been considered very narrow - for those rare situations where
the state has convicted the wrong person.
Rozzelle, 672 F.3d at 1014-15.
Considering the current state of the law, Petitioner has not made a credible
showing of actual innocence.
III.
Introduction
Petitioner places his mental health at issue. Therefore, he has waived
any privilege in any confidential materials related to his mental health and
medical records as these matters are relevant to Petitioner’s contentions
concerning his mental health and brain defect:
9
“‘[c]ourts have routinely held that, by putting one's
medical condition at issue in a lawsuit, a plaintiff
waives any privilege to which he may have otherwise
been entitled as to his privacy interests in his medical
records.’” Lozman v. City of Riviera Beach, No. 0880134-Civ-Hurley/Hopkins, 2014 WL 12692766, at *1,
2014 U.S. Dist. LEXIS 195855, at *3-4 (S.D. Fla. May
2, 2014) (quoting Stogner v. Sturdivant, 2011 U.S.
Dist. LEXIS 107571, 2011 WL 4435254, *5 (M.D. La.
Sept. 22, 2011)); Barlow v. Dupree Logistics, LLC, No.
1:14-BE-1808-E, 2015 WL 4646812, at *8, 2015 U.S.
Dist. LEXIS 102371, at *24 (N.D. Ala. July 5, 2015)[.]
Oldaker v. Giles, No. 7:20-CV-00224 (WLS), 2021 WL 3412551, at *3 (M.D. Ga.
Aug. 4, 2021) (slip op.), reconsideration denied, 2021 WL 3779837 (M.D. Ga.
Aug. 25, 2021).8
Although this case is a criminal case, not a civil case for damages, the
medical and mental health records are directly relevant to several claims set
forth in the Petition, and Petitioner, through the filing of his Petition, raised
the matter at issue and asks the Court to address all of his claims. Of note, a
massive amount of sensitive information is already a matter of public record
due to the extensive records contained in the criminal and post-conviction
8
The Court finds the reasoning of Oldaker persuasive on this point. See McNamara v. Gov’t
Emp. Ins. Co., 30 F.4th 1055, 1060-61 (11th Cir. 2022) (reiterating that unpublished opinions
may be cited as persuasive authority but are not binding precedent. See Rule 32.1, Fed. R.
App. P. In this opinion, the Court finds other unpublished decisions persuasive on various
points and references them as persuasive authority, not as binding precedent.
10
record. See United States v. Bradley, No. 405CR059, 2007 WL 1703232, at *5
(S.D. Ga. June 11, 2007) (not reported in F.Supp.2d) (discussing privacy
interests after a criminal trial).
IV.
Equitable Tolling
The AEDPA is applicable to Petitioner’s case as his conviction became
final after April 24, 1996, the effective date of AEDPA. Smith v. Jones, 256
F.3d 1135, 1143 (11th Cir. 2001) (by its terms, the state of limitations provision
in AEDPA bars any petition filed more than a year after the conviction became
final at the conclusion of direct appeal, absent exceptions and qualified tolling
periods), cert. denied, 534 U.S. 1136 (2002). The AEDPA one-year limitation
period is subject to equitable tolling. Holland v. Fla., 560 U.S. 631, 651-52
(2010).
Petitioner submits he can establish that equitable tolling of the statute
of limitations is warranted, claiming extraordinary circumstances beyond his
control. Petitioner carries the burden of persuasion. He must satisfy a twopronged test; he must demonstrate “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in his way and
prevented timely filing.”
Id. at 649 (quotation marks omitted).
See
Christmas v. Judd, No. 20-14431, 2021 WL 4860927, at *1 (11th Cir. Oct. 19,
11
2021) (per curiam) (not reported in Fed. Rptr.) (same). Petitioner contends
his brain defect with brain damage and mental illness and incapacity satisfies
both prongs: the diligence prong, and the extraordinary circumstances prong.
Alternatively, he claims his incompetence combined with counsel’s failure to
offer evidence on incompetency satisfies both prongs.
Equitable tolling is an extraordinary remedy, only employed in “rare and
exceptional circumstances and typically applied sparingly.”
Cadet v. Fla.
Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quotations and citation
omitted), cert. denied, 138 S. Ct. 1042 (2018). See Downs v. McNeil, 520 F.3d
1311, 1318 (11th Cir. 2008) (finding equitable tolling “is a remedy that must
be used sparingly”). This heavy burden is not easily surmounted.
Petitioner did not file his federal Petition (Doc. 30) until Monday,
November 4, 2019, well past the expiration of the one-year limitation period.9
The Petition filed on November 4, 2019 is untimely and due to be dismissed
unless Petitioner can establish equitable tolling of the statute of limitations is
warranted. Petitioner must demonstrate both that he diligently pursued his
federal habeas rights and extraordinary circumstances prevented his timely
filing of a federal habeas petition. Thus, in order to obtain equitable tolling
9
Petitioner is represented by counsel.
12
for the period at issue, not only must Petitioner show extraordinary
circumstances he must also demonstrate those circumstances caused him to
miss the filing deadline.
Petitioner argues the specific circumstances of the case warrant
equitable tolling.
Petition at 18.
He references a profound brain defect
(arterial venous malformation or AVM) with brain damage and mental illness
and incapacity. Id. at 15-21. He argues that courts have widely recognized
that equitable tolling applies when a defendant suffers some form of mental
incapacity (citing Lawrence v. Fla., 421 F.3d 1221, 1227 (11th Cir. 2005); Nara
v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), overruled in part on other grounds,
Carey v. Saffold, 536 U.S. 214 (2002); and Hunter v. Ferrell, 587 F.3d 1304,
1308-10 (11th Cir. 2009) (per curiam)). Petition at 19.
“To obtain equitable tolling, . . . Petitioner must show extraordinary
circumstances and demonstrate that those circumstances caused him to miss
the filing deadline.” Ryder v. Sec’y, Dep’t of Corr., No. 8:09-CV-2019-T27MAP, 2012 WL 12895353, at *4 (M.D. Fla. June 6, 2012) (not reported in F.
Supp.) (citations omitted). In the instant case, the one-year limitation period
expired on January 18, 2013, four days after Petitioner’s pro se motion for
rehearing filed in the FSC was stricken as unauthorized on January 14, 2013.
13
To prevail on his contention that he is entitled to equitable tolling, Petitioner
must show there is a causal connection between the alleged extraordinary
circumstances and the late filing of his federal petition. Petitioner contends
equitable tolling is warranted because he suffers from some form of mental
incapacity that satisfies the two-pronged standard.
In Hunter, 587 F.3d at 1308, the Eleventh Circuit focused on whether
the petitioner had presented sufficient evidence to create a factual issue as to
a causal connection between his mental incapacity and his ability to file a
timely federal petition. The Eleventh Circuit looked to its previous decision
in Lawrence, 421 F.3d at 1226-27, in which the court determined that the
petitioner’s claim of long-term mental impairments combined with a full-scale
IQ of 81 were insufficient to justify equitable tolling because they did not
establish a causal connection between the alleged mental incapacity and the
ability to file a timely petition.
Hunter, 421 F.3d at 1308. The Eleventh
Circuit, while noting that “mental impairment is not per se a reason to toll a
statute of limitations[,]” Hunter, 587 F.3d at 1308, concluded the petitioner
had presented sufficient evidence to warrant further inquiry based on record
evidence of severe, irreversible mental retardation. Id. at 1309-10. In Nara,
264 F.3d at 320, the Third Circuit deemed an evidentiary hearing warranted
14
because of ongoing periods of mental incompetency which may constitute an
extraordinary circumstance to justify equitable tolling.
In O’Connor v. Inch, No. 17-60234-CV-COHN/REID, 2019 WL 11029408,
at *2 (S.D. Fla. Sept. 24, 2019) (slip op.), the petitioner argued equitable tolling
was appropriate because he suffers from mental illness, he was effectively
abandoned by counsel, and he was deprived of personal property and legal
materials during transfers between facilities.
In pertinent part, the court
held: “[m]ental impairment, without a showing of how such impairment affects
a petitioner's ability to file a timely petition, is insufficient reason to equitably
toll the limitations period under the AEDPA.”
Id. at *3 (citing Lawrence
(contention that individual suffered from mental illness all his life is not
sufficient reason to justify equitable tolling) and Hunter).
In Petitioner’s Response, he sets forth other circumstances he claims
justify equitable tolling: (1) he suffers from a congenital brain defect that
renders him incompetent and unable to make decisions on his own behalf, and
this incompetency contributed to the late filing because Petitioner cannot
internally process emotions and apply information to himself; (2) he was
incompetent when the post-conviction court removed counsel and dismissed
the post-conviction proceedings; and (3) post-conviction counsel was deficient
15
in failing to offer any evidence on incompetency. Petitioner’s Response at 6162. Petitioner contends he showed “the diligence expected of someone ‘in his
situation[.]’” Id. at 62 (citation omitted). Apparently, Petitioner contends his
mental illness/brain defect satisfies both the diligence and extraordinary
circumstances prongs.
There are several factors that stand out to the Court. On October 12,
2009, Petitioner suffered a hemorrhage in his brain and underwent surgery on
October 13, 2009: a frontotemporal craniotomy. 10
(Doc. 30-2 at 9).
This
neurological event occurred five days after his conviction became final on
Wednesday October 7, 2009.
Thus, a very significant event effecting both
Petitioner’s physical and mental health occurred at the outset of his one-year
limitation period. On January 15, 2010, Petitioner was admitted to the Crisis
Stabilization Unit (CSU) in the Florida Department of Corrections (FDOC)
upon emergent transfer to Union Correctional Institution (UCI) and placed on
10
To provide context, the Court briefly outlines Petitioner’s medical history concerning the
AVM. A brain bleed occurred on March 20, 2004, confirmed by an MRI (magnetic resonance
imaging) performed on March 22, 2004. (Doc. 30-2 at 7-8). By June 30, 2004, a doctor at
Memorial Hospital, Jacksonville, Florida, recommended surgery. Id. at 8. Petitioner told
the circuit court about his brain bleed and need for surgery at a hearing on February 18,
2005. Ex. at 1247. A doctor at Shands recommended radiation treatment. (Doc. 30-2 at
8). On January 24, 2006, Petitioner received radiosurgery. Id. at 9. An MRI of
Petitioner’s brain on October 12, 2009 showed a large multiloculated hemorrhagic lesion in
the left temporal lobe, measuring 5.1 x 4.7 cm at the largest point, while also suggesting
hemosiderin, or prior recent hemorrhage. Id.
16
Self Harm Observation Status (SHOS). (Doc. 30-3, Vol. 2 at 21-25, 33). He
was placed in chronic clinic for his psychiatric disorder.11 (Doc. 30-3 at 15, 20).
Also of significance, the circuit court did not order an assignment to a
death qualified judge for the purposes of Petitioner’s post-conviction
proceeding and appoint counsel for Petitioner until the circuit court’s orders
were entered on February 1, 2010 and filed on February 5, 2010. Ex. at 242627. Thus, 121 days of the one-year period ran without action being taken by
the circuit court to ensure a qualified judge was assigned to the case and
counsel appointed to represent Petitioner for his post-conviction proceedings.
Petitioner’s discharge diagnosis of April 14, 2010 mentions a seizure disorder
and an AVM of the cerebral cortex area.12 (Doc. 30-3 Vol. 1 at 75).
Petitioner’s signature is not on the original Rule 3.851 motion filed on
October 4, 2010. Id. at 2436-63. The circuit court dismissed the Rule 3.851
motion without prejudice to Petitioner filing an amended motion. Id. at 256263. Petitioner’s post-conviction counsel, Mr. D. Todd Doss, filed a Motion for
11
Petitioner states he was committed to in patient mental health care for over three months.
Petitioner’s Response at 42. Of note, “[i]nmate records are remarkable for mental health
emergencies during the last six months on 01/12/10, 01/13/10, and 4/22/10, resulting in
SHOS/IMR and CSU admission.” (Doc. 30-3, Vol. 2 at 81).
12
Harry Krop, Ph.D. (psychologist) wrote Petitioner’s counsel a letter on January 30, 2006,
stating Petitioner has had at least one Grand Mal seizure and at age 14 was knocked
unconscious in a car accident. Ex. at 2032-33.
17
Extension of Time to Amend Motion for Post-conviction Relief, noting that
Petitioner refused to come out of his cell to meet with counsel and his
investigator. Id. at 2584-85. Mr. Doss further noted, “Mr. Gill has exhibited
erratic behavior throughout this litigation involving undersigned counsel.”
Id. at 2585. Counsel mentioned Petitioner’s letters threatening the court and
counsel and Petitioner’s pro se pleadings attempting to dismiss counsel. Id.
Those
matters,
“coupled
with
privileged
correspondence
causes
the
undersigned to seriously question the competence of Mr. Gill.” Id. Counsel
requested an extension of time to have Petitioner examined for competency
and to amend the motion for post-conviction relief to comply with the oath
requirement. Id.
The circuit court granted counsel’s motion for extension of time and
ordered a competency evaluation with a hearing. Id. at 2590-91. The court
explained that if Petitioner is found to be competent, the court will then
conduct a Durocher/Faretta
13
inquiry to determine whether Petitioner
knowingly, freely, and voluntarily wants to dismiss the proceedings and
13
Durocher v. Singletary, 623 So. 2d 482, 485 (Fla. 1993) (per curiam) (requiring an
evaluation as to whether a defendant understands the consequences of waiving collateral
counsel and proceedings); Faretta v. Cal., 422 U.S. 806 (1975) (requiring a hearing on a
defendant’s unequivocal request for self-representation).
18
discharge counsel.
Ex. at 2590-91.
The court entered a separate Order
Appointing Expert(s) for Competency Evaluation and Scheduling Hearing,
appointing Dr. Krop and Dr. Brian Cooke. Id. at 2596-97.
On June 9, 2011, Dr. Cooke responded that Petitioner refused to be
evaluated, resulting in Dr. Cooke being unable to make an opinion with
reasonable medical certainty regarding Petitioner’s present capacity to dismiss
the proceedings and discharge counsel. Id. at 2599-2604. On May 31, 2011,
Dr. Krop provided a report that stated he was able to evaluate Petitioner. Id.
at 2607-2609. Dr. Krop estimated Petitioner to be functioning in the average
range of intelligence with no current evidence of a psychotic process and his
reality testing appeared intact. Id. at 2608. Dr. Krop made a competency
assessment and found Petitioner met the following: (1) appreciation of charges
or allegations against him; (2) appreciation of range and nature of possible
penalties; (3) understanding of the adversarial nature of the legal process; (4)
ability to disclose pertinent facts to counsel; (5) ability to manifest appropriate
courtroom behavior; and capacity to testify relevantly and coherently. Id.
In conclusion, Dr. Krop wrote:
Based on the totality of this evaluation, it is this
examiner’s opinion that Mr. Gill is not currently
suffering with any major mental illness and is
Competent to Proceed in all legal proceedings.
19
Although the Defendant may change his mind in the
future, it appears that his current though processes
are rational and reality based.
Although he is
situationally depressed, he is capable of assisting his
attorney if he so chooses as well as representing his
decisions to the Court.
Id. at 2609.
A competency hearing was conducted on June 30, 2011. Id. at 2665.
Dr. Cooke was able to evaluate Petitioner at the Courthouse on June 30, 2011,
and provide a psychiatric opinion. Id. at 2675. Dr. Cooke examined relevant
documents.
Id. at 2689-90.
He found Petitioner has the capacity to
understand the adversarial nature of the legal process and the collateral
proceedings, and found Petitioner had the ability to disclose to counsel facts
pertinent to the proceeding. Id. at 2690-91. Dr. Krop saw Petitioner on June
30, 2011, and he attested everything he observed again supported his original
assessment that Petitioner is competent to proceed. Id. at 2695-96.
Petitioner’s post-conviction counsel, Mr. Doss, followed up with a
Memorandum Regarding Mr. Gill’s Competency to Waive Post-conviction
Appeals and Discharge Counsel, filed July 7, 2011.
Id. at 2631-38.
He
reiterated his objection to Dr. Cooke being accepted as an expert; moved the
court to order the release of Petitioner’s FDOC records, although Petitioner
had revoked his release; and argued Petitioner has an inability to understand
20
and function in an attorney-client relationship, demonstrating an inability to
disclose pertinent facts to counsel, to comprehend advice and make decisions.
Id. Counsel complained that the evaluations were incomplete and a decision
as to competency should not be rendered. Id. at 2636. He asked that the
court release the prison records to the doctors, order a further evaluation, and
conduct another competency hearing. Id. at 2637. Alternatively, Mr. Doss
asked that Petitioner be found incompetent to proceed. Id.
On July 12, 2011, the court entered an order filed on July 18, 2011,
finding Petitioner’s testimony at the evidentiary hearing supported the
competency finding of the two experts, and acknowledging Petitioner’s stated
desire to end the post-conviction process and discharge counsel. Id. at 264041. The court noted that the experts were not appointed “due to any belief by
this Court that Defendant was incompetent.”
Id. at 2640.
The court
dismissed the post-conviction proceedings and discharged counsel.
Id. at
2641.
Mr. Doss filed a notice of appeal and Petitioner filed a pro se notice of
appeal.14 Id. at 2644-45, 2654. Mr. Doss filed the Initial Brief of Appellant.
14
The Court finds this evinces diligence on Petitioner’s part. Petitioner did not file a pro se
brief, but Mr. Doss filed briefs on Petitioner’s behalf.
21
Id. at 2739-61. The state filed an Answer Brief of Appellee. Id. at 2763-2822.
Mr. Doss filed a Reply Brief of Appellant.
Id. at 2824-30.
The FSC
affirmed.15 Id. at 2832-35; Gill, 107 So. 3d 326.
The record demonstrates Petitioner suffers from a congenital brain
defect, he has lesions on the brain, and this combined with ongoing mental
illness satisfies both the diligence and extraordinary circumstances prongs.
The Court has reviewed the extensive medical and mental health records and
concludes Petitioner has carried his burden of establishing a basis to invoke
equitable tolling in order to resuscitate his untimely petition.
Due to the
comprehensive nature of the records received by the Court concerning
Petitioner’s extreme mental health issues exhibited from childhood to present
day and Petitioner’s AVM, brain pathology and defect, the Court finds an
evidentiary hearing is unnecessary.
It is quite apparent, “mental illness can constitute an extraordinary
circumstance, which may prevent a habeas petitioner from understanding and
acting upon his legal rights and thereby equitably toll the AEDPA limitations
period” but it does not per se toll the limitations period. Riva v. Ficco, 615
15
The FSC set a briefing schedule assuming that Petitioner and Doss would file briefs, but
Petitioner did not file a pro se brief. Gill, 107 So. 3d at 327.
22
F.3d 35, 40 (1st Cir. 2010). There must be a showing of “some causal link
between a petitioner’s mental illness and his ability seasonably to file for
habeas relief.”
Id.
Of import, in Riva, the court found the causation
requirement would be satisfied if a petitioner shows that, during the relevant
time frame, he both suffered from a mental illness or impairment that severely
impaired his ability “either effectively to pursue legal relief to his own behoof
or, if represented, effectively to assist and communicate with counsel.” Id.
The record shows Petitioner suffers from long-standing mental illness,
with Petitioner being removed from pre-school and committed to facilities as a
child and a teenager and being otherwise institutionalized for years, suffering
from what was diagnosed as childhood schizophrenia, conduct disorderaggressive, and ADD. In his youth, Petitioner was repeatedly psychiatrically
placed and institutionalized exhibiting impulsive, violent, manipulative, and
possibly delusional behavior. Over the years he has been diagnosed with an
array of disorders and psychiatric issues, including, major depressive disorder
with psychotic features or Dysthymia; Attention Deficit Disorder (ADD);
Asperger’s; Antisocial Personality Disorder or Borderline Personality Disorder;
Psychosis, NOS; mood disorder, NOS; Bipolar I Disorder; brain pathology or
neurologically based sociopathology; major mood disorder; intermittent
23
explosive disorder; seizure D/O; and polysubstance dependence. Yes, there
are points in the record where Petitioner exhibits his intelligence, shows
lucidity, and demonstrates that he is educated; however, these periods are
intermittent and interspersed with significant periods of erratic behavior and
health crises.
Of course, Petitioner’s mental health situation has been exacerbated by
very significant neurological events: headaches, seizures, brain hemorrhages,
the pressure of the AVM (a congenital abnormality) on the amygdala (the
structure in the brain controlling rage and impulse), and the aftermath of these
significant neurological events, including headaches, seizures, apparent
delusions, falls, and vision issues. Also, there was a significant period where
the state court failed to provide counsel to Petitioner, who had undergone brain
surgery and then entered a mental health crisis stabilization unit of the FDOC
under SHOS. Once the court appointed post-conviction counsel, Petitioner
exhibited his erratic and threatening behavior, prompting counsel to seek an
extension of time for a competency proceeding, triggering the state court’s
appointment of experts and then a competency proceeding.
Petitioner has shown that his mental illness and brain defect prevented
him from following through in litigation in a sustained way. His illness and
24
his explosive and erratic behavior often prevented him from cooperating with
counsel.
Additionally, his significant neurological issues exacerbated the
difficulties he was facing due to mental illness.
The record demonstrates that for almost a third of the one-year
limitation period Petitioner was without post-conviction counsel and he
suffered, almost immediately, a significant neurological event, a hemorrhage
in his brain and underwent a frontotemporal craniotomy on October 12, 2009.16
Petitioner’s Response (Doc. 81-2 at 23-24; Doc. 81-3 at 69).17 On November 9,
2009, medical issued a pass for a seizure helmet after Petitioner complained of
blurred vision and falling.
Id. (Doc. 81-2 at 84; Doc. 81-3 at 107).
On
November 10, 2009, Petitioner had a seizure assessment after he had a seizure
lasting a few minutes and fell forward against a wall. Id. (Doc. 81-2 at 77).
He described auditory/visual hallucination and blurred vision in his left eye.
16
Previously, Petitioner declared a medical emergency on October 6, 2009 due to an
excruciating headache and complained of lack of sleep for weeks due to pain. Petitioner’s
Response (Doc. 81-3 at 59). Medical noted “migraine vs. tension headache.” Id. at 57. On
October 12, 2009, Petitioner was found acting strangely in his cell with glassy eyes and
unstable gait and then became unresponsive. Id. at 74. The Emergency Room record
mentions the AVM and a directive to transport Petitioner to an outside hospital. Id. at 74,
110.
17
The Court relies on these referenced attachments to Petitioner’s Response (Doc. 81) for
the limited purpose of equitable tolling; otherwise, for Petitioner’s claims set forth in the
Petition, the Court relies on the record before the state court as AEDPA limits review of the
factual determinations of the state court to the evidence presented in the state court
proceedings. Cullen v. Pinholster, 563 U.S. 170 (2011).
25
Id. On November 25, 2009, Petitioner continued to complain of headaches.
Id. at 72. Accounting for some time to recover from brain surgery, Petitioner
then suffered significant mental health crises in January 2010, that resulted
in his placement in SHOS and a chronic clinic, and this mental state
apparently continued through April of 2010 as he had another mental health
crisis on April 22, 2010. Id. (Doc. 81-3 at 142-44, 149-54). On January 4,
2010, post-craniotomy, Petitioner had visual difficulty and was still on
Dilantin.
Id. (Doc. 81-2 at 63).
The record demonstrates Petitioner
underwent a seizure assessment and was taking Dilantin, an antiseizure
medication, and Wellbutrin, an antidepressant, on April 5, 2010. (Doc. 30-3,
Vol. 2 at 79). He expressed “auditory/visual hallucination” as well. Id.
Any period of time exceeding the one-year limit should be equitably
tolled as a result of Petitioner’s mental illness and brain defect which
constitutes an extraordinary circumstance preventing Petitioner from timely
filing his federal petition. The Court is convinced that Petitioner’s mental
condition and the brain defect caused his failure to file a timely petition.
Petitioner’s behavior was and is erratic, manipulative, and paranoid with
displays of anger, aggression, and ever-changing, inconsistent, and contrary
decision-making.
This coupled with the brain defect, brain bleeds, brain
26
surgery and the aftermath of the brain surgery convinces the Court that this
is “a ‘truly extreme case’” warranting equitable tolling. Lewis v. Howerton,
No. 1:07-CV-2803-JEC-WEJ, 2012 WL 4514044 (N.D. Ga. Sept. 30, 2012) (not
reported in F.Supp.2d) (citing Holland v. Fla., 539 F.3d 1334, 1338 (11th Cir.
2008)), affirmed, 641 F. App’x 878 (11th Cir.), cert. denied, 137 S. Ct. 132
(2016).
Petitioner meets the standard of reasonable diligence as Petitioner’s
mental illness combined with his brain defect yields a very low bar for what
level of diligence is reasonable. Id. (citing Myers v. Allen, 420 F. App’x 924,
928 (11th Cir. 2011)). Petitioner is not expected to demonstrate maximum
feasible diligence. Holland, 130 S. Ct. at 2565. Although Petitioner made
attempts to involve himself in the litigation, these attempts were sporadic,
unpredictable, with disabling manifestations of his mental illness, including
suicidal ideation, self-mutilation, hallucinations, paranoia, severe depression,
anger, and rage.
As noted by the trial court, “[h]istorical records indicate that the
Defendant was removed involuntarily from two nursery schools, was removed
from the first grade and was placed in an emotionally handicapped school at
a very early age. Defendant was uncontrollable and was moved to North
27
Florida Hospital.” Ex. at 0759. A February 26, 1983 discharge summary
from Northeast Florida State Hospital not only references ADD with
hyperactivity but includes a diagnosis of childhood schizophrenia.
Ex. at
1843.
The Court recognizes that Petitioner is literate and of average
intelligence, but he suffers from chronic mental illness and has a brain defect
accompanied with brain bleeds and seizures rendering him symptomatic and
unstable, hindering his ability to successfully prosecute a post-conviction
proceeding, with or without counsel.
Here, Petitioner has conclusively
shown that his mental illness, brain defect, and serious neurological events
interfered with his ability to appreciate his litigation position and make
rational decisions regarding the litigation.
As such, Petitioner has
established a causal connection between his alleged mental incapacity and
his ability to file a timely federal petition.
Of importance, the record shows Petitioner was not incompetent, and the
issue of competency will be addressed separately. As for his post-conviction
counsel, there was no professional misconduct.
Holland, 560 U.S. at 649
(professional misconduct could amount to egregious behavior and create an
extraordinary circumstance). The record demonstrates, once appointed, Mr.
28
Doss attempted to protect his client’s rights. Although he let a significant
amount of time pass, he timely filed a Rule 3.851 motion.
Counsel was
frustrated in his efforts to file a signed amended Rule 3.851 motion and sought
an extension of time for a competency proceeding, prompting the circuit court
to appoint experts and undertake a competency review.
Mr. Doss did not
perform deficiently in this regard. When Petitioner successfully dismissed his
post-conviction proceeding and had counsel discharged, Mr. Doss, although at
that point discharged counsel, filed a timely notice of appeal and appellate
briefs.18 Gill v. State, 107 So.3d at 327.
Upon review, Petitioner has failed to show Mr. Doss engaged in any
serious attorney misconduct qualifying as an extraordinary circumstance.
Petitioner has not shown bad faith, dishonesty, divided loyalty, or mental
impairment on the part of his counsel.
Cadet, 853 F.3d at 1236.
Additionally, this record “does not suggest abandonment or any other form of
serious misconduct rising to the level of an ‘extraordinary circumstance.’”
Robinson v. Jones, No. 1:17cv198-MW-CJK, 2018 WL 6920351, at *4 (N.D. Fla.
Nov. 6, 2018) (not reported in F. Supp.), report and recommendation adopted
18
In state court, Petitioner sought to dismiss his post-conviction proceedings and discharge
counsel. Recently, Petitioner moved to dismiss his federal proceedings as well; however, he
ultimately withdrew his pro se motion. See Docs. 94, 95, 96, 98, 100, 101, 103, 104.
29
by 2019 WL 77508 (N.D. Fla. Jan. 2, 2019), affirmed by 808 F. App’x 894 (11th
Cir. 2020), cert. denied, 141 S. Ct. 2764 (2021) (per curiam). See Thomas
v.
Att’y Gen., 992 F.3d 1162, 1167 (11th Cir. 2021), cert. denied, 142 S. Ct. 791
(2022) (asking did counsel abdicate his duty of loyalty to the petitioner to
promote his own interests or the interests of others).
On this record there was no misinterpretation of the one-year deadline
and even after being discharged, counsel did not walk away from the attorneyclient relationship. See id. at 1183; Cadet, 853 F.3d at 1234 (“Abandonment
denotes renunciation or withdrawal, or a rejection or desertion of one’s
responsibilities, a walking away from a relationship.”). There is absolutely no
evidence that Mr. Doss acted in bad faith.19 Thomas, 992 F.3d at 1184. For
equitable tolling purposes, there has not been a showing of “professional
misconduct” or some other extraordinary circumstance. Walters v. Sec’y, Fla.
Dep’t of Corr., No. 3:18-cv-1088-TJC-PDB, 2021 WL 3172120, at * 3 (M.D. Fla.
July 7, 2021) (slip op.).
See Holland, 560 U.S. at 651 (“professional
19
Petitioner’s assertion that counsel could have done more in his representation by
presenting other evidence on incompetency may go to effectiveness of counsel, but it does not
evince bad faith or professional misconduct. Upon review, there was no abandonment by
counsel or other serious misconduct.
30
misconduct . . . could nonetheless amount to egregious behavior and create an
extraordinary circumstance that warrants equitable tolling”).
Petitioner filed a pro se notice of appeal and the FSC anticipated briefs
being filed by both counsel and Petitioner, but Petitioner did not file a pro se
brief.20 Id. Petitioner did file a motion for rehearing, but after his motion for
rehearing was struck, Petitioner only had a few days remaining in his one-year
limitation period.21 The one-year limitation period expired uninterrupted.
In conclusion, Petitioner has shown that his mental illness and brain
condition during the one-year limitation period caused the untimely filing. He
has successfully demonstrated a causal connection between his mental
impairment and brain defect and his ability to file a timely petition.
His
20
Petitioner filed an unauthorized motion for rehearing that was struck by the FSC. Rec.
at 4. To provide context, the Court gives some procedural history. Apparently, the clerk
did not provide Petitioner with a complete copy of the FSC’s ruling, so Petitioner wrote letters
on October 3, 2012 and on October 22, 2012 attempting to obtain all pages of the ruling from
the FSC. Id. at 30, 32-34. Of note, he specifically requested a complete copy of the order as
soon as possible, “so that I may go forward in mandatory time frame.” Id. at 32 (letter dated
October 3, 2012). Petitioner states he received the full order from the Clerk of the FSC on
October 23, 2012 and filed a motion for extension of time to file for rehearing on October 26,
2012, pursuant to the mailbox rule. Id. at 23-24. The FSC denied the motion for extension
of time to file a motion for rehearing as untimely. Id. at 22. Petitioner’s efforts to obtain a
complete copy of the FSC’s decision so he could properly review the decision and file a motion
for rehearing evince diligence.
21
As Petitioner is incarcerated, it likely took a few days for the FSC’s January 14, 2013 order
striking his motion for hearing to arrive at the prison and be delivered to Petitioner. For
example, Petitioner turned his motion for extension of time over to the prison authorities for
mailing on Friday, October 26, 2012, and it was filed with the FSC on Tuesday, October 30,
2012. Rec. at 23.
31
mental illness and brain condition is so profound and debilitating that it
caused the untimely filing. As noted above, Petitioner exercised reasonable
diligence, and the Court finds extraordinary circumstances prevented timely
filing.
Petitioner’s case presents a question of equity. Even after AEDPA, it
has been recognized that the dismissal of a petitioner’s first federal habeas
petition is particularly serious as it severs the protections of the Great Writ,
risking untold injury. See Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198,
1217 (11th Cir. 2014) (Martin, J., concurring in judgment), cert. denied, 574
U.S. 1125 (2015).
To avoid the evils of archaic rigidity, the Court has
undertaken a more expansive, flexible review of Petitioner’s contention that
under the specific circumstances of this case he is entitled to equitable tolling,
recognizing that the “exercise of a court’s equity powers . . . must be made on
a case-by-case basis.” Holland v. Fla., 560 U.S. at 649-50 (quoting Baggett v.
Bullitt, 377 U.S. 360, 375 (1964)). See Cole v. Warden, Ga. State Prison, 768
F.3d 1150, 1158 (11th Cir. 2014) (assessment on a case-by-case basis requires
consideration of the specific circumstances of the subject case), cert. denied,
575 U.S. 989 (2015).
The Court considers this a truly extreme case
warranting “special treatment” and entitlement to equitable tolling. Holland,
32
560 U.S. at 650.
Therefore, Respondents’ Second Motion to Dismiss the
Federal Habeas Petition as Untimely (Doc. 62) will be denied.
As such, the Court will address Petitioner’s claims.
To the extent
Petitioner is not entitled to equitable tolling of the limitation period and the
Petition is considered to be time-barred, alternatively, the Court denies relief
because the Petition lacks merit. The Court further finds that a certificate of
appealability is not warranted.
V.
HABEAS REVIEW
Federal courts are authorized to grant habeas relief to a state prisoner
“only on the ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” Lee v. GDCP Warden, 987 F.3d 1007,
1017 (11th Cir.) (quoting 28 U.S.C. § 2254), cert. denied, 142 S. Ct. 599 (2021).
For issues previously decided by a state court on the merits, this Court must
review the underlying state-court decision under the AEDPA. In doing so, a
federal district court must employ a very deferential framework. Sealey v.
Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (citation
omitted) (acknowledging the deferential framework of AEDPA for evaluating
issues previously decided in state court), cert. denied, 141 S. Ct. 2469 (2021);
Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam) (recognizing AEDPA
33
imposes “important limitations on the power of federal courts to overturn the
judgments of state courts in criminal cases").
Thus, “[u]nder AEDPA, a court cannot grant relief unless the state
court's decision on the merits was ‘contrary to, or involved an unreasonable
application of,’ Supreme Court precedent, or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.’” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1364 (11th
Cir.) (citing 28 U.S.C. § 2254(d)(1)-(2)), cert. denied, 142 S. Ct. 441 (2021). The
Eleventh Circuit instructs:
A state court’s decision is “contrary to” clearly
established federal law if the state court either reaches
a conclusion opposite to the Supreme Court of the
United States on a question of law or reaches a
different outcome than the Supreme Court in a case
with “materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146
L.Ed.2d 389 (2000).
“Under the ‘unreasonable
application’ clause, a federal habeas court may grant
the writ if the state court identifies the correct
governing legal principle” from Supreme Court
precedents “but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 413, 120 S. Ct.
1495.
Lee, 987 F.3d at 1017-18. Therefore, habeas relief is limited to those occasions
where the state court’s determinations are unreasonable, that is, if no fairminded jurist could agree with them. McKiver, 991 F.3d at 1364.
34
This high hurdle is not easily surmounted. If the state court applied
clearly established federal law to reasonably determined facts when
determining a claim on its merits, “a federal habeas court may not disturb the
state court’s decision unless its error lies ‘beyond any possibility for fairminded
disagreement.’”
Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (per curiam)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Also, a state court's
finding of fact, whether a state trial court or appellate court, is entitled to a
presumption of correctness under 28 U.S.C. § 2254(e)(1). “The state court’s
factual determinations are presumed correct, absent clear and convincing
evidence to the contrary.”
Sealey, 954 F.3d at 1354 (quoting 28 U.S.C. §
2254(e)(1)). See Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1220 (11th
Cir. 2021) (Newsome, Circuit Judge, concurring) (recognizing the universal
requirement, applicable to all federal habeas proceedings of state prisoners,
set forth in 28 U.S.C. § 2254(e)(1)).
VI.
Claims for Relief
A. Claim I: Mr. Gill’s congenital brain malformation and other
mental illnesses and defects rendered him incompetent to proceed to
trial and to waive numerous rights. The Court and trial counsel
failed to protect Mr. Gill’s right to be competent and to be represented
by counsel.
35
Petitioner claims he was incompetent to stand trial, waive counsel, plead
guilty, waive an advisory jury, and waive post-conviction proceedings.
Petition at 44. He contends that the trial court, on May 5, 2005, sua sponte
removed counsel, and counsel failed to effectively challenge his removal or
protect Petitioner’s rights.
Id.
In support of this contention, Petitioner
states he has a brain defect, a sizable AVM in the anterior temporal lobe area.
Id. Petitioner argues that this malformation and damaged area of his brain
has caused his impulsive behavior, limited his ability to think rationally,
inhibited his ability to communicate with his counsel, and caused him to make
decisions that are not in his best interest. Id.
Petitioner relies on Dusky v. U.S., 362 U.S. 402 (1960) (per curiam)
(finding, for competency to stand trial, the “test must be whether he has
sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding – and whether he has a rational as well as factual
understanding of the proceedings against him”); Rees v. Peyton, 384 U.S. 312,
(1966) (per curiam) (upon seeking to dismiss a petition for certiorari to review
a Court of Appeal’s decision, the United States Supreme Court remanded for a
determination as to Rees’ “mental competence in the present posture of things,”
asking “whether he has capacity to appreciate his position and make a rational
36
choice with respect to continuing or abandoning further litigation or on the
other hand whether he is suffering from a mental disease, disorder, or defect
which may substantially affect his capacity in the premises”); and Drope v.
Mo., 420 U.S. 162, 180 (1975) (finding the proceedings inconsistent with the
petitioner’s right to a fair trial due to the failure to make further inquiry into
competence to stand trial).
See Pate v. Robinson, 383 U.S. 375 (1966)
(recognizing a due process right to not be tried or convicted while incompetent
to stand trial).
Essentially, Petitioner raises a Dusky claim: a substantive competency
claim that he was convicted while incompetent.
Petition at 56.
Consideration of the claim of entitlement to an evidentiary hearing on this
claim is under the relevant standard of proof, which is high. See Lawrence v.
Sec’y, Fla. Dep’t of Corr., 700 F.3d 464, 481 (11th Cir. 2012) (“in order to be
entitled to an evidentiary hearing on a substantive competency claim . . . a
petitioner must present ‘clear and convincing evidence’ that creates a ‘real,
substantial, and legitimate doubt, as to his competence.”) (quoting James v.
Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992)), cert. denied, 569 U.S. 926
(2013).
37
Respondents address Petitioner’s substantive claim of incompetency in
their Reply. Reply at 9-20. While both the FSC and the state acknowledged
that the record was replete with information that clearly established that
Petitioner is mentally ill, the FSC further found, “based on the record of
competency reviews, reports, and testimony presented in this case,” the finding
of competency “is supported by competent, substantial evidence and is
sufficient to establish Gill’s competence to enter a knowing, intelligent and
voluntary plea.” Gill, 14 So. 3d at 960. Acknowledging the maxim that once
a defendant has been deemed competent, the presumption of competence
continues throughout the proceedings, the FSC proceeded to affirm the
decision of the circuit court that Petitioner was competent to discharge postconviction counsel and waive post-conviction proceedings, finding the lower
court’s decision was supported by competent, substantial evidence. Gill, 107
So. 3d at 328.
Additionally, Respondents argue these state court factual findings are
presumed to be correct under 28 U.S.C. § 2254(e)(1). Reply at 10. That is
certainly the case; a state court’s conclusion regarding competency is entitled
to the presumption as well as the state court’s conclusion that a defendant was
competent to waive his right to further proceedings. Demosthenes v. Baal,
38
495 U.S. 731, 735 (1990) (per curiam) (citing Maggio v. Fulford, 462 U.S. 111,
117 (1983)).
Under 28 U.S.C. § 2254(e)(1), Petitioner has the burden of
rebutting the presumption of correctness by clear and convincing evidence.
Of note, the claim is not subject to procedural bar and survives the
AEDPA statute of limitations. Johnson v. Singletary, 162 F.3d 630, 637 (11th
Cir. 1998) (per curiam), cert. denied, 528 U.S. 883 (1999). Indeed, “[w]e have
both pre- and post-AEDPA precedent, . . . holding that substantive competency
claims generally cannot be procedurally defaulted.” Lawrence, 700 F.3d at
481 (citing Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1101 n.3 (11th
Cir. 2009), cert. denied, 560 U.S. 931 (2010); Wright v. Sec’y, Dep’t of Corr.,
278 F.3d 1245, 1258-59 (11th Cir. 2002), cert. denied, 538 U.S. 906 (2003);
Johnson, 162 F.3d at 637; Medina v. Singletary, 59 F.3d 1095, 1007 (11th Cir.
1995), cert. denied, 517 U.S. 1247 (1996); Adams v. Wainwright, 764 F.2d 1356,
1359 (11th Cir. 1985) (abrogated on other grounds), cert. denied, 474 U.S. 1073
(1986)).
This Circuit has opined that, “neither low intelligence, mental deficiency,
nor bizarre, volatile, and irrational behavior can be equated with mental
incompetence to stand trial.” Medina, 59 F.3d at 1007. The record is replete
with evidence of Petitioner’s sometimes bizarre, and often volatile and
39
irrational behavior. The record demonstrates Petitioner frequently exhibits
anger and readily expresses his paranoia.
But that does not amount to
incompetence.
The facts establishing Petitioner’s competency are strong.
court
revisited
the
competency/incompetency
issue
The trial
throughout
the
proceedings; the court appointed experts and had Petitioner examined and/or
assessed, even though Petitioner often failed to cooperate.22 See Hauser ex
rel. Crawford v. Moore, 223 F.3d 1316, 1323 (11th Cir. 2000) (per curiam)
(noting the subsidiary findings and the ultimate decision of competency are
factual in nature and are entitled to the presumption of correctness under 28
U.S.C. § 2254(e)(1)).
To provide context, the Court will provide a brief procedural history
concerning the appointments of experts and the related competency
evaluations. At the inception of the Union County case, the court appointed
an expert, Elizabeth A. McMahan, at the behest of Petitioner’s counsel. Ex.
at 0102. The prosecutor was not informed of the results.
22
Id. at 0111-12.
Prior to the Union County case, experts examined Petitioner for an Alachua County case.
When Petitioner cooperated and allowed the experts to examine him, the experts found him
competent. Ex. at 1791-94 (Clifford A. Levin, Ph.D., a psychologist, July 14, 2000); Ex. at
0789-91 (Harry Krop, Ph.D., a psychologist, July 24, 2000).
40
The prosecutor asked for the appointment of experts for mental examination
of Petitioner and to determine competency. Id. The circuit court appointed
Dr. Levin. Id. at 0115-18. Petitioner refused to be interviewed by Dr. Levin.
Id. at 0130-32. On December 23, 2002, Dr. Levin submitted a report finding
Petitioner competent to proceed, recognizing Petitioner’s erratic behavior and
lack of cooperation. Id.
Thereafter, on March 17, 2003, the circuit court appointed three experts
to examine Petitioner to determine competency: Dr. Levin; Elizabeth Cadiz,
Ph.D., a psychologist; and Dr. Alan Waldman, a forensic psychiatrist. Id. at
0137. Although Petitioner refused to be examined by Dr. Levin, Dr. Levin
submitted a March 17, 2003 report finding Petitioner competent to proceed.
Id. at 0143-44. Dr. Waldman submitted a report on May 27, 2003. Id. at
0217-26. He stated he spent 1.5 hours on the evaluation. Id. at 0218. He
also found Petitioner competent to proceed. Id. at 0224-26.
On February 6, 2004, the court sua sponte appointed Dr. Krop to
determine Petitioner’s competency.
Id. at 0342-43.
Thereafter, noting
Petitioner’s continuing refusal to cooperate with examiners and attorneys, the
court appointed three examiners: Glynn Newman, M.D.,23 Dr. Krop, and Dr.
23
Apparently, this was a misnomer as Tonia L. Werner, M.D., a psychiatrist, filed the June
41
Levin. Id. at 0399-402. On May 7, 2004, Dr. Krop submitted a report. Id.
at 0403-404. Petitioner participated in a limited clinical interview and mental
status examination.
Id. at 0403. Dr. Krop found Petitioner competent to
proceed. Id. at 0404.
Dr. Werner examined Petitioner at Union County Courthouse on June
18, 2004, with Bill Salmon (Petitioner’s counsel), Dr. Krop, and Dr. Levin
present. Id. at 0416-19. She too found Petitioner competent to proceed. Id.
at 0419.
Dr. Waldman submitted a December 23, 2004 report noting a
profound neurological finding: an intracranial bleed in early 2004.
0479-82. He provided his impressions:
I have come to know Ricardo Gill well through the
multitude of records that I have read and the one
interview I have had with him. He is an individual
who frequently lies, is manipulative with suicidal
threats, and in my opinion within reasonable medical
certainty, has no purely psychiatric disorder. Having
said this, it is clear that he is suffering from a very
serious neurological abnormality, that of an
arteriovenous malformation of the left temporal lobe,
a condition that will probably take his life within the
near future as he is refusing surgery.
An
arteriovenous malformation, or AVM, is like a birds
nest of useless arteries and veins intertangled
together. The walls of these vessels are in some
places aneurysm like and ready to burst like a bubble
on an innertube.
18, 2004 report. Ex. at 0416-419.
42
Id. at
Id. at 0481-82.
Though he did not find exculpation from the physiologic
ramifications of the AVM, Dr. Waldman said the malformation is “a very
strong mitigator[.]” Id. at 0482.
The court again appointed Dr. Cadiz to conduct a competency evaluation.
Id. at 0502-503. She submitted her report on April 14, 2005. Id. at 0528-39.
Her recommendation regarding competency to proceed was as follows: “Mr. Gill
has a factual understanding of the legal proceedings. He does not have a
rational awareness of the meaning and consequences of his case. He currently
depends on other inmates to guide and assist his decision-making.” Id. at
0538.
Her recommendation regarding restorability was ongoing weekly
therapy for several years. Id. The court considered Dr. Cadiz’s report to be
ambivalent in its failure to determine whether Petitioner is competent or
incompetent. Id. at 1304.
On April 15, 2005, the court found Petitioner competent to proceed based
on the reports of the three experts who previously examined Petitioner on June
18, 2004.
Id. at 1309.
Significantly, post-plea and before sentencing, the
court conducted a hearing on February 1, 2006, and received the testimony of
Dr. Waldman. Id. at 1445-71. Dr. Waldman found: “Mr. Gill is competent to
proceed.”
Id. at 1452.
Dr. Waldman explained that Petitioner has an
43
impaired conscience, but he has no impairment in his knowledge of knowing
what is right and what is wrong.
Id. at 1470-71.
Dr. Waldman noted
Petitioner is an intelligent man; however, he is wired to do things that satisfy
himself and himself only. Id. at 1471. Dr. Waldman said Petitioner made
the statement that he would kill again of his own volition, not based on
“knowledge issues about knowing right from wrong,” but due to lack of caring
as a result of being a “neurologically based sociopath.” Id.
The record shows Petitioner was repeatedly examined and found to be
competent, including at the time he waived counsel, pled guilty, waived an
advisory jury, and waived post-conviction proceedings. 24
The Court finds
Petitioner has not met his high burden. Petitioner is intelligent. He can be
volatile and very intentionally manipulative. He also frequently changes his
mind and his position. He obviously understood the charges and could assist
counsel if he chose to do so. Petitioner has not presented clear and convincing
evidence creating a real, substantial, and legitimate doubt as to his competence
to stand trial; therefore, he is not entitled to an evidentiary hearing. Medina,
59 F.3d at 1007. The evidence Petitioner has presented does not positively,
24
The only anomaly was Dr. Cadiz’s report, which the trial court found to be ambivalent and
inconclusive in all respects and unpersuasive on the issue of competency/incompetency.
44
unequivocally, and clearly generate legitimate doubt as to his competence at
the time he entered his plea or at the other relevant stages of the criminal
proceedings. Id. at 1111 (citation omitted). Of course, the circuit court relied
upon its independent observation and interactions with Petitioner as well.
The record supports a finding that Petitioner was competent when he entered
his plea as he had the ability to consult with counsel (if he desired to consult
with counsel) with a reasonable degree of rational understanding and had a
rational as well as factual understanding of the criminal proceedings against
him.
Of import, the FSC found, “based on the record of competency reviews,
reports, and testimony presented in this case, we conclude that the trial court’s
finding of competency is supported by competent, substantial evidence and is
sufficient to establish Gill’s competence to enter a knowing, intelligent and
voluntary plea.” Gill 14 So. 3d at 960. Additionally, the FSC found the trial
court’s determination was supported by competent substantial evidence that
Petitioner was competent to discharge post-conviction counsel and waive postconviction proceedings. Gill, 107 So. 3d at 328.
This Court is restricted in its review as AEDPA limits review of factual
determinations to the evidence presented in the state court proceeding.
45
Cullen v. Pinholster, 563 U.S. at 182 (“This backward-looking language
requires an examination of the state-court decision at the time it was made.”).
It is not as if the factual predicate of Petitioner’s claim could not have been
previously discovered through the exercise of due diligence. 25
2254(e)(2)(A).
28 U.S.C. §
Furthermore, there has been no new and previously
unavailable rule of constitutional law made retroactively applicable to
consider.
Shoop v. Twyford, 142 S. Ct. 2037, 2044 (2022).
25
Petitioner’s
Petitioner suffered a brain bleed in 2004, and testing revealed an AVM on his left temporal
lobe. Petitioner declined surgery, but he eventually received radiation in January, 2006.
In December 2005 and February of 2006, he moved to withdraw his July 8, 2005 plea.
Significantly, for this Court, the trial court did not ignore this serious neurological event and
its ramifications for the criminal case, noting “primarily of concern to me regards a
malformation in your brain that may relate to some of the actions that you have taken that
are before the Court.” Ex. at 1439. As such, on February 1, 2006, before the sentencing
proceeding in June of 2006, the circuit court took the testimony of Dr. Waldman. Id. at 1445.
Dr. Waldman attested: “It is my opinion beyond a reasonable medical certainty that Mr. Gill
is competent to proceed.” Id. at 1452 (emphasis added). Dr. Waldman explained that a
year prior to his testimony, he became aware of the existence of a physiological abnormality
in Petitioner’s brain. Id. at 1453. He explained that Petitioner had a bleed and had
suffered “a transient partial hemiparalysis of the right side of his body.” Id. Dr. Waldman
opined that the AVM is “pressing upon the amygdala[,]” which can result in rage attacks,
seizures, and interictal personality disorder. Id. at 1456-57. He further explained that the
amygdala is an essential part of the conscience. Id. at 1457. The doctor found no evidence
that Petitioner was having temporal lobe seizures, which may induce interictal personality
disorder. Id. at 1462. He explained the AVM is a congenital abnormality, which Petitioner
probably had since birth, and Petitioner had exhibited behavioral abnormalities since
childhood. Id. at 1464. As such, Dr. Waldman could state “with a reasonable degree of
medical certainty that [the existence of the AVM] was probably a factor in Ricardo Gill being
the human being that he is today as opposed to a different human being, but a factor.” Id.
at 1466. Dr. Waldman concluded his testimony by explaining that damage to the amygdala
potentially renders an individual with an impaired conscience along with an impaired ability
to learn from life’s experiences. Id. at 1469.
46
allegations do not generate a substantial and legitimate doubt as to his
competence to stand trial, waive counsel, plead guilty, waive an advisory jury,
and waive his post-conviction proceedings.26
Alternatively in part, concerning the issue of competency for postconviction proceedings there is a fundamental problem with this portion of
Petitioner’s claim: an asserted constitutional error in a post-conviction
proceeding is not cognizable on federal habeas review. Alston v. Dep’t of Corr.,
Fla., 610 F.3d 1318, 1326 (11th Cir.) (this type of challenge does not attack the
validity of the fact or length of confinement but rather concerns a state matter
on collateral proceedings, a state created right), cert. denied, 562 U.S. 1113
(2010). See Walsh v. Sec’y, Dep’t of Corr., No. 4:16-cv-531-WS-GRJ, 2019 WL
2505074, at *13 (N.D. Fla. May 1, 2019) (not reported in F. Supp.) (same),
report and recommendation adopted by 2019 WL 2503826 (N.D. Fla. June 17,
2019). Thus, the finding of competency to waive post-conviction proceedings
fundamentally concerns: “the state’s application of its own post-conviction
procedures[.]” Id.
Indeed, “defects in state collateral proceedings do not
26
In a previous first-degree murder case Petitioner was appointed five experts and each
expert found Petitioner competent to proceed. Gill, 14 So. 3d at 953. The judge in the
Union County case was aware of these evaluations and determinations, including in-depth
evaluation of medical records and records of Petitioner’s early mental health history. Id.
47
provide a basis for habeas relief.” Carroll v. Sec’y, DOC, 574 F.3d 1354, 1365
(11th Cir.) (citations omitted), cert. denied 558 U.S. 995 (2009). See Spradley
v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (per curiam) (a due process
claim challenging errors in a post-conviction proceeding does not state a claim
for habeas relief). This claim is due to be denied. See Jeffus v. Sec’y, Fla.
Dep’t of Corr., 759 F. App’x 773, 776 (11th Cir. 2018) (per curiam) (finding
claims concerning alleged defects in subsequent habeas proceedings are not
cognizable under § 2254 as they do not undermine the legality of the
petitioner’s detention or conviction); Smith v. Jones, No. 3:14cv195/MCR/EMT,
2015 WL 521067, at *5 -*6 (N.D. Fla. Feb. 9, 2015) (not reported in F.Supp.3d)
(same). As such, Petitioner is not entitled to habeas relief on this ground.
Assuming otherwise, the Court concludes from the record that Petitioner
has not demonstrated by clear and convincing that the state court’s findings
were not fairly supported by the record. Ferguson v. Sec’y for the Dep’t of
Corr., 580 F.3d 1183, 1221 (11th Cir. 2009), cert. denied, 560 U.S. 949 (2010).
Upon a thorough review, the record demonstrates that there is ample support
for the state court’s finding that Petitioner was competent to waive postconviction counsel and post-conviction proceedings.
48
Petitioner presents two contentions: (1) “Mr. Gill was incompetent when
he waived post-conviction proceedings, including challenges to his death
sentence[;]” and (2) “[p]ost-conviction counsel ineffectively failed to properly
demonstrate Mr. Gill’s incompetency resulting in a failure to exhaust
ineffective assistance of counsel claims.” Petition at 86. The second issue is
raised as cause for failure to exhaust, not as an independent claim for relief.
Id. at 104-107. As the Court has decided to consider the claims presented in
the Petition, the Court will not address the second issue concerning whether
the alleged ineffectiveness of post-conviction counsel serves as cause sufficient
to excuse procedural default of an unexhausted claim.
Whether
Petitioner
was
incompetent
to
waive
post-conviction
proceedings was a matter assessed by the circuit court. The court appointed
two experts, Dr. Krop and Dr. Brian Cooke, a forensic psychiatrist, to examine
Petitioner and report whether Petitioner has the capacity to dismiss his
pending post-conviction proceedings and to discharge collateral counsel. Ex.
2587-89. Subsequently, Dr. Cooke and Dr. Krop filed relevant reports. Id. at
2599-2609. Once again, cooperation was an issue. Petitioner refused to be
interviewed by Dr. Cooke, and the doctor declined to render an opinion. Id. at
2601, 2604. Dr. Krop evaluated Petitioner on May 25, 2011. Id. at 2607.
49
Dr. Krop found that Petitioner is not suffering with any major mental illness
and is competent to proceed. Id. at 2609. Dr. Krop recognized that Petitioner
“may change his mind in the future,” but his thought processes were “rational
and reality based.” Id.
A full-blown competency hearing was conducted by the court on June 30,
2011. Id. at 2665-2737. Dr. Cooke examined Petitioner on June 30, 2011,
prior to the hearing. Id. at 2674-75. Dr. Cooke expressed his opinion that
with a reasonable degree of medical certainty Petitioner is competent to
dismiss counsel and his right to appeals. Id. at 2678. Dr. Cooke explained
how he arrived at his opinion.
Id. at 2678-79.
Dr. Cooke attested that
Petitioner told him he did not want to spend the rest of his life in prison. Id.
at 2679. Dr. Cooke set forth all of the evaluations he reviewed prior to making
his own assessment and evaluation. Id. at 2689-90.
Dr. Krop, a psychologist who had evaluated Petitioner on numerous
occasions, also testified at the competency hearing. Id. at 2692-2706. Dr.
Krop evaluated Petitioner at the prison on May 25, 2011 and saw him again
prior to the hearing. Id. at 2694. Dr. Krop found Petitioner competent to
proceed “in all of the proceedings and deal with all of the issues that would be
necessary in any type of post-conviction hearing.” Id. at 2696.
50
Upon inquiry, Dr. Krop explained that he was familiar with the FDOC’s
records from his past encounters with Petitioner. Id. at 2698. Dr. Krop has
found Petitioner to be of average or above average intellect. Id. Dr. Krop
explained, competency is a present issue, as opposed to a past issue, and Dr.
Krop found Petitioner at his “most mature, most responsible, the most logical,
and the most intelligent, . . . that I’ve ever seen.” Id. at 2701. Dr. Krop said
Petitioner’s affect was “totally appropriate.”
Id.
Id.
Dr. Krop believed
Petitioner was capable of making a rational decision, but related that he may
change his mind later on. Id. at 2703. Finally, Dr. Krop said Petitioner has
the “rational ability” to choose not to communicate with someone. Id. at 2705.
This does not mean: “it’s the best choice on his part[.]” Id. Dr. Krop also
described Petitioner’s trust issues, but clarified that this is not “a delusional
issue.” Id. at 2706.
The court conducted an extended inquiry of Petitioner concerning his
decision to discharge counsel and his post-conviction proceedings. Id. at 2709.
Petitioner told the court that he preferred that the death penalty be imposed
and enacted, that all post-conviction proceedings stop, and that the time limits
run out.
Id. at 2711-12.
Petitioner said he did not want an attorney to
represent him or to proceed to the federal courts.
51
Id. at 2712-15.
He
confirmed that he understood the death penalty would be enacted.
Id. at
2718-19.
Petitioner testified that he understood what he was giving up by
dropping his post-conviction proceedings. Id. at 2726. He acknowledged that
he would not be able to change his mind. Id. at 2727.
The circuit court entered its order dismissing the post-conviction
proceedings and discharging post-conviction counsel.
Id. at 2640-42.
The
court mentioned the appointment of experts, but stated that the court did not
make the appointments based on any belief by the court that Petitioner was
incompetent.
Id. at 2640.
The court found Petitioner’s testimony well-
supported the finding of competency by the two experts. Id. at 2641. Finally,
the court noted that given the opportunity, Petitioner declined to revoke his
request to dismiss his post-conviction proceedings and discharge counsel. Id.
The FSC affirmed the decision of the circuit court, noting the lower court
had held a combined competency, Faretta, and Durocher hearing. Gill, 107
So. 3d at 327.
Finding Petitioner merely wished to set aside his waiver
because he changed his mind, the FSC affirmed the decision of the circuit court
opining the lower court’s finding of competence was supported by competent,
substantial evidence. Id. at 328.
52
The record demonstrates the trial court repeatedly appointed experts to
conduct competency proceedings.
As Petitioner was often uncooperative,
these experts were at times unable to assess Petitioner’s mental state, made
assessments based on limited evaluations, or were able to conduct thorough
evaluations with Petitioner’s cooperation. Prior to sentencing, after the brain
bleed and radiation treatment, the court mindfully asked for another
assessment by Dr. Waldman as to Petitioner’s competency. Once again, Dr.
Waldman found Petitioner competent to proceed.
Petitioner also contends that defense counsel and the court erred by
relying on stale findings and by failing to recognize that competency is a fluid
matter.
Petition at 62-71.
In essence, Petitioner is complaining that the
circuit court declined to rely on the ambivalent and inconclusive assessment
rendered by Dr. Cadiz.
Instead, the court relied on the three previous
assessments rendered by Dr. Werner, Dr. Krop, and Dr. Levin. Assuming
arguendo competency is a fluid matter, after the plea proceeding but before
sentencing, Dr. Waldman still found Petitioner competent to proceed while
acknowledging significant neurological events and Petitioner’s brain defect.
The record shows, during post-conviction proceedings, the court
appointed experts.
Dr. Krop again found Petitioner competent to proceed.
53
Ex. at 2609.
Dr. Cooke agreed.
confirmed his original assessment.
Id. at 2690-91.
Id. at 2696.
Thereafter, Dr. Krop
The court was convinced
that Petitioner’s testimony at the evidentiary hearing well supported the
competency findings of the experts. Id. at 2640-41.
Additionally, Petitioner claims a deprivation of due process of law.
Petition at 58-62. Petitioner complains that the June 18, 2004 assessment
and hearing were improperly characterized as a competency proceeding and
the court should have ordered a competency hearing. See Pate v. Robinson,
383 U.S. 375 (1966) (the trial court erred by not ordering a competency
hearing). He argues that the examination and evaluation by three mental
health experts at the Union County Courthouse was insufficient and failed to
comply with due process of law.
Upon review, the record demonstrates that the state court was dealing
with a recalcitrant defendant who sometimes refused to cooperate with his
counsel or would not allow mental health professionals to conduct clinical
interviews, examinations, and evaluations. It is quite evident that Petitioner
is suspicious, paranoid, and manipulative. As such, he often refused to meet
with the experts or submit himself to mental status evaluations. Thus, the
circuit court, in an effort to obtain a competency assessment, elected to have
54
mental health evaluations conducted at the state courthouse in the hope that
with counsel present and with Petitioner already in attendance at the
proceeding, the evaluations would take place.
The court’s innovative
procedure proved fruitful as the experts were able to meet with Petitioner and
conduct mental status examinations. Ex. at 0416-419.
As Dr. Werner opined after the evaluation:
At the time of my meeting with him, Mr. Gill was
cooperative with the interview process. He displayed
logical thinking, which enabled him to engage in a
logical, coherent and goal-directed discussion of his
current legal situation.
He does relate an
understanding of the general charges against him.
As evidenced by his interactions with the clinicians
and his attorney, he is able to establish and maintain
a collaborative relationship with his attorney. He is
able to manifest appropriate courtroom behavior. He
demonstrated the ability to bring relevant information
to the attention of his attorney, testify meaningfully or
be cross-examined, understand instructions and
advice, or make rational decisions after considering
his options. It is the opinion of this examiner, with a
reasonable degree of medical certainty; the defendant
is competent to stand trial.
Id. at 0419.
Although this might not be the optimal location, time, or depth of a
competency evaluation, attempts to have Petitioner evaluated at the FDOC
often proved unsuccessful or curtailed due to Petitioner’s refusal to attend the
55
evaluation or cooperate fully with examiners.
Although the courthouse
evaluations may have been unusual, they were uniquely set up to
accommodate Petitioner’s special needs in an atmosphere unlike a prison or
jail, and to allow for defense counsel’s attendance.
Petitioner’s Pate claim provides no basis for habeas relief.
He was
examined and evaluated numerous times and was found mentally competent
to proceed.
Also of note, the circuit court was aware that Petitioner had
previously been tried for murder and found to be competent in those
proceedings as well. This is not a case where the state court, when presented
with information that raises a doubt as to a defendant’s competency, fails to
act.
Here, the court acted over and over again, appointing experts and
conducting hearings in an attempt to ensure Petitioner’s procedural due
process rights. See Johnston v. Singletary, 162 F.3d at 634 (citing James v.
Singletary, 957 F.2d 1562, 1570 (11th Cir. 1992)).
Upon review, the record shows the court conducted a competency hearing
on June 18, 2004 and continued to receive reports, although the court found
Dr. Cadiz’s report ambivalent and inconclusive. As such, there was no failure
to hold a competency hearing as required by Pate. See Faulkner v. Jones, No.
3:14cv373/MCR/CJK, 2016 WL 5019198, at *13 (N.D. Fla. May 24, 2016) (not
56
reported in F. Supp.) (“A Pate claim is necessarily confined to information
before the trial court before and during the plea proceeding or trial.”), report
and recommendation adopted by 2016 WL 5024200 (N.D. Fla. Sept. 16, 2016).
Nothing at the plea proceeding indicates Petitioner’s behavior or conduct at
that time raised a bona fide doubt as to competence to proceed. Ex. at 13611435.
Also of import, the court sought additional testimony from Dr.
Waldman on February 1, 2006 regarding Petitioner’s post-plea surgery for the
AVM and whether Petitioner maintained competence. Ex. at 1437-75. Dr.
Waldman attested that Petitioner is competent to proceed. Id. at 1452.
Petitioner claims the trial court and trial counsel failed to protect
Petitioner’s right to counsel. Petition at 72-76. He submits that the trial
court abruptly allowed Petitioner to represent himself, although at a previous
hearing, the court had denied Petitioner’s request to discharge counsel and
obtain other counsel and deferred ruling on Petitioner’s additional request to
represent himself. Ex. at 1229-94. The subsequent proceeding about which
Petitioner complains took place in Gilchrist County on May 5, 2005. Id. at
1590.
The court found Petitioner competent to waive counsel, allowed
Petitioner to waive counsel, and appointed Mr. Salmon as standby counsel.
Id. at 1590-1604. The court noted that Petitioner “is remaining silent on his
57
own volition.” Id. at 1591-92. At one point in the proceeding, Petitioner spat
upon his counsel and counsel was excused from the courtroom for a moment.27
Id. at 1600-1601.
The court advised Petitioner that he was preparing an order for Union
County denying his motion for a Nelson 28 inquiry as the court found Mr.
Salmon was not failing to represent Petitioner in any way, the court granted
the motion for a Faretta hearing (referring back to the Union County hearing),
concluded that “you have waived your right to counsel, and that your
waiver of counsel is – that you are competent to make such a waiver.” Id. at
1600 (emphasis added). The court directed that Petitioner would represent
himself and have Mr. Salmon as standby counsel.
Id. at 1601. Upon his
return to the courtroom, the court apprised Mr. Salmon of the court’s rulings
and told Mr. Salmon he would be acting as standby counsel. Id.
Although abrupt, it was not the court’s final decision on the matter of
whether Petitioner desired to have counsel represent him and whether counsel
would be appointed or reappointed. The court was ready and willing to revisit
27
This Court notes that in some proceedings Petitioner was required to wear a spit mask
and/or an electronic belt. Ex. at 0145, 0153, 1371.
28
Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
58
the matter at the plea proceeding which took place on July 8, 2005. Id. at
1361-1435. The following inquiry took place:
THE COURT: I have appointed attorneys for
you to represent you throughout these proceedings,
but by your own request I have – by your own request,
you are representing yourself, and I simply ask those
attorneys to remain as stand-by attorneys if you at any
time wanted or requested their help.
I want to remind you again that you are entitled
to have legal representation throughout this trial, or
throughout this proceeding, including today. Do you
wish to have your attorneys represent you today?
Id. at 1364-65. Petitioner responded in the negative. Id. at 1365. The court
found Petitioner competent to proceed, noting the court’s two-year observation
of Petitioner and the court’s extensive file review of the Union County murder
case and the Alachua County murder case, including psychological
examinations that consistently found Petitioner competent, with one
exception: the ambivalent assessment of Dr. Cadiz. Id. at 1390.
Again, at sentencing, the court asked if Petitioner wanted to explore the
possibility of appointing new attorneys. Id. at 1484. The court inquired:
THE COURT:
But to me the important
question is are you satisfied that the answers – the
questions and answers that we went through during
the Faretta hearing were correct, that is that your
answers were truthful?
59
THE DEFENDANT: Yes.
THE COURT: And you still wish to go forward
this morning, even though there may be a question in
your mind as to counsel that was originally appointed
for you?
THE DEFENDANT: Yes.
THE COURT: And then there was – is there
anything else you want to say or tell me about this
particular issue that’s raised in your motion that was
filed in December of 2005?
THE DEFENDANT: No.
Id. at 1486. Petitioner was adamant that he only wanted standby counsel,
and wanted assistance only if he requested it from counsel. Id. at 1488-89.
For the sentencing phase, the court inquired:
THE COURT: Since we are at another new
stage of the trial and I think everyone would say this
is maybe the most important, I do have the
responsibility to advise you that you do have the right
to have an attorney represent you in this matter. And
so you are so advised. Do you wish to have an
attorney represent you this morning?
THE DEFENDANT: No.
Id. at 1490, 1492.
The court proceeded to ask numerous questions of
Petitioner, again explaining how an attorney may be beneficial, but Petitioner
reassured the court he did not want any attorney. Id. at 1492-93. Finally,
60
the court inquired, “[i]s there anything, whether it’s legal or just a gut feeling
that you have, that make you think you should have an attorney at this point?”
Id. at 1493. When Petitioner hesitated and asked if the court was going to
appoint Mr. Salmon, the court clarified it was not Mr. Salmon, but “[a]ny
attorney.” Id. at 1494. Petitioner still responded in the negative. Id. See
Gill, 14 So. 3d at 961 (Petitioner told the court he did not wish to have counsel
represent him).
Petitioner made it clear to the court that he only wanted Mr. Salmon’s
assistance upon request as stand-by counsel. Petitioner was adamant that he
did not want Mr. Salmon appointed or any counsel appointed to represent him.
The court abided by Petitioner’s request finding Petitioner competent to
proceed and to represent himself pro se.
On this record, it is quite apparent that the circuit court went to great
lengths to assure Petitioner that the court would appoint counsel if Petitioner
desired to have counsel appointed. Once appointed as stand-by counsel, Mr.
Salmon’s role was severely restricted. The court directed that he stand-by and
be available if Petitioner wanted or requested his help. To the extent that
Petitioner is asserting that Mr. Salmon failed to protect Petitioner’s right to
counsel and should have done more, the claim has no merit. Once the court
61
relegated Mr. Salmon to stand-by counsel his role was limited by the
parameters set by the court.29
Petitioner is not entitled to habeas relief on his claim that the trial court
and trial counsel failed to protect Petitioner’s right to counsel.30 Extended and
repeated efforts were made by the court to ensure that Petitioner’s right to
counsel was protected. When Mr. Salmon attempted to take steps to protect
Petitioner, Petitioner complained that the court was denying him his right to
self-representation. Ex. at 1488. Nothing further was required or expected
of Mr. Salmon, other than to be available and ready to act as stand-by counsel.
Petitioner also claims that trial counsel rendered ineffective assistance
of counsel in failing to investigate and present evidence of Petitioner’s
incompetence, in failing to protect Petitioner’s right to be competent, and in
failing to object to counsel’s removal from the case. Petition at 76-82. As
29
Apparently Mr. Salmon attempted to submit some records on Petitioner’s behalf that were
included in the state’s notebook, but the court declined to review any of the documents
submitted by Mr. Salmon. Ex. at 1487-90. Although Mr. Salmon’s intentions were
apparently good, the court determined he had overstepped his bounds as stand-by counsel
and the documents would not be considered, abiding by Petitioner’s wishes.
30
Mr. Salmon was not the only counsel appointed for Petitioner in the Union County case.
First, Petitioner had an Assistant Public Defender. Ex. 0041-42. Next, the court appointed
Stephen Bernstein. Id. at 45-46. Mr. Bernstein moved to withdraw. Id. at 0054-55, 0059.
On May 17, 2002, the court appointed Lloyd Vipperman. Id. at 0060. On January 23, 2004,
the court appointed Mr. Salmon. Id. at 0337. Finally, Mr. Salmon became stand-by
counsel.
62
noted previously, there was an abundance of evidence that Petitioner was
competent to proceed based on numerous evaluations and assessments by
experts.
Mr. Vipperman, Petitioner’s previous counsel, sought the
appointment of an expert to determine competency. Ex. at 1023-25. During
Mr. Salmon’s representation, he reported, on July 18, 2004, that the experts
were extremely cooperative with him, and they resolved how to conduct the
interview as to competency and make their assessment and evaluations. Id.
at 1154.
Notably, at that point, Petitioner reconsidered his request to
represent himself and withdrew his motion to proceed pro se. Id. at 1156-57.
On February 18, 2005, Mr. Salmon advised the court “of the
extraordinary difficulty in working with Mr. Gill at times[.]” Id. at 1260. Mr.
Salmon readily admitted that they once had a working relationship, but it had
fallen apart. Id. at 1261. At a proceeding on April 15, 2005, although Mr.
Salmon agreed with the prosecutor that obtaining additional reports from
experts was a beneficial option, Mr. Salmon also recognized that Petitioner,
“has a co-equal, constitutional, fundamental right” to represent himself, “an
independent decision from [counsel’s] obligation to both Mr. Gill and the court.”
Id. at 1306.
63
At the suggestion of additional evaluations, Petitioner became quite
obstinate and said he would not speak to another expert and asked that a
decision be made on what was before the court. Id. at 1307. After Petitioner
did not get his way in Union County, at a proceeding on May 5, 2005 in
Gilchrist County, he became completely recalcitrant and refused to speak in
court. Id. at 1590-1604.
Although in hindsight Petitioner’s counsel could have done something
different or something more, his performance was not deficient:
“To state the obvious: the trial lawyers, in every case,
could have done something more or something
different. So, omissions are inevitable. But, the issue
is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally
compelled.’” Chandler v. United States, 218 F.3d 1305,
1313 (11th Cir.2000) (quoting Burger v. Kemp, 483
U.S. 776, 794, 107 S. Ct. 3114, 97 L.Ed.2d 638 (1987)).
In finding prejudice, the court must determine that
the result of the proceedings would have been different
considering “the totality of the evidence before the
judge or jury.” Berghuis v. Thompkins, ––– U.S. ––––,
130 S. Ct. 2250, 2265, 176 L.Ed.2d 1098 (2010)
(quoting Strickland, 466 U.S. at 695).
Kuhns v. Sec’y Dep’t of Corr., No. 2:08-CV-163, 2011 WL 1085013, at *6 (M.D.
Fla. Mar. 21, 2011) (not reported in F.Supp.2d). Mr. Salmon’s performance
did not so undermine the proper functioning of the adversarial process that
64
Petitioner was deprived of a fair proceeding. Indeed, Mr. Salmon recognized
he was walking a fine line; he wanted to provide representation to his client
and present a defense after spending considerable time and effort in
preparation of the case; however, Mr. Salmon also acknowledged Petitioner’s
fundamental right to represent himself.
Claims of ineffective assistance of counsel are “governed by the familiar
two-part Strickland standard.” Knight v. Fla. Dep’t of Corr., 958 F.3d 1035,
1038 (11th Cir. 2020), cert. denied, 141 S. Ct. 2471 (2021). Pursuant to this
standard, a defendant must show that (1) his counsel's performance was
deficient and (2) the deficient performance prejudiced his defense. Strickland,
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). The
reviewer need not address both prongs if a petitioner makes an insufficient
showing on one prong. Id. at 697.
To prevail, a petitioner must successfully show his counsel “made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment” as well as show “the deficient
performance prejudiced the defendant, depriving him of a ‘fair trial, a trial
whose result is reliable.’” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th
65
Cir. 2021) (quoting Strickland, 466 U.S. at 687), cert. denied, 142 S. Ct. 1234
(2022). Also,
because “[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ . . . when the two
apply in tandem, review is ‘doubly’ so. Harrington [v.
Richter, 562 U.S. 86, 105 (2011)] (internal citations
and quotation omitted). Thus, under § 2254(d), “the
question is not whether counsel’s actions were
reasonable. The question is whether there is any
reasonable
argument
that
counsel
satisfied
Strickland’s deferential standard.” Id.
Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020), cert.
denied, 141 S. Ct. 1721 (2021).
With respect to an ineffective assistance challenge to the voluntariness
of a guilty or no contest plea, a petitioner must show there is a “reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The ineffective assistance of counsel may require a plea be set aside on the
ground that it was involuntary because voluntariness implicates not only
threats and inducements but also ignorance and incomprehension. Finch v.
Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (citations omitted).
This Court must be mindful that in a post-conviction challenge to a guilty
plea, the representations of the defendant, his counsel, and the prosecutor at
66
the plea hearing, plus the findings of the judge, constitute “a formidable
barrier.”
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Indeed, a
defendant’s solemn declarations in open court carry a strong presumption of
verity. Thus, later contentions by a defendant contrary to the record may be
deemed wholly incredible based on the record.
Based on this record, the court found Petitioner to be competent based
on numerous competency evaluations and the court’s own observations.
Petitioner expressed his desire to represent himself, and even when repeatedly
offered counsel, he declined counsel. Finally, Petitioner was adamant that he
wanted to plead to the offense.
At the plea proceeding, Petitioner stated he had discussed his decision
to plead with his attorneys, although he was representing himself.31 Ex. at
1363. The court reminded Petitioner that he was entitled to counsel, and
Petitioner declined representation.
Id. at 1365.
Petitioner expressed his
desire to plead. Id. The court proceeding to conduct a colloquy. Id. at 136567.
31
The record shows that the court continued to make attempts to protect Petitioner’s rights,
including the court’s appointment of additional stand-by counsel, Mr. John Stokes. Ex. at
1369.
67
Petitioner asked that the state present mitigation, and the prosecutor
stated that he believed it was the state’s responsibility to present the court
with mitigation. Id. at 1367-68. Although just stand-by counsel, Mr. Salmon
did not stand mute. He asked the court not to begin the sentencing phase,
explaining that he and Mr. Stokes felt an obligation to prepare for sentencing
and to advise Mr. Gill.
Id. at 1369-71.
Petitioner objected to any
representation by Mr. Salmon or his attempts at intervention. Id. at 1371-72.
The court then asked if Petitioner desired to be represented by an attorney,
and Petitioner said no.
Id. at 1373.
The court stated it would respect
Petitioner’s right to represent himself without assistance from counsel. Id. at
1375.
The court continued its plea colloquy. Id. at 1375-81. Petitioner pled
guilty. Id. at 1378. He stated he was entering his plea “[f]reely, knowing[ly]
and intelligently[.]” Id. at 1381.
The court continued to inquire and then
accepted the plea. Id. at 1381-83. The prosecutor asked to present a factual
basis for the plea, and the court accepted it without objection from Petitioner.
Id. at 1384-86.
The prosecutor provided the following:
The state is prepared to prove that Mr. Gill was
adjudicated guilty of a prior first degree murder on
68
July 20th, 2001, in Alachua County in Case Number
99-2277-A. He was sentenced to life in prison.
Four days later, on July 24th, 2001, he was in a
cell with his cell mate, the victim, Orlando Rosello.
He was the only person in that cell with Mr. Rosello
for the hours preceding Mr. Rosello’s death.
During the time that Mr. Gill was incarcerated
and locked in the cell with Mr. Rosello, he strangled
him to death. He used a bed sheet with a knot in it,
tied it and strangled Mr. Rosello.
That morning Mr. Rosello was found dead. Two
written confessions were found. One was found in
Mr. Gill’s pocket, one was found in the plumbing of the
cell, both authored by Mr. Gill and indicating his
deliberate and premeditated killing of Mr. Rosello.
Subsequently, post-Miranda Mr. Gill was
interviewed and gave a comprehensive and detailed
statement, which the state would introduce into
evidence in a redacted form.
In Mr. Gill’s own words, the state would prove,
quoting him: It only took four days, just like I
promised. I wrapped that sheet around his neck and
strangled the sh[ ] out of him. When I saw blood
coming out of his ear and heart still beating, I started
punching him in the chest, hoping I could bust his
heart, then I tied the sheet in a knot and wrapped his
neck with it and left him like that for two hours.
Id. at 1384-85.
Petitioner faces the formidable barrier of his sworn testimony and
representation at the plea proceeding. His solemn declarations will not be
69
taken lightly; they carry a strong presumption of verity. Petitioner told the
court he had spoken with counsel before entering the plea. Petitioner rejected
any further interjection of counsel and declined to be appointed counsel.
Further, Petitioner understood the consequences of his actions.
His
attempt to seek to go behind his previously sworn testimony given during the
plea proceeding is not well taken. The record demonstrates that Petitioner
was intelligent and lucid, he answered all questions appropriately, he
expressed his positions adequately, and he behaved appropriately, respecting
courtroom decorum. He never backed down from his position that he wanted
to represent himself and enter a plea, even after several warnings and
admonitions from the court. The record also demonstrates that he understood
the ramifications of his actions.32 Petitioner, having been found competent to
proceed, had the right to make the decisions to decline the assistance of
counsel, decline appointment of counsel, to represent himself, and to enter his
plea.
32
Previously, Petitioner spent time in prison, received a life sentence for first-degree murder
in Alachua County, and announced he did not want to spend his life in prison. See Ford v.
Haley, 195 F.3d 603, 614, 625 (11th Cir. 1999) (finding a petitioner mentally competent to
dismiss his habeas petition and counsel in his capital murder conviction and death sentence
as it is a rational decision, not the product of mental disease).
70
Mr. Salmon performed well within the wide range of reasonably
competent counsel under prevailing professional norms.
He made a
commendable effort as counsel and stand-by counsel to protect Petitioner and
his rights. Some of his efforts proved unfruitful, but it was not for the lack of
effort or due to performance that fell outside the norm. In failing to satisfy
the performance prong of Strickland, Petitioner’s claim of ineffective
assistance of counsel will not prevail. As such, Petitioner is not entitled to
habeas relief.
As the threshold standard of Strickland has not been met, Petitioner has
failed to demonstrate that the state court proceeding was fundamentally unfair
and his counsel ineffective. There has been no Sixth Amendment violation
under the Constitution.
Finally, Petitioner challenges the voluntariness of his plea and waiver of
an advisory sentencing jury.
The FSC’s decision concerning the knowing,
intelligent and voluntary nature of the plea is entitled to AEDPA deference.
The court looked to the standard of competence set out in Dusky, applicable to
those who plead guilty as well as to those who proceed to trial. Gill, 14 So. 3d
at 958-62.
Of import, before accepting Petitioner’s plea, “the trial court
received numerous reports resulting from examinations by five different
71
doctors, including three psychologists, a forensic psychiatrist, and a
neuropsychiatrist.” Id. at 960. The FSC found it evident that the trial court’s
competency finding “is supported by competent, substantial evidence and is
sufficient to establish Gill’s competence to enter a knowing, intelligent and
voluntary plea.”33 Id.
The Court finds the state FSC’s determination is consistent with federal
precedent. The adjudication is not contrary to or an unreasonable application
of Supreme Court precedent or based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. As such,
AEDPA deference is due, and Petitioner is not entitled to habeas relief.
B. Claim II: The death sentence imposed in this case violates the
Eighth and Fourteenth Amendments.
33
Petitioner asserts there was an unknowing, involuntary, and unintelligent waiver of an
advisory jury because Petitioner did not know of his rights. Petition at 85-86. The record
demonstrates otherwise. There was a very thorough discussion as to whether Petitioner
could waive an advisory jury in the penalty phase. Mr. Salmon argued that Petitioner could
not waive. Ex. at 1387-93. There was an extensive discussion on the implications of Ring
v. Arizona, 536 U.S. 584 (2002) and Apprendi v New Jersey, 530 U.S. 466 (2000). Ex. at
1394-97. Petitioner informed the court he had already waived an advisory jury in Alachua
County and was prepared to do so again. Id. at 1402. The court thoroughly admonished
Petitioner as to the consequences of waiving an advisory jury. Id. at 1402-1405. Petitioner
stated his wish to waive his right to an advisory jury determination and proceed. Id. at
1404-1405. The court abided by Petitioner’s decision. The FSC denied relief on Petitioner’s
assertion that his death penalty was improperly imposed in violation of the principles
announced in Ring, finding Petitioner waived a sentencing jury and his waiver was knowing,
intelligent and voluntary. Gill, 14 So.3d at 966-67. This adjudication is not contrary to or
an unreasonable application of Supreme Court precedent or based on an unreasonable
determination of the facts. Thus, the Court will give deference to the FSC’s decision.
72
In his Petition under Claim II, Petitioner contends the Eighth
Amendment prohibits disproportionate sentences and the trial court
arbitrarily applied the cold, calculated, and premeditated (CCP) circumstance.
Id. at 113-41. The Court assumes arguendo Petitioner adequately raised an
Eighth Amendment claim in the state court. Of import,
In Solem v. Helm, 463 U.S. 277, 284, 103 S. Ct.
3001, 77 L.Ed.2d 637 (1983) (emphasis added), the
Supreme Court explained: “[t]he Eighth Amendment
declares: ‘Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.’ The final clause prohibits not
only barbaric punishments, but also sentences that
are disproportionate to the crime committed.”
Solem adopted a three-factor test: a sentence may be
considered disproportionate to the crime if it is a very
hefty sentence for a relatively minor crime, if the
defendant is treated more harshly than other
criminals in the state who have committed more
serious crimes, and if the defendant is treated more
harshly than he would have been in any other
jurisdiction. Id. at 303, 103 S. Ct. 3001. Solem provides
the sentence should be examined to determine if it is
proportionate to the crime. Id.
Reynolds v. Sec., Fla. Dept. of Corrections, No. 3:17-cv-281-J-25JRK, 2019 WL
11314974, at *6 (M.D. Fla. Mar. 25, 2019) (slip op.) (emphasis in original).
Significantly, the record demonstrates the murder of Orlando Rosello
was not a product of rage or lack of impulse control. There was no frenzy,
73
panic, or impulsive and reactionary behavior. As noted by the FSC, there was
competent, substantial evidence to support the finding that the murder was
committed in a cold, calculated, and premeditated manner. Gill, 14 So.3d at
962. Not only did Petitioner plan and calculate, the FSC found there was “no
direct connection between the rage that can be associated with the brain lesion
and the murder of Orlando Rosello.” Id.
The FSC considered Petitioner’s contention that his mental disabilities
rendered him incapable of the cool and calm reflection necessary to meet the
requirements for CCP, rejected that contention and found the trial court
properly found CCP:
[c]ompetent, substantial evidence demonstrated that
the murder of Orlando Rosello was clearly the result
of a longstanding plan by Gill, who fashioned a murder
weapon in advance and who had ample time to reflect
on the proposed murder and abandon the plan, but did
not - and the murder was carried out in a cold manner
as a matter of course, without pretense of justification.
Id. at 963.
In rendering its decision, the FSC reviewed Petitioner’s version of the
July 24, 2001 murder, including Petitioner’s statements concerning the letters
he wrote in advance of the murder foretelling of his plan to murder an inmate,
the steps Petitioner took to fashion the murder weapon, and the cold and
74
calculated method of carrying out the murder while the victim slept. Id. at
962.
Additionally, the court considered that Petitioner had a period of
reflection affording him the opportunity to abandon his plan to murder an
inmate. Id. at 963. The FSC considered the length of time Petitioner had to
reflect on his intended actions of murdering an inmate, the extended
opportunity to abandon the plan, and the failure to abandon the plan. Id.
Additionally, the FSC took note that Petitioner procured the weapon in
advance, fashioned the weapon from a bed sheet, and killed his cellmate while
he slept by strangling him with the torn bedsheet although there was no
provocation by the victim. Id. at 962-63. Finally, the FSC recognized, the
record is devoid of any evidence of a pretense of justification. Id. at 963.
The question arises as to whether the death sentence Petitioner
received is a disproportionate sentence that violates the Eighth Amendment’s
prohibition on cruel and unusual punishments. Petition at 13-26. Indeed,
“[p]rotection against disproportionate punishment is the central substantive
guarantee of the Eighth Amendment and goes far beyond the manner of
determining a defendant's sentence.” Montgomery v. La., 577 U.S. 190, 206
(2016), as revised (Jan. 27, 2016). Petitioner claims he is different; as such,
he contends the punishment, death, is seriously disproportionate to his
75
culpability. He complains the sentencing judge unreasonably discounted the
value of mitigation evidence because “[t]he constellation of Gill’s congenital
brain defect, brain damage, neurocognitive and neurological disorder, and
severe mental illness” diminishes Petitioner’s abilities compared to those of the
average murderer. Petition at 118. In particular, Petitioner says the trial
court failed to attribute appropriate weight to mental health mitigation. Id.
Petitioner complains of the trial court’s erroneous weighing of
aggravating and mitigating evidence affirmed by the FSC. Petition at 125.
He asserts the FSC’s decision was unreasonable because it failed to appreciate
the magnitude of the mitigation and its worth. Id. Petitioner seemingly asks
this Court to find the death penalty in this case a disproportionate sentence
that should be recalculated to give greater weight to mitigating evidence. Id.
at 118.
This Court will avoid any unnecessary intrusion on the Florida judicial
system.
Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir. 1983) (finding
federal habeas corpus courts are precluded from conducting de novo
proportionality reviews), cert. denied, 465 U.S. 1084 (1984).
See Pulley v.
Harris, 465 U.S. 37, 43-44 (1984) (finding no Constitutional requirement of
proportionality review); see also Lindsey v. Smith, 820 F.2d 1137, 1154 (11th
76
Cir. 1987) (same), cert. denied, 489 U.S. 1059 (1989). Upon review, the state
court’s imposition of the death penalty is not a freakish imposition of capital
punishment and the FSC’s decision does not shock the conscience under the
facts of the case.
This is not a case where the imposition of the capital
punishment is patently unjust.34 As such, there is no entitlement to relief on
an Eighth Amendment claim.
To the extent an Eighth Amendment claim was raised and exhausted in
the state courts, this Court finds the state court’s adjudication of this claim is
not contrary to or an unreasonable application of Supreme Court law.
Furthermore, the decision made was not based upon an unreasonable
determination of the facts. Therefore, the FSC’s decision is entitled to AEDPA
deference.
To some extent Petitioner claims the proportionality review violated due
process principles.
Petition at 114-15.
In particular, he asserts the FSC
unreasonably distinguished the cases Petitioner argued were illustrative of
disparate punishment. Id. at 116. As the proportionality review conducted
34
Notably, this was Petitioner’s second capital proceeding in the Florida courts. Although
he received life for the murder of Moore, he had much greater hurdles to overcome in the
murder of Rosello, a threatened, planned, calculated, and unprovoked murder of an
unresisting inmate.
77
by the FSC is a matter of state law, this Court may not issue a writ on the basis
of a perceived error of state law. See Bush v. Singletary, 99 F.3d 373, 375
(11th Cir. 1996) (per curiam) (finding Florida conducted the proportionality
review its law required and no implication of a federal constitutional question).
As such, Petitioner’s claim of state law error is not cognizable in this federal
petition for habeas relief and is due to be denied as this Court may not issue
the writ on the basis of a perceived state-court error.
Petitioner also contends that the trial court arbitrarily applied the cold,
calculated and premeditated aggravating circumstance (CCP).
126-41.
Petition at
The FSC addressed Petitioner’s claim that his mental disabilities
rendered him incapable of meeting the requirements for CCP. Gill, 14 So. 3d
at 962.
The FSC presented a thorough and careful review of whether CCP was
present based on a consideration of the totality of the circumstances. Id. The
court explained:
Although Gill was angry at not receiving the death
penalty in the Beverly Moore murder, that anger was
expressed not in frenzy, panic or rage, but in a longsimmering plan to kill an innocent person. Dr.
Waldman, in his testimony presented before
sentencing,
testified
that
the
arteriovenous
malformation that was present in Gill’s brain often
manifests itself in rage; but when presented with the
78
facts of this murder, Waldman saw no direct
connection between the rage that can be associated
with the brain lesion and the murder of Orlando
Rosello.
Id.
The record demonstrates Petitioner admitted to “coldly strangling
Rosello while he slept.” Id. The record also shows Petitioner wrote letters in
advance, had time for reflection, but decided to complete his long-standing plan
to kill an inmate, making his final decision on July 24, 2001 when he carried
out the murder. Id. at 962-63. There is no evidence of rage or frenzy.
As there is a qualifying state court decision, the Court addresses the
claim in accordance with the deferential standard for federal court review of
state court adjudications. The Court concludes that the FSC’s adjudication of
this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the fact in light of the evidence
presented in the state court proceedings.
Petitioner contends that the Eighth Amendment prohibits the execution
of persons with intellectual disability, relying on Atkins v. Virginia, 536 U.S.
304, 318-21 (2002) (finding no legitimate penological purpose is served by
executing the intellectually disabled and forbidding the execution of persons
79
with intellectual disability), and that he is intellectually disabled. Petition at
141-48. In this ground, Petitioner relies on both the Eighth and Fourteenth
Amendments to the United States Constitution:
The Eighth Amendment provides that
“[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.” The Fourteenth Amendment applies those
restrictions to the States. Roper v. Simmons, 543 U.S.
551, 560, 125 S. Ct. 1183, 161 L.Ed.2d 1 (2005);
Furman v. Georgia, 408 U.S. 238, 239–240, 92 S. Ct.
2726, 33 L.Ed.2d 346 (1972) (per curiam). “By
protecting even those convicted of heinous crimes, the
Eighth Amendment reaffirms the duty of the
government to respect the dignity of all persons.”
Roper, supra, at 572, 125 S. Ct. 1183; see also Trop v.
Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 2 L.Ed.2d 630
(1958) (plurality opinion) (“The basic concept
underlying the Eighth Amendment is nothing less
than the dignity of man”).
Hall v. Fla., 572 U.S. 701, 707–708 (2014). See Kilgore v. Sec’y, Fla. Dep’t of
Corr., 805 F.3d 1301, 1314 (11th Cir. 2015) (noting Hall created a procedural
requirement for ensuring that states follow Atkins and is not retroactive to
cases on collateral review), cert. denied, 138 S. Ct. 446 (2017).
The record belies Petitioner’s contention that he is intellectually
disabled.
Dr. Krop found Petitioner to be of average or above average
intellect.
Ex. at 2608, 2698.
Dr. Waldman found Petitioner to be an
80
intelligent man, and the trial court concurred. Id. at 1169, 1471. Petitioner
has “obtained a Verbal IQ of 85.”35 Id. at 0535. See Hall, 572 U.S. at 724
(rejecting the rigid Florida law defining intellectual disability to require an IQ
test of 70 or less before presenting any additional evidence of intellectual
disability). Petitioner has a high school diploma, attended community college,
and took courses in paralegal work.36 Id. at 0869.
Petitioner is literate and intelligent and is not suffering from
“significantly subaverage general intellectual functioning.”
Fla. Stat. §
921.137(1) (“significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested during the
period from conception to age 18”). Here, Petitioner is essentially asking that
this Court extend Atkins to the mentally ill. Upon review, Atkins has not
been extended to the mentally ill or to those with organic brain, damage,
35
Petitioner did not score in the lower range reflecting borderline intellectual functioning,
and there was no alleged failure to account for the test’s standard error of measurement.
Moore v. Texas, 137 S. Ct. 1039, 1049 (2017) (establishing that states cannot disregard
current clinical and medical standards in the assessment). See Smith v. Comm., Ala. Dep’t
of Corr., 924 F.3d 1330, 1337 (11th Cir. 2019) (Moore is not retroactive as it announced a
procedural rule), cert. denied, 141 S. Ct. 188 (2020).
36
Petitioner exhibited his intelligence and advocacy skills during numerous court
proceedings, including the hearing which took place on November 21, 2003, during which he
complained that he had not been appointed a qualified death penalty attorney and set forth
a strong argument asserting the damage that had been done to his case by the lack of such
appointment. Ex. at 1120-34. As a result of this proceeding, the trial court announced its
intention to appoint substitute registry counsel for Petitioner. Id. at 1131.
81
frontal lobe damage, and other psychological disorders. Lawrence v. State,
969 So. 2d 294, 300 n.9 (Fla. 2007) (per curiam) (declining to extend Atkins to
mentally ill); Schoenwetter v. State, 46 So. 3d 535, 562-63 (Fla. 2010) (per
curiam) (same).
Of import, in Lawrence, 969 So. 2d at 300 n.9, the FSC rejected the
notion that equal protection requires the extension of the holding in Atkins to
mental illness:
In issue four, Lawrence contends that under Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.Ed.2d
335 (2002), equal protection requires that his mental
illness be treated similarly to those with mental
retardation because both conditions result in reduced
culpability. We reject his assertion that the Equal
Protection Clause requires this Court to extend Atkins
to the mentally ill. See, e.g., Lewis v. State, 279 Ga.
756, 620 S.E.2d 778, 786 (2005) (declining to extend
Atkins to the mentally ill); Tigner v. Texas, 310 U.S.
141, 147, 60 S. Ct. 879, 84 L. Ed. 1124 (1940) (holding
equal protection “does not require things which are
different in fact or opinion to be treated in law as
though they were the same”); State v. Hancock, 108
Ohio St.3d 57, 840 N.E.2d 1032, 1059-1060 (2006)
(declining to extend Atkins to the mentally ill because
mental illnesses come in many forms and different
illnesses may affect a defendant in different ways and
to different degrees, thus creating an ill-defined
category of exemption from the death penalty without
regard to the individualized balance between
aggravation and mitigation in a specific case).
82
As noted in Carroll, 574 F.3d at 1369, the mental retardation or
intellectual disability inquiry “is not different merely because an individual
suffers from mental illness.” In short, the Eleventh Circuit held Atkins does
not exempt the mentally ill from execution. See Presnell v. Hall, No. 1:07-CV1267-CC, 2013 WL 1213132, at *7 (N.D. Ga. Mar. 25, 2013) (not reported in
F.Supp.2d) (rejecting habeas petitioner’s claim of exemption from execution
due to mental illness, declining to extend Atkins to mental illness).
Under Atkins, a petitioner must satisfy two prongs: the intellectual
functioning prong and the adaptive behavior prong to qualify. As such, both
significantly subaverage general intellectual functioning along with deficit in
adaptive behavior and an onset before age 18 must be satisfied.
Since Atkins, the FSC adopted Florida Rule of Criminal Procedure 3.203.
It provides:
Definition of Intellectual Disability.[37] As used in
this rule, the term “intellectual disability” means
significantly
subaverage
general
intellectual
functioning existing concurrently with deficits in
adaptive behavior and manifested during the period
from conception to age 18. The term “significantly
subaverage general intellectual functioning,” for the
purpose of this rule, means performance that is 2 or
more standard deviations from the mean score on a
37
The Rule previously referred to “Mental Retardation” rather than “Intellectual Disability.”
Fla. R. Crim. P. 3.203.
83
standardized intelligence test authorized by the
Department of Children and Families in rule 65G–
4.011 of the Florida Administrative Code. The term
“adaptive behavior,” for the purpose of this rule,
means the effectiveness or degree with which an
individual meets the standards of personal
independence and social responsibility expected of his
or her age, cultural group, and community.
Fla. R. Crim. P. 3.203.
Petitioner may have deficits in adaptive behavior; however, he clearly
does not satisfy the subaverage intelligence prong. Brumfield v. Cain, 576
U.S. 305, 315 (2015) (citation omitted) (noting an IQ score between 70 and 75
or lower is typically considered the cutoff for subaverage intelligence)). See In
re Henry, 757 F.3d 1151, 1155 (11th Cir. 2014) (citation omitted) (due to a plus
and minus 5 standard of error an individual with an IQ test score between 70
and 75 or lower may show intellectual disability by presenting evidence
concerning difficulties in adaptive functioning). Petitioner’s argument really
hinges on the adaptive impairment prong, see Petition at 143-44, but again,
that is not sufficient, even if satisfied. Also, an argument of someone being
“functionally mentally retarded” does not win the day. Carroll, 574 F.3d at
1369.
84
Petitioner raises a procedural due process claim.38 Petition at 144. As
Atkins set forth only a substantive Eighth Amendment claim and no minimum
procedural due process requirements, this Court “cannot ‘import a procedural
burden of proof requirement’” that the Supreme Court did not adopt.
Raulerson v. Warden, 928 F.3d 987, 1002 (11th Cir. 2019) (quoting Hill v.
Humphrey, 662 F.3d 1335, 1360 (11th Cir. 2011) (en banc)), cert. denied, 140
S. Ct. 2568 (2020).
In ground two, Petitioner also raises a competency to be executed claim
under Ford v. Wainwright, 477 U.S. 399, 410 (1986) (holding the Eighth
Amendment prohibits the execution of a petitioner who is insane). Petition at
154-57. This claim is not ripe for adjudication because the state has not set
an execution date. See Connor v. Sec’y, Fla. Dep’t of Corr., 713 F.3d 609, 625
(11th Cir.), cert. denied, 571 U.S. 926 (2013). As such, the Court declines to
address this ground as prematurely raised.
Petitioner submits that the Eighth Amendment, as well as the Equal
Protection Clause, prohibit the execution of the severely mentally ill, relying
38
To the extent Petitioner is attempting to raise his incompetence claim as a
substantive due process claim (a claim that the petitioner was convicted while mentally
incompetent to stand trial), that is a matter to be addressed under competency, not
intellectual disability.
85
on Roper v. Simmons, 543 U.S. 551 (2005) (finding the Eighth and Fourteenth
Amendments prohibit the execution of an offender who was under 18 years of
age at the time his capital crime was committed); Atkins; and Ford. Petition
at 148-54. As in Sears v. Chatman, No. 1:10-cv-1983-WSD, 2016 WL 1417818,
at *11 (N.D. Ga. Apr. 8, 2016) (not reported in F. Supp.), Petitioner is asking
that the Court extend the applicability of Atkins and Roper to him.
Petitioner was born July 2, 1969, Ex. at 1816, and the crime was
committed on July 24, 2001. Id. at 0037. Thus, he was 32 years of age when
the murder was committed and the holding in Roper is inapplicable. Without
a decision from the United States Supreme Court barring the execution of
mentally ill prisoners, Petitioner remains subject to execution as he cannot
satisfy the first prong of the two-pronged standard under Atkins: the
intellectual functioning prong. The Court declines to address a Ford claim as
premature. See Panetti v. Quarterman, 551 U.S. 930, 959 (2007) (holding the
Eighth Amendment prohibits the execution of an offender whose mental illness
prevent him from rationally understanding why the state seeks to impose the
death penalty). Indeed, “execution lacks retributive purpose when a mentally
ill prisoner cannot understand the societal judgment underlying his sentence.”
Madison v. Ala., 139 S. Ct. 718, 728 (2019).
86
Since there is no current legal authority for this Circuit or the Supreme
Court of the United States supporting Petitioner’s position that the law of the
land should prevent the execution of those with “a known mental illness,”
ground two is due to be denied. See O’Kelley v. Warden, GDCP, No. CV415104, 2019 WL 1452514, at *23 (S.D. Ga. Apr. 2, 2019) (not reported in F. Supp.).
However, as stated above, the Court will not address the Ford claim as it is
prematurely raised.
C.
Claim III:
The prior conviction aggravating circumstance
supporting the death sentence is unconstitutionally vague.
Petitioner relies on the holdings in Johnson v. U.S., 576 U.S. 591 (2015)
(finding the definition of prior “violent felony,” covering any felony that
otherwise involves conduct that presents a serious potential risk of physical
injury to another in the residual clause of the Armed Career Criminal Act
unconstitutionally vague under due process principles) and Welch v. U.S., 136
S. Ct. 1257 (2016) (holding Johnson is retroactive) to support his contention
that Florida’s prior violent felony conviction aggravating circumstance is
unconstitutionally vague. Petition at 158. In Johnson, the Supreme Court
succinctly set forth the relevant guiding principles:
The Fifth Amendment provides that “[n]o person
shall ... be deprived of life, liberty, or property, without
due process of law.” Our cases establish that the
87
Government violates this guarantee by taking away
someone's life, liberty, or property under a criminal
law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless
that it invites arbitrary enforcement. Kolender v.
Lawson, 461 U.S. 352, 357–358, 103 S. Ct. 1855, 75
L.Ed.2d 903 (1983). The prohibition of vagueness in
criminal statutes “is a well-recognized requirement,
consonant alike with ordinary notions of fair play and
the settled rules of law,” and a statute that flouts it
“violates the first essential of due process.” Connally v.
General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126,
70 L. Ed. 322 (1926). These principles apply not only
to statutes defining elements of crimes, but also to
statutes fixing sentences. United States v. Batchelder,
442 U.S. 114, 123, 99 S. Ct. 2198, 60 L.Ed.2d 755
(1979).
Johnson, 576 U.S. at 595–96.
Petitioner complains that the trial court improperly applied the
aggravating factor of a prior capital felony under Fla. Stat. § 921.141(5)(b).
Petition at 158-59.
He contends that this Florida aggravator requires an
examination of the nature of Petitioner’s past conduct and whether violence
was involved. Id. at 159.
Upon review, Petitioner’s claim is without merit. The Florida statute
reads: “[t]he defendant was previously convicted of another capital felony or of
a felony involving the use or threat of violence to the person.” Fla. Stat. §
921.141(5)(b). In Petitioner’s case, the trial court explicitly found Petitioner:
88
“had previously been convicted of another capital felony.”
Ex. at 0750
(emphasis added). In affirming the conviction and sentence, the FSC noted
the trial court considered the aggravating factor of a prior capital felony
conviction for the murder of Beverly Moore under that express provision. Gill,
14 So. 3d at 956.
Petitioner received fair notice that a previous conviction for another
capital felony could be considered an aggravating factor and given weight.
Moreover, at sentencing, the trial court provided Petitioner with a copy of the
judgment and sentence in case no. 01-1999-CF-002277-A, a conviction of the
offense of capital murder in Alachua County.
Ex. at 1500.
Petitioner
expressed no objection or correction to these state court documents. Id. at
1501. The record clearly demonstrates that Petitioner has previously been
convicted of another capital felony.
Also, there is an absence of a residual clause that has features that
“conspire to make [the Florida statute] unconstitutionally vague.” Johnson,
576 U.S. at 597. In Johnson, the Supreme Court found the residual clause
(“or otherwise involves conduct that presents a serious potential risk of
physical injury to another”) denied fair notice and invited arbitrary
enforcement by judges. In particular, the Supreme Court noted two features
89
of the residual clause that conspired to make it unconstitutionally vague: (1)
how to estimate the risk posed by a crime; and (2) how much risk does it
takes for a crime to qualify as a violent felony. Id.
The Florida statute does not contain a comparable residual “risk” clause.
Therefore, the Court is not convinced that the Florida statute is
unconstitutionally vague and invites standardless, arbitrary enforcement and
fails to give ordinary people fair notice. Of import, in Petitioner’s case there
was no real debate; he had previously been convicted of another capital felony.
There was no deprivation of due process of law based on unconstitutional
vagueness.
Ordinary people would know that they faced an increased
sentence if they had been convicted of a prior capital felony conviction.
Finally, the Florida Statute does not contain features that conspire to make it
unconstitutionally vague and is distinguishable from the federal statute
addressed in Johnson with its residual clause which inherently invited
arbitrary enforcement and denied fair notice.
As such, Petitioner is not
entitled to habeas relief.
D. Claim IV: Trial counsel rendered ineffective assistance to Mr.
Gill’s prejudice in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments. Strickland v. Washington, 466 U.S. 668 (1984)[.]
90
Petitioner claims his trial counsel ineffectively failed to follow up on
testing or assessment of Petitioner’s brain defect after Dr. Cadiz’s report of
April 14, 2005. Petition at 173. Petitioner argues that Dr. Cadiz “clearly
found Mr. Gill incompetent[.]” Id.
In considering Dr. Cadiz’s report, Ex. at 0528-39, Mr. Fleck, the
prosecutor, said, “Dr. Cadiz does not declare him incompetent.” Id. at 1301.
Upon inquiry from the court, Mr. Salmon said, “I cannot find a resolution in
Dr. Cadiz’ report other than ambivalence.” Id. at 1303. After reviewing the
report and hearing the assessment of counsel, the court found Dr. Cadiz’s
report “ambivalent, to say the least.” Ex. at 1304. The other competency
reports issued prior to and after Dr. Cadiz’s report conclusively found
Petitioner to be competent, whereas Dr. Cadiz’s report was ambivalent and
inconclusive, a shaky foundation for counsel to argue for follow-up testing or
assessment.
At that point in the pre-trial proceedings, Petitioner was attempting to
discharge his counsel and represent himself; Mr. Salmon was trying to protect
Petitioner’s rights as his appointed counsel while simultaneously recognizing
that Petitioner had the right to conduct his own defense. Id. at 1304-1305.
Mr. Salmon explained that he feared Petitioner would implicate himself in an
91
offense that could result in his death.
Id. at 1305.
As for the possible
appointment of additional experts, Mr. Salmon said:
This court has suggested the appointment of
additional experts to address the very thorny issue
that Mr. Gill is, as I understand it to this point, still
pursuing. I can’t ask this court to address Mr. Gill.
But to the extent that additional reports may
afford this court an opportunity to make a
conclusive decision on the issue of competency,
both with regard to discharging counsel and
representing himself, I as Mr. Fleck indicates,
certainly would have no objection to that
process being undertaken by the court.
Where that would leave us when those
additional reports are received and considered by the
court, may have me standing here saying exactly the
same thing again, and I don’t want to tell the court
that I believe that might be irregardless [sic] of what
those reports say.
Mr. Gill has a co-equal, constitutional,
fundamental right recognized by this country since its
inception to do what he has indicated he wants this
court to let him do. That I see as an independent
decision from my obligation to both Mr. Gill and the
court.
Id. at 1306 (emphasis added).
Thereafter, Petitioner asked to speak to the court, and he told the court
he would not be examined by another expert and wanted a decision made
without further delay.
Id. at 1307.
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Mr. Fleck reminded the court that
Petitioner had not been found incompetent despite his mental illness and Dr.
Cadiz’s report provided no reason to find incompetency now, and Mr. Fleck
agreed with Petitioner that it was time for the court to make its decision. Id.
at 1308.
Petitioner was insistent that he was done speaking with experts and
wanted a decision made.
Mr. Salmon made a concerted effort to be both
respectful to Petitioner’s constitutional right to represent himself and
discharge counsel and to protect Petitioner’s interests and his defense. It was
a fine and difficult line, particularly with this recalcitrant and defiant client.
In the Petition, Petitioner complains of a failure to further investigate
the brain defect. The record shows post plea and also during post-conviction
proceedings, appointed experts continued to find Petitioner competent,
including Dr. Waldman, who found the AVM a strong mitigator, but still
determined Petitioner was competent to proceed. Id. at 1452. During a postconviction proceeding, both Dr. Krop and Dr. Cooke found Petitioner to be
competent to proceed. The record evinces there was no lack of assessment and
counsel did not perform deficiently under these circumstances.
Of course, counsel could have performed differently, but his performance
was not deficient.
Indeed, his representation was reasonable under the
93
circumstances presented. The record demonstrates he performed within the
bounds of reasonable competent counsel.
Petitioner also claims counsel was ineffective for failure to investigate
and uncover support for incompetency and intellectual disability. Petition at
174-77. The record belies this assertion. Mr. Salmon told the court, based
on his personal history with Mr. Gill and through the use of the defense’s
investigator, counsel had reviewed “the contents of over 20,000 pages of
documentation” from prior records, “multitudinous reports from other doctors
who have examined Mr. Gill,” and made “extensive efforts to investigate every
single aspect of this case[.]” Ex. at 1301. Furthermore, at sentencing, Mr.
Salmon was prepared to submit additional records on Petitioner’s behalf, but
the court declined to review them as Mr. Salmon was merely stand-by counsel
and Petitioner had not sought counsel’s assistance or agreed to their
submission. Ex. at 1487-90. The result was not due to lack of effort on Mr.
Salmon’s part.
As noted by the FSC, there was a wealth of information before the trial
court, obtained by appointed attorneys and derived from the Beverly Moore
case, Petitioner’s prior murder case. Gill, 14 So. 3d at 953. Due to numerous
competency examinations over the years there had been “in-depth review of
94
Gill’s medical records and records of his early mental health history,” including
a review of Petitioner’s mental and behavioral problems manifested in
childhood, his institutionalization as a youth for mental and behavioral
problems, his commitment to Northeast Florida State Hospital, and his prior
criminal offenses. 39
Id.
Thus, the state court had before it voluminous
information concerning Petitioner’s long history of mental illness and
behavioral difficulties, combined with evidence of a serious brain defect and its
ramifications. Id.
There is a strong presumption in favor of competence when evaluating
the performance prong of the ineffectiveness inquiry under Strickland. Upon
review, there is substantial evidence that counsel adequately prepared and
investigated the case and examined Petitioner’s mental health history, even
attempting to submit more documentation once he was removed as counsel and
acted as stand-by counsel.
Of note, the record shows Petitioner thwarted
counsel’s efforts to submit additional documentation at sentencing. Counsel
did not make errors so serious that he was not functioning as the counsel
guaranteed by the Constitution.
39
Dr. Krop, in particular, was very familiar with Petitioner’s FDOC’s records and other
institutional records due to numerous encounters with Petitioner. Ex. at 2698.
95
Without satisfying the performance prong as set forth in Strickland,
Petitioner cannot prevail on his claim of ineffective assistance of counsel.
Fifield v. Sec’y, Dep’t of Corr., 849 F. App’x 829, 833 (11th Cir. 20210) (per
curiam) (failure to make a sufficient showing on one prong makes renders it
needless to address the other prong), cert. denied, 142 S. Ct. 788 (2022). As
the threshold standard of Strickland has not been met, Petitioner has failed to
demonstrate that his state court proceeding was fundamentally unfair and his
counsel ineffective.
Thus, Petitioner has failed to demonstrate a Sixth
Amendment violation under the United States Constitution.
E. Claim V: Mr. Gill’s federal constitutional rights were violated by
the state’s failure to disclose material exculpatory evidence in its
possession. Brady v. Maryland, 373 U.S. 83 (1963)[.]
In this ground, Petitioner states he is giving notice of a potential claim
out of an abundance of caution. Petition at 178-79. He provides, “there may
be evidence that assists Mr. Gill in proving his case or undermines the
prosecution’s case.” Id. at 179. The claim raised in Claim V is not ripe for
adjudication, and the Court declines to address this ground as prematurely
raised. The Court expresses no opinion as to whether the suggested claim
may be properly or timely raised in a subsequent proceeding.
F.
Claim VI:
The death sentence was imposed under an
unconstitutional capital sentencing scheme[.]
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Petitioner states that he intends to raise this claim in state court, and to
accomplish this task, “counsel is filing with this petition a motion requesting
the Court’s permission to appear in state court for that purpose.” Petition at
179-80.
The record shows that Petitioner’s counsel did file a Motion for
Authorization to Appear in State Court (Doc. 31). The Court deferred ruling
on the motion. Order (Doc. 41).
After Petitioner filed a pro se Motion to
Reappoint Counsel (Doc. 44), the Court denied without prejudice the Motion
for Authorization to Appear in State Court. Order (Doc. 51). Petitioner’s
counsel never renewed the motion to appear in state court. As such, the claim
raised in Claim VI is not ripe for adjudication. The Court declines to address
this ground and expresses no opinion as to whether the suggested claim may
be properly or timely raised in a subsequent proceeding.
VII.
Motion
This cause is also before the Court on a Stipulated Motion to Withdraw
and Substitute Capital Qualified, Florida-Barred Co-Counsel (Doc. 109).
Dana C. Hansen Chavis seeks leave to withdraw from the case and asks that
the Court appoint Marie-Louise Parmer, a member of the Florida Bar and a
Criminal Justice Act (CJA) panel attorney. Respondents filed their Objection
to Petitioner’s Stipulated Motion to Withdraw and Substitute Capital
97
Qualified, Florida-Barred Co-counsel (Doc. 110) stating no objection to Ms.
Chavis withdrawing her representation but asserting that there was no
stipulation to either her withdrawal or the appointment of private counsel
Marie-Louise Parmer. Id. at 2. Respondents object to the appointment of
Ms. Parmer and propose the appointment of Capital Collateral Regional
Counsel – Northern Region (CCRC-N) in place of Ms. Chavis. Id. at 7.
The motion will be granted to the extent Dana C. Hansen Chavis seeks
leave to withdraw.
In all other respects, the motion will be denied.
See
Order (Doc. 22) (appointing the Federal Defender Services of Eastern
Tennessee, Inc. Capital Habeas Unit (CHU-ED TN) due to the contention of
conflicts of interests).
After Petitioner expressed his preference for the
appointment of CHU-ED TN over local CJA counsel, the CHU-ED TN provided
the names and qualifications of three attorneys, Dana C. Hansen Chavis,
Susanne Bales, and Stephen M. Kissinger, and other staff.
Finding well-
qualified attorneys and other staff employed by CHU-ED TN, the Court
granted the motion to substitute counsel and granted Petitioner’s request to
appoint CHU-ED TN to represent Petitioner. The Court declines to appoint
additional counsel at this juncture.40
40
On May 31, 2002, the Eighth Judicial Circuit Court in and for Union County, Florida
98
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
Petitioner’s Motion for Leave to Reply (Doc. 111) is DENIED.
2.
The Court grants the Stipulated Motion to Withdraw and
Substitute Capital Qualified, Florida-Barred Co-Counsel (Doc. 109) to the
extent Dana C. Hansen Chavis is GRANTED leave to withdraw. In all
other respects, the motion is DENIED.
3.
Respondents’ Second Motion to Dismiss the Federal Habeas
Petition as Untimely (Second Response) (Doc. 62) is DENIED.
4.
The Petition for Writ of Habeas Corpus (Doc. 30) is DENIED.
5.
The action is DISMISSED WITH PREJUDICE.
6.
The Clerk shall enter judgment accordingly and close this case.
7.
If Petitioner appeals the denial of the Petition for Writ of Habeas
Corpus (Doc. 30),41 the Court denies a certificate of appealability. Because
appointed CCRC-N as Postconviction Counsel for Petitioner in the underlying criminal case,
case no. 63-2002-CF-000028-A. (Doc. 110 at 10-11).
41
This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Petitioner "must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong," Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that "the issues presented were 'adequate to deserve encouragement to proceed further,'"
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983)). Upon due consideration, this Court will deny a certificate of appealability.
99
this Court has determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination
shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
October, 2022.
sa 10/13
c:
Counsel of Record
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