VAN POYCK v. PALMER

Filing 5

ORDER DISMISSING COMPLAINT AND DENYING STAY: Plaintiff's 1 complaint under 42 U.S.C.§1983 is DISMISSED. Plaintiff's 3 Motion for Preliminary Injunction and Stay of Execution is DENIED. Clerk must enter judgment stating: "The case is dismissed with prejudice." Clerk must close the file. Signed by JUDGE MARK E WALKER on 5/30/2013. (jws)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
WILLIAM VAN POYCK,
Plaintiff,
v.

Case No. 1:13-cv-97-MW

JOHN PALMER,
in his official capacity as the
Warden of the Florida State Prison,
Defendant.
_______________________________/
ORDER DISMISSING COMPLAINT & DENYING STAY
Before this Court is William Van Poyck’s Complaint, ECF No. 1, filed under
42 U.S.C. § 1983 and accompanying Motion for Preliminary Injunction and Stay of
Execution, ECF No. 3.1 Van Poyck is a death-sentenced inmate incarcerated in the
State of Florida whose execution is currently scheduled for June 12, 2013, at 6 p.m.
This Court dismisses the Complaint for failure to state a claim and denies the
Motion.

1

It does not appear that the Complaint has been served on the Defendant, and this Court has been
informed that the Attorney General’s office, which has been involved in the postconviction
proceedings, will not be filing a responsive pleading inasmuch as the Attorney General does not
represent the Florida Department of Corrections or Warden Palmer. Therefore, this Court enters
this Order without benefit of a responsive pleading inasmuch as it appears that a response will not
be forthcoming.
1

This action was filed on May 24, 2013, but for some inexplicable reason was
not assigned to the undersigned until the afternoon of May 28, 2013. Inasmuch as
the matter languished for more than four days, and given the time-sensitive nature
of the matter, the undersigned issues this truncated Order so that Van Poyck can
seek meaningful appellate review of the dismissal of his Complaint.
I. BACKGROUND
Van Poyck was convicted of first-degree murder and sentenced to death for
his role in the June 1987 killing of Correctional Officer Fred Griffis. In its decision
affirming the denial of initial postconviction relief, the Florida Supreme Court
briefly summarized the facts of the crime as follows:
On June 24, 1987, state inmate James O'Brien was transported to the
office of a dermatologist by two corrections officers. Officer Griffis
drove the van and was unarmed. Officer Turner was responsible for
watching O'Brien, the two separated by a cage. Upon arriving at the
dermatologist's office, Officer Turner turned his eyes downward
looking for paperwork. When Turner looked back up, he saw Van
Poyck, who had approached the van, aiming a gun at his head. Officer
Turner was forced out of the van and ordered to crawl underneath the
vehicle. While Officer Turner was getting under the van, Frank
Valdez, one of Van Poyck's accomplices, was approaching the driver's
side of the van. Officer Turner, from underneath the van, saw Officer
Griffis forced out of the van and taken to the back of the vehicle. Then,
while noticing two sets of feet near the back of the van, he heard the
gunshots that killed Officer Griffis. Officer Turner did say, however,
that he was unable to testify as to Van Poyck's location when the
shooting occurred. Officer Griffis was shot three times, once with the
barrel of the gun placed to his head.
2

Van Poyck v. State, 694 So. 2d 686, 688 (Fla. 1997) (per curiam) (Van Poyck II).
Van Poyck was convicted of first-degree murder, attempted first-degree
murder, aiding in an attempted escape, aggravated assault, and six counts of
attempted manslaughter. By a vote of eleven to one, the jury recommended that the
penalty of death be imposed. The trial judge followed the jury's recommendation
and sentenced Van Poyck to death. On direct appeal, the Florida Supreme Court
affirmed the conviction and sentence. See Van Poyck v. State, 564 So. 2d 1066,
1071 (Fla. 1990) (Van Poyck I). Although the court held that “the record [did] not
establish that Van Poyck was the triggerman,” it recognized that it did “establish
that he was the instigator and the primary participant in this crime.” Id. at 1070.
The court further concluded that because “there [was] no question that Van Poyck
played the major role in this felony murder and that he knew lethal force could be
used,” his death sentence was proportionate. Id. at 1070–71.
Following his direct appeal, Van Poyck filed an initial postconviction motion
and was represented by Jeffrey Davis of the law firm Quarles & Brady.2 The trial
court denied relief and Van Poyck, represented by Davis, appealed. The Florida
Supreme Court affirmed the denial of relief. See Van Poyck v. State, 694 So. 2d
686, 699 (Fla. 1997) (Van Poyck II).
2

Davis, in fact, filed a 274 page motion and the state court conducted an evidentiary hearing at
which Davis appeared on behalf of Van Poyck. ECF No. 1, ex. I at 33-41.
3

Thereafter, Van Poyck filed a federal habeas petition and was again
represented by Davis. The district court denied relief, and the Eleventh Circuit
affirmed the district court’s summary denial of relief. See Van Poyck v. Fla, Dept
of Corr., 290 F.3d 1318, 1330 (11th Cir. 2002) (Van Poyck III).
In 2005, Van Poyck returned to state court represented by Davis and Mark
Olive to seek DNA testing of the clothes worn by himself, a co-defendant, and the
victim. The trial court denied the motion, and the Florida Supreme Court affirmed.
See Van Poyck v. State, 908 So. 2d 326, 327 (Fla. 2005) (Van Poyck IV).
While Van Poyck IV was pending, Van Poyck filed a successive motion for
postconviction relief asserting that an affidavit by a prison acquaintance constituted
newly discovered evidence.

The trial court denied relief, and this denial was

affirmed by the Florida Supreme Court in May 2007. See Van Poyck v. State, 961
So. 2d 220, 221 (Fla. 2007) (Van Poyck V). Van Poyck was represented in this
proceeding by Mark Olive, Davis, and another attorney from Quarles & Brady.
In April 2009, Van Poyck, again represented by Davis, filed a federal action
under 42 U.S.C. § 1983 alleging several claims surrounding his request for DNA
testing. The district court denied relief, and the Eleventh Circuit affirmed. See Van
Poyck v. McCollum, 646 F.3d 865, 866 (11th Cir. 2011) (Van Poyck VI). Davis also
represented Van Poyck in four state habeas proceedings. See ECF No. 1, ex. G. In
4

short, Davis’ representation of Van Poyck was anything but fleeting and/or
superficial.
In December 2010, Van Poyck, represented by Gerald Bettman, filed a fourth
state collateral challenge to his sentence alleging newly discovered evidence in the
form of juror affidavits entitling him to a new sentencing hearing. The trial court
denied relief, and the Florida Supreme Court affirmed. See Van Poyck v. State, 91
So. 3d 125, 126 (Fla. 2012) (Van Poyck VII).
On May 3, 2013, Florida Governor Rick Scott signed the death warrant for
Van Poyck scheduling his execution for June 12, 2013, at 6 p.m. On May 8, 2013,
the trial court denied a motion filed by Bettman which it treated as a motion to
withdraw. See ECF No. 1, ex. C. On May 9, 2013, Van Poyck filed a pro se
motion for appointment of counsel pursuant to section 27.711, Florida Statutes, in
Palm Beach County, Florida, see ECF No. 1, ex. E, which the trial court denied on
May 10. On May 15, Davis filed a motion to withdraw in the absence of a stay
following the trial court’s May 10th determination that the firm of Quarles & Brady
continue to represent Van Poyck absent a court order releasing them from
representation. The trial court also denied Bettman’s motion to withdraw and
determined that Bettman was and should remain an attorney of record for Van
Poyck. See ECF No. 1, ex. F.
5

Bettman filed a notice of appeal to the Florida Supreme Court, and the Court
remanded the matter to “the trial court for consideration of appropriate counsel in
the case.” See ECF No. 1, ex. G.

On May 13, the trial court held a hearing to

determine counsel in the matter. See ECF No. 1, ex. I. After the hearing, the trial
court found that Davis and Bettman were the lawyers most knowledgeable about
the facts and history of the case and that Olive had been involved in the litigation of
the case and was knowledgeable about death warrant litigation; therefore, these
three attorneys were ordered to remain counsel of record for Van Poyck. See ECF
No. 1, ex. O at 12-13.
Davis and Olive filed notices of their inability to ethically satisfy the trial
court’s schedule. ECF No. 1, ex.’s P & Q. Davis and Olive also filed motions to
withdraw. ECF No. 1, ex.’s M & L. In Davis’ motion to withdraw in the absence
of a stay he stated among other things that he “does not possess the expertise
necessary to serve as primary counsel in post-warrant matters.” See ECF No. 1, ex.
M at 4. The Florida Supreme Court denied the motions to withdraw and held that
Bettman, Davis, and Olive remained as counsel for Van Poyck. The court also
denied a request for a stay of execution and noted that “[n]oticeably absent from

6

these recent filings is any substantive reason for granting a stay.” Van Poyck v.
Florida, Nos. SC73662, SC 13-851, 2013 WL 2217495, at *1 (Fla. May 20, 2013).3
As noted initially, Van Poyck filed the instant action on May 24, 2013, and
the case was assigned to the undersigned on May 28, 2012.

While pursuing the

instant section 1983 claim, the same lawyers who sought to withdraw filed a third
successive motion for postconviction relief and motion to vacate sentence in Palm
Beach County, Florida. Judge Burton heard the matter on May 28, 2013, and issued
an order on May 29, 2013.

Judge Burton dismissed and denied the motions

respectively.
II. STANDARD OF REVIEW
Because Van Poyck is an inmate seeking redress from a governmental entity
or officer or employee of a governmental entity, this Court is required to dismiss the
case at any time if it determines that the Complaint is “(1) frivolous, malicious, or
fails to state a claim on which relief may be granted; or (2) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915A.
A complaint is frivolous under section 1915(e) “where it lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissals on this ground should only be ordered when the legal theories are
3

Van Poyck claims a divided Florida Supreme Court denied all pending motions when, in fact,
the entire court concluded that counsels’ motion to withdraw should be denied. The court was
only divided on the issue of whether a stay should issue.
7

“indisputably meritless,” id. at 327, or when the claims rely on factual allegations
that are “clearly baseless.”

Denton v. Hernandez, 504 U.S. 25, 31 (1992).

Dismissals for failure to state a claim are governed by the standard set forth
in Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483,
1485 (11th Cir. 1997). The allegations of a complaint are taken as true and are
construed in the light most favorable to the plaintiff. Davis v. Monroe County Bd.
of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). However, such acceptance is not
blind; only well-pleaded factual allegations are taken as true, and only reasonable
inferences are drawn in favor of the plaintiff. See Oladeinde v. City of Birmingham,
963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499,
502 (5th Cir. 1980);4 see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999)
(per curiam) (“reasonable inferences” drawn); Associated Builders, Inc. v. Ala.
Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“unwarranted deductions of fact are
not admitted as true”).

A plaintiff must allege more than mere “labels and

conclusions”; the complaint must include “[f]actual allegations . . . [sufficient] to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations and quotations omitted). Indeed, “any
4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as precedent all of the decisions of the former Fifth Circuit decided prior to
October 1, 1981.
8

conclusory allegations, unwarranted deductions of fact or legal conclusions
masquerading as facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec.
Dealers, 500 F.3d 1293, 1305 (11th Cir. 2007) (en banc) (Tjoflat, J., dissenting)
(citing Associated Builders, Inc., 505 F.2d at 99). A complaint may be and is
appropriately dismissed if the facts as plead on their face do not state a plausible
claim for relief.
III. ANALYSIS
Van Poyck contends that his due process rights under the Fourteenth
Amendment were violated by the state court’s refusal to appoint him postconviction
counsel under Chapter 27, Florida Statutes. Van Poyck fails to state a claim. This
is so for several reasons.
First, the United States Supreme Court has held that the due process clause
does not require states to appoint counsel for capital defendants seeking
postconviction relief. Murray v. Giarratano, 492 U.S. 1, 10 (1989).5 Thus, Van

5

This Court recognizes that Murray does not involve a defendant who actually went through the
postconviction process without counsel. In fact, Justice Kennedy, with whom Justice O’Connor
concurred in the judgment, explicitly noted that “[w]hile Virginia has not adopted procedures for
securing representation that are as far reaching and effective as those available in other States, no
prisoner on death row in Virginia has been unable to obtain counsel to represent him in
postconviction proceedings. . . . I am not prepared to say that this scheme violates the
Constitution.” 492 U.S. at 14. Here, in light of the state court rulings, Van Poyck continues to
be represented in all postconviction proceedings, and thus Justice Kennedy’s qualification is not
implicated.
9

Poyck does not have a right to the appointment of postconviction counsel under
federal law.
Second, assuming without deciding that Chapter 27 creates a right or – as
Van Poyck suggests – mandates a process whereby postconviction counsel must be
appointed to pass constitutional muster, Chapter 27 does not require the
appointment of postconviction counsel under these facts.
Section 27.7001 provides as follows:
It is the intent of the Legislature to create part IV of this chapter,
consisting of ss. 27.7001-27.711, inclusive, to provide for the collateral
representation of any person convicted and sentenced to death in this
state, so that collateral legal proceedings to challenge any Florida
capital conviction and sentence may be commenced in a timely manner
and so as to assure the people of this state that the judgments of its
courts may be regarded with the finality to which they are entitled in
the interests of justice. It is the further intent of the Legislature that
collateral representation shall not include representation during retrials,
resentencings, proceedings commenced under chapter 940, or civil
litigation.
Fla. Stat. § 27.7001.

Section 27.711, in turn, defines postconviction capital

collateral proceedings as:
one series of collateral litigation of an affirmed conviction and
sentence of death, including the proceedings in the trial court that
imposed the capital sentence, any appellate review of the sentence by
the Supreme Court, any certiorari review of the sentence by the United
States Supreme Court, and any authorized federal habeas corpus
litigation with respect to the sentence. The term does not include
repetitive or successive collateral challenges to a conviction and
10

sentence of death which is affirmed by the Supreme Court and
undisturbed by any collateral litigation.
Fla. Stat. § 27.711(1)(c) (emphasis added).
Importantly, Chapter 27 does not strip a defendant of his right to be
represented by a counsel of his choosing. See Melton v. State, 56 So. 3d 868, 871-73
(Fla. 2011). It is undisputed that Davis agreed to represent Van Poyck pro bono and,
in fact, filed Van Poyck’s initial postconviction motion once Collateral Capital
Regional Counsel withdrew based on a conflict. It is equally undisputed that Van
Poyck, without objection, vigorously pursued postconviction proceedings with
Davis, Olive, and Bettman as his lawyers. It is no answer that these lawyers do not
meet the qualifications of Chapter 27. Chapter 27 enumerates the requirements for
appointment and payment by the state pursuant to Chapter 27. As these lawyers
insist though, they were not appointed pursuant to Chapter 27, and thus the Chapter
27 requirements do not apply.6
Further, Van Poyck seeks the appointment of counsel pursuant to Chapter 27
for what appears to be the filing a successive collateral challenge. Under its plain
language, however, Chapter 27 expressly excludes the appointment of counsel to
mount successive collateral challenges. In short, assuming arguendo Chapter 27

6

Van Poyck (and even Davis for that matter) only now alleges, after twenty years, that Davis is
not qualified to adequately represent him, a claim which the state trial court and this Court find
disingenuous. Bettman and Olive’s claims of inadequacy are equally unavailing.
11

creates a right under certain circumstances, for the reasons stated above, Van Poyck
is not entitled to the appointment to new postconviction counsel under the facts of
this case.
Third, assuming again without deciding that Chapter 27 creates a right to
counsel, Van Poyck was not denied postconviction counsel without procedural due
process. To the contrary, it is undisputed that Van Poyck’s request for appointment
of counsel under Chapter 27 was heard by the state trial court and thoughtfully
considered by the Florida Supreme Court. The state courts simply rejected Von
Poyck’s claim that his lawyers could withdraw at the eleventh hour and force a stay
by demanding the appointment of counsel under Chapter 27 when he was already
represented by counsel intimately familiar with the case.
Fourth, Van Poyck has in essence filed an appeal of the state court’s denial of
his attorneys’ motions to withdraw masquerading as a federal due process claim.
However, Van Poyck fails to state a due process claim, and he has no right to appeal
the state court’s denial by simply recasting the “appeal” as a due process claim.
In short, Van Poyck has asserted no cognizable due process claim. Therefore,
this action is dismissed.
As for Van Poyck’s motion for a stay of execution, a stay of execution is an
equitable remedy and “‘[e]quity must take into consideration the State's strong
12

interest in proceeding with its judgment . . . .’” Nelson v. Campbell, 541 U.S. 637,
649 (2004) (quoting Gomez v. U.S. Dist. Ct. for N.D. of Cal., 503 U.S. 653, 654
(1992)). Thus, before granting a stay, a district court must consider not only the
likelihood of success on the merits and the relative harms to the parties, but also the
extent to which the inmate has delayed unnecessarily in bringing the claim. Nelson,
541 U.S. at 649-650. Given the State's significant interest in enforcing its criminal
judgments, there is a strong equitable presumption against the grant of a stay where a
claim could have been brought at such a time as to allow consideration of the merits
without requiring entry of a stay. Id. at 650. Additionally, a stay of execution should
be granted only when there are substantial grounds upon which relief might be
granted. See Bowersox v. Williams, 517 U.S. 345, 346 (1996); Delo v. Stokes, 495
U.S. 320, 321 (1990) (per curiam) (“A stay of execution pending disposition of a
second or successive federal habeas petition should be granted only when there are
‘substantial grounds upon which relief might be granted.’”) (quoting Barefoot v.
Estelle, 463 U.S. 880, 895 (1983)). Because this Court has dismissed Van Poyck’s
Complaint in finding that it does not state a claim upon which relief can be granted,
there are no substantial grounds upon which to grant a stay.
Therefore, it is ORDERED and ADJUDGED:

13

1.

Plaintiff’s Complaint under 42 U.S.C § 1983, ECF No. 1, is

DISMISSED;
2.

Plaintiff’s Motion for Preliminary Injunction and Stay of Execution is

DENIED;
3.

The clerk must enter judgment stating, “The case is dismissed with

prejudice.” The clerk must close the file.
SO ORDERED on May 30, 2013.
s/Mark E. Walker
United States District Judge

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