The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Edward T. James v. State of Florida
SC06-426
>>> ALL RISE.
GOOD MORNING. THE NEXT CASE, IS, JAMES. MISS RODRIGUEZ YOU'RE FIRST UP. THIS IS YOUR FIRST TIME TO THE COURT.
YOUR HONOR --
WELCOME THIS MORNING. TAKE A DEEP BREATH AND WE'LL, I'M SURE WE'LL ALL, ALL GO THROUGH THIS TOGETHER. OKAY.
THANK YOU, YOUR HONOR.
OKAY.
MY NAME IS CAROL RODRIGUEZ. -- [INAUDIBLE]
MOVE THE MIKE.
A LITTLE CLOSER. PULL IT TOWARDS YOU A LITTLE BIT. THE --
IT'S GOT PLENTY OF ROOM SO YOU CAN PULL IT AS CLOSE AS YOU WANT. THERE IS A LENGTHY CORD THERE. SO YOU DON'T HAVE TO WORRY ABOUT DISCONNECTING IT.
THANK YOU, YOUR HONOR.
OKAY.
I'M CAROL RODRIGUEZ. WITH IN MIDDLE DISTRICT. [INAUDIBLE] THIS CASE IS BEFORE THE COURT ON A VERY NARROW.
THAT'S WHAT I WANTED TO ASK YOU, ON THE PRIOR, PROCEDURE, YOU'RE NOT RAISING ANY ISSUES THAT HE IS AT THE TIME, DID NOT VOLUNTARILY DISCHARGE COUNSEL AN VOLUNTARY DISMISS. THE CASE, COMPETENT TO DO THAT AND HE DID IT VOLUNTARILY AND INTELLIGENTLY, CORRECT?
THAT IS CORRECT. THAT'S NOT AN ISSUE. THE RECORD OF THAT PROCEEDING, [INAUDIBLE] PUT MR. JAMES UNDER OATH THAT IS PART OF THE RECORD OF VOLUME FOUR, PAGES 583 TO 598. THAT IS NOT AN ISSUE.
ALL RIGHT. NOW, IF HE HAD, DECIDED, KEPT COUNTS SETTLE AND -- COUNSEL AND COUNSEL DEFERED EVIDENTIARY HEARING WOULD YOU STILL BE MAKING THE SAME ARGUMENT?
HE DID CONFER WITH COUNSEL AND WAS PRESENT AND, AT THE CCRC WAS WITH HIM AT THE HEARING.
THE RULE OF LAW WOULD BE THAT EVEN IF THE PERSON HAD, NOT DISCHARGED COUNSEL, THAT COUNSEL DECIDED TO DISMISS THE, EVIDENTIARY HEARING, 245, IT COULD BE REINSTATED. AT ANY TIME AFTER, WITHOUT ANY REGARD FOR THE TIME LIMITS?.
NO, YOUR HONOR. THE COURT, PUT MR. JAMES ON NOTICE THERE WAS A 30 DAY REHEARING ORDER FOR HIM TO APPEAL THE MATTER. AND, MR. JAMES IS ALSO WELL AWARE OF THE FEDERAL -- VERY DIFFICULT WITH REGARD TO ANY FEDERAL ISSUES THAT --. [INAUDIBLE] THE COURT PUT HIM ON NOTICE THERE WAS A 30-DAY WINDOW HE COULD HAVE APPEALED THE DECISION. -- MR. JAMES DID NOT DO THAT.
I'M TRYING TO UNDERSTAND WHAT WOULD THE RULE OF LAW BE THEN. THAT WE WOULD BE COMING OUT WITH IN THIS CASE.
ACTUALLY THE [INAUDIBLE] MR. JAMES CASE WAS PENDING ON OCTOBER 1, 2001. WHEN RULE 3851 WAS ENACTED. ACTUALLY THIS IS AN OLD CASE THAT FALLS UNDER THE 3850 RULE. THAT RULE DOES NOT PROVIDE A MECHANISM FOR WHAT OCCURS IN THESE PARTICULAR SITUATIONS.
COULD WE, SHOULD WE, SHOULD WE, ADDRESS OR BE CONCERNED WITH ANYTHING THAT WAS CONTAINED IN THERE? I KNOW THE TRIAL COURT HAD GRANTED AN EVIDENTIARY HEARING BEFORE THIS WAS DISMISSED. IS THERE ANYTHING WE SHOULD BE TALKING ABOUT? I DIDN'T SEE ANYTHING WELL-DEVELOPED IN THE BRIEFING BUT --
YES, YOUR HONOR.
WHAT?
THE REASON THAT IS NOT WELL-DEVELOPED WE WERE APPOINTED FOR EVIDENTIARY HEARING PURPOSE. THE JUDGE ACTUALLY INCLUDED THOSE QUESTIONS WE WOULD ANSWER WITH REGARD TO THE ISSUE OF APPOINTMENT. WE WERE VERY NAIR ROW IN TERMS OF THE APPOINT.
I'M GOING TO UNDERLYING MOTION. IS THERE SOMETHING THERE MERITORIOUS AND JUMPS OUT AND CRIES OUT FOR REMEDY.
I WOULD SAY YES, YOUR HONOR. AND I WOULD SAY YES BECAUSE THE CASE HAS BEEN FULLY DEVELOPED. WITNESSES HAVE BEEN EXCHANGED BETWEEN THE PARTIES. HE WAS THREE MONTHS AWAY FROM AN EVIDENTIARY HEARING. THERE WERE A NUMBER OF CLAIMS THAT WERE GRANTED HERE AND THOSE ARE, SPECIFIC ISSUES AND ONES THAT MR. JAMES WANTED TO RAISE AGAIN. NOT A CHANCE TO GO BACK AND START ALL OVER AGAIN. WE REQUEST OF THE COURT TO ALLOW HIM TO A FILE SUCCESSOR. AFTER THOSE PARTICULAR ISSUES HE HAD BEEN GRANTED EVIDENTIARY HEARING ON THAT HAVE BEEN DISMISSED. BASICALLY THEY INVOLVE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS. THEY DO AFFECT TWO OF THE AGGRAVATORS AS WELL AS ACTUAL PLEADING ITSELF.
THE PROBLEM I HAVE WITH THIS -- I'M SORRY. THE PROBLEM I HAVE WITH THIS IS, THESE CLAIMS WERE THERE. IF THEY WERE MERITORIOUS THEY WERE MERITORIOUS 2 1/2 YEARS AGO. IT SEEMS TO ME, WE NEED SOMETHING, THAT WOULD TELL US THAT, 2 1/2 YEARS LATER, THERE IS SOME COMPELLING REASON TO LET HIM NOW GO BACK AND DO THIS. YOU MAKE NO CLAIM THERE WAS ANYTHING WRONG WITH HIS WAIVER. YOU MAKE NO CLAIM OF ANY NEWLY DISCOVERED EVIDENCE THAT WOULD PUT EVEN THOSE OLD CLAIMS INTO ANY DIFFERENT LIGHT. SO WHAT IS SO COMPELLING THAT WOULD REQUIRE US TO, OKAY, DESPITE THE COMPETENT WAIVER, DESPITE THE FACT THAT THE, HE'S WELL BEYOND THE TIME LIMITATIONS. WE MUST ALLOW HIM TO GO BACK AND DO THESE CLAIMS?
[INAUDIBLE]. MR. JAMES IS REQUEST THIS COURT TO LOOK AT THE UNIQUE CIRCUMSTANCES OF HIS PARTICULAR CASE.
THAT'S WHAT I'M ASKING YOU, WHAT ARE THE CIRCUMSTANCES THAT WOULD COMPEL US TO DO THIS?
FIRST OF ALL THIS, YOUR HONOR THIS CASE NEVER PROCEEDED TO TRIAL. THERE WAS NO ADVERSARIAL TESTING AT TRIAL LEVEL.
SHE IS LOOKING FOR MORE SUBSTANCE THAN PROCEDURES. PLEASE ADDRESS.
HE PLED TO THESE PARTICULAR CHARGES, YOUR HONOR.
WE HAVE PEOPLE PLEA QUITE A BIT.
THE -- YOUR HONOR I WOULD ARGUE, COMPEL THE COURT TO SEE RELIABILITY IN TERMS OF MR. JAMES ACTUAL SENTENCE. HIS SENTENCE HAS NEVER BEEN -- [INAUDIBLE]
DEAF A DIRECT APPEAL?
HE DID, YOUR HONOR.
AND WERE THERE ANY ISSUES RAISED ON DIRECT APPEAL CONCERNING AGGRAVATORS OR THE MITIGATORS OR PROPORTIONALITY OR ANY OF THE NORMAL ISSUES THAT ARE RAISED CONCERNING SENTENCING?
THERE WERE ISSUES RAISED CONCERNING SENTENCING OF COURSE NONE OF THESE WITH REGARD TO INEFFECTIVENESS OF COUNSEL.
HE PLED, BEFORE 1997, GUILTY PLEA. IN EFFECT YOU'RE SAYING SOMEHOW THERE WAS SOMETHING WRONG WITH THE GUILTY PLEA AND YOU WANT A DECADE LATER TO TRY TO COLLATERALLY ATTACK IT. THAT'S WHY I WAS ASKING YOU HOW DO WE NARROW THIS? I THINK WHAT JUSTICE LEWIS IS ASKING, WHERE, WE'VE GOT TO SEE IF WE'RE GOING TO BEND SOME RULES WHICH IS WHAT WOULD HAVE TO HAPPEN, WHERE IS THE INJUSTICE HERE, THE DUE PROCESS IMPLICATIONS AS OPPOSED TO SAYING, YOU CAN DISMISS THINGS AND THEN BRING THEM BACK AND, YOU KNOW, ATTACK GUILTY PLEAS A DECADE LATER WITH JUST THE FACT THAT THE, ALL IT LOOKS LIKE THE DEFENDANT TWO YEARS LATER DECIDED TO CHANGE HIS MIND?
I UNDERSTAND THAT, YOUR HONOR. AND I THINK IS THE REASON THAT THE SECOND RULE, 3.851 WAS SUBSEQUENTLY AMENDED, -- [INAUDIBLE] -- THOSE PARTICULAR ISSUES AND ADDRESS THOSE ISSUES. I WOULD SUBMIT TO THE COURT THAT -- [INAUDIBLE] THAT HE SHOULD BE PERMITTED TO GO FORWARD.
WE HAD, WE HAD SEVERAL CASES UNDER 3.850 IN WHICH WE SET UP THE PROCEDURE WHICH WAS LATER PUT INTO PLACE IN 351. WE HAD DURING ROW CHER CASE. WE HAD SLAUSEN. WE HAVE THESE CASES WHICH WE ENDEAVORED TO MAKE CERTAIN, AT THE TIME THAT THE DEFENDANT MADE THE DECISION TO WAIVE POSTCONVICTION THAT THE DEFENDANT WAS COMPETENT TO DO IT. THIS DEFENDANT, AND THIS TRIAL JUDGE, FOLLOWED THOSE PROCEDURES AND MADE THE WAIVER. NOW, CERTAINLY, AT SOME, WE WOULD BE IN A, A VERY CONFUSED SETTING, IF WE ENDED UP WITH A SITUATION IN WHICH THESE PROCEDURES THAT WE SET OUT, IN THOSE CASES, WERE FOLLOWED AND YET, WE SAY, WELL, STILL, YOU CAN COME BACK, AND, BRING AN ACTION LATER. THERE'S GOT TO BE SOME FINALTY IN THIS SYSTEM, DOESN'T THERE? THAT'S WHAT THE WHOLE DECISION-MAKING PROCESS IS ABOUT.
I UNDERSTAND THAT YOUR HONOR AND, MR. JAMES -- [INAUDIBLE] OTHER DEFENDANTS THAT COME BEFORE THIS COURT. MR. JAMES WAS INDIVIDUAL WITH NO PAST HISTORY WHATSOEVER. HE HAD NO HISTORY OF VIOLENT BEHAVIOR. AT AGE 32 -- [INAUDIBLE] AND THIS WAS THE RESULT TRAGIC CONSEQUENCE AND WHAT OCCURRED TO HIM.
LET ME JUST STOP YOU ON THIS I'M GOING TO GO BACK TO YOUR ISSUE OF THE PROCEDURE. IF YOU WERE SAYING THAT HIS MOTION TO WITHDRAW OR, DISMISS THE UNDERLYING PROCEDURES OR HIS, MOTION TO DISCHARGE COUNSEL WERE DEFECTIVE BUT YOU DIDN'T HAVE A CHANCE TO APPEAL IT THEN I UNDERSTAND SOMETHING ABOUT TALKING ABOUT THE RULE. BUT YOU AT VERY BEGINNING YOU SAID, THAT WAS FINE, CORRECT?
YES, YOUR HONOR.
ALSO I'M IMPRESSED IN READING JAMES THIS IS NOT CASE WHERE MR. JAMES WAIVED MITIGATION. THIS WAS, MITIGATION WAS PRESENTED AND, WHAT YOU'RE NOW TALKING ABOUT WHICH IS THE INGESTION OF THE LSD AND THE, THE BEER AND THE GIN AND WAS EXACTLY PART OF THIS, I MEAN THESE ARE HORRENDOUS CRIMES AND IN FACT JUSTICE ANSTEAD'S SPECIAL CONCURRENCE TALKS ABOUT THIS. YOU'RE NOT TELLING US SOMETHING THAT DIDN'T COME UP AT THE UNDERLYING PENALTY PHASE. NOW WITH THAT IN MIND WHICH IS THAT THE RULE SHOULD HAVE NO EFFECT, WHICH YOU'RE NOT ATTACKING THE UNDERLYING MOTION TO DISCHARGE COUNSEL OR DISMISS, WHAT IS IT THAT CRIES OUT FOR JUSTICE IN THIS CASE THAT WOULD REQUIRE US TO REALLY MAKE AN EXCEPTION FOR MR. JAMES?
THE EXCEPTION I'M SEEKING, YOUR HONOR, IS BASICALLY MR. JAMES IS PROPOSING TO THE COURT AT THIS STAGE BASED UPON SENTENCE OF DEATH, THAT DEATH SENTENCE DEFENDANT SHOULD HAVE THE OPPORTUNITY TO GO THROUGH THE STATE COURT PROCESS.
SO ARE YOU SAYING WE SHOULD NEVER ACTUALLY ALLOW DEFENDANTS TO WAIVE POSTCONVICTIONS PROCEEDINGS BECAUSE FOR US TO BE ASSURED, TO BE ASSURED IT'S RELIABLE, WE HAVE TO MAKE THEM GO THROUGH THAT PROCESS?
I'M NOT SUGGESTING, YOUR HONOR, NO, THAT THAT IS MANDATORY PROCESS OR THAT IS -- STRICTLY DIRECTING THIS COURSE TO LOOK AT FACTS OF THIS PARTICULAR CASE. I'M SUGGESTING IT WOULD BE A VERY NARROW APPLICATIONS TO BE APPLIED AFTER THE OLD RULE, NOT THE NEW RULE.
LET ME ASK YOU ONE MORE TIME ON THE GUILTY PLEA, BECAUSE WE ARE ALWAYS CONCERNED IF WE NOW SENTENCED SOMEONE TO DEATH WHO MAY NOT BE GUILTY OF THE CRIME S THERE ANYTHING IN THE UNDERLYING MOTION OR ANYTHING YOU'RE PREPARED TO ASSET, NOT ABOUT STATE OF MIND THAT HE WAS PERPETRATOR OF THESE CRIMES?
NO, YOUR HONOR.
OKAY.
THE ONE AREA THAT I HAVE SOME CONCERN WITH, AND IT'S NOT JUST FINALTY FOR FINALTY'S SAKE, BUT IT IS, WE'RE NOW TEN YEARS DOWN THE ROAD. WITNESSES DIE. AND IT CAN CHANGE THE CHEMISTRY, DYNAMICS. IT CAN LOSE THE TRUTH. IF WE JUST HAVE THIS OPEN-ENDED, WHERE WOULD THIS PUT US IN THIS OPEN-ENDED? YOU COULD JUST REVOKE IT EACH TIME AND THAT THAT TO ME SEEMS TO BE A GREAT DETRIMENT TO EVERYONE, TO SOCIETY, TO THE ALL CONCERNED IF WE JUST LEAVE THEM OPEN. SO THIS WOULD SEEM TO HARM THAT.
I WOULD UNDERSTAND THAT YOUR HONOR, AND WOULD AGREE WITH THAT AND THAT IS WHY, THIS IS A NARROW APPLICATION THAT WE'RE SEEKING WITH REGARD TO MR. JAMES. ONLY BECAUSE, THE CASE WAS FULLY DEVELOPED TO GO TO THREE-DAY EVIDENTIARY HEARING, LIMITED ON I BELIEVE THREE ISSUES THAT WERE GRANTED. WITNESSES, WERE READY TO BE DEPOSED AND IT COULD BE DONE WITHIN THREE DAYS. -- [INAUDIBLE] NO DIFFERENT TODAY AS IT WAS AT THE TIME IT WAS DISMISSED.
HOW WOULD THIS --
ARGUING FOR GENERAL RULE IN ANY WAY, SHAPE OR FORM.
BUT IT WOULD BE A GENERAL RULE FOR ANYONE WHO FILES A 3.851 MOTION. THAT GETS TO A HUFF HEARING STAGE AND JUDGE SAYS I WILL LET YOU HAVE A HEARING ON COUPLE OF THESE CLAIMS. THEN HE DECIDES TO WAIVE IT. SO ANY DEFENDANT IN THAT POSTURE, CAN THEN COME BACK, WHO KNOWS HOW MANY YEARS LATER, AND ASK THIS COURT TO LET THEM CONTINUE NOW WITH THEIR POSTCONVICTION MOTION. HOW IS THAT ANY LIMITATION?
I WOULD SUGGEST THE 3.851 RULE IS SPECIFIC WITH REGARDS TO HOW THAT WORKS WITH -- [INAUDIBLE] -- FUTURES TURE CASES THOSE THAT OCCUR AFTER WOULD SUGGEST BE VERY FEW IF ANY OTHER PERSON IN MR. JAMES POSITION AND -- FOUND HIM SELF IN THIS POSTURE THREE MONTHS OUT FROM, EVIDENTIARY HEARING. SO I WOULD SUGGEST, YOUR HONOR, THAT, 3.851 WOULD HAVE TAKEN CARE OF THAT WHERE 3.850 WOULD NOT.
WHAT WAS THE TIME PERIOD WHEN HE DISMISSED IT TO WHEN HE HAD A CHANGE OF HEART?
IT WAS OVER TWO YEARS, YOUR HONOR.
OVERTWO YEARS.
TWO YEARS. APPROXIMATELY FOUR MONTHS FROM THE POINT OF TIME WHERE HE APPEARED BEFORE THE COURT AND NOTICED -- [INAUDIBLE]
WELL, IF THE STATE HAS HAD AN OPPORTUNITY IF THEY COULD SHOW THEY WERE PREJUDICED BY THIS DISMISSAL WOULD THAT MAKE IT, WOULD THAT BE DIFFERENT? I MEAN SINCE WE'RE SORT OF FASHIONING SOMETHING THAT YOU'RE SAYING WOULD BE UNIQUE TO THIS CASE.
I CAN'T, I CAN'T ANSWER THE QUESTION BECAUSE I CANNOT IMAGINE WHAT THAT PREJUDICE WOULD BE TO THE STATE.
LET'S SAY, FOR EXAMPLE, THE, TRIAL LAWYER, THE DEFENSE LAWYER HAD DIED IN THE MEANTIME. WASN'T ABLE TO TESTIFY ABOUT STRATEGIC DECISION THAT WAS WERE MADE THAT WOULD THAT PREJUDICE THE STATE?
I WOULD HAVE TO GO BACK TO THE UNDERLYING CLAIM AND, -- [INAUDIBLE] TO BE PERFECTLY CANDID WITH THE COURT ON THAT IT COULD HAVE A POSSIBILITY BUT I DON'T BELIEVE THE ISSUE -- [INAUDIBLE] I DON'T BELIEVE THAT WAS -- [INAUDIBLE]
I GUESS THE, OVERRIDING POINT IS THAT EVEN IF WE THOUGHT YOU WERE ENTITLED TO RELIEVE IN GENERAL TERMS, WOULDN'T WE HAVE TO WEIGH THE PREJUDICE TO THE STATE IN GRANTING YOU THAT RELIEF BEFORE WE DECIDED THAT YOU COULD FILE A LATE CLAIM?
I THINK THAT'S AN EXCELLENT QUESTION.
THANK YOU.
I DON'T THINK I COULD FULLY ANSWER THE QUESTION. I THINK THAT CERTAINLY THE STATE HAS AN OPPORTUNITY -- [INAUDIBLE] AND I THINK BECAUSE OF TIME INVOLVED AND MR. JAMES HAD AN OPPORTUNITY TO THINK ABOUT HIS POSITION AND WHY WE FIND OURSELVES HERE TODAY. SO, I THINK THAT THE RECORD AND THE SPECIFIC CLAIMS, I'M TRYING TO GO BACK AND LOOK AT UNDERLYING CLAIMS WHAT WAS INVOLVED -- WASN'T PREPARED TO DISCUSS THOSE IN COURT TODAY. I WOULD SAY THE ISSUES ARE LIMITED TO THE RECORD AND -- [INAUDIBLE]
WITH OUR ASSISTANCE YOU'VE GONE, WELL INTO YOUR REBUTTAL TIME. SAVE A LITTLE TIME.
BUT, JUST ONE QUESTION HERE. IF THESE ARE LIMITED TO THE RECORD, AND YOU SAID, THAT YOU WANT TO GO BACK AND HAVE AN EVIDENTIARY HEARING AND ALL THIS, SO IF THIS IS REALLY JUST RECORD WHY DO YOU NEED AN EVIDENTIARY HEARING?
I BELIEVE THERE IS SOME TESTIMONY FROM ONE PARTICULAR EXPERT, THERE IS INFORMATION THAT WAS NOT PROVIDED TO ONE OF THE MENTAL HEALTH EXPERTS.
THIS REALLY ISN'T SOMETHING JUST CONFINED TO THE RECORD?
> NO NO I'M JUST SUGGESTING IN TERMS OF PREJUDICIAL ASPECT OF THE QUESTION THAT -- [INAUDIBLE]
OKAY.
MAY IT PLEASE THE COURT. MY NAME IS BARBARA DAVIS. I REPRESENT THE STATE OF FLORIDA. AND, I AM HERE BECAUSE THIS COURT HAS TREATED THE DEFENDANT'S PRO SE LETTER AS NOTICE OF APPEAL OF JUDGE EATON'S ORDER DISALLOWING REINSTATEMENT OF THE 3.850 PROCEEDING.
LET ME ASK YOU THE FLIPSIDE OF THIS, WHICH IS THAT EVERY DAY, WHEN WE HAVE ORAL ARGUMENT AND WE LOOK AT POSTCONVICTION, WE SEE CASES THAT ARE PENDING FOR YEARS AND YEARS AND YEARS. FROM THE, WHICH IS UNFORTUNATE. WE DON'T CONDONE THAT BUT WE SEE IT. HERE YOU'VE GOT A SITUATION WHERE IT'S, ESSENTIALLY TWO YEARS BETWEEN WHEN HE WAIVED HIS RIGHT AND WHEN HE ASKED FOR IT. WHERE IS, YOU KNOW, WHERE IS ON THE FLIPSIDE FOR THE STATE, THE, PROBLEM IN DISALLOWING HIM TO GO BACK ON HISS ORIGINAL MOTION?
REMEMBER. THIS ISN'T JUST ABOUT THIS CASE. THEY KEEP SAYING THIS IS JUST ABOUT THIS CASE. THIS IS ABOUT ORDERLY PROCESSING OF THESE CAPITAL APPEALS AND CONSISTENCY IN THESE APPEALS. THIS COURT UPHOLDS PROCEDURAL BARS AND TIME BARS EVERY DAY. TO SAY MR. JAMES IS SOME KIND OF AN EXCEPTION, JUST BECAUSE HE IS NOW CHANGED HIS MIND WITHOUT ANY REASON WHATSOEVER. THAT'S WHAT JUDGE EATON SAID. HE SAID HE HAD A HEARING. AND HE SET OUT THREE SPECIFIC QUESTIONS THAT HE WANTED US TO ANSWER AND HAD MEMORANDUM. HE WANTED TO KNOW, ON WHAT LEGAL THEORY CAN YOU JUST, UNDO YOUR VOLUNTARY WAIVER AND REINSTATE IT? HE WANTED TO KNOW, IS THERE ANY PRECEDENT FOR THIS? IS THERE ANY ALLEGATION TO SUPPORT THAT HE WAS NOT VOLUNTARILY ENTERING THAT WAIVER? HE WANTED TO KNOW IF THERE IS ANY AUTHORITY TO REINSTATE THIS AS A SUCCESSIVE MOTION. NONE OF THAT WAS PRESENTED TO HIM AND HE SPECIFICALLY FOUND IN HIS ORDER THAT JAMES DID NOT ALLEGE THAT THERE WAS ANYTHING IMPROPER WITH THESE PROCEEDING. HE DID NOT ALLEGE AND THERE IS THREE EXCEPTIONS IN FILING LATE. THAT THERE WAS, NEWLY DISCOVERED EVIDENCE. THAT THERE WAS A FUNDAMENTAL RIGHT THAT COULD BE APPLIED RETROACTIVELY THAT COUNSEL FAILED TO DO ANYTHING FOR HIM. HE HAS NOT ALLEGED ANYTHING THAT WOULD SHOW THAT HE WAS ACTUALLY INNOCENT OF THIS. Y'ALL, THIS COURT, REVIEWED THIS ON DIRECT APPEAL. HE RAISED IN, OF COURSE IT WAS A PLEA. HE CONFESSED. HE PLED AS CHARGED AND THIS COURT REVIEWED THAT PLEA AND SENTENCE ON DIRECT APPEAL. NOW IF YOU LOOK AT THE CASE OF MARCUS FARR IT SHOWS THAT THE ARGUMENT ABOUT THE RELIABILITY OF THE DEATH SENTENCE. WHEN THIS COURT REVIEWED AND THERE WERE ISSUES RAISED ABOUT THE HEINOUS, ATROCIOUS AND CRUEL AS TO THOSE VICTIMS, TRIAL COURT FINDING OF MITIGATING CIRCUMSTANCES PROPORTIONALTY. THIS COURT REVIEWED IT AND SO DID THE UNITED STATES SUPREME COURT. IT WASN'T JUST TWO YEARS T WAS 2 1/2 YEARS. ANYTHING I SAID IN ANSWER BRIEF ANY TOLL IN TIME. TIME DOES NOT TOLL IN STATE COURTS. BUT THE HUGE PREJUDICE TO THE STATE IF THIS COURT MADE AN EXCEPTION FOR A NO APPARENT BOUNDS, GROUNDS, THAT WOULD EFFECT THE FEDERAL PROCEDURAL BARS. NOW THE STATE AS AN INTEREST IN THIS COURT UPHOLDING THE RULES THAT THIS COURT MAKES. AND REMEMBER THAT IT'S NOT THE STATE THAT WAS DELAYING THIS PROCEDURE. MR. JAMES HIMSELF VOLUNTARILY WITHDREW THIS. WAIVED THE RIGHT TO COUNSEL. HE WAS THE CAPTAIN OF HIS OWNERSHIP AS YOU SAID IN FAR R&A LSTON. ALSTON IS THE CASE JUDGE EAT ON WAS FALLING BY GIVING IT FINAL REVIEW. JUDGE EATON ULTIMATELY WROTE THE NEW 3.51 SUBSECTION I. HE FOLLOWED EXACTLY THOSE PROCEDURES. HE GAVE MR. JAMES MORE DUE PROCESS THAN ANY DEFENDANT DESERVES UNDER THESE CIRCUMSTANCES. AND HE MADE SPECIFIC FINDINGS THAT HE WAS THE TRIAL JUDGE THAT DID THIS, THE, WITHDRAWAL WAIVER. THERE WAS NO ISSUE AS TO COMPETENCY. THERE WAS NO ISSUE AS TO VOLUNTARYINESS. AND THE JUDGE WHO WAS JUDGE DICKEY WHO DID THE HUFF HEARING FOR THE 3.850. HIS ORDER IS IN THE RECORD. YOU ASKED ABOUT THE VALIDITY OF ANY UNDERLYING CLAIMS. MOST OF THE CLAIMS WERE EITHER INSUFFICIENTLY PLED, REFUTED BY THE RECORD OR RAISED JUST FOR TO PRESERVE THEM. ONLY THREE ISSUES ON WHICH THERE WAS A HEARING WERE THE THREE ISSUES THAT THE STATE SAID THEY WOULD LIKE FACTUAL DEVELOPMENT ON. AND THEY ALL REFERRED TO DR. GUTMAN. REMEMBER THERE WERE TWO EXPERTS WHO TESTIFIED, DR. GUTMAN AND DR. BUFFING TON. AND 4, 5, AND 8 --
NOTHING ON THE GUILTY PLEA?
NO, MA'AM.
YOU SAID IS, I YOUR POSITION WOULD BE THAT, ONCE HE DISMISSED HIS POSTCONVICTION, AT THAT POINT THE FEDERAL TIME LIMIT STARTED AND HE DIDN'T FILE ANYTHING IN FEDERAL COURT IS THAT CORRECT?
CORRECT.
SO AT THIS POINT UNLESS WE REINSTATE IT, THIS DEFENDANT, IS HE READY THEN TO BE EXECUTE?.
YES. REMEMBER IT WAS WHEN THE CLEMENCY ATTORNEY WAS APPOINTED AND SAW MR. JAMES AFTER 2 1/2 YEARS OF SITTING SILENT, THE CLEMENCY ATTORNEY WAS APPOINTED AND, AT THAT POINT, MR. JAMES WROTE AND SAID, OH, I SEE THE WRITING ON THE WALL. PUT ME BACK IN --
CLEMENCY PROCEDURES COMPLETED? HAVE THEY BEEN COMPLETED?
I'M NOT SURE. I'M SORRY, I'M NOT INVOLVED IN THAT BUT THERE IS, THE APPOINTMENT OF THE CLEMENCY ATTORNEY IS IN THE RECORD AT 496. AND AT THAT POINT, TWO DAYS AFTER THAT, MR. JAMES WROTE AND THAT'S WHEN JUDGE EATON ASKED FOR MEMORANDUM, SET THE HEARING SO, I JUST DON'T KNOW ABOUT THE CLEMENCY.
ONCE HE WAIVED HIS RIGHT TO POSTCONVICTION PROCEEDINGS, HE HAD HOW MUCH TIME TO GO TO FEDERAL COURT? I MEAN, HE HAD A RIGHT TO GO TO FEDERAL COURT ON THE OTHER ISSUE SHUSHGS CORRECT?
YES, MA'AM.
AND SO HOW DOES THAT ACTUALLY WORK IN PRACTICE? HOW WOULD HE HAVE GOTTEN AN ATTORNEY SINCE HE ALSO DISCHARGED CCRC AND, DISMISSED HIS POSTCONVICTION MOTION, HOW, HOW WOULD HE THEN GET TO FEDERAL COURT?
WELL, TWO WAYS. HE COULD EITHER FILE THE HABEAS PETITION HIMSELF. BECAUSE THEY HAVE THE FORMS AVAILABLE IN THE PRISONS. OR HE COULD ASK FOR REGISTRY COUNSEL IN THE FEDERAL COURTS. NOW --
HE WOULD HAVE TO ASK FOR IT? IT'S NOT A MATTER, HIM AUTOMATICALLY GETTING AN ATTORNEY FOR FEDERAL HABEAS?
NO. BUT HE CAN FILE HIS OWN HABEAS PETITION. IT'S BASICALLY A FILL IN THE BLANK FORM THAT YOU CAN GET ANYWHERE. ACTUALLY THE FEDERAL COURTS ASK THE FEDERAL ATTORNEYS TO USE THAT EXACT FORM BECAUSE IT HAS ALL THE BLANKS OF EXACTLY WAS THIS EXHAUSTED.
WHAT SHE IS TRYING TO SAY IT'S NOT AUTOMATIC PROCESS AS IS IN FLORIDA FOR POSTCONVICTION?
NO, SIR. NO, SIR. BUT JUDGE EATON DID REMIND HIM WHEN HE WENT THROUGH THE 3.850 HE FULLY REMINDED HIM HIS FEDERAL CLOCK WAS TICKING TOO. HE WAS NOT ONLY WAIVING ALL HIS STATE APPEALS BUT HE WAS ALSO WAIVING HIS FEDERAL APPEALS WHICH WOULD BE TIME BARRED. SO JUDGE EATON DID A COMPLETE WAIVER ON THIS. AND REMEMBER, THAT YOU CAN'T GO INTO FEDERAL COURT UNLESS YOU'VE EXHAUSTED ALL YOUR STATE COURT ISSUES. HOWEVER, HE COULD FILE FOR FEDERAL HABEAS RELIEF USING THE FORM THEY GIVE HIM.
IN FACT IN HIS ORDER BACK IN '03, JUDGE EATON ACTUALLY IN PARAGRAPH 4, ACTUALLY LAYS OUT 2263 OF THE FEDERAL CODE, U.S. CODE?
YES, SIR. AND ADVISED HIM ON THE RECORD WHEN HE WAS IN COURT. IF YOU NOTICE RIGHT BEFORE THAT, WE ARE WHERE HE LAID OUT THE FEDERAL RULES HE SAID, YOU HAVE 30 DAYS TO APPEAL THIS. SO, CLOCK'S TICKING ON THIS WITHDRAWAL ISSUE. AND DISCHARGING COUNSEL. IT'S ALSO TICKING IN FEDERAL COURT. ADVISED HIM OF THAT IN COURT ALSO. AND DEFENDANT VOLUNTARILY WAIVED ALL THIS.
ONE OTHER HE QUESTION. WHAT WAS THE PROCEDURE FOR, APPEAL OF THAT KIND OF ORDER AT THE TIME THAT MR. JAMES DISMISSED HIS POSTCONVICTION? WHO WOULD HAVE APPEALED THAT ORDER FOR HIM? OR, WOULD HE HAVE TO DO IT HIMSELF?
HE COULD HAVE DONE IT JUST LIKE HE DID WHEN JUDGE EATON ENTERED HIS SECOND ORDER. HE WROTE A LETTER TO THIS COURT. IT WAS TREATED AS NOTICE OF APPEAL AND HERE WE ARE TODAY. SO HE WAS ADVISED OF THOSE RIGHTS OR HE COULD ASK COLLATERAL COUNSEL --, ACTUALLY HE DID DISCHARGE COLLATERAL COUNSEL AND SAID HE WANTED TO BE HIS OWN COUNSEL. SO HE COULD HAVE SENT THE LETTER HIMSELF. AS HE LATER DID.
THE IMPORTANT THING IS, AND, CCR HAS BEEN VERY CANDID ABOUT IT, THERE IS NOTHING DEFECTIVE ABOUT THOSE UNDERLYING PROCEDURES. I WOULD BE FAR MORE CONCERNED IF THERE WAS A QUESTION OF HIS COMPETENCY OR HIS VOLUNTARY, VOLUNTARY NATURE OF HIS -- THAT HAS BEEN, SO IT'S ISSUE WHETHER HE SHOULD HAVE APPEALED UP TO HERE. IT WOULD HAVE RESULTED IN AN AFFIRMMENT THERE. IS NOTHING IN THIS RECORD THAT INDICATES ANYTHING BUT THAT, CORRECT?
CORRECT. YES. AND WITH THAT I'D ASK THIS COURT TO AFFIRM THE TRIAL COURT'S ORDER DENYING HIM THE RIGHT TO REINSTATE HIS 3850 POSTCONVICTION PROCEEDINGS. THANK YOU.
YES, MA'AM.
VERY BRIEFLY. [INAUDIBLE] MR. JAMES FEDERAL PETITION, HE HAD APPROXIMATELY SEVEN MONTHS WHERE HE COULD HAVE FILED IN FEDERAL COURT. I WOULD JUST SAY TO THIS COURT --
WHY SEVEN MONTHS?
IT HAS TO DO WITH THE LENGTH OF TIME YOU FILE YOUR ORIGINAL 3.850 MOTION. IT WAS FILED EARLY. YOU HAVE A YEAR TO DO THAT THE WAY THE RULES WORK. AND SO BASICALLY IT WAS FILED SEVEN MONTHS EARLY. HE SO HE WOULD HAVE ANOTHER SEVEN MONTHS WHERE HE COULD HAVE STILL GONE FORWARD AND GONE TO FEDERAL COURT. I'M NOT CONVINCED THAT ANYTHING THE COURT DOES AT THEY POINT HAS ANY BEARING AT ALL ON MY READING OF FEDERAL LAW IN TERMS OF WHERE HE STANDS THERE. THEY HAVE THEIR DEADLINE AND THEIR TOLLING AND MR. JAMES IS QUITE AWARE WHERE HE'S AT IN TERMS OF HIS FEDERAL POSITION. BUT I'M HERE TODAY, ASKING FOR -- IF YOU LOOK AT THE FLORIDA CONSTITUTION, SPECIFICALLY ARTICLE 1, SECTION 21, GIVEN THE ABSENT OF -- WHICH IS MORE THAN FEDERAL LAW PERMITS. AND, ONLY REMIND THE COURT FROM YOUR CASES, TAKE IT THIS COURT TO SAY IN OTHER SITUATIONS THAT POSTCONVICTION RULES ARE MERELY PROCEDURAL -- ADOPTED AND SIMPLIFY THE EFFECTIVE PETITION PROCESS AND CLAIMS. WOULD I ASK THIS COURT TO RECOGNIZE THE NEED TO HAVE FLEXIBILITY IN PROCEDURAL BAR IN MR. JAMES'S CASE AND, AGAIN, SPECIFICALLY NARROWLY ON THAT WAS PRESENTED FOR MR. JAMES. WITH THAT I THANK YOU.
OKAY. ALSO THE, THE COURT DOES ACKNOWLEDGE THAT IT WAS PURSUANT TO A MANDATE FROM THIS COURT THAT CCRC APPEARED ON BEHALF OF THIS DEFENDANT AND, THAT, WE ORDERED THAT YOU ALL APPEAR. SO WE THANK YOU FOR REPRESENTING. MAKES THE PROCESS WORK. AND, I HOPE THAT THIS ENTIRE PROCEEDING WAS, WAS NOT OVERLY OPPRESSIVE BUT AT THE SAME TIME, WE NEED TO TEST THESE THINGS AND YOU'RE PART OF THAT PROCESS. AND WE THANK BOTH THE STATE AND YOU, FOR BEING HERE TO DISCUSS THAT WITH US. AND IT HELPS US MAKE A BETTER DECISION. SO, WE DO UNDERSTAND THE TOTAL CIRCUMSTANCES AND WE THANK BOTH OF YOU FOR THAT. THE COURT WILL TAKE THIS CASE UNDER ADVISEMENT.