source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Thornal Lee ADAMS).
    1100191.
    Supreme Court of Alabama.
    Feb. 24, 2012.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for petitioner.
    Submitted on petitioner’s brief only.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case. Justice Wise also recused herself from consideration of this case when it was before the Court of Criminal Appeals.

   MURDOCK, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MAIN and WISE, JJ., recuse themselves.


author: KELLUM, Judge. WELCH, Presiding Judge,

text:
    Walter PATRICK v. STATE of Alabama.
    CR-09-1578.
    Court of Criminal Appeals of Alabama.
    March 25, 2011.
    Rehearing Denied May 13, 2011.
    Walter Patrick, pro se.
    Troy King and Luther Strange, attys. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Walter Patrick, appeals from the circuit court’s summary denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his June 2004 conviction for sodomy in the first degree and his resulting sentence of 30 years’ imprisonment. This court affirmed Patrick’s conviction and sentence by unpublished memorandum. See Patrick v. State, 954 So.2d 1141 (Ala.Crim.App.2005) (table). A certificate of judgment was issued on December 9, 2005.

On September 8, 2009, Patrick filed the instant Rule 32 petition in which he raised claims of ineffective assistance of trial and appellate counsel. In his petition, Patrick acknowledged that his petition was untimely pursuant to Rule 32.2(c), Ala. R.Crim. P.; however, Patrick alleged that “excusable neglect” outside his control resulted in the untimely filing his Rule 32 petition. (C. 15.) Specifically, Patrick alleged that his appellate counsel, Vader A1 Pennington, had informed Patrick and his wife that he would file a timely Rule 32 petition on Patrick’s behalf when, in fact, Pennington did not do so. Further, Patrick alleged that Pennington had agreed to forward a copy of the Rule 32 petition, once filed, to Patrick, which, Patrick alleged, he had not received. After some time had passed and Patrick did not receive a copy, Patrick initiated correspondence with Pennington, but he received no response. Patrick alleged that his wife subsequently attempted to initiate contact with Pennington. After making contact with Pennington, she was told that the Rule 32 petition had been filed in the circuit court. Still having no copy of the Rule 32 petition purportedly filed by Pennington in their possession, Patrick and his wife attempted again to contact Pennington. Patrick stated that he and his wife attempted to contact Pennington via certified mail and electronic mail. Patrick claimed that, after numerous failed attempts to establish contact, his wife contacted the Washington Circuit Court clerk’s office and was told that no Rule 32 petition had been filed on Patrick’s behalf. Thereafter, Patrick filed a formal complaint with the Alabama State Bar. Patrick attached to his Rule 32 petition, among other things, a June 23, 2009, letter addressed to Patrick from the Disciplinary Commission of the Alabama State Bar stating that it had determined that formal charges should be filed against Pennington.

At the same time he filed his September 8, 2009, Rule 32 petition, Patrick also filed a “Motion for Enlargement of Time” in which he requested that the circuit court enlarge the time limitation in Rule 32.2(c), Ala. R.Crim. P. In support of his request, Patrick reasserted the same facts that he had asserted in his Rule 32 petition. Patrick stated that he had been represented by Pennington, whom he had retained as his appellate counsel on direct appeal and who had declared that he would pursue postconviction relief on his behalf by filing a Rule 32 petition. Patrick further alleged that he and his wife had requested from Pennington on numerous occasions a copy of the filed Rule 32 petition and that Pennington was evasive, gave numerous excuses in an attempt to justify his delay in not providing a copy, and ultimately'failed to provide a copy of the Rule 32 petition to Patrick. Patrick stated that he believed his attorney’s representation that a Rule 32 had been timely filed on his behalf.

On September 15, 2009, the circuit court granted Patrick’s motion for enlargement of time and ordered that all Rule 32 motions be filed within 30 days. On September 30, 2009, the State filed a response in which it asserted that Patrick’s Rule 32 petition was time-barred under Rule 32.2(c), Ala. R.Crim. P. Without conducting a hearing, the circuit court entered an order on June 4, 2010, denying Patrick’s Rule 32 petition. In its order, the circuit court found that Patrick’s petition was time-barred under Rule 32.2(c). This appeal followed.

Patrick contends on appeal that the circuit court erred by not applying the doctrine of equitable tolling to his Rule 32 petition. Citing Ex parte Ward, 46 So.3d 888 (Ala.2007), Patrick contends that extraordinary circumstances beyond his control existed that were unavoidable even with the exercise of due diligence and, thus, that the doctrine of equitable tolling should apply to his particular case.

Before addressing the merits of Patrick’s claims on appeal, this court remanded the case by order on December 3, 2010, for the circuit court to clarify the confusion created by the circuit court’s entry of an order on September 15, 2009, granting an “enlargement of time” and to ascertain whether the circuit court’s September 15, 2009, order amounted to a grant of the requested relief under the doctrine of equitable tolling. On remand, the circuit court entered an order in which it stated that the court granted an enlargement of time for the purposes of judicial economy and that it “did not intend, nor does this Court find, that the doctrine of equitable tolling is applicable in the present case.” (Record on Return to Remand, C. 2.)

Notwithstanding the circuit court’s order, we must now determine the merits of Patrick’s claim that the doctrine of equitable tolling, as discussed in Ex parte Ward, supra, applies in his case. Rule 32.2(c), Ala. R.Crim. P., provides that “the court shall not entertain any petition” brought under certain specified grounds unless the petition was timely filed. In Ward, our Supreme Court addressed, as a matter of first impression, “whether the limitations period in Rule 32.2(c), Ala. R.Crim. P., is jurisdictional, and, if not, whether this Court should adopt the doctrine of equitable tolling.” 46 So.3d at 891 (footnote omitted). The Supreme Court held that the doctrine of equitable tolling applied and recognized equitable tolling as an exception to the limitations provision in Rule 32.2(c). 46 So.3d at 897. In so holding, our Supreme Court stated:

“Although we today hold that the limitations provision in Rule 32.2(c) is not a jurisdictional bar, it is nonetheless written in mandatory terms. Rule 32.2(c) provides that ‘the court shall not entertain any petition for relief from a conviction or sentence’ that is not timely. In prior cases in which it concluded that equitable tolling is unavailable, the Court of Criminal Appeals based its holding on the mandatory ‘shall’ language found in Rule 32.2(c) and the fact that no Alabama court has ever held that there is an exception to the limitations period. See, e.g., Arthur v. State, 820 So.2d 886, 889-90 (Ala.Crim.App. 2001) (holding that there is no exception to Rule 32.2(c) and that the limitations period is jurisdictional). However, this Court has never held that equitable tolling is not available in a case such as this one. Moreover, because Rule 32.2(c) does not establish a jurisdictional bar, the trial court has the power to hear an untimely petition because the running of the limitations period would ‘not divest the circuit court of the power to try the case.’ Ex parte Seymour, 946 So.2d 536, 539 (Ala.2006).
“We hold that equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence. We recognize that ‘[i]n a capital case such as this, the consequences of error are terminal, and we therefore pay particular attention to whether principles of “equity would make the rigid application of a limitation period unfair” and whether the petitioner has “exercised reasonable diligence in investigating and bringing [the] claims.” ’ Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001) (quoting Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998)). Nevertheless, ‘the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.’ United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).
“Finally, we must address the petitioner’s burden of demonstrating that he or she is entitled to the relief afforded by the doctrine of equitable tolling. Rule 32.7(d), Ala. R.Crim. P., allows the trial court to summarily dismiss a Rule 32 petition that, on its face, is precluded or fails to state a claim, and we have held that the trial court may properly summarily dismiss such a petition without waiting for a response to the petition from the State. Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992) (‘ “Where a simple reading of a petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.” ’)• Although the Rules of Criminal Procedure initially place the burden on the State to plead any ground of preclusion, the ultimate burden is on the petitioner to disprove that a ground of preclusion applies. Rule 32.3, Ala. R.Crim. P.
“Because the limitations provision is mandatory and applies in all but the most extraordinary of circumstances, when a petition is time-barred on its face the petitioner bears the burden of demonstrating in his petition that there are such extraordinary circumstances justifying the application of the doctrine of equitable tolling. See Spitsyn v. Moore, 345 F.3d at 799 (holding that the burden is on the petitioner for the writ of habeas corpus to show that the exclusion applies and that the ‘extraordinary circumstances’ alleged, rather than a lack of diligence on his part, were the proximate cause of the untimeliness); Drew v. Department of Corr., 297 F.3d 1278, 1286 (11th Cir.2002) (‘The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.’). Thus, when a Rule 32 petition is time-barred on its face, the petition must establish entitlement to the remedy afforded by the doctrine of equitable tolling. A petition that does not assert equitable tolling, or that asserts it but fails to state any principle of law or any fact that would entitle the petitioner to the equitable tolling of the applicable limitations provision, may be summarily dismissed without a hearing. Rule 32.7(d), Ala. R.Crim. P.”

Ex parte Ward, 46 So.3d at 896-98.

In the instant case, Patrick asserted in his Rule 32 petition that the doctrine of equitable tolling should apply in his case. Patrick alleged that his appellate counsel, Pennington, had advised him that he would file a Rule 32 petition on Patrick’s behalf in the Washington Circuit Court and that he would send Patrick a copy of the Rule 32 petition once it had been filed. Patrick alleged that he never received a copy of the Rule 32 petition. Patrick stated that he tried, to no avail, to contact Pennington to inquire about the status of his Rule 32 petition. Patrick further represented that his wife, who attempted to contact Pennington after her husband’s failed attempts, was able to contact Pennington only to be falsely informed that a Rule 32 petition had been filed on Patrick’s behalf. Patrick alleged that after he did not receive a copy of the Rule 32 petition as requested, he and his wife attempted to contact Pennington using various forms of communication. Finally, Patrick’s wife contacted the Washington Circuit Court clerk’s office and learned that no Rule 32 petition had been filed on Patrick’s behalf. Patrick subsequently filed a formal complaint with Alabama State Bar. The State Bar concluded in a letter attached as an exhibit to Patrick’s Rule 32 petition that formal charges should be filed against Pennington.

The facts as alleged by Patrick in his Rule 32 petition and “Motion for Enlargement” demonstrate “extraordinary circumstances justifying the application of the doctrine of equitable tolling.” Ward, 46 So.3d at 897. Pennington told Patrick that he would file a Rule 32 petition in the circuit court; however, Pennington never filed a Rule 32 petition. Patrick’s repeated attempts to contact Pennington proved futile, and, on the one occasion his wife was able to communicate with Pennington, Pennington falsely claimed that he had filed a Rule 32 petition in the circuit court. Even after receiving this false information, Patrick and his wife continued to try and contact Pennington when they did not receive a copy of the Rule 32 petition. Patrick’s failure to file a timely Rule 32 petition was unavoidable even with the exercise of due diligence, given Pennington’s misrepresentations to Patrick and his wife and Pennington’s evasive behavior. See Ex parte Ward, 46 So.3d at 897.

Based on the foregoing, Patrick adequately demonstrated in his Rule 32 petition that he was entitled to tolling of the applicable limitations provision. Accordingly, the judgment of the circuit court summarily denying Patrick’s Rule 32 petition on the basis that it was time-barred under Rule 32.2(c) is reversed. This cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

BURKE and JOINER, JJ., concur. WELCH, P.J., dissents, with opinion, joined by WINDOM, J.

WELCH, Presiding Judge,

dissenting.

I respectfully dissent. I believe that the majority has erred by determining that pleadings alone are sufficient to entitle Patrick to the relief afforded by the extraordinary remedy of equitable tolling. Moreover, I do not believe that the circuit court’s assertion that it “did not intend, nor does this Court find, that the doctrine of equitable tolling is applicable in the present case” in any way suffices as a factual determination as to this issue. (Record on Return to Remand, C. 2.) This order was in response to the order of remand issued by this court in which we ordered the circuit court to clarify the September 15, 2009, order written in response to Patrick’s “Motion for an Enlargement of Time.” That order stated:

“Motion for enlargement of time granted. All R. 32 motions to be filed w/i [within] 30 days. 15 Sept 09.”

This order was confusing because it was written in response a motion that requested that the circuit court allow equitable tolling.

As a result, this court remanded the case with the following direction:

“On appeal, Patrick contends, among other things, that the circuit court abused its discretion by not applying the doctrine of equitable tolling to his Rule 32 petition. In its response, the State notes confusion created in the record regarding whether the circuit court’s September 15, 2009, order granting Patrick an ‘enlargement of time’ amounted to the grant of relief under the doctrine of equitable tolling. See Ex parte Ward, 46 So.3d 888 (Ala.2007); Davenport v. State, 987 So.2d 652 (Ala.Crim. App.2007). In order to address the issues presented in Patrick’s appeal, this Court must ascertain whether the circuit court granted or denied Patrick relief under the doctrine of equitable tolling. Because the circuit court’s September 15, 2009, order is unclear in that regard, this case is hereby REMANDED to the Washington Circuit Court for that court to clarify its September 15, 2009, order granting an ‘enlargement of time.’ ”

(Alabama Court of Criminal Appeals Order of Remand dated December 3, 2010.)

An examination of the record reveals that it is devoid of evidentiary material and consists solely of pleadings. It is evident that the circuit court’s order on remand is not a ruling on the factual matter whether Patrick was in fact entitled to equitable tolling but rather was merely a statement that the previous order of the court, which was written in response to Patrick’s motion for enlargement of time, was intended to allow Patrick to amend his petition.

Therefore, I disagree with the majority’s decision to reverse the judgment of the circuit court and to remand the cause to the circuit court with directions to afford Patrick a hearing at which he may prove the claim raised in his petition.

I believe that the assertions set forth in the majority’s opinion, if true, entitle Patrick to the equitable tolling of the limitations period in Rule 32.2(c); however, they are merely allegations. Patrick has not proven that the facts he alleges supporting the application of equitable tolling are in fact true. In an evidentiary hearing, the circuit court may determine that Patrick did not set forth the facts or may discover other facts adduced by the State that cast doubt upon Patrick’s claim that he is entitled to relief under the doctrine of equitable tolling. Patrick is entitled to an opportunity to prove these allegations. See Martinez v. State, 75 So.3d 622, 624 (Ala.Crim.App.2010) (“The circuit court is directed to provide Martinez an opportunity to prove on the merits whether he is entitled to an equitable tolling of the limitations period in Rule 32. The circuit court may conduct an evidentiary hearing, or it may take evidence in the form of affidavits, written interrogatories, or depositions. If, upon consideration of the equitable tolling issue, the circuit court determines that Martinez is entitled to have his out-of-time Rule 32 petition accepted, the circuit court should address all the claims contained in Martinez’s petition as though timely filed.”).

For guidance in making its determination, the circuit court may look to Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (concerning the right to equitable tolling of the one-year limitations period for filing federal habeas relief discussing gross attorney negligence and the petitioner’s due diligence).

For the above reasons, I respectfully dissent.

WINDOM, J., concurs.

      . In Ex parte Ward, Ward's family had hired Pennington, the same attorney whose performance is at issue in the instant case. Pennington informed Ward that he would file a timely Rule 32 petition on his behalf. 46 So.3d at 890. Instead, Pennington filed a writ of habeas corpus in the United States District Court. Ward alleged that Pennington deceived him by filing a petition for a writ of habeas corpus when he was led to believe that Pennington was going to file a Rule 32 petition. 46 So.3d at 890.


author: SHAW, Justice.

text:
    Ex parte State of Alabama. (In re Walter PATRICK v. STATE of Alabama).
    1100964.
    Supreme Court of Alabama.
    April 6, 2012.

      Luther Strange, atty. gen., John Nei-man, deputy atty. gen., and J. Thomas Leverette, asst. atty. gen., for petitioner.
    Submitted on petitioner’s brief only.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   SHAW, Justice.

The writ of certiorari is quashed.

In quashing the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

MALONE, C.J., and WOODALL, STUART, and PARKER, JJ., concur.

MAIN and WISE, JJ., recuse themselves.


author: JOINER, Judge.

text:
    Alvin Lamar WORTHY v. STATE of Alabama.
    CR-10-0044.
    Court of Criminal Appeals of Alabama.
    April 29, 2011.
    Rehearing Denied July 15, 2011.
    Certiorari Denied April 6, 2012 Alabama Supreme Court 1101229.

      Matthew Bruce Alfreds, Montgomery, for appellant.
    Troy King and Luther Strange, attys. gen., and James H. Rutter III, asst. atty. gen., for appellee.
   JOINER, Judge.

Alvin Lamar Worthy pleaded guilty to trafficking in marijuana in violation of § 13A-12-231, Ala.Code 1975. He was sentenced to 15 years’ imprisonment and was ordered to pay a $25,000 fine, a $2,000 drug-demand-reduction assessment, a $100 forensic-trust assessment, a $50 crime victims compensation assessment, and court costs. Worthy reserved the right to appeal the trial court’s denial of his motion to suppress the discovery of the marijuana that resulted in his arrest. This appeal ensued.

At Worthy’s suppression hearing, Corporal J.J. Allen and Officer Jacob Smither-man of the Montgomery Police Department testified that on February 6, 2010, they were patrolling a stretch of Interstate 85 in Montgomery County when they observed a vehicle with a “tag applied for” license plate traveling on the highway. Both Allen and Smitherman were part of the police department’s highway-safety team and were trained in traffic interdiction and observing indicators of criminal activity in roadside interviews. Alen drove his patrol car out of the median and pulled the vehicle over without incident. Worthy was the driver of the vehicle. A-len approached the passenger side of the vehicle and obtained Worthy’s driver’s license and a rental agreement for the vehicle.

According to Alen, the passenger in the vehicle appeared nervous and would not look at Alen as he talked. Worthy stated that he was traveling from Atlanta, Georgia. The passenger later stated that he had been asleep for most of the trip but that he and Worthy had been traveling from Augusta, Georgia. Alen asked Worthy to step out of his vehicle and wait in front of the patrol car while he ran a warrant check. Ater Worthy stepped out of his rental vehicle, Smitherman asked Worthy if he had any prior arrests. Worthy responded that he had previously been arrested on weapons charges.

Alen returned to his patrol car and ran a criminal-history check that found that Worthy had previously been arrested on weapons and drug charges. While in the patrol car, Alen inspected the vehicle-rental agreement, which revealed that the vehicle was three days past due to Enterprise Rent-a-Car.

While Alen was in the patrol car, Smith-erman questioned Worthy on the identity of the passenger in his rental vehicle. Worthy stated that the passenger was his cousin but was unable to tell Smitherman the passenger’s last name. According to Smitherman, Worthy’s hands shook, and he repeatedly touched his hands to his face as Smitherman questioned him on his prior criminal history and the identity of his passenger.

After Allen completed the criminal-history check, Smitherman explained the purpose of the highway-safety team to Worthy and asked him a series of questions regarding the trafficking of illegal contraband. Smitherman testified that when he asked Worthy if there was any marijuana in the vehicle, Worthy briefly paused and took a short breath before stating no, which was different from the manner in which he had answered the other questions put to him.

Smitherman then asked Worthy for permission to search his rental vehicle. After Worthy failed to consent to a search, a K-9 unit was called to the scene and performed a free-air search of the vehicle. After the dog alerted at the driver’s side of the trunk, the trunk was searched and approximately five pounds of marijuana was discovered.

The sole issue Worthy raises on appeal is the legality of the search resulting in the discovery of the evidence forming the basis of his conviction.

“The trial court’s ultimate legal conclusion on a motion to suppress as to whether a given set of facts constitutes reasonable suspicion of probable cause is reviewed de novo on appeal.” State v. Smith, 785 So.2d 1169, 1173 (Ala.Crim. App.2000) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). “‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate court] will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ ” State v. Hill, 690 So.2d 1201, 1203 (Ala.1996) (quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980)). Because only the arresting officers testified at Worthy’s suppression hearing, and the evidence was thus undisputed, the decision of the trial court should be reviewed de novo. Hill, supra.

“ ‘Whether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.” Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991).’ ”

Woods v. State, 695 So.2d 636, 640 (Ala. Crim.App.1996). “Sufficient probability, not certainty ..., is the touchstone under the Fourth Amendment.” Allen v. State, 689 So.2d 212, 216 (Ala.Crim.App.1995).

“ ‘ “This court has long held that war-rantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chevere v. State, 607 So.2d 361, 368 (Ala.Cr.App. 1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985); Chevere, supra, 607 So.2d at 368.” ’
“State v. Mitchell, 722 So.2d 814 (Ala.Cr. App.1998), quoting Rokitski v. State, 715 So.2d 859 (Ala.Cr.App.1997).”

State v. Otwell, 733 So.2d 950, 952 (Ala. Crim.App.1999). Another recognized exception to the warrant requirement is the “automobile exception,” which allows law enforcement to search an automobile based on probable cause alone. Harris v. State, 948 So.2d 583 (Ala.Crim.App.2006).

“ ‘Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a “reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. See generally Caffie v. State, 516 So.2d 822, 825-26 (Ala.Crim.App.1986), [affirmed], 516 So.2d 831 (Ala.1987).” Lamar v. State, 578 So.2d 1382, 1385 (Ala.Crim.App.), cert. denied, 596 So.2d 659 (Ala.1991). “Reasonable suspicion is a less demanding standard than probable cause,” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), requiring only that the detaining officers “have a particularized and objective basis for suspecting the person detained of criminal activity,” Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).’ ”

State v. Davis, 7 So.3d 468, 470 (Ala.Crim. App.2008).

In the present case, “although the appellant correctly notes that none of these factors alone would have justified searching his car, we must look at the totality of the circumstances when determining whether reasonable suspicion exists.” Owen v. State, 726 So.2d 745, 747 (Ala. Crim.App.1998).

This court has previously stated that “unless coupled with additional and objectively suspicious factors, nervousness in the presence of a police officer and/or failure to make eye contact do not establish reasonable suspicion to believe that the person is engaged in criminal activity.” Peters v. State, 859 So.2d 451, 454 (Ala. Crim.App.2003). However, “[w]hile we have held that nervousness alone may not be sufficient to constitute reasonable suspicion, see State v. Washington, 623 So.2d 392 (Ala.Crim.App.1993), it is a ‘pertinent factor.’ ” Camp v. State, 983 So.2d 1141, 1146 (Ala.Crim.App.2007).

“This Court has repeatedly held that “‘nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” ’ State v. McPherson, 892 So.2d 448, 454 (Ala.Crim.App.2004), quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570, (2000). See also Smith v. State, 19 So.3d 912 (Ala.Crim.App.2009); W.D.H. v. State, 16 So.3d 121 (Ala.Crim.App. 2008); and Camp v. State, 983 So.2d 1141 (Ala.Crim.App.2007) (all quoting Wardlow to support the same proposition).”

State v. Jemison, 66 So.3d 832 (Ala.Crim. App.2010).

The nervousness Allen and Smith-erman detected from Worthy and his passenger is by itself insufficient to create a reasonable suspicion justifying further detention. Nonetheless, this nervous behavior combined with Worthy’s evasiveness regarding the identity of his passenger, the conflicting stories by Worthy and his passenger regarding the starting point of their trip, Worthy’s failure to disclose his prior marijuana arrest, and the fact that the rental car Worthy was driving was three days overdue combine to create a reasonable suspicion of concealment of criminal activity.

In Peters, this Court stated that the mere fact that a driver and his passenger gave different travel destinations does not establish reasonable suspicion to detain. Peters, 859 So.2d at 456. Differing accounts of the source of a trip and a driver’s inability to identify his passenger’s last name, however, are pertinent factors contributing to a reasonable suspicion of involvement in criminal activity. See United States v. Hardy, 855 F.2d 758, 758 (11th Cir.1988).

A defendant’s prior arrest record alone is not a sufficiently “particularized and objective” basis to suspect criminal activity and to detain a defendant further. Smith v. State, 953 So.2d 445, 449 (Ala.Crim.App.2006). A defendant’s false statements concerning his pri- or arrest record, however, is a relevant factor for forming the reasonable suspicion necessary to detain. Owen, 726 So.2d at 747 (noting that the defendant “initially falsely stated that he had never been arrested” and that this, and other factors, “were relevant to the question of whether the appellant was hiding something illegal in his car and viewed along with the appellant’s extreme nervousness gave [the detaining officer] a basis to reasonably suspect that the appellant was engaged in criminal activity.”). Worthy stated that he had previously been arrested only on weapons charges and failed to disclose his prior arrest related to marijuana possession.

Finally, Worthy’s rental car was three days overdue. Delinquency in returning a rental car, particularly when combined with inconsistent travel descriptions, contributes to a reasonable suspicion of concealment of criminal activity. See United States v. Sanchez, 408 F.Supp.2d 1255, 1259 (S.D.Fla.2005), aff'd (No. 06-12244, Nov. 14, 2007) (11th Cir.) (not selected for publication in the Federal Reporter) (nervousness, inconsistent statements by driver and passenger regarding source of the trip, and one-day expired rental agreement raised reasonable suspicion justifying investigative stop); United States v. Huynh, (No. 07-8021, Feb. 8, 2008) (10th Cir.) (not selected for publication in the Federal Reporter) (affirming conviction based on four-day overdue rental vehicle, discrepancy in stated relationship between driver and passenger, nervousness, and inconsistent travel plans as part of the totality of the circumstances justifying reasonable suspicion); United States v. Branch, 537 F.3d 582, 588 (6th Cir.2008) (listing nervousness and several weeks overdue rental car as part of the totality of factors creating reasonable suspicion).

Based on the totality of the circumstances, Corporal Allen and Officer Smitherman formed a reasonable suspicion that Worthy was engaged in criminal activity and were justified in detaining him until a search could be performed by the K-9 unit. The alert by the drug dog created probable cause to search Worthy’s vehicle, resulting in the discovery of the marijuana forming the basis of his guilty plea and conviction. State v. Montgomery, 968 So.2d 543, 551 (Ala.Crim.App.2006) (“[A]n alert by a trained drug-sniffing dog provides probable cause to search without a warrant.”). Accordingly, the trial court did not err in denying Worthy’s motion to suppress.

The judgment of the trial court is affirmed.

AFFIRMED

WELCH, P.J., and WINDOM, KELLUM, and BURKE, JJ., concur.

      . The record does not identify the passenger.

      . On cross-examination, Officer Smitherman was asked the following:
      "Q. [DEFENSE COUNSEL:] Out of that video we just watched, you have reviewed it, what would you say was nervous in his behavior?
      "A. [OFFICER SMITHERMAN:] Touching his face. He kept going back touching his face.
      "Q. Just touching his face?
      "A. And his hands were shaking a little bit.
      "Q. This was February, right?
      “A. Sir?
      “Q. February?
      "A. Yes, sir.
      “Q. You won't dispute it was cold?
      “A. No, sir.
      "Q. You had your jacket on?
      "A. Yes, sir.
      "Q. You shake maybe a little when you are cold?
      "A. You can, yes, sir.”
      (R. 78-9.)

      . According to Officer Smitherman, Worthy never gave a yes or no answer, but he did not consent to a search.


author: PER CURIAM.

text:
    David Alan GORE, Appellant, v. STATE of Florida, Appellee.
    No. SC12-537.
    Supreme Court of Florida.
    April 9, 2012.

      Martin J. McClain, Linda McDermott and John Paul Abatecola of McClain and McDermott, P.A., Estero, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia A. Terenzio and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

David Alan Gore, a prisoner under sentence of death, appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On February 28, 2012, the Governor signed a death warrant for Gore, with the execution scheduled for April 12, 2012. Gore subsequently sought postconviction relief in the circuit court, presenting five claims. On March 15, 2012, the circuit court entered an order that summarily denied relief on all claims. For the reasons discussed below, we affirm the order of the circuit court. We hold that the recent decision from the United States Supreme Court in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), does not provide Gore with any basis for relief in this Court.

FACTS AND PROCEDURAL HISTORY

On March 15, 1984, a jury found David Alan Gore guilty of the first-degree murder of Lynn Elliott. The facts of the murder were stated in the opinion of this Court affirming the judgment and sentence of death on Gore’s initial direct appeal:

Gore and his cousin picked up fourteen-year-old [R.M.] and seventeen-year-old Lynn Elliott who were hitchhiking to the beach. After the glove compartment in the pickup truck fell open and a gun became visible, Gore took the gun and held it to [R.M.’s] head. He grabbed the two girls’ wrists and held them together. Gore then said that they should take the girls to Gore’s home. He told the girls that if they said or did anything, they would be killed. When they arrived at his home, the girls were handcuffed and taken into a bedroom. The girls then were separated, and Lynn was tied up while [R.M.] was handcuffed. Gore cut [R.M.’s] clothes off of her and sexually assaulted her on three separate occasions. [R.M.] testified that she heard noises in the other room after Gore had left her. She heard Gore tell Lynn to shut up or he would kill her. Gore also told [R.M.] to be quiet or he would slit her throat and that he would do it anyway. Gore then put [R.M.] in the closet, and, after he left, she heard two or three shots. Gore then came back into the room and put [R.M.] in the attic where she stayed until rescued by a police officer.
Michael Rock, a fifteen-year-old boy, testified that on July 26, 1983, while riding his bicycle in the area of Gore’s home, he heard screaming and observed a naked girl running down the driveway being chased by Gore who was also naked. He saw Gore catch up to her, drag her back to a palm tree, and shoot her twice in the head. Rock went home and told his mother, and she called the police. The police arrived and surrounded Gore’s home. Lynn’s body was found in the trunk of the car in the driveway. Her arms and legs had been tightly bound with rope. She had multiple abrasions on her body consistent with falling and being dragged. The gun used to kill her was found in Gore’s home.
Gore was indicted for the first-degree, premeditated murder of Lynn Elliott, for the kidnapping of Lynn Elliott, for the kidnapping of [R.M.], and for three counts of sexual battery of [R.M.]. He was found guilty of all six counts. After a jury recommendation of death, the trial court imposed the death sentence for the first-degree murder of Lynn Elliott and imposed life sentences for the other crimes.

Gore v. State, 475 So.2d 1205, 1206 (Fla. 1985) (Gore I), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986).

On direct appeal, this Court affirmed the convictions and death sentence. See id. The Court subsequently affirmed the denial of- Gore’s initial rule 3.850 motion for postconviction relief and denied his petition for writ of habeas corpus. See Gore v. Dugger, 532 So.2d 1048, 1051 (Fla.1988) (Gore II). However, the United States District Court for the Middle District of Florida granted Gore’s federal petition for writ of habeas corpus and vacated his death sentence becaúse the trial court had precluded Gore from presenting nonstatu-tory mitigating evidence in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Gore v. Dugger, 763 F.Supp. 1110, 1114, 1116 (M.D.Fla.1989) (Gore III), aff'd, 933 F.2d 904, 905 (11th Cir.1991) (Gore IV), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). After a resentencing proceeding, a jury unanimously recommended death, and the trial court followed that recommendation. . On appeal, this Court affirmed the sentence. See Gore v. State, 706 So.2d 1328, 1336 (Fla.1997) (Gore V), cert. denied, 525 U.S. 892, 119 S.Ct. 212, 142 L.Ed.2d 174 (1998). This Court subsequently affirmed a postconvietion court order that denied Gore relief under Florida Rule of Criminal Procedure 3.850 and also denied a petition for writ of habeas corpus filed by Gore. See Gore v. State, 964 So.2d 1257, 1277-78 (Fla.2007) (Gore VI), cert. denied, 552 U.S. 1197, 128 S.Ct. 1250, 170 L.Ed.2d 89 (2008). On April 11, 2008, the United States District Court for the Southern District of Florida denied a second federal habeas petition filed by Gore. See Gore v. McDonough, No. 07-22637-CIV-LENARD/TORRES (S.D. Fla. order filed Apr. 11, 2008). The United States Court of Appeals for the Eleventh Judicial Circuit subsequently denied Gore a “certificate of appealability,” see Gore v. Secretary, Department of Corrections, No. 08-14060-P (11th Cir. order filed Sept. 9, 2008), and the United States Supreme Court denied certiorari review, see Gore v. McNeil, — U.S. -, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009).

Gore raised the following claims in his successive postconviction motion filed after issuance' of the warrant:

1. The clemency “update” process in this case was applied in an arbitrary and capricious manner in violation of the Eighth and Fourteenth Amendments and corresponding provisions of the Florida Constitution.
2. Florida’s capital sentencing scheme is unconstitutional under the Eighth and Fourteenth Amendments because of the arbitrary and standard-less power given to the Governor to sign death warrants.
3. Newly discovered evidence establishes that Gore was denied the effective assistance of counsel during his resentencing proceedings.
4. Gore was denied the effective assistance of counsel during his postcon-viction proceedings.
5. Given the inordinate length of time that Gore has spent on death row, adding his execution to that punishment would constitute cruel and unusual punishment.

With regard to the first claim, Gore stated that his clemency “update” process was applied in an arbitrary and capricious manner in violation of the United States and Florida Constitutions. Although Gore first received a clemency proceeding in 1987, the clemency proceeding to which Gore’s claim is directed occurred in 2012. Subsequent to the 1987 proceeding, Gore’s death sentence was overturned due to the refusal of the trial court to allow the presentation of mitigation evidence. Gore contends that the clemency board’s 1987 investigation was “hardly accurate” because it was devoid of mitigating evidence presented during his 1992 resentencing proceeding. Gore stated that he learned of the 2012 clemency proceedings only after his death warrant was signed and, therefore, was unable to present information on his own behalf. Gore contends that the clemency process was one-sided because it included input from only the State, the victims, and the media, and therein denied his right to due process.

In his second claim, Gore alleged that the Governor of Florida wields an arbitrary and standardless power to sign death warrants, thereby rendering the Florida capital sentencing scheme unconstitutional. Gore notes that there are at least forty-two other death row inmates who are currently eligible for a death warrant, and the only reason he was selected was because a newspaper editorial board expressed an interest in the execution of Gore.

In his third claim, Gore alleges that newly discovered evidence establishes that he was denied the effective assistance of counsel during his resentencing. Following the Eleventh Circuit Court of Appeals’ affirmance in May 1991 of the federal district court order granting Gore relief from his death sentence, Robert Udell was appointed to represent Gore during his re-sentencing proceedings, which ultimately resulted in a unanimous jury recommendation of death. During subsequent postcon-viction proceedings, Gore alleged that his resentencing counsel were ineffective. During the 2003 evidentiary hearing, Udell testified with regard to his representation of Gore, which included a discussion of why certain decisions were made. Thereafter, this Court affirmed the denial of postconviction relief and concluded that penalty phase counsel were not deficient.

Gore asserted that, unknown to postcon-viction counsel, the postconviction court, and this Court, Udell was not a credible witness. In October 2009, Udell was disbarred from the practice of law by this Court. Among other admissions, Udell admitted to submitting several affidavits and filing several motions for fees that contained false information about services performed for clients between 2005 and 2008. According to Gore, Udell’s disbarment and his failure to be truthful indicate he is unable to be honest, even under oath. Resentencing co-counsel Jerome “Jay” Nickerson, who did not testify during the postconviction proceedings, informed current defense counsel that during the resen-tencing, Udell was responsible for preparing all mitigation other than mental health mitigation and rebuttal to the evidence in aggravation presented by the State. However, when Nickerson arrived just before the penalty phase, he discovered that Udell had done nothing to prepare for the resentencing. Udell had not spoken to, or met with, the mitigation witnesses, and he had not prepared for any of the evidence that the State intended to present. Gore contended that because this Court relied so heavily on testimony from Udell during the postconviction evidentiary hearing, the prejudice analysis that this Court conducted with regard to Gore’s ineffectiveness claims was flawed. Gore requested an evidentiary hearing so he could establish that Udell’s penalty phase representation was deficient.

Fourth, Gore alleged that he was denied the effective assistance of counsel during his postconviction proceedings. Resentencing co-counsel Nickerson did not testify during the evidentiary hearing because collateral counsel claimed that he was unable to locate Nickerson. This Court stated that Gore’s failure to produce Nickerson at the hearing contributed to the failure of Gore to satisfy the legal burden of an ineffective assistance of counsel claim. In his successive motion, Gore contended that the failure of post-conviction counsel to produce Nickerson during the collateral proceedings constituted deficient performance that prejudiced Gore. Because Gore’s first opportunity to obtain review of resentencing counsel’s effectiveness was during his postconviction proceeding, Gore asserted that collateral counsel owed him the duty of effective representation.

In his final claim, Gore contended that, given the length of time he has already spent on death row, adding execution to that punishment would constitute cruel and unusual punishment in violation of the United States Constitution and binding norms of international law.

The circuit court held a hearing on the successive motion on March 13, 2012. After hearing legal arguments, and considering the motion and the State’s response, the circuit court entered an order on March 15, 2012, summarily denying the successive motion. On March 26, 2012, Gore filed his initial brief with this Court raising the same issues that were raised in his successive motion.

ANALYSIS

Standard of Review

In Walton v. State, 3 So.3d 1000 (Fla.2009), this Court articulated the standard of review of a summarily denied post-conviction claim:

A successive rule 3.851 motion may be denied without an evidentiary hearing if the records of the case conclusively show that the movant is entitled to no relief. See Fla. R.Crim. P. 3.851(f)(5)(B). This Court reviews the circuit court’s decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the mov-ant is entitled to no relief.

Id. at 1005. Because the circuit court summarily denied each of Gore’s claims, the parameters articulated in Walton are applicable to each issue presented by Gore.

Newly Discovered Evidence

Gore contends that the 2009 disbarment of his penalty phase counsel, Robert Udell, constitutes newly discovered evidence, and that the circuit court erred when it denied this claim without an evidentiary hearing. We disagree.

To obtain relief on the basis of newly discovered evidence, a defendant must satisfy a two-prong test:

First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” [Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II) ]. Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). “If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.” Marek v. State, 14 So.3d 985, 990 (Fla. 2009) (citing Jones v. State, 591 So.2d 911, 915 (Fla.1991) (Jones I)).

Johnston v. State, 27 So.3d 11, 18-19 (Fla. 2010). We conclude that regardless of whether Gore can establish due diligence in discovering the disbarment of Udell, he cannot establish that the disbarment “would probably yield a less severe sentence.” Id.

As a preliminary matter, Gore fails to demonstrate how the disbarment of Udell in 2009 for conduct that occurred from 2005 through 2008 establishes that he was ineffective during the resentencing trial in 1992. The asserted attorney misconduct that occurred more than a decade after a resentencing proceeding, and had no relation whatsoever to a particular defendant, is not relevant to the representation of this defendant more than a decade before. Therefore, we conclude that Udell’s 2009 disbarment, which occurred seventeen years after the resentencing proceeding, is not the type of evidence that, if considered by a jury on retrial, would probably “yield a less severe sentence.” Id.; see also Wyatt v. State, 71 So.3d 86, 100 n. 14 (Fla.2011) (noting that not all new evidence “is the equivalent of newly discovered evidence for the purposes of establishing a postconviction claim”).

Furthermore, this Court has previously rejected a claim that Udell’s disbarment constitutes newly discovered evidence for purposes of impeaching his postconviction evidentiary hearing testimony. In Kearse v. State, No. SC11-244 (Fla. Oct. 21, 2011) (75 So.3d 1244) (table report), a capital defendant Sled a successive rule 3.851 motion. Kearse argued that his initial postconviction motion alleging ineffective assistance of penalty phase counsel should be reexamined in light of newly discovered evidence that his trial counsel, Robert Udell, submitted false fee affidavits during the period of 2005 through 2008 and was disbarred for this conduct in October 2009. The circuit court summarily denied Kearse’s successive motion.

On appeal, this Court unanimously affirmed the trial court’s denial in a brief order that provided:

Billy Leon Kearse filed a second successive postconviction motion in which he asserted that his prior claim of ineffective assistance of counsel should be reexamined in light of newly discovered evidence about his trial counsel. The postconviction court summarily denied the motion. We hereby affirm the post-conviction court’s summary denial. Because Kearse did not present any evidence that would probably result in a finding that trial counsel was ineffective, the postconviction court properly denied his newly discovered evidence claim as legally insufficient.

Kearse v. State, No. SC11-244, order at 1. We similarly conclude that the use of Udell’s disbarment to impeach his credibility during Gore’s initial postconviction proceeding after resentencing would not produce a different result with regard to the claim that penalty phase counsel were ineffective. This Court, in affirming the denial of the rule 3.850 motion in Gore VI, held that the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), had not been satisfied.

In his appeal from the circuit court’s denial of his initial motion for postconviction relief after resentencing, Gore asserted that his penalty phase counsel were ineffective for: (1) calling witness Robert Stone, who testified with regard to parole possibilities; (2) failing to provide an expanded instruction on the cold, calculated, and premeditated aggravating factor (CCP); (3) failing to discover and expose to the jury on cross-examination that the State’s mental health expert charged more than $27,000 for his testimony; and (4) failing to discover and present witnesses who could testify to the mitigating circumstance that Gore suffered from neurologic disorders due to exposure to toxic chemicals used in citrus agriculture. In our decision affirming the denial of relief, this Court found that co-counsel Nickerson— not Udell — served as lead counsel during the resentencing and made the majority of strategic decisions. Most of the conclusions reached by this Coui't addressed conduct by Nickerson, and Udell’s testimony during the evidentiary hearing with regard to the decisions of Nickerson was tangential at best.

For example, with regard to the calling of witness Stone, we noted in Gore VI that the decision to do so was “made solely by Nickerson,” and this Court held that Nick-erson had a strategic reason for his actions, despite Udell’s testimony to the contrary that “we all kn[e]w that Mr. Stone was not going to be friendly to David Alan Gore in his testimony.” 964 So.2d at 1269. Further, we concluded that even if Nicker-son was deficient, “there was no prejudice.” Id. at 1270. The testimony of Udell played little to no role in our determination of this issue. With regard to this claim, we stated “it appears that Gore’s counsel should have located and presented evidence from Nickerson, as his testimony would have directly revealed his strategies in calling Stone.” Id. (emphasis supplied).

With regard to the failure to propose an expanded CCP instruction, we concluded that penalty phase counsel were not deficient because “Gore’s counsel was not even required to initially object to this standard CCP instruction as this jury instruction was considered proper [at the time of Gore’s resentencing proceedings].” Id. at 1275. We then held that Gore had failed to establish prejudice, concluding that “the jury would have returned a finding of CCP due to the overwhelming evidence of this aggravator.” Id. at 1276.

With regard to the failure to expose the State mental health expert’s fee on cross-examination, we concluded that Gore had not met his burden of establishing ineffectiveness because “Udell cannot provide evidence about what Nickerson may have been thinking in his decisions, and Nicker-son was not produced as a postconviction witness.” Id. at 1271. We then concluded that “Nickerson’s decision to not impeach through questions targeted at financial bias can certainly be viewed as ‘sound trial strategy.’ ” Id. We also held that even if deficiency was established, Gore failed to demonstrate prejudice because the expert’s “testimony was not essential to the trial court finding the existence of no statutory mitigators on resentencing.” Id. at 1272. The opinion provided:

For example, Gore’s argument that he was intoxicated by alcohol at the time of the incident was refuted by numerous other individuals, rather than just [the State expert]. At the resentencing, [R.M.] testified that Gore did not smell of alcohol, did not slur his words, did not have bloodshot eyes, and was in complete control. Eyewitness Michael Rock testified that Gore did not stagger in the driveway when he ran after Elliott. Detective Redstone, Captain Dubois, and Officer Raymond all testified that Gore had no signs of alcohol impairment at the time of arrest.

Id. Moreover, we concluded that even if the State expert had been impeached with financial bias, “a death sentence would have likely still resulted due to the strength of the six aggravators that were independently found.” Id.

Finally, with regard to the failure to present evidence of exposure to toxic chemicals, we held that the failure of penalty phase counsel to pursue this theory was not deficient:

At the evidentiary hearing, Udell stated that it is dangerous to make tenuous arguments that sound only like “lawyer talk,” because the jury might punish that party for making a seemingly senseless argument. Nickerson could have engaged in that thought process when he determined that he would not pursue this argument, but again, this was not confirmed because Nickerson did not testify at the evidentiary hearing.

Id. at 1274 (emphasis supplied). We also concluded that Gore had not shown prejudice because

extensive mitigation was already presented at the resentencing. Even if the trial court at resentencing had found this one additional mitigating factor involving neurological disorders from citrus grove pesticide exposure, which is a tenuous theory at best, this would not have overcome the trial court’s finding of six aggravating factors which, as previously described, are supported by strong evidence.

Id. at 1275.

Thus, our 2007 decision in Gore VI demonstrates that, as in Kearse, even if evidence of Udell’s disbarment was introduced to impeach his testimony during the evidentiary hearing, this evidence is not of such a nature that it would probably produce a less severe sentence, or even a conclusion that penalty phase counsel were ineffective. Such a conclusion is even stronger than it was in Kearse. Here, this Court evaluated the ineffective assistance claims based upon attorney Nickerson’s performance. Accordingly, to the extent that Udell did testify, it contributed little to our ultimate determination as to Nicker-son’s actions during Gore’s resentencing proceedings. This is in contrast to Kearse, where Udell was the only attorney who represented Kearse and, therefore, testified during the evidentiary hearing to his own strategic decisions during Kearse’s trial.

The record conclusively demonstrates that Gore is not entitled to relief based upon a claim of newly discovered evidence, and we affirm the summary denial of this claim by the circuit court.

Ineffective Assistance of Postconviction Counsel

Gore next contends that during the initial collateral review proceedings, his post-conviction counsel was ineffective for failure to locate penalty phase co-counsel Nickerson and present his testimony. Gore asserts that the recent decision of the United States Supreme Court in Martinez, 132 S.Ct. 1309, creates a new and independent cause of action for ineffective assistance of collateral counsel in our state courts system. While the decision in Martinez does contain expansive language, a proper analysis reveals that the Supreme Court specifically declined to address the issue of whether a constitutional right to effective assistance of collateral counsel exists:

While petitioner frames the question in this case as a constitutional one, a more narrow, but still dispositive, formulation is whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney’s errors in an initial-review collateral proceeding.

Id. at 1313. Even Justice Scalia in his dissent acknowledged that the majority chose to evade this issue. See id. at 1326 (Scalia, J., dissenting) (noting that the re-framing of the issue “avoid[ed] the Court’s need to confront the established rule that there is no right to counsel in collateral proceedings”). It appears that Martinez is directed toward federal habeas proceedings and is designed and intended to address issues that arise in that context.

Here, Gore previously received full consideration of his ineffective assistance of penalty phase counsel claims in the post-conviction court and a comprehensive review of those claims during his appeal before this Court. Gore has received a full collateral review to which he is entitled in the Florida state courts system. We hold that under the facts and circumstances of this case, Martinez provides Gore with no basis for relief in this Court.

Even if the United States Supreme Court in Martinez had chosen to alter decades of precedent and hold that a claim of ineffective assistance of collateral counsel is now an independent, cognizable claim — which we conclude that it did not— Gore still could not establish that he is entitled to relief under Strickland due to the failure of collateral counsel to locate Nickerson. As previously discussed, this Court and the trial court found that Gore failed to establish prejudice on his claims of ineffective assistance of penalty phase counsel. Thus, even if collateral counsel had been deficient for a failure to locate and present Nickerson as a witness during the evidentiary hearing, Gore cannot demonstrate that confidence in the outcome of the postconvietion proceedings would have been undermined if Nickerson had testified. Therefore, his claim of ineffective assistance of collateral counsel would not succeed.

Gore’s challenges to the effectiveness of his collateral counsel fail. We affirm the summary denial of this claim.

Clemency Process

In his third challenge, Gore contends that the 2012 clemency proceeding that occurred in this case was applied in an arbitrary and capricious manner in violation of United States and Florida Constitutions. Gore asserts that although numerous individuals were informed of their right to participate in this crucial stage of the criminal proceedings, he was not. Gore also contends that although the Governor may have considered the 2012 proceedings at issue to be an “update” to the prior clemency proceeding in 1987, that characterization ignores that Gore’s 1984 death sentence was overturned subsequent to the 1987 proceedings. According to Gore, the only arguably constitutionally valid penalty phase proceeding in this case occurred in 1992, but a full clemency proceeding did not follow this phase. Gore contends that without notice, an opportunity to be heard, or presence of counsel, the 2012 clemency “update” did not comport with due process.

We disagree. The Florida Rules of Executive Clemency expressly provide that “[t]he Governor has the unfettered discretion to deny clemency at any time, for any reason.” Fla. R. Exec. Clem. 4 (emphasis supplied). Further, this Court has repeatedly declined to interject itself into what is, under the Florida Constitution, an executive function. For example, in Bundy v. State, 497 So.2d 1209, 1211 (Fla.1986), a defendant under an active death warrant contended that he must be allowed time to prepare and present a second petition for clemency, even though he had already received an earlier clemency proceeding. In denying relief, the Court noted the separation of powers issue that such a claim presented:

In the death warrant authorizing appellant’s execution, the governor attests to the fact that “it has been determined that Executive Clemency, as authorized by Article IV, Section 8(a), Florida Constitution, is not appropriate.” It is not our prerogative to second-guess the application of this exclusive executive function. First, the principle of separation of powers requires the judiciary to adopt an extremely cautious approach in analyzing questions involving this admitted matter of executive grace. Sullivan v. Askew, 348 So.2d 812 (Fla.), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977). As noted in In re Advisory Opinion of the Governor, 334 So.2d 561, 562-63 (Fla.1976), “[t]his Court has always viewed the pardon powers expressed in the Constitution as being peculiarly within the domain of the executive branch of government.” See also Ex Parte White, 131 Fla. 83, 178 So. 876 (1938).
Second, the governor and cabinet held an earlier clemency hearing in relationship to appellant’s conviction for the Tallahassee murders and found no basis on which to grant him relief. We cannot say that the executive branch was required to go through the motions of holding a second proceeding when it could well have properly determined in the first that appellant was not and never would be a likely candidate for executive clemency.

Id. (emphasis supplied); see also Glock v. Moore, 776 So.2d 243, 252-53 (Fla.2001) (relying on Bundy to reject capital defendant’s claim that he was denied access to a second clemency process because he was not represented by counsel and he did not have an opportunity to present mitigating evidence).

Here, Gore received a clemency proceeding in 1987. He does not allege that this earlier proceeding was deficient. Instead, he alleges that he is entitled to a full updated clemency proceeding because additional mitigation was revealed during his 1992 resentencing proceeding. However, the Court has also rejected clemency challenges on this basis.

In Johnston v. State, 27 So.3d 11, 24 (Fla.2010), the defendant contended that “the clemency proceeding he was provided in 1987 was inadequate because it was held before the postconvietion proceedings were concluded and before his mental health issues and life history were fully developed for consideration in the clemency process.” In rejecting this claim, the Court noted that “no specific procedures are mandated in the clemency process and that Johnston [was] provided with the clemency proceedings to which he is entitled.” Id. at 25-26. We also declined to depart from our prior precedent in which we refused to second-guess the executive branch on matters of clemency. See id. at 26. This Court subsequently relied on Johnston when it rejected a capital defendant’s claim that the death penalty in Florida is arbitrary and capricious because although the defendant received a prior clemency proceeding, he did not have the opportunity to present additional information about his life in a more recent clemency proceeding. See Grossman v. State, 29 So.Bd 1034, 1044 (Fla.2010) (“Grossman has not provided any reason why this Court should depart from its well-established precedent on this issue, and we thus deny relief on this claim.”).

In light of the foregoing, we conclude that the circuit court properly denied this claim without an evidentiary hearing.

Authority of the Governor to Sign Death Warrants

Gore next contends that the allegedly arbitrary power of the Governor to sign death warrants renders the Florida capital sentencing scheme unconstitutional. Our analysis in the previous section applies equally to this claim. The same principles — the Governor’s unfettered discretion under the Florida Rules of Executive Clemency, see Fla. R. Exec. Clem. 4, and separation of powers concerns — arise again in the context of a claim that the Governor’s decision to sign Gore’s warrant was arbitrary and standardless. As recently as last year, we rejected claims that because of the Governor’s absolute discretion to sign death warrants, thereby deciding who lives and who dies, the death penalty structure of Florida violates the United States Constitution. See Valle v. State, 70 So.3d 530, 551-52 (Fla.2011) (quoting Marek v. State, 14 So.3d 985, 998 (Fla.2009)), cert. denied, — U.S. -, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011); see also Johnston, 27 So.3d at 24 (rejecting a claim that Florida’s clemency process is “arbitrary, lacks standards, [and] is one-sided”).

Gore does not dispute that he is eligible for a death warrant, and the signed warrant expressly states that the Governor considered clemency and determined that it was not appropriate. In light of the foregoing, and for the same reasons discussed in the prior issue, this claim also fails.

Length of Time on Death Row

Finally, Gore contends that because of the time that he has already spent on death row, adding execution to that punishment would violate the Eighth Amendment and its ban on cruel and unusual punishment, as well as the Fourteenth Amendment and “binding norms of international law.” We reject this claim as both successive and without merit.

Gore previously presented an unsuccessful challenge that extensive time spent on death row constitutes cruel and unusual punishment:

Gore argues that his twenty-three years served on death row is cruel and unusual punishment, and violates both the Eighth and Fourteenth Amendments of the United States Constitution. This Coui't has consistently rejected the argument that serving time on death row is cruel and unusual punishment, regardless of the time served. See Lucas v. State, 841 So.2d 380, 389 (Fla. 2003) (holding that over twenty-five years on death row is not cruel and unusual punishment); Foster v. State, 810 So.2d 910, 916 (Fla.2002) (holding that twenty-three years on death row is not cruel and unusual punishment). Gore’s exercise of his constitutional rights through the appeal and postcon-viction process has prevented his death sentence from being executed, so he may not claim a constitutional violation due to his length of time on death row. See Knight v. State, 746 So.2d 423, 437 (Fla.1998) (“[N]o federal or state courts have accepted [the] argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay.”). Therefore, Gore’s claim is without merit.

Gore VI, 964 So.2d at 1276. Since this Court’s 2007 decision, we have repeatedly rejected similar challenges. See, e.g., Johnston, 27 So.3d at 27 (rejecting a claim that almost twenty-five years on death row constitutes cruel and unusual punishment); Marek v. State, 8 So.3d 1123, 1130-31 (Fla. 2009) (same for twenty-five years on death row); Tompkins v. State, 994 So.2d 1072, 1085 (Fla.2008) (same for twenty-three years on death row). Moreover, on February 15, 2012, Robert Brian Waterhouse— an inmate who had been on death row for over thirty years — was executed. Thus, relief is not warranted on this claim.

CONCLUSION

In accordance with our analysis above, we affirm the summary denial of relief by the circuit court. We further hold that Gore is not entitled to relief from this Court under the recent decision of the United States Supreme Court in Martinez v. Ryan. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Due to the fourteen-year-old’s status as a surviving victim of sexual assault, we refer to her as R.M.

      . The circuit court judge who presided over Kearse’s successive postconviction proceeding also presided over Gore’s current successive proceeding.

      . In his postconviction motion, Gore also claimed that his trial counsel were ineffective for failing to discover and present evidence that Gore was abused by his mother. However, Gore subsequently withdrew this claim.

      . Consistent with this determination, on appeal Gore also contended that Udell was ineffective because he totally deferred to Nicker-son during the resentencing proceedings. See Gore VI, 964 So.2d at 1273. This Court held that the strategic decision of Udell "to defer on a limited basis to the apparent abilities of Nickerson" did not constitute deficient performance. Id.

      . Further, the evidentiary hearing on Kearse’s postconviction motion, during which Udell testified, occurred in 2005 — the same year that Udell engaged in misconduct by submitting false fee affidavits. This is in stark contrast to the instant case where Udell testified years before engaging in the conduct that led to his disbarment. Thus, the argument that Udell’s disbarment, or the dishonest conduct that led to his disbarment, is relevant to the testimony offered by Udell during the 2003 evidentiary hearing is even more tenuous here than it was in Kearse.


text:
    Charles William FINNEY, Appellant, v. STATE of Florida, Appellee.
    No. SC11-426.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.
    Pamela H. Izakowitz of Backhus and Izakowitz, P.A., Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

QUINCE, J., recused.


text:
    Richard Barry RANDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. SC11-725.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.
    Neal A. Dupree, Capital Collateral Regional Counsel, Rachel Day, Assistant CCR Counsel, and M. Chance Meyer, Staff Attorney, Southern Region, Fort Lauder-dale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Michael Bernard BELL, Appellant, v. STATE of Florida, Appellee.
    No. SC11-694.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.
    Frank J. Tassone and Susanne K. Sichta of Tassone, Sichta and Dreicer, LLC, Jacksonville, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    William REAVES, Appellant, v. STATE of Florida, Appellee.
    No. SC11-512.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.

      Neal A. Dupree, Capital Collateral Regional Counsel, Craig J. Trocino, Assistant CCR Counsel, and William M. Hennis, III, Litigation Director, Southern Region, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Bruce Douglas PACE, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1290.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.
    Neal A. Dupree, Capital Collateral Regional Counsel, Paul Kalil, Assistant CCR Counsel, Southern Region, Fort Lauder-dale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Harry Franklin PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. SC11-472.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.
    Neal A. Dupree, Capital Collateral Regional Counsel, M. Chance Meyer, Assistant CCR Counsel, and William M. Hennis, III, Litigation Director, Southern Region, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (FIa.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Steven Edward STEIN, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1400.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.
    Linda McDermott of McClain and McDermott, P.A., Estero, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appel-lee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (FIa.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    William T. TURNER, Appellant, v. STATE of Florida, Appellee.
    No. SC11-946.
    Supreme Court of Florida.
    April 26, 2012.
    Rehearing Denied June 21, 2012.
    John R. Hamilton, Adam C. Losey of Foley and Lardner, LLP, Orlando, FL, Amber L. Rumancik of Foley and Lardner, LLP, Jacksonville, FL, and James C. Lohman, Austin, TX, for Appellant.
    Pamela Jo Bondi, Assistant Attorney General, and Charmine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Affirmed. See Walton v. State, 77 So.3d 639 (Fla.2011).

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.