author: WELCH, Judge.

text:
    John Michael WARD v. STATE of Alabama
    CR-12-1561
    Court of Criminal Appeals of Alabama.
    Feb. 10, 2017

      Anne Elisabeth Borelli, Montgomery for appellant.
    Luther Strange, atty. gen., and James C. Crenshaw and Tina Coker Hammonds, ásst. attys. gen., for appellee.
   On Second Return to Remand Following Remand-from the Alabama-Supreme Court

WELCH, Judge.

John Michael Ward appeals the circuit court’s order dismissing his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. By an order dated June 29, 2016, and following the remand of this case to. this Court by the Alabama Supreme Court, this Court remanded this case to the Baldwin Circuit Court for that court to make specific findings of facts concerning whether Ward was entitled to have the limitations period equitably tolled for the purpose of filing his postconviction petition. See Ward v. State (CR-12-1561, June 29, 2016) (order). The circuit court complied with our instructions and has filed its return to remand with- this Court. We reverse and remand.

Procedural History

In December 1998, Ward was convicted of murdering his four-month-old son, Nicholas Ward, an offense defined as capital by § 13A-5-40(a)(15), Ala. Code 1975, because Nicholas was under the age of 14 years at the time of his death. The jury, by a vote of 10- to 2, recommended that Ward be sentenced to death. The circuit court followed the jury’s recommendation and sentenced Ward to death. In the trial court’s order sentencing Ward to death, the circuit court set out the following facts surrounding Ward’s conviction:

“On April 22, 1997, at 7:28 A.M. ;an operator at the Baldwin County 911 Center received a call from Michelle Milner Ward, who stated that her baby was not breathing. Ten minutes later paramedics .arrived at the Wards’ residence, a 16’ x 7’ travel trailer. After receiving Nicholas Ward’s body from John Michael Ward (hereinafter ‘Ward’) the paramedics attempted resuscitation by intubation while en route to .the South Baldwin Regional Medical Center. The emergency room attending physician, Dr. Robert Revel, examined the infant determining that he was not breathing, had no pulse, was cold to the touch and had rigor mortis. The doctor pronounced the child dead on arrival. In addition to the lack of vital signs, Dr. Revel observed abrasions on Nicholas’s scalp, nose and mouth area, pus-like material in his eyes, blood in the ears, bruises on the neck and chest, stool in the diaper, a deformity on his right arm, and crusty material in some nail beds.
“After the examination, Dr. Revel interviewed both parents. The father stated that Nicholas had been struck on the head by a folding chair falling from a shelf and that the baby had had breathing problems later in the day. The mother had wanted to seek medical attention, but ... the father did not think it necessary.
“Dr. Harold Reed, a pediatrician, answered the code call in the emergency room. He testified that he also examined the body and found the internal body temperature was 88 degrees.
“Because foul play was suspected, hospital personnel contacted the Baldwin County Sheriffs office. Officer John Stewart arrived first and was followed by Chief Investigator Huey Mack, Jr. Officer Mack also observed abrasions on Nicholas’s forehead, nose and mouth, bruises on the chest and arm, and missing toenails. He notified the Baldwin County coroner and the Department of Forensic Science of the unnatural death. Mr. Mack testified that the mother appeared to be upset during the administration of the last rites, but Ward was emotionless.
“Investigator Mack left the hospital and met Chuck Machette, a caseworker with the Baldwin County Department of Human Resources at .the Ward residence. The crime scene was photographed and videotaped. Ward and his wife participated in the taping. Mack took into his,possession a blood-stained pillow from the bed where the parents said Nicholas had been sleeping the night before. Subsequent DNA testing revealed the blood belonged to Nicholas.
“Dr. James Downs, the state medical examiner, performed the autopsy on Nicholas. He photographed and videotaped the body during the’ course of the autopsy. The pictures recorded the various injuries to the baby’s body. From the autopsy procedure, Dr. Downs concluded that Nicholas had been an infant that failed to thrive. In addition, the child suffered multiple fractures to the arms and ribs and damage to the toenails and fingernails. He opined that Nicholas suffered a spiral fracture of the right arm the day before death. Dr. Downs determined the cause of death to be multiple blunt-force injuries and suffocation.
“Michelle Milner Ward testified that early in her relationship with Ward he placed his hand over her mouth and threatened to suffocate her. Ward continued to physically abuse his wife throughout the marriage.
“Nicholas was born in December 1996, as the second child of her marriage to Ward. In January 1997, Mrs. Ward fled to her mother’s home in Mobile, taking Nicholas and his sister, [A.W.]. After remaining there one month, Mrs. Ward and the children moved to Penelope House, a Mobile County Shelter for battered women. After one month there, the mother and children returned to Ward’s trailer in Magnolia Springs. Ward inflicted numerous injuries on his four month old son and murdered him by suffocation in the early morning hours of April 22,1997.”

(Trial Record, C.R. 5-7.)

On direct appeal, this Court affirmed Ward’s conviction, and both the Alabama Supreme Court and the United States Supreme Court denied certiorari review. See Ward v. State, 814 So.2d 899 (Ala. Crim. App. 2000), cert. denied, 814 So.2d 925 (Ala. 2001), cert. denied, 535 U.S. 907, 122 S.Ct. 1208, 152 L.Ed.2d 145 (2002). (“Ward I”). Pursuant to Rule 41(b), Ala. R. App. P., this Court issued the certificate of judgment on September 7, 2001.

In November 2005, Ward filed a petition for postconviction relief pursuant to Rule 32, Ala. R. Crim. P., in the Baldwin Circuit Court. The circuit court summarily dismissed that petition after finding that it was untimely filed. This Court affirmed the circuit court’s summary dismissal. See Ward v. State, No. CR-05-0655, 988 So.2d 1078 (Ala. Crim. App. 2006) (table) ("Ward II”).

On certiorari review, the Alabama Supreme Court reversed this Court’s decision and held that the period in which to file a Rule 32, Ala. R. Crim. P., petition is not jurisdictional and that “equitable tolling” may be available to toll the limitations period to allow the filing of an untimely postconviction petition. Thereafter, the Supreme Court remanded the case to this Court for further proceedings. See Ex parte Ward, 46 So.3d 888 (Ala. 2007) ("Ward III”). In Ward III, the Alabama Supreme Court first recognized that equitable tolling could extend the time for filing a postconviction petition pursuant to Rule 32, Ala. R. Crim. P., when a petitioner could establish both “extraordinary circumstances” and “reasonable diligence.” The Supreme Court explained:

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 [796] at 799 [ (9th Cir. 2003) ] (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.”

46 So.3d at 897-98.

On remand following Ward III, this Court held that equitable tolling was not available in Ward’s case because Ward had not affirmatively pleaded that ground in his postconviction petition. We again affirmed the circuit court’s summary dismissal of Ward’s postconviction. petition. See Ward v. State (No. CR-05-0655), 14 So.3d 196 (Ala. Crim. App. 2007)(table) (“Ward IV”). Ward appealed, and, the Alabama Supreme Court again reversed this Court’s decision, finding that Ward had hád no opportunity to assert equitable tolling; therefore, that Court reasoned, Ward should have an opportunity to present that claim in the lower' court. See Ex parte Ward, 46 So.3d 898 (Ala. 2010) (“Ward V”). Consistent with the Supreme Court instructions, this Court remanded the case to the circuit court. See Ward v. State, 46 So.3d 903 (Ala. Crim. App. 2010) (“Ward VI”).

After this case was remanded a second time, Ward moved to amend his postcon-viction petition to address claims other than equitable ■ tolling. The circuit court limited the scope of Ward’s amendment solely to the issue of equitable tolling. In the amendment, Ward argued that the limitations period should bé equitably tolled because, he says: (1) his postconviction counsel’s conduct amounted to extraordinary' circumstances and he exercised reasonable diligence in protecting his rights; and (2) he is innocent of the crime for which he was convicted.

In support of his actual-innocence claim, Ward attached a report authored by Dr. Janice J. Ophoven, a pediatric forensic pathologist, hired by Ward for his federal habeas corpus proceedings. It was Dr. Ophoven’s opinion that Nicholas Ward died of pneumonia and did not die of blupt-force trauma and suffocation as the State’s expert testified at Ward’s trial. Dr. Opho-ven also gave alternative explanations concerning Nicholas’s extensive injuries.

At the circuit court’s hearing on the second remand, the attorney who had been hired to represent Ward in postconviction proceedings, Vader A1 Pennington, testified. Numerous documents were also admitted into evidence that included letters Ward had written to Pennington and letters Ward had sent to the circuit court’s office and to the federal court. After considering the evidence, the circuit court issued an order finding that Ward was not entitled to equitable .tolling in his postcon-viction proceedings. (C.R. 2174.) As stated above, this Court had remanded the case to the circuit court for that court to make specific findings of facts as to whether Ward was entitled to equitable tolling. The circuit court, in a 23-page order made specific and thorough findings as to why it declined to apply equitable tolling to Ward’s .postconviction petition. This case is now before this Court on return to second remand.

Ward argued that the circuit court erred in denying his request to equitably toll the limitations period for filing his Rule 32 petition. Specifically, Ward argued that in accordance with Ward III he established the prerequisites for equitablé tolling—(1) extraordinary circumstances, and (2) reasonable diligence—and that the circuit court had erred in declining to toll the limitations period.

(1) Extraordinary Circumstances

In regard to this prong of the Ward III inquiry, the circuit court stated, in part:

“Ward argues that he is entitled to equitable tolling because Pennington did not follow his instructions to timely file a Rule 32 petition, and because Pennington instead filed a federal habeas petition. Although Pennington’s decision to file a habeas petition instead of a'Rule 32 petition might have been a questionable strategic decision, that decision did not prevent Ward from timely filing a Rule 32 petition. Indeed, Ward knew about Pennington’s decision at a point well before the Rule 32 petition was due to be filed; thus, Ward could have timely filed a Rule 32 petition if he had demonstrated diligence.
“Pennington’s decision to file a federal habeas petition instead of a Rule 32 petition was certainly negligent, but that fact does not mean that he abandoned or effectively abandoned Ward. Negligence, however gross, is not the same as abandonment, and the record shows that Pennington did not abandon Ward.” ;

(C. 20-21.)

Testimony and exhibits admitted, at the remand hearing showed that in. July 2002, Ward’s family hired Pennington to represent Ward in postconviction proceedings in state court. A letter, dated ..July 29, 2002, written by Pennington to Ward was admitted into evidence. That letter reads:

“I am in receipt of your letter of 26th of July 2002, and I want to- assure you that I am processing this paperwork for the purpose of filing a Rule 32.
“I hope to get the Rule 32 filed in the very near future, in prder that there can be no questions as to its timeliness, and then we can proceed with the additional discovery that will be necessary, to prosecute this matter on your behalf.
“I will be in touch with you in the near . future.”

(C.R. 1527.)

Pennington testified .that Wa:?d . wrote him about two times a week and telephoned him on numerous occasions and that it was his decision to not to file a Rule 32 petition after talking with the attorneys who had represented Ward at trial. The following occurred during Pennington’s, direct testimony:

“[Ward’s postconviction counsel]: Did you confer with Mr, Ward about how you were going to handle his postconviction relief?
“[Pennington]: I conferred with Mr. Ward on any number of subjects.
“[Pennington]: The decision where to file was’ mine. I made that decision. I made that decision based on the reasons I have stated before, that tactically I felt that. filing in state court would stand nothing, and was not to get any shape or form of relief, that we had a valid claim of futility, and that Federal relief was substantially more likely than State court relief.
“[Ward’s postconviction counsel]: And after making that decision, you did not relay that information to Mr. Ward prior to the filing of the Federal petition?
“[Pennington]: I did not.”

(R. 59-60.) On March 3, 2003, Pennington filed a habeas corpus petition in the United States District Court for the Southern District of Alabama; however, he did hot file a Rule 32, Ala. R. Crim. P., petition in the Baldwin Circuit Court as he was hired to do by Ward’s family.

Ward testified that he wrote Pennington on numerous occasions. (In one document admitted into evidence Ward states that he wrote Pennington 37 times.) Ward further testified that he telephoned Pennington multiple times but that he was unable to reach him most of the time; that he gave Pennington documents concerning his' case; that he wrote the Baldwin County circuit clerk in April 2003 asking if a post-conviction petition had been filed on his behalf because he was aware that the filing deadline was fast approaching (C.R. 1534); that in May 2003 the Baldwin County clerk’s office notified him that no postcon-vietion petition had been filed; that in June 2003 he requested a copy of the habeas corpus petition that had been filed in federal court; that in August 2003 he moved the federal court to dismiss Pennington as his counsel and to appoint him a new attorney; that he requested that Pennington return his documents; that in December 2003 he moved the circuit court to extend his limitations period to file a post-conviction petition and to appoint counsel; that in February 2004 he filed a complaint against Pennington with the Alabama State Bar; that he never agreed to abandon filing a Rule 32, Ala. R. Crim. P., petition in the state court; and that Pennington never returned any of Ward’s files. Ward also testified that the federal court did not grant his request to remove Pennington until February 2005 because Pennington asked to remain on his case and that in February 2005 Attorney Greg Hughes was appointed to represent Ward in the habeas corpus proceedings.

Attorney Hughes testified that when he was appointed to represent Ward he moved the federal court to stay the federal proceedings so that he could file a postcon-viction petition in the Baldwin Circuit Court, that the federal court granted that stay, and that in November 2005 he filed the present postconviction petition in the Baldwin Circuit Court.

In Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the United .States Supreme Court first addressed whether equitable tolling applied to the limitations period for filing a habeas corpus petition under the Antiterrorism and Effective Death Penalty Act (“AED-PA”). In reversing the lower court’s decision, the Supreme Court held that the lower court had applied too rigid a definition of what attorney misconduct was sufficient to constitute extraordinary circumstances that prevented a timely filing. The Supreme Court stated:

“We have previously made clear that a ‘petitioner’ is ‘entitled to .equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some. extraordinary circumstance stood in his way’ and prevented timely filing. Pace [v. DiGuglielmo], 544 U.S. [408] , at 418 [ (2005) ](emphasis deleted). In this case, the ‘extraordinary circumstances’ at issue involves an attorney’s failure to satisfy professional standards of care. The Court of Appeals held that, where .that is so, even attorney conduct that is ‘grossly negligent’ can never warrant tolling absent ‘bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part.’ [Holland v. Florida,] 539 F.3d [1334] at '1339 [ (11th Cir. 2008) ]. But in our view, the Court of Appeals’ standard is too rigid.
‘We have previously held that ‘a garden variety claim of excusable neglect,’ Irwin [v. Department of Veterans Affairs], 498 U.S. [89] at 96 [ (1990) ], such as a simple ‘miscalculation’ that leads a lawyer to miss a filing deadline, Lawrence [v. Florida], [549 U.S. 327], at 336 [(2007)], does -not warrant equitable tolling. But the case before us does not involve, and we are not considering, a ‘garden variety claim’ of attorney negligence. Rather, the facts of this case present far more serious instances of attorney misconduct. And, as we have said, although the circumstances of a case must be ‘extraordinary’ before equitable tolling can be applied, we hold that such circumstances are not limited to those that satisfy the test that the Court of Appeals used in this case.
“The record facts that we have set forth in Part I of this opinion suggest that this case may well be an ‘extraordinary’ instance in which petitioner’s attorney’s conduct constituted far more than ‘garden variety’ or ‘excusable neglect.’ To be sure,- [Attorney Bradley] Collins failed to file Holland’s petition on time and appears to have been unaware of the date on which the limitations period expired—two facts that, alone, might suggest simple negligence. But, in these circumstances, the record facts we have elucidated suggest that the failure amounted to more: Here, Collins failed to file Holland’s federal petition on time despite Holland’s many letters that repeatedly emphasized the importance of his doing so. Collins apparently did not do the research necessary to find out the proper filing date, despite Holland’s letters that went so far as to identify the applicable legal rules. Collins failed to inform Holland in a timely manner about the crucial fact that the Florida Supreme Court had decided his case, 'again despite Holland’s many pleas for that information. And Collins failed to communicate with his client over á period of years, despite various pleas .from Holland that Collins respond to his letters.”

560 U.S. at 649-52.

The next year in Maples v. Thomas, 565 U.S. 266, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012), the United States Supreme Court again addressed what circumstánces were sufficient to rise to the level of extraordinary circumstances in order to invoke equitable tolling. In Maples, the two New York attorneys left their law firm in New York while representing Maples and became ineligible to represent him; however, neither-attorney informed Maples of their departure from that firm. The Supreme Court found that the attorneys’ actions constituted abandonment of their client and were extraordinary circumstances sufficient to invoke equitable tolling.

More recently in Christeson v. Roper, 574 U.S. -, 135 S.Ct. 891, 190 L.Ed.2d 763 (2015), the United States Supreme Court again visited this issue and held that Christeson was entitled to have an opportunity to establish that equitable tolling applied to the filing of his habeas corpus petition. The Supreme Court reminded: “Tolling based on counsel’s failure to satisfy AEDPA’s [Antiterrorism and Effective Death Penalty Act] statute of limitations is available only for ‘serious instances of attorney misconduct.’” 574 U.S. -, 135 S.Ct at 894.

' Equitable tolling has routinely been applied in situations where an attorney has misled or deceived a client.

“Equitable tolling is permitted only ‘in rare and exceptional circumstances.’ Davis [v. Johnson], 158 F.3d [806] at 811 [ (5th Cir. 1998) ]. Cousin contends that neither he nor his attorneys received notice of the denial of his IFP [in forma pauperis] motion and therefore had.no way of knowing that the filing fee had become due. Cousin claims that this failure of notice was error by the district court sufficient to justify equitable tolling of the limitations period. Equitable tolling is warranted, however, only in situations ‘where the plaintiff is actively misled by the defendant ... or is prevented in some extraordinary way from asserting his' rights.’ Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999).”

Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002).

“Equitable tolling is permissible only in ‘rare and exceptional circumstances.’ [Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998)]. This circuit has found several circumstances not to warrant equitable tolling: a prisoner’s pro se status, inadequate prison library (Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000), citing United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993)); allegation of 43 days late notice of effectiveness of the AEDPA [Antiterrorism and Effective Death Penalty Act] and 17 days in psychiatric evaluation (Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999)). This court has found equitable tolling when a petitioner was -misled by the district court that upon dismissing an earlier timely petition without prejudice he would be allowed to refile at a later date. United States v. Patterson, 211 F.3d 927, 931-32 (6th Cir. 2000). This court has also remanded a case to the district court, for a hearing to determine if a petitioner can establish facts .in support of his allegations for equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (Petitioner alleged late notice of denial of state habeas petition.)”

United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002).

“While the normal errors made by attorneys may not justify equitable tolling of the statute of limitations for filing a habeas petition, extreme situations, such as abandonment, require a different result. Accordingly, an attorney’s conduct, if it is sufficiently egregious, may constitute the sort of ‘extraordinary circumstances’ that would justify the application of equitable tolling to the one year limitations period. As detailed above, petitioner reasonably relied on the silence of his counsel, Mr. [Winston] Rice, to his detriment. An attorney’s intentional deceit may warrant equitable tolling of statute of limitations on a motion for collateral relief if a petitioner shows that he reasonably relied on his attorney’s deceptive misrepresentations. Silence has been equated with deception in the Fifth Circuit when there is a legal or moral duty to speak. The attorney client relationship contains both a legal and moral duty to speak. Failure of petitioner’s attorney to do so merits equitable tolling.”

Wessinger v. Cain, 358 F.Supp.2d 523, 529-30 (M.D. La. 2005).

Since the Alabama Supreme Court’s decision in Ward III and the United States Supreme Court’s decisions in Holland v. Florida and Maples v. Thomas, this Court has applied equitable tolling to a postcon-viction petition filed pursuant to Rule 32. In Patrick v. State, 91 So.3d 756 (Ala. Crim. App. 2011), this Court stated:

“In the instant case, Patrick asserted in his Rule 32 petition that the doctrine of equitable tolling should apply in his ease. 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 [the] 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,’ [Ex parte] Ward, 46 So.3d [888] at 897 [ (Ala. 2007) ]. 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 §2 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.1 Patrick’s failure to file a timely Rule 32 petition was unavoidable even with the exercise of due diligenco, given Pennington’s-misrepresentations to Patrick' and his wife and Pennington’s evasive behavior. See Ex parte Ward, 46 So.3d at 897.
“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.”

91 So.3d at 759-60.

Our neighboring State of Tennessee addressed, in depth, the United States Supreme Court’s decision in Holland v. Florida. In Whitehead v. State, 402 S.W.3d 615 (Tenn. 2013), the Tennessee Supreme Court aptly stated:

“The [Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) ] Court cited examples from ‘several lower courts,’ which ‘specifically held that unprofessional attorney conduct may, in certain circumstances, prove “egregious” and can be “extraordinary.” ’ Holland v. Florida, 130 S.Ct. at 2563-64. One of these was Calderon v. United States District Court, 128 F.3d 1283, 1289 (9th Cir. 1997), overruled on other grounds by Calderon v. United States District Court, 163 F.3d. 530, 540 (9th Cir.1998) (en banc). In Calderon v. United States District Court, the petitioner’s lead counsel ‘withdrew after accepting employment in another state,’ and the’work product the attorney left behind was ‘not useable by replacement counsel—ra turn of events over which [the petitioner] had no control. Calderon v. United States Dist. Court, 128 F.3d at 1289. A similar result was reached in Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), in which a petitioner’s lawyer ‘effectively abandoned him’ and in ‘multiple ways’ prevented him from filing his petition on time. Among other shortcomings, Mr. Nara’s attorney failed to inform him when the state supreme court denied his appeal, led Mr. Nara to believe that she was going to file a habeas petition on his behalf, and told him there were no time constraints in filing his petition. Nara v. Frank, 264 F.3d at 320.
“A third example cited by. the United States Supreme Court in Holland v. Florida was Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003). By failing to file a petition despite being directed to do so. Mr. Baldayaque’s attorney ‘violated a basic duty of an attorney to his client/ namely the ‘duty of loyalty,’ which ‘encompasses an obligation to defer to the client’s wishes on major litigation decisions.’ Baldayaque v. United States, 338 F.3d at 152 (quoting In re ‘Agent Orange’ Prod. Liab. Litig., 800 F.2d 14, 17 (2d Cir. 1986)). This omission, combined with the attorney’s failure to contact Mr. Baldayaque or research his case, fell so far outside the range of behavior a client should reasonably expect from an attorney, it constituted an extraordinary circumstance. Baldayaque v. United States, 338 F.3d at 152-53.
“The Court also cited Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), which is particularly relevant to Mr. Whitehead’s case. Along with poor communication and failure to file a petition, the key misconduct attributed to Mr. Spitsyn’s attorney was that ‘despite a request that he return Spitsyn’s file, [the attorney] retained it for the duration of the limitations period and more than two months beyond. That conduct was so deficient as to distinguish it from ... merely negligent performance.’ Spitsyn v. Moore, 345 F.3d at 801. Furthermore, the United States Court of Appeals for the Ninth Circuit noted:
“ ‘It has been argued that' Spitsyn could have satisfied the deadline despite [the attorney’s] misconduct by filing a petition pro se. But without the file, which [the attorney] still possessed, it seems unrealistic to expect Spitsyn to prepare and file a meaningful petition on his own within the limitations period. We have previously held that equitable tolling may be appropriate when a prisoner had been denied access to his legal files. Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002). That logic would apply to Spit-syn’s situation as well.’
“Spitsyn v. Moore, 345 F.3d at 801.”

402 S.W.3d at 628-29.

In this case, Ward instructed his retained attorney to file a postconviction petition in the Baldwin Circuit Court. Instead, the attorney disregarded his client’s express wishes and filed a habeas corpus petition in the federal court without first consulting his client. As the United States Court of Appeals for the Second Circuit stated in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003), a case cited by the Tennessee Supreme Court in Whitehead:

“In spite of being specifically directed by his chent’s representatives to file a [28 U.S.C. § ]‘2255,’ [federal habeas corpus petition], [counsel] failed to file such a petition at all. By refusing to do what was requested by his client on such a fundamental matter, [counsel] violated a basic duty of an attorney to his client. See In re Agent Orange Prod. Liab. Litig., 800 F.2d 14, 17 (2d Cir. 1986) (‘As a matter of professional responsibility, an attorney owes a duty of lpyalty to his client. This duty encompasses an obligation to defer to the client’s wishes on major litigation decisions.’).
“[Baldayaque’s attorney] never spoke to or met Baldayaque. When his letter to Baldayaque was returned, [his attorney] made no effort to locate Balda-yaque. [His attorney]. failed to ‘keep [his] client reasonably informed about the status of [the case]’ and failed to ‘explain [the] matter to the extent reasonably necessary to permit [Balda-yaque] to make informed decisions regarding the representation,’ as required by Connecticut Rule of Professional Conduct 1.4.
“[The attorney’s] actions were far enough outside the range of behavior that reasonably could be expected by a client that they may be considered ‘extraordinary.’ In Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000), we held that the confiscation of the petitioner’s legal papers by a corrections officer shortly before the section 2255 filing deadline was ‘ “extraordinary” as a matter of law.’ That was so even though the usual problems inherent in being incarcerated do not justify equitable tolling. Likewise, while the normal errors made by attorneys may not justify equitable tolling, extreme situations such as the one presented here require a different result. Accordingly, we hold that an attorney’s conduct, if it is sufficiently egregious, may constitute the sort of ‘extraordinary circumstances’ that would justify the application of equitable tolling to the one-year limitations period of AEDPA [Antiterrorism and Effective Death Penalty Act of 1996].

338 F.3d at 152-53.

The facts presénted in this case are similar to the facts in Baldayaque. Ward’s attorney failed to follow his client’s express instructions,' thereby violating one of his basic obligations as an attorney—the obligation to defer to his client’s wishes on major decisions. Accordingly, we hold that Ward did establish that extraordinary circumstances existed in - his case—circumstances sufficient to excuse his late filing. See Baldayaque, supra.

(2) Reasonable Diligence

In finding that Ward failed to show reasonable diligence, the circuit court stated, in part:

“Ward’s argument that he established diligence is also rejected. He contends that he undertook numerous and varied actions to remedy Pennington’s failure to file a Rule 32 petition by.writing repeatedly to this Court and the federal court requesting to have Pennington removed and substitute counsel appointed, and asking for copies of files and pleadings in an effort to prepare , a Rule 32 petition on his. own. Although Ward may have filed numerous pro se motions after he learned that Pennington had filed a federal habeas petition, he only had to file a form Rule 32 petition to stop the statute of limitations clock. Ward’s inaction is what distinguishes his case from the diligence demonstrated by the petitioner in Holland.”

(C. 22-23.)

In discussing this prong of the Ward III inquiry courts have stated:

“ ‘Due diligence ... does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make,reasonable efforts.’ Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002). ‘Moreover, the due diligence inquiry is an individualized one that must take into account the conditions of confinement and the reality of the prison system.’ Id. (internal quotations omitted).”

Downs v. McNeil, 520 F.3d 1311, 1323 (11th Cir. 2008).

“ ‘The diligence required for equitable tolling purposes is reasonable diligence .,. not maximum feasible diligence.’ Holland [v. Florida], 560 U.S. [631] at 653, 130 S.Ct. 2549 [(2016)] (internal citations and quotation marks omitted) ....
“The Supreme Court in Holland found that a habeas petitioner had exercised reasonable diligence by writing his attorney ‘numerous letters seeking crucial information and providing direction’; ‘repeatedly contacting]-the state courts, their clerks, and the Florida State Bar Association’; and preparing ‘his own habeas petition pro. se and promptly fil[ing] it with the District Court’ on the day he discovered that his AEDPA [An-titerrorism and Effective Death Penalty Act of 1996] clock had expired. Id. In Socha [v. Boughton, 763 F.3d 674 (7th Cir. 2014)], we similarly held that a habeas petitioner had exercised'reasonable diligence by repeatedly writing his attorney requesting access to his file, pleading with the public defender’s office for help, and alerting the court ‘before the deadline arrived’ that he sought to preserve his rights. 763 F.3d at 687-88.”

Carpenter v. Douma, 840 F.3d 867, 870-71 (7th Cir. 2016).

“The diligence requirement ‘does not demand a showing that the petitioner left no stone unturned,’ Ramos-Martinez v. United States, 638 F.3d 315, 324 (1st Cir. 2011). Rather, ‘[t]o determine if a petitioner has been [reasonably] diligent in pursuing his petition, courts consider the petitioner’s overall level of care and caution in light of his or her particular circumstances.’ Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011); see also Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (‘Due diligence ... reqtdre[s] reasonable diligence in the circumstances.’). In other words, the diligence inquiry is fact-specific and 'depends on the circumstances faced by the particular petitioner; there are no bright line rules as to what conduct is insufficient to constitute reasonable diligence. If a petitioner ‘did what he reasonably'thought was necessary to preserve his rights ... based on information he received then he can hardly be faulted for not acting more “diligently” than he did.’ Holmes v. Spencer, 685 F.3d 51, 65 (1st Cir. 2012).”

Munchinski v. Wilson, 694 F.3d 308, 330-31 (3rd Cir. 2012).

In a factually similar case, the United States' Court of Appeals for the Second Circuit stated:

“The district court found that Nickels was not diligent during this time because he could have ‘filed a “bare bones” petition and sought to amend it later.’ However, the district court erred in not considering what diligence was due from a person in Nickels’s circumstance—that is, a petitioner who was told by his counsel that the record was necessary for the completion of the petition. A duly diligent petitioner in this circumstance might reasonably think that such papers were necessary to filing, and thus devote his time to getting them back rather than preparing a new petition.
“Moreover, our case law suggests that a petitioner’s legal papers and access to them are not irrelevant to his ability to file. See Valverde [v. Stinson], 224 F.3d [129] at 133 [ (2d Cir. 2000) ]. (‘The intentional confiscation of a prisoner’s ha-beas corpus petition and related legal papers by a corrections officer is “extraordinary” as a matter of law.’) In that case we wrote, ‘a person is plainly “prevented” from filing a pleading for some period of time if he is deprived of the sole copy of that pleading, something that the petitioner asserts happened to him here.’ Id. at 134. While Nickels was not deprived of his actual habeas petition, he alleges he sent all of his legal materials to PSL [Pro Se Litigators], and that those documents were not returned after PSL declared bankruptcy, despite-his efforts to obtain them. In Tight of that, the district court erred in calling; Nickels’ failure to file upon learning of the bankruptcy a lack of diligence without considering the effect of PSL’s repeated admonitions that his. papers were necessary to filing.
“In addition, the record reflects that Nickels sought the assistance of the Law Library Officer and Personnel Administration at Attica where he was incarcerated. He also filed a complaint with the Attorney General, which was copied to the district court. At a minimum, .this suggests Nickels was diligent in trying to figure out how to proceed between the time he learned he would not receive a petition from PSL and the time he ultimately filed. To suggest that a petitioner is not -diligent in such circumstances when he does not’simply file a bare bones petition does-not appropriately take account of the fact that, in large part, habeas petitioners have but one bite at the apple. ‘[A] petitioner must navigate not-insignificant procedural complexities [in filing a habeas petition]. Mistakes can be costly, given the severe limitations that AEDPA [An-titerrorism and Effective Death Penalty Act of 1996] imposes on the filing of second or successive petitions.’ Harper v. Ercole, 648 F.3d 132, 140 (2d Cir. 2011) (internal citation and quotation marks omitted).”

Nickels v. Conway, 480 Fed.App’x 54, 58 (2d Cir. 2012) (not selected for publication in the Federal Reporter).

Here, we likewise find that Ward did not fail to exercise reasonable diligence merely because he failed to file a “form” Rule 32 petition within the requisite time period. As noted in Nickels, errors in filing postconviction petitions are costly and frequently bar relief in subsequent petitions. Ward, a death-row inmate, had given his file to his hired attorney, and his attorney had not returned those papers to him. The record clearly shows that Ward did not sit on his rights but that he repeatedly sought help in both state court and federal court.

“ When reviewing a circuit court’s denial of a Rule 32 petition, this Court applies an abuse-of-discretion standard.’” Shouldis v. State, 38 So.3d 753, 761 (Ala. Crim. App. 2008), quoting Whitman v. State, 903 So.2d 152, 154 (Ala. Crim. App. 2004). However, “when the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001).

After reviewing, the extensive record in this case, we hold that the circuit court abused its discretion in declining to find that Ward satisfied the two-prong test articulated by the Alabama Supreme Court in Ward III and the United States Supreme Court in Holland v. Florida. Indeed, based on the above caselaw we hold that Ward established both extraordinary circumstances and reasonable diligence for the late filing of his postconviction petition attacking his capital-murder conviction and sentence of death. Accordingly, we hereby reverse the circuit court’s order dismissing Ward’s postconviction petition as untimely and remand this case to the Baldwin Circuit Court for further proceedings on Ward’s properly filed postconviction petition.

REVERSED AND REMANDED.

Kellum,. Burke, and Joiner, JJ., concur. Windom, P.J., recuses herself.

      . Because the limitation period in Rule 32.2(c), Ala. R. Crim. P. was amended effective August 1, 2002, Ward had until August 1, 2003, to file a timely petition for postconvic-tiop relief.

      . On remand, "[t]he circuit court was limited to the scope of [the Supreme Court's] remand order.' Hyde v. State, 894 So.2d 808, 810 (Ala. Crim. App. 2004). In Ward V, the Supreme Court limited the remand proceedings to the issue of equitable tolling. Thus, the circuit court correctly prohibited any amendment to Ward’s petition that addressed issues that were outside the scope of the Supreme Court’s remand instructions. .

      . This petition contained numerous factual errors concerning Ward’s case. The first page states that a Mobile County grand jury indicted Ward for three counts of capital murder. However, Ward was indicted by a Baldwin County grand jury for violating § 13A-5-40(15), Ala. Code 1975, for murdering a child under the age of 14 years. (C.R. 1197.)

      . A document from the Alabama State Bar attached as an exhibit to Ward’s amended petition shows that the State Bar declined to proceed on Ward’s complaint against Pennington. (C.R. 464.)

      . Then Presiding Judge Samuel Welch dissented with an opinion, which Judge Windom joined. Judge Welch wrote that he did not disagree with the application of equitable tolling to the facts of the case but he disagreed that Patrick had proven his entitlement to equitable tolling merely on the face of his pleadings.'


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Patrick C. HANNON, Appellant, v. STATE of Florida, Appellee. Patrick C. Hannon, Appellant, v. State of Florida, Appellee.
    No. SC17-1618
    No. SC17-1837
    Supreme Court of Florida.
    [November 1, 2017]

      Neal Dupree, Capital Collateral Regional Counsel, Suzanne Myers Keffer, Chief Assistant, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida,, Timothy A. Freeland, Senior Assistant Attorney General, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Patrick Hannon, a prisoner under sentences of death with an active death warrant, appeals the circuit court’s orders denying his third and fourth - successive motions for postconviction relief filed , pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm the circuit court’s denial of both motions and deny his motions for stay of execution.

FACTS AND PROCEDURAL HISTORY

On direct - appeal, this Court fully set forth the underlying facts. Hannon v. State (Hannon I), 638 So.2d 39, 41 (Fla. 1994). Relevant to the instant proceeding, Hannon was found guilty of two counts of first-degree murder for the killings of Brandon Snider and Robert ’ Carter. Id. After a penalty phase, the jury returned two unanimous death sentences. Id. Hannon appealed, and we affirmed the convictions and sentences. Id. at 41-44. On February 21, 1995, the United States Supreme Court denied certiorari, Hannon v. Florida, 513 U.S. 1158, 115 S.Ct. 1118, 130 L.Ed.2d 1081 (1995), thus, Hannon’s case became final on that date.

We affirmed the denial of Hannon’s initial motion for postconviction relief and denied his petition for writ of habeas corpus. Hannon v. State (Hannon II), 941 So.2d 1109, 1150 (Fla. 2006). During the pendency of his initial postconviction motion, Hannon filed an interlocutory appeal after the circuit court denied his motion to prohibit DNA testing, which this Court dismissed. Hannon v. State (Hannon III), 817 So.2d 847 (Fla. 2002) (Table).

-Additionally, Hannon sought federal relief pursuant to a writ of habeas corpus, which was denied. Hannon v. Sec’y, Dep’t of Corr. (Hannon IV), 622 F.Supp.2d 1169 (M.D. Fla. 2007). The Eleventh Circuit Court of Appeals granted Hannon’s request for a certificate of appealability on one issue, but it denied relief. Hannon v. Sec’y, Dep’t of Corr. (Hannon V), 562 F.3d 1146 (11th Cir. 2009).

The postconviction court denied Han-non’s first successive motion for postcon-viction relief, which we affirmed. Hannon v. State (Hannon VI), 94 So.3d 502 (Fla. 2012). Again, the postconviction court denied Hannon’s second motion, for postcon-viction relief, and we affirmed. Hannon v. State (Hannon VII), SC15-2363, 2016 WL 3352780 (Fla. June 16, 2016).

Hannon filed his third successive motion for postconviction relief—while the second motion was pending appeal—raising various Hurst claims. The circuit court held the third successive motion in abeyance pending the outcome of Hannon’s appeal in this Court on his second successive motion, which was decided on June 16, 2016. On August 4, 2016, the circuit court entered a stay on Hannon’s third successive motion, pending our decision on the retroactivity of Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Following our various opinions, the circuit court denied Hannon’s third successive motion without an evidentiary hearing. Hannon appealed, and we stayed the proceedings pending the resolution of Hitchcock v. State, 226 So.3d 216, 2017 WL 3431500 (Fla. Aug. 10, 2017), petition for cert. filed, No. 17-6180 (U.S. Sept. 29, 2017). When Hitchcock became final, we lifted the stay and issued an order to show cause why the denial of Hannon’s third successive motion for post-conviction relief should not be affirmed,

On October 6,2017, Governor Rick Scott signed a death warrant for Hannon and set his execution for November 8, 2017. Han-non filed his fourth successive postconviction motion in the circuit court, raising three claims: (1) the lethal injection protocol is unconstitutional; (2) the Governor’s warrant signing procedure is unconstitutional; and (3) Hannon’s death sentences aré disproportionate compared to his code-fendants’ sentences. The circuit court denied Hannon’s claims without an evidentiary hearing.

These appeals follow.

ANALYSIS

Constitutionality of Lethal Injection Protocol

Hannon presents various challenges that he asserts amount to a violation of his Florida constitutional and Eighth Amendment rights when considered together. The circuit court found that we recently approved the current injection protocol in Asay v. State (Asay VI), 224 So.3d 695, 700-02 (Fla. 2017); thus, the court correctly rejected that portion of Hannon’s claim. Further, the circuit court found that Han-non failed to establish his additional assertion that the three-drug protocol evaluated in conjunction with the Florida Department of Corrections’ (DOC) “veil of secrecy” demonstrates that the DOC is inconsistent with its protocol and concealing signs of consciousness.

Hannon presented no new evidence that would require us to reconsider our recent approval of the three-drug protocol, therefore, no discussion of that portion of the claim is necessary. See id.

As to Hannon’s “veil of secrecy” claim, the circuit court properly denied his challenge. The DOC is entitled to a presumption that it will properly perform its duties while carrying out an execution. Lightbourne v. McCollum, 969 So.2d 326, 343 (Fla. 2007); Provenzano v. State, 761 So.2d 1097, 1099 (Fla. 2000). Moreover, we have noted that our “role is not to micromanage the executive branch in fulfilling its own duties relating to executions.” Troy v. State, 57 So.3d 828, 840 (Fla. 2011) (quoting Lightbourne, 969 So.2d at 351). There is nothing before us sufficient to overcome the presumption that the DOC will comply with the protocol that we have approved regarding the necessary consciousness check. See Howell v. State, 133 So.3d 511, 522 (Fla. 2014); Valle v. State, 70 So.3d 530, 545 (Fla. 2011) (rejecting a similar, claim of “substitution of the drug, coupled with inadequate procedural safeguards and a cavalier attitude toward lethal injection” (emphasis in original)); Lightbourne, 969 So.2d at 352. In fact, one of the affidavits submitted by Hannon indicates that as recently as a few weeks ago, during Lambrix’s execution, the DOC officials conducted a proper consciousness check. See Correll v. State, 184 So.3d 478, 484 n.8 (Fla. 2015) (detailing, the consciousness check when the execution team mem: bers “yell the prisoner’s name, lift the prisoner by the shoulders .and shake him or her, flick the subject’s eyelids, and pinch the trapezius muscle”). The burden was on Hannon to overcome the presumption afforded to the DOC, and he failed to carry his. burden. See Muhammad v. State, 132 So.3d 176, 203 (Fla. 2013). Thus, this portion of his claim fails.

Finally, we have consistently rejected Hannon’s challenge that the DOC should substitute the current three-drug protocol with a one-drug protocol. See Asay VI, 224 So.3d at 702; Muhammad, 132 So.3d at 196-97.

Accordingly, even taking these claims together, the circuit court properly denied Hannon’s challenge.

The Governor’s Warrant Signing Power

Hannon challenges the power of the Governor to sign death warrants, which the circuit court properly denied. We have repeatedly and consistently denied these claims. E.g., Bolin v. State, 184 So.3d 492, 502-03 (Fla. 2015), cert. denied, — U.S. -, 136 S.Ct. 790, 193 L.Ed.2d 534 (2016); Mann v. State, 112 So.3d 1158, 1162-63 (Fla. 2013); Ferguson v. State, 101 So.3d 362, 366 (Fla. 2012); Gore v. State, 91 So.3d 769, 780 (Fla. 2012); Valle, 70 So.3d at 551-52. Hannon contends that we must revisit this settled point of law in light of Hurst, however, Hannon is mistaken. The narrowing function required by the Eighth Amendment, which we addressed in Hurst, has already been performed by the time that a defendant is warrant eligible. See Hurst v. State, 202 So.3d 40, 59-63 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017); Silvia v. State, 123 So.3d 1148, 2013 WL 5035694 *1 (Fla. 2013) (Table) (defining warrant eligible).

Accordingly, the circuit court , correctly denied relief to Hannon on this claim.

Proportionality

Hannon contends that his sentence is disproportionate when compared to his codefendants’ sentences. The circuit court found that this claim was procedurally barred because it has been previously addressed on direct appeal and-is untimely. We agree.

We rejected Hannon’s proportionality claims on direct appeal and ,in his initial postconviction motion. Hannon I, 638 So.2d at 44 (finding that “[c]learly, Hannon is the most culpable of the three accomplices in this case, and the two death sentences are justified”); Hannon II, 941 So.2d at 1145 (affirming the postconviction court’s denial of a similar claim couched in terms of newly discovered evidence' “because the instant case does not involve equally culpable codefendants”). Because we have addressed this claim on direct appeal and postcqnviction, it is both procedurally barred and without substantive merit. E.g., Lukehart v. State, 70 So.3d 503, 524 (Fla. 2011) ("Lukehart challenges this Court’s proportionality determination from the direct appeal, ... [t]his claim is procedurally barredlas it was raised and rejected on direct appeal.”); Allen v. State, 854 So.2d 1255, 1261-62 (Fla. 2003). Also, the claim is untimely. One of Hannon’s code-fendants, Charles Acker, was retried in 2001. Any claims relatéd to that retrial are well outside the one-year time limitation prescribed by Rule 3.851(d)(1). And the circuit court correctly found that Hannon failed to establish any of; the Rule 3.851(d)(2) exceptions to' the one-year limit. Because this claim is procedurally barred, we do not reach the merits of Hannon’s arguments.

Likewise, Hannon raised claims regarding the testimony of an FBI analyst and blood spatter expert. We have twice rejected his claim regarding the FBI analyst, Hannon II, 941 So.2d at 1145-46; Hannon VII, 2016 WL 3352780 at *1, and once rejected the claim regarding' the blood spatter expert. Hannon II, 941 So.2d at 1121-24. Thus, those claims must fail as well.

Contrary to the dissent’s assertion, the record is actually quite clear that the wound inflicted, to one victim’s neck by Hannon was the fatal wound. Instead of basing a proportionality determination on Hannon’s allegations ánd assertions, we rely on the record, which refuted the assertions. At Hannon’s trial and Acker’s retrial, the medical examiner, Dr. Diggs, testified about the neck wound. He opined that I the wounds inflicted by Acker could possibly be “potentially lethal”; whereas, the neck wound actually inflicted by Hannon was “certainly a lethal wound.” Furthermore, the wounds inflicted by Acker would not have killed Snider for at least some extended time period; whereas, the wound inflicted by Hannon caused Snider to drop immediately and die in less than thirty seconds. This case is distinguishable from McCloud v. State, 208 So.3d 668 (Fla. 2016), where we held that death was disproportionate, noting that “the jury explicitly determined by special interrogatory that' McCloud was not the shooter” and that a “less culpable, non-triggerman defendant” cannot be sentenced to’ death when “the' more culpable, triggerman defendant” is sentenced'to a lesser sentence. Id. at 687-89. However, McCloud is inap-posite because the record here demonstrates that Hannon was more culpable than his codefendants. Not. only was Han-non the “triggerman” by shooting Carter, he was also the “buck-knife man” by slashing Snider’s throat to the' point of near decapitation. Our relative culpability analysis in Hannon I, 638 So.2d at 44, was not dependent on who had the motive to kill Snider; rather, it was based on the facts in record, which demonstrated that Hannon killed Snider and Carter.

Although Hannon’s codefendants were culpable, Hannon was the person who slashed Snider’s throat and shot Carter six times; as such, it-is as true today as it was twenty-three years ago: Hannon was “the most culpable of the three accomplices in this case.” Id Accordingly, the circuit court properly denied this claim.

Records Requests

. Hannon challenges whether the circuit court abused its discretion in sustaining the State’s objections to disclosure of certain public records. The disputed records fall into three general categories: (1) information regarding the three-drug protocol and the State’s current supply; (2) records of the last eight executions along with records indicating personnel or undocumented protocol changes; and (3) records pertaining to the proportionality of Han-non’s sentences.

We review rulings on public records requests pursuant to Florida Rule of Criminal Procedure 3.852 for abuse of discretion. Hill v. State, 921 So.2d 579, 584 (Fla. 2006). “Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” Parker v. State, 904 So.2d 370, 379 (Fla. 2005) (quoting State v. Coney, 845 So.2d 120, 137 (Fla. 2003)). Rule. 3.852 is “not intended to be a procedure authorizing a fishing expedition for records.” Sims v. State, 753 So.2d 66, 70 (Fla. 2000), For this reason, records requests under Rule 3.852(h) are limited to “persons and agencies who were the recipients of a public records request at the time the defendant began his or her postconviction odyssey,” id.; whereas, records requests under Rule 3.852(i) must “show how the requested records relate to a colorable claim for postconviction relief and good cause as to why the public records request was not made until after .the death warrant was signed.” Asay VI, 224 So.3d at 700 (quoting Tompkins v. State, 872 So.2d 230, 244 (Fla. 2003)).

First, the circuit court properly denied Hannon’s records request regarding the three-drug protocol, including the sourcing, storage, and expiration dates of the State’s .supply of etomidate. The request at .issue was directed at the DOC and Florida Department of Law- Enforcement (FDLE) pursuant to Rule 3,852(i). We have specifically rejected similar claims in the past as “overbroad and burdensome”:

Muhammad contends the circuit court abused its discretion in refusing to order -the DOC to disclose the manufacturers of the lethal injection drugs used in Florida executions, together with the lot numbers and expiration dates. No abuse of discretion has been shown. We have held that the source of the drugs used in lethal injection is of questionable relevance to a colorable Eighth Amendment claim. See Valle, 70 So.3d at 549. The same principle would apply to the drugs’ lot numbers and expiration dates. Moreover, this Court' will presume that the DOC will act in accordance with its protocol and carry out its duties properly. See, e.g., id. This same presumption would extend to' presume that the DOC will obtain viable versions of the drugs it intends to use and confirm before use that the drugs are still viable, as the .protocol requires.

Muhammad, 132 So.3d at 203, 206. Moreover, in Walton v. State, 3 So.3d 1000 (Fla. 2009), this Court stated that production of records relating to lethal injection are “unlikely to lead to a colorable claim for relief [when] the challenge to the constitutionality of lethal injection as currently administered in Florida has been fully considered and rejected by the Court.” Id. at 1014. The current injection protocol was fully considered and approved of in Asay VI, 224 So.3d at 700-02. For these reasons, the circuit court did not abuse its discretion in denying Hannon’s request.

Second, Hannon requested records for the last eight executions along with “unwritten changes” to the protocol. This request was made pursuant to Rule 3.852(i), and it was properly denied. As a practical matter, most of the requested records for previous executions were carried out using a different protocol, therefore, it is not likely that they relate to a colorable claim. Moreover, under our precedent, Hannon was not entitled to those records. In Valle, we held that records of the last five executions were “not related to a colorable Eighth Amendment claim.” 70 So.3d at 549. Moving onto the “unwritten changes” portion of Hannon’s challenge, he argues that the requested records are all related and necessary to his “veil of secrecy” claim. However, Hannon has the current protocol and possesses records regarding the current three-drug protocol disclosed as part of the Asay VI litigation. Thus, he has the records necessary to develop a colorable claim. Moreover, in Muhammad, we noted that records “requests related to actions of lethal injection personnel in past executions do not relate to a colorable claim concerning future executions because there is a presumption that members of the executive branch will perform their duties properly.” 132 So.3d at 203. Furthermore, Hannon fails to explain why he waited until the eve of execution to request these records. His “unwritten changes” and related “veil of secrecy” claims would be more compelling had Hannon been actively pursuing these records. Instead, Hannon waited until a death warrant was signed and requested these voluminous records despite the truncated' period for his postconviction motion. In the past, we have not condoned “eleventh hour attempts] to delay the execution” with records requests, and we will not begin now. See Sims, 753 So.2d at 70; see also Tompkins, 872 So.2d at 243-44. Thus, this portion of the claim was properly denied. '

Third, Hannon’s proportionality claim is procedurally barred, as addressed above. However, pertaining to his records request challenge, Hannon is in possession of the transcript from Acker’s 2001 retrial, which he filed with this Court. Considering Han-non’s claim, this is the record that Hannon would need in order to establish a color-able claim. Thus, the records request challenge is moot.

In sum, Hannon failed to demonstrate his entitlement to the disputed records, accordingly, the circuit court properly denied relief.

Hurst Claims

In Hannon’s third successive postcon-viction motion, he raised various Hurst challenges. The circuit court correctly rejected each claim in accordance with our precedent.

Hannon’s case became final on February 21, 1995. We have consistently held that Hurst is not retroactive prior to June 24, 2002, the date that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), was released. E.g., Lambrix v. State, 227 So.3d 112, 2017 WL 4320637 (Fla. Sept. 29, 2017), cert. denied, Nos. 17-6222, 17A375, — U.S. —, 138 S.Ct. 312, 199 L.Ed.2d 202, 2017 WL 4409398 (U.S. Oct. 5, 2017); Hitchcock, 226 So.3d 216; Asay v. State (Asay V), 210 So.3d 1, 22 (Fla. 2016), cert. denied, No. 16-9033, — U.S. —, 138 S.Ct. 41, 198 L.Ed.2d 769, 2017 WL 1807588 (U.S. Aug. 24, 2017). Hannon contends that he raises novel chapter 2017-1, Laws of Florida, and Eighth Amendment challenges and that we have not addressed those issues; yet, Hannon is mistaken because we have expressly rejected these claims. Lambrix, 227 So.3d 112 (rejecting chapter 2017-1 and Eighth Amendment claims under Hurst); Asay VI, 224 So.3d at 702-03 (rejecting chapter 2017-1 and Eighth Amendment claims as “not novel and [ ] previously rejected by this Court”); Hitchcock, 226 So.3d at 217 (denying Hurst relief despite the fact that Hitchcock raised Eighth Amendment claims). Hannon chooses to ignore our precedent because he disagrees with the retroactivity cutoff that we set in Asay V, however, that decision is final and has been impliedly approved by the United States Supreme Court, which denied certiorari review. See Asay v. Florida, No. 16-9033, — U.S. —, 138 S.Ct. 41, 198 L.Ed.2d 769, 2017 WL 1807588 (U.S. Aug. 24, 2017). Clearly, Hannon is not entitled to Hurst relief, thus, there is .no Hurst error to review for harmless error.

Accordingly, the circuit court correctly denied Hannon’s third successive motion for postconviction relief.

Potential Caldwell Claims

Hannon directs this Court to a dissent from the denial of certiorari in Truehill v. Florida, Nos. 16-9448, 17-5083, — U.S. -, 138 S.Ct. 3, 199 L.Ed.2d 272, 2017 WL 2463876 (U.S. Oct. 16, 2017), cert. denied, (Sotomayor, J., dissenting). That dissent criticizes this Court for failing to address Eighth Amendment claims under Caldwell. We need not reach that issue in this case, however, because Hannon does not specifically raise a Caldwell claim in either appeal. Hannon’s Eighth Amendment claim is essentially a challenge to the arbitrariness of our retroactivity decision in Asay V. Therefore, although Hannon cites Truehill for the proposition that certain Supreme Court Justices believe that we have not resolved various Eighth Amendment issues, he does not raise an independent Caldwell challenge here. As described above, the Eighth Amendment claim that Hannon raised has been answered by this Court in other opinions.

The dissent asserts that Hannon raises a Caldwell claim in this Court. It is true that Hannon challenged his sentences under Caldwell in the circuit court, however, he did not raise that claim here. In his Response to Order to Show Cause, Hannon merely explained that he raised Caldwell claims in his initial postconviction motion, Hannon II, 941 So.2d at 1144, and argued that Caldwell supports his claim of harmful error under Hurst. There is no error to review for harmful error, thus, that portion of his claim fails with the harmful error claim itself.

CONCLUSION

Based on the foregoing, we affirm the circuit court’s denial of Hannon’s third and fourth successive postconviction motions. Because we find that Hannon is not entitled to relief, we accordingly deny his motions for stay of execution. No oral argument is necessary and no rehearing will be entertained by this Court. The mandate shall issue immediately.

It is so ordered.

.. LABARGA, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur.

CANADY, J., concurs in result.

PARIENTE, J., dissents with an opinion.

QUINCE, J., recused.

PARIENTE, J.,

dissenting.

Consistent with my previous dissents,1 conclude that Hurst should apply retroactively to Hannon’s sentence, and because Hannon’s jury never heard the substantial mitigation that could have been presented if his counsel had performed a reasonable investigation, I would not rely on the jury’s unanimous recommendation for death to conclude that the Hurst error is harmless beyond a reasonable doubt. See Kaczmar v. State, 228 So.3d 1, 16-17, 2017 WL 410214, *11 (Fla. Jan. 31, 2017) (Pariente, J,, concurring in part, dissenting in part). This Court has made clear that the death penalty “must be reserved only for defendants convicted of the most aggravated and least mitigated murders,” and I do not believe that a jury has properly determined that Hannon is among those defendants. Hurst v. State, 202 So.3d 40, 59-60 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

L joined Justice Anstead’s dissenting opinion from this Court’s denial of Han-non’s initial postconviction appeal, arguing that Hannon was entitled to a new penalty phase due to counsel’s failure to properly investigate and present mitigation to the penalty phase jury, Hannon v. State (Hannon II), 941 So.2d 1109, 1166 (Fla. 2006) (Anstead, J., dissenting). As to Hannon’s counsel’s failure to investigate and present mitigation during the penalty phase, Justice Anstead made clear:

Shockingly, the record reflects that Hannon’s counsel did no investigation for mitigation, and, in fact, initially- was not going to present any form of mitigation during the penalty phase, even a continuing claim of not guilty. Hannon’s counsel stated at the postconviction evi-dentiary hearing, “Well, we had nothing to mitigate. He was not guilty. He didn’t do it. That was it.” However, at the penalty phase the trial judge actually directed him to reconsider this irrational strategy; thereafter, Hannon’s counsel presented the evidence relating to the “my client is too nice to have done this” strategy.
Although Hannon’s counsel stated that he had asked Hannon’s family members if Hannon was “born with any problems” and the family members did not bring any mental health issues to his attention, the testimony of Hannon’s family members tells a different story. Hannon’s sister stated that Hannon’s counsel never asked her about his life before the murders, his drug and alcohol use, or his home life. She asserted, “I had actually tried to contact [Hannon’s counsel] on more than one occasion and he absolutely refused to listen to what I had to say or contribute. He did not want to talk to me at all. I never had a phone call returned.” She was also listed as a witness for the penalty phase by Hannon’s attorney but was never called during the penalty phase. Hannon’s attorney erroneously had her listed as living in a different state even though she lived in Florida. She stated at the evi-dentiary hearing, “[Hannon’s counsel] told me I had nothing to contribute and he didn’t need me for anything.”

Id. at 1158-62 (emphasis added).

As to the available mental mitigation that Hannon’s counsel failed to present, Justice Anstead explained that defense counsel, because of his failure to investigate, lacked knowledge of significant information pertaining to Hannon:

[Counsel] did not know that Hannon began using drugs and alcohol at age eleven and had a history of using LSD on a regular basis at the age of fifteen, as well as crystal methamphetamine, hallucinogenic mushrooms, and crack cocaine, nor did he know that Hannon was paranoid when under the influence of drugs. He did not question Hannon’s parents concerning . Hannon’s . expulsion from school for smoking marijuana.- He did not know that Hannon’s daily alcohol consumption before the murders was half a case of beer and a fifth of. bourbon, and that on the night of the murders, Hannon drank almost, two cases of beer. Hannon’s sister testified at the evidentiary hearing that Hannon’s behavior was irritated and edgy leading up to the murders. He would drink excessively and use cocaine on a daily basis without sleeping at night. He also used acid a couple of times- a month.

Id. at 1164 (footnote omitted). As to mitigation actually presented at the postcon-viction evidentiary hearing, Justice An-stead explained:

The-evidence presented at Hannon’s evidentiary hearing • established that Hannon had a history of severe drug and alcohol abuse “to the point of blacking out and passing out,” parental neglect, and neurological impairments resulting -in poor impulse control and flawed decision-making. Drs. Crown and Sulton testified that Hannon’s impairments impacted . his daily functioning. Dr. Crown, board certified in neuropsy-chology, stated that Hannon was “having difficulty with cognitive processing” and that there was evidence of “head-trauma from accidents, from being-kicked, from falls.” He also testified,
In terms of drug [e]ffects the greatest exposure to drugs and the greatest absorption level is in the fronto temporal area and actually the subcortical area, relating to the limbic system. And these are areas that are responsible’ for concentration, attention, control of impulsivity, understanding the long-term consequences of immediate behavior and processing immediate memory, and also it aids in restoring memory function:
Dr. Crown also noted that Hannon suffered from rheumatic fevér at age seven; its impact on his health was severe and he missed months of schooling. Hannon also suffered various head injuries, including losing consciousness at football practice in the ninth grade, getting kicked in the head by a bull, being hit by scaffolding at work, and being involved in several car accidents. “[Rjapidly retrieving ... information and applying it in a new situation is extremely difficult for him, and that’s where he falls apart.” Hannon was distracted very easily and has “difficulties under stress, pressure, drugs, lack of sleep, in fully comprehending information and attending to tasks.”
Drs. Crown and Sulton both performed the Wechsler Adult Intelligence Scale Revised, which resulted in a very low score on the subtest that is most indicative of brain damage. Also, Han-non told Dr. Sulton that he had gone AWOL from the military on three separate occasions. Dr. Sulton found several nonstatutory mitigators such as parental neglect, lack of structure, lack of discipline, lack of guidance in his childhood environment, and serious childhood illnesses. Dr. Sulton also termed him an “extreme follower” and found that Han-non had severe and chronic substahce abuse problems, was impulsive, lacked concentration, and had personality changes due to his' cocaine addiction. His score of global intelligence was average, but he scored an 8 out of 100 on the “digit symbol subtest” relating, to “the rate of speed with which he is capable of learning symbol relationships,” which could indicate a learning disability. Dr. Lipman, a neuropharmacologist, stated that Hannon would combine “smoking, drinking, taking acid and Quaaludes” as a teenager and this could have had a long-term effect on his brain, even before he moved on to crystal meth and cocaine. Even the State’s witness, Dr. Sidney Merin, agreed that Hannon had “a polysubstance abuse disorder.” Therefore, if he had performed an investigation, Hannon’s counsel could have presented substantial and persuasive testimony concerning Hannon’s mental health to establish a case of mitigation.

Id. at 1166 (footnote omitted).

Determining that the lack of mitigation entitled Hannon to a new penalty phase, Justice Anstead concluded:

No material mitigation was supplied to the jury in Hannon’s penalty phase; instead Hannon’s counsel chose to continue arguing innocence, an argument the jury had emphatically already rejected. Hence, in the face of this default by counsel, the jury was left with no choice but to impose the death penalty. Absolutely no mitigation was presented on behalf of Hannon, thereby resulting in a breakdown of our adversarial system as discussed by the Supreme Court in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] and Wiggins [v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003),] and which resulted in the defendant being deprived of a reliable penalty-phase proceeding.
Having demonstrated both deficient performance and prejudice at the evi-dentiary-hearing below, Hannon should be entitled to a new sentencing proceeding in which he will be represented by competent counsel prepared to contest the State’s case for the death penalty by presenting the voluminous evidence of mitigation presented at the postconviction hearing.

Id. at 1169-70. Although the majority in 2006 relied on Hannon’s family’s involvement in choosing to waive mitigation as a strategy, it is 'axiomatic that defendants, such as Hannon in this case, cannot intelligently waive mitigation unless counsel performs a proper investigation. See id. at 1160-61; see also Wiggins, 539 U.S. at 526, 123 S.Ct. 2527; State v. Pearce, 994 So.2d 1094, 1102 (Fla. 2008).

In addressing the appeals before us, it is difficult to ignore the testimony that could have been presented if Hannon’s counsel had properly conducted a mitigation investigation. The United States Supreme Court made clear in Wiggins that mitigation significantly affects a jury’s sentencing determination, stating: “We further find that had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.” 539 U.S. at 536, 123 S.Ct. 2527. Thus, Hannon’s counsel’s failure regarding mitigation is even more disturbing in light of Hurst.

As I explained in Kaczmar:

Under Hurst, this Court cannot substitute its judgment for that of the jury and, therefore, cannot determine what weight the additional mitigation would have been assigned if it had been presented to the penalty phase jury. Nor can we speculate on the effect that the additional mitigation, if presented to the jury, would have had on the jury’s recommendation in [the] penalty phase.

228 So.3d 1, 16, 2017 WL 410214, at *11 (Pariente, J., concurring in part and dissenting in part). Further, in Robards v. State, 214 So.3d 568 (Fla. 2017), I emphasized the constitutional ramifications of “woefulfiy] inadequate] ... penalty phase counsel.” Id. at 576 (Pariente, J., concurring). As in Robards, the jury in Hannon’s case “was not presented with the full picture of [his] life when it made its recommendations.” Id. at 576-77.

Exacerbating counsel’s failure to present mitigation, which left the jury with. “no choice” but to recommend death at the penalty phase, Hannon II, 941 So.2d at 1169 (Anstead, J., dissenting), Hannon’s codefendant, Acker, was given a life sentence for his role in the crimes after this Court affirmed Hannon’s convictions and sentences on direct appeal. Id. at 1144 (per curiam). Denying Hannon’s newly discovered evidence claim on postconviction, this Court relied on its. conclusion on direct appeal—before Acker was retried—that Hannon was the “most culpable” of the two codefendants. Id. at 1145. However, as pointed out in Justice Anstead’s dissenting opinion, at Hannon’s postconviction eviden-tiary hearing “Dr. Sulton also termed [Hannon] an ‘extreme follower’, and found that Hannon had severe and chronic substance abuse problems, was impulsive, lacked concentration, and had personality changes due to his cocaine addiction.” Id. at 1169-70. (Anstead, J., dissenting).

Hannon raised the issue of proportionality in his third successive postconviction motion and argues on appeal to this Court that his sentence violates the Eighth Amendment based on proportionality. Further, although not discussed in this Court’s opinion on direct appeal, it was Hannon’s codefendant who had the motivation to kill the targeted 'victim, who had vandalized the codefendant’s sister’s apartment- a week before. See Hannon I, 638 So.2d at 43.

The Court, explained on direct appeal that “[t]he motive was the conflict between [the victim] and Jim Acker’s sister.” Id. at 44. Likewise, Hannon states in his brief to this Court that “Acker, was the instigator and had the only motive.” initial Br. of Appellant, Hannon v. State, No. SC17-1837 (Oct. 18, 2017), at 83. Hannon alleges that “Acker was.equally responsible for [the victim’s] cause of death, multiple stabbing wounds, where no single wound was singled out as being fatal but rather were all lethal.” Id. Hannon cites to the medical examiner’s testimony in both Hannon’s and Acker’s trials, stating that any one of the stab wounds inflicted by Acker on the victim would have been fatal. Id. at 71. Thus, it would appear that Acker had the motive to murder the victim and played a substantial role in the murder.

Of course, had this Court granted Han-non a new penalty phase in 2006, as Justice Anstead advocated, Hannon would now have the benefit of the retroactive application of Hurst’ and would be entitled to a new penalty phase in light of Hurst if the jury had not unanimously 'recommended death on resentencing. See Mosley v. State, 209 So.3d 1248, 1283 (Fla. 2016). While reaching this conclusion may require a lot of “ifs,” Hannon’s case demonstrates to me the inherent'arbitrariness of the imposition of the death penalty as to who lives and who dies, even among code-fendants.

Hannon explains this arbitrariness in his Response to this Court’s -Order to -Show

Cause, pointing to various defendants who werq convicted of older homicides and received the benefits of Hurst because they were granted resentencing. Response to Order to Show Cause, Hannon v. State, No. SC17-1618 (Oct. 12, 2017), at 12-17. And, as I stated in my concurring in part, dissenting in part opinion in Asay v. State (Asay V), 210 So.3d 1, 32-37 (Fla. 2016), cert. denied, No. 16-9033, — U.S. —, 138 S.Ct. 41, 198 L.Ed.2d 769, 2017 WL 1807588 (U.S. Aug. 24, 2017):

The. majority’s conclusion results in an unintended, arbitrariness as to who receives relief depending on when the defendant was sentenced or, in some cases, resentenced. For example, many defendants whose crimes were committed before 2002 will receive the benefit of Hurst because they were previously granted a resentencing on other grounds and their newest death sentence was not final when Ring was decided. To avoid 'such arbitrariness and to ensure uniformity and fundamental fairness in Florida’s capital sentencing, our opinion in Hurst should be applied retroactively to all'death sentences.

Id. at 36 (Pariente, J., concurring in part and dissenting in part) (footnote omitted). Hannon’s case demonstrates this arbitrariness.

Finally, Hannon raised claims based on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in his initial postconviction motion and again after Hurst in his response to this Court’s Order to Show Cause at issue in this case. Hannon II, 941 So.2d at 1117, n.2; Response to Order to Show Cause, supra, at 11. He also raised this issue in his Renewed Motion to Stay Execution, noting Justice Sotomayor’s recent dissenting opinion in Truehill v. Florida, Nos. 16-9448, 17-5083, — U.S. —, 138 S.Ct. 3, 199 L.Ed.2d 272, 2017 WL 2463876 (U.S. Oct. 16, 2017), joined by Justices Ginsburg and Breyer. Per curiam op. at 16. Thus, Hannon has raised a valid Caldwell claim both before and after Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst.

On the merits, I believe that the Caldwell claim further strengthens Hannon’s Eighth Amendment argument. Hannon’s Response to this Court’s Order to Show Cause explains the flaw in the jury instructions used in his pre-Hurst penalty phase that diminish the jury’s sense of responsibility:

If a bias in favor of a death recommendation increases when the jury’s sense of responsibility is diminished, removing the basis for that bias increases the likelihood that one or more jurors will vote for a life sentence. Here, the record in Mr. Hannon’s case supports that presumption where his jury received inaccurate instructions as to their ultimate responsibility during sentencing and as to their power and to dispense mercy and preclude a death sentence.... This [Court’s, holding in Hurst] is particularly relevant ,in Mr. Hannon’s case where he has argued during his posteonviction appeals that the jury was not. instructed it could exercise mercy and residual doubt was the only argument trial counsel advanced to the jury during [the] penalty phase.

Response to Order to Show Cause, supra, at 22-23. Thus, this claim further supports the conclusion I explained above—that the jury in Hannon’s case was not properly informed or instructed to. determine, as constitutionally required by Hurst, that Hannon is deserving of the ultimate punishment because he committed murders that are among “the most aggravated and least mitigated.” Hurst, 202 So.3d at 60.

CONCLUSION

In recommending between life and death in Hannon’s case, the jury was denied access to “voluminous evidence of mitigation.” Hannon II, 941 So.2d at 1169 (Anstead, J., dissenting). Also, Hannon’s code-fendant, who had personal motivation to commit the crime and first attacked the targeted victim, received a life sentence of which this Court was unaware when it affirmed Hannon’s sentences on direct appeal. For all these reasons, I dissent from denying Hannon relief from his pending death warrant.

      . One of the issues litigated in Hannon’s initial posteonviction motion was counsel's failure to investigate and present mitigation. Hannon II, 941 So.2d at 1125-38. Most of the dissent is based on this claim, however, that claim is procedurally barred here and also contrary to the factual circumstances. See, e.g., Hunter v. State, 29 So.3d 256, 267 (Fla. 2008) (“Claims raised in prior postconviction proceedings cannot be relitigated in a subsequent postconviction motion unless the mov-ant can demonstrate that the grounds for relief were not known and could not have been known at the time of the earlier proceeding.”); Wright v. State, 857 So.2d 861, 868 (Fla. 2003) ("We will not entertain a second appeal of claims that were raised, or should have been raised, in a prior postconviction proceeding.”). Additionally, the dissent, in quoting a prior dissent at length, ignores the fact that it was Hannon and his family who made the decision not to present the mitigation with which the dissent again takes issue. Hannon II, 941 So.2d at 1126-28. Furthermore, as the dissent notes, the district court in Hannon IV, 622 F.Supp.2d at 1180-98, and the Eleventh Circuit in Hannon V, 562 F.3d at 1150-58, both denied relief to Hannon on this claim. Accordingly, no further discussion is necessary. ';

      . During our review, Hannon learned that sealed records were transmitted to the Capital Collateral Postconviction Records Repository without the parties’ knowledge. We granted a twenty-four-hour relinquishment of jurisdiction for the “limited purpose of an in camera inspection of the sealed records.” After conducting an in camera inspection, the circuit court entered an order on October 25, 2017, confirming that the sealed records did not entitle Hannon to relief.

      . At Hannon's trial, Dr. Diggs described the wound inflicted by Hannon to Snider’s neck the following way:
      So, when you got that amount of depth to the wound, it actually goes all the way back to the spine, you see. The wound actually stopped at the—at the backbone, the front of the backbone, of the cervical spine, as we , call it. That’s where it stppped. But it pretty much lacerated all of the tissue that normally sits in front of that. So, you're talking about a depth of approximately, about four inches,

      . The Hurst-related claims that Hannon raises in his Response to Order to Show Cause follow: (1) due process precludes the foreclosure of relief based on the decision in Hitchcock; (2) the Eighth Amendment and Florida Constitution entitle Hannon to retroactive application of Hurst; (3) chapter 2017-1 constitutes a substantive change in the law requiring retrospective application; and (4) Hannon’s death sentences violate Hurst, and the error is not harmless.

      . Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

      . Although the dissent acknowledges this, it ignores how that fact would procedurally bar a Caldwell claim in this case. See, e.g., Hunter, 29 So.3d at 267; Wright, 857 So.2d at 868.

      . See Lambrix v. State, 227 So.3d 112, 114—15, 2017 WL 4320637, *2-3 (Fla. Sept. 29, 2017) (Pariente, J., dissenting), cert. denied, Nos. 17-6222, 17A375, — U.S. -, 138 S.Ct. 312, 199 L.Ed.2d 202, 2017 WL 4409398 (U.S. Oct. 5, 2017); Asay v. State (Asay VI), 224 So.3d 695, 703-09 (Fla. 2017) (Pariente, J., dissenting); Hitchcock v. State, 226 So.3d 216, 220, 2017 WL 3431500, *3 (Fla. Aug. 10, 2017) (Pariente, J., dissenting), petition for cert. filed, No. 17-6180 (U.S. Sept. 29, 2017); Asay v. State (Asay V), 210 So.3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in part, dissenting in part), cert. denied, No. 16-9033, — U.S. -, 138 S.Ct. 41, 198 L.Ed.2d 769, 2017 WL 1807588 (U.S. Aug. 24, 2017),
      I note that this is not a case in which the defendant, before Hurst, waived the right to a penalty phase jury or the right to present mitigation altogether, Kaczmar v. State, 42 Fla. L. Weekly S127, — So.3d - (Fla. Jan. 31, 2017) (mitigation waiver); Mullens v. State, 197 So.3d 16 (Fla. 2016) (penalty phase jury waiver), cert. denied, — U.S. —, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017).

      . Hurst v. State, 202 So.3d 40, 59-60 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017),

      . I recognize that the United States Court of Appeals for the Eleventh Circuit also denied relief on Hannon’s claim that “counsel’s performance was inadequate during the penalty phase of his trial,” finding that our opinion was not “objectively unreasonable.” Hannon v. Sec'y, Dep’t of Corr., 562 F.3d 1146, 1148 (11th Cir. 2009). However, the federal standard for granting relief on a claim that the state courts denied is extremely narrow./


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: K.E.B.
    CASE NO.: SC17-1900
    Supreme Court of Florida.
    NOVEMBER 1, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and K.E.B. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall, be placed on probation for a period of four years from March . 17, 2016.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance* Inc.;

(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on July 6, 2015, and by extending the contract to cover the entire period of probation if necessary;

(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other individuals with a substance use disorder;

(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;

(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.; and

(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d) and (e) above.

3.The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint i-elated to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated, during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a fínding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.