Appeal from the Circuit Court in and for Duval County,
Tatiana Radi Salvador, Judge - Case No. 161987CF006876AXXXMA
And an Original Proceeding - Habeas Corpus
J. McClain and Linda McDermott of McClain & McDermott,
P.A., Wilton Manors, Florida; and John Abatecola, Estero,
Florida, for Appellant/Petitioner
Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior
Assistant Attorney General, Tallahassee, Florida, for
M. Gottlieb of Florida Center for Capital Representation at
Florida International University College of Law, Miami,
Florida, for Amicus Curiae Florida Center for Capital
Representation at Florida International University College of
James Asay, a prisoner under sentences of death with an
active death warrant, appeals the circuit court's order
denying his third successive motion for postconviction relief
filed pursuant to Florida Rule of Criminal Procedure 3.851
and petitions this Court for a writ of habeas corpus. We have
jurisdiction. See art. V, § 3(b)(1), (9), Fla.
underlying facts of this case have been previously set forth
in this Court's opinion on direct appeal. See Asay v.
State (Asay I), 580 So.2d 610, 610-12 (Fla.),
cert. denied, 502 U.S. 895 (1991). A majority of the
details described therein are accurate, with the following
exceptions relating to Asay's second victim. We have
previously described the victim born Robert McDowell as
"a black man dressed as a woman." McDowell was
known to friends and neighbors as Renee Torres. Torres was
identified at trial by everyone who testified as white and
Hispanic. Renee Torres née Robert McDowell may have
been either white or mixed-race, Hispanic but was not a black
man. We regret our previous error.
trial, Mark Asay was convicted of two counts of first-degree
murder for which a jury voted nine to three to recommend
death sentences. We affirmed the convictions and sentences in
Asay I, 580 So.2d 610. Asay's sentences became final
when the United States Supreme Court denied his petition for
writ of certiorari on October 7, 1991. Asay v.
Florida, 502 U.S. 895 (1991).
affirmed the denial of Asay's initial motion for
postconviction relief. Asay v. State (Asay
II), 769 So.2d 974 (Fla. 2000). We also denied Asay's
petition for a writ of habeas corpus, filed October 25,
2001. Asay v. Moore (Asay
III), 828 So.2d 985, 989 n.8 (Fla. 2002).
affirmed the denial of Asay's successive motion for
postconviction relief, in which he argued that Florida's
capital sentencing scheme was unconstitutional pursuant to
Ring v. Arizona, 536 U.S. 584 (2002). Asay v.
State (Asay IV), 892 So.2d 1011 (Fla. 2004)
(table). Additionally, Asay sought and was denied federal
relief. Asay v. Sec'y, Fla. Dep't of
Corr., Case No. 3:05-cv-00147-J-32PDB, 2014 WL 1463990
at *28 (N.D. Fla. Apr. 14, 2014).
January 8, 2016, Governor Rick Scott signed a death warrant
scheduling Asay's execution on March 17, 2016. On January
12, 2016, the United States Supreme Court issued its decision
in Hurst v. Florida, 136 S.Ct. 616 (2016), holding,
in relevant part, that sections 775.082(1) and
921.141(1)-(3), Florida Statutes (2010), were
unconstitutional because "[t]he Sixth Amendment requires
a jury, not a judge, to find each fact necessary to impose a
sentence of death. A jury's mere recommendation is not
enough." Id. at 619. Asay filed a petition for
a writ of habeas corpus on January 19, 2016, and filed his
second successive motion for postconviction relief on January
27, 2016. The circuit court summarily denied all
four claims and Asay's motion for a stay of execution.
Asay appealed and both cases were heard at Oral Argument on
March 2, 2016, after which we stayed Asay's execution.
December 22, 2016, we lifted the stay and issued an opinion
denying postconviction relief. Asay v. State
(Asay V), 210 So.3d 1 (Fla. 2016), petition for
cert. filed, No. 16-9033 (U.S. Apr. 29, 2017). Asay
sought a writ of certiorari in the United States Supreme
Court on April 29, 2017. The State filed its brief in
opposition on July 3, 2017. The petition is still pending.
July 3, 2017, Governor Scott reset Asay's execution for
August 24, 2017. Asay filed his third successive
postconviction motion with the fourth circuit, arguing: (1)
that he was denied access to public records, (2) that the new
lethal injection protocol is unconstitutional; (3) that the
manner in which the execution was reset violated due process,
and (4) that section 922.06 is unconstitutional. The circuit
court denied Asay's claims. This appeal follows.
claim, Asay argues that the manner in which his execution was
rescheduled violated his rights to due process. Asay also
argues that he has been denied due process throughout the
proceedings because he was denied access to public records,
because he was not permitted a continuance to secure an
expert witness, because he was not permitted to question
certain witnesses, and because the circuit court denied his
request to stay his execution.
relates to Asay's rescheduled execution, the circuit
court summarily denied this claim. The circuit court first
found that the claim was not cognizable under rule 3.851 and
"decline[d] to consider [Asay's] argument as to why,
how, and when the [Attorney General] requested the United
States Supreme Court for an extension of time to file a
brief." The circuit court therefore found that there was
no correlation between the Attorney General's action and
Asay's due process rights. Finally, the circuit court
found the claim without merit.
defendant is entitled to an evidentiary hearing on a
postconviction motion unless it is clear from the motion or
record that the movant is not entitled to relief or the claim
is legally insufficient. See Jackson v. State, 147
So.3d 469, 485 (Fla. 2014) (citing Valentine v.
State, 98 So.3d 44, 54 (Fla. 2012)). Conclusory
allegations are not sufficient and the defendant must
establish a prima facie case based on a legally valid claim.
Id. If there is any doubt whether the movant has
made a facially sufficient claim, this Court will presume
that an evidentiary hearing is required. Id.
(quoting Walker v. State, 88 So.3d 128, 135 (Fla.
discussed in the next issue, Asay cannot demonstrate that he
is entitled to relief on his claim that the rescheduling of
the warrant violated his right to due process. In fact, it
appears that Asay's claim is actually a disagreement with
the process that he is due as articulated by the statute.
Asay acknowledges in his next issue that the statute permits
exactly what occurred, which means he has been afforded the
process available. The circuit court thus correctly concluded
that Asay's claim was not cognizable under rule 3.851.
relates to the public records requests, the circuit court
found that because the purpose of a rule 3.851 motion
"is to challenge the validity of [a] [d]efendant's
underlying conviction and sentence of death, " the
circuit court's intermittent rulings did "not give
rise to additional claims for attacking the underlying
conviction and sentence." Accordingly, the circuit court
found the public records claim was not cognizable in a motion
for postconviction relief. The circuit court nevertheless
considered the merits of the claim and determined that
Asay's claim was refuted by the record in several
instances and otherwise without merit.
Rule of Criminal Procedure 3.852(i)(2) requires production of
public records upon a finding of the following:
(A) collateral counsel has made a timely and diligent search
of the records repository;
(B) collateral counsel's affidavit identifies with
specificity those additional public records that are not at
the records repository;
(C) the additional public records sought are either relevant
to the subject matter of a proceeding under rule 3.851 or
appear reasonably calculated to lead to the discovery of
admissible evidence; and
(D) the additional records request is not overly broad or
See Valle v. State, 70 So.3d 530, 549 (Fla. 2011)
(quoting Florida Rule of Criminal Procedure 3.852(i)(2)).
Court has stated that "a defendant 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." Tompkins v. State, 872 So.2d 230,
244 (Fla. 2003) (citing Glock v. Moore, 776 So.2d
243, 254 (Fla. 2001); Bryan v. State, 748 So.2d
1003, 1006 (Fla. 1999)). In Sims v. State, 753 So.2d
66, 70 (Fla. 2000), this Court made clear that while the
language of the rule and statute provide for the production
of records after a warrant has been signed, "this
discovery tool is not intended to be a procedure authorizing
a fishing expedition for records unrelated to a colorable
claim for postconviction relief." Accordingly, where a
defendant cannot demonstrate that he or she is entitled to
relief on a claim or that records are relevant or may
reasonably lead to the discovery of admissible evidence, the
trial court may properly deny a records request. See
Pardo v. State, 108 So.3d 558 (Fla. 2012); Tompkins
v. State, 994 So.2d 1072, 1090 (Fla. 2008);
Valle, 70 So.3d at 547-49.
disputed records relate to communications between the
Attorney General and the Governor's office regarding the
rescheduling of Asay's execution and manufacturer
information for the drugs used in the lethal injection
protocol. Because Asay cannot demonstrate that he is entitled
to relief on claims related to these records, the circuit
court properly summarily denied relief.
circuit court's rulings on Asay's motion for a
continuance and the State's motion to exclude witnesses
are reviewed for an abuse of discretion. Williams v.
State, 209 So.3d 543, 556 (Fla. 2017). Asay has not
demonstrated that the trial court abused its discretion in
relation to either ruling. Asay's continuance was
requested in order to have his expert testify. The circuit
court gave the witness the option to testify at the time
convenient to him by any remote method he preferred:
telephonically or electronically. Asay's expert was able
to testify. The State's motion to exclude witnesses who
were members of the execution team is supported by statutory
and case law. § 945.10(g), Fla. ...