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Asay v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

August 22, 2017

MARK JAMES ASAY, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER (EXECUTION SET FOR AUGUST 24, 2017)

          TIMOTHY J. CORRIGAN, United States District Judge

         I. Status / Parties' Positions

          In 1988, Petitioner was convicted of two counts of first degree murder.[1] The jury recommended a death sentence for each conviction by a nine-to-three vote, and the trial court imposed a sentence of death for each conviction. Petitioner previously filed a federal habeas corpus petition that this Court denied on the merits on April 14, 2014. See Order (Doc. 152). Petitioner appealed the judgment but voluntarily dismissed the appeal prior to the Eleventh Circuit issuing a decision. See Order of United States Court of Appeals for the Eleventh Circuit (Doc. 157).

         On July 3, 2017, the Governor set Petitioner's execution for August 24, 2017.[2]Petitioner has since filed in this Court two successive habeas petitions. See Order (Doc. 164), No. 3:05-cv-147-J-32PDB (Aug. 14, 2017) (construing a Rule 60(b) motion as a successive habeas petition and dismissing it without prejudice for lack of jurisdiction); Order (Doc. 23), No. 3:16-cv-43-J-32JRK (July 31, 2017) (finding a habeas petition to be successive and dismissing it without prejudice for lack of jurisdiction).

         On August 20, 2017, Petitioner filed in the instant case a Motion for Relief from the Judgment pursuant to Rule 60(b)(6) (Doc. 165) (Motion). Petitioner bases his argument on a statement made by the Florida Supreme Court in its August 14, 2017 opinion, that the second murder victim (McDowell) “may have been either white or mixed-race, Hispanic but was not a black man.” Asay v. State, Nos. SC17-1400, SC17-1429, 2017 WL 3472836, at *1 (Fla. Aug. 14, 2017). At bottom, his argument is this. On direct appeal, the Florida Supreme Court referred to the second victim (McDowell) as “a black man dressed as a woman.” Asay v. State, 580 So.2d 610, 611 (Fla. 1991). Then, in summary fashion, the Florida Supreme Court found “no merit” in Petitioner's claim that “the trial court erred by allowing racial prejudice to be injected into the trial.” Id. at 612 n.1. During collateral proceedings, the court again referred to McDowell as a “black man” and affirmed the trial court's denial of Petitioner's claim that his counsel was “ineffective for failing to rebut the State's arguments that he committed the crime due to his racial animus.” Asay v. State, 769 So.2d 974, 976, 984-85 (Fla. 2000). Now, ten days before Petitioner's scheduled execution, the Florida Supreme Court has acknowledged it was in error concerning the race of Mr. McDowell.

         In his original habeas petition in this Court, Petitioner presented as Ground VI the following claim:

A FAIR TRIAL MUST BE A RACE NEUTRAL TRIAL. HERE THERE WAS EVIDENCE THAT THE FIRST VICTIM WAS A BLACK MALE BUT THE SECOND VICTIM WAS CLEARLY A[] HISPANIC MALE. ALTHOUGH MUCH DISCUSSION IS HAD WITH REGARD TO RACE-NEUTRAL JURIES, HERE THE PERVASIVE NATURE OF THE RACIAL EVIDENCE AND ARGUMENT OVERWHELMED AND TAINTED THE TRIAL PROCESS. EVEN THOUGH THE PROSECUTION WAS PERMITTED TO INTERJECT RACE INTO THE PROSECUTION, MR. ASAY WAS FORBIDDEN FROM REFUTING THIS ACCUSATION OF RACISM.

Petition (Doc. 8) at 56. Petitioner also raised a claim of ineffective assistance of trial counsel for failing to call witnesses to prove that he was not a racist or to refute evidence of Petitioner's racism presented by the State. See Order (Doc. 152) at 24. In denying the petition on the merits, this Court found that the Florida Supreme Court's decision affirming the denial of Petitioner's postconviction motion and the decision affirming his direct appeal were both entitled to deference under the Antiterrorism and Effective Death Penalty Act (AEDPA). See id. at 24-33, 45. Specifically, regarding the ineffective assistance of counsel claim, the Court quoted the trial court and Florida Supreme Court decisions before applying AEDPA deference. See id. at 24-33. As to Ground VI, the Court found:

Petitioner asserts that he was denied a fair trial when racial evidence and argument tainted the trial process. The Florida Supreme Court summarily found this claim to have “no merit.” Asay v. State, 580 So.2d 610, 612 n.1 (Fla. 1991). Thus, there is a qualifying decision under [the Antiterrorism and Effective Death Penalty Act].
Upon thorough review of the record and the applicable law, this Court concludes that the Florida Supreme Court's adjudication of this claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Accordingly, Petitioner is not entitled to relief on ground six.

Order (Doc. 152) at 45 (citations modified and omitted) (footnotes omitted). In a footnote, the Court recognized that “[t]he State's theory of the case was that the murders were motivated by Petitioner's hatred of African-Americans. As noted by Respondents, the United States Supreme Court has never held that it is a violation of the right to a fair trial for the State to present its motive even when that motive is racial.” Id. at 45 n.50 (citation omitted).

         Petitioner now claims that the Florida Supreme Court's factual error regarding McDowell's race led to a “defect” in the integrity of the federal habeas proceedings. He contends that this Court deferred to the Florida Supreme Court's factual finding that McDowell was black in adjudicating Petitioner's original federal habeas petition. Now that the Florida Supreme Court has corrected its factual error, Petitioner urges this Court to reopen its judgment.

         Respondents filed a response requesting that the Motion be denied. See Response to 60(b)(6) Motion to Reopen (Doc. 169). Respondents argue that there are no extraordinary circumstances that warrant reopening this case and alternatively address the merits of Petitioner's claims.

         Petitioner filed a Reply (Doc. 171) (Reply) citing to specific portions of the record where McDowell was referred to as black, and again urges the Court to reopen this case for further proceedings.

         II. Analysis

         “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6).

Rule 60(b) vests wide discretion in courts, but [the United States Supreme Court has] held that relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). In determining whether extraordinary circumstances are present, a court may consider a wide range of factors. These may include, in an appropriate case, “the risk of injustice to the parties” and “the risk of undermining the public's ...

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