United States District Court, M.D. Florida, Jacksonville Division
ORDER (EXECUTION SET FOR AUGUST 24, 2017)
TIMOTHY J. CORRIGAN, United States District Judge
Status / Parties' Positions
1988, Petitioner was convicted of two counts of first degree
murder. 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).
3, 2017, the Governor set Petitioner's execution for
August 24, 2017.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).
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.
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
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
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).
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
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.
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
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 ...