Appeal from the Circuit Court in and for Pinellas County, Pat
Edward Siracusa, Jr., Judge - Case No. 521985CF007084XXXXNO
And an Original Proceeding - Habeas Corpus
Pinkard, Capital Collateral Regional Counsel, and Chelsea Rae
Shirley, Julissa R. Fontán, and Kara R. Ottervanger,
Assistant Capital Collateral Regional Counsel, Middle Region,
Temple Terrace, Florida; Seth Miller, Innocence Project of
Florida, Inc., Tallahassee, Florida; Laura Fernandez, New
Haven, Connecticut; and Cyd Oppenheimer, New Haven,
Connecticut, for Appellant/Petitioner
Moody, Attorney General, Tallahassee, Florida, and Stephen D.
Ake, Senior Assistant Attorney General, Christina Z. Pacheco
and Lisa Martin, Assistant Attorneys General, Tampa, Florida,
Milton Dailey, a prisoner under sentence of death and an
active death warrant, appeals the circuit court's order
dismissing in part and denying in part his third successive
motion for postconviction relief, which was filed under
Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), Fla.
Const. We affirm, and we also deny Dailey's motion for
stay of execution and his petition for a writ of habeas
6, 1985, fourteen-year-old Shelly Boggio's "nude
body was found floating in the water near Indian Rocks Beach
in Pinellas County, Florida." Dailey v. State,
965 So.2d 38, 41 (Fla. 2007). Boggio "had been stabbed
repeatedly, strangled, and drowned." Id. A jury
found Dailey guilty of Boggio's first-degree murder and
unanimously recommended death. Dailey v. State, 594
So.2d 254, 256 (Fla. 1991). The trial court followed the
direct appeal, we affirmed Dailey's conviction but
reversed the sentence. Id. at 259. The trial court
again sentenced him to death on remand, and we affirmed.
Dailey v. State, 659 So.2d 246, 248 (Fla. 1995),
cert. denied, 516 U.S. 1095 (1996). In 2007, we
affirmed the circuit court's denial of Dailey's
initial motion for postconviction relief and denied his
petition for a writ of habeas corpus. Dailey, 965
So.2d at 48.
subsequently filed a petition for a writ of habeas corpus in
the United States District Court for the Middle District of
Florida. Dailey v. Sec'y, Fla. Dep't of
Corr., No. 8:07-cv-1897-T-27MSS, 2008 WL 4470016, at *1
(M.D. Fla. Sept. 30, 2008). The federal district court
dismissed or denied all claims and declined to issue a
certificate of appealability. Id. at *10; Dailey
v. Sec'y, Fla. Dep't of Corr., No.
8:07-CV-1897-T-27MAP, 2011 WL 1230812, at *32 (M.D. Fla. Apr.
1, 2011), amended in part, vacated in part, No.
8:07-CV-1897-T-27MAP, 2012 WL 1069224, at *8 (M.D. Fla. Mar.
29, 2012) (amending opinion to include the denial of an
additional claim of ineffective assistance of counsel and
denying motion for certificate of appealability to the
Eleventh Circuit Court of Appeals).
2018, we affirmed the circuit court's denial of
Dailey's first successive postconviction motion.
Dailey v. State, 247 So.3d 390, 391 (Fla. 2018).
Dailey's second successive postconviction motion was
denied in part and dismissed in part by the circuit court; we
affirmed on October 3, 2019. Dailey v. State, 44
Fla.L.Weekly S219, 2019 WL 4865855 (Fla. Oct. 3, 2019).
Governor DeSantis signed Dailey's death warrant on
September 25, 2019, Dailey filed a third successive motion
for postconviction relief. The motion raised four claims: (1)
his execution would be unconstitutionally arbitrary; (2)
newly discovered evidence proves that he is actually innocent
and that the State committed Brady and
Giglio violations; (3) the circuit court would
violate his constitutional rights if it did not order the
Florida Department of Corrections (DOC) to comply with his
requests related to defense execution witnesses; and (4) the
totality of his punishment-including over thirty years spent
on death row- violates the Eighth Amendment.
an evidentiary hearing on one newly discovered evidence
claim, the circuit court entered an order dismissing in part
and denying in part the motion.
Court, Dailey appeals the denial of postconviction relief and
the denial of certain records requests filed after the
Governor signed his death warrant. Dailey also filed a habeas
petition in this Court. We affirm the postconviction
court's denial of relief and deny his habeas petition.
first claim, Dailey contends that the circuit court erred in
summarily rejecting his claim that his execution would be so
arbitrary as to violate the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution. Because the
record conclusively shows that Dailey is not entitled to
relief, we affirm. See Fla. R. Crim. P.
3.851(f)(5)(B) ("If the motion, files, and records in
the case conclusively show that the movant is entitled to no
relief, the motion may be denied without an evidentiary
argues that the circuit court wrongly concluded that
"some of the arguments raised in" support of
"this ground amount[ed] to untimely or procedurally
barred claims." These included his "facial
challenges to the clemency or warrant [selection]
process," his assertion that his execution would be
arbitrary because he is actually innocent, and his claim that
he had been denied the chance to present newly discovered
evidence at an updated clemency hearing.
agree that Dailey's actual innocence claim is
procedurally barred. Dailey has already unsuccessfully raised
an actual innocence claim in his second successive
postconviction motion. Dailey, 44 Fla.L.Weekly at
S222, 2019 WL 4865855, at *7. He cannot present the claim
again "by merely reframing it as a challenge to the
warrant." Moreover, we have repeatedly held that
freestanding actual innocence claims are not cognizable under
Florida law. Id.; Tompkins v. State, 994
So.2d 1072, 1089 (Fla. 2008).
remaining claims fail on the merits. We have consistently
rejected the assertion that the warrant selection process is
arbitrary because there are no standards that constrain the
Governor's discretion in determining which warrant to
sign. See, e.g., Hannon v. State, 228 So.3d
505, 509 (Fla. 2017); Bolin v. State, 184 So.3d 492,
502-03 (Fla. 2015); 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 v. State, 70 So.3d 530,
551-52 (Fla. 2011). Related challenges to the clemency
process have also been denied. See, e.g.,
Johnston v. State, 27 So.3d 11, 24 (Fla. 2010);
Marek v. State, 8 So.3d 1123, 1129-30 (Fla. 2009).
And to the extent Dailey asserts that his execution would be
arbitrary because he was not granted an additional clemency
proceeding at which to present newly discovered evidence, his
claim is foreclosed by our caselaw. See, e.g.,
Grossman v. State, 29 So.3d 1034, 1044 (Fla. 2010);
Johnston, 27 So.3d at 25-26. Accordingly, we
conclude that the circuit court properly rejected this claim.
Discovered Evidence, Brady, and Giglio
next argues that the circuit court erred in rejecting his
claim that newly discovered evidence proves the State
committed B ...