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Dailey v. State

Supreme Court of Florida

November 12, 2019

JAMES MILTON DAILEY, Appellant,
v.
STATE OF FLORIDA, Appellee. JAMES MILTON DAILEY, Petitioner,
v.
MARK S. INCH, etc., Respondent.

          An Appeal from the Circuit Court in and for Pinellas County, Pat Edward Siracusa, Jr., Judge - Case No. 521985CF007084XXXXNO And an Original Proceeding - Habeas Corpus

          Eric 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

          Ashley Moody, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Christina Z. Pacheco and Lisa Martin, Assistant Attorneys General, Tampa, Florida, for Appellee/Respondent

          PER CURIAM.

         James 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 corpus.

         BACKGROUND

         On May 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 recommendation. Id.

         On 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.

         Dailey 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).

         In 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).

         After 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[1] and Giglio[2] 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.

         Following an evidentiary hearing on one newly discovered evidence claim, the circuit court entered an order dismissing in part and denying in part the motion.

         ANALYSIS

         In this 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.

         Arbitrariness of Execution

         In his 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 hearing.").

         Dailey 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.

         We 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).

         The 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.

         Newly Discovered Evidence, Brady, and Giglio

         Dailey next argues that the circuit court erred in rejecting his claim that newly discovered evidence proves the State committed B ...


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