United States District Court, M.D. Florida, Tampa Division
JAMES M. DAILEY, Petitioner,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE.
the Court are Dkt. 96 and Dkt. 97, Petitioner Dailey's
Motion for Relief from Judgment pursuant to Fed.R.Civ.P.
60(b)(6), and the State's Response, Dkt. 112. The Court
denies the Motion. The Court provides a short preface to this
Order to describe an overview of this Court's thinking.
thesis of the motion is that Dailey's collateral lawyers
were constitutionally ineffective. Trial lawyer failures were
ignored, waived, or not sufficiently highlighted by his
collateral habeas counsel, and Dailey was denied a fair and
complete collateral, habeas review of his conviction and
sentence. Poor lawyering by habeas counsel, according to the
Motion, caused vital points to be defaulted on collateral
review. And this was made worse by the conflict of interest
among successor habeas counsel, who were not able to call
attention effectively to the incompetence of their own
colleagues who formerly handled Dailey's collateral
remedy sought is a Rule 60(b)(6) reopening of Dailey's
federal habeas judgment in this case, Dkts. 27, 38, 41, &
42, to permit the undersigned to reconsider all of
Dailey's collateral issues that were procedurally barred
or not otherwise presented to U.S. District Judge Whittemore
in this section 2254 habeas case in 2007. Dailey contends his
trial counsel were ineffective, Dkt. 96 at 21, his first
state habeas counsel were ineffective, id. at 23,
and his second or successor habeas counsel were ineffective,
id. at 2, 28. The gravamen of the motion (probably
to avoid being deemed a successive habeas
petition) is that both the first and successive
Capital Collateral Regional Counsel teams for Dailey were
ineffective, and this failure is cognizable under
Martinez v. Ryan, 566 U.S. 1 (2012).
of this theme, and as part of the present effort to avoid
what may be an impeding execution, Dailey's lawyers seek
to marshal and restate evidence from this lengthy 34-year old
record to cast doubt upon the verdict. Although energetic
lawyering, the effort is selective.
asks this Court to undertake a “holistic analysis of
the facts and circumstances to determine whether relief is
warranted.” Dkt. 96 at 19. Although it is not the
Court's province at this stage 34 years later to
adjudicate evidentiary sufficiency and retry the case, the
Court has personally read every single page of this lengthy
record. A thorough review shows the State's trial case
against Dailey was not strong, but it was sufficient. It was
made stronger by several acts by Dailey, such as his physical
appearance after the murder, his inexplicable flight to
Miami, and his jailhouse correspondence with Pearcy.
Dailey's defense is further marred by his implausible
post-trial testimony which sought to explain this unusual
flight and to explain Dailey's appearance after the
murder. Dkt. 33 D-3 291-318.
not the place or remedy to restate the case against Dailey
and weigh why he is facing the death penalty. The Court here
provides but two examples of misguided points made by Mr.
Dailey in his selective portrayal of the record. First, in
several of his later motions, Mr. Dailey cites a 2017
affidavit of codefendant Pearcy, that states Pearcy alone,
and not Dailey, murdered the victim. Dkt. 96-11. The
affidavit is typical of latter day exculpatory affidavits
seen on occasion from codefendants. It was created by
Dailey's able lawyers for this purpose and in it Pearcy
promised to testify as to the exculpation of Dailey.
Fortunately, the state court took up Pearcy's promise and
held an evidentiary hearing on this 2017 affidavit. There
Pearcy, in person, entirely failed to substantiate its truth,
and took the Fifth Amendment as to all the merits of the
affidavit. Yet Dailey touts this affidavit now.
2017 affidavit is an item of sworn Pearcy hearsay in this
record, which Pearcy declined to substantiate from the
witness box. But if one were to consider sworn hearsay
statements in this record of Mr. Pearcy, a more apt selection
might be his 40-page sworn statement in June 1985 during the
State's Attorney investigation. Dkt. 33 D-9. In that
statement, soon after the crime, Pearcy explained the details
of the murder. He explained in detail how Dailey butchered
and drown the 7th-grade girl during a rape; Pearcy
denied stabbing or assaulting the victim-admitting his
participation later. Pearcy's statements in that lengthy
sworn interview are consistent with physical facts of the
case, even down to the vomit that he emitted upon seeing the
slaughter, which was found the next day near where the victim
bled. Both the 1985 sworn statement, and the
2017 affidavit now touted by Dailey, are not admissible at a
criminal trial. But surely the former, more contemporaneous
by 32 years, has equal or greater salience in a
“holistic analysis of the facts and
circumstances” on this record as requested by Dailey.
Court offers a second example of how a holistic review of
this record urged by Dailey does not help him much. Mr.
Dailey's counsel have decried the use of jailhouse
informant testimony. That type of testimony is often fraught
with problems and, in the undersigned's view, is too
frequent in criminal prosecutions. But the testimony of the
two jail librarian informants was backed up by four notes
they passed at Dailey and Pearcy's request. These notes
are in Dailey and Pearcy's hand. The trial judge admitted
as evidence the notes written by Dailey. All four notes are
present in this record, and should be considered as part of
any “holistic review.” Dkt. 33 A-2 175-80. The
four items inculpate Mr. Dailey. They are consistent with
co-actors (“partners” as Dailey says in one note)
who are trying to game their respective trials. One of
Pearcy's notes expressly implicates Dailey as murderer,
consistent with Pearcy's SAO statement. The notes in
Dailey's hand are inculpatory and inconsistent with the
facts as he now portrays them. And, these contemporaneous
notes are entirely consistent with, and well buttress, the
librarians' damning trial testimony.
a jury found Mr. Dailey guilty of the murder of Shelley
Boggio and unanimously recommended a death sentence which the
judge imposed. The Florida Supreme Court upheld the
conviction but reversed the sentence. Dailey v.
State, 594 So.2d 254, 259 (Fla. 1991). The trial court
resentenced Dailey to death which was affirmed by the Florida
Supreme Court and certiorari was denied. Dailey v.
State, 659 So.2d 246, 247 (Fla. 1995), cert.
denied, 516 U.S. 1095 (1996). The state circuit court
denied Dailey's initial postconviction relief after
briefing, a legal hearing, and five evidentiary hearings.
Dkt. 33 D-2. The Florida Supreme Court affirmed the denial of
Dailey's initial postconviction motion and denied his
petition for a writ of habeas corpus. Dailey v.
State, 965 So.2d 38, 41-42 (Fla. 2007).
Court (per Whittemore, J.) dismissed part of Mr. Dailey's
federal habeas petition as procedurally barred and for
failing to allege a federal constitutional claim. Dailey
v. Sec'y, Fla. Dep't of Corr., No.
8:07-CV-1897-T-27MSS, 2008 WL 4470016, at *10 (M.D. Fla.
Sept. 30, 2008) (Dkt. 27). After briefing on the remaining
claims, this Court denied the remainder of Mr. Dailey's
federal habeas petition. 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) (Dkt. 38),
amended in part, vacated in part, No.
8:07-CV-1897-T-27MAP, 2012 WL 1069224 (M.D. Fla. Mar. 29,
2012) (Dkt. 41). The Eleventh Circuit denied the motion for a
certificate of appealability and the Supreme Court denied
certiorari. Dkts. 46 & 47.
Florida Supreme Court affirmed the denial of Dailey's
first successive postconviction motion. Dailey v.
State, 247 So.3d 390, 391 (Fla. 2018). In October 2019,
the Florida Supreme Court affirmed the state circuit court
order denying in part and dismissing in part Dailey's
second successive postconviction motion. Dailey v.
State, 279 So.3d 1208, 1218 (Fla. 2019), reh'g
denied, No. SC18-557, 2019 WL 5152446 (Fla. Oct. 14,
2019). In November 2019, the Florida Supreme Court affirmed
the state circuit court order denying in part and ...