Lead Opinion
Patrick Hannon, a prisoner under sentences of death with an active death warrant, appeals the circuit court’s orders denying his third and fourth - successive motions for postconviction relief filed , pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm the circuit court’s denial of both motions and deny his motions for stay of execution.
FACTS AND PROCEDURAL HISTORY
On direct - appeal, this Court fully set forth the underlying facts. Hannon v. State (Hannon I),
We affirmed the denial of Hannon’s initial motion for postconviction relief and denied his petition for writ of habeas corpus. Hannon v. State (Hannon II),
-Additionally, Hannon sought federal relief pursuant to a writ of habeas corpus, which was denied. Hannon v. Sec’y, Dep’t of Corr. (Hannon IV),
The postconviction court denied Han-non’s first successive motion for postcon-viction relief, which we affirmed. Hannon v. State (Hannon VI),
Hannon filed his third successive motion for postconviction relief—while the second motion was pending appeal—raising various Hurst claims. The circuit court held the third successive motion in abeyance pending the outcome of Hannon’s appeal in this Court on his second successive motion, which was decided on June 16, 2016. On August 4, 2016, the circuit court entered a stay on Hannon’s third successive motion, pending our decision on the retroactivity of Hurst v. Florida, — U.S. —,
On October 6,2017, Governor Rick Scott signed a death warrant for Hannon and set his execution for November 8, 2017. Han-non filed his fourth successive postconviction motion in the circuit court, raising three claims: (1) the lethal injection protocol is unconstitutional; (2) the Governor’s warrant signing procedure is unconstitutional; and (3) Hannon’s death sentences aré disproportionate compared to his code-fendants’ sentences. The circuit court denied Hannon’s claims without an evidentiary hearing.
These appeals follow.
ANALYSIS
Constitutionality of Lethal Injection Protocol
Hannon presents various challenges that he asserts amount to a violation of his Florida constitutional and Eighth Amendment rights when considered together. The circuit court found that we recently approved the current injection protocol in Asay v. State (Asay VI),
Hannon presented no new evidence that would require us to reconsider our recent approval of the three-drug protocol, therefore, no discussion of that portion of the claim is necessary. See id.
As to Hannon’s “veil of secrecy” claim, the circuit court properly denied his challenge. The DOC is entitled to a presumption that it will properly perform its duties while carrying out an execution. Lightbourne v. McCollum,
Finally, we have consistently rejected Hannon’s challenge that the DOC should substitute the current three-drug protocol with a one-drug protocol. See Asay VI,
Accordingly, even taking these claims together, the circuit court properly denied Hannon’s challenge.
The Governor’s Warrant Signing Power
Hannon challenges the power of the Governor to sign death warrants, which the circuit court properly denied. We have repeatedly and consistently denied these claims. E.g., Bolin v. State,
Accordingly, the circuit court , correctly denied relief to Hannon on this claim.
Proportionality
Hannon contends that his sentence is disproportionate when compared to his codefendants’ sentences. The circuit court found that this claim was procedurally barred because it has been previously addressed on direct appeal and-is untimely. We agree.
We rejected Hannon’s proportionality claims on direct appeal and ,in his initial postconviction motion. Hannon I,
Likewise, Hannon raised claims regarding the testimony of an FBI analyst and blood spatter expert. We have twice rejected his claim regarding the FBI analyst, Hannon II,
Contrary to the dissent’s assertion, the record is actually quite clear that the wound inflicted, to one victim’s neck by Hannon was the fatal wound. Instead of basing a proportionality determination on Hannon’s allegations ánd assertions, we rely on the record, which refuted the assertions. At Hannon’s trial and Acker’s retrial, the medical examiner, Dr. Diggs, testified about the neck wound. He opined that I the wounds inflicted by Acker could possibly be “potentially lethal”; whereas, the neck wound actually inflicted by Hannon was “certainly a lethal wound.” Furthermore, the wounds inflicted by Acker would not have killed Snider for at least some extended time period; whereas, the wound inflicted by Hannon caused Snider to drop immediately and die in less than thirty seconds.
Although Hannon’s codefendants were culpable, Hannon was the person who slashed Snider’s throat and shot Carter six times; as such, it-is as true today as it was twenty-three years ago: Hannon was “the most culpable of the three accomplices in this case.” Id Accordingly, the circuit court properly denied this claim.
Records Requests
. Hannon challenges whether the circuit court abused its discretion in sustaining the State’s objections to disclosure of certain public records. The disputed records fall into three general categories: (1) information regarding the three-drug protocol and the State’s current supply; (2) records of the last eight executions along with records indicating personnel or undocumented protocol changes; and (3) records pertaining to the proportionality of Han-non’s sentences.
We review rulings on public records requests pursuant to Florida Rule of Criminal Procedure 3.852 for abuse of discretion. Hill v. State,
First, the circuit court properly denied Hannon’s records request regarding the three-drug protocol, including the sourcing, storage, and expiration dates of the State’s .supply of etomidate. The request at .issue was directed at the DOC and Florida Department of Law- Enforcement (FDLE) pursuant to Rule 3,852(i). We have specifically rejected similar claims in the past as “overbroad and burdensome”:
Muhammad contends the circuit court abused its discretion in refusing to order -the DOC to disclose the manufacturers of the lethal injection drugs used in Florida executions, together with the lot numbers and expiration dates. No abuse of discretion has been shown. We have held that the source of the drugs used in lethal injection is of questionable relevance to a colorable Eighth Amendment claim. See Valle,70 So.3d at 549 . The same principle would apply to the drugs’ lot numbers and expiration dates. Moreover, this Court' will presume that the DOC will act in accordance with its protocol and carry out its duties properly. See, e.g., id. This same presumption would extend to' presume that the DOC will obtain viable versions of the drugs it intends to use and confirm before use that the drugs are still viable, as the .protocol requires.
Muhammad,
Second, Hannon requested records for the last eight executions along with “unwritten changes” to the protocol. This request was made pursuant to Rule 3.852(i), and it was properly denied. As a practical matter, most of the requested records for previous executions were carried out using a different protocol, therefore, it is not likely that they relate to a colorable claim. Moreover, under our precedent, Hannon was not entitled to those records. In Valle, we held that records of the last five executions were “not related to a colorable Eighth Amendment claim.”
Third, Hannon’s proportionality claim is procedurally barred, as addressed above. However, pertaining to his records request challenge, Hannon is in possession of the transcript from Acker’s 2001 retrial, which he filed with this Court. Considering Han-non’s claim, this is the record that Hannon would need in order to establish a color-able claim. Thus, the records request challenge is moot.
In sum, Hannon failed to demonstrate his entitlement to the disputed records, accordingly, the circuit court properly denied relief.
Hurst Claims
In Hannon’s third successive postcon-viction motion, he raised various Hurst challenges.
Hannon’s case became final on February 21, 1995. We have consistently held that Hurst is not retroactive prior to June 24, 2002, the date that Ring v. Arizona,
Accordingly, the circuit court correctly denied Hannon’s third successive motion for postconviction relief.
Potential Caldwell
Hannon directs this Court to a dissent from the denial of certiorari in Truehill v. Florida, Nos. 16-9448, 17-5083, — U.S. -,
The dissent asserts that Hannon raises a Caldwell claim in this Court. It is true that Hannon challenged his sentences under Caldwell in the circuit court, however, he did not raise that claim here. In his Response to Order to Show Cause, Hannon merely explained that he raised Caldwell claims in his initial postconviction motion,
CONCLUSION
Based on the foregoing, we affirm the circuit court’s denial of Hannon’s third and fourth successive postconviction motions. Because we find that Hannon is not entitled to relief, we accordingly deny his motions for stay of execution. No oral argument is necessary and no rehearing will be entertained by this Court. The mandate shall issue immediately.
It is so ordered.
Notes
. One of the issues litigated in Hannon’s initial posteonviction motion was counsel's failure to investigate and present mitigation. Hannon II,
. During our review, Hannon learned that sealed records were transmitted to the Capital Collateral Postconviction Records Repository without the parties’ knowledge. We granted a twenty-four-hour relinquishment of jurisdiction for the “limited purpose of an in camera inspection of the sealed records.” After conducting an in camera inspection, the circuit court entered an order on October 25, 2017, confirming that the sealed records did not entitle Hannon to relief.
. At Hannon's trial, Dr. Diggs described the wound inflicted by Hannon to Snider’s neck the following way:
So, when you got that amount of depth to the wound, it actually goes all the way back to the spine, you see. The wound actually stopped at the—at the backbone, the front of the backbone, of the cervical spine, as we , call it. That’s where it stppped. But it pretty much lacerated all of the tissue that normally sits in front of that. So, you're talking about a depth of approximately, about four inches,
. The Hurst-related claims that Hannon raises in his Response to Order to Show Cause follow: (1) due process precludes the foreclosure of relief based on the decision in Hitchcock; (2) the Eighth Amendment and Florida Constitution entitle Hannon to retroactive application of Hurst; (3) chapter 2017-1 constitutes a substantive change in the law requiring retrospective application; and (4) Hannon’s death sentences violate Hurst, and the error is not harmless.
. Caldwell v. Mississippi,
. Although the dissent acknowledges this, it ignores how that fact would procedurally bar a Caldwell claim in this case. See, e.g., Hunter,
Dissenting Opinion
dissenting.
Consistent with my previous dissents,
L joined Justice Anstead’s dissenting opinion from this Court’s denial of Han-non’s initial postconviction appeal, arguing that Hannon was entitled to a new penalty phase due to counsel’s failure to properly investigate and present mitigation to the penalty phase jury, Hannon v. State (Hannon II),
Shockingly, the record reflects that Hannon’s counsel did no investigation for mitigation, and, in fact, initially- was not going to present any form of mitigation during the penalty phase, even a continuing claim of not guilty. Hannon’s counsel stated at the postconviction evi-dentiary hearing, “Well, we had nothing to mitigate. He was not guilty. He didn’t do it. That was it.” However, at the penalty phase the trial judge actually directed him to reconsider this irrational strategy; thereafter, Hannon’s counsel presented the evidence relating to the “my client is too nice to have done this” strategy.
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Although Hannon’s counsel stated that he had asked Hannon’s family members if Hannon was “born with any problems” and the family members did not bring any mental health issues to his attention, the testimony of Hannon’s family members tells a different story. Hannon’s sister stated that Hannon’s counsel never asked her about his life before the murders, his drug and alcohol use, or his home life. She asserted, “I had actually tried to contact [Hannon’s counsel] on more than one occasion and he absolutely refused to listen to what I had to say or contribute. He did not want to talk to me at all. I never had a phone call returned.” She was also listed as a witness for the penalty phase by Hannon’s attorney but was never called during the penalty phase. Hannon’s attorney erroneously had her listed as living in a different state even though she lived in Florida. She stated at the evi-dentiary hearing, “[Hannon’s counsel] told me I had nothing to contribute and he didn’t need me for anything.”
Id. at 1158-62 (emphasis added).
As to the available mental mitigation that Hannon’s counsel failed to present, Justice Anstead explained that defense counsel, because of his failure to investigate, lacked knowledge of significant information pertaining to Hannon:
[Counsel] did not know that Hannon began using drugs and alcohol at age eleven and had a history of using LSD on a regular basis at the age of fifteen, as well as crystal methamphetamine, hallucinogenic mushrooms, and crack cocaine, nor did he know that Hannon was paranoid when under the influence of drugs. He did not question Hannon’s parents concerning . Hannon’s . expulsion from school for smoking marijuana.- He did not know that Hannon’s daily alcohol consumption before the murders was half a case of beer and a fifth of. bourbon, and that on the night of the murders, Hannon drank almost, two cases of beer. Hannon’s sister testified at the evidentiary hearing that Hannon’s behavior was irritated and edgy leading up to the murders. He would drink excessively and use cocaine on a daily basis without sleeping at night. He also used acid a couple of times- a month.
Id. at 1164 (footnote omitted). As to mitigation actually presented at the postcon-viction evidentiary hearing, Justice An-stead explained:
The-evidence presented at Hannon’s evidentiary hearing • established that Hannon had a history of severe drug and alcohol abuse “to the point of blacking out and passing out,” parental neglect, and neurological impairments resulting -in poor impulse control and flawed decision-making. Drs. Crown and Sulton testified that Hannon’s impairments impacted . his daily functioning. Dr. Crown, board certified in neuropsy-chology, stated that Hannon was “having difficulty with cognitive processing” and that there was evidence of “head-trauma from accidents, from being-kicked, from falls.” He also testified,
In terms of drug [e]ffects the greatest exposure to drugs and the greatest absorption level is in the fronto temporal area and actually the subcortical area, relating to the limbic system. And these are areas that are responsible’ for concentration, attention, control of impulsivity, understanding the long-term consequences of immediate behavior and processing immediate memory, and also it aids in restoring memory function:
Dr. Crown also noted that Hannon suffered from rheumatic fevér at age seven; its impact on his health was severe and he missed months of schooling. Hannon also suffered various head injuries, including losing consciousness at football practice in the ninth grade, getting kicked in the head by a bull, being hit by scaffolding at work, and being involved in several car accidents. “[Rjapidly retrieving ... information and applying it in a new situation is extremely difficult for him, and that’s where he falls apart.” Hannon was distracted very easily and has “difficulties under stress, pressure, drugs, lack of sleep, in fully comprehending information and attending to tasks.”
Drs. Crown and Sulton both performed the Wechsler Adult Intelligence Scale Revised, which resulted in a very low score on the subtest that is most indicative of brain damage. Also, Han-non told Dr. Sulton that he had gone AWOL from the military on three separate occasions. Dr. Sulton found several nonstatutory mitigators such as parental neglect, lack of structure, lack of discipline, lack of guidance in his childhood environment, and serious childhood illnesses. Dr. Sulton also termed him an “extreme follower” and found that Han-non had severe and chronic substahce abuse problems, was impulsive, lacked concentration, and had personality changes due to his' cocaine addiction. His score of global intelligence was average, but he scored an 8 out of 100 on the “digit symbol subtest” relating, to “the rate of speed with which he is capable of learning symbol relationships,” which could indicate a learning disability. Dr. Lipman, a neuropharmacologist, stated that Hannon would combine “smoking, drinking, taking acid and Quaaludes” as a teenager and this could have had a long-term effect on his brain, even before he moved on to crystal meth and cocaine. Even the State’s witness, Dr. Sidney Merin, agreed that Hannon had “a polysubstance abuse disorder.” Therefore, if he had performed an investigation, Hannon’s counsel could have presented substantial and persuasive testimony concerning Hannon’s mental health to establish a case of mitigation.
Id. at 1166 (footnote omitted).
Determining that the lack of mitigation entitled Hannon to a new penalty phase, Justice Anstead concluded:
No material mitigation was supplied to the jury in Hannon’s penalty phase; instead Hannon’s counsel chose to continue arguing innocence, an argument the jury had emphatically already rejected. Hence, in the face of this default by counsel, the jury was left with no choice but to impose the death penalty. Absolutely no mitigation was presented on behalf of Hannon, thereby resulting in a breakdown of our adversarial system as discussed by the Supreme Court in Strickland [v. Washington,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984),] and Wiggins [v. Smith,539 U.S. 510 ,123 S.Ct. 2527 ,156 L.Ed.2d 471 (2003),] and which resulted in the defendant being deprived of a reliable penalty-phase proceeding.
Having demonstrated both deficient performance and prejudice at the evi-dentiary-hearing below, Hannon should be entitled to a new sentencing proceeding in which he will be represented by competent counsel prepared to contest the State’s case for the death penalty by presenting the voluminous evidence of mitigation presented at the postconviction hearing.
Id. at 1169-70. Although the majority in 2006 relied on Hannon’s family’s involvement in choosing to waive mitigation as a strategy, it is 'axiomatic that defendants, such as Hannon in this case, cannot intelligently waive mitigation unless counsel performs a proper investigation. See id. at 1160-61; see also Wiggins,
In addressing the appeals before us, it is difficult to ignore the testimony that could have been presented if Hannon’s counsel had properly conducted a mitigation investigation. The United States Supreme Court made clear in Wiggins that mitigation significantly affects a jury’s sentencing determination, stating: “We further find that had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.”
As I explained in Kaczmar:
Under Hurst, this Court cannot substitute its judgment for that of the jury and, therefore, cannot determine what weight the additional mitigation would have been assigned if it had been presented to the penalty phase jury. Nor can we speculate on the effect that the additional mitigation, if presented to the jury, would have had on the jury’s recommendation in [the] penalty phase.
Exacerbating counsel’s failure to present mitigation, which left the jury with. “no choice” but to recommend death at the penalty phase, Hannon II,
Hannon raised the issue of proportionality in his third successive postconviction motion and argues on appeal to this Court that his sentence violates the Eighth Amendment based on proportionality. Further, although not discussed in this Court’s opinion on direct appeal, it was Hannon’s codefendant who had the motivation to kill the targeted 'victim, who had vandalized the codefendant’s sister’s apartment- a week before. See Hannon I,
The Court, explained on direct appeal that “[t]he motive was the conflict between [the victim] and Jim Acker’s sister.” Id. at 44. Likewise, Hannon states in his brief to this Court that “Acker, was the instigator and had the only motive.” initial Br. of Appellant, Hannon v. State, No. SC17-1837 (Oct. 18, 2017), at 83. Hannon alleges that “Acker was.equally responsible for [the victim’s] cause of death, multiple stabbing wounds, where no single wound was singled out as being fatal but rather were all lethal.” Id. Hannon cites to the medical examiner’s testimony in both Hannon’s and Acker’s trials, stating that any one of the stab wounds inflicted by Acker on the victim would have been fatal. Id. at 71. Thus, it would appear that Acker had the motive to murder the victim and played a substantial role in the murder.
Of course, had this Court granted Han-non a new penalty phase in 2006, as Justice Anstead advocated,
Hannon explains this arbitrariness in his Response to this Court’s -Order to -Show
Cause, pointing to various defendants who werq convicted of older homicides and received the benefits of Hurst because they were granted resentencing. Response to Order to Show Cause, Hannon v. State, No. SC17-1618 (Oct. 12, 2017), at 12-17. And, as I stated in my concurring in part, dissenting in part opinion in Asay v. State (Asay V),
The. majority’s conclusion results in an unintended, arbitrariness as to who receives relief depending on when the defendant was sentenced or, in some cases, resentenced. For example, many defendants whose crimes were committed before 2002 will receive the benefit of Hurst because they were previously granted a resentencing on other grounds and their newest death sentence was not final when Ring was decided. To avoid 'such arbitrariness and to ensure uniformity and fundamental fairness in Florida’s capital sentencing, our opinion in Hurst should be applied retroactively to all'death sentences.
Id. at 36 (Pariente, J., concurring in part and dissenting in part) (footnote omitted). Hannon’s case demonstrates this arbitrariness.
Finally, Hannon raised claims based on Caldwell v. Mississippi,
On the merits, I believe that the Caldwell claim further strengthens Hannon’s Eighth Amendment argument. Hannon’s Response to this Court’s Order to Show Cause explains the flaw in the jury instructions used in his pre-Hurst penalty phase that diminish the jury’s sense of responsibility:
If a bias in favor of a death recommendation increases when the jury’s sense of responsibility is diminished, removing the basis for that bias increases the likelihood that one or more jurors will vote for a life sentence. Here, the record in Mr. Hannon’s case supports that presumption where his jury received inaccurate instructions as to their ultimate responsibility during sentencing and as to their power and to dispense mercy and preclude a death sentence.... This [Court’s, holding in Hurst] is particularly relevant ,in Mr. Hannon’s case where he has argued during his posteonviction appeals that the jury was not. instructed it could exercise mercy and residual doubt was the only argument trial counsel advanced to the jury during [the] penalty phase.
Response to Order to Show Cause, supra, at 22-23. Thus, this claim further supports the conclusion I explained above—that the jury in Hannon’s case was not properly informed or instructed to. determine, as constitutionally required by Hurst, that Hannon is deserving of the ultimate punishment because he committed murders that are among “the most aggravated and least mitigated.” Hurst,
CONCLUSION
In recommending between life and death in Hannon’s case, the jury was denied access to “voluminous evidence of mitigation.” Hannon II,
. See Lambrix v. State,
I note that this is not a case in which the defendant, before Hurst, waived the right to a penalty phase jury or the right to present mitigation altogether, Kaczmar v. State,
. Hurst v. State,
. I recognize that the United States Court of Appeals for the Eleventh Circuit also denied relief on Hannon’s claim that “counsel’s performance was inadequate during the penalty phase of his trial,” finding that our opinion was not “objectively unreasonable.” Hannon v. Sec'y, Dep’t of Corr.,