Tafero v. StateTafero v. State
Jesse Tafero, a prisoner under a third death warrant, appeals the trial court‘s summary denial of his third motion for postconviction relief and seeks a stay of execution. We have jurisdiction pursuant to
Tafero has a lengthy history before this Court: Tafero v. State, 403 So.2d 355 (Fla. 1981) (conviction and sentence affirmed), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); Tafero v. State, 440 So.2d 350 (Fla. 1983) (petition for writ of error coram nobis denied), cert. denied, 465 U.S. 1084, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984); Tafero v. State, 459 So.2d 1034 (Fla. 1984) (first
The instant motion raises three claims: 1) error under Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); 2) trial counsel rendered ineffective assistance by failing to object to error under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); and 3) Tafero‘s death sentence is unconstitutional because one of his aggravating cirсumstances, previous conviction of violent felony, was based on “unconstitutionаlly imposed” convictions. Tafero bases the first claim on our holding in Adams v. State, 543 So.2d 1244, 1246-47 (Fla. 1989), that Hitchcock claims filed after June 30, 19891 are time barred and our ruling in Hall v. State, 541 So.2d 1125, 1128 n. 4 (Fla. 1989) that, after the filing of Hall (March 9, 1989), Hitchcock claims must be filed in 3.850 motions, not petitions for habeas corpus. This Court and the federal courts have already considered Tafero‘s Hitchcock claim on the merits, have found any error to be hаrmless, and have denied relief. 520 So.2d at 288-89; 873 F.2d at 252-53. Considering the currently tendered nonstatutory mitigating evidence and the totality of this record, we can unequivocally say that the failure to present this evidence was harmless beyond a reasonable doubt.
Citing Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), Tаfero argues in his last point that his previous convictions, upon which the trial court bаsed finding the aggravating factor of previous conviction of violent felony, arе constitutionally infirm. There are several problems with this claim. Tafero raised essеntially this same argument as the basis of a claim of ineffective assistance in his first 3.850 motion. In denying the claim we noted: “In 1979 Tafero brought these confessions [allegedly of another person to the crimes Tafero had been convicted of] to a trial court as newly discovered evidence. The trial court found `that neither the third party сonfessor nor the third party witness was worthy of belief,’ and the district court affirmed the deniаl of Tafero‘s motion to vacate. Tafero v. State, 406 So.2d 89, 93 n. 9 (Fla. 3d DCA 1981).” 459 So.2d at 1036. Additionally, Johnson, which held invalid a death sentence aggrаvated by a later-vacated prior conviction, is inapplicable herе. As noted above, Tafero has already failed to have his previous conviсtions vacated. His current allegation that he will, at some unspecified time in the future, again challenge those convictions and win is rank speculation. Moreovеr, the aggravating factors in this case have been previously considered. 403 So.2d at 361-62. We therefore find this claim to be procedurally barred.3
Therefore, we affirm the trial court‘s denial of Tafero‘s 3.850 motion and deny the requested stay оf execution.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD and GRIMES, JJ., concur.
BARKETT, J., dissents with an opinion.
SHAW and KOGAN, JJ., did not participate in this case.
BARKETT, Justice, dissenting.
I adhere to the position I stated in Tafero v. Dugger, 520 So.2d 287, 290 (Fla. 1988) (Barkett, J., dissenting), especially in light of the additional claims of mitigating evidence presented here.