Record on Appeal from the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida

IN THE SUPREME COURT OF FLORIDA TALLAHASEE, FLORIDA

RECORD ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

LUCIOUS BOYD 99-5809 CF10A APPELLANT CASE NUMBER:

STATE OF FLORIDA SC18 -1589 APPELLEE APPEAL NUMBER:

______

RECORD ON APPEAL

CC: ATTNY GEN – W.P.B. SUZANNE M. KEFFER --CCRC - SOUTH

MASTER INDEX ON APPEAL APPELLATE DIVISION

Case NO: 99-005809-CF10A Appeal NO: SC18-1589

DATE: KIND OF INSTRUMENT PAGES: 10/05/2016 File Supreme Court Of Florida 1 - 1 Order 10/31/2016 Mandate - Supreme Court of 2 - 49 Florida SC13-244 01/27/2017 Supreme Court Order Denying 50 - 51 Petition for Writ of Habeas Corpus 08/03/2017 File States Notice Pursuant to 52 - 52 Rule 3.220(4) 03/13/2018 Successive Motion to Vacate 53 - 74 Judgment of Conviction and Sentence 03/19/2018 File Order Requesting State To 75 - 75 Respond 03/19/2018 File Document- Certificate of 76 - 77 Clerk 05/18/2018 File States Motion For 78 - 79 Extension Of Time 05/21/2018 File Order Granting State 80 - 80 Motion Extension Of Time 06/11/2018 States Response to Successive 81 - 189 Motion to Vacate Judgments of Conviction 07/06/2018 Successive Motion to Vacate 190 - 211 Judgments of Conviction 08/15/2018 File Order Denying Def Motion 212 - 216 to Vacate Judgments of Conviction 08/15/2018 File Document- Certificate of 217 - 222 clerk 09/13/2018 File Defendants Notice Of 223 - 224 Appeal 09/13/2018 File Directions To The Clerk 225 - 226 09/13/2018 File Designation To Court 227 - 229 Reporter 10/04/2018 File Transcript of Hearing 230 - 235 07-02-18 FELONY CASE SUMMARY CASE NO. 99-005809-CF10A State of Florida § Location: Felony Vs. § Judicial Officer: Siegel - FK, Andrew L Boyd, Lucious § Filed on: 03/30/1999 § Arrest Number: BS02003299 § BS99006735 § BS12006058 § Docketrac Conversion Case: 99005809CF10A § Florida Supreme Court: SC02-1590 § SC13-244 § Uniform Case Number: 061999CF005809A88810 §

CASE INFORMATION

Offense Statute Deg Date Case Type: Felony Jurisdiction: Broward County 1. Murder in the First Degree 782.04(1)(a) CF6 12/05/1998 Case Flags: Appeal Filed OBTS: 0012063775 Sequence: 3 ACN: BS99006735 CTS Financial Balance Arrest: 03/26/1999 BS - Broward Sheriff Office 2. Armed Sexual Battery 794.011(3) CF5 12/05/1998 OBTS: 0012063775 Sequence: 2 ACN: BS99006735 Arrest: 03/26/1999 BS - Broward Sheriff Office 3. Armed Kidnapping 787.01 CF7 12/05/1998 OBTS: 0012063775 Sequence: 1 ACN: BS99006735 Arrest: 03/26/1999 BS - Broward Sheriff Office Related Cases 99-0054-AF10 (Related Criminal Case)

DATE CASE ASSIGNMENT

Current Case Assignment Case Number 99-005809-CF10A Court Felony Date Assigned 03/30/1999 Judicial Officer Siegel - FK, Andrew L

PARTY INFORMATION Lead Attorneys State State of Florida Defendant Boyd, Lucious Conan, Mark Retained

DATE EVENTS & ORDERS OF THE COURT

09/21/2018 CTS_Current Due Count(s):<|001|> Charges: 1 Amount: 496.80

09/13/2018 File Designation To Court Reporter

09/13/2018 File Directions To The Clerk

09/13/2018 File Defendants Notice Of Appeal JGL

08/15/2018 File Document Certificate of Clerk 3.850

PAGE 1 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A

08/15/2018 File Order Denying Def Motion Signed 08/14/18; Successive M/to Vacate Judgments of Conviction and Sentc and Alt M/to Correct Illegal Sentc.

07/06/2018 File Defense Motion Successive Motion to Vacate Judgments of Conviction (Duplicate) Hearing/Status Conference (2:00 PM) (Judicial Officer: Siegel - FK, Andrew 07/02/2018 L ;Location: Room 7870) Case Managment Confrence (Huff Hrg.) 07/02/2018 Hearing Held / Status Conference CR:J.Garcia-Boss (D) **CASE MANAGMENT CONFERENCE**

06/11/2018 File States Response to Deft's Successive Motion to Vacate Judgm of Conv, Alt M/to Correct Sentc (Emailed JA 06/15/18)

05/21/2018 File Order Granting State Motion Extension Of Time Signe 05/21/18; 20 Days

05/18/2018 File States Motion For Extension Of Time

03/19/2018 File Document Certificate of Clerk 3.850

03/19/2018 File Order Requesting State To Respond Signed 03/19/18; 60 Days; Def's Successive M/to Vacate Judg and Sentc

03/13/2018 File Defense Motion For Post Convict Relief/3.850 Successive M/to Vacate Judg of Conv and Sentc and Alt M/to Correct Illegal Sentc

08/03/2017 File States Notice Pursuant to Rule 3.220(4)

01/27/2017 File Document re: writ of habeas corpus is denied

10/31/2016 File Document Mandate Supreme court of Florida

10/25/2016 File Document acknowldgment of new case

10/05/2016 File Supreme Court Of Florida Order PETITION FOR REHEARING DENIED IN SC13-244 03/21/2015 Sent To Law Firm For Collections Penn Credit 03/21/2015 CTS_Current Due Count(s):<|003|> Charges: 3 Amount: 74.25 03/21/2015 CTS_Current Due Count(s):<|002|> Charges: 2 Amount: 74.25 12/10/2013 File Supreme Court Of Florida Order ext granted to 12-26-13 12/03/2013 Supplemental Record On Appeal Completed 11/27/2013 File Motion For Ext Of Time To Prepare Record On Appl clerk 11/25/2013 File Supreme Court Of Florida Order to Supplement ROA with listed items by 12-02-13

PAGE 2 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 07/10/2013 Appeal Completed ADDENDUM SENT - 1 hrg 07/05/2013 File Transcript 9/22/06/Hearing 07/03/2013 File Order (Appeal) Court's status report 07/02/2013 Created -States Response Folder State's Response to Defendant's Motion to Vacate Judgment. 07/01/2013 Appeal Completed Hearing/Status Conference (9:00 AM) (Judicial Officer: Siegel - FK, Andrew 06/20/2013 L ;Location: Room 7870) 06/20/2013 Hearing Held / Status Conference I/CT RPT V LIMA 05/30/2013 File Document STATUS REPORT REGARDING RECORD ON APPEAL Hearing/Status Conference (11:00 AM) (Judicial Officer: Siegel - FK, Andrew 05/29/2013 L ;Location: Room 7870) 05/29/2013 Hearing Held / Status Conference I,CT RPT V LIMA 05/21/2013 File Order Granting Ext Of Time To Prepare Transcript Supreme Court Order - granted to 07-01-13 05/15/2013 File Order (Appeal) Status report 05/13/2013 Order SIGNED 051313 FOR PREPARATION OF TRANSCRIPTS (UPON THE COMPLETION AND CERTIFICATION OF THE TRANSCRIPTS THE ORIGINAL AND 2 COPIES SHALL BE FILED WITH THE CLERK OF COURT Hearing/Status Hearing RE: (11:00 AM) (Judicial Officer: Siegel - FK, Andrew 04/29/2013 L ;Location: Room 7870) TO TRANSCRIPTS 04/29/2013 File Transcript filed in open court- February 13, 2007 04/29/2013 Hearing Held / Status Hearing Re: cr/ V Lima(boss)-F Re: Transcripts 04/10/2013 File Supreme Court Of Florida Order transcript / record schedule 04/09/2013 File Defense Notice Of Hearing 042913 at 11:00AM/Status Conference 02/13/2013 Clerk Assigned To Appeal JGL 02/11/2013 File Directions To The Clerk 02/06/2013 File Designation To Court Reporter and reporter's acknowledgment 02/04/2013 File Transcript of HEARING held 083112 01/29/2013 File Defendants Notice Of Appeal OCCRC - JGL / SC13 - 244 01/08/2013 File Exhibit List 01/07/2013 File Notice Of Filing Record of vamous proceeding this court received from the Supreme Court of the State of Fl 01/07/2013 File Order Denying Def Motion Signed 010213 Vacate Judmgnet of convictions and sentences 11/08/2012 Release Status BS12006058

PAGE 3 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A Date 2: 09/12/2012 11/05/2012 File State's Amended Post-Hearing Memorandum 10/30/2012 File Order Granting State Motion Extension Of Time signed 103012/Both the State of FL and the Defendant shall have until 110512 at 5pm to submit its closing argument memorandum. 10/24/2012 File State's Unopposed motion for extension of time to file closing argument memorandum 09/24/2012 File Attorney Notice Of Change Of Address 09/21/2012 File Transcript 082812 / 082912 09/19/2012 File Attorney Notice Of Change Of Address 09/09/2012 Sent To Law Firm For Collections Hearing /Evidentiary (3.850) (2:30 PM) (Judicial Officer: Siegel - FK, Andrew 08/31/2012 L ;Location: Room 7870) per ICC/Belinda 08/31/2012 Hrg Held / Evidentiary (3.850) F/CONTINUATION/CT RPT L CHINN 08/31/2012 Order SIGNED 083112 RETURN DEF BACK FROM WHENCE HE CAME AS SOON AS POSSIBLE Hearing /Evidentiary (3.850) (11:00 AM) (Judicial Officer: Siegel - FK, Andrew 08/30/2012 L ;Location: Room 7870) Hearing /Evidentiary (3.850) (11:00 AM) (Judicial Officer: Siegel - FK, Andrew 08/29/2012 L ;Location: Room 7870) 08/29/2012 Hrg Held On Defendants Motion F/IN PART?CT RPT L CHINN 08/29/2012 File Defense Notice Of Hearing 060512 @ 1:30 CASE MANAGEMENT 08/29/2012 File States Exhibit Hearing /Evidentiary (3.850) (11:00 AM) (Judicial Officer: Siegel - FK, Andrew 08/28/2012 L ;Location: Room 7870) Hearing /Evidentiary (3.850) (11:00 AM) (Judicial Officer: Siegel - FK, Andrew 08/27/2012 L ;Location: Room 7870) 08/21/2012 File Notice OF INTENT TO WAIVE PENALTY PHASE CLAIMS 08/03/2012 File Order Denying State Motion To Strike SIGNED 080312 DEFENSE WITNESSESS AND ORDER ON CASE MANAGEMENT CONFERENCE CLARIFICATION 08/03/2012 Returned Collection Mail 08/01/2012 File Defense Motion IN OPPOSITION TO STATES ORAL MOTION FOR RECONSIDERATION 08/01/2012 File Defense Witness List AND EXHIBIT LIST 07/31/2012 File States Motion FOR RECONSIDERATION OF ORDER ON CASE MGMT CONFERENCE AND/OR M TO STRIKE DEFENSE WITNESSES 07/31/2012 Order SIGNED 073012 DIRECTING BROWARD COUNTY SHERIFFS OFFICE TO TRANSPORT DEF.. 082712-083112 Hearing/Status Hearing RE: (10:30 AM) (Judicial Officer: Siegel - FK, Andrew 07/30/2012 L ;Location: Room 7870) EVID. HRG. 07/30/2012 File State's Witness List 07/30/2012 Hearing Held / Status Conference I.CT RPT V LIMA

PAGE 4 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A

07/26/2012 File Order Returning Defendant To Court SIGNED 072612 082712 @ 11 07/20/2012 Order SIGNED 072012 ON CASE MANAGEMENT CONFERENCE 07/17/2012 Felony Letter - 30 Days Past Due $478.00 Amount: 0.00 06/12/2012 File Transcript 060512 @ 1:30 Hearing/State's Motion (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 06/05/2012 L ;Location: Room 7870) case management 06/04/2012 Created -Volume Vol.8 05/30/2012 File Order Denying Def Motion SIGNED 053012 TO INTERVIEW JURORS 05/15/2012 File Order Granting Def Motion SIGNED 051412 THE FLORIDA DEPARTMENT OF CORRECTIONS MOTION TO QUASH SUBPOENAS ISSUED TO DONNA BEARD AND TIMOTHY CANNON 05/15/2012 File Order Denying Def Motion SIGNED 051412 IN PART DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE DEPARTMENT OF CORRECTIONS... AND DISMISSING IN PART 05/15/2012 File Order Denying Def Motion SIGNED 051412 DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT 05/15/2012 File Order Denying Def Motion SIGNED 051412 DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE OFFICE OF THE MEDICAL EXAMINER FOR THE 8TH DISTRICT 05/15/2012 File Order Denying Def Motion SIGNED 051412 DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE ATTORNEY GENERAL'S OFFICE 04/27/2012 File Notice Of Unavailability Of Counsel 042512 dates: april 30, may 1-4, may 7, may 10-11, may 18-22, may 23, may 24, may 25, may 28-29, may 31, june 4-8, june 14-15, june 20-22, june 25-28, july 19-23, july 30-aug 3, aug 8-9, aug 29, sept 5-7, sept 18-21,2012 Hearing Defense Motion (10:30 AM) (Judicial Officer: Siegel - FK, Andrew 04/25/2012 L ;Location: Room 7870) 04/25/2012 Hearing Not Held F/DEFENSE MOTION DELETED/CT RPT V LIMA 04/25/2012 File States Response To Defts 2nd amendment to M/Vacate Judgment of convictions and sentence with special request for leave to amend Hearing Defense Motion (10:30 AM) (Judicial Officer: Siegel - FK, Andrew 04/24/2012 L ;Location: Room 7870) 04/24/2012 File Letter Palm Beach Cty Sheriffs Ofc L Rubin Hearing Defense Motion (10:30 AM) (Judicial Officer: Siegel - FK, Andrew 04/23/2012 L ;Location: Room 7870) 04/19/2012 File Document DOC OBJECTIONS TO DEF DEMAND FOR ADDTL PUBLIC RECORDS FROM DOC 04/19/2012 File Defense Motion TO QUASJ SUBPOENA ISSUED TO DONNA BEARD/TIMOTHY CANNON 04/19/2012 File Defense Motion FOR EMERGENCY HEARING ON DOC M/TO QUASH SUBPOENAS 04/19/2012 File Defendants Response TO DOC'S MOTIONS TO QUASH SUBPOENAS

PAGE 5 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 04/16/2012 Paperwork Sent To Judge FDLE's Response and objection to defts demand for additional records 04/11/2012 File States Response Andk objection to defts motion to interview jurors 04/11/2012 File Notice Delivery of courtesty copy of case law to the court 04/10/2012 File Document FDLE's Response and objections to defts demand for additional records 03/26/2012 File Defense Notice Of Hearing 042312 @ 10:30 M/FOR LEAVE TO AMEND PLEADING 03/23/2012 File Defense Motion to leave to amend peding rule 03/23/2012 File Letter Re: M/to leve to amend pending rule 03/22/2012 File State's OBJECTION TO DEF DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE OFFICE OF THE MEDICAL EXAMINER FOR THE 8TH DISTRICT 03/20/2012 Order SIGNED 032012 SETTING HEARING ON VARIOUS MOTIONS Hearing/Status Conference (10:00 AM) (Judicial Officer: Siegel - FK, Andrew 03/07/2012 L ;Location: Room 7870) Events: 12/01/2011 Order 03/07/2012 Hearing Held / Status Conference D/CT RPT M SHIMEK 03/06/2012 Created -Volume Volume 9 03/06/2012 Created-Box Box 3 and 4 consolidated. Box 1, 2, and 3 are the current boxes 03/05/2012 File Defense Motion DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE ATTORNEY GENERAL OFFICE 03/05/2012 File Defense Motion DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE OFFICE OF THE MEDICAL EXAMINERS FOR THE 8TH DISTRICT 03/05/2012 File Defense Motion TO INTERVIEW JURORS 03/05/2012 File Document DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM FDLE 03/05/2012 File Document DEMAND FOR ADDITIONAL PUBLIC RECORDS FROM THE DEP OF CORRECTIONS Hearing/Status Conference (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 12/01/2011 L ;Location: Room 7870) 12/01/2011 Order SIGNED 120111 AMENDED ON PUBLIC RECORDS HEARING AND IN CAMERA INSPECTION OF CONFIDENTIAL OR EXEMPT RECORDS UNSOLVED CASE OF GINA MOORE 12/01/2011 Order SIGNED 120111 AMENDED ON PUBLIC RECORDS HEARING AND IN CAMERA INSPECTION OF CONFIDENTIAL OR EXEMPT RECORDS UNSOLVED CASE OF SANDRA WALTERS 12/01/2011 Order SIGNED 120111 ON STATES AND PBSO'S MOTIONS FOR REHEARING REGARDING ORDERS ON PUBLIC RECORDS HEARING AND IN CAMERA INSPECTION OF CONFIDENTIAL OR EXEMPT RECORDS 12/01/2011 Order SIGNED 090911 TO STAY PRODUCTION OF CONFIDENTIAL OR EXEMPT RECORDS AS

PAGE 6 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A APPLIED TO GINA MOORE AND SANDRA WALTERS 12/01/2011 File States Motion FOR REHEARING REGARDING ORDERS ON PUBLIC RECORDS HEARING AND IN CAMERA INSPECTION OF CONFIDENTIAL OR EXEMPT RECORDS UNSOLVED CASE Hearing/Status Hearing (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 09/08/2011 L ;Location: Room 7870) CANCEL D ATE FOR 8-26-11 09/06/2011 File Document PBSO M/FOR REHEARING REGARDING ORDERS ON PUBLIC HEARING AND IN CAMERA INSPECTION OF CONFIDENTIAL OR EXCEMPT RECORDS UNSOLVED CASES 09/06/2011 File Defense Motion For Downward Departure FOR REHEARING REGARDING ORDERS ON PUBLIC RECORDS HEARING AND IN CAMERA INSPECTION OF CONFIDENTIAL OR EXEMPT RECORDS UNSOLVED CASES 08/09/2011 File Notice OF RE-SCHEDULED STATUS HEARING Hearing/Status Hearing (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 05/26/2011 L ;Location: Room 7870) per JA/Denise Hearing/Status Hearing (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 05/25/2011 L ;Location: Room 7870) from ja denise/she has file Hearing/Status Conference (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 03/02/2011 L ;Location: Room 7870) Per Hs 1-10-11 Charges: 1 01/28/2011 File Document Response To Order Directing City Of Oakland Oakland Park To Provide Records To This Court 10/29/2010 Paperwork Sent To Judge Hearing Defense Motion (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 10/26/2010 L ;Location: Room 7870) From H/s 06/30/10 - Public Records Hearing 10/26/2010 Order Signed 102910 & 062110 Oakland Park's Motion For Extension Of Time Granted 45 Days Order Signed 101410 Adding A Public Records Hrg On The Oakland Park Personnel Records To The Public Records Hrg On Exempt RecordsSigned 102910 & 062110 Oakland Park's Motion Order Signed 102610 Directing The City Of Oakland Park To Provide Records 10/26/2010 File Court's Notice Of Hearing Signed 101810 Rehearing - Public Records Hrg 08/31/2010 File Document Response To Order Directing City Of Oakland Of Oakland Park To Provide Specific Documentation To This Court 07/28/2010 File Document City Of Oakland Parks M/extension Of Time Hearing/Hearing Set (9:00 AM) (Judicial Officer: Siegel - FK, Andrew 06/30/2010 L ;Location: Room 7870) 06/30/2010 Hearing Held / Status Conference I/ct Rpt N Sosa 06/30/2010 File Notice To Court And Parties 06/24/2010 Paperwork Sent To Judge City Of Oakland Park's M/extension Of Time 06/17/2010 File Motion City Of Oakland Park M/extension Of Time Hearing/Hearing Set (9:00 AM) (Judicial Officer: Siegel - FK, Andrew

PAGE 7 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A

04/27/2010 L ;Location: Room 7870) Per Hs 040110 - Status Hearing 04/27/2010 Hearing Held / Status Conference I/ct Rpt N Sosa 03/30/2010 File Defense Notice Of Hearing 042710 @ 9 Postconviction Counsel 02/10/2010 File Defense Notice Of Hearing 041910 @ 9 Status Hearing/Status Conference (10:00 AM) (Judicial Officer: Siegel - FK, Andrew 01/27/2010 L ;Location: Room 7870) From Hs 1/7/10 01/27/2010 Hearing Held / Status Conference I.Ct Rpt N Sosa *ja Has All Boxes* 12/04/2009 File Letter All Future Matters Directed To Hon Siegel 10/20/2009 File Document Receipt 8 Box Of Ct Files/public Records 07/17/2009 File States Response D/amendment M/vacate Judge/sentence 06/09/2009 Paperwork Sent To Judge Judge Rothchild-D/amendment To M/vacate Judgm 06/04/2009 File Document Verification 06/02/2009 File Notice Of Filing Verifi To Amend M/vacate Judg/sentc 05/29/2009 File Defense Motion To Vacate & Set Aside Judgment 04/22/2009 Order To Deliver Sealed Records To The Clerk Of Ct 04/21/2009 File Defense Motion For In Camera Review Of Sealed Records 04/16/2009 File Document Resp To Def Demand For Addtl Public Record 04/09/2009 File Notice Receipt Of Records From The Bode Technology 03/24/2009 File Document Stipulated Not Re: Production Of Records 03/17/2009 File Transcript 3.5.09 03/09/2009 File Notice Of Filing Letter From Counsel For Pbso Hearing /Evidentiary (3.850) (3:30 PM) (Judicial Officer: Rothschild, Ronald 03/05/2009 J ;Location: XXXXXXXXXX) Per/ja(darlene) Hearing Defense Motion (3:30 PM) (Judicial Officer: Rothschild, Ronald 03/05/2009 J ;Location: XXXXXXXXXX) Per/ja(darlene) Production Of Records 02/24/2009 File Defense Motion Order For Production Of Records 02/24/2009 File Defense Motion For Extension Of Time For Filing Amended 3.851 Motion 02/11/2009 File State's Fifth Notice Of Filing Suppl Authority 01/21/2009 File Transcript 011609

PAGE 8 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A Hearing Defense Motion (9:00 AM) (Judicial Officer: Rothschild, Ronald 01/16/2009 J ;Location: XXXXXXXXXX) Per/ja(darlene) Public Rec/ Lethal Injection 01/16/2009 Hearing Held / Status Conference F.Ct Rpt J Lewis 01/16/2009 File Order Granting Def Motion For Extension Of Time Amended 3.851 12/11/2008 File Document Fdle Response/objections To Demand Records 11/25/2008 File Order Denying Def Motion Def Amended Demands For Addtl Public Records 11/17/2008 File Transcript 111208/ 11/12/2008 Order On Public Records Hearing And In Camera Inspection Of Confidential Or Exempt Records/ / On Public Records Of September 26,2006 11/12/2008 Hrg Held On Defendants Motion F/public Records/ct Rpt J Lewis 11/12/2008 File Order Denying Def Motion Public Records 11/10/2008 File Defense Notice Of Hearing Amended Demands For Additional Records 11/10/2008 File Defense Demand For Discovery Amended Public Records 10/08/2008 File Defense Notice Of Hearing 111208 Public Records 07/01/2008 File Transcript 061808 06/20/2008 File Order For Production Of Transcripts Signed Only/by Judge Rothschild Hearing/Status Conference (1:30 PM) (Judicial Officer: Rothschild, Ronald 06/18/2008 J ;Location: XXXXXXXXXX) Per/ja(darlene) 06/18/2008 Reset Status Conference D/ct Rept J Lewis 05/22/2008 File Notice Of Unavailability Of Counsel From 062808-072008 05/09/2008 File Defense Notice Of Hearing Status Hearing - 061808 1:30 Pm 04/21/2008 File Notice Of Supplemental Authority State's Fourth Notice 02/21/2008 File Document Doc Response To Def Req For Public Records 01/30/2008 File State's 3rd Notice Of Filing Supplemental Authority 01/30/2008 File Document Objection To Def Demand For Addt'l Records 01/15/2008 File Defendant's Demand For Additional Public Records 12/10/2007 File Transcript 112007 11/27/2007 File Order Granting Def Motion To Provide Copy Of Autopsy Photographs 11/20/2007 Hrg Held On Defendants Motion Copies Of Records/ct Rept-J Lewis (f)

PAGE 9 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 10/16/2007 File Defense Notice Of Hearing 112007 Hearing On Exempt Public Records 10/11/2007 File Transcript 090407 / 092707 10/01/2007 Order For Expedited Production Of Transcripts 10/01/2007 File Letter From Terrence Lynch 09/25/2007 File Document Atty General's Response Objection To Def's Demand For Additional Public Records Served On 062707 09/20/2007 Hrg Held On Defendants Motion In Part/public Record/ct Rept-J Lewis (d) 09/18/2007 File Transcript 091207 09/14/2007 File Defense Notice Of Hearing 092007 Hearing On Exempt Public Records 09/12/2007 Hrg Held On Defendants Motion D/exempt Public Records In Part/cr J Lewis Hearing/Status Conference (10:00 AM) (Judicial Officer: Rothschild, Ronald 09/04/2007 J ;Location: XXXXXXXXXX) (f) Hearing Defense Motion (10:00 AM) (Judicial Officer: Rothschild, Ronald 09/04/2007 J ;Location: Room 940) Per/ja(darlene)m/hrg/def.Pub.Rec.Demand 09/04/2007 File Notice Of Filing Letters From Counsel To Fdle 07/27/2007 File Defense Notice Of Hearing 090407 Any And All Arguments Re: Def Public Records Demands Pursuant To Fl R Crim P 3.852i) // 091207 Hearing On Exempt Public Records 07/12/2007 File Transcript 062507 06/29/2007 File Notice Of Filing Supplemental Authority 06/27/2007 File Notice Of Filing 06/27/2007 File Defense Motion For Addtional Public Record (4 Filed) 06/25/2007 Order Deliver Sealed Record To Clerk Of Court 06/25/2007 Hearing Held / Status Conference Ct Rept-J Lewis (f) 06/01/2007 File Notice Of Filing Demand For Additional Public Records 06/01/2007 File Defendant's Demand For Additional Public Records 05/17/2007 Order Administrative Official File Expedited Transcripts Of Each Proceeding 05/14/2007 File Transcript 042307 04/26/2007 File Document Doc Objection To Def Demand For Records Hearing Defense Motion (9:00 AM) (Judicial Officer: Rothschild, Ronald 04/23/2007 J ;Location: XXXXXXXXXX) Per/ja

PAGE 10 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 04/23/2007 Order Exhibit Shall Be Filed In Court File 04/23/2007 Hearing Held / Status Conference Ct Rept-J Lewis (f) 04/23/2007 File Order Granting Def Motion Verbal/review Pd Records 04/23/2007 File Exhibit List 04/17/2007 File States Response Def M/vacate Judgement Of Convictions And Sentences With Special Request For Leave To Amend 04/03/2007 File Defense Notice Of Hearing 042307 Hearing/Status Conference (9:00 AM) (Judicial Officer: Rothschild, Ronald 03/23/2007 J ;Location: XXXXXXXXXX) Per/ja 03/19/2007 File Notice Of Filing Demands For Addt'l Public Records 03/19/2007 File Defendant's Demand For Addtional Public Records From The Governor's Office/inspector General/ Medical Examiner District 8/doc 02/23/2007 Order Directing State's Response 02/14/2007 File Defense Motion To Vacate & Set Aside Sentence With Special Request For Leave To Amend 02/13/2007 Hrg Held On Defendants Motion Review Pbc Sheriff's Records/cr-J Lewis (f) 02/02/2007 File Order Granting Def Motion Demand For Additional Public Records 01/19/2007 File Notice Of Delivery Of Records To Dept Of S/archives 01/09/2007 File Defense Notice Of Hearing 021307 01/08/2007 File Document Amended Demand For Additional Public Records 01/03/2007 Hrg Held On Defendants Motion Public Records/ct Rept-M Happ (d) 01/03/2007 File State's Not Of Compliance By State Atty To Deft 103006 Demand For Additional Public Records Hearing Defense Motion (1:30 PM) (Judicial Officer: Rothschild, Ronald 12/27/2006 J ;Location: XXXXXXXXXX) Per/ja-(review Of Sheriff Records) 12/18/2006 File Notice Of Filing Attached Letter To Counsel For Bso 12/11/2006 File Defense Notice Of Hearing 010307 Deft Demand For Addt'l Public Records 10/31/2006 File State's Notice Of Compliance By State Atty To Deft's May 8, 2006 Demand(s) For Additional Public Records 10/31/2006 File Defense Notice Of Hearing 122706 10/30/2006 File Defendant's Demand For Additional Publoc Records 10/30/2006 File Defense Motion For Order On Production Of Record/memo Of Law 10/27/2006 File Defense Notice Of Hearing

PAGE 11 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 122706 Def Demand For Addtl Public Records 10/19/2006 File Notice Of Filing Attached Letter To Counsel 10/10/2006 File Defense Notice Of Hearing 112206 Demand For Additional Public Records 10/03/2006 File Document Brwd Cty Medical Examiners Submittal Of Transmittal Receipt From The State Archives Of Florida 09/29/2006 File Document Atty General's Response To Demand For Additional Public Records And Notice Of Objections 09/22/2006 Hrg Held On Defendants Motion D/public Record 09/14/2006 File Document Brwd Med Examiner's Response To Def Demand For Additional Public Records Pertaining Def Case 08/17/2006 File Notice Of Delivery Of Exempt Public Records Of Compliance By The Secretary Of Doc 08/11/2006 File States Response (x2)from Fdle & Medical Examiners Resp. 07/17/2006 File Defense Notice Of Hearing 092206 Hearing/Status Conference (8:00 AM) (Judicial Officer: Rothschild, Ronald 07/10/2006 J ;Location: XXXXXXXXXX) 06/30/2006 File State's Objection To Def Demand For Addt'l Public Records 06/26/2006 File Document Bso Objection To Def Demand For Additional Public Records 06/23/2006 File Document Dept Of Health's Not Of Compliance/not Of Delivery Of Requested Records To The Records Repository. 06/13/2006 File Defendant's Response And Obj./demand F/add'tl Public Rec 06/08/2006 File Notice Compliance By Law Enforcement Agency 06/06/2006 File Notice Compliance By Law Enforcement Agency 05/08/2006 File Notice Of Filing Demand For Additional Public Records 05/08/2006 File Defendant's Demand For Additional Public Records (20) 04/04/2006 Hearing Held / Status Conference D/ct Rpt Stephnie Denson 03/27/2006 File Defense Notice Of Hearing 040406 @ 8 Status Hearing Defense Motion (8:00 AM) (Judicial Officer: Rothschild, Ronald 02/15/2006 J ;Location: XXXXXXXXXX) Per/ja-Reset Mandate 02/15/2006 File Notice Of Delivery Of Exempt Public Records Directly Directly To Counsel For Deft. 01/18/2006 File Notice Of Compliance By Law Enforcement Agency 01/13/2006 File Notice Compliance By State Attorney 01/08/2006 File Notice Of Filing Amended Demand For Public Records

PAGE 12 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 12/29/2005 File Notice Of Delivery Of Exempt Public Records The Records Repository/compliance By The Secretary Of The Dep Of Corrections Hearing/Status Hearing RE: (8:00 AM) (Judicial Officer: Rothschild, Ronald 11/16/2005 J ;Location: XXXXXXXXXX) Per Darlene-Ja Mandate Reset From 11/4/05 11/16/2005 File Defense Notice Of Hearing 021506 @ 8 Status 11/10/2005 Evidence Returned From Appeals Rtn'd Frm Supreme Court 11/09/2005 File Defense Notice Of Hearing 111605 @ 8 Status Hearing/Status Hearing RE: (8:00 AM) (Judicial Officer: Rothschild, Ronald 11/04/2005 J ;Location: XXXXXXXXXX) Per Darlene (ja) Mandate Reset From 10/26 10/19/2005 File Defense Notice Of Hearing 110405 @ 8 10/14/2005 File Defense Notice Of Hearing 102605 @ 8 Status 09/26/2005 Order Of Assignment 09/22/2005 File Notice To Doc Of Affirmance Of Death Penalty (x2) 09/16/2005 File Mandate - Affirmed From Supreme Court 09/16/2005 File Supreme Court Of Florida Order File Notice Of Appearance/motion To Withdraw 09/16/2005 File Mandate - Affirmed SEJ 08/29/2005 File Supreme Court Of Florida Order Motion For Rehearing Denied 09/22/2004 Evidence Sent To Appeals State 1-8 Photos Penalty Phase To Supreme Crt 09/22/2004 Supplemental Record On Appeal Completed St's 1-8 Autopsy Photos/federal Express 05/19/2004 Evidence Sent To Appeals A1248%2//miscwall/backwall// 05/19/2004 Evidence Sent To Supreme Court 9 Envelopes & 1 Bf 10/22/2003 Hearing Held / Status Conference As To Status Of Transcripts 10/22/2003 File Defense Motion Oretenus 10/22/2003 File Order Denying Def Motion Oretenus/object To Payment 10/17/2003 Order Setting Status Hrg/10/22/03 @ 9:am 10/15/2003 Supplemental Record On Appeal Completed Mail To Supreme Court, Ag & Pd 10/02/2003 Order Transcripts Being Missing 10/01/2003 Order Directing Clerk Of The Court Re:transcripts And Psi Report

09/30/2003 Hearing/Status Hearing RE: (9:00 AM) (Judicial Officer: Murphy - FT, John J,

PAGE 13 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A III ;Location: Room 4750) Sup Ct Ord 9/9/03 Not Rcv Tran Per H/s 092403 09/25/2003 Order 9/30/03 @ 9:00 Am Re: Status 09/22/2003 File Supreme Court Of Florida Order Appoint Judge Greene For Supp Record Purpose 09/12/2003 File Supreme Court Of Florida Order Case Temp Relinquished To 17th Judicial Court 07/09/2003 File Notice Of Non Receipt Of Transcripts Rcv'd Partial Of Transcripts 05/21/2003 File Order Granting Ext Of Time To Prepare Transcript Supp Transcripts Extended To 6-23-03 04/25/2003 File Order Granting Motion For Suppl Record On Appeal 02/24/2003 Appeal Forward Date 02/24/2003 Appeal Completed 02/04/2003 File Order Granting Ext Of Time To Prepare Transcript Extended To & Including 1/20/03 12/17/2002 File Notice Of Non Receipt Of Transcripts Sent To Supreme Court , Ag, Pd 11/18/2002 File Supreme Court Of Florida Order Granting Motion For Extension Of Time 11/07/2002 File Motion For Ext Of Time To Prepare Record On Appl Due To Transcripts Numbered Wrong 08/01/2002 File Supreme Court Of Florida Order Directing Ct Rept To File Trans By 102202 Etc 07/11/2002 File Defendants Notice Of Appeal 07/11/2002 Clerk Assigned To Appeal SEJ 07/11/2002 File Designation To Court Reporter And Acknowledgmemt 07/11/2002 File Statement Of Judicial Acts To Be Reviewed 07/11/2002 File Order Of Insolvency 07/11/2002 File Defendants Notice Of Appeal 07/08/2002 Correspondence Answered Dtd 4-26-02 Fr Mcfann/beavers - Copies Sent 06/30/2002 File And Record Judgment Bk 33459 Pgs 1918 1919 06/25/2002 File Transcript Sent Of 6-21-2 Vol Xxxii Pgs 2627-2642/disk 06/24/2002 File Commitment 06/21/2002 Sentence (Judicial Officer: Rothschild, Ronald J) 3. Armed Kidnapping Sentence Comment (Docketrac Sentence Record Note: T/s Of 1183d) Comment (Total Amount Imposed $55.00) Confinement (Effective 06/21/2002 at 12:00 AM, Min. , Max. 0 Yr 39 Mo 13 Days Life, Florida State Prison) Credit for Time Served: 0 Yr 39 Mo 13 Days Sentence Status (Consecutive, Case #: 99-005809-CF10A, Counts: 002-002, Comment: Def#:99005809CF10A Count:002) Provisions (Special Provisions Defendant Sentenced Under Sentencing Guidelines) 06/21/2002 Sentence (Judicial Officer: Rothschild, Ronald J) 2. Armed Sexual Battery Sentence Comment (Docketrac Sentence Record Note: T/s Of 1183d)

PAGE 14 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A Comment (Total Amount Imposed $55.00) Confinement (Effective 06/21/2002 at 12:00 AM, Min. , Max. 15 Yr 0 Mo 0 Days , Florida State Prison) Credit for Time Served: 0 Yr 39 Mo 13 Days Sentence Status (Consecutive, Case #: 99-005809-CF10A, Counts: 001-001, Comment: Def#:99005809CF10A Count:001) Provisions (Special Provisions Defendant Sentenced Under Sentencing Guidelines) 06/21/2002 Sentence (Judicial Officer: Rothschild, Ronald J) 1. Murder in the First Degree Sentence Comment (Total Amount Imposed $328.00) Comment (Docketrac Sentence Record Note: T/s Of 1183d) Charge Reopen Status (08/15/2018, Closed, 1) Confinement (Effective 06/21/2002 at 12:00 AM, Min. , Max. 0 Yr 39 Mo 13 Days , Florida State Prison) Credit for Time Served: 0 Yr 39 Mo 13 Days Provisions (Special Provisions Defendant Sentenced Under Sentencing Guidelines) 06/21/2002 File Sentencing Guidelines 06/21/2002 Sentence Held / File Sentence I / Cr C Martin 06/21/2002 File Restitution Order 06/14/2002 File Transcript Proceedings Of 5-29-2/vol Xxxi Pgs 2609-2626 05/29/2002 Hearing Held / Status Conference I / Cr C Martin 05/15/2002 File Transcript Proceedings From 2-1-2; 1-23-2 Vol Xv Pgs 1696 Through 1820; 1-28-2 Vol Xvi Pgs 1821 Through 1894; 1-30-2 Vol Xix Pgs 2117 Through 2133; 2-6-2 Vol Xxi Pgs 2143 Through 2158. 05/13/2002 File Transcript Transcript Of 5-7-2 Vol Xxx Pgs 2602-2608 05/07/2002 Hearing Held / Status Conference I / Cr C Martin 05/07/2002 File Order Granting Def Motion For Continuance Verbal 05/03/2002 File Transcript Proceedings Of 4-30-2 Vol Xxix 04/30/2002 Hearing Held / Status Conference I / Cr M Pulliam 04/30/2002 File State's Memorandum In Support Of Death Penalty 04/22/2002 File Transcript Vol Xxviii 04/11/2002 File Transcript Proceedings Of 3-12-2/vol Xxvi Pgs 2346-2541 04/10/2002 Hearing Reset D / Cr C Martin / S/c 04/05/2002 File Transcript Proceedings 3-27-2/vol Xxviii/pgs 2542-2568 03/27/2002 Hearing Held D/cr C Martin/spencer Hrg 03/27/2002 File Order Denying Def Motion To W/D Atty Of Rec 03/25/2002 File Transcript Excerpt Of Margaret Woods-Alcide Testimony Of 3-12-2 & Excerpt Of Lucious Boyd's Testimony Of 3-12-2 03/21/2002 File Order For Compensation Of Psychiatrists Dr Rifkin / $400

PAGE 15 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 03/15/2002 File Transcript Morning Session Of 3-11-2 Vol Xxiv Pages 2198-2271. Vol 25 Pages 2272-2345. 03/13/2002 Sentencing (9:01 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) Per Icc 03/13/2002 Sentencing Not Held D / Cr M Pulliam 03/13/2002 File Transcript Proceedings Of 11-29-01 03/12/2002 Sentence Held / File Sentence F / Cr C Martin / 2nd Day Penalty Phase 03/12/2002 File Clerk's Notes Of Trial 03/11/2002 File States Supplemental Discovery 03/11/2002 File States Motion In Limine 03/11/2002 Sentence Held / File Sentence D / Cr C Martin / Penalty Phase 03/11/2002 Order Eft To Be Brought Up @ 9:30 03/11/2002 File Jury's: Question 03/06/2002 File Order Fixing Compensation Of Expert Witness Dr Tracey $550 / Addison Singh $1,025 03/05/2002 File Transcript Sworn Statement Of Daniel Lopp 02/28/2002 File States Supplemental Discovery 02/28/2002 File Order Returning Witness To Court Daniel Lopp 02/26/2002 File Defendant's Notice Intent Present Mental Health Experts 02/22/2002 File Transcript Proceedings Of 2-1-2 / Vol Xx 02/21/2002 File Order Granting Def Motion Evaluate Deft By State Mental Health Expert 02/21/2002 File Deposition Lynn Baird 02/19/2002 File Order Fixing Compensation Of Expert Witness Dr Alexandrov / $1,025 02/19/2002 Hearing Held / Status Conference D / Cr M Pulliam 02/19/2002 File Pre-Sentence Investigation Order 02/08/2002 File States Supplemental Discovery 02/06/2002 Hearing Held / Status Conference D / Cr C Martin / Reset Penalty Phase 02/05/2002 File States Motion Have Deft Evaluated By Mental Health Expert 02/04/2002 File Transcript Excerpt: Testimony Of Addison Singh Excerpt: M/directed Verdict Armed Sexual Battery; Testimony Of Geneva Lewis; Testimony Of Lucious Boyd. Morning Session 1-16-02 Vol Xi Pgs 1198-1292; Afternoon SessionExcerpt: Testimony Of Addison Singh 1-28-2 Vol Xvii Pgs 1895- 1950; Morning Session 1-29-2 Vol Xviii Pgs 1951-2116. 02/01/2002 Hearing Held / Status Conference D / Cr S Baker 02/01/2002 File Order Granting Def Motion For Appoint Of Expert

01/30/2002 Jury Trial - Day to Day (10:00 AM) (Judicial Officer: Siegel - FK, Andrew

PAGE 16 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A L ;Location: Room 518) 13th Day, Per Icc 01/30/2002 Disposition 3. Armed Kidnapping Convicted by Jury - Adjudicated OBTS: 0012063775 Sequence: 1

01/30/2002 Disposition 2. Armed Sexual Battery Convicted by Jury - Adjudicated OBTS: 0012063775 Sequence: 2

01/30/2002 Disposition 1. Murder in the First Degree Convicted by Jury - Adjudicated OBTS: 0012063775 Sequence: 3

01/30/2002 Jury Trial Held (d) 13th Day/cr C Martin 01/30/2002 Order Evidence To Be Locked & Sealed 01/30/2002 File Jury's: Note & Questions 01/30/2002 File Clerk's Notes Of Trial 01/29/2002 Jury Trial Held F / Cr A Reid / 12th Day 01/29/2002 Order Sequestor Jury 01/29/2002 File Transcript Vol Xiii Pgs 1446-1596/vol Xiv Pgs 1597-1695 01/29/2002 File Record Of Trial Proceedings 01/29/2002 File Clerk's Notes Of Trial 01/29/2002 File Defense Motion In Limine From 1-16-2 01/28/2002 Jury Trial Held F / Cr C Martin / 11th Day 01/28/2002 File States Response To Absurd M/limine 01/23/2002 Jury Trial Held D / Cr C Martin 01/23/2002 File Defense Motion Declare Death Penalty Unconstitutional 01/23/2002 File Order Denying Def Motion Declare Death Penalty Unconstitutional 01/22/2002 Jury Trial Held D / Cr A Reid 01/22/2002 File States Supplemental Discovery 01/22/2002 File Transcript Vol 9 From 1-15-02/vol 11 & 12 From 1-16-02 01/22/2002 File Clerk's Notes Of Trial 01/22/2002 File Defense Motion In Limine Fingerprints 01/18/2002 File Transcript Proceedings Of 1-14-2 Vol 7 / 1-15-2 Vol 10 01/18/2002

PAGE 17 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A

File Notice Of Unavailability Of Counsel From 3-13-02 Thru 3-21-02 01/17/2002 File Transcript Proceedings Of 1-14-2 Vol 8 Jury Trial - Day to Day (10:00 AM) (Judicial Officer: Siegel - FK, Andrew 01/16/2002 L ;Location: Room 6870) Per Icc 01/16/2002 Jury Trial Held D / Cr C Martin / 8th Day 01/15/2002 Jury Trial Held D / Cr C Martin / 7th Day 01/15/2002 File Transcript Vol 7 Of Proceedings From 1-9-2 Proceedings Of 10-9-01 01/15/2002 File Defense Motion Declare Fl Statute 921.141 Unconstitutioal Declare Death Not A Possible Penalty. Preclude Government From Death Qualifing The Jurors. 01/14/2002 Jury Trial Held D / Cr C Martin / 6th Day 01/14/2002 File Transcript Vol 5 1-7-2 / Vol 6 1-8-2 Proceedings 01/11/2002 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) D 01/11/2002 File Transcript Vol 4 1-7-2 Proceedings 01/11/2002 File Defense Motion In Limine 01/10/2002 File Transcript S/c Of 1-4-2 01/09/2002 Jury Trial Held F / Cr C Martin / 5th Day 01/09/2002 Order Deft To Be Brought Up At 9:30 01/09/2002 File Clerk's Notes Of Trial 01/08/2002 Jury Trial Held F / Cr A Reid / 4th Day 01/08/2002 File Order Granting Def Motion Allow Deft To Wear Wedding Ring 01/08/2002 File Stipulation Of Parties Re:wearing Wedding Ring-Verbal 01/08/2002 File Defense Motion Allow Deft To Wear Wedding Ring 01/07/2002 Jury Trial Held F / Cr C Martin / 3rd Day 01/07/2002 Order Transport 01/07/2002 File Clerk's Notes Of Trial Hearing/Status Conference (1:30 PM) (Judicial Officer: Siegel - FK, Andrew 01/04/2002 L ;Location: Room 6870) D 01/04/2002 File States Supplemental Discovery 12/28/2001 File States Supplemental Discovery 12/26/2001 File Order Granting State Motion To Designate Det.Addison Singh As An Expext 12/18/2001 File States Motion Designate Former Detective As An Expert

PAGE 18 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 12/13/2001 File States Supplemental Discovery 12/12/2001 File States Supplemental Discovery 12/11/2001 File Transcript 12-4-01 / Vol 3 12/07/2001 File Transcript 12-3-01 / Vol 1 & 2 12/05/2001 Trial Not Held D / Cr C Martin 12/04/2001 Jury Trial Held D / Cr C Martin / 2nd Day 12/04/2001 Order Deft To Receive Trial Clothes 12/04/2001 Jury Sworn 12/04/2001 File Jury's: Info List 12/04/2001 File Clerk's Notes Of Trial 12/03/2001 Jury Trial Held D / Cr C Martin 12/03/2001 File States Supplemental Discovery 11/29/2001 Hearing Held / Status Conference D / Cr S Baker / Keep Dates 11/29/2001 File Order Granting Def Motion Receive Trial Clothes 11/29/2001 File Stipulation Dental Stones Are Those Of The Deft 11/29/2001 File Defense Motion Receive Trial Clothes 11/27/2001 File States Supplemental Discovery 11/21/2001 File States Supplemental Discovery 11/15/2001 File Transcript 11-08-01 @9:30am Speedy Trial Hearing(3)filed 11-02-01 @ 2:pm Hearing 11/13/2001 Jury Trial (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) D 11/13/2001 File States Supplemental Discovery 11/13/2001 Hearing Held / Status Conference D / Cr C Martin 11/08/2001 File States Supplemental Discovery 11/08/2001 Hrg Held On Defense Demand For Speedy Trial Ct-D Tucker/i 11/02/2001 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) D Hearing/Defense Motion to Suppress (2:00 PM) (Judicial Officer: Siegel - FK, Andrew 11/02/2001 L ;Location: Room 6870) Per Hrg Sheet 9/21/01 11/02/2001 Hrg Held On Defendants Motion D / Cr C Martin / For Jury View 11/02/2001 File Order Granting State Motion For Continuance Verbal 11/02/2001 File Order Granting Def Motion For Jury View 11/02/2001 File Exhibit List 11/02/2001 File Order Denying Def Motion To Suppress Verbal

PAGE 19 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 10/23/2001 Defense Notice of Taking Depositions 10/09/2001 Hearing Held D / Cr C Martin / Pre-Trial Status 09/21/2001 File Transcript 091701@ 1:00 A.M. 09/21/2001 File Defense Notice Of Hearing October 9, 2001 09/19/2001 File Notice Of Hearing October 19, 2001/november 2, 2001 09/17/2001 Hearing Held D / Cr C Martin / Ruling On "package" Motion 09/17/2001 File Order Denying Def Motion "package" Motion 1-36 09/05/2001 File States Supplemental Discovery 09/04/2001 Hearing Not Held D/cr C Martin/pre-Trial Motions/to Be Reset 08/17/2001 File Deposition Terrell Kingery 08/14/2001 File States Supplemental Discovery 08/06/2001 File States Supplemental Discovery 07/30/2001 Defense Notice of Taking Depositions (3) 07/27/2001 File States Supplemental Discovery 07/23/2001 File States Supplemental Discovery 07/20/2001 Defense Notice of Taking Depositions (4) 07/17/2001 File Order Fixing Compensation Of Expert Witness Martin Tracey / $725 07/13/2001 File Order Granting Court Continuance 07/13/2001 Calendar Call/Held I/cr-T & L Agency 07/09/2001 File States Supplemental Discovery 07/02/2001 File States Supplemental Discovery 07/02/2001 Hearing Not Held D/cr C Martin/pre-Trial Motions/ja Cancelled 06/29/2001 File States Supplemental Discovery 06/25/2001 File States Supplemental Discovery Two Filed 06/20/2001 File States Supplemental Discovery 2 Filed 06/15/2001 File States Supplemental Discovery 06/15/2001 Hearing Held D/cr D Hill/frye Hrg/denied 06/15/2001 File Record Of Hearing/Proceeding 05/25/2001 File Notice Of Unavailability Of Counsel W Anthony Loe 05/21/2001 File Letter Re: Frye Hrg 05/04/2001 File Order Granting Def Motion For Continuance 05/04/2001 Calendar Call/Held I/cr-Dd Davis 05/01/2001 File Transcript

PAGE 20 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A

Proceedings Of 3-26-01 04/20/2001 File Order Fixing Compensation Of Expert Witness $525 04/19/2001 File States Supplemental Discovery To Motion In Limine 04/18/2001 File State's Notice Of Conflict & M/reschedule 04/16/2001 File Defense Notice Of Hearing 060101 04/16/2001 File Defense Motion In Limine 03/26/2001 Hearing Held / Defendant's Competency Found Competant For Trial / D / Cr P Hill 03/08/2001 Hrg Held On Defense Motion To Compel No Action Taken/ct Rept D Hill (f) 02/16/2001 Hearing Reset Cal/call/ Ct Rept D.Hill 02/16/2001 File Order Granting Joint Continuance Verbal 02/16/2001 File Defendants Response Second Reply To Misguided Mot Of State 02/16/2001 File Defense Notice Of Hearing 3-8-01 Mot Compel / 3-26-01 Competency Hrg 01/26/2001 Hearing Reset Status To 2-16-01 / Ct Rept T.F.Greene 01/24/2001 File States Motion To Compel Renewed Motion 01/18/2001 File Defense Notice Of Hearing 1-26-01 Status 12/21/2000 File States Motion To Compel 12/21/2000 Hearing Reset Ct Rept D.Hill 12/21/2000 File Order Sealing Data 12/21/2000 File Order Granting State Motion To Compel 12/21/2000 File Order Granting State Motion For Continuance Verbal 12/21/2000 File Defendants Response 12/14/2000 File Defense Notice Of Hearing 12-21-00 Status Re: Court Order 12/12/2000 Hearing Held / Status Conference Ct Rept D.Floyd / Hearing/State's Motion (2:00 PM) (Judicial Officer: Siegel - FK, Andrew 12/08/2000 L ;Location: Room 6870) To Compel, Hrg Sheet 11/3/00 Hearing All Pending Motions (2:00 PM) (Judicial Officer: Siegel - FK, Andrew 12/08/2000 L ;Location: Room 6870) Pre-Trial Motions, Hrg Sheet 10/11/00 12/08/2000 Hrg Held On States Motion To Compel Ct Rept D.Kelly 12/08/2000 File Order Granting State Motion To Compel 11/29/2000 File States Supplemental Discovery 11/21/2000 File States Supplemental Discovery 11/08/2000 File Defendant's Counsels Reply To States Mot To Compel

PAGE 21 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 11/03/2000 File States Notice Of Hearing 12-8-00 State's Mot To Compel 11/02/2000 File Defense Motion To Compel 10/26/2000 File Order For Compensation Of Psychiatrists T.B.Garfield, Ph.D. $ 150 10/19/2000 File States Notice Of Taking Deposition Subp Duces Tecum / (1) 10/17/2000 File Defendant's Request For Competency Hrg 10/17/2000 File Defense Notice Of Hearing 12-15-00 Competency Hrg 10/12/2000 File Order For Compensation Of Psychiatrists Dr.L.Haber $ 150 10/12/2000 File Defense Motion To Compel 10/11/2000 Hearing Not Held Delete From Docket / Ct Rept D.Kelly 10/06/2000 Hearing Held / Status Conference Ct Rept D.Hill 10/04/2000 File Defense Motion For Jury View 10/03/2000 File Defense Notice Of Hearing 10-11-00 All Pending Pretrial Motions 09/28/2000 File States Supplemental Discovery 09/27/2000 File Order Granting Def Motion To Appoint Psych Dr.L.Haber, Dr.T.B.Garfield 09/27/2000 File Order Granting Def Motion For Appoint Of Expert Dr.T.Block-Garfield 09/26/2000 File Deposition A.Singh 09/25/2000 File Defense Motion For Appointment Of Expert 09/22/2000 File Deposition Det.K.Kaminsky, Det.A.Stone 09/13/2000 File Order Granting Def Motion To Tax Costs Expert Witness Dr.S.Rifkin $ 275 09/12/2000 File Defense Witness List 09/11/2000 File States Supplemental Discovery 09/07/2000 File Defense Notice Of Hearing 10-6-00 Motions 09/07/2000 File Defense Motion In Limine 09/01/2000 File Deposition Dr.S.Rifkin 08/23/2000 File Deposition Det.G.Bukata 08/15/2000 File Deposition Det.S.Mosher 08/14/2000 Defense Notice of Taking Depositions (2) 08/11/2000 File Certificate Of Non-Appearance Of Witness Det.K.Kaminsky, Off.A.Strong On 8-8-00 08/09/2000 Hearing Reset S/c 10-6-00 08/09/2000 Hearing Held / Status Conference Ct Rept D.Hill

PAGE 22 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 08/01/2000 File Defendant's Depo Reset Memorandum 07/31/2000 Defense Notice of Taking Depositions (2) 07/21/2000 File States Supplemental Discovery 07/19/2000 File Transcript 6-23-00 Proceedings 07/19/2000 File Deposition Det.S.Mosher 07/14/2000 Defense Notice of Taking Depositions (1) 07/14/2000 File Defense Motion To Suppress 07/13/2000 File Defense Motion To Compel Renewed Mot 07/12/2000 File Defense Motion In Limine 07/06/2000 File Defendant's Depo Reset Memorandum 06/28/2000 File Defendant's Depo Reset Memorandum Hearing Defense Motion (11:15 AM) (Judicial Officer: Siegel - FK, Andrew 06/23/2000 L ;Location: Room 6870) H/s 6/5/00 06/23/2000 Hrg Held On Defense Motion For Statement Of Particular Ct Rept V.Pacifico 06/23/2000 File State's Mot For Particulars 06/16/2000 Defense Notice of Taking Depositions (1) (1) 06/06/2000 File Defense Notice Of Hearing 6-23-00 Mot Enforce Court's Order 06/05/2000 Defense Notice of Taking Depositions (2) 06/02/2000 File Defendant's Depo Reset Memorandum 05/25/2000 File States Supplemental Discovery 05/08/2000 File Deposition Julie Mccormick, Geneva Lewis 04/28/2000 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) 04/28/2000 Hearing Reset Cal/call / Ct Rept V.Pacifico 04/28/2000 File Order Granting Def Motion For Continuance Verbal 04/19/2000 File Defendant's Depo Reset Memorandum 03/28/2000 Defense Notice of Taking Depositions (3) (1) 03/27/2000 File States Supplemental Discovery 03/22/2000 File Defense Motion To Compel 03/08/2000 File Deposition R.Dacosta, D.Bowe 03/06/2000 File States Supplemental Discovery 03/06/2000 Defense Notice of Taking Depositions (2)

PAGE 23 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 02/24/2000 Defense Notice of Taking Depositions (2) 02/22/2000 File Defense Witness List 02/10/2000 File Defense Witness List 02/07/2000 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) 02/07/2000 Hearing Reset Cal/call / Ct Rept D.Kelly 02/07/2000 File Order Granting Def Motion For State Of Part 02/07/2000 File Order Granting Def Motion To Compel 02/07/2000 File Order Granting Def Motion For Continuance Verbal 01/31/2000 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) 01/31/2000 Hearing Reset Cal/call / Ct Rept V.Pacifico 01/31/2000 File Order Granting Def Motion For Continuance Verbal 01/28/2000 File Deposition Dr.V.Alexandrov 01/25/2000 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) 01/25/2000 Hearing Reset Status & C/call / Ct Rept K.Skubic 01/25/2000 File Order Granting Def Motion For Continuance Verbal 01/18/2000 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) 01/18/2000 Hearing Reset Status & Cal/call / Ct Rept N.Petriak 01/18/2000 File Deposition Sgt.S.Mosher, B.E.Ayala, L.Belle 01/11/2000 File States Supplemental Discovery 01/11/2000 File Deposition Commander G.Osani,det.Sgt.Cucchi,det.C.Davis 01/06/2000 File States Supplemental Discovery 12/27/1999 File States Supplemental Discovery 12/08/1999 File Deposition Dep.C.Smith, Sgt.C.Mccoy, Det.M.A.Suchomel 12/06/1999 File States Supplemental Discovery 12/06/1999 File Order Granting Def Motion To Tax Costs Of Expert Witness $ 212.50 12/06/1999 Defense Notice of Taking Depositions (3) 12/02/1999 File Defendant's Depo Reset Memorandum 11/30/1999 File Defendant's Depo Reset Memorandum 11/16/1999 File Defendant's Depo Reset Memorandum 11/12/1999 Defense Notice of Taking Depositions (1) 11/02/1999 File Defendant's Depo Reset Memorandum 10/26/1999 Defense Notice of Taking Depositions (1)

PAGE 24 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 10/25/1999 Defense Notice of Taking Depositions (3)(3)(3)(3)(3)(1)(3)(3)(2)(3)(3) Hearing/Defense Motion for Statement of Particulars (8:30 AM) (Judicial Officer: Siegel - 10/12/1999 FK, Andrew L ;Location: Room 6870) Per Hrg Sheet 10-1-99 10/12/1999 File States Supplemental Discovery 10/12/1999 Hrg Held On Defense Motion To Issue Subpoena Duc Tec Ct Rept P.Rose 10/12/1999 File Order Granting Def Motion To Issue Subpoena Duces Tecum 10/12/1999 File Defense Motion For Statement Of Particulars 10/12/1999 File Defense Motion To Disclosure Of Penalty Phase Evidence Mot To Allow Victim Impact Evidence Mot To Declare Florida Statutes Unconstitutional // Mot For Interrogatory Guilt Phase Verdict /To Disclosure Of Penalty Phase Evidence Mot To Preclude First Degree Felony Murder Theory Of Prosecution // Mot To Preclude Death As Possible Punishment/ Mot For Daily Transcripts Of Trial //To Disclosure Of Penalty Phase Evidence Mot To Determine The Non Applicability Of The Death Penalty // Mot To Elect & Justify Aggravating Circumstances //To Disclosure Of Penalty Phase Evidence Mot For Transcription & Review Of Grand Jury Proceedings / Mot For Special Verdict As The Theory Of Guilt //To Disclosure Of Penalty Phase Evidence Mot For Findings Of Fact By The Jury // Mot To Grantdef The Concluding Argument To The Jury ///To Disclosure Of Penalty Phase Evidence To Limit / Mot To Prohibit Any Reference To The Advisory Role Of The Jury At Sentencing / Mot In LimineTo Disclosure Of Penalty Phase Evidence Mot To Compel // Mot To Postpone Phase Ii // Mot For Pre-Trial Ruling // Mot For Recess Of Trial Between GuiltyTo Disclosure Of Penalty Phase Evidence Verdict And Penalty Phase // Mot To Prevent Improper Voir Dire Examination Objection To Standard Instruction On "premeditated Murder" ///To Disclosure Of Penalty Phase Evidence Written Objection To Standard Jury Instruction On Reasonable Doubt // Def Proposed Penalty Phase Jury Instruction Respecting Victim Impact Evidence ///// 10/12/1999 File Defense Motion In Limine 10/12/1999 File Defense Motion To Exclude Evidence 10/04/1999 File Defense Notice Of Hearing 10-12-99 Mot For Bill Particulars / 09/30/1999 File States Supplemental Discovery 09/08/1999 Hearing Not Held Delete Hrg Per Pd 2b Reset By Atty/ Cr D.Hill 09/01/1999 File Defendant's Depo Reset Memorandum 08/26/1999 File Defense Notice Of Hearing 090899 08/24/1999 File States Supplemental Discovery 08/24/1999 Defense Notice of Taking Depositions Six 08/20/1999 Calendar Call (8:30 AM) (Judicial Officer: Siegel - FK, Andrew L ;Location: Room 6870) 08/20/1999 Hearing Reset Calendar Call / Ct Rept C.Martin 08/20/1999 File Order Granting Def Motion For Continuance Verbal 08/18/1999 File States Supplemental Discovery 08/16/1999 File Letter From Public Def Re: Witness 08/04/1999 File States Supplemental Discovery 08/03/1999 File Defense Motion For Leave To Issue Subpoena Duces Tecum 07/27/1999 File Defendant's Request For Bill Of Particulars

PAGE 25 OF 26 Printed on 09/25/2018 at 8:38 AM FELONY CASE SUMMARY CASE NO. 99-005809-CF10A 07/26/1999 File States Supplemental Discovery 07/22/1999 File States Supplemental Discovery 06/17/1999 File States Supplemental Discovery 06/14/1999 File States Supplemental Discovery 06/08/1999 File States Supplemental Discovery 06/01/1999 File States Supplemental Discovery 05/20/1999 File State Demand For Notice Of Alibi 05/18/1999 File States Discovery Submission 05/07/1999 File Notice/Assistant PD Assignment 04/29/1999 Plea 3. Armed Kidnapping Arraignment Not Guilty-Jury OBTS: 0012063775 Sequence: 1

04/29/1999 Plea 2. Armed Sexual Battery Arraignment Not Guilty-Jury OBTS: 0012063775 Sequence: 2

04/29/1999 Plea 1. Murder in the First Degree Arraignment Not Guilty-Jury OBTS: 0012063775 Sequence: 3

04/29/1999 File State's Notice Def Death Qualified /// 04/29/1999 File Application Fee / Public Defender Appointed 04/29/1999 Defendant Allowed 15 Days to File Motions 04/29/1999 Arraignment Held Ct Rept D.Hill 04/29/1999 CTS_PD Fees Amount: 40.00 03/29/1999 File Notice Of Def Invocation Of Right To Counsel 03/27/1999 Hrg Held / Magistrate Findings/Order - Probable Cause Found

PAGE 26 OF 26 Printed on 09/25/2018 at 8:38 AM **** FILED: BROWARD COUNTY, FL Howard C. Forman, CLERK 10/5/2016 3:32:05 PM.****

$upteme (Heart of :D’Iuriha

WEDNESDAY, OCTOBER 5, 2016

CASE NOS.: SC13—244 & SC13—1959 Lower Tribunal N0(s).: 061999CF005809A88810

LUCIOUS BOYD vs. STATE OF FLORIDA

LUCIOUS BOYD vs. JULIE L. JONES, ETC. _

Appellant/Petitioner Appellee/Respondent

Appellant/Petitioner’s Motion for Rehearing ﬁled in SC13-244 is hereby denied without prejudice to raising any Hurst claims in a separate petition for writ of habeas corpus.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,

and PERRY, J J ., concur.

True A Copy \

Test: J

522*.—

Joﬁn A. Tomasino A, Clerk, Supreme Court

cd Served:

LESLIE T. CAMPBELL HON. ANDREW L. SIEGEL, JUDGE SUZANNE MYERS KEFFER JOEL MICHAEL SILVERSHEIN SCOTT GAVIN HON. HOWARD F ORMAN, CLERK CAROLYN V. MCCANN

1 **** FILED: BROWARD COUNTY, FL Howard C. Forman, CLERK 10/31/2016 4:19:55 PM.****

MANDATE SUPREME COURT OF FLORIDA

T0 the Honorable, the Judges oft/1e:

Circuit Court in and for Broward County, Florida

WHEREAS, in [/1511 certain cause ﬁled in [his Court sly/ed."

LUCIOUS BOYD vs. STATE OFR‘ALORIDA

Case No: SC13—244

Your Case No.: 061999CF005809A88810

The attached Opinion was rendered on: 12/17/2015

YOU ARE HEREBY C OMMANDED I/1al_ further proceedings be had in accordance with said opinion, the rule of this Court and the laws oflhe State of Florida.

WITNESS, The Honorable JORGE LA BARGA, Chief Justice Off/7e Supreme Court of Florida and the Seal of said Court a] Tallahassee, the Capital, 017 this 215/ day of October 2016.

Clerk /0f[/'Ie Supreme Court ofFlorida

2 @upremg mm 3% fﬁmma

N0. SC 1 3-244

LUCIOUS BOYD, Appellant,

VS.

STATE OF FLORIDA, Appellee.

No. SC13-1959

LUCIOUS BOYD, Petitioner,

VS.

JULIE L. JONES, etc., Respondent.

[December 17, 2015]

PER CURIAM.

Lucious Boyd appeals a final order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under

Florida Rule of Criminal Procedure 3.851. Boyd also petitions this Court for a writ

3 ofhabeas corpus. We have jurisdiction. ﬁg; art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we afﬁrm the circuit court’s denial of Boyd’s rule

3.851 motion and deny relief on his petition for writ of habeas corpus.

I. BACKGROUND AND FACTS

Lucious Boyd was convicted for the ﬁrst-degree murder, armed kidnapping, and sexual battery of — and sentenced to the penalties of death, life imprisonment, and ﬁfteen years’ imprisonment, respectively. Boyd V. State, 910

So. 2d 167, 176-77 (Fla. 2005).

A. Trial and Direct Appeal Proceedings

On direct appeal, we set forth the relevant factual and procedural background as follows:

The evidence presented at trial revealed the following facts. In the early morning hours of December 5, 1998, —’s car ran out of gas while she was on her way to her home in Deerﬁeld Beach, Florida, from a midnight church service. She had just exited from Interstate 95 (I—95) onto Hillsboro Beach Boulevard and pulled onto the shoulder. She then took a red gas can she kept in her car, walked about a block east to a nearby Texaco gas station, and bought

a gallon of gas. At approximately 2 a.rn., during the time she was at the gas station, _ spoke with two other customers, Lisa Bell and Johnnie Mae Harris. She asked Bell for a ride back to her car, but Bell had walked to the station and so could not give — a ride. Bell and Harris then watched — speak with a black male in a van in the station’s parking lot. Harris asked the man if he was going to help —, and the man nodded, indicating yes. Bell later told the police that the van she saw was greenish-blue in color, while Harris said that she thought the van was burgundy. Though somewhat unsure about the van’s color, Harris was certain that she saw the word

4 “Hope” on its side. In a photo lineup and at trial, Harris identified the man she saw in the van that night as Lucious Boyd. Boyd spent the evening of December 4 with Geneva Lewis, his girlfriend, at her mother’s home. Boyd left the house around 10 or 11 pm, and Lewis did not see him again until the morning of December 5, at around 9 or 10 am. Lewis testified that on December 4 and 5, Boyd was driving a green church van with writing on its side and that the van belonged to Reverend Frank Lloyd of the Hope Outreach Ministry Church, for whom Boyd performed occasional maintenance work. —’s family began searching for her after she did not return home on December 5. They found her car at an I—95 exit and began circulating fliers with _’s photograph, indicating that she was missing, throughout the area. Bell and Harris saw the fliers, recognized — as the woman with the gas can at the Texaco station on December 5, and contacted the police with their information.

On December 7, _’s body was discovered in an alley behind a warehouse on 42nd Street in Deerfield Beach. The body was wrapped in a shower curtain liner, a brown, flat bed sheet, and a yellow, flat bed sheet. A purple duffel bag and two large black trash bags covered her head. It was determined that she had been dead for between thirty-six and seventy-two hours. At trial, it was stipulated that — died due to a penetrating head wound and that the bruising on her head was consistent with but not exclusive to the face plate of a reciprocating saw. Wounds to her chest, arms, and head were consistent with but not exclusive to a Torx brand torque screwdriver, and she had defensive wounds on her arms and hands. There was bruising to her vagina that was consistent with sexual intercourse, although the medical examiner could not _ whether the intercourse was consensual or nonconsensual. _ had thirty-six superficial wounds on her chest, four on the right side of her head, and twelve on her right hand, some being consistent with defensive wounds and some being consistent with bite marks. One fatal wound to the head perforated the skull and penetrated —’s brain. On March 17, 1999, while Detectives Bukata and Kaminsky of the Broward County Sheriff 5 Office were investigating another crime unrelated to —’s death, they saw a green van in the Hope Outreach Ministry Church parking lot. The van had burgundy writing

-3- 5 on it that read “Here’s Hope.” Bell would later identify the church’s van as the same van she had seen on the morning of December 5 at the Texaco station. The detectives decided to investigate, and their inquiries as to the owner of the van led them to Reverend Lloyd. When the detectives questioned Lloyd about the location of the van on the night of December 4, Lloyd’s secretary, who was present at the questioning, remarked that Lucious Boyd had driven the van on that weekend. On December 4, Boyd had taken Reverend Lloyd to pick up a rental car in the church’s green 1994 Ford van. Reverend Lloyd further testified that he instructed Boyd to take the van back to the church but that Boyd did not return the van until Monday, December 7. Reverend Lloyd also stated that when he left the van with Boyd, various tools owned by the church, including a set of Torx brand screwdrivers and a reciprocating saw, were in the van, as well as a purple laundry bag that the pastor used to deliver his laundry to the cleaners. When Reverend Lloyd returned on December 15, he discovered that the screwdrivers, the saw, and the laundry bag were missing. Boyd was arrested for murder on March 26, 1999. Dacosta’s_ the Seminal fluid taken from inner thigh matched DNA profile of Boyd. Tests also did not eliminate Boyd as a match for a hair found on — chest. A DNA profile consistent with Boyd’s was found in material taken from under — fingernails. In addition, fingerprints taken from the trash bag found around the Victim’s head matched fingerprints of Boyd’s girlfriend, Geneva Lewis, and her son, Zeffrey Lewis. Tire marks on a sheet covering the Victim’s body were consistent with the tires on the church van, although trial expert Terrell Kingery, a senior crime laboratory analyst for the Orlando Regional Crime Laboratory, testified that he could not say for certain that the van’s tires made the marks because over 1.5 million tires could have made the tracks on the sheet. Dr. Steven Rifl

On April 1, Detective Bukata obtained a warrant to search the apartment of Boyd and Lewis, which was a block east of the Texaco station. Detective Bukata arrived at the apartment and told Lewis to leave with her children for a few days so that the ofﬁcers could fully search the apartment. The investigators found blood at various

-4- 6 locations throughout the apartment. Blood found on the underside of the carpet and on the armoire matched — DNA proﬁle. The shower curtain rings were unsnapped, and there was no liner to the shower curtain. Carpet ﬁbers taken from the yellow sheet in which —s body was wrapped matched characteristics of carpet samples taken from Boyd’s apartment. Lewis had previously lived with Boyd at his apartment but had moved out in October of 1998. While living with Boyd, Lewis had purchased a queen—size bed, which she left at the apartment when she moved. Lewis and her three children moved back in with Boyd in February of 1999 and discovered that the bed was no longer at Boyd’s

apartment. When she asked about it, Boyd told her that he had given

it away but would get it back. When she inquired about it again, Boyd told her that she would not want that bed and that he would get her another one. Lewis also identified the flatbed sheets, one brown and one a “loud yellow,” that were found around —’s body as similar to ones she had owned while living at Boyd’s apartment but that she no longer knew Where they were or if they were at Boyd’s apartment or at her mother’s home. A jury convicted Boyd of first-degree murder, sexual battery, and armed kidnapping. The trial court subsequently conducted a penalty phase proceeding, during which both sides presented evidence. The jury unanimously recommended that Boyd be sentenced to death. The trial court followed the jury’s recommendation and imposed a death sentence, finding and weighing two aggravating factors, one statutory mitigating factor, and five nonstatutory mitigating factors. State V. Boyd, No. 99—5809 (Fla. 17th Cir. Ct. order filed June 21, 2002) (sentencing order). The trial court also sentenced Boyd to fifteen years’ imprisonment for the sexual battery and to life imprisonment for the armed kidnapping charges.

I_d. at 174-77 (footnotes omitted). This Court afﬁrmed Boyd’s convictions and sentence of death. 1; at 194.

B. Postconviction Relief Proceedings

7 On February 14, 2007, Boyd ﬁled a Motion to Vacate Judgment of

Conviction and Sentences with Special Request for Leave to Amend, pursuant to

Florida Rule of Criminal Procedure 3.851. He raised the following claims: (1) denial of access to public records; (2) Violation of his rights of due process and equal protection by failing to apply rule 3.851; (3) counsel was ineffective by failing to adequately conduct voir dire, challenge the admissibility of forensic evidence pursuant to Frye V. United States, 293 F. 1013 (DC. Cir. 1923), and utilize forensic experts; (4) juror misconduct; (5) denial of adversarial testing during the sentencing phase, including counsel’s ineffectiveness for failure to move for a mistrial based on inﬂammatory and prejudicial comments; (6) denial of rights under Ake V. Oklahoma, 470 US. 68 (1985); (7) denial of the right to interview jurors; (8) cumulative error; and (9) the unconstitutional ity of Florida’s lethal injection statute and procedure.

On May 29, 2009, Boyd ﬁled an amended motion to vacate his convictions and sentences, adding claims that newly discovered evidence undermined the reliance of the forensic evidence used to convict and sentence, and that the State committed a M1 Violation. Boyd subsequently ﬁled a second amended rule

3.851 motion on March 23, 2012.

1. Brady v. Magyland, 373 US. 83 (1963).

-6- 8 On June 5, 2012, the circuit court granted an evidentiary hearing on some of

Boyd’s claims. On August 28 and 29, 2012, the circuit court held an evidentiary hearing on Boyd’s claims of ineffective assistance of counsel for failure to conduct adequate voir dire concerning jurors’ prior criminal histories, juror misconduct, and ineffective assistance of penalty phase counsel for failure to move for a mistrial based on inﬂammatory and prejudicial comments. In a sixty-two page

order, dated January 2, 2013, the circuit court denied these three claims and summarily denied Boyd’s remaining claims. Boyd now appeals the lower court’s order denying postconviction relief and also petitions for a writ of habeas corpus.

II. POSTCONVICTION RELIEF CLAIMS

A. Actual Juror Bias Claims

Boyd asserts that he is entitled to a new trial because two jurors failed to disclose information pertinent to his decision to retain them for jury service, thereby denying him a fair and impartial jury. The present appellate claim involves issues of fact considered and conclusions of law made by the circuit court.

This Court employs a mixed standard in reviewing a postconviction court’s denial of postconviction relief, “deferring to the postconviction court’s factual ﬁndings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo.” Victorino V. State, 127 So. 3d 478, 486 (Fla. 2013) (citing

Sochor V. State, 883 So. 2d 766, 771-72 (Fla. 2004)); Jackson v. State, 127 So. 3d

9 447, 460 (Fla. 2013) (“This Court accords deference to the postconviction court’s

factual ﬁndings following its denial of a claim after an evidentiary hearing”).

Boyd argues that jurors Tonja Striggles and Kevin Rebstock failed to disclose information concerning their criminal histories, which denied Boyd a fair and impartial jury at trial. According to Boyd, the presence of Juror Striggles and

Juror Rebstock—one, a convicted felon who had not timely had her civil rights restored; the other, a former misdemeanor defendant for whom adjudication had been withheld—on the jury of his criminal trial was inherently prejudicial to his legal interests. Consequently, Boyd asserts, because his constitutional right to a fair trial was denied when he was convicted by a jury that consisted of said jurors, a new trial must be granted without any further showing of actual bias or prejudice.

We disagree.

As an initial matter, Boyd’s reliance on our decision in Lowrey V. State, 705

So. 2d 1367 (Fla. 1998), is misplaced. In My, the First District affirmed the defendant’s conviction for carrying a concealed firearm but certified for review the following question as one of great public importance:

MU ST A CONVICTED DEFENDANT SEEKING A NEW TRIAL DEMONSTRATE ACTUAL HARM FROM THE SEATING OF A JUROR WHO WAS UNDER CRHVIINAL PROSECUTION WHEN HE SERVED BUT THOUGH ASKED, FAILED TO REVEAL THIS PROSECUTION?

10 I; at 1368 (emphasis added) (quoting Lowrey V. State, 682 So. 2d 610, 612 (Fla.

lst DCA 1996)). In answering the question in the negative, we distinguished our decision in State V. Rodgers, 347 So. 2d 610, 613 (Fla. 1977), where we held that the presence of a minor on the criminal defendant’s jury did not require a new trial

absent a showing that the minor’s age affected the verdict or prevented a fair trial.

Specifically, we explained that in R_odgfl, “no evidence or perception existed to indicate that the disqualified juror rendered an unfair or impartial vote,” whereas in

L0_wr§y, “there [was] a clear perception of unfairness, and the integrity and credibility of the justice system [was] patently affected.” My, 705 So. 2d at

1369—70. In concluding, we emphasized that we were not overruling m, but

“simply carving out an exception based on the unique circumstances presented.”

I_d_. at 1370. Accordingly, we quashed the First District’s decision and remanded

with directions to grant a new trial. I_d.

Juror Striggles’ criminal history consisted of the following incidents: (1) making a bomb threat and committing extortion (August 1979); (2) making a threatening phone call (December 1980); (3) twice pleading guilty to reporting false bombings (August 1983 and October 1986), and Violating the probation order associated with each conviction; (4) pleading guilty to the misdemeanor of contributing to the delinquency of a minor in Georgia (March 1986); and (5) pleading guilty to one count of possession of a ﬁrearm by a convicted felon and

11 one count of carrying a concealed ﬁrearm (March 1988). According to the record,

Striggles was about nineteen years old at the time of her ﬁrst false-bombing reporting in August 1983, and twenty-four at the time of her last known adjudication in March 1988. Certiﬁed records indicate that Striggles’ civil rights

were restored on April 4, 2008—more than six years after she served on the jury of

Boyd’s 2002 trial. When asked by the trial court how long ago she was involved with the criminal justice system, Striggles responded that she was a juvenile. She did not otherwise apprise the court or counsel of her series of convictions as an adult (beginning in August 1983).

The record also reﬂects that Juror Rebstock was arrested in Broward County in November 1991 and charged with misdemeanor solicitation of prostitution; however, the presiding court withheld adjudication. During voir dire in the present case, Rebstock reported on the voir dire questionnaire form that he did not have any family or friends involved in the legal system. He did not report his own encounter with law enforcement, and no further inquiries were made by the trial judge or counsel for either party concerning Rebstock’s answer to this question.

The circumstances found in the present case do not implicate the “clear perception of unfairness” as contemplated in m. As the Second District cogently explained, “[t]he purpose of disqualifying a person who has a pending

prosecution is to avoid the possibility that that person might vote to convict in the

-10- 12 ‘hope of getting more favorable treatment from the prosecution in [his or her] own case.” Thompson V. State, 300 So. 2d 301, 303 (Fla. 2d DCA 1974). Conversely, persons who have already undergone criminal prosecution and been convicted are

no longer in a position to curry favor from the State. This is especially true with regard to Juror Striggles since her last known adjudication was approximately fourteen years before Boyd’s trial, and with Juror Rebstock, for whom adjudication had already been withheld on his misdemeanor Charge approximately a decade before Boyd’s trial. Moreover, we see no practical reason to believe that those who, for instance, have not become rehabilitated since being prosecuted over a decade before serving on the jury of a criminal trial are more likely than similarly situated persons~but who have also had their civil rights restored—to favor the

State over the defense. See Oregon v. Benson, 384 P.2d 208, 210 (Or. 1963)

(“Many [jurors who were convicted of felonies or misdemeanors] have become morally rehabilitated. And we have no reason to believe that those who have not become rehabilitated and are called to jury duty are more likely to show partiality for the state than for the defendant”). We, therefore, reiterate that our decision in

LCM): is limited to its unique set of circumstances and, thus, refuse to extend our ruling therein to Boyd’s case and similarly situated cases.

Next, case law—both from this Court and from other appellate courts

throughout the nation—supports our rejection of Boyd’s claim that he is entitled to

-11- 13 a new trial by Virtue of the fact that his jury included a statutorily disqualiﬁed convicted felon who had not had her civil rights restored. The United States

Supreme Court has emphasized that “[t]he motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” McDonough Power Equip, Inc. v. Greenwood, 464

US. 548, 556 (1984); see also United States V. Carpa, 271 F.3d 962, 967 (11th Cir.

2001) (citing McDonough, 464 US. at 553). Speciﬁcally concerning a juror’s status as a convicted felon, many appellate courts throughout our nation have echoed this precise Viewpoint. For example, the Supreme Court of Michigan explained:

Although a criminal defendant has a constitutional right to be tried by an impartial jury, a criminal defendant does not have a constitutional right to be tried by a jury free of convicted felons. Instead, the right to be tried by a jury free of convicted felons is granted by statute. And by statute, a Violation of this “right” only requires a new trial if the defendant demonstrates that such a Violation “actual[ly] prejudice[d]” him.

Michigan V. Miller, 759 N.W.2d 850, 855-56 (Mich. 2008) (footnotes omitted); S_C§ also Hunt V. Maryland, 691 A.2d 1255, 1266-67 (Md. 1997) (“What is required of jurors is that they be Without bias or prejudice for or against the defendant and that their minds be free to hear and impartially consider the evidence and render a fair verdict thereon”); Washington V. Cleary, 269 P.3d 367, 370 (Wash. Ct. App.

2012) (“The disqualiﬁcation criterion [for convicted felons addressed] here is by

-12- 14 'statute, not the state or federal constitution. The assignment of error does not then

implicate constitutional rights.” (citation omitted)); United States V. Humphrevs,

982 F.2d 254, 261 (8th Cir. 1992) (holding trial court did not abuse discretion in denying defendant’s motion for a new trial on the ground that one juror was previously convicted on embezzlement charge; defendant did not pursue questioning of subject juror on voir dire or ﬁlrther investigate or raise any challenge during trial, and there was no evidence of either bias or unfairness as a result of the seating of juror); United States V. Boney, 977 F.2d 624, 633 (DC. Cir.

1992) (“W[hile] [w]e think, therefore, that the Sixth Amendment guarantee of an impartial trial does not mandate a per se invalidation of every conviction reached

by a jury that included a felon[,] . . . there is still the question whether appellants were entitled to a hearing to determine Whether the juror was in fact biased.”

(internal citations and footnotes omitted»; United States V. Uribe, 890 F.2d 554,

562 (lst Cir. 1989) (denying defendants’ claim of entitlement to a new trial in narcotics prosecution because one juror was a convicted felon; explaining “the statutory Violation—allowing a convicted felon to serve—did not implicate the fundamental fairness of the trial or the defendants’ constitutional rights,” and defendants did not otherwise demonstrate a “plausible link between the predicate facts and the prejudice claimed”).

-13- 15 We acknowledge the contemplated reasons why felon—jurors sitting in criminal trials may harbor bias in favor of the defense as well as the State.

Compare Johnston V. State, 63 So. 3d 730, 739 (Fla. 2011) (“In fact, juror

Robinson’s positioning as a prior defendant makes bias against Johnston especially unlikely”) (emphasis in original), w w, 890 F.2d at 562 (“The district court found not the slightest basis to conclude that the juror’s prior conviction, sentence, or subsequent dealings with the court rendered him more prone to convict a defendant in an unrelated case. We agree.”), with Companioni V. City of Tampa,

958 So. 2d 404, 413 (Fla. 2d DCA 2007) (outlining reasons why convicted felons serving as jurors in criminal trials could be bias both in favor of and against defendants) (citing Humphreys, 982 F.2d at 260-61; Rubio V. Super. Ct. of San

Joaquin Cnty., 593 P.2d 595, 600 (Cal. 1979) (en banc)).

However, if a criminal defendant has failed to establish that a particular juror could not be fair and impartial and follow the law as instructed by the trial court,

then it is unreasonable to filrther ascertain whether the juror’s status as a convicted felon rendered him or her more favorable to the State or the defense. In other words, we do not see the efficacy in belaboring the direction in which a felon- juror’s bias cuts in the absence of legally sufficient evidence showing that the juror was actually biased against the defendant. See United States v. Borg, 97 F. Supp.

2d 1, 6 (D.D.C. 2000) (“Even if this Court did not credit the Juror’s explanation as

-14- 16 'to why he omitted a California conviction from his District of Columbia jury

questionnaire[,] . . . additional evidence would still be necessary to establish actual bias and to demonstrate prejudice to defendant’s case.”).

Besides, we do not think that it is pragmatic to promulgate a per se rule that one’s status as a convicted felon denotes inherent bias against a criminal defendant’s legal interests. Otherwise, courts would be placed in the precarious position of ordering new trials based not on legally sufﬁcient evidence of actual bias or prejudice, but wholly on gut reactions to sociological generalizations of human tendencies. E w, 890 F .2d at 562 (“To be accorded weight, a bias claim requires more than subjective characterizations unanchored in the realities of human experience.”); My, 977 F.2d at 633 (“A m rule [requiring a new trial

Whenever a felon serves on a jury] would be appropriate, therefore, only if one could reasonably conclude that felons are always biased against one patty or another. But felon status, alone, does not necessarily imply bias.”).

Indeed, such a categorical rule is repugnant to the actual bias standard established in our jurisprudence. As further analyzed below, for claims of juror bias this Court has repeatedly required that the defendant bear the burden of pointing to evidence on the face of the record which exhibits the subject juror’s lack of impartiality. E Lebron V. State, 135 So. 3d 1040, 1058 (Fla. 2014) (citing

Carratelli V. State, 961 So. 2d 312, 323 (Fla. 2007)); see also Smithers v. State, 18

-15- 17 So. 3d 460, 465 (Fla. 2009) (“Juror Collins’ statements did not show a biased

unwillingness to consider potential sentences other than death. . . . Thus, the record does not demonstrate actual bias that would prevent juror Collins from serving as an impartial juror.”). Maryland’s highest state court has expressed a

View of this issue that comports with our Carratelli line of cases. Speciﬁcally, the

“ Court of Appeals of Maryland has instructed: ‘[B]ias on the part of prospective jurors will m be presumed, and the challenging party bears the burden of ” presenting facts . . . which would give rise to a showing of actual prejudice.’ m, 691 A.2d at 1267 (emphasis in original) (quoting Davis V. Magyland, 633 A.2d 867, 873 (Md. 1993)); w M, 759 N.W.2d at 857—58.

Hence, in light of the court decisions discussed above, again, we refuse to

accept Boyd’s position that a criminal defendant is per se entitled to a new trial where he or she was convicted by a jury that included a convicted felon whose civil rights had not been restored. Rather, we hold—as have many other appellate

courts throughout this nation—that a criminal defendant is not entitled to relief under such atypical circumstances absent a showing, based on legally sufﬁcient evidence, of actual juror bias against the defendant. In other words, a person’s disqualiﬁcation from jury service by statute does not necessarily implicate a

Violation of a criminal defendant’s constitutional rights if that person somehow served as one of said defendant’s jurors. Thus, the only relevant issue presently

-16- 18 .before this Court is whether there is legally sufﬁcient evidence that either Juror

Striggles or Juror Rebstock was actually biased against Boyd.

Under the “actual bias” standard announced by this Court in Carratelli:

A juror is competent if he or she “can lay aside any bias or prejudice and render his [or her] verdict solely upon the evidence presented and the instructions on the law given to him [or her] by the court.” Lgﬂ v. State|, 446 So. 2d [1038,] 1041 [(Fla. 1984)]. Therefore, actual bias means bias-in-fact that would prevent service as an impartial juror. See United States V. Wood, 299 US. 123, 133-34

(1936) . . . . Under the actual bias standard, the defendant must demonstrate that the juror in question was not impartial—Le, that the juror was biased against the defendant, and the evidence of bias must

be plain on the face of the record. See Carratelli [V. State], 915 So. 2d [1256,] 1260 [(Fla. 4th DCA 2005)] (citing Jenkins[v. Statel, 824 So. 2d [977,] 982 [(Fla. 4th DCA 2002))]; see also Patton V. Yount, 467 US. 1025, 1038-40 (1984).

Carratelli, 961 So. 2d at 324.

Here, Boyd has not alleged actual bias, nor has he pointed to any evidence in this record indicating that Juror Striggles or Juror Rebstock likely did not

deliberate the question of his guilt fairly and impartially. In fact, the record is replete with evidence demonstrating facts that support the opposite conclusion.

For instance, when asked during voir dire, Striggles informed the trial court that she was treated fairly by the juvenile system as a juvenile delinquent and that she, as previously noted, had gotten over whatever negative feelings she may have developed about that experience. Striggles also told the prosecutor during voir dire that she did not have a problem recommending a sentence of death where

-17- 19 appropriate because she expected the State to be fair in the presentation of its case against Boyd. Further, Striggles was not part of the group of venire members that expressed moral, religious, or personal beliefs that would have prevented them

from returning a verdict of guilty if the State satisﬁed its burden of proof. She, however, was part of the group that afﬁrmatively agreed with the prosecutor’s statement that the verdict reached should be one based solely upon the evidence presented, and not any juror’s personal biases or prejudices. Because this record evidence gives no indication that either Juror Striggles or Juror Rebstock harbored any bias against him, we conclude that Boyd has not shown that he is entitled to a new trial. Accordingly, we deny relief on this claim.

B. Ineffective Assistance of Counsel Claims

Below, Boyd raised numerous ineffectiveness claims regarding defense counsel’s performance during voir dire as well as the guilt and penalty phases. The circuit court summarily denied some claims, and denied the remainder following an evidentiary hearing. To prevail on an ineffective assistance of counsel claim under Strickland V. Washington, 466 US. 668 (1984), the defendant must demonstrate both deﬁciency and prejudice:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deﬁciency shown must further be demonstrated to have so affected the fairness and

-18— 20 reliability of the proceeding that conﬁdence in the

outcome is undermined.

There is a strong presumption that trial counsel’s performance was not deficient. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s Challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. The defendant carries the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Judicial scrutiny of counsel’s performance must be highly deferential. Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. In demonstrating prejudice, the defendant must show a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Long v. State, 118 So. 3d 798, 805-06 (Fla. 2013) (internal citations and alterations omitted).

“[W]hen a defendant fails to make a showing as to one element [of the

Strickland standard], it is not necessary to delve into whether he has made a showing as to the other element.” Thompson V. State, 796 So. 2d 511, 516 (Fla.

2001); McCoy V. State, 113 So. 3d 701, 708 (Fla. 2013). “Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual ﬁndings that are

-19- 21 supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo.” Li. Where a claim is summarily denied without an evidentiary hearing, “this Court will afﬁrm only when the claim is legally insufﬁcient, should have been brought on direct appeal, or is positively refuted by the record.” m, 127 So. 3d at 460 (internal citations and alterations omitted).

1. Failure to Conduct Adequate Voir Dire

Boyd ﬁrst claims that defense counsel’s failure during voir dire to question

Juror Striggles more in depth about information she revealed concerning her juvenile delinquency record prejudicially denied him the opportunity to discover information material to excusing Striggles from jury service. However, Boyd has not proffered any additional questions that defense counsel should have asked

Striggles during voir dire that would have elicited the now—complained-of information from her. E Green v. State, 975 So. 2d 1090, 1105 (Fla. 2008)

(“Second, Parker did not render ineffective assistance in failing to ask Guiles more questions, because an allegation that there would have been a basis for a for cause challenge if counsel had followed up during voir dire with more speciﬁc questions is speculative.” (citing Johnson V. State, 903 So. 2d 888, 896 (Fla. 2005); Reaves V. m, 826 So. 2d 932, 939 (Fla. 2002»). Nevertheless, as discussed above, the record in this case does not show that Striggles harbored any bias against Boyd,

and thus, it is not reasonable to conclude that she rendered her duties in any

-20- 22 'manner other than fairly and impartially. S_e§ Carratelli, 961 So. 2d at 324. The

record also reﬂects that Boyd participated in the jury selection process, agreed to

an abbreviated voir dire, and did not object to seating Striggles as a juror because

he gave informed consent to his defense team’s overall trial strategy. This belies

Boyd’s contention that he was prejudiced by Striggles’ presence on his jury. SE

Gamble V. State, 877 So. 2d 706, 714 (Fla. 2004) (“[I]f the defendant consents to

counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel.”). Therefore, Boyd has failed to show that counsel’s declination to ask

Striggles more speciﬁc voir dire questions about her criminal record affected the

fairness and reliability of the trial proceedings such that our conﬁdence in the outcome is undermined. §e_e Long, 118 So. 3d at 805. Accordingly, we deny

Boyd any relief as to this subclaim.

2. Failure to Properly Challenge Penalty Phase Outburst

The following cross-examination colloquy between the State and Boyd transpired during the penalty phase:

Q. Remember when I stood here and said, Mr. Boyd, I’m sorry I have to ask this of you, but did you have your own sperm in your mouth when they swabbed your mouth with the Q-tip and you said no. A. But they —- you’re right. Q. Right. I know I’m right. A. But they -- Q. Now, you said you’d never do nothing like that. IVIR. LASWELL: Objection, your Honor. Mr. Boyd has a right to ﬁnish his answer. THE COURT: Mr. Loe, I’m going to give Mr. Boyd --

-21- 23 BY MR. LOE: Q. I said -- THE COURT: Excuse me, gentlemen. Excuse me. Mr. Boyd, ﬁnish your answer and then Mr. Lee may proceed with his next question.

THE WITNESS: I didn’t have my sperm in my mouth, but my sperm was in this young lady right here that they took from me in 1998. That’s where they got my sperm from, out of me. That young lady right there. That’s where my sperm came from.

[J .M.]: You raped me. THE WITNESS: Yes, sir. Not out of my mouth. BY MR. LOE: Q. My question was -- A. Yes, sir. Q. -- did you have your sperm in your mouth when they swabbed you in 1998, your answer was no? A. No, sir. Q. That was my question, wasn’t it? Your answer was no? A. The answer is no.

(emphasis added).

The record reﬂects that the trial judge did nothing to restore order in the court from the gallery outburst or otherwise address the statement in the presence of the jury. The record also reﬂects that counsel for the defense did not object or move for a mistrial during the above exchange. Boyd asserts that such inaction in the midst of the allegedly prejudicial, unswom statement by the female spectator,

J .M., in open court constituted ineffective assistance of penalty phase counsel. We

disagree, since there is competent, substantial evidence in this record supporting the circuit court’s ﬁnding that defense counsel made a strategic decision not to

-22- 24 'raise a challenge to the outburst so as to prevent it from becoming a contentious

issue in front of the jury.

This Court has repeatedly held that counsel does not render ineffective assistance by employing strategic decisions made during trial that, in hindsight, did not work to the defendant’s advantage. Reynolds V. State, 99 So. 3d 459, 483 (Fla.

2012); Maharaj V. State, 778 So. 2d 944, 959 (Fla. 2000) (citing Medina V. State,

573 So. 2d 293, 297 (Fla. 1990)). Stated differently, “[c]ounse1 cannot be deemed

ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone V. m, 768 So. 2d 1037, 1048 (Fla. 2000) (internal citation omitted).

Here, the transcript for opening statements reﬂects that defense counsel informed the jury that they would hear testimony during trial that Broward County- area law enforcement had attempted to prosecute Boyd for two unrelated sexual battery incidents spanning over the decade prior to the present case. Counsel then suggested that because they had been embarrassed by unsuccessfully obtaining a conviction when they charged Boyd with a sex offense in an earlier case, the

Sheriff’s Ofﬁce and Police Department opportunistically colluded to blame

McCloud for the death of Dacosta, the Victim in this case. Defense counsel further

-23- 25 indicated during opening statements that the evidence to be presented at trial would show that law enforcement maintained control of the forensic evidence that allegedly linked McCloud to —s murder, and linked _ to the crime scene—the apartment McCloud at one point had shared with his girlfriend, Geneva

Lewis. Indeed, the defense team attempted to elicit such testimony while, for example, cross—examining the lead detective, Glenn Bukata, about the fact that he GwaaflfiwfimflhmcManmvaemmmmmmmflxfiwamdstmm crime scene technicians processed the premises for forensic evidence. The defense also elicited testimony from Lewis that, sometime after Boyd’s arrest but before she was ordered to leave, Detective Bukata attempted to enter Lewis’ apartment waMnfiMmmwmhmmmnmmwmmtWfibmmfimymManmmm

Boyd indicated that during his interrogation, Bukata mocked him by addressing

Boyd with a racial epithet and boasting: “[W]e told you we was going to get you.”

Finally, in the course of closing arguments, defense counsel stressed that none of the State’s expert witnesses could explain how or when —’s DNA ended up on the furniture in Lewis’ apartment. All the above evidence shows that the

defense relied heavily on a general trial theory that law enforcement had motive to, and actually did, plant incriminating evidence to incriminate Boyd unlawfully in this case.

-24- 26 Further, defense counsel testiﬁed during the evidentiary hearing that he

immediately perceived the outburst incident as an opportunity to exploit this theory. According to counsel, based on his prior success in obtaining an acquittal under relatively similar circumstances, he believed the incident at issue in this case presented a rare opportunity to allow the jury to connect law enforcement’s prior failures to prosecute Boyd for unrelated sexual battery incidents with the possibility that such failures motivated police to target him in the present sexual battery case—~as opposed to challenging the spectator’s outburst in open court and

risking it becoming a feature of the penalty phase. Thus, defense counsel clearly considered and rejected alternative courses of action. In addition, this decision was

reasonable given that it was made under spur-of—the-moment circumstances and based on a past experience that resulted in an outcome favorable to the defense.

We conclude, therefore, that defense counsel did not provide ineffective assistance by failing to object or move for a mistrial in response to the asserted penalty phase outburst. $5; Reynolds, 99 So. 3d at 483; Occhicone, 768 So. 2d at 1048.

Additionally, we agree with the circuit court’s determination that Boyd’s

own actions during the penalty phase invited the asserted error. It is well-settled

6“ under Florida law that a party may not make or invite error at trial and then take

” advantage of the error on appeal.’ Universal Ins. Co. of N. Am. v. Warfel, 82 So.

3d 47, 65 (Fla. 2012) (quoting Shefﬁeld V. Superior Ins. Co., 800 So. 2d 197, 202

-25- 27 (Fla. 2001)). In support of its ﬁnding that Boyd invited the asserted error in this case by provoking J .M. in front of the jury, the circuit court cited Norton V. State,

709 So. 2d 87 (Fla. 1997). In m, we rejected the defendant’s argument that the State’s witness improperly commented on cross—examination about the

defendant’s failure to testify at trial. In so ruling, we noted that error was invited where, in an unsuccessful attempt to make a point on cross—examination, defense counsel probed the witness as to why the defendant bought carpet cleaners when

there were no carpets in his car. I_d. at 94.

The record here shows that Boyd goaded the woman present in the courtroom gallery when he identified her in front of the jury by partially standing while on the witness stand and twice pointing at the woman while insisting she was the source of his semen that law enforcement officers collected in the State’s attempt to convict him of a prior sexual battery charge. The record does not reflect that the woman was causing any disruption during the penalty phase proceeding, or that observers other than the State or Boyd knew of her presence.

Contrary to Boyd’s assertion, these circumstances are reminiscent of those found in km, given that in both cases some member of the defense’s party probed the allegedly prejudicial statements. In Boyd’s particular case, J .M. had not responded to or interjected herself into Boyd’s testimony until, in an attempt to bolster the defense’s theory that a DNA sample from his semen was intentionally

-26- 28 'planted on the Victim’s body by law enforcement, Boyd deliberately and overtly

made J .M.’s presence in the courtroom known when the jury was present.

Finally, in further contrast to Boyd’s observation, the record does not

indicate that the State engaged in “argumentative and antagonistic” cross- examination. Rather, the record shows nothing more than adversarial questioning aimed at calling into question the credibility of a hostile Witness as well as the defense’s overall theory that, against Boyd’s interest, law enforcement planted the incriminating forensic evidence at, and collected it from, the crime scene. $5:

Blanton V. State, 880 So. 2d 798, 801 (Fla. 5th DCA 2004) (describing cross- examination as an “adversarial tool” (citing Crawford V. Washington, 541 US. 36

(2004»), approved in part, disapproved in part, 978 So. 2d 149 (Fla. 2008); §@ also Fla. Power Corp. V. Smith, 202 So. 2d 872, 881-82 (Fla. 2d DCA 1967) (“The very rule that sanctions the calling of a hostile witness permits cross—examination by the adverse party on the subject matter of his original examination as a hostile witness and also permits new evidence to contradict or impeach him”).

Accordingly, we deny relief as to this subclaim.

3. Failure to Question Jurors about Pretrial Publicity

Next, Boyd argues that the circuit court erred in summarily denying his claim that defense counsel rendered ineffective assistance by failing to question two prospective jurors—Barbara Berberich and then-prospective Juror Striggles—

-27- 29 adequately about their exposures to pretrial publicity concerning Boyd’s case.

‘6‘ Under Florida case law, it is well-established that [t]he mere fact that jurors

were exposed to pretrial publicity is not enough to raise the presumption of unfairness.’ The relevant inquiry is whether the jurors can lay aside any opinion or impressions and render a verdict based on the evidence presented in court.”

Teffeteller V. Dugger, 734 So. 2d 1009, 1020 (Fla. 1999) (quoting Castro V. State,

644 So. 2d 987, 990 (Fla. 1994)).

The transcript in this case indicates that the State conducted its voir dire prior to the defense and questioned the prospective jurors about pretrial publicity and their knowledge of the case. Juror Striggles indicated that she had previously overheard her family conversing about an aspect of the case related to the Boyd

Funeral Home, which was a business owned and operated by Boyd’s family.

However, she immediately stated that she knew nothing about the business or this case. Juror Berberich likewise stated that, although she may have learned about

Boyd’s case after seeing it on television or reading about it in a newspaper, she did not recall many details other than remembering Boyd’s name. Thus, because any follow-up questioning by defense counsel likely would have elicited minimum information not already brought out by the State’s voir dire, or otherwise would have elicited cumulative information, Boyd has failed to prove the deﬁciency prong under the Strickland standard. E i; (“The prosecutor also questioned the

-28- 30 ‘prospective jurors about their exposure to news reporting. In light of this

questioning of the prospective jurors, we cannot fault trial counsel for failing to

repeat the questioning”); Cole V. State, 841 So. 2d 409, 415 (Fla. 2003).

Assuming, however, that counsel was remiss in not asking Jurors Striggles

and Berberich additional questions about pretrial publicity and their knowledge of this case, no prejudice resulted from such inaction. When asked by the State, both prospective jurors explicitly assured that they would not permit whatever

information concerning Boyd’s case to which they may have been exposed to affect them one way or the other during deliberations if chosen to serve on the jury.

Therefore, we ﬁnd that the record positively refutes a showing that either juror had actual bias against Boyd. & Carratelli, 961 So. 2d at 327 (“[T]he en banc

[district] court . . . held that [ﬂuror Inman’s slight familiarity with the case did not rise to th[e] level of actual bias necessary for postconviction relief. We agree. The record plainly shows that juror Inman held no ﬁrm opinion except that he could be

fair, listen to the evidence, and follow the law. Thus, Carratelli fails to demonstrate prejudice under Strickland”) (internal citation omitted). Accordingly, we afﬁrm the trial court’s summary denial of this claim and deny Boyd any relief thereto.

4. Forensic Evidence

a. Failure to Request a Fﬂe Hearing

-29- 31 Boyd argues that defense counsel rendered ineffective assistance by failing

to request a F_1'1§ hearing to challenge the admissibility of the State’s bite-mark comparison and ﬁber analysis evidence, as well as evidence regarding the DNA testing performed by the Bode Laboratory. The Egg test is used to evaluate the

“admissibility of expert scientiﬁc opinion by ascertaining Whether new or novel

scientiﬁc principles on which an expert’s opinion is based ‘have gained general

3” acceptance in the particular ﬁeld in which it belongs. Rodgers v. State, 948 So.

2d 655 666 (Fla. 2006) (quoting 293 F. at 1014). It follows that trial counsel , m, does not render ineffective assistance by failing to request a Egg hearing when, at the time of trial, there was general acceptance in the scientiﬁc community of the scientiﬁc evidence at issue. In other words, where the methodology was neither new nor novel, existing case law recognizes that a 1% hearing is not necessary.

Foster V. State, 132 So. 3d 40, 69 (Fla. 2013); McDonald v. State, 952 So. 2d 484,

495—96 (Fla. 2006).

As Boyd concedes in his initial brief, the forensic methodologies and evidence presented at trial: trace and microscopic ﬁber analysis; forensic odontology and bite-mark analysis; and Short Tandem Repeat (STR) DNA technology, were neither new nor novel at the time of his 2002 trial. m,

Long V. State, 610 So. 2d 1276, 1281 (Fla. 1992) (holding State’s hair, ﬁber, and tire-track evidence was admissible in trial for ﬁrst-degree murder to establish

-30- 32 'defendant’s identity and to connect him to Victim); Mitchell V. State, 527 So. 2d

179, 181 (Fla. 1988) (recognizing admissibility of expert testimony concerning

bite-mark analysis as an analytical methodology that is widely accepted in the

scientiﬁc community); Lemour V. State, 802 So. 2d 402, 407 (Fla. 3d DCA 2001)

(holding use of STR DNA testing kit to obtain DNA test results did not present

new scientiﬁc technique where kit used testing methods that were generally

accepted by scientiﬁc community), review denied, 821 So. 2d 297 (Fla. 2002);

Bradford v. State, 460 So. 2d 926, 929—30 (Fla. 2d DCA 1984) (approving admissibility of odontologist’s expert testimony similar to bite—mark analysis

(citing Bundy V. State, 455 So. 2d 330 (Fla. 1984)». Boyd, therefore, has failed to demonstrate that a m hearing was necessary in this case and, in turn, that the trial court would have granted such a hearing had defense counsel requested one.

ﬁg Foster, 132 So. 3d at 69; McDonald, 952 So. 2d at 495-96. As such, we conclude that defense counsel was not ineffective in this regard. E 14mg, 118

So. 3d at 805 (holding defense counsel is not ineffective for failing to present meritless argument).

Boyd maintains that the 2009 National Academy of Sciences (NAS) report

on forensic science, while it had not yet been published at the time of his 2002

trial, consisted of sources that were readily available at all relevant times and could have been utilized by defense counsel to challenge the methodology, procedures,

-31- 33 and analyses of the forensic evidence for admissibility purposes at a F_rv_e hearing.

Because we have previously addressed this issue in principle, we are not persuaded by Boyd’s argument.

In Taylor V. State, 62 So. 3d 1101 (Fla. 2011), we determined that trial counsel’s decision not to request a m hearing to challenge the admissibility of

DNA evidence was reasonable, given that the only authority proffered by the defendant that both challenged the use of DNA evidence and existed at the time of trial were academic articles and isolated, nonbinding decisions. Thus, we concluded that “[W]hile this evidence certainly M have been presented at trial, it was not essential for counsel to be determined to be effective.” I_CL at 1111

(emphasis in original).

As to the ﬁber and bite-mark evidence at issue here, Boyd points our attention mostly to a number of isolated articles, news reports, journals, book chapters, and other nonbinding decisions from federal circuits. While these

documents were readily available at the time of his trial and could have been relied upon throughout the trial proceedings, Boyd has not cited to any authority that obligated counsel to rely upon the substance of the above documents in order to persuade the trial court to grant a m hearing. E Q Regarding the DNA analysis, Boyd has not articulated how or what part of the 2009 NAS report would have called into question the admissibility of the DNA expert testimony in this

-32- 34 ‘case. Rather, he alleges deﬁciency in a conclusory fashion, asserting “counsel

inexplicably failed to challenge the admissibility of DNA evidence analyzed by

Bode” and “failed to seek laboratory protocols, validation studies, accreditation

studies, equipment maintenance logs and operation manuals, contamination logs

and laboratory error rates from any of the three DNA labs involved.” Again, Boyd

has not pointed to any authority which requires counsel to pursue these measures,

and that indicates that counsel otherwise renders ineffective assistance if he fails to

do so. E E

To the extent Boyd characterizes the 2009 NAS report as newly discovered

evidence, Boyd cannot show that the portions of the report upon which he relies

could “not have been known by the trial court, the party, or counsel at the time of trial,” and that he “or defense counsel could not have known of it by the use of

diligence.” Schwab V. State, 969 So. 2d 318, 325 (Fla. 2007). As Boyd

acknowledges, many of the statements in the Summary and Introduction sections

of the NAS report to which Boyd cites appear in sources that were readily available at the time of his 2002 trial. Therefore, Boyd has failed to demonstrate that the NAS report constitutes newly discovered evidence. See Johnston V. State,

27 So. 3d 11, 21—23 (Fla. 2010) (ﬁnding 2009 NAS report was not newly

discovered evidence, in part, because report cited existing publications, some of which were published before Victim’s murder).

35 For all of the above reasons, we ﬁnd this subclaim to be Without merit and deny relief thereto. S_eg m, 118 So. 3d at 805.

b. Failure to Utilize Forensic Experts

Boyd argues that defense counsel’s decision not to hire a forensic expert to assist him in challenging the DNA and bite-mark evidence was unreasonable and allowed the State to present its expert testimony Virtually unchallenged. At the

time of Boyd’s trial, Florida Rule of Criminal Procedure 3.250 provided that “[a] defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.” McAvoy V. State, 501 So. 2d 642,

643 (Fla. 5th DCA 1986). Florida courts have deemed “a defense attorney’s case— speciﬁc tactical decision not to present evidence because of a desire to retain the

ﬁrst and last closing argument” to be a reasonable trial strategy. Cole V. State, 700

So. 2d 33, 36 (Fla. 5th DCA 1997). However, counsel’s general practice or blanket policy to preserve the closing argument “sandwich” without examining the

surrounding circumstances and potential defenses of the particular case is per se deﬁcient. I;

In this case, the record reﬂects that defense counsel ﬁled a pretrial motion to grant defendant the concluding argument to the jury pursuant to then-applicable

Florida Rule of Criminal Procedure 3.250. Throughout the course of trial, defense counsel was vigilant in ensuring that the defense did not admit any exhibits in

-34- 36 'order to preserve the trial court’s grant of thc Closing argument “sandwich.” And,

other than Boyd’s testimony, the defense did not admit any evidence. The record

further shows that, using his experience as a former medical examiner, defense counsel Ongley thoroughly cross-examined each of the State’s forensic expert witnesses to expose the shortcomings of their conclusions, and echoed those points during the defense’s ﬁrst closing argument. Also, as previously discussed, Boyd stressed during direct examination of his own testimony, and defense counsel

Laswell reiterated in the second closing argument the defense’s theory, that law enforcement planted incriminating evidence against Boyd in an attempt to frame him for the kidnapping, rape, and murder of — in this case. Likewise, the defense elicited cross-examination testimony from the State’s witness that law enforcement personnel ordered Boyd’s girlfriend to vacate the apartment unit where the murder occurred and the forensic evidence was collected, and also that law enforcement maintained unfettered control of the premises for several days.

In light of the above, Boyd failed to show from the record evidence that, in exercising a reasonable trial strategy, counsel did not perform the minimum requirements of professional conduct. ﬁg Branch V. State, 952 So. 2d 470, 478-79

(Fla. 2006) (agreeing with trial counsel that his ability to cross—examine the State’s

Witnesses coupled with the importance of the right to present ﬁrst and last closing arguments were sufﬁcient reasons to avoid the presentation of pathologist and

-35- 37 blood splatter expert, especially given that defense emphasized at trial that defendant did not commit the crime, and that neither postconviction expert identiﬁed any substantial factual mistakes made by State’s experts). Because, therefore, he cannot establish the deﬁciency prong under the Strickland standard, we deny Boyd relief as to this subclaim.

HI. HABEAS PETITION CLAIMS

Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. Dufour V. State, 905 So. 2d 42,

70 (Fla. 2005). Consistent with the Strickland standard, in determining Whether to grant habeas relief for ineffective assistance of appellate counsel, this Court makes the following inquiries:

[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Schoenwetter V. State, 46 So. 3d 535, 563 (Fla. 2010).

The defendant bears the burden of “alleging a speciﬁc, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.”

I_d. (quoting Freeman V. State, 761 So. 2d 1055, 1069 (Fla. 2000)). Ineffective assistance of appellate counsel claims “may not be used to camouflage issues that

should have been presented on direct appeal or in a postconviction motion.” I_d.

-36- 38 ‘Further, appellate counsel cannot be deemed ineffective for not pursuing a

meritless claim. §g§ Q (“If a legal issue would in all probability have been found

to be without merit had counsel raised the issue on direct appeal, the failure of

appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” (internal citation omitted)).

A. Failure to Raise Issue of Admissibility of Incriminating Statement

Boyd argues that the trial court erred, in Violation of his constitutional right

against self-incrimination, when it denied his motion to suppress the statement he made to police during custodial interrogation, to wit: “What took you so long to

catch me?” It is further asserted that because, according to Boyd, trial counsel preserved the error for appellate review, appellate counsel rendered ineffective assistance by failing to raise the issue on direct appeal.

Assuming trial counsel properly preserved the alleged error and that

appellate counsel’s failure to raise it satisfied the deficiency prong, such lack in performance does not undermine our confidence in the correctness of the result of the direct appeal proceedings. As indicated in our direct appeal decision, we found competent, substantial evidence to support Boyd’s conviction of sexual battery:

The State presented substantial evidence that Boyd sexually battered _ including evidence that Boyd and — did not know each other before she encountered Boyd while looking for a ride back to her vehicle after obtaining gas at the Texaco station; that Boyd’s semen was on —’s inner thighs; that —’s blood was in Boyd’s apartment; and that Boyd’s DNA was in material found

-37- 39 under — ﬁngernails. The State also presented testimony establishing the chain of custody of the evidence collected, providing evidence against Boyd’s theory that Detective Bukata planted evidence so that it would match Boyd’s and — DNA. Bruising on —s inner thighs and vaginal area was consistent with either consensual or nonconsensual intercourse. Dacosta was last seen alive with Boyd.

Boyd, 910 So. 2d at 181.

This same evidence, in addition to evidence “that _ was stabbed with a Torx screwdriver thirty-six times in the chest and four times in the head” and “had twelve wounds on her right hand that were consistent with defensive wounds,” supported our determination that there was also competent, substantial evidence to uphold the jury’s guilty verdicts for armed kidnapping and premeditated murder. 1; at 182-84. Finally, we determined that, based on Boyd’s convictions of sexual battery and armed kidnapping, the record on appeal further

supported the ﬁrst—degree murder conviction on the basis of felony murder. Li. at

182. Therefore, even had Boyd’s statement: “What took you so long to catch me?” not be adduced at trial, his convictions and sentence of death would have been upheld, given the overwhelming amount of remaining evidence establishing

Boyd’s guilt. See Williamson V. State, 123 So. 3d 1060, 1056—66 (Fla. 2013)

(“[T]o establish prejudice under Strickland, . . . a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury, and a verdict or conclusion only weakly supported by the record is more likely to have

-38- 40 'been affected by errors than one with overwhelming record support.” (citation

omitted)); Simmons V. State, 105 So. 3d 475, 492 (Fla. 2012) (holding that, even if

trial counsel’s stipulation that defendant was source of semen found inside Victim’s

body constituted deﬁcient performance, no prejudice could be shown in light of

overwhelming evidence of guilt, including evidence of Victim’s blood found inside

defendant’s car; testimony of eyewitnesses who had seen Victim screaming for help

ﬁom defendant’s car on the night of the murder; and the fact that tire tracks of

defendant’s car were found near the location where victim’s body was found).

Accordingly, Boyd is not entitled to relief on this claim.

B. Failure to Raise Fundamental Error as to Improper Comment

Boyd raises his previous ineffectiveness claim for failure to properly challenge a penalty phase spectator’s outburst: “You raped me,” E Section

H.B.2., guy, but under the guise of ineffective assistance of appellate counsel for failure to raise the claim on direct appeal. Because, as noted, defense counsel did

not preserve the issue for appeal during the penalty phase of trial, appellate counsel cannot be ineffective for failing to raise the issue on direct appeal unless the claim involves ﬁmdamental error. gag Archer v. State, 934 So. 2d 1187, 1205 (Fla.

2006). An error is fundamental if it “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance ofthe alleged error.” Rodriguez V. State, 919 So. 2d 1252, 1282 (Fla.

-39- 41 2005). Concerning improper comments made in the penalty phase, to be fundamental error the comments “must be so prejudicial as to taint the jury’s recommended sentence.” Fennie V. State, 855 So. 2d 597, 609 (Fla. 2003) (citing

Thomas v. State, 748 So. 2d 970, 985 n.10 (Fla. 1999)).

The cases to which Boyd cites for support are factually distinguishable to the present circumstances and, thus, are uninstructive. In Arbelaez V. State, 626 So. 2d

169 (Fla. 1993), for instance, the murder victim’s mother, upon being called by the

State to testify, was crying during the administration of the oath. I_d. at 176. The prosecutor requested a break for the mother to compose her emotions, after which time she then called the defendant a “murderer” and a “son of a bitch” in Spanish

While the jury was still present. I_d. Boyd also likened the facts of this case to those in Evans V. State, 995 So. 2d 933 (Fla. 2008), where the defendant raised a claim of ineffective assistance of counsel for failure to object to a juror’s

participation in the trial. I_d. at 945. Particularly, the defendant asserted that he was prejudiced when the juror interj ected herself into the trial as an unswom witness to answer a question concerning a trafﬁc light that was germane to the defense’s theory of the case. 1; Neither of these decisions contemplates a

situation in which the defendant incited the complained—0f outburst. I_d.

To the contrary, Boyd goaded the spectator by partially standing while on the Witness stand and twice pointing at her while insisting she was the source of

-40- 42 ’Boyd’s semen that law enforcement ofﬁcers collected in the State’s attempt to convict him of a prior sexual battery charge. The record does not reﬂect that the spectator was causing any disruption during the penalty phase proceeding, or that

Observers other than the State or Boyd knew of her presence. In addition, before the asserted outburst, the jury was twice informed that Boyd was the subject of prior sexual battery charges. And, although the jury could have easily inferred that the subject spectator was the alleged Victim from at least one of the charges, there was no reasonable basis upon which to believe that Boyd actually committed the offense given that the jury was also informed of his acquittals from all prior charges. In light of these circumstances, whatever prejudice that Boyd may have suffered as a result of the outburst is self-inﬂicted. Further, we are not convinced that the jury unanimously recommended the sentence of death only with the assistance of this particular incident. Accordingly, we deny this claim as meritless.

E Schoenwetter, 46 So. 3d at 563; Rutherford v. Moore, 774 So. 2d 637, 644

(Fla. 2000) (“The failure to raise meritless claims does not render appellate counsel’s performance ineffective”).

IV. CONCLUSION

Based on the foregoing analysis, we afﬁrm the circuit court’s denial of postconviction relief. We also deny Boyd’s petition for writ of habeas corpus.

It is so ordered.

-41- 43 LABARGA, C.J., and PARIENTE and PERRY, J J ., concur. CANADY and POLSTON, JJ., concur in result.

LEWIS, J ., concurs in result only with an opinion.

QUINCE, J ., dissents with an opinion.

NOT FINAL UNTIL TINIE EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

LEWIS, J ., concurring in result only.

Under the Florida Statutes, a person who has been convicted of a felony is disqualiﬁed from service on a jury unless and until his or her civil rights have been

restored. fig; § 40.0130), Fla. Stat. (2015). However, the statute fails to provide any specific remedy when a disqualified individual actually serves on a jury. In my View, the dispositive issue should be whether the jury was properly comprised under the law, not whether the defective jury performed properly. Therefore, when a convicted felon serves on a jury, as occurred in this case, a structural defect is present that invalidates the jury from the outset, and whether the jury reached the

correct determination is simply not the relevant standard. Instead, I would conclude that the verdict is m invalid.

I am surprised that neither Florida courts, nor many courts in other jurisdictions that have addressed this issue, have reached this conclusion. Rather, a signiﬁcant number have determined, as the majority holds today, that actual bias is

the proper inquiry where a convicted felon serves on a jury. See, 6.4g, Companioni

V. Ciﬂ ofTampa, 958 So. 2d 404, 417 (Fla. 2d DCA 2007) (holding that in civil

-42- 44 ‘ cases in which individuals with prior felony convictions serve on a jury, “it is

entirely appropriate to require a showing of actual bias or prejudice before setting

aside a verdict”); United States V. Bishop, 264 F.3d 535, 554 (5th Cir. 2001)

(“[O]nce the trial is complete, a felon’s serving as a juror is not an automatic basis

for a new trial. The defendant must demonstrate that the juror was actually biased

or fundamentally incompetent”); Coughlin V. Tailhook Ass’n, 112 F.3d 1052,

1059 (9th Cir. 1997) (“[T]he participation of a felon-juror can be the basis for a

new trial if the juror’s participation in the case results in ‘actual bias’ to one or

more of the parties.”); United States V. Humphreys, 982 F.2d 254, 261 (8th Cir.

1992) (“In an effort to obtain a new trial, it is incumbent upon the defendant to

clearly demonstrate that the juror’s lack of qualiﬁcations presented actual bias or

prejudice, affecting the juror’s impartiality and impacting the fairness of the trial.

A challenge after the verdict Without such a showing comes too late.” (footnote

omitted»; United States V. Boney, 977 F.2d 624, 633-35 (DC. Cir. 1992) (holding that “the Sixth Amendment guarantee of an impartial trial does not mandate a 1m

§§ invalidation of every conviction reached by a jury that included a felon” and remanding for an evidentiary hearing to determine whether the juror’s failure to

disclose his status resulted in actual bias); Young V. United States, 694 A.2d 891,

895 (DC. 1997) (“[T]he fact that the juror was statutorily ineligible to serve due to

a felony conviction does not constitute prejudice per se meriting automatic

-43- 45 reversal.”); People V. Dufﬂ, 923 N.Y.S.2d 822, 825 (NY. Dist. Ct. 2011) (noting that “there is no 1% rule requiring the setting aside of a jury verdict upon the postverdict discovery that a juror had previously been convicted of a felony,” and concluding that the defendant had failed to demonstrate actual bias).

In my opinion, whether actual bias existed should not be the appropriate consideration where a disqualiﬁed juror served in Violation of statutory law.

Rather, I would conclude that if a jury is not properly comprised pursuant to

section 40.013(1), it is incapable of rendering a valid verdict or advisory sentence.

Therefore, if writing on a clean slate, I would hold that the presence of a convicted felon on Boyd’s jury invalidated his trial from the outset, and he would be entitled

to a new trial. Nevertheless, I recognize that the weight of the authority, including

Florida precedent, is contrary to my position.

Other states, such as Texas and Virginia, have provided statutory remedies

Where a disqualiﬁed individual served on a jury. E Tex. Code Crim. Pro. Ann. art. 4446(2) (Vernon 2014) (criminal defendant must demonstrate “signiﬁcant

harm” by service of disqualiﬁed juror); Va. Code Ann. § 8.01-3512(B) (2014) (new

trial will not be granted unless it appears that the legal disability of juror “probably

cause[d] injustice”). As these states have done, I urge the Legislature to review the current law in Florida and enact a speciﬁc remedy to address the situation where a verdict is entered by a jury that was not properly comprised pursuant to the

-44- 46 ' directives of the Florida Statutes. Without such a remedy in place, actual bias will

remain the standard, despite the fact that this burden is Virtually impossible to

meet. Thus, the clear prohibition is meaningless. This extremely high standard

operates to undermine the statutory prohibition in section 40.013(1). If service by

a convicted felon almost never invalidates a verdict, subsection (1) basically has no operational effect post-trial.

Despite my deep disagreement with the use of the actual bias standard in this context, statutory change is required to address the current injustice in Florida.

Until the Legislature takes action, a party must meet a nearly insurmountable burden to obtain relief where a convicted felon served on his or her jury in clear

Violation of the law. Therefore, I am compelled to concur in result only.

QUINCE, J ., dissenting.

I believe, under the circumstances of the case, the defendant is entitled to a

new trial because an unqualiﬁed person served on this capital jury. It is undisputed that Juror Striggles was a convicted felon whose civil rights had not been restored at the time she served on the jury that convicted Boyd. Section 40.0130), Florida

Statutes (2001), provides that any person who has been convicted of a felony and whose civil rights have not been restored shall not be qualiﬁed to serve as a juror.

This statutory directive is clear and unequivocal. Juror Striggles should not have been on this jury.

-45_ 47 It is impossible to tell whether bias from such a situation cuts for or against the defendant, and a defendant should not be placed in the position of having to demonstrate bias. Because in most instances demonstrating prejudice is difﬁcult, if not impossible, there should be a per 36 rule that would require a new trial when a disqualiﬁed person serves on a jury. Thus, Boyd should be given a new trial.

Two Cases:

An Appeal from the Circuit Court in and for Broward County, Andrew L. Siege], Judge - Case No. 061999CF005809A88810 And an Original Proceeding ~ Habeas Corpus

Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Suzanne Myers Keffer, Chief Assistant, Capital Collateral Regional Counsel, Southern Region, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,

for Appellant/Petitioner

Pamela J0 Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida,

for Appellee/Respondent

-46— 48 wimpy .

‘ B ILIDING 54 ' WWSGUTHW STREET . : ﬂ ‘E v PIMRIIA 3399-3"MW

hén‘u‘m'Y‘JS ,: Yp‘ v:

SC13-244 A HONJHOWARD FORMAN, CLERK CIRCUIT — COURT BROWARD COUNTY 201 SE. 6TH STREET, ROOM 1361. FT LAUDERDALE, FL 33301

{,ixz‘ﬁﬁz‘qy

1“»: v

49 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 1/27/2017 3:19:13 PM.****

ﬁvupreme Qtuurt at fluriha

MONDAY, JANUARY 23, 2017

CASE NO.: SC16-1812 Lower Tribunal N0(s).: 061999CF005809A88810

LUCIOUS BOYD vs. JULIE L. JONES, ETC.

Petitioner(s) Respondent(s)

The Petition for Writ of Habeas Corpus is hereby denied.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

LABARGA, C.J., and PARIENTE, LEWIS, CANADY and POLSTON, JJ., concun

QUINCE, J., and PERRY, Senior Justice, dissenting.

A True Copy Test:

x; y.

‘ Q5

VJ “ » f} : in: ' J 01in A. Tomasino v; ~ _ »

# " Clerk: Supreme Couﬁ I

tw Served:

SUZANNE MYERS KEFFER SCOTT GAVIN LESLIE T. CAMPBELL HON. BRENDA D. F ORMAN, CLERK

50 @tﬁ'te of the QElerk ’ Hasler FIRSTCLASS MAIL gnfpreme Qtuurt at 11' lnrtha 500 South Duval Street (312111.201? $000.46-0 Tallahassee, Florida 32399—1927 " " ‘ - ZlP 32399 ' O11E11672564

TW SC16—1812 HON. BRENDAD FORMAN, CLERK CIRCUIT COURI BROWARDC {J‘JTY/Q 0‘: S E. 6TH STREET ROOM>Z \/© FT. LAUDERDALE, FL 33301

I I I I 51 h) (A) (A) (A) (A) (1) ('5 ”uh’nlul’hl"IIIIII'II’II';“I’hlllhh'lIl'l’sz’W' l' O- w L0 ( I‘ Filing # 59929596 E-Filed 08/03/2017 04:43:54 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO: 99005809CF10A JUDGE STATE OF FLORIDA ‘ Plaintiff V.

LUCIOUS BOYS Defendant

NOTICE PURSUANT TO RULE 3.220(b){4)

COMES NOW the State of Florida, by and through the undersigned Assistant State Attorney, pursuant to Rule 3.220{b>{4}, Florida Rules of Criminal Procedure, submits the following information which is in the State‘s possession or control which ggg fall within the puxview of Brady v. Maryland and/or Rule 3.220(b}(4):

Please be advised that on April 12, 2016, the Broward Sheriff’s Office {BSO} DNA Crime Laboratory was advised by the American Society of Crime Laboratory Directozstaboratoxy Accreditation Board that there was, “{Ibnappropriate use of the statistic known as the Combined onbability of Inclusion (CPI) to calculate statistical significance of occurrence of genetic profiles when allelic dropout is known and/ox suspected to have occurred." We have been advised that CPI calculations were only used by the 880 DNA Crime Lab in complex DNA nmxture cases. Documentg regarding this matter may be found at http:/fwww.saol?.state.fl.us/BSODNA A8CLD.pdf

This notice is being sent to you because out records indicate that you were a party in this case and there may have been DNA evidence tested by the Breward Sheriff’s Office Crime Laboratory. If there was DNA evidence in your cage, there has not been a determination whether the CPI calculations were utilized or whether the evidence was relevant in your particular cage. This matter i3 being brought to your attention because the DNA population genetic calculations may have been inaccurately tabulated. Please contact your attorney to further discuss this information.

I HEREBY CERTIFY that a true copy hereof has been furnished Electronically this 3lalday of July, 201?, to counsel for the defense: Mark Conan, Esquire, 320 N Magnolia Ave Ste A1, Orlando FL 32801 CC: Defendant 5520 Cypress Rd Plantation,Fd

MICHAEL J SATZ E Attorney

By: SEMI TME, ESQUIRE Assistant State Attorney Fl Bar #879150 201 S.E. 6th Street Unit HTU Ft Lauderdale, FL 33301 Service Email: CourtDocs®saol?.state.fl.us

52 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 8/3/2017 4:40:05 PM.**** Filing # 69215738 E-Filed 03/13/2018 04:41:25 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

V. CASE N O. 99-005809CF10A

LUCIOUS BOYD,

Defendant

SUCCESSIVE MOTION TO VACATE JUDGEMENTS OF CONVICTION AND SENTENCE, AND ALTERNATIVELY MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.800

COMES NOW, the Defendant, Lucious Boyd, by and through his undersigned counsel,

and respectfully requests that this Court enter an order pursuant to Florida Rule of Criminal

Procedure 3.851 vacating and setting aside the judgements of conviction and sentence of death

imposed upon him by this Court, and/0r alternatively an order pursuant to Florida Rule of Criminal

Procedure 3.800(a) correcting his illegal sentence of death. In support of this motion, Mr. Boyd

states:

PROCEDURAL HISTORY1

The Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida

entered the judgments of convictions and death sentence currently at issue.

On January 30, 2002, Mr. Boyd was found guilty of one count of First Degree Murder, one

count of Sexual Battery, and one count of Armed Kidnapping (R. 461-463).

1 Citations to the record on the direct appeal shall be referenced as “R. _.” Citations to the postconviction record shall be referenced as “PC-R. .” All other citations should be self- explanatory.

53 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/13/2018 4:41:25 PM.**** The penalty phase of Mr. Boyd’s trial began on March 11, 2002. On March 12, 2002, the jury rendered an advisory sentence unanimously recommending the death penalty (R. 499—506).

The circuit court sentenced Mr. Boyd to death on June 21, 2002 for the count of First Degree

Murder, ﬁnding that two (2) statutory aggravators outweighed one (1) statutory mitigator and ﬁve

(5) non—statutory mitigators (R. 537—555).2 The circuit court imposed a life sentence for the charge

of Armed Kidnapping and a ﬁfteen (15) year sentence for the charge of Sexual Battery (Id.). A

formal sentencing order was entered on that date (Id.).

The Florida Supreme Court afﬁrmed Mr. Boyd’s conviction and sentence on direct appeal.3

Boyd v. State, 910 SO. 2d 167 (Fla. 2005); cert. denied Boyd v. Florida, 546 US. 1179 (2006).

Rehearing was denied on June 16, 2005. The mandate issued on September 9, 2005.

3Mr. Boyd raised the following claims on direct appeal: (1) the trial court erred in refusing to make an inquiry of jurors and in denying a motion for mistrial based on testimony that jurors had

discussed extrajudicial information; (2) the trial court erred in overruling a defense request for

material in Violation of Brady v. Maryland, 373 US. 83 (1963), in denying the defense’s motion

to strike testimony from the fingerprint examiner, and in failing to order a Richardson hearing; (3) the State’s evidence was not sufficient to support the convictions for first degree murder, sexual

battery, and armed kidnapping; (4) the trial court erroneously overruled the defense’s objection to evidence that Boyd received a citation for failure to pay a train fare and in overruling the defense

objection to the use of that citation in the State’s cross—examination of Boyd; (5) the trial court

erred in overruling defense objections to the State’s cross-examination of Boyd; (6) the trial court

erroneously failed to consider two experts’ reports and testimony as to Boyd’s competency; (7)

the trial court erred in failing to order a competency hearing at sentencing; (8) Boyd’s waiver of

the right to present mitigation did not comply with Koon v. Dagger, 619 So. 2d 246 (Fla. 1993);

(9) the trial court erred in giving great weight to the jury’s death penalty recommendation; (10) Boyd’s presentation of mitigation was invalid because the decision of whether to present evidence

and call Witnesses is for counsel to make; (11) the evidence does not support the murder in the course of a felony and HAC aggravators, and section 921.141, Fla. Stat. (1997) does not permit a death sentence where is only one aggravating circumstance; (12) the trial court erred in overruling the defense Objection to the introduction of photos of the Victim during the penalty phase

54 Mr. Boyd ﬁled his initial Motion to Vacate Judgment of Convictions and Sentences With

Special Request for Leave to Amend in the Circuit Court for the Seventeenth Judicial Circuit on

February 14, 2007 (PC—R. 328—403). On May 29, 2009, after extensive public records litigation,

Mr. Boyd ﬁled his ﬁrst amendment to his Motion to Vacate Judgment of Convictions and

Sentences With Special Request for Leave to Amend (PC—R. 1257—1457), amending Claims III B and C, claim V, and Claim IX and adding claims X and XI.

On March 23, 2012, Mr. Boyd ﬁled a second amendment to his Motion to Vacate Judgment of Convictions and Sentences With Special Request for Leave to Amend, amending claim XI. (PC-

R. 2549-2587).

The circuit court conducted a Case Management Conference on June 5, 2012 (PC—R. 5439-

5527). On July 20, 2012, the circuit court entered an order granting an evidentiary hearing on numerous claims including: Claim HI(A)(2) ineffective assistance of counsel for failing to adequately conduct voir dire, in part; Claim IV juror misconduct; Claim V subsections (A), (B),

(C) ineffective assistance of counsel for failing to investigate and present mitigation at the penalty phase and failure to move for a mistrial during penalty phase; Claim VI denial of right to expert

psychiatric assistance under Ake v. Oklahoma, 470 US. 68 ( 1985). (PC-R. 2769-2771).

On August 28-31, 2012 an evidentiary hearing was held. Prior to the start of the evidentiary hearing Mr. Boyd, through counsel, waived presentation of several claims contained in his Florida

Rule of Criminal Procedure 3.851 Motion. Speciﬁcally, Mr. Boyd waived the presentation of

Claim V, A and B relating to mental health mitigation and counsel’s alleged failure to investigate

proceedings; (13) the trial court erred in its assessment of mitigating factors; (14) Boyd’s death sentence is not proportionate; and (15) the trial court did not comply with Muhammad v. State, 782 So. 2d 343 (Fla. 2001) in sentencing Boyd.

55 and present both general and mental health mitigation. (PC—R. 7). Mr. Boyd also waived Claim VI pertaining to the denial of his right to competent assistance of a mental health expert at trial in

Violation OfAke vs. Oklahoma. The Circuit court conducted a colloquy of Mr. Boyd during which he conﬁrmed his intent to waive the above mentioned claims. (PC—R. 7—15).

Based on the waiver of Mr. Boyd’s penalty phase claims, the circuit court heard testimony and received evidence related to Mr. Boyd’s claims of juror misconduct, ineffective assistance of counsel for failing to adequately voir dire, and ineffective assistance of counsel for failing to object or move for a mistrial based on inﬂammatory and prejudicial comments made by a spectator during

Petitioner’ s testimony.

Following the evidentiary hearing, the circuit court denied Mr. Boyd’s Motion for

Postconviction Relief on January 2, 2013 (PC-R. 43 556-4446). A notice of appeal was timely ﬁled on January 29, 2013 (PC-R. 4448-49).

Mr. Boyd ﬁled his initial brief on the merits on October 16, 2013. Oral argument was held

June 4, 2014. On December 17, 2015 the Florida Supreme Court issued an order denying relief.

Boyd v. State, No. SCH—1959, 2015 WL 9170916 (Fla. Dec. 17, 2015). Thereafter, Mr. Boyd timely ﬁled a motion for rehearing on December 31, 2015.

During the pendency of his appeal before the Florida Supreme Court, the United States

Supreme Court granted certiorari review in Hurst v. Florida, 135 S. Ct. 1531 (March 9, 2015). On

January 12, 2016, the United States Supreme Court issued its opinion in Hurst v. Florida, 136 S.

Ct. 616, 619 (2016) ﬁnding Florida’s capital sentencing scheme unconstitutional. As a result of the Hurst decision, and its impact on Mr. Boyd’s sentence, Mr. Boyd ﬁled a motion requesting

permission to submit supplemental brieﬁng as it related to the impact the Hurst decision had on

56 his Claims before the Florida Supreme Court. The Florida Supreme Court granted Mr. Boyd’s motion and he submitted supplemental brieﬁng on the Hurst issue.

On October 5, 2016 the Florida Supreme Court denied Mr. Boyd’s Motion for Rehearing

“Without prejudice to ﬁle any Hurst claims in a separate petition for writ of habeas corpus.” Mr.

Boyd subsequently ﬁled a Petition for Writ of Habeas Corpus in the Florida Supreme Court that same day. Boyd v. Jones, SC16—1812. Following that ﬁling, on October 14, 2106 the Florida

Supreme Court issued it opinions in Hurst v. State, 202 So. 3d 40 (Fla. 2016) and Perry v. State,

210 So. 3d 630 (Fla. 2016). Based on Hurst v. State and Perry v. State, Mr. Boyd moved to amend

his state habeas petition. The Florida Supreme Court granted the request, but treated it as a request for supplemental brieﬁng.

Thereafter, on January 23, 2017 the Florida Supreme Court denied Mr. Boyd’s Hurst v.

Florida and Hurst v. State related state habeas petition. On March 22, 2017 Mr. Boyd’s motion for rehearing was denied by the Florida Supreme Court.

While Mr. Boyd’s state habeas petition was pending before the Florida Supreme Court,

Mr. Boyd ﬁled his initial Petition for Writ of Habeas Corpus with the United States District Court

Southern District Court on October 28, 2016. (DE 1). That same day, Mr. Boyd also ﬁled a Motion to Stay/Hold in Abeyance the proceedings pending the resolution of the Hurst litigation in Florida state court. (DE 5). On November 14, 2016 the United States District Court granted Mr. Boyd’s motion to stay the proceedings. (DE 11). Mr. Boyd’s habeas petition remains pending as of the date of the ﬁling of this successive motion.

Mr. Boyd now raises the instant claim, which was not previously raised, pursuant to the enactment of Chapter 2017-1, Laws of Florida on March 13, 2017 and its conﬁrmation of the statutory construction recognized by the Florida Supreme Court in Hurst v. State.

57 GROUNDS FOR RELIEF

MR. BOYD’S SENTENCE OF DEATH STANDS IN VIOLATION OF THE DUE PROCESS CLAUSE AND THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE UNDER THE REVISED FLA. STAT. § 921.141 DEATH IS AN AUTHORIZED SENTENCING OPTION ONLY UPON FINDING THE NECESSARY ELEMENTS REQUIRED TO CONVICT OF THE GREATER OFFENSE OF CAPITAL FIRST DEGREE MURDER

This claim is evidenced by the following:

All other factual allegations contained in this motion and its attachments are fully incorporated herein by speciﬁc reference.

In Hurst v. State the Florida Supreme Court determined:

We also conclude that, just as elements of a crime must be found unanimously by a Florida jury, all these findings necessary for the jury to essentially convict a defendant of capital murder—thus allowing imposition of the death penalty-are also elements that must be found unanimously by the jury. Thus, we hold that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.

202 So. 3d 40, 53-54 (Fla. 2016) (emphasis added). The Florida Supreme Court’s Opinion in Hurst

v. State construed Fla. Stat. § 921.141 and found that the statute defined the elements of capital murder and required that those elements must be necessary to “essentially convict” a defendant of capital first degree murder. Significantly, the Florida Supreme Court acknowledged that the elements of capital first degree murder were longstanding and appeared in the statute. Id. at 53

(“As the Supreme Court long ago recognized in Parker v. Bugger, 498 US. 308 (1991), under

Florida law, ‘The death penalty may be imposed only where sufﬁcient aggravating circumstances exist that outweigh mitigating circumstances?” Id. at 313 (quoting § 921.141(3), Fla. Stat.

58 1985)).”). That ﬁnding was critical, as it established that the requirement of proof beyond a

reasonable doubt of all elements of capital ﬁrst degree murder had been in existence since, at

minimum, as far back as 1991, Le. the date of the decision in Parker v. Bugger.

The revision to Fla. Stat. § 921.141 through enactment of Chapter 2017—1 codiﬁed the

Florida Supreme Court’s holding in Hurst v. State. The Florida Legislature’s enactment of Chapter

2017—1 on March 13, 2017 conﬁrmed the requirement that a defendant would not be eligible for a

death sentence unless the State carried its burden of establishing each element of capital ﬁrst

degree murder beyond a reasonable doubt and each of those elements was found unanimously by

a jury. Under the revised § 921.141, before a jury can return a death recommendation it must ﬁrst:

1) identify each aggravating factor that it has unanimously found proven beyond a reasonable

doubt; 2) ﬁnd beyond a reasonable doubt that the aggravators found to exist are sufﬁcient to justify

a sentence of death; and 3) unanimously ﬁnd beyond a reasonable doubt that the aggravators

outweigh the mitigators. See § 921.141(2)(b). Having made these ﬁndings the jury must then

unanimously decide Whether to reject mercy in favor of imposing a sentence of death. Only if the

jury returns a unanimous death verdict, can a judge under the revised § 921.141 impose a death

sentence.

Under the revised § 921.141, the statutory maximum sentence that can be imposed on a

ﬁrst degree murder conviction is one of life imprisonment. For a death sentence to be permissible,

the defendant must be convicted of the next higher degree of murder, Le. capital ﬁrst degree

murder. The revised § 921.141 provides for proof of the elements necessary to raise a conviction

of ﬁrst degree murder up to capital ﬁrst degree murder to be presented at a “penalty phase”

proceeding. But, a unanimous jury’s ﬁnding that the State has proven the necessary elements

59 beyond a reasonable doubt is functionally a verdict ﬁnding the defendant guilty of the greater

offense of capital ﬁrst degree murder.

The requirement that any factual determination authorizing an increase in the statutorily

proscribed maximum punishment be submitted to a jury and proven beyond a reasonable doubt

was established in Apprendi v. New Jersey, 530 US. 466, 469 (2000) (Whether the Due Process

Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase

in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis

of proof beyond a reasonable doubt). The United States Supreme Court made clear in Apprendi

that the Due Process Clause of the Fourteenth Amendment entitled a criminal defendant to a jury

determination of guilt of every element of the crime for which they are being charged beyond a

reasonable doubt. Id. at 476-77.

The bedrock requirement of the reasonable doubt standard under the Due Process Clause

was ﬁrst enunciated in In re Winship, 397 US. 358 (1970). As the Supreme Court noted, the

reasonable doubt standard was a “prime instrument for reducing the risk of convictions resting on

factual error.” 101'. at 363. The reasonable doubt standard was intended as a means for insuring

jurors understood their obligation under the constitution of what is required for a valid conviction.

That requirement under the Due Process Clause was further enunciated in Sullivan v. Louisiana,

508 US. 275 (1993):

What the factﬁnder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, see, e.g.,

Patterson v. New York, 432 US. 197, 210 (1977); Leland v. Oregon, 343 U. S. 790, 795 (1952), and must persuade the factﬁnder “beyond a reasonable doubt” of the facts necessary to establish each of those

elements, see, e.g., In re Winship, 397 US. 358, 364 (1970); Cool v. United States, 409 US. 100, 104 (1972) (per curiam).

60 1d. at 277—78. The Court found that the failure to instmct a jury properly on the beyond reasonable doubt standard constituted structural error.

In Alleyne v. United States, 133 S. Ct. 2151, 2160 (2013), the Supreme Court noted:

“Apprendi concluded that any “facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime.” Alleyne said:

When a ﬁnding of fact alters the legally prescribed punishment so

as to aggravate it, the fact necessarily forms a constituent part of

a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with

or without that fact. It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only ﬁnds the facts for larceny, even if the punishments prescribed for each crime

are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Alleyne, 133 S. Ct. at 2162 (emphasis added). The identifying of the facts necessary to increase

the authorized punishment is a matter of substantive law. Id. at 2161 (“Deﬁning facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment”). In essence, the Court’s reasoning amounted to the acknowledgment that due process demands fair warning be given.

Thus, as Alleyne held, the facts necessary to increase the authorized punishment to include death are elements of a new or separate offense. Subsequently, the facts that are identiﬁed in the

revised § 921.141 as necessary to authorize death are elements of a criminal offense and as such, must be proven beyond a reasonable doubt to a unanimous jury. Under the revised § 921.141, ﬁrst degree murder plus the additional elements set forth in the statute constitute a new offense, i.e. capital ﬁrst degree murder. This new offense constitutes a higher degree of murder for which death

is authorized and therefore due process requires all of its elements to be proven beyond a

61 reasonable doubt. The jury verdict, however it is labeled in the statute, is functionally a determination of the defendant’s guilt of that criminal offense—capital ﬁrst degree murder.

A court decision identifying the elements of a statutorily deﬁned criminal offense

constitutes substantive law that dates back to the enactment of the statute. Bousley v. United

States, 523 US. 614, 625 (1998) (Stevens, J., concurring in part and dissenting in part) (“This case does not raise any question concerning the possible retroactive application of a new rule of law,

cf. Teague v. Lane, 489 US. 288 (1989), because our decision in Bailey v. United States, 516 US.

137 (1995), did not change the law. It merely explained What § 924(c) had meant ever since the statute was enacted. The fact that a number of Courts of Appeals had construed the statute

differently is of no greater legal signiﬁcance than the fact that 42 U.S.C. § 1981 had been consistently misconstrued prior to our decision in Patterson v. McLean Credit Union, 491 US.

164 (1989).”) (emphasis added). “A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that

construction.” Rivers v. Roadway Exp, Inc, 511 US. 298, 312-13 (1994) (emphasis added).

Fiore v. White, 531 US. 225, 226 (2001) addressed the import of the Due Process Clause in the context of the substantive law deﬁning a criminal offense. The Court noted, “We granted certiorari in part to decide when, or whether the Federal Due Process Clause requires a State to apply a new interpretation of a state criminal statute retroactively to cases on collateral review.”

But before resolving the matter, the Supreme Court inquired of the Pennsylvania Supreme Court the basis for one of the determinations regarding the elements of the statutorily deﬁned criminal offense for which Fiore had been convicted.4 The Court wanted to discern Whether the decision

4 Fiore had been convicted of operating a hazardous waste facility without a permit. Despite having a permit, the State argued that Fiore had deviated so dramatically from the permit’s terms that he had violated the statute. 531 US. at 227. Following his conviction under the State’s theory, the

62 construing the criminal statute was a new interpretation or whether it was a straightforward reading of the statute. Fiore, 531 US. at 226. In reply the Pennsylvania Supreme Court stated that its ruling

“merely clariﬁed the plain language of the statute.” Id. at 228. That meant that the ruling by the

Pennsylvania Supreme Court dated back to the statute’s enactment. Given that determination, the

United States Supreme Court determined that “the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.” Id. Because the Court determined the answer

was no, it held that the Due Process Clause had been violated:

This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violated due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt.”

Id. at 228-29. Because Fiore had not been found guilty of one of the essential elements of the statutory offense, his conviction was constitutionally invalid.

Just as the Pennsylvania Supreme Court had done, the Florida Supreme Court’s ruling in

Hurst v. State, similar to Fiore, read the plain language of Florida’s capital sentencing statute and saw the statutorily required facts necessary to convict a defendant of capital ﬁrst degree murder:

Pennsylvania Supreme Court held in another case that deviation from a permit’s terms did not result in a person not having an actual permit. Thus, those individuals who deviated from a permit’s terms did not Violate the statute. Id. at 227. On appeal, the Appeals Court determined that the rule announced by the Pennsylvania Supreme Court in the other case, i.e. Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A.2d 1109, 1112 (1993) announced a new rule of law and was therefore inapplicable to Fiore’s already ﬁnal conviction. Id. at 227.

63 Hurst v. State, 202 So. 3d at 53—54. These elements arise from the statute itself and had been

present since its enactment. The enactment of Chapter 2017—1 and the subsequent revision of Fla.

Stat. § 921.141 served to further substantiate their integral inclusion in Florida’s capital sentencing

scheme. Just as in Fiore, the decision in Hurst v. State did not create a new rule; it merely identiﬁed the substantive law set forth in the previously enacted version of Fla. Stat. 921.141. Just as in

Fiore, the same result must occur here in Mr. Boyd’s case. Absent a jury determination of each element of capital ﬁrst degree murder beyond a reasonable doubt, there cannot be a constitutionally valid determination of guilt and/or sentence.

Florida’s substantive law identifies the elements that separate first degree murder from capital first degree murder. To be convicted of capital first degree murder those elements must be found in addition to the elements of first degree murder. A conviction of capital murder Without a unanimous jury’s finding that the State proved those additional elements beyond a reasonable doubt, violates the Due Process Clause. In re Winship, 397 US. 358 (1970). Without a constitutional conviction of capital first degree murder, any death sentence imposed is illegal

because it is in excess of the statutory maximum for a conviction of ﬁrst degree murder.

Under the governing substantive law at the time of the homicide at issue in Mr. Boyd’s

case, he was not convicted of capital ﬁrst degree murder because the elements set forth in Hurst v.

State and confirmed in Chapter 2017-1 were not found to have been proven beyond a reasonable doubt by a unanimous jury. Nor was the jury even instructed on the requirement to find each element of the greater offense of capital first degree murder beyond a reasonable doubt. Therefore, his death sentence must be vacated.

In Apprendi v. New Jersey, 530 US. 466, 469 (2000), the Supreme Court explained:

At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without “due process of law,” Amdt. 14, and the guarantee that

64 “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” Amdt.6. Taken together, these rights indisputably entitle a criminal defendant to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States

v. Gaudin, 515 US. 506, 510 (1995); see also Sullivan v. Louisiana, 508 US. 275, 278 (1993); Winshz‘p, 397 U.S., at 364 (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”).

Apprendi, 530 US. at 476—77 (emphasis added).5 Apprendi noted the historical basis for

the due process right:

Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt. “The “demand for a higher degree of persuasion in criminal cases was recurrently

expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late

as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.’ C. McCormick, Evidence

§ 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940).” Winship, 397 US. at .361. We went on to explain that the reliance on the “reasonable doubt” standard among “ common—law jurisdictions ‘reﬂect[s] a profound judgment about the way in which law should be enforced and justice administered.’ ” Id., at 361-362 (quoting Duncan, 391 U.S., at 155).

Apprendi, 530 US. at 478.

The Supreme Court observed that the “reasonable doubt” standard demanded by due process protects against erroneous convictions and government overreach:

As we made clear in Winship, the “reasonable doubt” requirement

“has [a] Vital role in our criminal procedure for cogent reasons.” 397 U.S., at 363, 90 S. Ct. 1068. Prosecution subjects the criminal defendant both to “the possibility that he may lose his liberty upon conviction and the certainty that he would be stigmatized by the conviction.” Ibid. We thus require this, among other, procedural protections in order to “provid[e] concrete substance for the

5 The decision in Apprendi was primarily about the Sixth Amendment right to trial by jury. Its focus was actually on the Due Process Clause and its requirement that the elements of a charged criminal offense must be proven beyond a reasonable doubt for a conviction to be valid.

65 presumption of innocence,” and to reduce the risk of imposing such deprivations erroneously. Ibid.

Apprendi, 530 US. at 484 (emphasis added). In Sullivan v. Louisiana, 508 US. 275, 277-78

(1993), the Supreme Court addressed the Due Process Clause requirement: What the factﬁnder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The

prosecution bears the burden of proving all elements of the offense charged, see, e.g., Patterson v.

New York, 432 US. 197, 210 (1977); Leland v. Oregon, 343 US. 790, 795 (1952), and must persuade the factﬁnder “beyond a reasonable doubt” of the facts necessary to establish each of

those elements, see, e.g., In re Winship, 397 US. 358, 364 (1970); Cool v. United States, 409 US.

100, 104 (1972) (per curiam). The Sullivan Court found that the failure to instruct a jury on the

“beyond a reasonable doubt” standard was structural error.

The constitutional prohibition on ex post facto laws ﬁmher supports the determination that

the elements of capital ﬁrst degree murder under § 921.141 have been present since its enactment.

Art. I, § 10 of the United States Constitution prohibits passage of any “Bill of Attainder, ex post

.” facto Law, or Law impairing the Obligations of Contracts. . Under the prohibition against ex post facto laws, the substantive criminal law setting forth the elements of capital ﬁrst degree murder must have been in existence on the day of the homicide in question. Applying a criminal law enacted after a crime was committed that changes the elements or increases the punishment for

that crime is expressly prohibited. See Marks v. United States, 430 US. 188, 191-92 (1977)

(extending the protections of the EX Post Facto Clause to the judiciary). If Chapter 2017-1 established new elements that did not exist on the date of the homicide, the use of those elements to convict a defendant of the higher degree of murder or to enhance the punishment would be prohibited. See Bouie v. City of Columbia, 378 US. 347 (1964). That would mean every capital defendant who has been convicted of a homicide committed before the enactment of Chapter 2017-

66 1 on March 13, 2017 or the decision in Hurst v. State on October 14, 2016 could not be convicted of capital ﬁrst degree murder.

Jury instructions recently provided to defendants at capital trials establishes that even for crimes which have been committed prior to its enactment, Section 921.141 as revised by Chapter

2017—1, is treated as controlling. For example, in the case of Kendrick Silver in June 2017, the jury instructions promulgated as a result of the revision of § 921.141 and the enactment of Chapter

2017—1 were read to the jury. As part of those instructions the jury was instructed that it was required to unanimously find that the State had proven all of the requisite elements of capital murder beyond a reasonable doubt before returning a death recommendation. In essence, the penalty phase at Mr. Silver’s trial served as determination of whether he was guilty of first degree capital murder, which is murder plus the four elements the jury is required to find unanimously under revised § 921.141. The jury’s subsequent life recommendation was essentially an acquittal of the higher degree of murder which precluded the judge from imposing a sentence of death.

The jury instructions in Silver demonstrate that in recent capital trials Chapter 2017-1 and the revision of § 921.141 is the governing substantive criminal law, dating at least as far back to the date of the murder at issue there, 2006. Moreover, the court ﬁles in cases in which death

sentences have been vacated and new “penalty phases” ordered show that § 941.121 as revised is being Viewed by the State as controlling in homicides dating as far back as 1978.

Under § 921.141 as revised, a death sentence is not authorized when the defendant has only been convicted of ﬁrst degree murder. In the case of William White, his death sentence was vacated on April 21, 2017, and a new “penalty phase” was ordered. Mr. White had been convicted of a

ﬁrst degree murder committed on June 5, 1978. White v. State, 415 So. 2d 719 (Fla. 1982), cert denied, 459 US. 1155 (1982). When the “penalty phase” was ordered on April 21, 2017, the State

67 sought records from the Department of Corrections and considered how to proceed. After a period

of time evaluating the evidence, it announced at the beginning of a hearing on September 19, 2017

that it would not seek to carry its burden of proof and establish the elements necessary to allow the judge at sentencing to consider death as the penalty. Thereupon, the judge imposed the only

authorized sentence for ﬁrst degree murder, life imprisonment.

In other cases in which new “penalty phases” have been ordered, the ongoing proceedings

is 1980's Show that 5% 921.141 as revised being accepted as controlling as to homicides committed in

and 1990's. The State, in a number of such cases, have ﬁled or given notice of its intention to seek

the death penalty. The notice of intent to seek the death penalty is new. It must include a list of the

aggravating factors that the prosecution intends to prove beyond a reasonable doubt. See §

921.141 (1), which references § 775.082, which was ﬁrst revised to include the ﬁling of a notice to

seek the death penalty when Chapter 2016-13, Laws of Florida was enacted on March 7, 2016.

In State v. Card, 1981-518-CFMA (Bay County), the Florida Supreme Court vacated the

death sentence and ordered a new “penalty phase” in May of 2017. Card v. Jones, 219 So. 3d 47

(Fla. 2017). Mr. Card was convicted of a ﬁrst degree murder. The homicide occurred on June 3,

1981. See Card v. State, 453 SO. 2d 17, 18 (Fla. 1984). In a motion to Withdraw ﬁled on November

7, 2017 by an attorney’s ofﬁce assigned to represent Mr. Card, it noted that the State had provided

a notice of intent to seek the death penalty.

In State v. Parker, 43-1982-CF-000352-C (Indian River County), Mr. Parker had been

convicted of a ﬁrst degree murder that was committed on April 27, 1984. Parker v. State, 476 So.

2d 134, 135 (Fla. 1985). The circuit court vacated the death sentence and ordered a new “penalty

phase” in April of 2017. The State ﬁled a notice of intent to seek the death penalty on June 12,

2017.

68 Treating the revised § 921.141 as governing capital prosecutions arising from murders

committed before the revisions were enacted, shows that the prosecutors involved (10 not see the retrospective application of the revised statute as Violating the EX Post Facto Clause. Those

prosecutors are treating the elements of capital first degree murder set forth in § 921.141 as revised as defining the criminal offense of capital first degree murder at the time of the 1981 and 1984 homicides at issue in Card and Parker.

If the elements of capital ﬁrst degree murder were applicable to homicides committed in

1978, 1981 and 1984, the same substantive law was also applicable to the 1998 homicide for which

Mr. Boyd was convicted of ﬁrst degree murder. The Due Process Clause required those elements to have been proven beyond a reasonable doubt. In re Winship, 397 US. 358, 363 (1970). Based

upon Winship, the US Supreme Court held in Sullivan v. Louisiana, 508 US. 275, 277-78 (1993), that a failure to instruct a jury on the “beyond a reasonable doubt” standard was profound or structural error. However, Mr. Boyd’s jury was not instructed on the need to ﬁnd the aggravators

sufﬁcient beyond a reasonable doubt, nor was it instructed that it had to ﬁnd the aggravators outweighed the mitigators beyond a reasonable doubt.

Mr. Boyd’s conviction and sentence are not valid as he was never convicted under Florida law of the offense of capital ﬁrst degree murder. Mr. Boyd’s jury was never instructed on the

requirement that it ﬁnd three of the four elements of capital ﬁrst degree murder beyond a

reasonable doubt, i.e. 1) the aggravators were sufﬁcient, 2) the aggravators outweighed the mitigators, and 3) there was no basis for a single juror to be merciful and vote to impose a life sentence. The failure to instruct the jury on the need to ﬁnd all of the elements of a criminal offense beyond a reasonable doubt violates the Due Process Clause. Because, just like in Fiore, the Florida

Supreme Court held that the elements were not added but had been part of the statute since its

69 enactment in 1972, the Due Process Clause is implicated and governs. Mr. Boyd is entitled to

relief.

Last, should this Court decline to grant Rule 3.851 relief, Mr. Boyd contends that in the

alternative he is entitled to a correction of his sentence pursuant to Fla. R. Crim. P. 3.800(a). Fla.

R. Crim. P. 3.800 states in pertinent part:

(a) Correction. A court may at any time correct an illegal sentence

imposed by it, or an incorrect calculation made by it in a

for the ﬁling of a motion under subdivision (b)(1) [“Motion Before Appeal”] or during the pendency of a direct appeal.

Fla. R. Crim. P. 3.800. In Plott v. State, 148 So. 3d 90 (Fla. 2014) the Florida Supreme Court

outlined both the function and purpose of Rule 3.800:

Fla. R. Crim. P. 3.800(a). Rule 3.800 allows defendants to petition “the courts to correct sentencing errors that may be identiﬁed on the

face of the record.” Williams v. State, 957 So. 2d 600, 602 (Fla. 2007). The intent of rule 3.800(a) is “to balance the need for ﬁnality of convictions and sentences with the goal of ensuring that criminal defendants do not serve sentences imposed contrary to the

requirements of law.” Carter v. State, 786 So. 2d 1173, 1176—78 (Fla. 2001).

Id. at 93. Although an “illegal sentence” is undeﬁned in rule 3.800, the Florida Supreme Court

has generally deﬁned an “illegal sentence’ as one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual

circumstances.” Id.; citing Williams, 957 So. 2d at 602 (quoting Carter, 786 So. 2d at 1181). While

the deﬁnition of What constitutes an ‘illegal sentence’ has changed over time, the Florida Supreme

Court has generally deﬁned an illegal sentence as “a sentence that patently fails to comport with

70 statutory or constitutional limitation.” 1d. at 94; citing State v. Mancino, 714 So. 2d 429, 433 (Fla.

1 998).

Mr. Boyd has never been convicted of the crime of capital ﬁrst degree murder. The Florida

Supreme Court’s interpretation of Fla. Stat. § 921.141 in Hurst v. State, as confirmed by the statutory revision effected by Chapter 2017—1, made clear that the sentencing statute defined the elements which were required to “essentially convict” a defendant of capital first degree murder.

202 SO. 3d at 53—54. The Court also made clear that those elements of capital first degree murder appeared in the statute itself and were longstanding. Id. at 53. Thus, the requirements that the jury unanimously and beyond a reasonable doubt find the existence of the aggravating factors, that the aggravating circumstances were sufficient to impose death and that the aggravating factors outweighed the mitigation, were necessary elements which were required to convict a defendant

of capital first degree murder. Proof of these facts is necessary for a conviction of capital first degree murder. Where the jury did not return any findings of fact nor were they instructed properly as to the ‘beyond a reasonable doubt’ standard of proof, no determination of the necessary elements could have been made. As a result, any sentence of death imposed by a judge at a sentencing

hearing necessarily exceeded their proper authority as it failed to comport with both the statutory

and constitutional limitations under § 921.141 and the Due Process Clause.

The failure to instruct Mr. Boyd’s jury on the requirement that it must ﬁnd beyond a reasonable doubt that the aggravating factors were sufﬁcient to impose the death penalty and that the aggravators outweighed the mitigating factors, violates the requirements of due process under

In re Winship, 397 US. at 364 (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with

71 which he is charged”). Mr. Boyd’s illegal sentence cannot be cured as the result of the jury’s 12—0

recommendation. As the District Court noted in Hannon v. Secretary:

While the Respondent correctly contends that the jury did ﬁnd unanimously that the death penalty was warranted in Hannon’s case, Respondent’s simplistic View that this general unanimous jury ﬁnding precludes review under 2017—1 ignores the complexity of the various iterations of the Florida death sentencing scheme. At the time that Harmon was sentenced, unanimity in recommending death

was not required at all. Fla. Stat. § 921.141 (1991). As noted, in its current iteration, the statute requires that the jury ﬁnd unanimously and beyond a reasonable doubt the speciﬁc aggravating factors that

support a recommendation of death. Fla. Stat. § 921.141 (2017). Additionally, the jury must ﬁnd that sufﬁcient aggravating factors outweigh the mitigating factors, if any, and the jury’s ultimate recommendation of the death penalty must be unanimous. Id.

It cannot be disputed that these requirements were not met in the

sentencing phase of Harmon’s trial. The jury’s blanket recommendation of the death penalty, even though unanimous, does not satisfy the requirements of 2017-1.

Harmon v. Sec ’32, Case 8: 1 7-CV-02609-MSS-TGW. So too is the case here, Where Mr. Boyd’s jury

was not instructed on the requirement that it ﬁnd beyond a reasonable doubt all of the elements

necessary in order to impose a sentence of death. The result is that Mr. Boyd’s sentence of death stands in Violation of the Due Process Clause and constitutes an illegal sentence where the jury failed to return unanimous ﬁndings of fact beyond a reasonable doubt as to the statutorily deﬁned

elements of capital ﬁrst degree murder under Fla. Stat. § 921.141. A correction of Mr. Boyd’s illegal sentence pursuant to Fla. R. Crim. P. 3.800(3) is warranted.

CONCLUSION AND RELIEF SOUGHT

Mr. Boyd prays for the following relief, based on his prima facie allegations demonstrating

Violation of his constitutional rights:

1. That he be allowed to supplement and/or amend this motion should new claims, facts, or legal precedent become available to counsel;

72 2. That he be allowed to reply to any State response to the instant motion;

3. That a case management conference/Huﬂ hearing be scheduled following Mr.

Boyd’s reply for legal argument on all the claims;

4. That his convictions and sentences, including his sentence of death, be vacated.

CERTIFICATION PURSUANT TO FLA. R. CRIM. P. 3.851(e)

Pursuant to Fla. R. Crim P. 3.851(e)(2)(A) and (e)(1)(F), undersigned counsel hereby certiﬁes that discussions with Mr. Boyd of this motion and its contents have occurred over a period of time as relevant new Florida law has unfolded during the past year. Counsel has endeavored to fully discuss and explain the contents of this motion with Mr. Boyd. Counsel also certiﬁes that to

the best of her ability, she has complied with Rule 4-1.4 0f the Rules of Professional Conduct, and

that this motion is ﬁled in good faith.

Respectfully submitted,

/s/ Suzanne Myers Keffer SUZANNE MYERS KEFFER Chief Assistant CCRC—South Florida Bar No. 0150177 [email protected].ﬂ.us

73 CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the foregoing motion have been furnished by electronic mail Via the Florida e—ﬁling portal system to all counsel of record on this 13th day of

March, 2018.

/S/ Suzanne Myers Keffer SUZANNE MYERS KEFFER Chief Assistant CCRC Florida Bar No. 0150177 [email protected].ﬂ.us

/S/ Scott Gavin SCOTT GAVIN Staff Attorney [email protected].ﬂ.us Florida Bar No. 0058651 Capital Collateral Regional Counsel — South

1 East Broward Boulevard, Suite 444 Fort Lauderdale, Florida 33301 (954) 713-1284

74 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 3/19/2018 8:03:30 AM.****

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO: 99-5809CF10A

Plaintiff, DIVISION: FK vs. JUDGE: SIEGEL

LUCIOUS BOYD,

Defendant,

ORDER REQUIRING A RESPONSE BY STATE ON DEFENDANT’SSUCCESSIVE MOTION TO VACATE JUDGEMENTS OF CONVICTION AND SENTENCE,AND ALTERNATIVELY MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.800 THIS COURT having received Defendant’s Successive Motion to Vacate

Judgements of Conviction and Sentence, and Alternatively Motion to Correct an Illegal

Sentence Pursuant to Florida Rules of Criminal Procedure 3.800 filed on or about

3-13-18, and the Court being of the opinion that a Response to said Motion by the

State is necessary, it is hereby

ORDERED that the Office of the State Attorney of Broward County, State of

Florida, shall have 60 days to file a Response to said Motion.

Broward County, Florida.

RE Circuit J dge

Copies furnished: State Attorney’s Office Defendant’s Attorney-Suzanne Myers Keffer, Esq.

75 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 3/19/2018 8:07:02 AM.****

BRENDA D. FORMAN CLERK OF CIRCUIT AND COUNTY COURT 17"H JUDICIAL CIRCUIT

201 Southeast 6‘" Street Broward County Counhousc Fort Lauderdale, FL 3330]

Case Number: 99—005809-CF10A

State of Florida

Lucious Boyd

Certiﬁcate of Clerk pursuant to Florida Rules of Court 3.850(i)

1, Brenda D. Forman, Clerk of the Courts, Broward County, Florida hereby certify that a copy of the Order for State to respond has been mailed to the defendant’s attorney at the address below, to wit:

Suzanne Myers Keffer Chief Assistant CCRC- South

1 East Broward Blvd. Ste. 444 Fort Lauderdale, FL 33301

Date: March 19 2018

Brenda D. F orman, Clerk Circuit and County Court

By: >40 [w Amanda D. Banks, Deputy Clerk

Cemﬁcale ofSerwcc State to Respond

76 N THE CIRCUUT COURT OF THE WTH JUDHCHAL CHRCUW, EN AND FOR BROWARD COUNTY, FLORIIIDA

STATE OF FLORIDA, CASE NO: 99-58090F110A

Plaintiff, DIIVISMON: FK

vs. JUDGE: SEEGEL

LUClOUS IOYD,

Defendant,

ORDER REQUIIRIING A RESPONSE BY STATE ON IEFENDANT’SSUCCESSIVE MOTION TO VACATE JUDGEMENTS OF CONVICTHON AND SENTENCEAND ALTERNATIVELY MOTION TO CORRECT AN ﬂLLEGAL SENTENCE PURSUANT TO FLORIDA RULES OF CRIMHNAL PROCEDURE 3.800 THIS COURT having received Defendant’s Successive Motion to Vacate

Judgements of Conviction and Sentence, and Alternatively Motion to Correct an Illegal

Sentence Pursuant to Florida Rules of Criminal Procedure 3.800 filed on or about

3-13-18, and the Court being of the opinion that a Response to said Motion by the

State is necessary, it is hereby

ORDERED that the Office of the State Attorney of Broward County, State of

Florida, shall have 60 days to file a Response to said Motion

DONE AND ORDERED in chambeﬂgerm/49, 2018 at Fort Lauderdale Broward County, Florida. 19%

MW”L,a{SlE@EL Circuit quge/m'(,‘/

Copies furnished: State Attorney’s Office Defendant’s Attorney—Suzanne Myers Keffer, Esq.

77 Filing # 72392841 E-Filed 05/18/2018 07:32:40 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL > CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. 99—5 809CF10A

L. SIEGEL JUDGE: , ANDREW

STATE OF FLORIDA, Plaintiff,

VS.

LUCIOUS BOYD Defendant.

STATE’S MOTION FOR EXTENSION OF TIME TO FILE RESPONSE

THE STATE OF FLORIDA, by and through the undersigned Assistant State Attorney,

respectfully requests this Honorable Court grant its Motion for Extension of Time to ﬁle its

Response in the above—styled cause until twenty (20) days from the granting of this Motion. As

grounds therefore, the State would show the follbwing:

1. The State’s Response is due for service.

2. The State respectfully requests an extension of twenty (20) days to prepare its response.

3. Undersigned counsel was not included on the Defendant’s Certiﬁcate of Service and

was unaware of Defendant’s Successive Motion to Vacate Judgment of Conviction and

Sentence, and Alternatively Motion to Correct an Illegal Sentence Pursuant to Florida

Rules of Criminal Procedure 3.800.

4. The Ofﬁce of the State Attorney, Seventeenth Judicial Circuit, did, in fact, receive this

Court’s Order requiring a response to Defendant’s Motion. The Court’s Order,

however, was not given to undersigned counsel until late this afternoon.

78 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 5/18/2018 7:32:40 PM.**** 5. Undersigned counsel apologizes to the C0111“: for the delay and respectfully requests a

twenty (20) day extension.

6. Defense counsel, Suzanne Keffer, has no objection to the State’s request for an

extension of time.

7. This Motion is made in good faith on these grounds and not for purposes of undue delay.

WHEREFORE, the State respectfully requests an extension of time of twenty (20) days

from the granting of this motion to ﬁle its Response in the above-styled cause.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished

Via the Florida E—Poﬂal which will provide a copy of the foregoing by E-Mail to: Honorable

Andrew L. Siegel, (salbert@17th.ﬂcourts.org), Room 7880, Broward County Courthouse, 201

6th SE. Street, Fort Lauderdale, Florida 33301; and Suzanne Keffer, ([email protected].ﬂ.us),

Chief Assistant CCRC—South, CCRC, 1 East Broward Boulevard, Suite 444, Fort Lauderdale,

Florida 33301, this 18th day of May, 2018.

Respectfully submitted,

MICHAEL J. SATZ State Attorney

''''' . [fr/r“ V)

// .. \ﬁ M x /S’TEVEN A. < KLINCER Assistant State Attorney \\ / Special Administrative Projects Florida Bar No.444499 Broward County Courthouse 6‘h 201 SE. Street, W.W. Suite 07130 Fort Lauderdale, Florida 33301 Telephone: 954—831-7913 [email protected].ﬂ.us

79 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 5/21/2018 8:07:53 AM.****

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO: 99-5809CF10A

JUDGE: ANDREW L. SIEGEL

STATE OF FLORIDA,

Plaintiff, vs.

LUCIOUS BOYD

Defendant.

ORDER GRANTING STATE’S MOTION FOR EXTENSION OF TINIE TO FILE RESPONSE

THIS CAUSE having come before the Court upon State’s Motion for Extension of Time to

File Response, and the Court having considered same, it is hereby,

ORDERED AND ADJUDGED State’s Motion for Extension of Time to File its Response in the above-styled cause, until twenty (20) days from the granting of this motion, is hereby

GRANTED. 2A DONE AND ORDERED this day of May, 2018, in Chambers, at the Broward

County Courthouse, 201 Southeast Sixth Street, Fort orida.

. GEL C R JUDGE cc Steven A. Klinger, Assistant State Attorney Special Administrative Projects

Suzanne Keffer, Chief Assistant CCRC-South

1 East Broward Blvd., Suite 444 Fort Lauderdale, FL 33301

80 Filing # 73399832 E-Filed 06/11/2018 06:40:54 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

vs. CASE NO.:99—005809 CF10A JUDGE ANDREW L. SIEGEL LUCIOUS BOYD, DIVISION: FK

Defendant.

STATE’S RESPONSE TO DEFENDANT’S SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION, AND ALTERNATIVELY, MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.808

COMES NOW Plaintiff, State of Florida, by and through

undersigned counsel, and hereby responds to Defendant’s Successive

Motion to Vacate Judgments of Conviction and Sentences and

Alternatively‘ Motion to Correct Illegal Sentence Pursuant to

Florida Rules of Criminal Procedure 3.800, and as grounds states:

OVERVIEW

This is the second attempt by Plaintiff, Lucious Boyd {“Boyd”)

to obtain relief based on HUrst v. Florida, 136 S.Ct. 616 (Fla.

2016} and Ears: v. State, 202 So.3d 4O (Fla. 2016) and their

progeny from his death sentence imposed following a unanimous jury

recommendation for the first—degree murder of DD.1 Boyd raises

1 Boyd was also convicted of armed kidnapping, and sexual battery, thus, the State will refer to the victim by her initials.

81 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 6/11/2018 6:40:52 PM.**** the instant claims even though he is barred under the law of the case. Boyd V. Janes, 2017 WL 318931 (Fla. Jan. 23, 201?} (denying successive habeas petition. which challenged. death. sentence as

Violative of Sixth and Eighth Amendments based on Hurst V. Florida and Bars: V. State) and the fact the Florida Supreme Court has rejected the constitutional challenges raised in this successive motion. See asay'v. State, 210 So.3d 1 (Fla. 2016); Asay v. State,

224 Sé.3d 695 (Fla. 2017); and Hitchcock v. State, 226 So.3d 216

(Fla. 201?}; Lambrix V. State, 227 So.3d 112 (Fla.}, cert. denied,

138 S.Ct. 312 (2017); Reynolds V. State, 43 Fla. L. Weekly 8163

(Fla. Apr. 5, 2018). The Florida Supreme Court has found repeatedly Bars: error harmless beyond a reasonable doubt where the jury recommended death unanimously. See Davis v. State, 207

So.3d 142, 1?3—?5 (Fla. 2016). Moreover, the fact that a new sentencing statute is enacted does not require re—sentencing on cases final on appeal See Article X, section 9 of the Florida

Constitution. Also, the fact that the alleged error does not/ render the sentence illegal precludes Boyd’s reliance on Rule

3.800, Fla. R. Grim“ P. and that rule also provides that Rule 3.800

(b) and {c} do not apply to death sentenced defendants. Given this state of the law, relief should be denied summarily here.

PROCEDURAL HISTORY

On Qpril 14, 1999, Boyd was indicted for first—degree murder,

82 armed kidnapping, and sexual battery of DD. voir dire commenced

December 3, 2001 and a jury was seated the next day. Opening statements were given January 7, 2002, and on January 30, 2003, guilty verdicts were returned on each count. (R.1 6—?; R.3 461—

63; R.5 2; R.? 3?8; R.8 457; R.20 l758~76, 2088—89).2 Following the March 11—12, 2002 penalty phase, the jury unanimously recommended death for the murder. (R.29 2388—91) The Spencer V.

State, 615 So. 2d 688 (Fla. 1993) hearing was held on March 27,

April 10, April 30, and May 29, 2002. During the June 21, 2002

~sentencing, the court imposed death for the murder of DD, 15 years for the armed kidnapping, and life for the sexual battery. (R.3

498, 546-55; R.30 2494—2503).

On direct appeal, Boyd raised 15 issues3 which were rejected.

2 The appellate records will be cited as follows and.may be obtained from the Florida Supreme Court Clerk of Court: Direct Appeal record will be by “R”, to the postconviction record will be “PCR”, and supplemental materials will be designated by the symbol “S” preceding the type of record referenced, followed by the appropriate volume and page number(s). 3 Boyd’s issues were: (1) error in refusing to make inquiry and denying mistrial upon hearing testimony that jurors had discussed extrajudicial information; (2) error in overruling defense request under Brady V. khryland, 373 U.S. 83 (1963), denying motion to strike fingerprint examiner’s testimony, and in not holding Richardson V. State, 246 So.2d 771 (Fla. 19?1} hearing; (3) evidence was insufficient to support convictions for sexual battery, first~degree murder, and armed kidnapping; (4) error to overrule objection to evidence Boyd had received a citation for failure to pay a train fare, and to the use of the citation in Boyd‘s cross—examination; (5) error in overruling objections in Boyd’s cross—examination; (6) error in not considering experts‘ reports and testimony on Boyd's competency; (7) competency hearing 3

83 On February 24, 2005, Boyd moved for rehearing which was denied on

June 16, 2005, in light of the Florida Supreme Court’s revised opinion. See Boyd v. State, 910 So.2d 167 (Fla. 2005).

On direct appeal, the Florida Supreme Court found:

The evidence presented at trial revealed the following facts. In the early morning hours of December 5, 1998, {DD‘S}4 car ran out of gas while she was on her way to her home in Deerfield Beach, Florida, from a midnight church service. She had just exited from Interstate 95 {1—95} onto Hillsboro Beach Boulevard and pulled onto the shoulder. She then took a red gas can she kept in her car, walked about a block east to a nearby Texaco gas station, and bought a gallon of gas. At approximately 2 a.mJ, during the time she was at the gas station, {DD} spoke with two other customers, Lisa Bell and Johnnie Mae Harris. She asked Bell for a ride back to her car, but Bell had walked to the station and so could not give DD a ride. Bell and Harris then watched [DD] speak with a black male in a van in the station's parking lot. Harris asked the man if he was going to help [DD], and the man nodded, indicating yes. Bell later told the police that the van she saw was greenish—blue in color, while Harris said that she thought the van was burgundy. Though somewhat unsure about the van's color, Harris was certain that she saw the word “Hope” on its side. In a photo lineup and at trial, Harris identified the man she saw in the van that night as Lucious Boyd.

Boyd.spent the evening of December 4 with Geneva Lewis, his girlfriend, at her mother's home. Boyd left the house should have been ordered during sentencing; (8) Boyd's waiver of mitigation did not comply with Koon V. Bugger, 619 So.2d 246 (Fla. 1993}; (9) error to give great weight to death recommendation; (10) mitigation presentation was invalid as decision of whether to present witnessesXevidence is for counsel; (11} HAC and felony murder aggravators were not proven; death sentence cannot rest on one aggravator; {12) error to admit victims photo in penalty phase; (13) error in assessment of mitigation; (l4) proportionality; and (15) error not to follow Muhammad v. State, 782 So.2d 343 (Fla. 2001}. See Boyd v. State, 910 So.2d 167, n.4 (Fla. 2005}. 4 The Victim’s name has been redacted. 4

84 around 10 or 11 p.m., and Lewis did not see him again until the morning of December 5, at around 9 or 10 a.m. Lewis testified that on December‘ 4 and 5, Boyd. was driving a green church van with writing on its side and that the van belonged to Reverend Frank Lloyd of the Hope Outreach Ministry Church, for whom Boyd performed occasional maintenance work.

{DDI‘S family began searching for her after she did not return home on December 5. They found her car at an 1—95 exit and began circulating fliers with [DDJ‘S photograph, indicating that she was missing, throughout the area. Bell and Harris saw the fliers, recognized [DD] as the woman with the gas can at the Texaco station onv December 5, and. contacted the police with their information.

On December 7, [DD]'s body was discovered in an alley behind a warehouse on 42nd Street in Deerfield Beach. The body was wrapped in a shower curtain liner, a brown, flat bed sheet, and a yellow, flat bed sheet. A purple duffel bag and two large black trash bags covered her head. It was determined that she had. been, dead for between thirty—six and seventy—two hours.

At trial, it was stipulated that [DD] died due to a penetrating head wound and that the bruising on her head was consistent with but not exclusive to the face plate of a reciprocating saw. Wounds to her chest, arms, and head were consistent with but not exclusive to a Torx brand torque screwdriver, and she had defensive wounds on her arms and hands. There was bruising to her vagina that was consistent with sexual intercourse, although the medical examiner could not determine whether the intercourse was consensual or nonconsensual. [DD] had thirty—six superficial wounds on her chest, four on the right side of her head, and twelve on her right hand, some being consistent with defensive wounds and some being consistent with bite marks. One fatal wound to the head perforated the skull and penetrated [DD3'S brain.

On March 17, 1999, while Detectives Bukata and Kaminsky of the Broward County Sheriff's Office were investigating another crime unrelated to {DDI‘S death, they saw a green van in the Hope Outreach Ministry Church parking lot. The van had burgundy writing on it that 5

85 read “Here‘s Hope.” Bell would later identify the church‘s van as the same van she had seen on the morning of’ December E5 at the Texaco station. The detectives decided to investigate, and their inquiries as to the owner of the van led them to Reverend Lloyd. When the detectives questioned Lloyd about the location of the van on the night of December 4, Lloyd's secretary, who was present at the questioning, remarked that Lucious Boyd had driven the van on that weekend. On December 4, Boyd had taken Reverend Lloyd to pick up a rental car in the church's green 1994 Ford van. Reverend Lloyd further testified that he instructed Boyd to take the van back to the church but that Boyd did not return the van until Monday, December 7. Reverend Lloyd also stated that when he left the van with Boyd, various tools owned by the church, including a set of Torx brand screwdrivers and a reciprocating saw, were in the van, as well as a purple laundry bag that the pastor used to deliver his laundry to the cleaners. When Reverend Lloyd returned on December 15, he discovered that the screwdrivers, the saw, and the laundry bag were missing.

Boyd was arrested for [DD]'s murder on March 26, 1999. Seminal fluid taken from [DD]'S inner thigh matched the DNA profile of Boyd. Tests also did not eliminate Boyd as a Hatch for a hair found on [DD]'s Chest. A DNA profile consistent with Boyd's was found in Haterial taken from under [DD]'s fingernails. In addition, fingerprints taken from the trash bag found around the victim’s head matched fingerprints of Boyd's girlfriend, Geneva Lewis, and her son, Zeffrey Lewis. Tire marks on a sheet covering the victim's body were consistent with the tires on the church ‘van, although trial expert Terrell Kingery, a senior crime laboratory analyst for the Orlando Regional Crime Laboratory, testified that he could not say for certain that the van's tires made the marks because over 1.5 million tires could have made the tracks on the sheet. Dr. Steven Rifkin, a private dentist and 53 forensic odontologist. with. the Broward‘ County Medical Examiner's Office, testified that bite marks on {DDJ’S arm were, within a reasonable degree of certainty, made by Boyd's teeth.

On ﬁpril 1, Detective Bukata obtained a warrant to search the apartment of Boyd and Lewis, which was a block east of the Texaco station. Detective Bukata arrived at 6

86 the apartment and told Lewis to leave with her children for a few days so that the officers could fully search the apartment. The investigators found blood at various locations throughout the apartment. Blood found on the underside of the carpet and on the armoire matched [DDJ’S DNA profile. The shower curtain rings were unsnapped, and there was no liner to the shower curtain. Carpet fibers taken from the yellow sheet in which [DDJ‘S body was wrapped matched characteristics of carpet samples taken from Boyd's apartment.

Lewis had previously lived with Boyd at his apartment but had moved out in October of 1998. While living with Boyd, Lewis had purchased a queen—size bed, which she left at the apartment when she moved. Lewis and her three children moved back in with Boyd in February of 1999 and discovered that the bed was no longer at Boyd’s apartment. When she asked about it, Boyd told he: that he had given it away but would get it back. When she inquired about it again, Boyd told her that she would not want that bed and that he would get her another one. Lewis also identified the flat bed sheets, one brown and one a “loud yellow,” that were found around [DDl’s body as similar to ones she had owned while living at Boyd‘s apartment but that she no longer knew where they were or if they were at Boyd's apartment or at her mother‘s home.

A jury convicted Boyd of first—degree murder, sexual battery, and armed kidnapping. The trial court subsequently conducted a penalty phase proceeding, during which both sides presented evidence. The jury unanimously recommended that Boyd be sentenced to death. The trial court followed the jury's recommendation and imposed a death sentence, finding and weighing two aggravating factors,FNl one statutory mitigating factor,FN2 and five nonstatutory mitigating factors.FN3 State V. Boyd, No. 99—5809 (Fla. 17th Cir. Ct. order filed June 21, 2002) (sentencing order). The trial court also sentenced Boyd to fifteen years' imprisonment for the sexual battery and to life imprisonment for the armed kidnapping charges.

FNl. The aggravating factors were that the crime {1) was especially heinous, atrocious, or cruel {HAC} {accorded great weight), and (2) was committed while the defendant was committing or attempting to commit 7

87 kidnapping and sexual battery (accorded moderate weight).

FN2. The statutory Initigating factor. was that the defendant had no significant prior criminal history, to which the court accorded medium weight.

FN3. The nonstatutory mitigating factors were all accorded minimum weight and were that the defendant (1} is religious, (2) has a good jail record, (3} has family and friends who care for and love him, (4) came from a good family, and (5) expressed remorse for the victim and her family.

Boyd, 910 So.2d at 174~77

On November 18, 2005, Boyd filed, in the United States Supreme

Court, a Petition for Writ of Certiorari. Following the State’s

Brief in Opposition, the Supreme Court, on Eébruary 21, 2006, denied certiorari. Boyd V. Florida, 546 U.S. ll?9 {2006).

Subsequently, on February 14, 2007, Boyd filed his motion for postconviction relief. (PCR.3 328—403) Public records litigation continued, and on May 29, 2009, Boyd filed an amended motion {PCR.8

1257 — PCR.12 2188). On March 23, 2012, Boyd amended his motion for a second motion (PCR.14 2545~87). The Case Management

Conference was held on June 5, 2012 (PCR.3O 543?~5528} and an evidentiary hearing was granted.5 That hearing was held on August

5 Following a Case Management Conference, this Court granted Boyd an evidentiary hearing on Claim III—A2, Claim IV regarding counsel’s effectiveness in questioning jurors Tonja Striggles and Kevin Rebstock and the fairness of Boyd’s trial given these jurors’ alleged misconduct and Amended Claim V, sections A—C, and Claim VI related to the effectiveness of counsel during the penalty phase. (PCR.15 2?69—?l}. On August 28, 2012, at the commencement of the 8

88 28, 29, and 31, 2813 (PCR.30). The parties submitted Post—hearing

Memoranda, and on January 7, 2013, collateral relief was denied.

The Florida Supreme Court affirmed the denial of postconviction relief and denied the related state habeas petition. Boyd v. State, 200 So.3d 685 (Fla. 201?). During the rehearing on the postconviction appeal, HUrst v. Florida, 136 S.Ct.

616 {2016} was decided and Boyd was permitted to supplement his motion for rehearing with a HUrst claim. Eventually the rehearing was denied, but Boyd was permitted to file a successive state habeas petition raising the HUrst claim. Boyd v. JOnes, 2017 WL

318931 (Fla. Jan. 23, 217).

In the instant successive postconviction relief motion, Boyd seeks a new sentencing. As explained more fully below, Boyd is not entitled to any relief; this Court is bound by the Florida

Supreme Court’s rulings, not only in this case, but in similarly situated cases, thus, relief must be denied summarily.

STANDARD OF REVIEW

This is a successive motion as “a state court has previously ruled on a postconviction motion challenging the same judgment and sentence.’ ’ Florida Rule of Criminal Procedure 3.851 (e}{2}. In order to bring a successive postconviction claim and one outside evidentiary hearing, Boyd waived and abandoned Amended Claim V sections A and B, and Claim VI. (PCR.31 5549—57; SPCR.1 42—43)

89 the one-year time limitation, the defendant must Show either newly discovered evidence or a new constitutional right made retroactive to his case. See Rule 3.851 (d)(2); Knight v. State, ?84 So.2d

396, 400 (Fla. 2001); Francis v. Barton, 581 So.2d 583, 584 (Fla.

1991). Absent such a showing, the motion should be denied.

Additionally, procedurally barred claims may be denied without an evidentiary hearing or the attachment of records.

Muhammad V. State, 603 So.2d 488, 489 (Fla. 1992) (noting ”{i}ssues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attackﬂw;

Nbdina v. State, 573 So. 2d 293, 295 (Fla. 1990} {holding the

“[aJllegations of ineffective assistance cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal”; Harvey V. Bugger, 656 So. 2d 1253, 1256 (Fla.

1995}. All other claims may be summarily denied "when the motion and the record conclusively demonStrate that the movant is entitled to no relief." KEnnedy v. State, 547 So. 2d 912, 913 (Fla. 1989).

ARGUMENT

THE SUCCESSIVE RULE 3.851 MOTION SHOULD BE DENIED AS THE FLORIDA. SUPREME COURT HAS DENIED BOYD’S HURSE’ CLAIM PREVIOUSLY AND HAS DENIED THE CONSITUTIONAL ARGUMENTS RAISED HERE (restated)

Boyd admits he has raised a HUrst V. Florida and Hurst V.

State, 202 So.3d 4O (Fla. 2016) (“Hurst”) claim in his successive state habeas petition. Nonetheless, he seeks review here based on 10

90 the Legislature’s amending of Florida’s capital sentencing in

Chapter 201?—l, Laws of Florida on March 13, 201? in light of Hurst and Perzy V. State, 210 So.3d 630 (Fla. 2016). He asserts that

Chapter 281?—1, created. as 51 result of Hurst, a new “greater offense of capital first degree murder” of which he was not convicted, thus, his death sentence violates Due Process and the

Eighth Amendment. The pith of the argument is Bars: error must be found because the Florida Supreme Court found the capital sentencing statute unconstitutional in HUrst and the Legislature amended the statute to conform with Harst. In order to grant relief, this Court must ignore the Florida Supreme Court’s denial of Hurst error in Boyd’s habeas case, ignore Florida Supreme Court precedent finding Harst error harmless beyond a reasonable doubt where a jury unanimously recommended death, and overlook binding

Florida Supreme Court precedent rejecting the instant constitutional challenges. This Court should follow settled law and deny relief summarily.

The Florida Supreme Court rejected Boyd’s Bars: claim, thus under law of the case, binding this Court and necessitating a summary denial of relief here. Likewise, the Florida Supreme Court has rejected the suggestion that Chapter 2017—1 requires that all defendants sentenced to death receive a new sentencing and that there exist Due Process or Eighth Amendment violations in cases

91 similar to Boyd’s. Moreover, given the Florida Supreme Court’s rejection of Boyd’s prior challenge to his sentence and the fact that Hurst error does not establish that a capital sentence is per se illegal, but permits a harmless error analysis, Rule 3.800(a) is not applicable here. Relief must be denied.

This Court should find that under the law of the case doctrine,6 Boyd’s HUrst claim is Hﬁritless. In his successive state habeas petition, Boyd raised a HUrst claim. (Exs. A—C) The

Florida Supreme Court denied the petition. As such, it is the law

6 The Florida Supreme Court has stated:

The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings. See Greene V. Massey; 384 So.2d 24, 28 (Fla. 1980) (“All points of law which have been adjudicated become the law of the case and are, except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case.”); Strazzulla v. Hendrick, 1?? So.2d l, 3 (Fla.l965). Under the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case. See MCGregor, 162 So. at 327. Moreover, even as to those issues actually decided, the law of the case doctrine is more flexible than res judicata in that it also provides that an appellate court has the power to reconsider and correct an erroneous ruling that has become the law of the case where a prior ruling would result in a “manifest injustice.” Strazzulla, 1?? So.2d at 5.

Florida Dept. of Transp. v. Juliana, 801 So. 2d 101, 105—06 (Fla. 2001)

92 of the case that any alleged Hurst error in Boyd’s sentencing is harmless beyond a reasonable doubt and without merit. The Florida

Supreme Court has been consistent in holding Harst wouldv be retroactive to defendants whose death sentences became final after

Ring V. Arizona, 536 U.S. 584 (2002) was decided on June 24, 2002, and that their sentences would be reviewed for harmless error.

Masley v. State, 209 So. 3d 1248, 1274 (Fla. 2016}. It also has been consistent in finding harmless error for those defendants whose juries recommended death unanimously.7 See Davis v. State,

207 So.3d 142, 1?3~75 (Fla. 2016); thnston V. State, 43 Fla. L.

Weekly 8162 (Fla. Apr. 5, 2018); Tanzi v. State, 43 Fla. L. Weekly

8173 (Fla. Apr. 5, 2018); Crain V. State, 43 Fla. L. Weekly 5161

(Fla. Apr. 5, 2018); Reynolds v. State, 43 Fla. L. Weekly 8163

(Fla. Apr. 5, 2018); Hall v. State, 43 Fla. L. Weekly 81?8 (Fla.

Apr. 12, 2018); Hall V. State, 212 So. 3d 1001, 1033—36 (Fla.

7 In a case on direct appeal at the time Hurst v. Florida and Hurst were decided, the Florida Supreme Court rejected the claim of Hurst error finding the unanimous jury recommendation allowed the Court to find any error was harmless beyond a reasonable doubt.

In this case, the penalty phase jury returned a unanimous recommendation for a sentence of death. “[This] recommendation[] allow[s] us to conclude beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravators to outweigh the mitigating factors.” Davis, 20? 80.3d at 1?4. Tundidor V. State, 221 So. 3d 587, 607 (Fla. 201?), cert. denied sub nom. Middleton V. Florida, 138 S. Ct. 829 (2018) 13

93 2017}, reh'g denied, SClS~l662, 2017 WL 1150799 (Fla. Mar. 28,

2017}; Guardado V. Jones, 226 So.3d 213 (Fla. 201?), cert. denied,

138 S.Ct. 1131 (2018); Middleton v. State, 220 So.3d 1152 (Fla.

2017}, cert. denied, 138 S.Ct. 829 (2018); anes v. State, 212

So.3d 321 {Fla.), cert. denied, 138 S.Ct. 175 {201?}; Knight V.

State, 225 So.3d 661 (Fla. 2017); Kaczmar V. State, 228 So.3d 1

(Fla. 201?). Boyd’s jury was unanimous in its recommendation of death; thus, any Harst error is harmless beyond a reasonable doubt.

A review of the record establishes that Boyd’s jury received the standard instructions which were proper at the time. Those instructions informed the jury its decision was to be based on whether it found “sufficient aggravating circumstances” existed

“to justify the imposition of the death penalty and. whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.” (R.29 23?1). The aggravators were to be proven. beyond. a reasonable doubt, but mitigators could, be considered were the jury was “reasonably convinced" of their existence. (R.29 23—7374). The jury was instructed that it could consider the aggravators of commission during the course of a felony of either “sexual battery and/or kidnapping”8 and the heinous, atrocious, or cruel (“HAC"). If the

8 As this Court will recall, the jury had just convicted Boyd of both felonies.

94 aggravation, in the jury's estimation did not justify the death penalty, the jury was told its recommendation should be one of life imprisonment. Only in the event the jury found sufficient aggravation were deliberation to continue with evaluation of the nﬁtigation offered. (R.29 2372). Such instructions are not an impediment to finding an Hurst error harmless beyond a reasonable doubt. See Bavis; Hall; Reynolds; Tanzi; Cain. Furthermore, Boyd’s sentencing jury convicted him of kidnapping and sexual battery, rendering its unanimous verdict, resulting in death eligibility.

Moreover, merely looking at the trial stipulation,9 there could be no question that the wounds inflicted established HAC. Boyd, 910

So.2d at 1?4—??. Those felony convictions remain intact, and thus,

9 This Court will recall:

At trial, it was stipulated that [DD] died due to a penetrating head wound and that the bruising on her head was consistent with but not exclusive to the face plate of a reciprocating saw. Wounds to her chest, arms, and head were consistent with but not exclusive to a Torx brand torque screwdriver, and she had defensive wounds on her arms and hands. There was bruising to her vagina that was consistent with sexual intercourse, although the medical examiner could not determine whether the intercourse was consensual or nonconsensual. {DD} had ~thirty—six superficial wounds on her chest, four on the right side of her head, and twelve on her right hand, some being consistent with defensive wounds and some being consistent with bite marks. One fatal wound to the head perforated the skull and penetrated [DD}‘s brain.

Boyd, 910 So.2d at 174—77. Clearly, HAC was established from this evidence. 15

95 any Bars: infirmity is harmless beyond a reasonable doubt. See

Davis; 8813; Reynolds; Tanzi; Cain.

Based on this record, Boyd’s Due Précess and Eighth Amendment claims fail. In Hall v. State, 43 Fla. L. Weekly Sl?8 (Fla. Apr.

12, 2018}, the Florida Supreme Court rejected a successive HUrst claim in part because the defendant’s jury has recommended death by a unanimous vote. That Court stated:

We deny this subclaim [Violation of due process} of Hall‘s successive postconviction motion because we have already addressed a HUrst harmless error analysis as it pertains to Hall's case in Hall II, 212 So.3d at 1033» 36. Thus this subclaim is duplicative.

Earthermore, the authority upon which Hall relies in support of his argument, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), is not determinative. The United States Supreme Court, in In re Winship, held that the State must prove all elements of a crime in a juvenile delinquency proceeding beyond a reasonable doubt, just as it would in an adult criminal proceeding, and that the failure to do so would result in a due process violation. 397 U.S. at 367~68, 90 S.Ct. 1068. We conclude that In re Winship> is distinguishable from Hall's case, however, because Hall's case does not concern a juvenile delinquency proceeding. Moreover, although Sarst did result in the requirement that all aggravators and mitigators be proven beyond a reasonable doubt, as we previously stated in Hall II, the error in Hall‘s case was harmless. See 212 So.3d at 1033—36 (discussing how the error was harmless due to Hall’s unanimous death sentence). Thus we conclude that Hall‘s death sentence does not violate due process and thus hold that this subclaim is meritless.

Hall's Death Sentence Violates the Eighth Amendment

We deny this claim of Hall's successive postconviction motion because there was no harmful error in this case. Hal}. II, 212 80.301 at 1036. In Hurst, we held that 16

96 unanimity is required under the Eighth Amendment. Similarly, we have determined. that defendants whose sentences became final post—Ring and who received unanimous jury recommendations are not entitled to Hurst relief if the error is deemed to be harmless pursuant to Davis v. State, 207 So.3d 142, 173—75 (Fla. 2016}. Hall‘s jury returned a unanimous recommendation, Hall I, 10? So.3d at 2?0, his sentence became final after Ring, see Hall V; Florida, m~— U.S. ~~-~, 134 S.Ct. 203, 18? L.Ed.2d 13?, and the HUrst error was harmless. Therefore, we deny this claim of Hall‘s successive postconviction motion.

Hall V; State, 43 Fla. L. Weekly 8178 *5 (Fla. Apr. 12, 2018).

Boyd also asserts that a new substantive right was created by

Chapter 201?~1 requiring resentencing.lo He points to fjore V. m Boyd claims Harst and the new statute should be read to have created a new crime of “capital first~degree murder” {motion at 7— 8) necessitating re—sentencing. His assertion is without merit. To start, neither the Florida Supreme Court in Hurst V. State, 202 So. 3d 40 Fla. 2016) nor the United States Supreme Court in Hurst v. Florida, 136 S.Ct. 16 (2016) have determined ,that the aggravating factors upon which a sentence of death must be based are elements of a crime. In Hurst v. Florida, the United States Supreme Court characterized the aggravating factors as “critical findings” in the sentencing process and yet did not conclude that these findings must be unanimous or that they should be considered actual. elements of' a crime presented. pre~trial. Likewise, the Florida Supreme Court’s imposition of a unanimity requirement on the jury applies to the jury’s recommendation for a death sentence. HUrst, supra, at 57. The Court clearly qualified its use of the word “elements” when referring to aggravating factors while simultaneously and consistently recognizing that the context in which this term was being used involved the jury's role at the end of the trial process, i.e., the sentencing phase. Simply because the effect of an aggravating factor has evolved into a recognition that its existence increases a sentence that otherwise would not have been available, it does not logically follow that the jury’s consideration of a factor in conjunction with the jury’s explicit role post trial, somehow has morphed into something other than a sentencing recommendation. If the Florida Supreme Court determined otherwise, it would have so stated. It did not, and, instead, has 17

97 White, 531 U.S. 225, 226 (2001) to no avail. There, Fiore and his co—defendant, Scarpone, were convicted of operating a hazardous waste facility without a permit. The State of Pennsylvania argued that while Fiore and Scarpone had a permit, they deviated so dramatically from its terms that they violated the statute. The

Pennsylvania Supreme Court declined to review Fiore’s conviction, but later reversed Scarpone’s conviction finding that although it was unlawful to operate without a permit, one who merely deviates from a permit’s terms did not qualify as a person without a permit.

Flore, 531 U.S at 227.

The Court of Appeals reviewing Fiore’s federal habeas petition believed the Pennsylvania Supreme Court had announced a new rule in Scarpone’s case, inapplicable to Fiore, and pointed out that state courts are under no constitutional obligation to apply new rules retroactively. Id. However, upon review, the consistently and explicitly characterized the jury’s function in the context of sentencing exclusively. Bars: does not support a conclusion that aggravating factors are elements for indictment or due process notice requirements; the Florida Supreme Court said: “the Supreme Court‘s decision in Hurst V. Florida requires that all the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury.” Hurst V. State, 202 So. 3d 40, 44 (Fla. 2016) (emphasis added). The Florida Supreme Court said that the required factﬂfinding was equivalent to an element of an offense, both of which a jury must determine unanimously. The Court then went on to use the Supreme Court decision in conjunction with its own precedent regarding juror unanimity as to elements of a criminal offense to hold that aggravators must be found unanimously. 18

98 United States Supreme Court requested the Pennsylvania Supreme

Court explain whether Scarpone's case created ea new law. The

Pennsylvania court replied that the decision in Scarpone’s case did not announce a new law, but clarified the law at the date

Fiore’s conviction became final. Based on that explanation, the

United States Supreme Court ruled that because Scarpone’s case did not create a new law, it did not present an issue of retroactivity; instead, the question was whether Fiore could be convicted for conduct that Pennsylvania’s criminal statute did not prohibit.

Hence, the Court ruled Fiore’s conviction was a violation of due process because failure to possess a permit is a basic element of the crime and Pennsylvania could not prove this element as Fiore had the appropriate permit. Id. at 228—229.

Here however, Flore is inapplicable. Fiore was convicted of a crime where the state could not prove an essential element, i.e., that he did not possess a permit. Conversely, Boyd was found guilty of first degree murder by a unanimous jury; the State proved all required elements. Further, HUrst merely established a procedural change in sentencing. Procedural changes are applicable only to pending prosecutions. This Court recognized the procedural nature of the Change in Jackson V. State, 213 So. 3d ?54 (Fla. 2017).

There, this Court discussed Chapter 2016—13, the predecessor of

Chapter 201?—1, and its increase in the number of jurors necessary

99 to recommend the death penalty, and specifically stated the change was procedural not substantive.

The Florida Supreme Court also noted that, but for requiring a unanimous jury vote, Chapter 20l6~l3 could be applied to pending prosecutions. Evans v. State, 213 So. 3d 856, 3 (Fla. 201?), citing

Perry V. State, 210 So. 3d 630 (Fla. 2016). Therefore, it follows that Chapter 20l?—l, which followed Hurst and is found in the revised §921.141, Fla. Stat. is a procedural change only applicable to pending prosecutions. Further, Article X, §9 of the Florida

Constitution states, “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.” Defendants are not entitled to a new penalty phase every time there is a change in the sentencing statute. See also

Asay V. State, 224 So.3d 695, 703 (Fla. 2017) {rejecting Claim chapter 201?~1, Laws of Florida, “creates a substantive right to a life sentence unless a jury unanimously recommends otherwise”).

The only statute relevant is the statute that existed at the time

Boyd’s conviction and sentence became final.

Moreover, where the jury unanimously recommended death rendering any HUrst error harmless beyond a reasonable doubt, the

Florida Supreme Court has held that there is no due process or

Eighth Amendment violation. See Hall, 43 Fla. L. Weekly Sl?8 at

*5; Philmore v. State, 234 So.3d 567, 568-69 (Fla. 2018)

100 (concluding defendant not entitled to relief on claims of due process and Eighth Amendment violations as the jury made a unanimous recommendation of death which renders any Esrst error harmless beyond a reasonable doubt).

Likewise, the Florida Supreme Court has rejected the notion that the passage of Chapter 2017~l created a substantive right to a resentencing. The fact that the Legislature has enacted a new statute following the dictates of HUrst, does not give a death sentenced defendant whose jury was unanimous a new substantive right. See Lambrix v. State, 227 So.3d 112, 113 (Fla.} {rejecting arguments based on Eighth Amendment, due process, equal protection, and a substantive right based on new legislation), cert. denied, 138 S.Ct. 312 (2017); Hitchcock v. State, 226 So.3d

216 (Fla. 201?); Asay V. State, 210 So.3d l, 22 (Fla. 2016); Asay v. State, 224 So.3d 695, 703 (Fla. 2017) (rejecting claim chapter

2017-1 “creates a substantive right to a life sentence unless a jury unanimously recommends otherwise”); Reynolds V. State, 2018

WL 16330?54 (Fla. Apr. 5, 2018)(rejecting constitutional challenge based on Hurst informed by Caldwell V. Mississippi, 4?2 U.S. 320

(1985)}. Furthermore, the new statute does not apply to Boyd. See

Article X, section 9 of the Florida Constitution and his litigation is a successive collateral attack as under Florida Rule of Criminal

Procedure 3.851 (e)(2).

101 To the extent Boyd relies on Apprendi V. New Jersey, 530 U.S.

466 (2000), it is of no assistance. Apprendi has been held not to be retroactive, Galindez V. State, 955 So.2d 51? (Fla. 200?} and the Florida Supreme Court, under state law has found Harst to be retroactive only to Ring v. Arizona, 536 U.S. 584 {2002).11 See

MOsley v. State, 209 So. 3d 1248, 1274 (Fla. 2016). Even so, it has rejected Boyd’s HUrst claim and this Court is bound by that decision. The Florida Supreme Court has stated “{tlhe decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” Stanfill V. State,

384 So.2d 141, 143 (Fla. 1980). The Fourth District Court of Appeal has recognized this stating: “District Courts of Appeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts ....” State V.

Hayes, 333 So.2dv51, 53 (Fla. 4th DCA 1976) (footnote and citations omitted). See Hoffman V. Jones, 280 So.2d 431 (Fla. 1973)

(reiterating that trial court is bound by Florida Supreme Court

H In Apprendi, the Court left intact Walton v. Arizona, 49? U.S. 639 {1990), and distinguished it from non—capital cases. Apprendi, 530 U.S., at 49?. It was not until Ring that Walton was overruled, thus, there was no recognized constitutional infirmity of capital cases based on Apprendi. Even under the analysis in ﬁbsley V. State, 209 So. 3d 1248, 1274 (Fla. 2016), there was no basis to make Bars: V. Florida retroactive back to Apprendi. 22

102 decisions \\'gust as the District Courts of Appeal follow controlling precedents set by the Florida Supreme Court”); State V. Washington,

114 So. 3d 182, 185 (Fla. 3d DCA 2012) (opining “[w}hile a lower court is free to disagree and to express its disagreement with an appellate court ruling, it is duty~bound to follow it”).

As a final plea, Boyd suggests entitlement to relief under

Rule 3.830(3}, Claiming his sentence is illegal. However, the challenge he raises here does not fall within the definition of a

“illegal sentence,” thus, his reliance on Rule 3.800(a) is misplaced. In Martinez V. State, the Florida Supreme Court held:

.that to be subject to correction under rule 3.800(a) a sentence must be “one that no judge under the entire body of sentencing laws could possibly impose.” Wright V. State, 911 So.2d 81, 83 (Fla. 2005) (citing Carter, ?86 80.2d at 1178). Put another way, “[a] sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal.’" Piott, 148 So.3d at 94 (alteration in original) (quoting State v. Mancino, 714 So.2d 429, 433 (Fla. 1998)).

We have recognized that few claims raised under rule 3.800(3) “come within the illegality contemplated by the rule.” Wright, 911 So.2d at 83. For example, in Wright, we held that a trial court’s failure to provide written reasons for retaining jurisdiction over a defendant’s sentence did not constitute an illegal sentence subject to correction under the rule. Id. at 82. We explained that while the defendant was entitled to challenge this technical sentencing error on direct appeal, he could not do so in a rule 3.800(a) motion because the *992 error was not one involving “a court’s patent lack of authority or jurisdiction, a Violation of the sentencing maximums provided by the Legislature, or a Violation of some other fundamental right resulting in a person’s wrongful imprisonment.” Id. at 84. By comparison, we have held that a sentence that has been 23

103 unconstitutionally enhanced in violation of the double jeopardy clause is illegal and, therefore, may be corrected under rule 3.800(a). Happing v. State, ?08 So.2d 263, 265 (Fla. 1998).

Martinez V; State, 211 So. 3d 989, 991—92 (Fla. 201?). Similarly, in Carter V. State, 786 So.2d 1173 (Fla. 2001), the Florida Supreme

Court defined “illegal sentence” under rule 3.800(a) as follows:

To be illegal within the meaning of rule 3.800(a} the sentence must impose a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. On. the other‘ hand, if it is possible under all the sentencing' statutes~given. a specific set of facts~to impose a particular sentence, then the sentence will not be illegal within rule 3.800(a) even though the judge erred in imposing it.

Id. at 11?8 (quoting Blakley v. State, 746 So.2d 1182, 1186*87

(Fla. 4th DCA 1§99)).

In Hurst V. florida and HUrst, the United States and Florida

Supreme Courts determined Hurst error is subject to harmless error.

The Florida Supreme Court determined. that any Hurst error is harmless beyond.a reasonable doubt where the jury recommended death unanimously and received the standard instructions. Here, the

Florida Supreme Court has rejected Boyd’s HUrst claim. {Exs. A~

C). In Rutherford12 that Court affirmed the dismissai of a

n In Rutherford V. State, 940 SO. 2d 1112, 111? (Fla. 2006):

Rutherford, also filed a Inotion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a}, arguing that his death sentence is unconstitutional in light of the ABA Report. The circuit 24

104 postconviction relief litigant’s Rule 3.800(a) agreeing the rule was not available to a capital defendant because the alleged error was not clear on the face of the record and the trial court had no authority to reconsider the constitutionality of the death penalty. Again, the Florida Supreme Court has rejected Boyd’s

HUrst claim and this Court is bound by that decision. Hence,

Boyd’s death sentence is not one which no judge could impose nor is it one which “fails to comport with statutory or constitutional limitations.” Boyd may not avail himself of Rule 3.800(a). Relief must be denied.

CONCLUSION

Based on the foregoing, this Court should deny summarily the instant successive postconviction motion.

court granted the State's motion to strike, finding that Rutherford’s claim was not properly raised in a motion to correct illegal sentence because the alleged illegality did not appear on the face of the record and the trial court had no authority to reconsider the constitutionality of the death penalty on grounds rejected by this Court and the United States Supreme Court.

105 Respectfully submitted,

PAMELA JO BONDI ATTORNEY GENERAL

_m/S/ Leslie T. Campbell LESLIE T. CAMPBELL Assistant Attorney General Florida Bar No. 0866631 1515 N. Flagler Dr.; Ste. 900 Telephone: (561) 83?—5016 Facsimile: (561) 83?—5108 [email protected] Secondary e—mail: [email protected]

CO-COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been, furnished‘ to Suzanne Meyers Keffer, Esq., at

[email protected], Scott Gavin, Esq. at

[email protected], and Steven Klinger this 11th day of June

2018.

__/S/ Leslie T. Campbell LESLIE T. CAMPBELL Assistant Attorney General

106 EXHIBIT A Filing # 47326569 E-Filed 10f05/2016 04:37:17 PM

IN THE SUPREME COURT OF FLORIDA

CASE NO.

LUCIOUS BOYD,

Petitioner,

JULIE JONES, Secretary Florida Department of Corrections,

Respondent.

PETITION FOR WRIT OF HABEAS CORPUS

NEAL A. DUPREE Capital Collateral Regional Counsel - South

SUZANNE KEFFER Chief Assistant CCRC - South

SCOTT GAVIN CCRC Staff Attorney

Ofﬁce of the Capital Collateral Regional Counsel — South 1 East Broward Blvd, Suite 444 Fort Lauderdale, Florida 33301

108 TABLE OF CONTENTS

TABLE OF CONTENTS ...... ii

TABLE OF AUTHORITIES ...... iii

INTRODUCTION ...... 1

JURISDICTION ...... 2

ARGUMENT ...... 7

MR. BOYD WAS TRIED, CONVICTED, AND SENTENCED TO DEATH UNDER AN UNCONSTITUTIONAL STATUTE AND AS A RESULT HIS DEATH SENTENCE STANDS IN VIOLATION OF THE SIXTH

AMENDMENT ...... 7

A. Hurst V. Florida ...... 7

B. Preservation ...... 1 5

C. Retroactivity ...... 33

CERTIFICATE OF SERVICE ...... 49

109 TABLE OF AUTHORITIES Cases

Almeéda v. Ssafe, 748 So. 2d 922 (Fla. 1999) ...... 10

Anderson v. Sfafe, 267 So. 2d 8 (Fla. 1972) ...... 36, 37

Apprena’i v. New Jersey, 530 U.S. 466 (2000) ...... 15

Arizona v. Fufminafe, 499 U.S. 279 (1991) ...... 14

Baggeff v. Wainwright, 229 So. 2d 239 (Fla. 1969) ...... 3

Baffam’ v. 5.222%, 66 SO. 2d 912 (Fla. 2011) ...... 11

Besaraba v. Sﬁafe, 656 So. 2d 441 (Fla. 1995) ...... 10

B05}? v. Fforida, 136 S. Ct. 790 (2016) ...... 18

80303012 v. Moore, 833 So. 2d 693 (Fla. 2002) ...... 36

Boyd 1). Sfafe, 910 SO. 2d 167 (Fla. 2005) ...... 5

Boyd v. Staz‘e, N0. SC13-1959, 2015 WL 9170916 (Fla. Dec. 17, 2015) ...... 1, 6

Camfkers v. 8:336, 465 So. 2d 496 (Fla. 1985) ...... 11

Chaky v. Sfas‘e, 651 SO. 2d 1169 (Fla. 1995) ...... 10

Clark v. 555238, 609 So. 2d 513 (Fla. 1992) ...... 11

DeAngeZo v. Siaé‘e, 616 So. 2d 440 (Fla. 1993) ...... 11

Defap v. Dagger, 513 So. 2d 659 (Fla. 1987) ...... 39

Demps v. Dagger, 514 So. 2d 1092 (Fla. 1987) ...... 39

Downs 12. Daggeg, 514 So. 2d 1069 (Fla. 1987) ...... 30, 39

iii

110 Dues: V. 556258, 855 So. 2d 33 (Fla. 2003) ...... 12

Durousseaa v. Siam (Case No. SC15-1276) ...... 17

Espinosa v. Ffors'da, 505 U.S. 1079 (1992) ...... 31

Father; v. Siafe, 162 So. 3d 954, 962 (Fla. 2015) ...... 40

Ford v. Wainwréghi, 477 U.S. 399 (1986) ...... 17

Furman v. Georgia, 408 U.S. 238 (1972) ...... 35, 36

Gideon v. Was‘nwrigki, 373 U.S. 335 (1963) ...... 33, 34

Green 1:. Sfaz‘e, 975 So. 2d 1081 (Fla. 2008) ...... 10

Hardy v. Sfafe, 716 SO. 2d 761 (Fla. 1998) ...... 11

Hitchcock v. Dagger, 481 U.S. 393 (1987) ...... 19, 38

Hodges v. Sfaie, 55 SO. 3d 515 (Fla. 2010) ...... 18

Hurst V. Fioria’a, 135 S. Ct. 1531 (March 9, 2015) ...... 1

Hum: 12. Ffarida, 136 S. Ct. 616 (2016) ...... passim

Johnson v. Sfas‘e, 904 So. 2d 400 (Fla. 2005) ...... 18, 19, 25, 27

Johnson v. Siege, Case N0. N0. SC03-1042, 2004 WL 369129 (Fla. Jan. 2004).. 24,

Jones v. Siam, 526 U.S. 227 (1999) ...... 29

Jones v. 82338, 705 So. 2d 1364 (Fla. 1998) ...... 11

Jones v. Sfafe, 963 So. 2d 180 (Fla. 2007) ...... 11

Jordan v. Siaz‘e, 176 So. 3d 920 (Fla. 2015) ...... 18

111 Jorgenson v. 55039, 714 So. 2d 423 (Fla. 1998) ...... 10

Knowfes I). 532239, 632 So. 2d 62 (Fla. 1993) ...... 10

Lambrix v. Jones, Case No. SC16—56 (Fla. Jan. 15, 2016) ...... 22, 27

Lambrix V. State, Case No. SC16-8 (Fla. Jan. 15, 2016) ...... 26

Lloyd v. 8:336, 524 SO. 2d 396 (Fla. 1988) ...... 10

Locke??? v. Ohs'o, 438 U.S. 586 (1978) ...... 19

Marts}: v. 535358, 107 So. 3d 281 (Fla. 2012) ...... 17

McKénRey v. Siafe, 579 So. 2d 80 (Fla. 1991) ...... 11

Meeks v. Dagger, 576 So. 2d 713 (Fla. 1991) ...... 20, 31

Middfeion v. Smite, 188 So. 3d 731 (Fla. 2015) ...... 18

Miffer v. Afabama, 132 S. Ct. 2455 (2012) ...... 40

Mis‘cheff 12. Moore, 786 So. 2d 521 (Fla. 2001) ...... 35

Neder v. United 5:62:63, 527 U.S. 1 (1999) ...... 14

Niber: v. Stas‘e, 574 So. 2d 1059 (Fla. 1990) ...... 11

Oﬂord v. Sfag‘e, 959 So. 2d 187 (Fla. 2007) ...... 11

Olfve v. Maas, 811 So. 2d 644 (Fla. 2002) ...... 28, 29

Phs'ﬁips v. 535322, Case No. SCI 1-472 (Fla. June 27, 2011) ...... 26

Poniicefif v. Sfas‘e, N0. SCI 1—877; 2011 WL 6100875 *14—15 (Fla. October, 2011)

...... 28

Porfer v. Crosby, 840 So. 2d 981 (Fla. 2003) ...... 18

112 Porfer v. MCCOZZam, 558 U.S. 30 (2009) ...... 26

Preﬁx v. 5.53:6, 510 So. 2d 896 (Fla. 1987) ...... 10

Remberz‘ v. 855236, 445 So. 2d 337 (Fla. 1984) ...... 11

Riley V. Wainwréghs‘, 517 So. 2d 656 (Fla. 1987) ...... 30, 39

Ring v. Arizona, 536 U.S. 584 (2002) ...... 15, 33

Ross 1}. Stafe, 474 So. 2d 1170 (Fla. 1985) ...... 11

Rufkesford 12. Moore, 774 So. 2d 637 (Fla. 2000) ...... 27

Schrz‘ro v. Summem’in, 542 U.S. 348 (2004) ...... 19

Serrano v. Staie (Case Nos. SC15-258, SC15—2005) ...... 17

Sincfair v. Sfaz‘e, 657 So. 2d 1138 (Fla. 1995) ...... 11

Smaffey v. Sfas‘e, 546 So. 2d 720 (Fla. 1989) ...... 1 1

Smiik 12. 8mm, 400 So. 2d 956 (Fla. 1981) ...... 3

Sanger V. 85358, 544 So. 2d 1010 (Fla. 1989) ...... 11

State v. Finney, Case No. 91~1611 (Fla. Cir. Ct. Hillsborough Cty. Jan. 15, 2015)

...... 25

State v. Finney, Case No. 91—1611 (Fla. Cir. Ct. Hillsborough Cty. January 5,

2015) ...... 25

Staie v. Hayward, Case No. 562005—CF00463A (Fla. Cir. Ct. Saint Lucie Cty. June

6, 2016) ...... 23

113 Stafe 12. Johnson: Case No. 562001’CF000793A (Fla. Cir. Ct. Saint Lucie Cty. June

6, 2016) ...... 23

State v. Kearseg Case No. 91-136 CF (Fla. Cir. Ct. Saint Lucie Cty. June 6, 2016)

...... 22

Stafe v. Reaves, Case No. 86-729—CF (Fla. Cir. Ct. Indian River Cty. June 6, 2016)

...... 23

Stréckland V. Washington, 466 U.S. 668 (1984) ...... 33

Thompson v. Dagger, 515 So. 2d 173 (Fla. 1987) ...... 19, 39

Thampson v. Sfafe, 647 So. 2d 824 (Fla. 1994) ...... 11

Wkife v. Sms‘e, 616 So. 2d 21 (Fla. 1993) ...... 10

WiZZiams v. Ss‘aie, 37 So. 3d 187 (Fla. 2010) ...... 11

WifZiams v. Sfate, 707 So. 2d 683 (Fla. 1998) ...... 11

Wilson v. Wainwrighf, 474 So. 2d 1162 (Fla. 1985) ...... 3

Woods 12. 535338, 733 So. 2d 980 (Fla. 1999) ...... 10

Woodson v. N. Carolina, 428 U.S. 280 (1976) ...... 17

Yacob v. 532232, 136 So. 3d 539 (Fla. 2014) ...... 11

Statutes

28 U.S.C. § 2244(d)(1) ...... 2

Fla. Stat. § 921.141 ...... 7, 8

Florida Statutes § 27.711(1)(c) ...... 28

vii

114 Florida Statutes § 27.711(9) ...... 27

Other Authorities

Robert A. Burt, Disorder in the Court: The Death Penalty and She Conss‘émz‘iorz, 85

Mich. L. R€V. 1741, 1758 (1987) ...... 36 Rules

Fla. R. App. P. 9.030(a)(3) ...... 2

Fla. R. App. P. 9.100 ...... 2

Rule 3.851 ...... 16, 23, 26

Rule 4—3.1 of the Ruies Regulating the Florida Bar ...... 29

Constitutional Provisions

Fla. Const. Art. I, See. 13 ...... 2

Fla. Const. Art. V, See. 3(b)(9) ...... 2

viii

115 INTRODUCTION

Mr. Boyd ﬁled his initial brief on appeal from denial of his initial postconviction motion on October 16, 2013. This Court then heard oral argument on

his appeal on June 4, 2014. Following oral argument this Court issued its opinion afﬁrming the circuit court’s denial of postconviction relief on December 17, 2015.

Boyd v. Sfafe, N0. SC13—1959, 2015 WL 9170916 (Fla. Dec. 17, 2015). Thereafter

Mr. Boyd ﬁled a Motion for Rehearing on December 31, 2015.

During the pendency of his appeal before this Court, the United States

Supreme Court granted certiorari review in Hurst v. Florida, 135 S. Ct. 1531 (March

9, 2015). On January 12, 2016, the United States Supreme Court issued its opinion in Ham: v. Fforida, 136 S. Ct. 616, 619 (2016) ﬁnding Florida’s capital sentencing

scheme unconstitutional. As a result of the Hurst decision, and its impact on Mr.

Boyd’s sentence, Mr. Boyd ﬁled a motion requesting permission to submit

supplemental brieﬁng as it related to the impact Hurst had on his claims before the

Court. This Court granted Mr. Boyd’s motion and Mr. Boyd submitted supplemental brieﬁng on the Hum: issue.

On October 5, 2016, this Court denied Mr. Boyd’s Motion for Rehearing

“without prejudice to file any Hurst claims in a separate petition for writ of habeas corpus.” Due to the necessity of preserving the time to file a federal habeas petition, see 28 U.S.C. § 2244, Mr. Boyd now timely files this authorized state habeas

116 petition.I Mr. Boyd expeditiously does so now under the exigencies of a hun‘icane warning that has been issued for Broward County, Florida2 and as a result of the uncertainty of the aﬁermath of the storm and how that may impact Mr. Boyd’s counsel’s abilities to do so in the coming days.

A writ of habeas corpus isW an original proceeding in this Court governed by

Florida Rule of Appellate Procedure 9.100. This Court has original jurisdiction under Florida Rule of Appellate Procedure 9.030(a)(3) and Article V, Section

3(1))(9), Florida Constitution. The Constitution of the State of Florida guarantees that

"[t]he writ of habeas corpus shall be grantable of right, freely and without cost."

Article 1, Section 13, Florida Constitution. This petition presmts issues which directly concern the constitutionality of Mr. Boyd's convictions and sentence of death.

1 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one—year statute of limitations for ﬁling a federal habeas petition. 28

U.S.C. § 2244(d)(1). This one—year limitations period is tolled while a “properly ﬁled” application for state postconviction relief is pending in state court. Id. § 2244(d)(2).

2 See hm):ffwwwnhcnoaagov/refresh/graphics at4+shtmif153139.5htmi?5— dagfiéicoments. Mr. Boyd received the Court’s order at 10:52 a.m. today. Both the office of the Capital Collateral Regional Counsel-South and the Broward County Courthouse officially closed at 12:00 pm. as a result of the hurricane warning that has been issued.

117 Jurisdiction in this action lies in this Court, see e. g. Sms's‘h v. Sias‘e, 400 So. 2d

956, 960 (Fla. 1981), because the fundamental constitutional errors challenged herein arise in the context of a capital case in which this Court heard and denied Mr.

Boyd‘s direct appeal. See Wilson v. Wainwright, 474 So. 2d 1162: 1163 (Fla. 1985);

Bagget: v. Wainwright, 229 So. 2d 239, 243 (Fla. 1969). The Court‘s exercise of its

habeas corpus jurisdiction, and of its authority to correct constitutional errors is warranted in this case.

REQUEST FOR ORAL ARGUMENT

Due to the seriousness of the issues, Mr. Boyd requests the opportunity to

present oral argument as to his entitlement to relief under Hurs: v. Fiors'da.

118 STATEMENT OF THE CASE AND FACTS

The Circuit Court for the Seventeenth Judicial Circuit, in and for Broward

County, Florida entered the judgments of convictions and death sentence currently at issue. Mr. Boyd was charged and indicted for ﬁrst degree murder, armed kidnapping, and sexual battery. His trial took place on January 27-30, 2002. On

January 30, 2002 the jury found Mr. Boyd guilty of ﬁrst degree murder, sexual battery, and armed kidnapping. (R. 461-63). The penalty phase took place on March

11, 2062 and the jury returned a recommendation for death by a vote of 12-0. (R.

499-506).

Prior to the start of trial during voir dire the jury was improperly instructed by the trial court that the ﬁnal decision regarding the sentence rested with the judge and not the jurors. (R. 177, 180). During the course of the penalty phase both the State and the court instructed the jurors that its role was merely advisory and that the ﬁnal responsibility for determining whether Mr. Boyd would receive the death penalty rested with the trial judge. (R. 39, 177, 180, 181, 2371-72, 2375; Supp. R. 430—31).

Following closing arguments, the Court instructed the jury that it was to consider the following aggravating circumstances: 1) the homicide occurred while Mr. Boyd was engaged in the commission of, or an attempt to commit, the crime of sexual battery andfor kidnapping; 2) the crime was especially heinous, atrecious, 0r cruel. (R.

2372). N0 instruction was provided, however, regarding the issue of Whether the

119 contemporaneous convictions for kidnapping and/0r sexuai battery could be considered as prior Violent felony aggravators. The jury was merely provided with instruction regarding the “during the course of a felony aggravator.” The court then further instructed the jury that “should you ﬁnd sufﬁcient aggravating circumstances

do exist, it will then be your duty to determine whether mitigating Circumstances exist that outweigh the aggravating circumstances.” (R. 23 72).

The Circuit court sentenced Mr. Boyd to death on June 21, 2002. (R. 537—555).

The court found that two statutory aggravators outweighed one statutory mitigator

and ﬁve non—statutory mitigators. (R. 537-555). The court also imposed a life sentence for the armed kidnapping charge and ﬁfteen years for sexual battery. (Id).

On direct appeal this Court afﬁrmed Mr. Boyd’s conviction and death

sentence. Boyd v. Skate, 910 So. 2d 167 (Fla. 2005). Thereafter: the mandate issued on September 9, 2005. Mr. Boyd then ﬁled a Petition for Certiorari in the United

States Supreme Court was which denied on February 21, 2006.

Following this Court’s afﬁrrnance, Mr. Boyd ﬁled his initial Motion to Vacate

Judgment of Convictions and Sentences With Special Request for Leave to Amend in the Circuit Court for the Seventeenth Judicial Circuit on February 14, 2007 (PC-

R. 328-403). On May 29, 2009, after extensive public records litigation, Mr. Boyd

ﬁled his ﬁrst amendment to his Motion to Vacate Judgment of Convictions and

120 Sentences With Special Request for Leave to Amend (PC-R. 1257—1457), amending

Claims 111B and C, claim V, and claim IX and adding claims X and XI.

On March 23, 2012, Mr. Boyd ﬁled a second amendment to his Motion to

Vacate Judgment of Convictions and Sentences With Special Request for Leave to

Amend, amending claim XI. (PC-R. 2549—25 87).

The circuit court conducted a Case Management Conference on June 5, 2012

(PC-R. 5439—5527) and subsequently entered an order granting an evidentiary hearing on several of Mr. Boyd’s claims.

Following the evidentiary hearing, the circuit court denied Mr. Boyd’s Motion for Postconviction Relief on January 2, 2013 (PC—R. 43 236-4446). After a timely appeal, this Court afﬁrmed on December 17, 2015. Boyd v. S:a£e, N0. SCH-1959,

2015 WL 9170916 (Fla. Dec. 17, 2015). Motion for Rehearing was denied on

October 5, 2016, without prejudice for Mr. Boyd to ﬁle the instant petition for writ of habeas corpus.

121 ARGUMENT

MR. BOYD WAS TRIED, CONVICTED, AND SENTENCED TO DEATH UNDER AN UNCONSTITUTIONAL STATUTE AND AS A RESULT HIS DEATH SENTENCE STANDS IN VIOLATION OF THE SIXTH AMENDMENT

A. Hurst V. Florida

In Bars: v. Fforida, 136 S. Ct. 616 (2016) the United States Supreme Court found that F Iorida’s capital sentencing scheme violated the Sixth Amendment and in doing so, stated “[W]e hold this sentencing scheme unconstitutional” Id. at 619.

The Court ruled that the Sixth Amendment requires a jury, not a judge, to ﬁnd each

fact necessary to impose a sentence of death. Id. The Supreme Court made it clear

that a jury’s mere recommendation is not enough. Id.

The Hum: opinion noted the “central and singular role” that the judge plays under Florida law. Id. at 622. The Court referenced the fact that the Florida sentencing statute did not make a defendant eligible for death until ﬁndings by the court that a defendant shall be punished by death. 1d,; citing Fla. Stat. § 775.082(1).

In rejecting Florida’s sentencing scheme the Court ﬁthher noted:

“The trial court alone must find “the facts...[t]hat sufficient aggravating circumstances exist” and “What there are insufficient mitigating circumstances to

outweigh the aggravating Circumstances.” § 921.1418). “[T]he jury’s function under the Florida death penalty statute is advisory only.” The State cannot now treat the advisory recommendation by the jury as the necessary factual ﬁnding that Ring requires.”

122 Id.

Under Florida’s now unconstitutional statute, in order to authorize a death

sentence two statutoriiy defined facts must be found: 1) the existence of “sufficient aggravating Circumstances” and 2) the absence of “sufficient mitigating circumstances to outweigh the aggravating circumstances.” See § 921.1418). It is these two statutorily defined facts that constitute elements of capital first degree

murder in Florida. Following Hurst, Florida’s death sentencing scheme is

unconstitutional and violates the Sixth Amendment because of the fact that it does not require a jury to return a verdict ﬁnding that these two statutorily deﬁned facts have been proven beyond a reasonable doubt. Hurst, 136 S. Ct. at 619.

Under Florida law at the time of Mr. Boyd’s sentencing, “the maximum sentence a capital felon may receive on the basis of the conviction alone is life imprisonment.” Hurss‘, 136 S. Ct. at 619. (citing Florida Statutes § 7750820)).

Additionai findings of fact must be made before death is available as a maximum sentence. See § 775.0820). The Florida Legislature, and new Ham‘s; stated What those findings are quite plainly. Section 921.141(3), relevantly entitled “[fjindings in support of sentence of death,” provides that the judge, before imposing a death sentence, must first find that “sufficient aggravating circumstances exist,” and then

find that there are “insufficient mitigating circumstances to outweigh the aggravating circumstances.” These are the critical findings that the Sixth Amendment requires juries to make.

123 Hewaverg in the wake of Ring, the State argued that Ring merely required the

ﬁnding of a singie aggravator to render a capital defendant in Florida death eligible.

This argument arose from the fact that Ring involved Arizona law, which provided

“a ‘death that sentence may not legally be imposed . . . unless at least one aggravating factor is found to exist beyond a reasonable doubt.’” Ring, 536 U.S. at 597 (citing

the Arizona law). But nowhere in Florida’s statute was it written that the mere

finding of the presence of a single aggravating circumstance alone is a sufficient basis to justify the imposition of the greater punishment—a death sentence. A death sentence couid not be imposed unless and until a judge found sufficient aggravating circumstances not outweighed by mitigating circumstances. Sufficiency is What

Florida juries were instructed. Suficiency was what judges were required to independently find. Sufliciency was the element of capital first degree murder under

Florida’s capital sentencing scheme.

Apprendi, Ring, and Hurst hold that the fact or facts necessary to render a capital defendant death eligible must be made by a jury. “If a State makes an increase

in a defendant’s authorized punishment contingent on the finding of a fact, that fact—~n0 matter how the State labels it—must be found by a jury beyond a reasonable doubt.” Id. at 602. Florida’s statute required a finding that sufficient aggravating circumstances exist to justify a sentence of death.

124 The fact that sufﬁcient aggravating circumstances , must be found under

Florida law to render a capital defendant death eligible has at least two important consequences in assessing Hurst’s scope and impact in Florida and on Mr. Boyd's case: (1) a ﬁnding of the felony murder aggravator does not cure Burs: error, and

(2) the prior Violent felony does not cure Hurst error. Before a death sentence can be impesed there must be a finding that those circumstances if present are sufficient in a given case to justify a death sentence. It cannot be said that Mr. Boyd’s jury made any finding that “sufficient aggravating circumstances exist” and that “there are insufficient mitigating circumstances to outweigh the aggravating circumstances” simply because he was convicted of the contemporaneous felonies.

Evidencing this are the numerous cases where this Court has found single aggravating circumstances to be insufﬁcient to support a death sentence during proportionality review. See, e.g., Chaky v. State, 651 So. 2d 1169 (Fla. 1995) (prior conviction); Whéfe v. State, 616 So. 2d 21 (Fla. 1993) (prior conviction); Jorgenson

v. Szate, 714 So. 2d 423 (Fla. 1998) (prior conviction); Woods 12. Sfaz‘e, 733 So. 2d

980 (Fla. 1999) (prior conviction); Knowles v. State, 632 So. 2d 62 (F 1a. 1993) (prior conviction); Besaraba v. State, 656 So. 2d 441 (Fla. 1995) (prior conviction);

Almeida v. Sfaz‘e, 748 So. 2d 922 (Fla. 1999) (prior conviction); Green 12. 836236, 975

So. 2d 1081 (Fla. 2008) (prior conviction); Profﬁtt v. State, 510 So. 2d 896 (Fla.

1987) (felony murder); Lloyd v. State, 524 So. 2d 396 (Fla. 1988) (felony murder);

125 McKinney v. Sfaz‘e, 579 So. 2d 80 (Fla. 1991) (felony murder); Sincfair v. Staie, 657

So. 2d 1138 (Fla. 1995) (felony murder); Thompson v. State, 647 So. 2d 824 (Fla.

1994) (felony murder); Rembert v. State, 445 So. 2d 337 (Fla. 1984) (felony murder);

Carmhers 12. 535558, 465 So. 2d 496 (Fla. 1985) (felony murder); Menendez v. Siate,

419 So. 2d 312 (Fla. 1982) (felony murder); Yacob v. State, 136 So. 3d 539 (Fla.

2014) (felony murder and pecuniary gain merged); Jones v. Staie, 705 So. 2d 1364

(Fla. 1998) (feIony murder and pecuniary gain merged); Jones v. Sfate, 963 So. 2d

180 (Fla. 2007) (felony murder and pecuniary gain merged); Sanger 12. Sfazeﬁ 544

So. 2d 1010 (Fla. 1989) (under sentence); DeAngelo v. State, 616 So. 2d 440 (Fla.

1993) (CCP); Balfard v. State, 66 So. 2d 912 (Fla. 2011) (CCP); Kickoc v. Siafe, 5 89

So. 2d 219 (Fla. 1991) (CCP); Oﬂord v. State, 959 So. 2d 187 (Fla. 2007) (HAC);

SmaZZey v. Siafe, 546 So. 2d 720 (Fla. 1989) (HAC); Ross v. Sfafeg 474 So. 2d 1170

(Fla. 1985) (HAC); Nibert v. State, 574 So. 2d 1059 (Fla. 1990) (HAC); Wifls‘ams v.

State, 707 So. 2d 683 (Fla. 1998) (pecuniary gain); Clark v. Siam, 609 So. 2d 513

(Fla. 1992) (pecuniary gain); Williams v. State, 37 So. 3d 187 (Fla. 2010) (avoid

arrest); Hardy 1;. State, 716 So. 2d 761 (Fla. 1998) (Victim was law enforcement).

Notably, many of these decisions involve the felony murder aggravator andﬁor the prior Violent felony aggravator.

Furthermore, not all prior Violent felonies are equal. The sufﬁciency funding

required by the statute means that there must be a case speciﬁc assessment of the

126 facts ofthe prior crime of Violence and a determination as to Whether the facts ofthe prior crime of Violence in conjunction with the factual basis for any other aggravating circumstance present in the case are sufﬁcient to justify the imposition of death sentence. Moreover, any argument in Mr. Boyd’s case that his cenvictions of arméd kidnapping and sexual assault cure any Hurst error because they render him eligible for the death penalty under the prior Violent felony aggravator is simply wrong and misplaced. Mr. Boyd’s jury was never actually instructed that the contemporaneous éonvictions could be considered as prior Violent felony aggravators. Mr. Boyd’s jury was only instructed on the ‘during the course of a felony’ aggravator, not the prior Violent felony aggravator instruction.

Without an instruction on the prior Violent felony aggravator, there is no way the jury could have made the necessary fact ﬁndings that the crimes were in fact

Violent. The crimes themselves, as deﬁned under Florida law, certainly did not contain statutory deﬁnitions as crimes of Violence. As such, under the Sixth

Amendmént the jury was required to reach a factual determination that they did indeed constitute crimes of Violence. The problems that arise in such circumstances has previously been encountered by this Court in Duest v. Staie, 8515 SO. 2d 33, 55

(Fla. 2003). There, Justice Anstead noted that “other than a conviction of a capital

felony, the trial judge must ﬁnd that a felony conviction involved the, use or threat

of violence before [the prior Violent felony] aggravating circumstance is proven.”

127 Id. In light of the Supreme Court’s holding in Hurst, it is now dear that this ﬁnding must be made by ajury, not the judge. As this did not occur in Mr. Boyd’s case, any reliance upon the contemporaneous felony convictions does not cure the Hears: error present in his sentencing.

The jury’s unanimous 12-0 jury recommendation is also unavailing for purposes of curing the Hurst error present in this case. As noted supra, the jury was repeatedly misinformed by both the State and the trial court as to its role and its responsibility ﬁzithin the sentencing process. (R. 39, 177, 180, 181, 2371—72, 2375;

Supp. R. 430-31). The fact that they were repeatedly instructed that their role was

“merely advisory? that they were to merely render a “recommendation,” and that their “recommendation” was not something to which the trial court was bound to defer, impermissibly diluted both their role and their responsibiiity in the fact ﬁnding process for purposes of rendering a death sentence. In light of this fact, the unanimity of the jury’s 12—0 vote does nothing to alter or cure the fact of the Burs: error Where the trial court and the state unconstitutionally replaced their role in that process. All

that can be known for certain about the result of Mr. Boyd’s jury deliberations is

What the jury indicated on the record: “[a] majority of the jury, by a vote of 12—0,

advise and recommend to the court that it impose the death penalty upon Lucious

Boyd for the murder of [D.D.].” (R. 2388—89). Following Hursz‘, that is not enough for purposes of the Sixth Amendment Where the Supreme Court held that “the Sixth

128 Amendment requires a jury, not a judge, to ﬁnd each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” Harst, 136 S. Ct. at 619. As the Supreme Court made clear, the State cannot now treat the advisory recommendation by the jury as the necessary ﬁnding that Ring requires. Id. at 622.

While the Supreme Court noted the issue of harmless error in erst, it did not resolve its applicability. Instead, the Supreme Court deferred to the established practice of permitting state courts to deﬁne harmlessness. Hursi, 136 S. Ct at 624.

(F inaliy, we do not reach the State’s assertion that any error was harmless. This

Court normally leaves it to state courts to consider Whether an error is harmless, and we see no reason to depart from that pattern here.) (citations Omitted). While the

Supreme Court cited to Neder v. United States, 527 U.S. 1 (1999) in which the Court had determined the failure to instruct on an uncontested element in that case was

harmless, that citation did not constitute a determination that Ham: error is subject to harmless error analysis. The Court’s only purpose in addressing the State’s assertion of harmless error was to decline to address it in any way. Nothing in Hurst requires or endorses a harmless error analysis. The Hurst error present in Mr. Boyd’s case is structural error not subject to any harmless error analysis. Cf Arizona v.

Fufminafe, 499 U.S. 279, 309-10 (1991).

Further, it cannot be fully known how counsel’s trial preparation and penalty phase strategies were impacted by the capital sentencing scheme. If such an analysis

129 is undertaken, Defendant must be permitted to call witnesses to explore the myriad

ways that the decision in Hurst would fundamentally change so many aspects Of a

capital trial. Where counsel’s actions or inaction is premised upon misinformation

as to the factual issues the Sixth Amendment required the jury to determine, due process is violated. The lack of notice as to this fact necessarily impacted counsel’s

strategic decisions in how to conduct voir dire, exercise peremptory challenges, the presentation of the defense theory, and the jury instructions utilized at sentencing.

B. Preservation

During the course of the litigation of Mr. Boyd’s case it has. been the law of this Court-pronounced repeatedly throughout the years~that there were no such thing as Ring-based claims for relief in Florida. At no time throughout the litigation of

Mr. Boyd’s case has it been raised by the State, or otherwise, that Mr. Boyd was required to somehow preserve a Hurst claim through the ﬁling of a claim pursuant

to Ring v. Arizona, 536 U.S. 584 (2002).3

This Court had rejected the Viability of Florida Ring claims at least 46 times

333mg 12. Arizona, 536 U.S. 5 84 (2002), applied to Arizona’s death penalty scheme the eligibility rule of Apprendi v. New Jersey, 530 U.S. 466 (2800), While Hum: extended that rule to include “each fact necessary to impose a sentence of ” deat under Florida’s differing statutory scheme. Hurst, 136 S. Ct. at 619. As explained below, Ring and Hurst are different cases, concerning different statutory schemes, applying Sixth Amendment principles in different ways. A Réng claim in Florida and a Harm: claim are not the same thing and cannot be treated as interchangeable.

130 before Mr. Boyd’s direct appeal brief was ﬁled on January 16, 2004, at least 105 more times before the ﬁling of Mr. Boyd’s Rule 3.851 motion on February 14, 2007, and at least 157 more times thereafter.4 Given these hundreds of cases, neither of the parties in this matter saw preservation as a relevant issue in need of even cursory mention. There was nothing to preserve. And any decision earthshattering enough to overturn these hundreds of cases would necessarily be a watershed change in Sixth

Amendment law subject to the retroactivity requirements of Wis: v. 855336, 387 So. 2d

922 (Fla. 1980), Without any thought to preservation. Mr. Boyd relied on a rule of this Court reaffirmed hundreds of times, and it would be wrong to fault him now for not having filed a claim flouting this Court’s repeated declarations of the laws This

Court should not punish defendants for obeying its law, or reward defendants for

contrawning it.

Yet, in recent Hurst—related oral arguments, such as Serrano 12. Same (Case

4 These figures do not represent the number of defendants entitled to Ring relief. This Court has denied Ring claims for various procedural and substantive reasons, and ofien more than once in the same case. These figures merely reflect the multitude 0f times that this Court rejected claims under Ring on some basis, each time indicating to Florida’s capital defendants who came later that there was no such thing as Ring relief in Florida. 5 This sentiment was recently echoed by Justice Canady in Hat? v. Ffors‘da by averting “it is doubly inappropriate to fault the state to rebut evidence when that evidence only requires rebuttal because the law has subsequently changed.” Justice Canady further noted, “[t]his court should not penalize the State for failing in 2009 to anticipate the ruling the [United States] Supreme Court would hand down in 2014.” (Case NO.:SCIO—1335).

131 Nos. SCH-258, SC15-2005) on June 8 and Durousseau v. Sfaie (Case N0. SC15-

1276) on June 9, James v. State, 615 So. 2d 668 (1983) and the question of

preservation of a Harst claim through the raising of a Ring claim seem to have

become a central feature of this Court’s consideration of Hursz‘.

Mr. Boyd is one of numerous capital defendants who relied on this Couﬁ’s

law, governed himself pursuant to this Court’s law, and did not raise a Ring claim.

Reliability is the essence of death penalty law. As “a natural consequence of the

knowledge that execution is the most irremediable and unfathomabie of penalties,”

12. Ford Wainwrighi, 477 U.S. 399, 411 (1986), “[d]eath, in its ﬁnality, differs . . . in

.” the need for reliability . . . Woodson v. N. Carolina, 428 U.S. 280, 305 (1976). If

defendants cannot expect consistency from the law, how can they be expected to

litigate their cases in respect for the law?

As a result of the unequivocal rejection of Ring by this Court and the failure

to provide Ring relief by the United States Supreme Court, there were weighty

reasons for defendants and capital defense attorneys not to raise Ring. First and

foremest, defendants and counsel were simply constrained by the law as it existed at

the time. This Court did not only say repeatedly that there was no such thing as a

Florida Rs‘ng claim, it said repeatedly that it had said so repeatedly: “This Court has

repeatedly held that Florida’s capital sentencing scheme does not Violate the United

States Constitution under Ring,” Martin v. State, 107 So. 3d 281, 322 (Fla. 2012)

132 (emphasis added); “This Court has consistently rejected constitutional challenges under ang to Florida’s capital sentencing law,” Middleton v. 5353323, 188 So. 3d. 731,

760 (Fla. 2015) (emphasis added); “We have ‘repeatedly held that Florida’s capital

,” sentencing scheme does not Violate the United States Constitution under Ring. . .

Jordan v. 522338, 176 So. 3d 920, 937 (Fla. 2015) (emphasis added); “we have repeatedly held that the maximum penalty under the statute is death and have

rejected the other Apprendi arguments . . . Thus, this issue is meritless,” Porfer v.

Crosby, 840 So. 2d 981, 986 (Fla. 2003); “This Court has repeatedly held that Ring does not apply to cases where the prior violent felony, the prior capital felony, or the

under-sentence—of-imprisonment aggravating factor is applicable.” Hodges V. Ssate,

55 So. 3d 515, 540(F1a.2010).

In rejecting Ring, this Court also insisted that “the United States Supreme

Court repeatedly has upheld Florida’s capital sentencing scheme.” Johnson 12. Same,

904 So. 2d 400, 406 (Fla. 2005) (emphasis added). And the United States Supreme

Court did nothing to disabuse this Court of that acknowledgement, declining time after time to consider how Apprendi and Ring would apply in Fiorida, most recently by denying Oscar Ray Bolin’s petition for certiorari and motion for stay of execution just ﬁve days before issuing Hurst. See Bolin v. Florida, 136 S. Ct. 790 (2016). The law against Florida Ring claims had been repeated enough times to have become absolutely concrete in both relevant high courts.

133 As to the majority of death—sentenced inmates whose cases were ﬁnal before

Ring, the United States Supreme Court held that Ring was not retroactive in Schriro v. Sammerién, 542 U.S. 348, 358 (2004), and this Court held on April 28, 2005, in

Johnson v. Sfafe, that even if there was such thing as a Ring ciaim in Florida, “Ring does not apply retroactively.” Id. at 409 (emphasis added). Thus, for so many defendants, there was no reason to raise a Ring claim under Florida law and no

reason to raise it for federal preservation of some speculative future federal relief.

That defendants and defense attorneys can be constrainﬁd by such well- established law is not a novel concept to this Court. Hitchcock v. Dagger, 481 U.S.

393 (1987), presented a similar scenario, and this Court did not hesitate to immediately forgive Whatever claims or efforts were forgone by defendants and attorneys in reliance on this Court’s pre-Hitchcock case law. Any other approach would have been patently unfair. While Lockett v. Ohio, 438 U.S. 586 (1978), had held that statutes cannot limit what evidence can be presented in mitigation,

Hitchcock later clariﬁed that this rule requires juries cannot be instructed in a way that prevents consideration of “evidence of non-statutory mitigating circumstances.”

Hitchcock, 481 U.S. at 399. Hitchcock followed from Lockeff, but it was still something more—a new rule. This Court understood that defendants and their attorneys could not be held responsible for not having raised Lockes‘: claims in anticipation ofofchcock, see Thompson v. Dugger, 515 So. 2d 173, 175 (F 1a. 1987),

134 or for not investigating and pursuing nonstatutory mitigation prior to Hiichcock,

since juries would be instructed not to consider it anyway. See Meeks v. Dagger, 576

So. 2d 713, 716 (Fla. 1991).6 They were “constrained by the then-prevailing

statutory construction” from this Court. Id. Justice Kogan’s concurrence in Meeks v.

Dugger perfectly captures the issue:

. . . some defendants tried in the 19705 have been cast into

a catch-22. . . . [T]hey were forbidden to introduce any mitigating evidence other than that described in the statute. Attorneys, such as the one who represented Meeks in 1975, complied with what then was the law. They did

not attempt to introduce this “unlawful” evidence. . . . As a result, some capital defendants face the denial of rights clearly guaranteed by Lockett and Hitchcockﬂ They potentially are subject to a procedural bar fer

failing to introduce mitigating evidence that, at {116 time,

could not lawfully have been admitted in Florida. . . . In effect, this Court sometimes has held that attorneys who honored the spirit and letter of [this Court’s precedents]—and thus failed to introduce nonstatutory mitigating evidence in the 197OS—~simply waived their

clients’ rights under Lockett and Hitchcock. . . . The

primary, if not exclusive, reason for this omission is that

Meeks’ lawyer was obeying the dictates of the law . . . .

{believe the only fair thing is to require the trial court

to order [a] resentencing . . . .

Meeks, 576 So. 2d at 718—19 (Kogan, J ., concurring).

6 This Court also found that the uncertainty as to how counsel and defendants would have proceeded but for the constraints of the law meant that “[t]he merits of the claims can only be determined by an evidentiary hearing.” Meeks, 576 So. 2d at

“ 7 16.

135 In the sense that defendants and attorneys relied on this Court’s Ring

jurisprudence as they did its Lockett jurisprudence, Hurst is to Ring what Hs'g‘cizcock was to Lockeif. The unfairness is even greater here because, as described below,

Hurst is much more of a watershed change in Florida law than Himkcock. But the analogy is still ﬁtting: just like this Court saw that many defendants and attorneys reasonably feit constrained by this Court’s Lockett jurisprudence from pursuing or raising claims to permit nonstatutory mitigation prior to Hitchcock, this Court must see that many defendants and attorneys reasonably felt constrained by this Court’s

Ring jurisprudence from pursuing or raising claims to require jury factﬁnding of facts necessary to impose death prior to Hurst. Any other conclusion indicates to capital defendants and the legal profession that this Court’s rulings cannot be reiied on, even when piled on by the hundreds.

Further, defendants and defense attorneys might have shied from raising the

Ring issue because it could have the perverse effect of procedurally barring a claim raised later under a change in the law like Hurst. It may seem absurd to be concerned about an outcome so obviously unfair as to surely be impossible. But the State’s

approach to Hum: conﬁrms that it was spot on. This Court should be made aware that the State is currently arguing to circuit courts that a defendant having raised a

Ring ciaim in the past actually means a Hurst claim is now procedurally barred because the ciaim has already been decided (albeit on incorrect and uncenstitutional

136 law), while at the same time arguing to this Court that the failure to raise a Ring

claim in the past means a Hurst claim is now procedurally barred because it is not preserved in the James sense.

In Lambrfx v. Jones, before this Court, the State argues that “in order to be entitled to relief, Lambrix must have preserved his challenge by lodging an objection in the trial court and pursuing that claim on appeal” and that “Mn his motion for post-conviction relief, Lambrix acknowledged that he previously raised a Ring

claim, but did not pursue his Challenge on appeal. . . . This, too, shouid operate to bar his claim in this successive post-conviction proceeding.” State’s Response to

Petition for Writ of Habeas Corpus and Memorandum of Law at 5, Lambrix v. Jones,

Case No. SC16-56 (Fla. Jan. 15, 2016). In the oral arguments in Serrano and

Duroasseau, the State took the position before this Court that the failure to raise a

Ring claim previously means a Hurst claim is now barred. Those arguments were

June 8 and 9. However, earlier that same week, on June 6, the State, in at least three capital cases in circuit court, took the opposite position, arguing that having raised a

Ring claim would not preserve but bar a future Hurst claim. See State’s Supplement

To Response To Defendant’s Successive Motion To Vacate Judgments of

Convictian and Sentence at 7 n.6, State v. Kearse, Case No. 91-136 CF (Fla. Cir. Ct.

Saint Lucie Cty. June 6, 2016) (“As noted in its original response, Kearse raised a

Ring claim, thus, rendering the instant claim procedurally barred. While Hairs? is

137 constitutional in nature, it is not retroactive and cannot revive barred claims and this

Court cannot overrule the Florida Supreme Court”); State’s Supplement To

Response To Defendant’s Successive Motion To Vacate Judgments of Conviction

and Sentence at 7 n.6, State v. Hayward, Case No. 562005—CF00463A (Fla. Cir. Ct.

Saint Lucie Cty. June 6, 2016) (“As noted in its original response, Hayward raised a

Ring claim on direct appeal, thus, rendering the instant claim procedurally barred.

While Hum: is constitutional in nature, it is not retroactive and cannot revive barred claims and this Court cannot overrule the Florida Supreme Court”); State’s

Supplement To Response To Defendant’s Successive Motion To Vacate Judgments of Conviction and Sentence at 2, State v. Johnson, Case No. 562001CF000793A

(Fla. Cir. Ct. Saint Lucie Cty. June 6, 2016) (“The State, on March 14, 2016, ﬁled its response asserting the motion should be dismissed because Johnson had not carried his burden under Florida Rule of Criminal Procedure Rule 3.851(e)(2) and mersly was attempting to re-litigate an issue previously decided adversely to him on direct appeal without showing that intervening case law had been held to retroactively appiy to cases on collateral review”).7 Under the State’s View(s),

? Note that arguing procedural bar for previously raising Ring claims has not prevented the State from also arguing failure to preserve in the same Circuit. See State’s Supplement To Response To Defendant’s Successive Motion To Vacate

Judgments of Conviction and Sentence at 7 11.6, State v. Reaves, Case No. 86—729—

CF (Fla. Cir. Ct. Indian River Cty. June 6, 2016) (“As noted in its original response,

138 capital defendants are procedurally “damned if they do and damned if they don’t.”

Defendants are denied Hurst relief either way, either because they raised Rs'ng or because they did not.

Necessarily from the State’s conﬂicting positions it follows that post-Réng, pre—Harst defendants and defense counsel were correct to anticipate and be concerned about the possibility that if they raised a Ring claim under the terribly bad law of the time they might be said to have precluded the raising of a claim on the same issue once the law was corrected. The fact that the result would be absurdly unfair has been proven to be an insufﬁcient reason to assume the State would not

argue for it.

Another reason defense attorneys might have decided not to raise Ring claims was that the State or circuit court might decry the claims as frivolous, an abuse of

process, and an ethical Violation. In cases like Johnson v. Sfaz‘e, the State argued prior to Burs: that any arguments made for Ring ’3 applicability in Florida were made

in bad faith by defense attorneys. See Answer Brief of Appeﬂee at 21, Johnson v.

Stare, Case N0. N0. SC03-1042, 2004 WL 369129 (Fla. Jan. 2004) (“. . . no good faith argument can be made that Florida’s statute is anything like Arizona’s,

especially in light of this Court’s clear interpretation of Florida law (which is clearly

Reaves raised a Rs'ng claim before this Court, but abandoned the issue on appeal, thus, rendering the instant claim procedurally barred”).

139 not like Arizona law)”). While this Court certainly never went so far as to state that

ﬁling a Ring claim was unethical, there seemed to be an undercurrent of frustration in statements such as “Virtually every postconviction appeal ﬁlsd in this Court Since

Ring invokes that case” and “[w]e repeatedly have denied such requests for clear lack of merit.” Johnson, 904 So. 2d at 406. Beyond Ring, there are numerous examples of instances in which the State and circuit courts have had harsh words and accusations for attorneys who raise claims, whether in initial or successive procesdings, that the State or circuit courts believe have been denied by this Court to an extent that they have become frivolous and repetitive. Indeed, undersigned

counsel recently ﬁled a successive motion in State v. Finney, Case No. 91-161 1 (Fla.

Cir. Ct. Hillsbomugh Cty. January 5, 2015), contemplating the manner in which

Mars‘inez v. Ryan, 132 S. Ct. 1309 (2012), may bear on a right to postconviction counsel in state courts. At the outset, the State asserted “F inney’s motion should be stricken as unautherized and counsel should be cautioned that future frivolous

ﬁlings will not be tolerated.” State’s Response at 10, State v. Finney, Case No. 91-

1611 (Fla. Cir. Ct. Hillsborough Cty. Jan. 15, 2015) (emphasis added). The State’s basis for that request was that “[t]he Florida Supreme Court has repeatedly denied state court relief based on Martinez.” Id. at 17. What if tomorrow the United States

Supreme Court were to extend the principle of Martinez in state courts and preservation were required? The State argued that attorneys who raised Claims

140 alleging that the error found in Porter v. McCoZlum, 5 58 U.S. 30 (2009), also occurred in their clients’ cases were raising Claims “patently frivolous, repetitive

successive.” 12. and See, 8. g. , Answer Brief at 43, Phillips State, Case No. SC} 1—472

(Fla. June 27, 2011) (emphasis added). And as to such claims, circuit courts made accusations of the sort that they were "M0nday—morning—quarterbacking” prior rulings on the claims, which, for one court, was “painfully obvious every time I deal

with one of these.” ROA Volume 2 at 172-74, Phillips v. State, Case No. SCI 1—472

(Fla. April 18, 2011). What if Porter error were found in cases beyond Parser by this Court or the United States Supreme Court? In Lam brix, ths State has argued that raising a claim alleged to have been previously addressed “constitutes a clear abuse

of the process.” See Answer Brief of Appellee at 32-33, Lambréx v. Stas‘e, Case No.

SC16—8 (Fla. J an. 15, 2016) (emphasis added). These cases all involve different

claims, scenarios, and procedural postures, but they reﬂect that it is not uncommon for the State and lower courts to make allegations of unethical conduct in the sort of scenarios that arose in the wake of Ring.

There are also black—letter rules and statutes that a reasonable postconviction defense attorneys might have felt precluded them from raising Ring. Florida Rule of

Criminal Procedure 3.851(d)(2) states that “[n]0 motion shall be ﬁled or considered pursuant to this rule if ﬁled beyond the time limitation provided in subdivision (d)(1)

unless . . . the ﬁmdamental constitutional right asserted . . . has been held to apply

141 retroactiveiy.” This Court held that “Rng does not apply retroactively” in Johnson,

904 So. 2d at 409. Rule 3.851(d)(2) clearly conﬂicts with the obligation to raise and

preserve good faith claims for changes to the law. Yet there it is in the rules. Indeed, defense counsel in Lambrix argues that the Johnson ruling that Ring was not retroactive was the reason counsel did not continue to pursue in this Court the Ring claim initially raised for Mr. Lambrix in 2003. See Petition for Habeas Petition at 15

n.3, Lambrix v. Jones, Case No. SC16—56 (Fla. Jan. 11, 2016). Certainly this is a conclusion defense attorneys might have reasonably reached under the circumstances following Ring and thus not raised under 3.851(d)(2) as successive claims for Clients WhOSC initial proceedings were already complated.8

Similarly, counsel that represented capital collateral defendants on the

Registry during the post-Ring, pre—Hurst period risked being threatened with accusations of unethical behavior pursuant to Florida Statutes § 27.7119), which

8 In fact, for purposes of ineffective assistance claims, this Court has found that direct appeal counsel is not ineffective, or, put another way, is reasonable under the prevailing professional standards, for not raising an issue that mwauld in all probability have been found to be without merit.” Rutherford 12. Moore, 774 So. 2d 637, 643 (Fla. 2000). “[T]he failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.” Id. (adding that “[t]his is generally true as to issues that would have been found to be procedurally barred”).

If it is this Court’s View that not raising a meritless issue is still effective representation, then surely not raising a meritless issue cannot result in the abandonment of constitutional claims for Clients, because abandoning claims cannot be effective representation.

142 stated that “‘This section does not authorize an attorney who represents a capital defendant to ﬁle repetitive or frivolous pleadings that are not supported by law or by the facts 0fthe case.” Olive v. Maas, 811 So. 2d 644, 654 (F 1a. 2002) (emphasis added). Likewise, Florida Statutes § 27.711(1)(C) “explain[ed] that “[p]ostconviction

capital collateral proceedings . . . does not include repetitive or successive collateral challenges to a conviction and sentence of death which is afﬁrmed by the Supreme court and undisturbed by any collateral litigation.” Id. (emphasis added). The State

used these provisions to threaten defense attorneys, such as in Ponzs'cefis' v. Sz‘as‘e. See

Answer Brief at 44, Ponticelli v. State, No. SCI 1-877; 2011 WL 6100875 *14—15

(Fla. October, 2011) (relying on these provisions to argue that “registry counsel was not authorized to ﬁle this patently frivolous, repetitive and successive motion”

(emphasis added». After this Court denied Ring claims repetitively, and evan stated that it had done so repetitively, certainly some attorneys might conclude that they risked their reputation, career, or bar license to continue raising the claim.

Of course, capital postconviction defense attorneys are often called upon to raise claims which the current law is against in some way or which have already been denied by this Court, and counsel does not mean to suggest here that a Ring claim com’d :20: have been raised. Many were. But the State cannet hurl accusations that it is an abuse of process to ﬁle a claim and then later argue that the same claim

shoald have been raised or had to be raised. This Court might correctly note that it

143 has never and would never hold the preservation of a claim for a change in the law against a capital defense attorney,9 but accusations of frivolousness from the State are still serious and should still be considered in determining What sorts of claims should have been preserved in the past.

Where is the line to be drawn for what changes in the law defendants and counsel must anticipate and preserve in advance? If defendants would be held to have raised ng claims pre-Hurst, why not Apprendi claims? Should not a capital defendant have seen that Apprendi would eventually be extended into capital constitutional law? For that matter, why not Jones v. United Sias‘es, ﬁnding in 1999 that a factﬁnding that increased a federal sentence was “an element, not a mere enhancement”? 526 U.S. 227, 239—40 (1999). Surely an attorney might have foreseen that this constitutional rule would eventually be incorporated through the

Fourteenth Amendment to the states and applied to factﬁndings supporting death

sentences. All that can be said is, wherever the line should be drawn that separates

9 For instance, in Olive v. Maas this Court recognized that while “the rules themselves prohibit a lawyer from asserting frivolous or successive claims,” citing Florida Rule of Criminal Procedure 3.850 and Rule 4—3.1 of the Rules Regulating the Florida Bar, claims forwarded for good faith changes in the law “are not claims which would be deemed frivolous, successive 0r repetitive.” See OZéve v. Mags, 811 So. 2d 644, 654 (Fla. 2002). It is despite this ruling that the State later argued in Johnson that there was “no good faith argument” for Ring in Florida. Answer Brief of Appellee at 21, Johnson v. State, Case No. No. SCO3-1042, 2004 WL 369129 (Fla. Jan. 2004).

144 the sort of changes in the law which must be predicted and preserved from those that need not, surely that line must be somewhere shy of the point at which accusations of ethical Violations are commonly thrown about for having raised the claim.

Line—drawing also creates unfairness as to defendants that committed their crime long before ang but were resentenced after Ring and thus had an opportunity to raise a claim that other defendants who committed their crimes at the same time did not. Line-drawing for preservation of Hurst claims is made impossible by the unfaimesses created at each and every potential demarcation.

The impossibility of fair line-drawing evidences that W3? is the proper rule for Hum: claims, not James. James is not meant for situations Where a huge reversal

in law creates great unfairness for past defendants that relied on it. As when after

Hitchcock this Court applied Witt to rule that “[e]ven if the precise issue had been squarely and adequately presented to this Court, Hitchcock would compel us to remand for resentencing.” Riley v. Wainwright, 517 So. 2d 656, 659 (Fla. 1987), the

point of ﬁnding some changes in law sufﬁcient to apply retroactively under Witt is that the changes are so profound that What came before in the case is Wholly superseded. If a Claim under Hitchcock had not been anticipated and raised as a

Lockez‘: claim, or was raised imperfectly, or was raised and abandoned, it did not matter, because the change in law was so profound. This was true when “Hﬁchcock

rejected a prior line of cases issued by this Court,” Downs 12. Dagger, 514 So. 2d

145 1069, 1071 (F 1a. 1987), and it is true now that Hurst has done the same. Under Witt, retroactive is retroactive.

In considering in James whether the constitutional rule announced in

Espinosa v. Fiorida, 505 U.S. 1079 (1992), would apply to cases ﬁnal prior to

Espinosa this Court held that “James . . . objected to . . . and argued on appeal against the constitutionality of the instruction his jury received. Because of this itvwouid not be fair to deprive him of the Espinosa ruling.” James, 615 So. 2d at 669. Wig“: was not applied. While counsel believes James conﬂicts with Wits; is an aberration, and should not be part of Florida law or this Court’s consideration ofHursz, counsel can only attempt to reconcile James with Witt by concluding that some cases, like

Esp§noza, do not rise to the level of Witt consideration for full retroactivity, but nevertheless deserve some partial extension back in time. Hurst is certainly not such a case. Reversing hundreds of cases and decades of well-established precedent demands more than a James analysis. In these circumstances, applying a preservation rule like James would force defendants to choose between procedurally barring preserved claims or failing to preserve non-barred claims, casting them into

Justice Kogan’s “catch—22.” See Meeks, 576 So. 2d at 718 (Kogan, J., concurring).

Further, Hum: created a different rule than Ring, such that raising a Hurst claim pre—Hars: would have been impossible even by raising a Ring claim. Ring applied the Apprendi rule to Arizona’s death penalty scheme} in which the ﬁnding

146 of one aggravator created death-eligibility for Sixth Amendment purposes. Because

Florida’s scheme made the ﬁndings of sufﬁcient aggravators outweighing mitigators factual precursors to death—eligibilitywin the Apprendi sensem—as well as the very

ﬁndings that would constitute the sentencing determination, the statement of the

Sixth Amendment principle in Hurst had the effect of subtly extending the constitutional principle of Apprendi. The statement of the Sixth Amendment principle that would cover Florida’s unique scheme in Hurs: was that each fact necessary to “impose a sentence of death” would have to be found by a jury. Hurst,

136 S. Ct. at 619. In other words, because the ﬁndings that create death—eligibility and actually support a death sentence, in Florida, are and always have been the same thing, the application of Apprendi in Hurst reached the sentencing determination in a way it had not in Ring.

Thus, Ring and Hurst are different cases, concerning different statutory schemes, and creating different rules. So, while Hurst is an extension of Rz‘ng, that

does not mean that Hurst is Ring. Quite the opposite. Because Hairs: is something

more than ﬂag, it cannot be said that a Ring claim and a Hursf claim are interchangeable such that a Hurst claim could be preserved by raising a Ring claim.

10 Apprendi held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” 530 U.S. at 490.

147 Hurss‘ is no more Ring than Strickland is Gideon.11 An expansion of a rule is, by

deﬁnition, not merely the same rule.

Ultimateiy, this Court’s retroactivity analysis in Witt makes no allowance for

a patently unfair resuit under which a precedent applied retroactively because it is a

fundamental change in the law—“by its very nature a huge and sudden shift in the

established thinking and authority-”must have been predicted and prsserved before

it even existed. If Hurst is retroactive under Witt, then there is no room left for a

James approach. And Hurst must be, because it~—if ever there was one—mis a

fundamental change in the law.

C. Retroactivity12

In 1980, this Court formulated a standard for determining retroactivity in its

decision in Wis? v. Stafe, 387 So. 2d 922, 925 (Fla. 1980). There, the Court explained:

The doctrine of ﬁnality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus: society recognizes that a sweeping change of law can so drastically alter the substantive or procedural undeminnings of a ﬁnal conviction and sentence that the

machinery of post~conviction relief is necessary to avoid individual instances of obvious injustice.

11 Surely an attorney might have anticipated that the right to counsel under Gideon v. Wafnwrighz‘, 372 U.S. 335 (1963), could be found to include a requirement of effectiveness, such as that created in Strickland v. Washingfon, 466 U.S. 668 (1984). 12 Mr. Boyd’s sentence and conviction became ﬁnal on the date the mandate issued on September 9, 2005, W611 past the date of the United States Supreme Court

decision in Ring 12. Arizona, 536 U.S. 5 84 (2002) in June 2002.

148 This Court acknowledged that “[u]niquely, capital punishment, on the one hand,

.” connotes special concern for individual fairness . . . Id. at 926. This Court further acknowledged that Florida’s postconviction procedures were developed in response to the decision in Gideon v. Wainwright, 373 U.S. 335 (1963):

[Wk cannot ignore the purpose for our post—conviction relief procedure in cases where a death penalty has been imposed, for Florida's post~conViction relief rule came

about as a narrow response to Gideon v. Wainwrﬁgﬁs‘, 372 U.S. 335, 83 S.Ct. 792 9 L.Ed.2d 799 (1963}. That

decision, it will be recalled, ﬁrst announced that each state must provide counsel to every indigent defendant charged with a felony at all critical stages of the proceeding. The Gideon decision constituted a change of law of such

magnitude that it was applied retroactively in order to remedy the basic constitutional injustice of prior felony trials Without counsel.

Witt, 387 So. 2d at 927 (emphasis added).

This Court then observed that it was not obligated to employ federal retroactivity standards. Id. at 928. (“We start by noting that we are not obligated to

construe our rule concerning post—conviction relief in the same manner as its federal counterpart, at least Where fundamental federal constitutional rights are not involved.

First, the concept of federalism clearly dictates that we retain the authority to determine which “changes of law” will be cognizable under this state’s post—- conviction relief machinery”) (footnote omitted). The Court in Wis: then formulated the analysis to be employed in determining when a change in law would be given retroactive effect by Florida courts: “To summarize, we today hold that an aﬁeged

149 change of law will not be considered in a capital case under Rule 3.850 unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a developmsnt 0f fundamental signiﬁcance. Most law changes of “fundamental signiﬁcance” will fall within the two broad categories described earlier.” Witt, 387 So. 2d at 931.

“[C]0nsiderations of fairness and uniformity make it very difﬁcult to justify

depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases.” Wm, 387 So. 2d at 925

(quotations omitted). Hurst rejects as constitutionally inﬁrm the process under which

Florida defendants are sentenced to death. There is no question but that indistinguishable cases will receive the beneﬁt of Hurst simply because those cases are pending on direct appeal or are pending for a retrial or a resentencing.

The essential principle of Florida’s retroactivity law is that only the very important cases apply retroactively. Only a “sweeping change of law” of

“fundamental signiﬁcance” constituting a ‘jurisprudential upheaval” will qualify.

Mitchelf 12. Moore, 786 So. 2d 521, 529 (Fla. 2001) (brackets Omitted) (citing W321 v.

Stafe, 387 So. 2d 922, 925, 929, 931 (Fla. 1980)). Hurst, perhaps more so than

Virtually any other case, satisﬁes this standard.

Before Hurst, Furman v. Georgia, 408 U.S. 238 (1972) was the paradigmatic

150 13 example. In Fizz/man, the U.S. Supreme Court found that the death penalty “could

not be imposed under sentencing procedures that created a substantial risk that it

would be inﬂicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428

U.S. 153, 188 (1976); see also Furman, 408 U.S. at 239-40. Farina}: was a difﬁcult

decision for the Supreme Court, which “had not been so visibly fragmented since its earliest days,” agreeing only on a “terse per curiam statement announcing the result reached,” and issuing nine separate opinions, four in dissent. Robert A. Burt,

Disorder 3'}: {he COWS: The Death Penalty and the Constitution, 85 Mich. L. Rev.

1741, 1758 (1987). On the basis of Furman, this Court ordered life sentences imposed on all capital defendants who had been under a sentence of death. Anderson v. Sfase, 267 So. 2d 8, 9—10 (Fla. 1972).14 Interestingly, there was no question, no statutory interpretation, no retroactivity analysis, no harmless error analysis, no

13 ’s When Hans: predecessor Ring issued and it appeared that ang ’5 holding wouid do essentially what Hurst’s has now done, Justice Anstead commented that “Ring is clearly the most signiﬁcant death penalty decision of the U.S. Supreme

Court since the decision in F urman v. Georgia,” that “we cannot simply stand mute in the face of such a momentous decision,” and that “[t]he question is Where do we here.” go frem 803030;? v. Moore, 833 So. 2d 693, 703 (Fla. 2002) (Anstead, J ., concurring).

14 In Anderson, this Court explained that after Furman issued, the Attorney General of Florida ﬁled a motion asking that life sentences be imposed in 40 capital cases in which the defendant was under a death sentence. 267 So. 2d at 9 (“The position of the Attomay General is, that under the authority of Barman v. Georgia. 408 U.S. 238 92 S.Ct. 2726 33 L.Ed.2d 346. the death sentence impesed in these cases is illegal.”).

151 recalcitrance, and no attempts to save prior death sentences and still go forward with undeniably unconstitutional executions.

Instead, the Florida Legislature in anticipation of the holding in Farman enacted Florida Statutes § 775.082(2), which provides:

In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the

court, and the court shall sentence such person to life

imprisonment as provided in subsection (1).

This Court read this statute to leave absolutely no discretion for Florida courts when, as in Hurst, the death penalty was found unconstitutional. This Court found that the statute requires “an automatic sentence and a reduction from the sentence previously

imposed,” because “[t]he Court has no discretion.” Anderson v. Sias‘e, 26? So. 2d 8,

9 (F13. 1972). This Court found simply that “[u]nder the circumstances of these particular cases, it is our opinion that we should correct the illega} sentences previously imposed without returning the prisoners to the trial court,” and vacatad the sentences. Id. at 10. Everyone who had received a sentence of death under the capital sentencing scheme declared unconstitutional in Furmcm received the beneﬁt of the decision.

The imposition of life sentences on defendants sentenced under that death penalty scheme found unconstitutional in Furman was, pursuant to § 775.0828) and

152 Anderson} a ministerial, administrative matter. There was no inquiry into retroactivity. There was no argument that harmless error analysis was available when a capital sentencing scheme was declared unconstitutional. There was no discretion to exercise; life sentences were mandated for everyone sentenced to death under an unconstitutional sentencing scheme.

However, if § 775.082(2) is not applied here when the capital sentencing scheme has been held to be unconstitutional and a retroactivity analysis is deemed necessary} Hum: must be found to apply retroactively under Florida law. Hurst,

unlike Furman, directly assessed Florida’s scheme and found it unconstitutional.

Hum?g unlike Furman, did not fragment the Court at all. On the contrary, Harsf was an eight«t0—0ne, resoundingly uniﬁed pronouncement from the Supreme Court that

Florida’s sentencing of capital defendants has long been unconstitutional. In Florida,

Hurs: is just as much a sweeping jurisprudential upheaval of ﬁmdamental signiﬁcance as was Furman.

Besides Farman and Gideon, there are a number of instances of retroactive applicatien of major precedents by this Court which are instructive here. After enunciating the Wit: standard for determining which judicial decisions warranted retroactive application, the Court had occasion to demonstrate the manner in which

the Wis: standard was to be applied in Hitchcock v. Bugger, 481 U.S. 393 (1987). In

Hitchcock, the United States Supreme Court found that the penalty phase jury

153 instructions given in a capital case had violated Lockett v. Ohio as to what jurors must be permitted to consider in mitigation and that Hitchcock’s death sentence

stood in Violation of the Eighth Amendment. Applying the analysis adopted in Witt, this Court ruled that Hitchcock constituted a change in law of fundamental signiﬁcance that could properly be presented in a successor Rule 3.850 motion. Réley

v. Wainwréght, 517 So. 2d 656, 660 (Fla. 1987); Thompson v. Dagger, 515 So. 2d

173, 175 (Fla. 1987); Downs v. Dugger, 514 So. 2d 1069, 1070 (Fla. 1987); Dela}?

v. Dagger, 513 So. 2d 659, 660 (Fla. 1987); Demps v. Dugger, 514 So. 2d 1092 (Fla.

1987).

In Downs, this Court found a postconviction Hitchcock claim could be presented in a successor Rule 3.850 motion because “Hitchcock rejected a prior line of cases issued by this Court.” Downs, 514 So. 2d at 1071. Clearly, Ham: does the same. In Thompson and Downs, this Court acknowledged that fairness dictated that everyone who had raised the Lockett issue and lost because of Florida’s erroneous reading ofLocket: Should be entitled to the same relief afforded to Mr. Hitchcock.

The Apprendi/Ring/Hurst scenario dwarfs Lockez‘z‘XHifchcock. In

Lockem’Hitchcock, at no time was there a determination that Florida’s capital sentencing scheme was unconstitutional. In Lockett/Hitchcock, no U.S. Supreme

Court decision upholding Florida’s capital sentencing scheme was declared overruled by the U.S. Supreme Court, and no legislative ﬁx was required.

154 More recently, in Falcon v. State, 162 So. 3d 954, 962 (Fla. 2015), this Court held that Milfer v. Afabama, 132 S. Ct. 2455 (2012) applied retroactively in Fiorida under Wig. The Court reasoned:

if M3338? is not applied retroactively, it is beyond dispute that some juvenile offenders will spend their entire lives in prison while others with “indistinguishable cases” will serve lesser sentences merely because their convictions and sentences were not ﬁnal when the Miller decision was issued. The patent unfairness of depriving indistinguishable juvenile offenders of their liberty far the rest of their lives, based solely on when their cases were decided: weighs heavily in favor of applying the Supreme Court’s decision in Miller retroactively.

162 So. 3d 954, 962 (Fla. 2015) (citations omitted) (emphasis added). If unfairness implicating a liberty interest demands retroactive application, then so too does unfairness implicating one’s interest in life. If the unfairness of juveniles in

indistinguishable cases receiving different non—capital sentences is too great, then so too is the unfairness of executing some defendants while other defendants with indistinguishable cases will receive the beneﬁt of Hurst and not be put to death.

Mr. Boyd’s death sentences are unconstitutional under Hursz‘, and he is entitled to the beneﬁt of Hurst pursuant to Witt. Mr. Boyd ﬁrst contends that his

death sentence should be vacated and replaced with a life sentence under F 121. Stat §

775.082(2). The effect of Hurst should be the same as the effect of Farina}: v.

Georgia, 408 U.S. 238 (1972).

155 However, Mr. Boyd recognizes that the State’s current position, asserted in

numerous other cases, is that § 775 082(2) does not apply after Hum: because the death penalty has not been declared unconstitutional per se. However, Farina}: held that: the procedures then in place did not comport with the Eighth Am€ndment In

Stafe v. Dixon, 283 So. 2d 1 (Fla. 1973), this Court acknowledged as much, writing,

“[Furman] does not abolish capital punishment” and “Capital punishment is not, per

se, Vioiative of the Censtitution of the United States . . . or of Florida.” Id. at 6-7.

See also Breedlave v. State, 413 So. 2d 1, 9 (Fla. 1982) (“Both the United States

Supreme Court and this Court have found that the death penalty is not per se Violative of either the federal or state constitution”). In F urman, the procedure or scheme for imposing the death penalty rendered Florida’s death penalty unconstitutional under

the Eighth Amendment. When this Court determined that § 775.082(2) applied, it was after Florida’s procedure for imposing death sentences had been found unconstitutional, not the death penalty itself. Accordingly, this Court shouid vacate

Mr. Boyd’s death sentence and direct the trial court to impose a life sentence instead.

Should this Court reject Mr. Boyd’s argument that he shouid recsive life sentences, Chapter 2016-13, Laws of Florida (2016), which amended § 921.141 and became effective on March 7, 2016, would provide the substantive law that would govern at a resentencing, granted that this Court would make a curative

interpretation of the new statute in order to make it constitutional and compliant with

156 15 Hurss‘. The ﬁnal staff analysis of the Criminal Justice Subcommittee accompanying

the legislation explained: “The bill amends Florida’s capital sentencing scheme to

comply with the United States Supreme Court’s ruling” in Hurst. The staff analysis

noted that amendment ofFlorida’s capital sentencing scheme was necessary because

“the United States Supreme Court held Florida’s capital sentencing scheme

unconstitutional.”16

The new § 921.141 contains a new subsection (2) describing the jury’s

function in a capital penalty phase:

(2) Findings and recommended sentence by the jury.— This subsection applies only if the defendant has not waived his or her right to a sentencing proceeding by 3 Jury.

(a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven,

‘5 The necessary interpretation would be to require a jury to find unanimously: 1) whether the State has proven that sufficient aggravating circumstances exist to justify a death sentence, and 2) Whether the State has proven that the sufficient aggravating circumstances outweighed the mitigating circumstances. The provision in Chapter 2016—13 providing for a 10-2 vote by the jury in order to return a death recommendation cannot be read as permitting the requisite factual findings by less than a unanimous vote. Further, this Court would also have to ensure that a

résenteneing jury receive instructions compliant with Cafdweﬂ v. Mfss§sszppi,

properly advising the jury of the binding effect of its factual detérminations.

16 House of Representatives Final Bill Analysis to HB 7101, at 1 (March 17, 2016),httpszﬂwww.ﬂsenate.gov/Session/Bill/ZO16/7101/Analysesz’h71012CRJSP DF.

157 beyond a reasonable doubt, the existence of at least one

aggravating factor set forth in subsection (6).

(b) The jury shall return ﬁndings identifying each aggravating factor found to exist. A ﬁnding that an aggravating factor exists must be unanimous. If the jury:

1. Does not unanimously ﬁnd at least one aggravating factor, the defendant is ineligible for a sentence of death.

2. Unanimously ﬁnds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment Without the possibility of parole or to death. The recommendation shall be based on a weighing of all of the following:

3. Whether sufﬁcient aggravating factors exist.

1). Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.

0. Based on the considerations in sub—subparagraphs a. and

b., Whether the dafendant should b6 sentenced to life imprisonment without the possibility of parole or to death.

(0) If at least 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of death. If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury‘s recommendation to the court shall be a sentence of life imprisonment without the possibility of parole.

Ch. 2016—13.

Subsection (2) requires that the jury unanimously ﬁnd each aggravating factor. However, although the new statute requires the jury to determine Whether

158 “sufﬁcient aggravating factors” exist to support a death sentencemone of the facts

Hum: held was required to be made by a jury—the statute does not require that this

ﬁnding be unanimous. As discussed above, Florida law also requires that this ﬁnding be made unanimously. The same unanimity requirement applies to the jury’s deteimination of “[W]hether aggravating factors exist which outweigh the mitigating circumstances found to exist” and, contrary to subsection (2(0), to the jury’s decision “Whether the defendant should be sentenced to life imprisonment Without the possibility of parole or to death.” This Court must construe the statute in a way to render it constitutional under Hurst.

Contrary to the position the State has taken in various pending cases, the language in subsection (2) that states that if the jury “ﬁnds at least one aggravating factor, the defendant is eligible for a sentence of death” does not mean that the new statute has eliminated the requirements that the jury determine Whether sufﬁcient aggravating factors exist and whether the aggravators are outweighed by mitigators.

On the contrary, those facts are still explicitly set forth in the statute as determinations the jury must make. N0 death sentence can be imposed under any circumstances until the jury has made the sufﬁciency and weighing ﬁndings.

159 The “eligibility“7 sentence may have been the Legislature’s effort to address an Eighth Amendment ﬁJnction of narrowing the class of persons who may be

subjected to the death penalty. If that was the intent, it cannot withstanding scrutiny under the Eighth Amendment. If the statute is construed by this Court as authorizing the imposition of death merely upon the ﬁnding of one of the 16 aggravating circumstances listed in subsection (6) of the statute, the statute violates the Eighth

Amendment. The list of 16 aggravating circumstances includes aggravators that on their own clearly do not sufﬁciently narrow the class of individuals who may be sentenced to death under the Eighth Amendment. See Atkins v. Virginia, 536 U.S.

304, 319 (2002) (“[O]ur jurisprudence has consistently conﬁned the imposition of

the death penaky to a narrow category of the most serious crimes. . . . [T]he culpability of the average murderer is insufﬁcient to justify the most extreme

1? Note that the term eligibility has two different meanings, or usages, relevant to post-Burs: issues in Florida, and it is important to avoid equivocation between them. In the Sixth Amendment context, making a defendant “eligible for the death penalty” refers to the notion that all factﬁndings made necessary by a state statute for the imposition of death have properly been found by a jury. See Bars: 12. Fforida, 136 S. Ct. 616, 622 (2016). Sixth Amendment eligibility is statutory eligibility. As an Eighth Amendment concept, eligibility refers to the notion that “society will inﬂict death upon only a small sample of the eligible criminals,” Furman 12. Georgia,

408 U.S. 238, 300 (1972) (Brennan, J ., concurring), who have committed the “worst of the worst” murders. See Coddington v. State, 254 P.3d 684, 709 (Okla. 2011). Eighth Amendment eligibility is F urman eligibility, honoring “the humane feeling that this most irrevocable of sanctions should be reserved fer a small number of extreme cases.” Gregg v. Georgia, 428 U.S. 153, 182 (1976).

160 sanction available to the State”); Roper v. Simmons, 543 U.S. 551, 568 (2005)

(“Capital punishment must be limited to those offenders who commit ‘a narrow category ofthe most serious crimes’ and whose extreme culpability makes them ‘the most deserving ofexecution.”’); Godfrey v. Georgia, 446 U.S. 420, 427 (1980) (“the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inﬂicted in an arbitrary and capricious manner.”).

Construing Chapter 2016—13 as actually rendering a defendant death eligible on the basis a ﬁnding of one aggravator—which based upon the facts of a given case may not perform the narrowing function required by the Eighth Amendment-would render the capital sentencing scheme unconstitutional under the Eighth Amendment.

Maynard v. Carbwéght, 486 U.S. 356, 362 (1988) (“our cases have insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental canstitutional requirement for sufﬁciently minimizing the risk of

Wholly arbitrary and capricious action”).

In any event, the issue under the Sixth Amendment and under Hum: is What fact or facts must be found to be present before a judge is authorized to impose a death sentence. The Legislature’s labeling is not relevant for Sixth Amendment

purposes. The use of the word “eligibility” in Chapter 2016-13 is not determinative of what is or is not an element that is subject to the Sixth Amendment right to a jury

161 trial. In Ring 12. Arézona, 536 U.S. 584 (2002), the United States Supreme Court held that legislative labels do not govern as to what statutorily deﬁned fact or facts must be fcund by the jury to authorize the imposition of a death sentence:

The dispositive question, we said, “is one not of form, but of effect.” If a State makes an increase in a defendant’s

authorized punishment contingent on the ﬁnding of a fact, that fact~—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.

Ring, 536 U.S. at 602 (citation omitted). In other words, for Sixth Amendment purposes, it is not a question of legislative labeling. What matters is how the statutory

scheme functions; 1.6., which facts must be found before a death sentence can actually be imposed. In Apprena’i v. New Jersey, 530 U.S. 466 (2000), the Supreme

Court explained: “Despite what appears to us the clear ‘elemental’ nature of the factor here, the relevant inquiry is one not of form, but of effect—-does the required

ﬁnding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict?” Apprendi, 530 U.S. at 494.18

Despite the language in Chapter 2016-13 asserting that death eligibility arises from the ﬁnding of just one aggravating circumstance, a death sentence cannot in

‘8 In his concurrence in Apprendi, Justice Scalia wrote: “And the guarantee that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury,’ has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.” Apprendi, 530 U.S. at 498.

162 fact be imposed without a factual determination that “there are sufficient aggravating factors to warrant the death penalty,” and a factual finding that “the aggravating factors outweigh the mitigating circumstances reasonably established by the evidence.” See Fla. Stat. § 921.141(2)(b)(2) (2016). A person cannot be sentenced to death simply based upon the jury finding one aggravating factor.

To comply with the Eighth Amendment and with Bars: and the Sixth

Amendment, the new § 921.141 should be construed as authorizing the imposition of a death sentence only when a jury makes the factual determinations that sufﬁcient aggravating circumstance exist to justify a death sentence and that those aggravating circumstances outweigh the mitigating circumstances. Under Hurss, those facts are elements of the offense of capital ﬁrst degree murder for Sixth Amendment purposes. It is also imperative that when a jury is charged with responsibility of

making the ﬁndings of fact necessary to authorize a death sentence, it must be properly instructed as its role in authorizing the imposition of a death sentence. See

Caidwell 12. Mississippi, 472 U.S. at 341 (“This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its “truly awesome responsibility”).

If this Court rejects Mr. Boyd’s arguments for the imposition of life sentences as a result of the Hmst error, this Court should remand for a resentencing under

163 Chapter 2016—13 as long as it is construed in the fashion set forth herein. The only alternative would be to order a resentencing under the statute declared unconstitutionai in Hurst, with procedural ﬁxes that are compliant with Ham: and

Caldwefi.

WHEREFORE, because Mr. Boyd’s death sentence stands in contravention ofHursi, and the Sixth Amendment, Mr. Boyd respectfully urges this Court to vacate his death sentence and order the imposition of a life sentence, or order a resentencing at which the jury is given Caldwell-compliant instructions and required to unanimously ﬁnd whether the State has proven the facts necessary to authorize the trial judge to impose a daath sentence.

Respectfully submitted,

/s/ Suzanne Keffer SUZANNE KEFFER Florida Bar No. 0150177 Chief Assistant CCRC—South

keffers@ccsr. stateﬁ .113

Capital Collateral Regional Counsel—South

1 East Broward Blvd, Suite 444 Ft. Lauderdale, FL 33301 (954) 713-1284

CERTIFICATE OF SERVICE

164 I HEREBY CERTIFY that a true copy of the foregoing has been furnished to

Leslie Campbell, Assistant Attorney General, 1515 North Flagler Drive, Suite 900,

West Palm Beach, Florida 33401, Via email this 5th day of October, 2016.

/s/ Suzanne Keffer SUZANNE KEFFER Florida Bar No. 0150177 Chief Assistant CCRC-South

1 East Broward Avenue, Suite 444 Fort Lauderdale, FL 33301 (954) 713-1284

165 EXHIBIT B Filing # 49350665 E—Filed 1138/2016 06:03:48 PM

IN THE SUPREME COURT OF FLORIDA

Case No. SC16-1812

LUCIOUS BOYD, Petitioner,

v. STATE OF FLORIDA, Respondent.

ON APPEAL FROM THE CIRCUIT COURT OF THE SEVEN TEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, STATE OF FLORIDA

SUPPLEMENTAL BRIEF OF PETITIONER

SUZANNE MYERS KEFFER Chief Assistant CCRC Florida Bar No. 0150177

SCOTT GAVIN Staff Attorney Florida Bar No. 0858651

CAPITAL COLLATERAL REGIONAL COUNSEL ”SOUTH 1 East Broward Blvd., Suite 444 Fort Lauderdale, Florida 33301 (954) 713-1284

COUNSEL F OR APPELLANT

167 TABLE OF CONTENTS

TABLE OF CONTENTS ...... ii

TABLE OF AUTHORITIES ...... iii

STATEMENT OF THE CASE AND FACTS ...... 1

SUMWRY OF THE ARGUMENT ...... 2

ARGUMENT ...... 3

MR. BOYD WAS TRIED, CONVICTED, AND SENTENCED TO DEATH UNDER AN UNCONSTITUTIONAL STATUTE AND AS A RESULT HIS DEATH SENTENCE STANDS IN VIOLATION OF THE SIXTH AND EIGHTH

AMENDMENTS IN LIGHT OF H URST V. STA TE ...... 3

A. Harmless Error Analysis ...... 3

B. Retroactivity ...... 15

CERTIFICATE OF SERVICE ...... 16

168 TABLE OF AUTHORITIES

Cases

Alvord v. sze, 322 So.2d 533 (Fla. 1975) ...... 12

Atkins v. Vfrginiag 536 U.S. 304 (2002) ...... 15

Boyd v. Szafe, 910 So. 2d 167 (Fla. 2005)...... 8

Boyd v. Sfafe, 200 SO. 3d 685 (Fla. 2015) ...... 1

Brooks v. 532252, 762 So. 2d 879 (Fla. 2000) ...... 4, 11

Caldweﬂ v. Mississippi, 472 U.S. 320 (1985) ...... 9, 10

Combs v. Sfafe, 525 So. 2d 853 (Fla. 1988) ...... 5

Frankiin v. Sfaa‘e, Case No. SC13-1632 (November 23, 2016) ...... 6

Gregg v. Georgia, 428 U.S. 153 (1976) ...... 12

Henyard v. Sfafe, 689 So. 2d 239 (Fla. 1996) ...... 12

Hurst V. Florida, 135 S. Ct. 1531 (2015) ...... 1

Hum: v. Fiorida, 136 S. Ct. 616 (2016) ...... passim

Hurs: V. 83358, 2316 WL 6036978 (Fla. Oct. 14, 2016) ...... passim

Miﬂer v. Afabama, 132 S. Ct. 2455 (2012) ...... 15

Perry v. 535236, 2016 WL 6036982 (Fla. Oct. 14, 2016) ...... 2, 12, 14, 15

Other Authorities

Chapter No. 2016-13, Laws of Fla ...... 14

iii

169 iv

170 Page 170 STATEMENT OF THE CASE AND FACTS

Mr. Boyd ﬁled his initial brief in his postconviction appeal on October 16,

2013. This Court then heard oral argument on his appeal on June 4, 2014. Foilowing oral argument this Court issued its opinion afﬁrming the circuit court’s denial of

postconviction relief on December 17, 2015. Boyd v. State, 200 So. 3d 685 (F 121.

2015). Thereafter, Mr. Boyd ﬁled a Motion for Rehearing on December 31, 2015.

During the pendency of his appeal before this Court, the United States

Supreme Court granted certiorari review in Hurst v. Florida, 135 S. Ct. 1531 (March

9, 2015). On January 12, 2016, the United States Supreme Court issued its opinion in Hum: V. Florida, 136 S. Ct. 616, 619 (2016) ﬁnding Florida’s capital sentencing

scheme unconstitutienal. As a result of the Hurst decision, and its impact on Mr.

Boyd’s sentence, Mr. Boyd ﬁled a motion requesting permission to submit

supplemental brieﬁng as it related to the impact Hurst had on his claims before the

Court. This Court granted Mr. Boyd’s motion and Mr. Boyd submitted supplemental brieﬁng on the Hams: issue.

On October 5, 2016, this Court denied Mr. Boyd’s Motion fer Rehearing

“without prejudice to ﬁle any Hurst claims in a separate petition for writ of habeas corpus.” That same day, October 5, 2016, Mr. Boyd ﬁled his Petition for Writ of

Habeas Corpus with this Court pursuant to Hurst v. Florida, 136 S. Ct. 616 (2015).

171 Following his ﬁling, on October 14, 2106 this Court issued it opinion in Ham: v.

Stafe, Case NO.: SC12-1947 and Perry v. State, Case NO.: 16—547.

Based on Hurst v. State and Perry v. State, Mr. Boyd moved to amend his

habeas petition. The Court granted the request, however, treating it as a request for supplemental brieﬁng. This supplemental brief follows, addressing the application

of Ham: v. Same to Mr. Boyd’s case.

All other relevant facts have been detailed in Mr. Boyd’s Petition for Writ of

Habeas Corpus pending before this Court in the instant case.

SUMMARY OF THE ARGUMENT

The Ham: error in Mr. Boyd’s case is not harmless beyond a reasonabie doubt and entities Mr. Boyd to relief under the Sixth and Eighth Amendments.

172 ARGUMENT

MR. BOYD WAS TRIED, CONVICTED, AND SENTENCED TO DEATH UNDER AN UNCONSTITUTIONAL STATUTE AND AS A RESULT HIS DEATH SENTENCE STANDS IN VIOLATION OF THE SIXTH AND EIGHTH AMENDMENTS IN LIGHT OF HURST V. STATE.

A. Harmless Error Analysis

On October 14, 2016, this Court issued Hurst v. State, 2016 WL 6036978 (Fla.

Oct. 14, 2016) (emphasis added), and held: “before the trial judge may consider

imposing a sentence of death, the jury in a capital case macs: manimousiy and

expressfy ﬁnd all of the aggravating factors that were proven beyond a reasonable

. doubt, unanimousiy ﬁnd that the aggravators are sufﬁcient to impose death,

unanimousbz ﬁnd {hat the aggravators outweigh the mitigators, and manimously

recommend a sentence of death.” Id. at *13 (emphasis added).

Signiﬁcantly, the Court not only addressed the Sixth Amendment concerns of

Hurst 12. Honda, but also the Eighth Amendment implications. Under the Eighth

Amendment and its “evolving standards” test, juror unanimity in any recommended

verdict resulting in a death sentence is required under the Eighth Amendment. Hurst

Iv. Sfas‘e, 2016 WL 6036978 at *15.

Moreover, the Court explained that, in accordance with Florida’s capital

sentencing scheme, the jury has a “right to recommend a sentence of life even if it

ﬁnds aggravafingfactors were proven, were sufﬁcient to impose deafh, and fha: ihey

173 outweigh she mifigating circumstances.” Id. ((emphasis added) (citing Brooks v.

Stafe, 762 So.2d 879, 902 (Fla. 2000)). In other words, before a judge can impose

the death penalty, the jury must be told it has the right to recommend a life sentence even if the precedent factual ﬁndings are all made unanimously.

In Ham: v. State, this Court explained that the Sixth Amendment error

resulting from H2533 V. Florida would be subject to a strict harmless error analysis, one in which “the State bears an extremely heavy burden” of proving beyond a

reasonable deubt that “the jury’s failure to unanimously find (:23 :kefacrs necessary for imposition of the death penalty did not contribute to [Mr. Boyd’s] death sentence in this case.” Ham: v. State, 2016 WL 6036978 at *23 (emphasis added). Therefore, the State must prove beyond a reasonable doubt that the july’s failure to unanimously find not only the existence of each aggravating factor, but also that the aggravating factors are sufficient and that the aggravating factors outweigh the mitigating circumstances. In order for a Hurst error to be harmless, thsre must be

“no reasonable probability that the error contributed to the sentence.” Hams, 2016

WL 6036978, at *23.

The jury’s unanimous 12—0 jury recommendation is unavaiiing for purposes of curing the Burs: error present in this case. Mr. Boyd’s penalty phase jury recommendation merely stated: “[a] majority of the jury, by a vote of 12 t0 0, advise and recommend to the Court that it impose the death penalty upon Lucious Boyd for

174 the murder of [D.D.]” (R. 498). Mr. Boyd’s jury did not make any of the requisite factual findings in order for the death sentence to be imposed. The jury made no express findings of fact, let alone unanimous findings as to the aggravating circumstances, the sufficiency of the aggravating circumstances or whether the aggravating circumstances outweighed the mitigating circumstances. The jury simply voted on a recommendation but did not specify the basis of that recommendation.

In Ham: v. Siate, this Court found that the State was unable to prove

harmlessness beyend a reasonable doubt because it had no idea how the juror’s

decided the underlying questions in Hurst’s case. The same is true here. “Because there was no interrogatory verdict, we cannot determine What aggravators, if any, the jury unanimously found proven beyond a reasonable doubt. We cannot determine how many jurors may have found the aggravation sufﬁcient for death. We cannot determine ifthe jury unanimously concluded that there were sufﬁcient aggravating

factors to outweigh the mitigating circumstances.” Hurst v. 33338, 6036978 at *24.

As a result, this Court would be required to “speculate as to What factors the jury found in making its recommendation.” Combs v. State, 525 So. 2d 853, 859 (Fla.

1988)(Shaw, J. concurring). This Court may not substitute its judgment for that of

the jury. Hum: 12. Florida explains that the Sixth amendment places that responsibility with the jury, not the court and not an appellate court.

175 In Mr. Boyd’s case it is inescapable that it was the judge who independently determined the facts necessary to impose a death sentence. The jury did not render an actual Sixth Amendment “verdict.” Instead, given its “advisory” role (T. 38, 39,

177, 180, 181, 2371—72, 2375; Supp. R. 430-31), it rendered a mere

“recommendation.” 1 The Supreme Court explained the Sixth Amendment cannot be satisﬁed merely by “treating the advisory recommendation by the jury as the

necessary factuai ﬁnding” required by the Sixth Amendment. Ham: 12. Honda, 136

S. Ct. at 622. Here, the State cannot prove beyond a reasonable doubt that a jury properly charged with the task of rendering a sentence that comports with the Sixth and Eighth Amendments pursuant to the Hurst decisions, would have expressly and unanimously found the same aggravating factors, expressly and unanimously found the aggravating factors were sufﬁcient and expressly and unanimously found that the aggravating factors outweighed the mitigating factors.

Additionally, in light of this Court’s recent decision in Frankffn v. 5:339, Case

No. SC13-1632 (Nevember 23, 2016) any contention that the existence of the

‘during the course of the felony’ aggravator insulates his decision from harmless error analysis is also unavailing. (“We also reject the State’s contention that

Franklin’s prior convictions for other Violent felonies insulate Franklin’s death

1 During voir dire the jury was told “it is really not you imposing it” (T. 177) and that ‘hltimateiy it is the [judge’s] responsibility” (T. 180).

176 sentence from Ring and Hurst v. Florida. See id. at S348”). Regardless of the fact one of the aggravators in Mr. Boyd’s case was based upon felony murder that does not render the Hairs: error harmless. It cannot be said that Mr. Boydk jury made any

finding that the felony murder aggravator constituted “sufficient aggravating circumstances” and that “there are insufficient mitigating circumstances to outweigh the aggravating circumstances” simply because he was convicted of the contemporaneous felonies. The sufficiency finding required by Hum: and Perry means that there must be a case Specific assessment of the facts of the contemporanecus felony and a determination as to whether the facts of the contemporaneous felony in conjunction with the factual basis for any other aggravating circumstance present in the case are sufficient to justify the imposition of death sentence.2 These findings must be express.

Furthermore, despite the facts of the case, this is not one of the most aggravated death penalty cases. The jury was instructed on only two aggravating

2 Following the close of guilt phase the defense moved for a directed verdictfmotion for judgment of acquittal as to the existence of armed sexual battery. The State conceded there was insufficient evidence to support a finding that any weapon was used during the commission of any sexual battery and the trial court grantsd Mr. Boyd’s motion and rejected the charge (R. 1773-74), instead instructing the jury on sexual battery. The arguments made during the motion and the court’s rejection of the armed sexual battery charge establish that questions may have remained regarding the facts supporting the ‘during the course of a sexual battery’ statutory aggravator and some jurors may not have found this sufficient aggravating circumstances.

177 circumstances and the judge only made findings with respect to those two circumstances. Notwithstanding a lack of finding as to the sufficiency of the felony

murder aggravates-3 the heinous atrocious and cruel aggravator was contested at trial and on direct appeal. Direct Appeal Brief at 85-89; Boyd v. Sfate, 910 So. 2d 167

(Fla. 2005). In fact, the order of injuries and at What point the Victim lost consciousness was calied into question. (Supp. T. 465—66, 467-468). Any testimony that certain injuries preceded the injury to the head was supposition based on the medical examiner’s own common sense approach, not medical certainty. (Supp. T.

477). Lending itself to the fact the Victim was unconscious, trial counsel argued that nobody heard a confrontation or screaming (Supp. T. 362-63, 375) The State agreed there was no evidence of “yelling and screaming” (Supp. T. 376). Without express

ﬁndings by the jury, it cannot be said that the HAC aggravator was unanimously found, unanimously found to be sufﬁcient or unanimously found to not be outweighed by mitigation.4

3 Mr. Boyd argued in his state habeas petition the existence of numerous cases Where this 031111: has found single aggravating circumstances to be insufﬁcient to support a death sentence during proportionality review, many of which invclve felony murder or prior Violent felony aggravators. (Petition for Writ of Habsas Corpus at 10-11). 4 Ample evidence of mitigation was present in the record including the statutory mitigating circumstance that appellant had no signiﬁcant history of prior criminal activity (R 551); and non-statutory mitigation that Mr. Boyd is reiigious; that he had a good jail record; that he has family and friends who care for and love him; that he comes from a good family; and that he expressed remorse and sympathy for the Victim and her family (R 551-53).

178 This Court must also take into consideration the jury was repeatedly

misinformed as to its responsibility in the sentencing process. The jurors were told,

over and over, that their role was simply to render a “recommendation” or an

“advisory sentence” and that the Court was “not bound by the recommendation.”

In Hum: 12. FZors'da, the U.S. Supreme Court wrote, “The State cannot now treat the advisory recommendation by the jury as the necessary factual ﬁnding that Ring

requires.” Hursz‘, 136 S. Ct. at 622. This is based on the holding in Cafdwell v.

Mississippi, 472 U.S. 320 (1985) that a jury must be correctly instructed as to its

sentencing responsibility. Here, Mr. Boyd’s jury was repeatedly instructed that its

5 These misstatements occurred right off the bat in the Court’s introductory statements to the potential jurors at voir dire. The trial court emphasized that the ﬁnal decision of sentence lies with the judge and not with the jurors (R. 39). The jurors’ lack of responsibility was further highlighted during the prosecutor’s voir dire. The State indicatezd that the jury only makes a recommendation to the Court during the second phase of trial (R. 177, 180). The State emphasized that the Caurt ultimately makes the decision as to sentence (R. 181). The jurors” sense of responsibility was further diminished by the trial court’s preliminary instructions at the beginning of the penalty phase:

The ﬁnal decision as to what punishment shall be imposed rests solely with the Judge of this Court; however, the law requires that you, the J ury, render to the Court an advisory sentence as to what punishment should be imposed upon the Defendant.

(Supp. R. 430-31) (emphasis added). Again during the ﬁnal instructions tn the jury, the jury was repeatedly told that their duty to “advise” the Court as to punishment and that the ﬁnal decision as to punishment was the responsibility of the judge (R. 2371).

179 recommendation was merely advisory. But, as was explained in Cafdwez’f, jurors

must feel the weight of the sentencing responsibility if the defendant is ultimately executed after no juror exercised her power to preclude a death sentence. An advisory verdict cannot be used or considered when evaluating Whether Ham: error was harmless. Indeed, because the jury’s sense of responsibility was improperly

diminished in Caz’a’well, as it was here, the Supreme Court held that the jury’s unanimous verdict imposing a death sentence in that case violated the Eighth

Amendment and required the death sentence to be vacated. CafdweZZ, 472 U.S. at

341 (“Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment

requires.”). In this case, it is likely that at least one juror would not join a death recommendation if a resentencing were now conducted, given that proper CaZa’well

instructions would be required under Hurst v. State. The likelihood of one or more jurors voting for a life sentence increases when a jury is told a death sentence could only be authorized if the jury returned a unanimous death recommendation and that each juror had the ability to preclude a death sentence simply by refusing to agree to a death recommendation. Caldwell, 472 U.S. at 330 (“In the capital sentencing context there are speciﬁc reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court”).

180 Likewise, the jury’s diminished sense of responsibility is directly born out in

the length of its penalty phase deliberations. Here, Mr. Boyd’s jury is reported to

have left the ceurtroom to deliberate at 3 :35 pm. and returned with their vote at 3 :50

pm. (R. 507). Given the complicated and contested facts which purport to establish

the HAC aggravator, 25 minutes of deliberations is hardly reﬂective of a jury who

felt the weight of its responsibility pursuant to Caldwell. This only reﬂects a h€ad

count and the resulting vote Without any meaningful consideration of the existence

of aggravators beyond a reasonable doubt, sufﬁciency of the aggravators or

consideration of the mitigation.

Additionaﬂy, in order to conduct a proper harmless error analysis, this Court

must determine Whether the State has proven beyond a reasonable doubt that no

properly-instructed rational juror would have exercised his or her right to vote for a

life sentence for Mr. Boyd even having found the aforementionsd additional facts.

This factor is of critical importance because, as this Court acknowledged in Hurst v.

State and in Perry 12. State, each Florida juror in a capital case has the “right to

recommend a sentence of life even if [he or she] ﬁnds aggravating factors were

proven, were sufﬁcient to impose death, and that they outweigh the mitigating

circumstances.” Hurst, 2016 WL 6036978 at *13 (citing Brooks v. Stare, 762 So.2d

879, 902 (Fla. 2000). This is to allow jurors in capital casas to “exercis[e] reasoned

33$ judgment in his or her vote as to a recommended sentence.” Hams, 2016 WL

181 6036978 at *13 (citing Henyard v. State, 689 So.2d 239, 249) (Fla. 1996) (quoting

Alvom’ v. Siafe, 322 So.2d 533, 540 (Fla. 1975)).6 Accord Perry, 2016 6036982 at

*7-*8 (“It has long been true that a juror is not required to recommend the death sentence even if the jury concludes that the aggravating factors outweigh the mitigating circumstances). Mr. Boyd’s jurors were never instructed that they had a

“right to recommend a sentence of life even if they [found] aggravating factors were proven, were sufﬁcient to impose death, and that they outweigh mitigating

* circumstanms.” Hams, 2016 WL 6036978 at 13. The State cannot prove beyond a reasonable doubt that at least one juror would not have voted for mercy in favor of

a life sentence. To say it could would be pure speculation.

Consideration must also be given to the fact that trial counsel would have tried

the éase differently under Hurst v. Florida and the resulting new Florida law. This

is further evidence that its more likely than not that at least one juror wouid not join a death recommendation at a resentencing. Harmless error review necessarily requires determining how defense counsel’s approach to diminishing the weight of the aggravating circumstances at the penalty phase would have been different in a hypothetical penalty phase that comported with the constitutional principles

6 This principle is not applicable to only Florida capital cases; as this Court noted in Henyard, the Supreme Court as far back as 1974 held that a capital jury can constitutionally dispense mercy in a case that otherwise might warrant imposition of the death penalty. Henyard, 689 So. 2d at 249 (citing Gregg v. Georgs‘a, 428 U.S. 153, 203 (1976)).

182 announced in Hams. Any harmless error analysis would necessitate determining the effect which having the beneﬁt of the constitutional protections afforded by Hurst may have impacted the strategy which defense counsel employed While conducting

voir dire, focusing on the empowerment of one juror’s exercise of mercy. This is especially so in light of the woefully limited voir dire conducted by defense counsel here? Without evidentiary development this Court would be constrained to conducting its harmiess error analysis based on either the parties” or its’ own speculation, something this Court had made clear is not permissible. Harss‘, 2016

WL 6036978 at *3. T0 the extent such an inquiry requires evidentiary development,

Mr. Boyd contends relinquishment is proper in order to provide opportunity to establish such record evidence.

Last, and by no means least signiﬁcant, the analysis of the Ham: error in Mr.

Boyd’s case must also take into account the impact that both the juror misconduct and spectater eutburst that occurred at trial had on the penalty phase jury’s recommendation. As Mr. Boyd has litigated throughout the appellate process, his right to an impartial jury was impermissibly tainted by the inclusion of a Statutorily

7 Defense counsel’s abbreviated voir dire further diminished the jury’s sense of responsibility when he concluded his questioning by flippantly stating “I’m hungry. I’m done and they’re tired” (T. 316). Trial counsel conducted no additianal voir dire and indicated on the r€cord that his questioning was only 20 minutes (T. 317). When given the opportunity to clarify, trial counsel instead reiterated in front of the jury “No. I am hungry and I am tired and so is the jury” (R. 318).

183 disqualiﬁed juror who actively concealed and misled the trial court about her status

as a convicted felon who had not had her civil rights restored. (Initial Brief at 20—

37). Further, as th€ result of an impermissible outburst by a spectator seated by the

State in the front row during Mr. Boyd’s penalty phase testimony, alleging Mr. Boyd was guilty of raping her, Mr. Boyd’s jury was impermissibly tainted by injection of improper non-record evidence of unproven allegations for the juryﬁs consideration during deliberations. (Initial Brief at 58-67). Both of these errors require consideration by this Court when conducting its harmless error analysis pursuant to

Hurs: and making its determination as to the effect which the numerous errors that permeated Mr. Boyd’s trial had on the penalty phase jury. Here; where the numerous errors all implicate and concern the Violation of Mr. Boyd’s right to a fair and

impartial jury and its role under Hurst as the lone sentencer, it cannot be said that any impact they had on the jury’s determination as to the existence of aggravating factors, whether they were sufﬁcient to support a sentence of death, and their determination as to whether the aggravation outweighed the mitigation that was established was harmlsss beyond a reasonable doubt.

Mr. Boyd’s death sentence stands in Violation of the Sixth Amendment and

Eighth Amendments, Hurst v. Florida, Chapter 2016—13, Perry 12. Sfare, and Hurst v. Stafe. His jury did not make any ﬁndings of fact, his jury was not instructed that its death recommendation had to be unanimous, the jury was not told that each

184 individual juror carried responsibility for whether a death sentence was authorized or a life sentence was mandated, and the jurors did not know that they were each authorized to preclude a death sentence simply because one or more of them believed mercy was warranted.

B. Retroactivity

Because Ham: v. State, 2016 WL 6036978 (Fla. Oct. 14, 2016) and this

Court’s decision in Perry v. State, SC 16-547, 2016 WL 6036982 (Fla. Oct. 14,

2016) highlight that the constitutional protections provided to capital prisoners in

Florida now have Eighth Amendment implications, as required by evolving standards of decency, Hurst v. Florida must be found to be retroactive to Mr. Boyd’s case. Such Eighth Amendment protections are generally understood t0 be

retroactive. See 9g. Miller v. Alabama, 132 S. Ct. 2455 (2012), Aﬂcms v. Virginia,

536 U.S. 304 (2002). T0 the extent that any Florida death sentences are more likely to receive retroactive application than others, it may be those sentences ﬁnalized after Réng that are most likely to be held retroactive. Here, Defendant’s death

sentence was ﬁnalized on direct appeal in 2005, after the 2002 decision in Ring v.

Arizona. Thus, to the extent that retroactivity of Hurst has any limits, Mr. Boyd is likely to be among those to receive the beneﬁt of Hurst.

185 Respectfully submitted,

/s/ Suzanne Keffer SUZANNE KEFFER Florida Bar No. 0150177 Chief Assistant CCRC-South keffersﬁ?ccsr.stat€.ﬂ.us

Law Ofﬁce of the Capital Collateral Regional Counsel-South

1 East Broward Blvd, Suite 444 Ft. Lauderdale, FL 33301 (954) 713—1284

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has béen furnished to

Leslie Campbell, Assistant Attorney General, 1515 North Flagler Drive, Suite 900,

West Palm Beach, Florida 33401, Via email this 28th day of November, 2016.

/s/ Suzanne Keffer SUZANNE KEFFER Florida Bar No. 0150177 Chief Assistant CCRC—South

1 East Broward Avenue, Suite 444 Fort Lauderdale, FL 33301 (954) 713-1284

186 EXHIBIT C Boyd v. Jones, Nest Repartecé in 39.3d (2917}

JANUARY 23, 201?

2017 WL 318931 Lower Tribunal N0(s).: 061999CF005809A88810 Only the Wesﬂaw citation is currently available. Opinion NOTICE: THIS GFINION HAS NOT BEEN *1 The Petition for Writ of Habeas Corpus is hereby RELEASED FOR PUBLICATION IN THE denied. PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Supreme Court of Florida. LABARGA, C.J., and PARIENTE, LEWIS, CANADY

and POLSTON, JJ., concur. Lucious BOYD, Petitioner(s)

V. QUINCE, J., and PERRY, Senior Justice, dissenting.

Julie L. JONES, etc, Respondenﬂs) All Citations CASE NO.: SC16~1812 Not Reported in So.3d, 281'? WL 318931

c}? 5323;732:365}: 5%: 6;? 2828 Thomsm Rauiers, No daisy} {a cﬁgmai US Gaxgeg‘m V .l

188 Boyd v. Jones, Not Reporteé in 80.363 (2017)

MARCH 22, 2017

2017 WL 1081115 Lower Tribunal N0(s) .: 061999CF005809A88810 Only the Wesﬂaw citation is currently available. Opinion NOTICE: THIS OPINION HAS NOT BEEN *1 Petitioner's Motion for Rehearing is hereby denied. RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. LABARGA, C.J., and PARIENTE, LEWIS, CANADY, Supreme Court of Florida. and POLSTON, JJ., concur.

Lucious BOYD, Petitioner(s) QUINCE, J., dissents.

v. LAWSON, J., did not participate. Julie L. JONES; eta, Respondent(s)

All Citations CASE NO.: 806—1812

E Not Reported in So.3d, 281’? WL 1881115

Em; as? Basamen‘: (5; 2018 TE‘xor‘naoz"; Rem/am. Ne céaim i0 {paging U.S. Sovemz’xem Wezkg.

189 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 7/6/2018 8:36:10 AM.****

[@Efifiééfifiégfifdfififif’fzflffiféfis‘é’fi/ 1 174] HTU

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. CASE NO. 99-005809CF10A

LUCIOUS BOYD,

Defendant

SUCCESSIVE MOTION TO VACATE JUDGEMENTS OF CONVICTION AND SENTENCE. AND ALTERNATIVELY MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.800

COMES NOW, the Defendant, Lucious Boyd, by and through his undersigned counsel,

and respectfully requests that this Court enter an order pursuant to Florida Rule of Criminal

Procedure 3.851 vacating and setting aside the judgements of conviction and sentence of death

imposed upon him by this Court, and/0r alternatively an order pursuant to Florida Rule of Criminal

Procedure 3.800(a) correcting his illegal sentence of death. In support of this motion, Mr. Boyd

states:

PROCEDURAL HISTORY‘

The Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County, Florida

entered thejudgments of convictions and death sentence currently at issue.

On January 30, 2002, Mr. Boyd was found guilty of one count ofFirst Degree Murder, one

count of Sexual Battery, and one count of Armed Kidnapping (R. 461-463).

1 Citations to the record on the direct appeal shall be referenced as “R. _.” Citations to the postconviction record shall be referenced as “PC—R. .” All other citations should be self- explanatory.

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The penalty phase of Mr. Boyd’s trial began on March 11, 2002. On March 12, 2002, the

jury rendered an advisory sentence unanimously recommending the death penalty (R. 499-506).

The circuit court sentenced Mr. Boyd to death on June 21, 2002 for the count of First Degree

Murder, ﬁnding that two (2) statutory aggravators outweighed one (1) statutory mitigator and ﬁve

(5) non—statutory mitigators (R. 537-555).2 The circuit court imposed a life sentence for the charge

of Armed Kidnapping and a ﬁfteen (15) year sentence for the charge of Sexual Battery (Id.). A

formal sentencing order was entered on thélt date (Id.).

The Florida Supreme Court afﬁrmed Mr. Boyd’s conviction and sentence on direct appeal.3

Boyd v. State, 910 So. 2d 167 (Fla. 2005); cert. denied Boyd v. Florida, 546 U.S. 1179 (2006).

Rehearing was denied on June 16, 2005. The mandate issued on September 9, 2005.

2 The trial court found the following aggravating factors: (1) the crime was especially heinous, atrocious, and cruel (HAC) (accorded great weight); and (2) the crime was committed while the defendant was committing or attempting to commit kidnapping and sexual battery (accorded moderate weight). The trial court found, and gave some weight, to the following mitigating circumstance: no signiﬁcant prior criminal history (accorded medium weight). 3Mr. Boyd raised the following claims on direct appeal: (l)the trial court erred in refusing to make an inquiry ofjurors and in denying a motion for mistrial based on testimony that jurors had

discussed extrajudicial information; (2) the trial court erred in overruling a defense request for

material in violation of Brady v. Maryland, 373 U.S. 83 (1963), in denying the defense’s motion

to strike testimony from the fingerprint examiner, and in failing to order 3 Richardson hearing; (3) the State’s evidence was not sufficient to support the convictions for first degree murder, sexual

objection to the use of that citation in the State’s cross-examination of Boyd; (5) the trial court

erred in overruling defense objections to the State’s cross-examination of Boyd; (6) the trial court

erroneously failed to consider two experts’ reports and testimony as to Boyd’s competency; (7)

the trial court erred in failing to order a competency hearing at sentencing; (8) Boyd’s waiver of

the right to present mitigation did not comply with Koon v. Dagger, 619 So. 2d 246 (Fla. 1993);

(9) the trial court erred in giving great weight to the jury’s death penalty recommendation; (10) Boyd’s presentation of mitigation was invalid because the decision of whether to present evidence

and call witnesses is for counsel to make; (11) the evidence does not support the murder in the course ofa felony and HAC aggravators, and section 921.141, Fla. Stat. (1997) does not permit a

death sentence where is only one aggravating circumstance; (12) the trial court erred in overruling the defense objection to the introduction of photos of the victim during the penalty phase

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Mr. Boyd ﬁled his initial Motion to Vacate Judgment of Convictions and Sentences With

Special Request for Leave to Amend in the Circuit Court for the Seventeenth Judicial Circuit on

February 14, 2007 (PC—R. 328-403). On May 29, 2009, after extensive public records litigation,

Mr. Boyd ﬁled his ﬁrst amendment to his Motion to Vacate Judgment of Convictions and

Sentences With Special Request for Leave to Amend (PC-R. 1257-1457), amending Claims [11 B

and C, claim V, and claim IX and adding claims X and XI.

On March 23, 2012, Mr. Boyd ﬁled a second amendment to his Motion to Vacate Judgment

ofConvictions and Sentences With Special Request for Leave to Amend, amending claim X1. (PC-

R. 2549-2587).

The circuit court conducted a Case Management Conference on June 5,2012 (PC-R. 5439-

5527). On July 20, 2012, the circuit court entered an order granting an evidentiary hearing on

numerous claims including: Claim III(A)(2) ineffective assistance of counsel for failing to

adequately conduct voir dire, in part; Claim IV juror misconduct; Claim V subsections (A), (B),

phase and failure to move for a mistrial during penalty phase; Claim VI denial of right to expert

psychiatric assistance under Ake v. Oklahoma, 470 U.S. 68 (1985). (PC-R. 2769—2771).

On August 28-31, 2012 an evidentiary hearing was held. Prior to the start ofthe avidentiary

hearing Mr. Boyd, through counsel, waived presentation of several claims contained in his Florida

Rule of Criminal Procedure 3.851 Motion. Speciﬁcally, Mr. Boyd waived the presentation of

Claim V, A and B relating to mental health mitigation and counsel’s alleged failure to investigate

proceedings; (13) the trial court erred in its assessment of mitigating factors; (14) Boyd’s death

sentence is not proportionate; and (15) the trial court did not comply with Muhammad v. State, 782 So. 2d 343 (Fla. 2001) in sentencing Boyd.

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and present both general and mental health mitigation. (PC-R. 7). Mr. Boyd also waived Claim VI

pertaining to the denial of his right to competent assistance of a mental health expert at trial in

Violation ofAke vs. Oklahoma. The Circuit court conducted a colloquy of Mr. Boyd during which

he conﬁrmed his intent to waive the above mentioned claimé. '(PC-R. 7—15).

Based on the waiver of Mr. Boyd’s penalty phase claims, the circuit court heard testimony

and received evidence related to Mr. Boyd’s claims ofjuror misconduct, ineffective assistance of

counsel for failing to adequately voir dire, and ineffective assistance ofcounsel for failing to object

or move for a mistrial based on inﬂammatory and prejudicial comments made by a spectator during

Petitioner’s testimony.

Following the evidentiary hearing, the circuit court denied Mr. Boyd’s Motion for

Postconviction Relief on January 2, 2013 (PC-R. 4386-4446). A notice of appeal was timely ﬁled

on January 29, 2013 (PC-R. 4448-49).

Mr. Boyd ﬁled his initial brief on the merits on October 16, 2013. Oral argument was held

June 4, 2014. On December 17, 2015 the Florida Supreme Court issued an order denying relief.

Boyd v. State, No. SCl3—l959, 2015 WL 9170916 (Fla. Dec. 17, 2015). Thereafter, Mr. Boyd

timely ﬁled a motion for rehearing on December 31, 2015.

During the pendency of his appeal before the Florida Supreme Court, the United States

Supreme Court granted certiorari review in Hurst v. Florida, 135 S. Ct. 1531 (March 9, 2015). On

January 12, 2016, the United States Supreme Court issued its opinion in Hurst v. Florida, 136 S.

Ct. 616, 619 (2016) ﬁnding Florida’s capital sentencing scheme unconstitutional. As a result of

the Hurst decision, and its impact on Mr. Boyd’s sentence, Mr. Boyd ﬁled a motion requesting

permission to submit supplemental brieﬁng as it related to the impact the Hurst decision had on

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his claims before the Florida Supreme Court. The Florida Supreme Court granted Mr. Boyd’s

motion and he submitted supplemental brieﬁng on the Hurst issue.

On October 5, 2016 the Florida Supreme Court denied Mr. Boyd’s Motion for Rehearing

“without prejudice to ﬁle any Hurst claims in a separate petition for writ of habeas corpus.” Mr.

Boyd subsequently ﬁled a Petition for Writ of Habeas Corpus in the Florida Suprame Court that

same day. Boyd v. Jones, SCl6-1812. Following that ﬁling, on October 14, 2106 the Florida

Supreme Court issued it opinions in Hurst v. State, 202 So, 3d 40 (Fla. 2016) and Perry v. State,

210 So. 3d 630 (Fla. 2016). Based on Hurst v. State and Perry v. State, Mr. Boyd moved to amend

his state habeas petition. The Florida Supreme Court granted the request, but treated it as a request

for supplemental brieﬁng.

Thereafter, on January 23, 2017 the Florida Supreme Court denied Mr. Boyd’s Hurst v.

Florida and Hurst v. State related state habeas petition. On March 22, 2017 Mr. Boyd’s motion for

rehearing was denied by the Florida Supreme Court.

While Mr. Boyd’s state habeas petition was pending before the Florida Supreme Court,

Mr. Boyd ﬁled his initial Petition for Writ of Habeas Corpus with the United States District Court

Southern District Court on October 28, 2016. (DE 1). That same day, Mr. Boyd also ﬁled a Motion

to Stay/Hold in Abeyance the proceedings pending the resolution ofthe Hurst litigation in Flérida

state court. (DE 5). On November 14, 2016 the United States District Court granted Mr. Boyd’s

motion to stay the proceedings. (DE 11). Mr. Boyd’s habeas petition remains pending as of the

date of the ﬁling 0fthis successive motion.

Mr. Boyd now raises the instant claim, which was not previously raised, pursuant to the

enactment of Chapter 2017—1, Laws of Florida on March 13, 2017 and its conﬁrmation of the

statutory construction recognized by the Florida Supreme Court in Hurst v. State.

a Processed Time - 3/14/2018 7:11:46 AM 194 [99005809CF10A] [HTU] [] [CLSD / 1174] HTU

GROUNDS FOR RELIEF

This claim is evidenced by the following:

All other factual allegations contained in this motion and its attachments are fully

incorporated herein by speciﬁc reference.

In Hurst v, State the Florida Supreme Court determined:

We also conclude that, just as elements of a crime must be found unanimously by a Floridajury, all thesefindings necessaryfor the jury to essentially convict a defendant of capital murder-thus allowing imposition of the death penalty-are also elements that must be found unanimously by the jury. Thus, we hold that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by thejudge.

202 So. 3d 40, 53-54 (Fla. 2016) (emphasis added). The Florida Supreme Court’s opinion in Hurst

v. State construed Fla. Stat. § 921.141 and found that the statute deﬁned the elements of capital

murder and required that those elements must be necessary to “essentially convict” a defendant of

capital ﬁrst degree murder. Signiﬁcantly, the Florida Supreme Court acknowledged that the

elements of capital ﬁrst degree murder were longstanding and appeared in the statute. Id. at 53

(“As the Supreme Court long ago recognized in Parker v. Bugger, 498 U.S. 308 (1991), under

Florida law, ‘The death penalty may be imposed only where sufﬁcient aggravating circumstances

exist that outweigh mitigating circumstances.” Id. at 313 (quoting § 921.1416), Fla. Stat.

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l985)).”). That ﬁnding was critical, as it established that the requiremant of proof beyond a

reasonable doubt of all elements of capital ﬁrst degree murder had been in existence since, at

minimum, as far back as 1991, i.e. the date of the decision in Parker v. Dagger.

The revision to Fla. Stat. § 921.141 through enactment of Chapter 2017-l codiﬁed the

Florida Supreme Court’s holding in Hurst v. State. The Florida Legislature’s enactment of Chapter

2017-l on March 13, 2017 conﬁrmed the requirement that a defendant would not be eligible for a

death sentence unless the State carried its burden of establishing each element of capital ﬁrst

degree murder beyond a reasonable doubt and each of those elements was found unanimously by

ajury. Under the revised § 921.141, before ajury can return a death recommendation it must ﬁrst:

1) identify each aggravating factor that it has unanimously found proven beyond a reasonable

doubt; 2) ﬁnd beyond a reasonable doubt that the aggravators found to exist are sufﬁcient tojustif;

a sentence of death; and 3) unanimously ﬁnd beyond a reasonable doubt that the aggravators

outweigh the mitigators. See § 921.141(2)(b). Having made these ﬁndings the jury must then

unanimously decide whether to rejact mercy in favor of imposing a sentence of death. Only if the

jury returns a unanimous death verdict, can ajudge under the revised § 921.141 impose a death

sentence.

Under the revised § 921.141, the statutory maximum sentence that can be imposed on a

ﬁrst degree murder conviction is one of life imprisonment. For a death sentence to be permissible,

the defendant must be convicted of the next higher degree of murder, Le. capital ﬁrst degree

murder. The revised § 921.141 provides for proof of the elements necessary to raise a conviction

of ﬁrst degree murder up to capital ﬁrst degree murder to be presented at a “penalty phase”

proceeding. But, a unanimous jury’s ﬁnding that the State has proven the necessary elements

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beyond a reasonable doubt is functionally a verdict ﬁnding the defendant guilty of the greater

offense of capital ﬁrst degree murder.

The requirement that any factual determination authorizing an increase in the statutorily

proscribed maximum punishment be submitted to ajury and proven beyond a reasonable doubt

was established in Apprendi v. New Jersey, 530 U.S. 466, 469 (2000) (whether the Due Proccss

Clause ofthe Fourteenth Amendment requires that a factual determination authorizing an increase

in the maximum prison sentence for an offense from 10 to 20 years be made by ajury on the basis

of proof beyond a reasonable doubt). The United States Supreme Court made clear in Apprendi'

that the Due Process Clause of the Fourteenth Amendment entitled a criminal defendant to ajury

determination of guilt of every element of the crime for which they are being charged beyond a

reasonable doubt. 1d. at 476—77.

The bedrock requirement of the reasonable doubt standard under the Due Process Clause

was ﬁrst enunciated in In re Winship, 397 U.S. 358 (1970). As the Supreme Court noted, the

reasonable doubt standard was a “prime instrument for reducing the risk of convictions resting on

factual error.” Id. at 363. The reasonable doubt standar.d was intended as a means for insuring

juroré understood their obligation under the constitution ofwhat is required for a valid conviction.

That requirement under the Due Process Clause was further enunciated in Sullivan v. Louisiana,

508 U.S. 275 (1993):

What the factﬁnder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, see, e.g.,

Patterson v. New York, 432 U.S. 197, 210 (l 977); Leland v. Oregon, 343 U. S. 790, 795 (1952), and must persuade the factﬁnder “beyond a reasonable doubt” of the facts necessary to establish each ofthose

elements, see, e.g., In re Winship, 397 U.S. 358, 364 (1970); Coalv: United States, 409 U.S. 100, 104 (1972) (per curiam).

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Id. at 277-78. The Court found that the failure to instruct ajury properly on the beyond reasonable

doubt standard constituted structural error.

In Alleyne v. United States, 133 S. Ct. 2151, 2160 (2013), the Supreme Court noted:

“Apprendi concluded that any ‘facts that increase the prescribed range of penalties to which a

criminal defendant is exposed’ are elements ofthe crime.” Alleyne said:

When a ﬁnding of fact alters the legally prescribed punishment so

as to aggravate it, the fact necessarily forms a constituent part of

a new offense and must be submitted to the jury. It is no answer to say that the defendant could have received the same sentence with

or without that fact. It is obvious, for example, that a defendant could

not be convicted and sentenced for assault, if thejury only ﬁnds the

facts for larceny, even if the punishments prescribed for each crime

are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.

Alleyne, 133 S. Ct. at 2162 (emphasis added). The identifying of the facts necessary to increase

the authorized punishment is a matter of substantive law. Id. at 2161 (“Deﬁning facts that increase

a mandatory statutory minimum to be part of the substantive offense enables the defendant to

predict the legally applicable penalty from the face of the indictment”). In essencé, the Court’s

reasoning amounted to the acknowledgment that due process demands fair warning be given.

Thus, as Alleyne held, the facts necessary to increase the authorized punishment to include

death are elements of a new or separate offense. Subsequently, the facts that are identiﬁed in the

revised § 921.141 as necessary to authorize death are elements of a criminal offense and as such,

must be proven beyond a reasonable doubt to a unanimousjury. Under the revised § 921.141, ﬁrst

degree murder plus the additional elements set forth in the statute constitute a new offense, i.e.

capital ﬁrst degree murder. This new offense constitutes a higher degree of murder for which death

is authorized and therefore due process requires all of its elements to be proven beyond a

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reasonable doubt. The jury verdict, however it is labeled in the statute, is functionally a

determination of the defendant’s guilt of that criminal offense-capital ﬁrst degree murder.

A court decision identifying the elements of a statutorily deﬁned criminal offense

constitutes substantive law that dates back to the enactment of the statute. Bousley v. United

States, 523 U.S. 614, 625 (1998) (Stevens, J., concurring in part and dissenting in part) (“This case

does not raise any question concerning the possible retroactive application of a new rule of law,

cf. Teague v. Lane, 489 U.S. 288 (1989), because our decision in Bailey v. UnitedStates, 516 U.S.

137 (1995), did not change the law. It merely explained What § 924(c) had meant ever since the

statute was enacted. The fact that a number of Courts of Appeals had construed the statute

differently is of no greater legal signiﬁcance than the fact that 42 U.S.C. § 1981 had been

consistently misconstrued prior to our decision in Patterson v. McLean Credit Union, 491 U.S.

164 (1989).”) (emphasis added). “A judicial construction ofa statute is an authoritative statement

of what the statute meant before as well as after the decision of the case giving rise to that

construction.” Rivers v. Roadway Exp, Inc, 511 U.S. 298, 312-13 (1994) (emphasis added).

Fiore v. White, 531 U.S. 225, 226 (2001) addressed the import of the Due Process Clause

in the context of the substantive law deﬁning a criminal offense. The Court noted, “We granted

certiorari in part to decide when, or whether the Federal Due Process Clause requires a State to

apply a new interpretation of a state criminal statute retroactively to cases on collateral review.”

But before resolving the matter, the Supreme Court inquired of the Penhsylvania Supreme Court

the basis for one of the determinations regarding the elements of the statutorily deﬁned criminal

offense for which Fiore had been convicted.4 The Court wanted to discern whether the decision

4 Fiore had been convicted ofoperating a hazardous waste facility without a permit. Despite having a permit, the State argued that Fiore had deviated so dramatically from the permit’s terms that he had violated the statute. 531 U.S. at 227. Following his conviction under the State’s theory, the

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construing the criminal statute was a new interpretation or whether it was a straightforward reading

ofthe statute. Fiore, 531 U.S. at 226. In reply the Pennsylvania Supreme Court stated that its ruling

“merely clariﬁed the plain language of the statute.” Id. at 228. That meant that the ruling by the

Pennsylvania Supreme Court dated back to the statute’s enactment. Given that determination, the

United States Supreme Court determined that “the question is simply whether Pennsylvania can,

consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal

statute, as properly interpreted, does not prohibit.” 1d. Because the Court determined the answer

was no, it held that the Due Process Clause had been violated:

This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violated due process. We have held that the Due Process Clause ofthe Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt.”

1d. at 228-29. Because Fiore had not been found guilty of one of the essential elements of the

statutory offense, his conviction was constitutionally invalid.

Just as the Pennsylvania Supreme Court had done, the Florida Supreme Court’s ruling in

Hurst V. State, similar to Fiore, read the plain language of Florida’s capital sentencing statute and

saw the statutorily required facts necessary to convict a defendant ofcapital ﬁrst degree murder:

We also conclude that, just as elements of a crime must be found unanimously by ‘a Floridajury, all these ﬁndings necessary for the jury to essentially convict a defendant of capital murder—thus allowing imposition ofthe death penalty—are also elements that must be found unanimously by thejury.

announced by the Pennsylvania Supreme Court in the other case, i.e. Commonwealth v. Scarpone,

535 Pa. 273, 279, 634 A.2d l 109, 1 l 12 (1993) announced a new rule of law and was therefore inapplicable to Fiore’s already ﬁnal conviction. Id. at 227.

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Hurst v. State, 202 So. 3d at 53-54. These elements arise from the statute itself and had been

present since its enactment. The enactment of Chapter 2017-1 and the subsequent revision of Fla.

Stat. § 921.141 served to further substantiate their integral inclusion in Florida’s capital sentencing

scheme. Just eis in Fiore, the decision in Hurst v. State did not create a new rule; it merely identiﬁed

the substantive law set forth in the previously enacted version of Fla. Stat. 921.141. Just as in

Fiore, the same result must occur here in Mr. Boyd’s case. Absent a jury determination of each

element of capital ﬁrst degree murder beyond a reasonable doubt, there cannot be a constitutionally

valid determination of guilt and/0r sentence.

Florida’s substantive law identiﬁes the elements that separate ﬁrst degree murder from

capital ﬁrst degree murder. To be convicted of capital ﬁrst degree murder those elements must be

found in addition to the elements ofﬁrst degree murder. A conviction of capital murder without a

unanimous jury’s ﬁnding that the State proved those additional elements beyond a reasonable

doubt, violates the Due Process Clause. In re Winship, 397 US. 358 (1970). Without a

constitutional conviction of capital ﬁrst degree murder, any death sentence imposed is illegal

because it is in excess of the statutory maximum for a conviction of ﬁrst degree murder.

Under the governing substantive law at the time of the homicide at issue in Mr. Boyd’s

case, he was not convicted ofcapital ﬁrst degree murder because the elements set forth in Hurst v.

State and conﬁrmed in Chapter 2017-1 were not found to have been proven beyond a reasonable

doubt by a unanimous jury. Nof was the jury even instructed on the requirement to ﬁnd each

element ofthe greater offense ofcapital ﬁrst degree murder beyond a reasonable doubt. Therefore;

his death sentence must be vacated.

In Apprendi v. New Jersey, 530 U.S. 466, 469 (2000), the Supreme Court explained:

At stake in this case are constitutional protections of surpassing importance: the prescription of any deprivation of liberty without “due process of law,” Amdt. l4, and the guarantee that

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“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” Amdt.6. Taken together, these rights indisputably entitle a criminal defendant to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States

v. Gaudin, 515 U.S. 506, 510 (I995); see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); Winship, 397 U.S., at 364 (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”).

Apprendi, 530 U.S. at 476-77 (emphasis added).5 Apprendz' noted the historical basis for

the due process right:

Equally well founded is the companion right to have thejury verdict based on proof beyond a reasonable doubt. “The ‘demand for a higher degree of persuasion in criminal cases was recurrently

expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late

as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.’ C. McCormick, Evidence

§ 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940).” Winship, 397 U.S. at .361. We went on to explain that the reliance on the “reasonable doubt” standard among “ common-law jurisdictions ‘reﬂect[s] a profound judgment about the way in which law should be enforced and justice administered.’ ” 161., at 361-362 (quoting Duncan, 391 U.S., at 155).

Apprendi, 530 U.S. at 478.

The Supreme Court observed that the “reasonable doubt” standard demanded by due

process protects against erroneous convictions and government overreach:

As we made clear in Winship, the “reasonable doubt” requirement

“has [a] vital role in our criminal procedure for cogent reasons.” 397 U.S., at 363, 90 S. Ct. 1068. Prosecution subjects the criminal defendant both to “the possibility that he may lose his liberty upon conviction and the certainty that he would be stigmatized by the conviction.” Ibid. We thus require this, among other, procedural protections in order to “pr0vid[e] concrete substance for the

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presumption of innocence,” and to reduce the risk of imposing such deprivations erroneously. Ibzd.

Apprendi, 530 U.S. at 484 (emphasis added). In Sullivan v. Louisiana, 508 U.S. 275, 277-78

(1993), the Supreme Court addressed the Due Process Clause requirement: What the factﬁnder

must determine to return a verdict of guilty is prescribed by the Due Process Clause‘ The

prosecution bears the burden of proving all elements ofthe offense charged, see, e.g., Patterson v.

New York, 432 U.S. I97, 210 (1977); Leland 12. Oregon, 343 U.S. 790, 795 (1952), and must

persuade the factﬁnder “beyond a reasonable doubt” of the facts necessary to establish each of

those elements, see, e.g., In re Winship, 397 U.S. 358, 364 (1970); Cool v. United States, 409 U.S.

100, 104 (1972) (per curiam). The Sullivan Court found that the failure to instruct a jury on the

“beyond a reasonable doubt" standard was structural error.

The constitutional prohibition on ex post facto laws further supports the determination that

the elements of capital ﬁrst degree murder under § 921.141 have been present since its enactment.

“Bill Art. I, § 10 of the United States Constitution prohibits passage of any of Attainder, ex post

.” facto Law, or Law impairing the Obligations ofContracts. . Under the prohibition against ex post

facto laws, the substantive criminal law setting forth the elements of capital ﬁrst degree murder

must have been in existence on the day of the homicide in question. Applying a criminal law

enacted after a crime was committed that changes the elements or increases the punishment for

that crime is expressly prohibited. See Marks v. United States, 430 US. 188, 191-92 (1977)

(extending the protections of the Ex Post Facto Clause to the judiciary). If Chapter 2017-1

established new elements that did not exist on the date of the homicide, the use of those elements

to convict a defendant of the higher degree of murder or t0 enhance the punishment would be

prohibited. See Bouie v. City ofColz/mbia, 378 U.S. 347 (1964). That would mean every capital

defendant who has been convicted ofa homicide committed before the enactment ofChapter 2017-

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'in 1 on March 13, 2017 or the decision Hurst v. State on October 14, 2016 could not be convicted

of capital ﬁrst degree murder.

Jury instructions recently provided to defendants at capital trials establishes that even for

crimes which have been committed prior to its enactment, Section 921.141 as revised by Chapter

2017-1, is treated as controlling. For example, in the case of Kendrick Silver in June 2017, thejury

instructions promulgated as a result of the revision of § 921,141 and the enactment of Chapter

2017-1 were read to the jury. As part Of those instructions the jury was instructed that it was

required to unanimously ﬁnd that the State had proven all of the requisite elements of capital

murder beyond a reasonable doubt before returning a death recommendation. In essence, the

penalty phase at Mr. Silver’s trial served as determination of whether he was guilty of ﬁrst degree

capital murder, which is murder plus the four elements the jury is required to ﬁnd unanimously

under revised § 921.141. Thejury’s subsequent life recommendation was essentially an acquittal

of the higher degree of murder which precluded thejudge from imposing a sentence of death.

Thejury instructions in Silver demonstrate that in recent capital trials Chapter 2017-1 and

the revision of§ 921.141 is the governing substantive criminal law, dating at least as far back to

the date of the murder at issue there, 2006. Moreover, the court ﬁles in cases in which death

sentences have been vacated and new “penalty phases” ordered show that § 941.121 as revised is

being viewed by the State as controlling in homicides dating as far back as 1978.

Under§ 921.141 as revised, a death sentence is not authorized when the defendant has only

been convicted ofﬁrst degree murder. In the case of William White, his death sentence was vacated

on April 21, 2017, and a new “penalty phase” was ordered, Mr. White had been convicted of a

ﬁrst degree murder committed on June 5, 1978. White v. State, 415 So. 2d 719 (Fla. 1982), cert

denied, 459 U.S. 1 155 (1982). When the “penalty phase” was ordered on April 21, 2017, the State

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sought records from the Department of Corrections and considered how to proceed. After a period

oftime evaluating the evidence, it announced at the beginning ofa hearing on September 19, 2017

that it would not seek to carry its burden of proofand establish the elements necessary to allow the

judge at sentencing to consider death as the penalty. Thereupon, the judge imposed the only

authorized sentence for ﬁrst degree murder, life imprisonment.

' In other cases in which new “penalty phases” have been ordered, the ongoing proceedings

show that § 92 1 .141 as revised is being accepted as controlling as to homicides committed in 1980's

and 1990's. The State, in a number of such cases, have ﬁled or given notice of its intention to seek

the death penalty. The notice of intent to seek the death penalty is new. It must include a list of the

aggravating factors that the prosecution intends to prove beyond a reasonable doubt. See §

921.141(1), which references § 775.082, which was ﬁrst revised to include the ﬁling ofa notice to

seek the death penalty when Chapter 2016—l3, Laws of Florida was enacted on March 7, 2016.

In State v. Card, 1981-518—CFMA (Bay County), the Florida Supreme Court vacated the

death sentence and ordered a new “penalty phase” in May of 2017. Card v. Jones, 219 So. 3d 47

(Fla. 2017). Mr. Card was convicted of a ﬁrst degree murder. The homicide occurred on June 3,

1981. See Card v. State, 453 So. 2d 17, 18 (Fla. 1984). In a motion to withdraw ﬁled on November

7, 2017 by an attorney’s bfﬁce assigned to represent Mr. Card, it noted that the State had provided

a notice of intent to seek the death penalty.

In State v. Parker, 43-1982-CF-000352-C (Indian River County), Mr. Parker had been

convicted ofa ﬁrst degree murder that was committed on April 27, 1984. Parker v. State, 476 So.

2d 134, 135 (Fla. 1985). The circuit court vacated the death sentence and ordered a new “penalty

phase” in April of 2017. The State ﬁled a notice of intent to seek the death penalty on June 12,

2017.

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Treating the revised § 921.141 as governing capital prosecutions arising from murders

committed before the revisions were enacted, shows that the prosecutors involved do not see the

retrospective application of the revised statute as violating the Ex Post Facto Clause. Those

prosecutors are treating the elements ofcapital ﬁrst degree murder set forth in § 921.141 as revised

as deﬁning the criminal offense of capital ﬁrst degree murder at the time of the 1981 and 1984

homicides at issue in Card and Parker.

lfthe elements of capital ﬁrst degree murder were applicable to homicides committed in

1978, 1981 and 1984, the same substantive law was also applicable to the 1998 homicide for which

Mr. Boyd was convicted ofﬁrst degree murder. The Due Process Clause required those elements

to have been proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363 (1970). Based

upon Winship, the US Supreme Court held in Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993),

that a failure to instruct a jury on the “beyond a reasonable doubt” standard was profound or

structural error. However, Mr. Boyd’s jury was not instructed on the need to ﬁnd the aggravators

sufﬁcient beyond a reasonable doubt, nor was it instructed that it had to ﬁnd the aggravators

outweighed the mitigators beyond a reasonable doubt.

Mr. Boyd’s conviction and sentence are not valid as he was never convicted under Florida

law of the offense of capital ﬁrst degree murder. Mr. Boyd’s jury was never instructed on the

requirement that it ﬁnd three of the four elements of capital ﬁrst degree murder beyond a

reasonable doubt, Le. I) the aggravators were sufﬁcient, 2) the aggravators outweighed the

mitigators, and 3) there was no basis for a single juror to be merciful and vote to impose a life

sentence. The failure to instruct thejury on the need to ﬁnd all ofthe elements ofa criminal offense

beyond a reasonable doubt violates the Due Process Clause. Because,just like in Fiore, the Florida

Supreme Court held that the elements were not added but had been part of the statute since its

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enactment in 1972, the Due Process Clause is implicated and governs. Mr. Boyd is entitled to

relief.

Last, should this Court decline to grant Rule 3.851 relief, Mr. Boyd contends that in the

alternative he is entitled to a correction of his sentence pursuant to Fla. R. Crim. P. 3.800(a). Fla.

R. Crim. P. 3.800 states in pertinent part:

(a) Correction. A court may at any time correct an illegal sentence

imposed by it, or an incorrect calculation made by it in a

sentencing scoresheet, when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(l) [“Motion Before Appeal”] or during the pendency ofa direct appeal.

Fla. R. Crim. P. 3.800. In Plott v. State, 148 So. 3d 90 (Fla. 2014) the Florida Supreme Court

outlined both the function and purpose of Rule 3.800:

Fla. R. Crim. P. 3.800(a). Rule 3.800 allows defendants to petition “the courts to correct sentencing errors that may be identiﬁed on the

face of the record.” Williams v. State, 957 So. 2d 600, 602 (Fla.

2007). The intent of rule 3.800(a) is “to balance the need for ﬁnality of convictions and sentences with the goal of ensuring that criminal defendants do not serve sentences imposed contrary to the

requirements of law.” Carter v. State, 786 So. 2d 1173, 1176—78 (Fla. 2001).

Id. at 93. Although an “illegal sentence” is undeﬁned in rule 3,800, the Florida Supreme Court

has generally deﬁned an ‘illegal sentence” as one that imposes a punishment or penalty that no

judge under the entire body of sentencing statutes and laws could impose under any set of factual

circumstances," [6].; citing Williams, 957 So. 2d at 602 (quoting Carter, 786 So. 2d at 1181). While

the deﬁnition of what constitutes an ‘illégal sentence’ has changed over time, the Florida Supreme

Court has generally deﬁned an illegal sentence as “a sentence that patently fails to comport with

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statutory or constitutional limitation.” Id. at 94; citing State v. Mancino, 714 So. 2d 429, 433 (Fla.

1998).

Mr. Boyd has never been convicted Ofthe crime of capital ﬁrst degree murder. The Florida

Supreme Court’s interpretation of Fla. Stat. § 921.14] in Hurst v. State, as conﬁrmed by the

statutory revision effected by Chapter 2017—l, made clear that the sentencing statute deﬁned the

elements which were required to “essentially convict” a defendant of capital ﬁrst degree murder.

202 So. 3d at 53-54. The Court also made clear that those elements of capital ﬁrst degree murder

appeared in the statute itself and were longstanding. Id. at 53. Thus, the requirements that thejury

unanimously and beyond a reasonable doubt ﬁnd the existence ofthe aggravating factors, that the

aggravating circumstances were sufﬁcient to impose death and that the aggravating factors

outweighed the mitigation, were necessary elements which were required to convict a defendant

of capital ﬁrst degree murder. Proof of these facts is necessary for a conviction of capital ﬁrst

degree murder. Where the jury did not return any ﬁndings of fact nor were they instructed properly

as to the ‘beyond a reasonable doubt’ standard of proof, no determination ofthe necessary elements

could have been made. As a result, any sentence of death imposed by a judge at a sentencing

hearing necessarily exceeded their proper authority as it failed to comport with both the statutory

and constitutional limitations under § 921.141 and the Due Process Clause.

The failure to instruct Mr. Boyd’s jury on the requirement that it must ﬁnd beyond a

reasonable doubt that the aggravating factors were sufﬁcient to impose the death penalty and that

the aggravators outweighed the mitigating factors, violates the requirements of due process under

In re Winship, 397 U.S. at 364 (“[T]he Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with

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which he is charged”). Mr. Boyd’s illegal sentence cannot be cured as the result of thejury’s 12-0

recommendation. As the District Court noted in Harmon v. Secretary:

While the Respondent correctly contends that the jury did ﬁnd unanimously that the death penalty was warranted in Harmon’s case, Respondent’s simplistic view that this general unanimous jury ﬁnding precludes review under 2017-1 ignores the complexity ofthe various iterations of the Florida death sentencing scheme. At the

time that Harmon was sentenced, unanimity in recommending death

support a recommendation of death. Fla. Stat. § 921.141 (2017). Additionally, the jury must ﬁnd that sufﬁcient aggravating factors outweigh the mitigating factors, ‘if any, and the jury’s ultimate

recommendation of the death penalty must be unanimous. Id.

It cannot be disputed that these requirements were not met in the

sentencing phase of Hannon’s trial. The jury’s blanket recommendation ofthe death penalty, even though unanimous, does

not satisfy the requirements of 2017-1.

Harmon v. Sec ’y, Case 8: 1 7—cv—02609-MSS-TGW. So too is the case here, where Mr, Boyd’sjury

was not instructed on the requirement that it ﬁnd beyond a reasonable doubt all of the elements

necessary in order to impose a sentence of death. The result is that Mr. Boyd’s sentence of death

stands in violation of the Due Process Clause and constitutes an illegal sentence where the jury

failed to return unanimous ﬁndings of fact beyond a reasonable doubt as to the statutorily deﬁned

elements of capital ﬁrst degree murder under Fla. Stat. § 921.14]. A correction of Mr. Boyd’s

illegal sentence pursuant to Fla. R. Crim. P. 3.800(a) is warranted.

CONCLUSION AND RELIEF SOUGHT

Mr. Boyd prays for the following relief, based on his prima facie allegations demonstrating

violation of his constitutional rights:

1. That he be allowed to supplement and/0r amend this motion should new claims,

facts, or legal precedent become available to counsel;

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2. That he be allowed to reply to any State response to the instant motion;

3. That a case management conference/Huff hearing be scheduled following Mr.

Boyd’s reply for legal argument on all the claims;

4. That his convictions and sentences, including his sentence of death, be vacated.

CERTIFICATION PURSUANT TO FLA. R. CRIM. P. 3.851(e)

Pursuant to Fla. R. Crim P. 3.851(e)(2)(A) and (e)(l)(F), undersigned counsel hereby

certiﬁes that discussions with Mr. Boyd ofthis motion and its contents have occurred over a period

of time as relevant new Florida law has unfolded during the past year. Counsel has endeavored to

fully discuss and explain the contents of this motion with Mr. Boyd. Counsel also certiﬁes that to

the best ofher abilityr she has complied with Rule 4-1 .4 of the Rules of Professional Conduct, and

that this motion is ﬁled in good faith.

Respectfully submitted,

/5/ Suzanne Mvers Keffer SUZANNE MYERS KEFFER Chief Assistant CCRC-South Florida Bar No. 0150177 [email protected].ﬂ.us

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CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the foregoing motion have been furnished

by electronic mail via the Florida e-ﬁling portal system to all counsel of record on this 13th day of

March, 2018.

/S/ Suzanne Myers Keffer SUZANNE MYERS KEFFER Chief Assistant CCRC Florida Bar No. 0150177 [email protected].ﬂ.us

[9/ Scott Gavin SCOTT GAVIN Staff Attorney [email protected].ﬂ.us Florida Bar No. 0058651 Capital Collateral Regional Counsel — South

1 East Broward Boulevard, Suite 444 Fort Lauderdale, Florida 33301 (954) 713-1284

— 3/14/2018 7:11:46 AM Processed Time 211 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 8/15/2018 9:03:41 AM.****

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA, CASENO.99-58OQCF10A PLAINTIFF, JUDGE: ANDREW SIEGEL

VVVVVVVV LUCIOUS BOYD, DEFENDANT.

ORDER ON DEFENDANT’S SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE, AND ALTERNATIVELY MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.800

THIS CAUSE, having come to be heard on July 2, 2018, upon Defendant's

Successive Motion to Vacate Judgments of Conviction and Sentence, and Alternatively

Motion to Correct an Illegal Sentence Pursuant to Florida Rules of Criminal Procedure

3.800, pursuant to Florida Rules of Criminal Procedure 3.851 and 3.800(a), filed through counsel on March 13, 2018. The State filed a Response thereto on June 11, 2018. The

Court, having read the instant motion, having read the State’s response, having heard argument from counsel for the Defendant, having heard argument from counsel for the

State of Florida, having reviewed the court file, having reviewed the applicable law, and being otherwise fully advised in the premises, finds as follows:

On January 30, 2002, Defendant was convicted by a jury of one count of murder in the first degree, one count of armed sexual battery, and one count of armed kidnapping. He was sentenced to death on the count of murder in the first degree. He appealed his judgments and sentences, which were affirmed. Boyd v. State, 910 So. 2d

167 (Fla. 2005).

Page 1 of 5 212 In the instant motion, Defendant argues that under the revised Fla. Stat. §

921.141, the death penalty is authorized only upon finding the necessary elements required to convict a defendant of the greater offense of capital first degree murder.

Defendant’s motion fails for the following reasons:

1) Defendant is essentially attemptinq to relitiqate the issue of whether

he is entitled to resentencinq based on a Hurst error.

On October 5, 2016, Defendant filed a Petition for Writ of Habeas Corpus in the

Florida Supreme Court, alleging that he was entitled to a resentencing based on the decisions in Hurst v. Florida, _ U.S. _, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) and

Hurst v. State, 202 So. 3d 40 (Fla. 2016).1 The Supreme Court denied his petition. Boyd

*1 v. Jones, No. 8016-1812, 2017 WL 318931, at (Fla. Jan. 23, 2017) reh’g denied, No.

SC16—1812, 2017 WL 1081115, at *1 (Fla. Mar. 22, 2017). This ruling is the law of the case that is binding upon this Court. See State v. McBride, 848 So. 2d 287, 290 (Fla.

2003). In any event, Defendant is not entitled to a resentencing based on any alleged

Hurst error because he was sentenced based on a unanimous jury recommendation of death. Consequently, any Hurst error is harmless beyond a reasonable doubt. See Hall v. State, 212 So. 3d 1001, 1032 (Fla. 2017); Davis v. State, 207 So. 3d 142, 174 (Fla.

2016).

2) Neither Hurst nor Chapter 2017-1, Florida Laws, create a qreater

offense of capital first deqree murder.

Defendant argues that there exists a new greater offense of capital first degree murder, of which he was not convicted. Thus, his death sentence violates Due Process and the Eighth Amendment.

Ch. 2017-1 codified the ruling in Hurst requiring a-unanimous jury finding of all factors necessary to sentence a defendant to death. It amends the sentencing scheme

1 The Florida Supreme Court held that before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death

Page 2 of 5 213 in Fla. Stat. § 921.141; it did not amend Fla. Stat. § 775.082 to create a new crime of capital first degree murder.

Hurst does not support the proposition that the jury must find additional elements to convict a defendant of capital first degree murder. Rather, the jury must unanimously find certain factors beyond a reasonable doubt before the death sentence can be imposed. The court in Hurst used the words “elements” in the context of sentencing, and not in the context of finding a defendant guilty of a greater offense of capital first degree murder. 202 So. 3d at 53. It stated that by being sentenced to death, the defendant was essentially being convicted of capital first degree murder (emphasis added). Id. at 53—54. Although these findings may occupy a position on par with elements of a greater offense, they do not themselves create a greater offense. They are simply comparable in their need for a unanimous jury finding.

3) Ch. 2017—1 does not apply to Defendant.

Ch. 2017-1 only applies to Defendant if he was otherwise entitled to resentencing. See Lambrix v. State, 227 So. 3d 112, 113 (Fla. 2017); Taylor v. Scott, _

*8 So. 3d _, No. SC17—1501, 2018 WL 2057452, at (Fla. May 3, 2018). It does not independently entitle Defendant to resentencing. The Legislature’s failure to make the statute retroactive does not violate the Equal Protection Clause, Due Process Clause, or the Eighth Amendment. Lambrix v. Sec’y, DOC, 872 F.3d 1170, 1183 (11th Cir.

2017).

Ch. 2017-1 does not create a substantive right that entitles Defendant to resentencing. See Asay v. State, 224 So.3d 695, 703 (Fla. 2017); Lambrix, 227 So. 3d at 113. Ch. 2017-1 merely codifies the ruling in Hurst. Therefore, Defendant is not entitled to relief because any Hurst error is harmless beyond a reasonable doubt.

Defendant also argues that Hurst identifies elements of a statutorily defined offense that dates back to the enactment of Fla. Stat. § 921.141. However, Hurstdid not identify new elements of the statute or provide a new interpretation of the statute. It merely found the

Page 3 of 5 214 statutorily defined sentencing scheme unconstitutional. Therefore, neither Hurst nor Ch.

2017-1 date back to the date of the enactment of Fla. Stat. § 921.141.

4) Defendant’s sentence of death is not illegal under Fla. R. Crim. P.

3.800(a).

Defendant was convicted of the crime of first degree murder, which is a capital felony, and was a capital felony at the time of its commission. Fla. Stat.

§782.04(1)(a)(1999). Capital felonies shall be punishable by death if the sentencing provisions of Section 921.141 are met. Fla. Stat. § 775.082(1)(1999). An illegal sentence is “one that no judge under the entire body of sentencing laws could possibly impose.” Martinez v. State, 211 So. 3d 989, 991 (Fla. 2017) (citations omitted).

Defendant alleges that his death sentence is illegal because he was not convicted of the crime of capital first degree murder. As previously discussed, neither Hurst nor Ch.

2017-1 create a new higher offense of capital first degree murder. Instead, they merely changed the sentencing scheme. In any event the death sentence is not one that is reserved for an alleged new higher offense of capital first degree murder. This Court properly imposed a sentence of death pursuant to Fla. Stats. §§ 782.04, 775.082, and

921.141. Additionally, Defendant’s sentence is not illegal based on Hurst because, as previously discussed, any error is harmless beyond a reasonable doubt in light of the unanimous jury recommendation of death. Furthermore, the Florida Supreme Court has already rejected Defendant’s challenge to his death sentence. For the reasons above,

Defendant’s sentence is not illegal pursuant to Fla. R. Crim. P. 3.800(a).

Based on the foregoing, it is

Page 4 of 5 215 ORDERED AND ADJUDGED that Defendant’s Successive Motion to Vacate

Judgments of Conviction and Sentence, and Alternatively Motion to Correct an Illegal

Sentence Pursuant to Florida Rules of Criminal Procedure 3.800 is DENIED.

DONE AND ORDERED in Chambers, Fort Lauderdale, Broward County, Florida, this ﬂ: day of August, 2018. WGEL CIRCUIT COURT JUDGE

Copies furnished to:

Office of the State Attorney

Leslie Campbell, Esq. Office of the Attorney General 1515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401

Suzanne Myers Keffer, Esq. Scott Gavin, Esq. Attorneys for Defendant Capital Collateral Regional Counsel — South

1 East Broward Boulevard, Suite 444 Fort Lauderdale, Florida 33301

Page 5 of 5 216 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 8/15/2018 9:15:26 AM.****

BRENDA D. FORMAN CLERK OF CIRCUIT AND COUNTY COURT 177VH JUDICIAL CIRCUIT

201 Southeast 6‘“ Street Broward Coumy Courthouse Fort Lauderdale, FL 33301

Case Number: 99-005809-CF10A

State of Florida vs

Lucious Boyd

Certiﬁcate of Clerk pursuant to Florida Rules of Court 3.850( i)

1, Brenda D. Forman, Clerk of the Courts, Broward County, Florida hereby certify that a copy of the Order Denying Defendant’s Successive Motion to Vacate Judgments of Conviction and

Sentence has been mailed to the defendant’s attorney at the address below, to wit:

Scott Gavin, Esq. Capital Collateral Regional Counsel-South

1 East Broward Blvd., Ste. 444 Fort Lauderdale, FL 33301

Date: August 15, 2018

Brenda D. Forman, Clerk Circuit and County Court

Amanda D. Banks, DepuYy Clerk

Certiﬁcate of Service Denying Post Conviction

217 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA, CASENO.99-58OQCF1OA PLAINTIFF, JUDGE: ANDREW SIEGEL

LUCIOUS BOYD, DEFENDANT.

ORDER ON DEFENDANT’S SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE, AND ALTERNATIVELY MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.800

THIS CAUSE, having come to be heard on July 2, 2018, upon Defendant's

Successive Motion to Vacate Judgments of Conviction and Sentence, and Alternatively

Motion to Correct an Illegal Sentence Pursuant to Florida Rules of Criminal Procedure

3.800, pursuant to Florida Rules of Criminal Procedure 3.851 and 3.800(3), filed through counsel on March 13, 2018. The State filed a Response thereto on June 11, 2018. The

Court, having read the instant motion, having read the State’s response, having heard argument from counsel for the Defendant, having heard argument from counsel for the

State of Florida, having reviewed the court file, having reviewed the applicable law, and being otherwise fully advised in the premises, finds as follows:

wast On January 30, 2002, Defendant convicted by a jury of one count of murder in the first degree, one count of armed sexual battery, and one count of armed kidnapping. He was sentenced to death on the count of murder in the first degree. He appealed his judgments and sentences, which were affirmed. Boyd v. State, 910 So. 2d

167 (Fla. 2005).

Page 1 of 5 218 In the instant motion, Defendant argues that under the revised Fla. Stat. §

921.141, the death penalty is authorized only upon finding the necessary elements required to convict a defendant of the greater offense of capital first degree murder.

Defendant’s motion fails for the following reasons:

1) Defendant is essentially attemptinq to relitiqate the issue of whether

he is entitled to resentencinq based on a Hurst error.

On October 5, 2016, Defendant filed a Petition for Writ of Habeas Corpus in the

Florida Supreme Court, alleging that he was entitled to a resentencing based on the decisions in Hurst v. Florida, _ U.S. _, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) and

Hurst v. State, 202 So. 3d 40 (Fla. 2016).1 The Supreme Court denied his petition. Boyd

*1 v. Jones, No. 8016—1812, 2017 WL 318931, at (Fla. Jan. 23, 2017) reh’g den/ed, No.

SC16-1812, 2017 WL 1081115, at *1 (Fla. Mar. 22, 2017). This ruling is the law of the case that is binding upon this Court. See State v. McBride, 848 So. 2d 287, 290 (Fla.

2003). In any event, Defendant is not entitled to a resentencing based on any alleged

2016).

2) Neither Hurst nor Chapter 2017-1, Florida Laws, create a qreater

offense of capital first deqree murder.

Defendant argues that there exists a new greater offense of capital first degree murder, of which he was not convicted. Thus, his death sentence violates Due Process and the Eighth Amendment.

Ch. 2017-1 codified the ruling in Hurst requiring a unanimous jury finding of all

factors necessary to sentence a defendant to death. It amends the sentencing scheme

' The Florida Supreme Court held that before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating factors, and unanimously recommend a sentence of death

Page 2 of 5 219 in Fla. Stat. § 921.141; it did not amend Fla. Stat. § 775.082 to create a new crime of capital first degree murder.

degree murder. 202 So. 3d at 53. It stated that by being sentenced to death, the defendant was essentially being convicted of capital first degree murder (emphasis added). Id. at 53-54. Although these findings may occupy a position on par with elements of a greater offense, they do not themselves create a greater offense. They are simply comparable in their need for a unanimous jury finding.

3) Ch. 2017-1 does not apply to Defendant.

Ch. 2017—1 only applies to Defendant if he was otherwise entitled to resentencing. See Lambrix v. State, 227 So. 3d 112, 113 (Fla. 2017); Taylor v. Scott, _ *8 86. 3d _, No. SC17-1501, 2018 WL 2057452, at (Fla. May 3, 2018). It does not independently entitle Defendant to resentencing. The Legislature’s failure to make the statute retroactive does not violate the Equal Protection Clause, Due Process Clause, or thé Eighth Amendment. Lambrix v. Sec’y, DOC, 872 F.3d 1170, 1183 (11th Cir.

2017).

Ch. 2017-1 does not create a substantive right that entitles Defendant to resentencing. See Asay v. State, 224 So.3d 695, 703 (Fla. 2017); Lambrix, 227 So. 3d at 113. Ch. 2017—1 merely codifies the ruling in Hurst. Therefore, Defendant is not entitled to relief because any Hurst error is harmless beyond a reasonable doubt.

Defendant also argues that Hurst identifies elements of a statutorily defined offense that dates back to the enactment of Fla. Stat. § 921.141. However, Hurst did not identify new elements of the statute or provide a new interpretation of the statute. It merely found the

Page 3 of 5 220 statutorily defined sentencing scheme unconstitutional. Therefore, neither Hurst nor Ch.

2017—1 date back to the date of the enactment of Fla. Stat. § 921.141. 4) MDefendant’s sentence of death is not illeqal under Fla. R. Crim. P. Defendant was convicted of the crime of first degree murder, which is a capital felony, and was a capital felony at the time of its commission. Fla. Stat.

§782.04(1)(a)(1999). Capital felonies shall be punishable by death if the sentencing provisions of Section 921.141 are met. Fla. Stat. § 775.082(1)(1999). An illegal sentence is “one that no judge under the entire body of sentencing IaWS could possibly impose.” Man‘inez v. State, 211 So. 3d 989, 991 (Fla. 2017) (citations omitted).

Defendant alleges that his death sentence is illegal becausevhe was not convicted of the crime of capital first degree murder. As previously discussed, neither Hurst nor Ch.

2017—1 create a new higher offense of capital first degree murder. Instead, they merely changed the sentencing scheme. In any event the death sentence is not one that is reserved for an alleged new higher offense of capital first degree murder. This Court properly imposed a sentence of death pursuant to Fla. Stats. §§ 782.04, 775.082, and

921.141. Additionally, Defendant’s sentence is not illegal based on Hurst because, as previously discussed, any error is hérmless beyond a reasonable doubt in light of the unanimous jury recommendation of death. Furthermore, the Florida Supreme Court has already rejected Defendant’s challenge to his death sentence. For the reasons above,

Defendant’s sentence is not illegal pursuant to Fla. R. Crim. P. 3.800(a).

Based on the foregoing, it is

Page 4 of 5 221 ORDERED AND ADJUDGED that Defendant‘s Successive Motion to Vacate

Judgments of Conviction and Sentence, and Alternatively Motion to Correct an Illegal

Sentence Pursuant to Florida Rules of Criminal Procedure 3.800 is DENIED.

DONE AND ORDERED in Chambers, Fort Lauderdale, Broward County, Florida, this \ffi day of August, 2018. \\ ngQL-‘wfirNfiREV/VflEGEL‘ CIRCUIT COURT JUDGE Copies furnished to: / Office of the State Attorney /

Leslie Campbell, Esq. Office of the Attorney General 1515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401

Suzanne Myers Keffer, Esq; Scott Gavin, Esq. Attorneys for Defendant Capital Collateral Regional Counsel -— South

1 East Broward Boulevard, Suite 444 Fort Lauderdale, Florida 33301

Page 5 of 5 222 Filing # 77834181 E-Filed 09/13/2018 11:07:21 AM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA, Plaintiff, CASE NO.: 99-005809CF10A

LUSCIOUS BOYD, Defendant.

NOTICE OF APPEAL

THE DEFENDANT, LUSCIOUS BOYD, by and through undersigned counsel, ﬁles this notice

of appeal to the Supreme Court of Florida to review the ﬁnal order of the Circuit Court of the

Seventeenth Judicial Circuit, in and for Broward County, Florida, “Order On Defendant’s Successive

Motion to Vacate Judgment Of Conviction And Sentence, And Alternatively Motion To Correct An

Illegal Sentence Pursuant To Florida Rules Of Criminal Procedure 3.800” dated August 14th, 2018. The

nature of the Order appealed from is a denial of postconviction relief sought under Florida Rules of

Criminal Procedure 3.851 and on all other rulings, actions, or acts rendered adversely to the Defendant.

All parties to said cause are hereby notiﬁed of the entry of this appeal.

223 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 9/13/2018 11:07:20 AM.**** Certiﬁcate of Service

I HEREBY CERTIFY that a true copy of the foregoing notice of appeal has been furnished by

U.S. Mail to the parties listed this 13th day of September, 2018.

/S/ Suzanne Keﬁer SUZANNE MYERS KEFFER Chief Assistant CCRC—South Florida Bar No. 0150177

SCOTT GAVIN CCRC-South Staff Attorney Florida Bar No. 0058651

The Ofﬁce of the Capital Collateral Regional Counsel-South

1 E Broward Blvd, Suite 444 Ft. Lauderdale, FL 33301 (954) 713-1284 (954) 713—1299 (facsimile) Counsel for Mr. Boyd

Copies furnished to:

The Honorable Andrew Siegel Broward County Courthouse 201 SE 6th Street, Rm. 7880 Ft. Lauderdale, FL 33301

Leslie T. Campbell Assistant Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach, FL 33401

Carolyn McCann, Assistant State attorney J 061 Silvershein, Assistant State Attorney Ofﬁce of the State Attorney Broward County Courthouse 201 SE 6th Street Ft. Lauderdale, FL 33301

224 Filing # 77834181 E-Filed 09/13/2018 11:07:21 AM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA, Plaintiff, CASE NO.: 99-005809CF10A

LUCIOUS BOYD Defendant.

DIRECTIONS TO THE CLERK

THE DEFENDANT, LUCIOUS BOYD, directs the Clerk to include all items ﬁled in this

Florida Rule of Criminal Procedure 3.851 proceeding as described in 921.141(4), Florida Statutes, and in

Rules 9.140(b)(4) and 9.200(a)(1), Florida Rules of Appellate Procedure. Pursuant to Rule 9.200(a)(2),

Florida Rules of Appellate Procedure Mr. Boyd respectfully directs the Clerk to include in the record on

appeal in this case all pleadings, notices of hearing, orders, original documents, exhibits (whether entered

into evidence or proffered for purpose of appeal) and transcripts of proceedings from March 13, 2018

through the present.

225 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 9/13/2018 11:07:20 AM.**** Certiﬁcate of Service

I HEREBY CERTIFY that a true copy of the foregoing Directions to the Clerk has been

furnished by U.S. Mail to the parties listed this 13th day of September, 2018.

/S/ Suzanne Keﬁer SUZANNE MYERS KEFFER Special Assistant CCRC-South Florida Bar No. 0150177

SCOTT GAVIN CCRC—South Staff Attorney Florida Bar No. 0058651

The Ofﬁce of the Capital Collateral Regional Counsel-South

1 E. Broward Blvd Ste. 444 Ft. Lauderdale, FL 33301 (954) 713-1284 (954) 713-1299 (facsimile) Counsel for Mr. Boyd

Copies furnished to:

The Honorable Andrew Siege] Broward County Courthouse 201 SE 6th Street, Rm. 7880 Ft. Lauderdale, FL 33301

Leslie T. Campbell Assistant Attorney General 1515 North Flagler Drive Suite 900 West Palm Beach, FL 33401

Carolyn McCann, Assistant State attorney Joel Silvershein, Assistant State Attorney Ofﬁce of the State Attorney Broward County Courthouse 201 SE 6th Street Ft. Lauderdale, FL 33301

226 Filing # 77834181 E-Filed 09/13/2018 11:07:21 AM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD, FLORIDA

STATE OF FLORIDA, Plaintiff, CASE NO.: 99-005809CF10A

LUCIOUS BOYD, Defendant.

DEFENDANT'S DESIGNATION TO COURT REPORTER AND REPORTER'S ACKNOWLEDGMENT

I. DESIGNATION.

The DEFENDANT, LUCIOUS BOYD, ﬁles this Designation to Reporter and directs the court

reporter, to transcribe and ﬁle in the court ﬁle an original of the following hearings 0f the post-

conviction proceedings to be used in this appeal:

July 2, 2018

The Court Reporter (Ofﬁcial Reportng Service/Boss Certiﬁed Realtime Reporting) is directed to

ﬁle an original With the clerk of the lower tribunal, consecutively paginated, along with three (3) diskettes

for each transcript, according to the Rules of Appellate Procedure.

I, counsel for Defendant, certify that CCRC-South is a State agency and responsible for payment

for reasonable costs associated with the preparation of the transcripts for the purposes of appeal.

/S/ Suzanne Keﬂer SUZANNE MYERS KEFFER Chief Assistant—CCRC-South

227 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 9/13/2018 11:07:20 AM.**** II. REPORTER'S ACKNOWLEDGMENT.

1. The designation was served on September _, 2018, and received on September _,

2018.

2. Satisfactory arrangements have/have not been made for payment of the transcript cost.

These ﬁnancial arrangements were completed on , 2018.

3. Number of hearing days to be transcribed:

4. Estimated number of pages:

5a. The transcript will be available Within __ days of service of the foregoing designation

and will be ﬁled on or before the of 2018. _ day , OR

5b. For the following reason(s) the court reporter requests an extension of time of _ days for preparation of the transcript which Will be ﬁled on or before the __ day of

, 2018:

Completion and ﬁling of this acknowledgment by the court reporter constitutes submission to the jurisdiction of the Court for all purposes in connection with these appellate proceedings.

7. The undersigned court reporter certiﬁes that the foregoing is true and correct and

that a has been furnished mail/hand this of to copy by delivery ___day , 2018,

each of the parties or their counsel.

Court Reporter

228 Certiﬁcate of Service

I HEREBY CERTIFY that a true copy of the foregoing Designation t0 the Court Reporter has

been furnished by U.S. Mail to the parties listed this 13th day of September, 2018.

/S/ Suzanne Ke er SUZANNE MYERS KEFFER Chief Assistant CCRC-South Florida Bar No. 0150177

SCOTT GAVIN CCRC-South Staff Attorney Florida Bar No. 0058651

The Ofﬁce of the Capital Collateral Regional Counsel-South

1 East Broward Blvd, Suite 444 Ft. Lauderdale, FL 33301 (954) 713-1284 (954) 713-1299 (facsimile) Counsel for Mr. Boyd

Copies furnished to:

The Honorable Andrew Siege] Broward County Courthouse 201 SE 6th Street, Rm. 7880 Ofﬁcial Reportng Service Ft. Lauderdale, FL 33301 524 S. Andrews Ave, Ste. 302N Ft. Lauderdale, FL 33301 Leslie T. Campbell Assistant Attorney General Boss Certiﬁed Realtime Reporting 1515 North Flagler Drive 515 E Las Olas Blvd Suite 900 Ft. Lauderdale, FL 33301 West Palm Beach, FL 33401

Carolyn McCann, Assistant State attorney Joel Silvershein, Assistant State Attorney Ofﬁce of the State Attorney Broward County Courthouse 201 SE 6th Street Ft. Lauderdale, FL 33301

229 **** FILED: BROWARD COUNTY, FL Brenda D. Forman, CLERK 10/4/2018 2:16:10 PM.****

Page 1

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CRIMINAL DIVISION JUDGE: ANDREW SIEGEL

CASE NO. 99—005809CF10A

THE STATE OF FLORIDA,

Plaintiff,

Vs.

LUCIOUS BOYD,

Defendant.

Broward County Courthouse 201 Southeast Sixth Street Fort Lauderdale, Florida Monday, 1:30 PM, July 2nd, 2018

COURT PROCEEDINGS

The above entitled proceedings came on before the Honorable ANDREW SIEGEL, Broward Count Circuit Judge, on Monday, July 2nd, 2018, commencing at or about 1:30 p.m.

Boss Certified Realtime Reporting 954—467—6867 230 Page 2 APPEARANCES:

Attorney General's Office, LESLIE CAMPBELL, Assistant Attorney General, West Palm Beach, 561—837—5000 on behalf of the State.

Offices of Regional Conflict Counsel, Susan Myers Keffer, Chief Assistant CCRC, Fort Lauderdale, Florida 954—713~1284 On behalf of Loucious Boyd. 10 ll *Rule l.31(g)Florida Rules of Civil Procedure requires copies to be obtained 12 From the court reporter, unless the Court rules otherwise. l3

15 I N D E X

17 STATE WITNESS DIRECT CROSS REDIRECT

Boss Certified Realtime Reporting 954—467—6867 231 Page 3 Thereupon:

The following proceedings were had with all

parties present:

THE COURT: Loucious Boyd, defense successive

motion to vacate judgment and conviction.

MS. KEFFER: Yes.

THE COURT: Okay. State's response to the

successful motion.

MS. CAMPBELL: Do you prefer we come up?

10 THE COURT: Yes. Understand.

11 MS. KEFFER: Susan Keffer, Chief Assistant,

12 CCRC, on behalf of Mr. Boyd. We are here on a

13 motion of post—conviction relief.

14 It relates to the newly enacted Chapter

15 2017—l, which amended Florida Statute 921.141.

16 Basically, Your Honor, the one thing I would

17 like to point out, because the State puts a lot

18 of emphasis on the fact that Mr. Boyd's claim has

19 already been denied.

20 In order for Your Honor to get relief under

21 this new claim, you have to overrule the Florida

22 Supreme Court. That's not the case.

23 This is a new and distinct claim. Mr. Boyd

24 in his Habeas petition in front of the Florida

25 Supreme Court did not raise a construction of the

Boss Certified Realtime Reporting 954—467—6867 232 Page 4

statute claim.

And certainly, a judicial ruling rejecting

one constitutional challenge to a death sentence,

does not mean it is protected against all

constitutional Challenges.

Especially, here, where the claim rests on

distinctly different legal arguments. To that

extent} we have set forth a Claim very clearly in

the 3851. And I would simply arrest on those

10 arguments.

ll THE COURT: Okay. From the State.

12 - MS. CAMPBELL: Good afternoon, Your Honor,

13 Leslie Campbell with the Attorney Geheral's

14 Office.

15 The issue, the Hurst issue, whether or not

16 there should be any relief based on Hurst v.

17 State, and Hurst V. Florida has been decided by

18 the Florida Supreme Court. So to that extent

19 this case has been decided.

20 Now, the new statute is an off'shoot of Hurst

21 v. State. And since that came out the Florida

22 Supreme Court has not guaranteed any relief on

23 any of the 8th Amendment challenges that have

24 been filed.

25 it is the State's position that this is the

Boss Certified Realtime Reporting 954—467—6867 233 Page 5

law of the case issue, as well as on the law that

the Florida Supreme Court has set. On that

precedent the relief should be denied.

THE COURT: Okay.

You are relying upon the argument made and

nothing else.

MS. KEFFER: Yes, Your Honor.

THE COURT: Okay. That's all I need. Okay.

Thank you. We are good. You will get your

10 ruling as soon as I could get to it, not that

11 long.

12 Okay. Thank you.

13 MS. KEFFER: Thank you.

14 (Thereupon, the proceedings were concluded.)

22»

Boss Certified Realtime Reporting 954—467—6867 234 COURT CERTIFICATE

STATE OF FLORIDA: )

COUNTY OF BROWARDz)

I, JVETTE GARCIA, Registered Professional Reporter certify that I was authorized to and did stenographically report the foregoing proceeding, and that the transcript is a true and complete record of my stenographic notes.

10 ll Dated this 27th day of September, 2018.

15 JVETTE COWLEY GARCIA, CR l6 Notary Public, State of Florida Large; my commission 17 expires February 21, 2020. No. 616831981 18

Boss Certified Realtime Reporting 954—467—6867 235 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY

CERTIFICATE OF THE CLERK

LUCIOUS BOYD 99-5809 CF10A APPELLANT CASE NUMBER:

STATE OF FLORIDA SC18 - 1589 APPELLEE APPEAL NUMBER

______

I, BRENDA D FORMAN, CLERK OF THE CIRCUIT COURT, 17TH JUDICIAL CIRCUIT FOR THE COUNTY OF BROWARD, STATE OF FLORIDA, DO HEREBY CERTIFY THAT THE FOREGOING PAGES 1 TO 235 CONTAIN A TRUE AND CORRECT COPY OF ALL SUCH PLEADINGS AND PROCEEDINGS IN SAID CAUSE AS APPEARS FROM THE RECORDS AND FILES OF MY OFFICE THAT HAVE BEEN DIRECTED TO BE INCLUDED IN SAID RECORD.

VOLUME 1__ PAGES ___ TO , INCLUSIVE EMBRACE THE TRANSCRIBED NOTES OF THE REPORTER AS MADE AT THE TRIAL AND CERTIFIED TO ME BY COURT REPORTER

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF SAID COURT THIS 5TH DAY OF OCT , 2018

BRENDA D. FORMAN, CLERK CIRCUIT COURT BROWARD COUNTY, FLORIDA /s/ JORGE LAZCANO BY ______JORGE LAZCANO DEPUTY CLERK 954-831-5748 201 SE 6TH STREET, RM. 220 FT. LAUDERDALE, FL. 33301 [email protected]