IN THE SUPREME COURT OF FLORIDA CASE NO. SC06-16 JOSE JIMENEZ, Petitioner, vs. THE STATE OF FLORIDA, Respondent. ON PETITION FOR WRIT OF PROHIBITION/MANDAMUS RESPONSE CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida SANDRA S. JAGGARD Assistant Attorney General Florida Bar No. 0012068 Office of the Attorney General Rivergate Plaza -- Suite 650 444 Brickell Avenue Miami, Florida 33131 PH. (305) 377-5441 FAX (305) 377-5655 TABLE OF CONTENTS INTRODUCTION ................................................ 1 STATEMENT OF THE CASE AND FACTS ............................. 2 ARGUMENT ................................................... 10 CONCLUSION ................................................. 13 CERTIFICATE OF SERVICE ..................................... 13 ii INTRODUCTION In his Petition, Petitioner refers to the both the Department of Financial Services and the prosecution as the State without distinguishing between them. However, these entities are distinct, and Petitioner has treated them as such by serving certain pleadings only on one or the other of these entities. As such, Respondent will refer to the entity that prosecuted Petitioner as the State and the Department of Financial Services as DFS. 1 STATEMENT OF THE CASE AND FACTS During the pendency of the appeal from the denial of Petitioner’s first motion for post conviction relief, Petitioner filed a pro se motion entitled Petition for Writ of Habeas Corpus, Seeking a Belated Appeal. (App. A) The gravamen of this motion was that Petitioner was unhappy with his post conviction counsel and sought the appointment of new counsel. Because the first post conviction appeal was pending, consideration of this motion was deferred until jurisdiction returned to the trial court. On May 14, 2002, Martin McClain sought appointed from the Southern District of Florida to represent Petitioner in a federal habeas petition. (App. B) A hearing was then conducted on Petitioner’s pro se motion in state court, at which Petitioner was present telephonically. At the conclusion of this hearing, Petitioner’s former post conviction counsel was discharged, and Mr. McClain was appointed as registry counsel by the trial court. (App. C) McClain was also appointed to represent Petitioner in the filing of a federal habeas petition by the Southern District. (App. D) On December 13, 2002, Petitioner filed a petition for writ of habeas corpus in this Court. Jimenez v. Crosby, SC02-2600. The petition raised three claims: 2 CLAIM I [PETITIONER] WAS DEPRIVED OF HIS STATUTORY RIGHT TO EFFECTIVE REPRESENTATION IN COLLATERAL PROCEEDINGS. A. Florida Provides a Substantive Right to Effective Assistance of Collateral Representation in Capital case. B. [Petitioner’s] Collateral Counsel’s Representation Failed to Deliver the Effective Representation That Had Been Promised. 1. Refused to meet with client. 2. Denigrate Client to fact tribunal. 3. Violated confidentiality obligation. 4. Waived without consent client’s Chapter 119 rights. 5. Abandoned any advocacy on [Petitioner’s] behalf. 6. Abandoned all of [Petitioner’s] appellate issues. 7. Waived without consent the right to seek habeas relief. C. [Petitioner] Must Be Afforded the Same Relief Afforded Others Who Were Deprived of Adequate Collateral Representation. CLAIM II [PETITIONER] WAS DEPRIVED OF DUE PROCESS WHEN JUDGE ROTHENBERG ENGAGED IN EX PARTE CONTACT WITH LOUIS CASUSO AND CONSIDERED ONLY MR. CASUSO’S SIDE WITHOUT PERMITTING [PETITIONER] TO BE HEARD. A. Notice and Opportunity To Be Heard. B. Fair and Impartial Judge. CLAIM III THE FLORIDA CAPITAL SENTENCING PROCEDURES AS EMPLOYED IN [PETITIONER’S] CASE VIOLATED HIS SIXTH AMENDMENT RIGHT TO HAVE A JURY RETURN A VERDICT ADDRESSING HIS GUILT OF ALL THE ELEMENTS NECESSARY FOR THE CRIME OF CAPITAL FIRST DEGREE MURDER. (App. E) This Court denied the petition on June 10, 2003. Jimenez v. Crosby, 861 So. 2d 429 (Fla. 2003). 3 On January 20, 2004, Petitioner filed his federal habeas petition in the Southern District of Florida. (App. F) Among the claims raised in that Petition were claims that he was entitled to retroactive application of Delgado v. State, 776 So. 2d 233 (Fla. 2000), pursuant to Fiore v. White, 531 U.S. 225 (2001); that the State had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the involvement of a private investigator hired by the paramour of the victim of another murder Petitioner committed in the investigation of both cases, information about a cab driver and information showing that Jeffery Allen was a police informant and failed polygraphs; that the State knowingly presented perjured testimony, in violation of Giglio v. United States, 405 U.S. 150 (1972), by misleading the defense regarding the circumstances of listing Jeffery Allen as a witness, misleading the defense regarding the involvement of the other victim's investigator and misleading the trial court regarding the reason for a trip to California; and that counsel was ineffective for failing to call Off. Cardona to impeach Mr. Merriweather's and the detectives' testimony, failing to attempt to impeach Ms. Baron with her desk calendar, failing to present evidence that the residents of the apartment complex knew Ms. Minas had been stabbed, failing to investigate whether Petitioner had been in Ms. Minas's apartment, failing to 4 preserve adequately restrictions on cross examination or to question the witnesses properly when they were called by the defense, failing to impeach Mr. Merriweather properly and failing to present the testimony of the cab driver. According to Petitioner, Mr. McClain filed a motion for attorney’s fees on April 6, 2004. No such motion was ever served on the State. According to the June 7, 2005 letter from Mr. McClain to Terry Catledge from DFS (which Petitioner has attached to his Petition as Appendix 1, Attachment E), Mr. McClain never set this motion for hearing.1 On May 24, 2004, Petitioner filed a successive petition for writ of habeas corpus in this Court, raising 2 claims: I. [PETITIONER’S] CONVICTION FOR BURGLARY VIOLATES HIS RIGHTS TO DUE PROCESS AND TO NOTICE AND A MEANINGFUL OPPORTUNITY TO BE HEARD, AS WELL AS THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. II. [PETITIONER’S] RIGHT TO CONFRONTATION WAS VIOLATED AT THE PENALTY PHASE OF HIS CAPITAL TRIAL, IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (App. H) This Court denied the petition on March 18, 2005. Jimenez v. Crosby, 905 So. 2d 125 (Fla. 2005). 1 During this time period, Mr. McClain was assisting Petitioner in seeking post conviction relief from the other murder conviction, which was not used as an aggravator in this case. 5 On March 24, 2005, the federal district court entered an order granting the State’s motion to dismiss the federal habeas petition as untimely without prejudice to Petitioner amending to add allegation to make the petition timely. (App. I) Among the allegations that Petitioner was allowed to include in his amendment was when the factual basis of the Brady and Giglio claims was learned or could have been learned through an exercise of due diligence. Petitioner filed his amendment on April 25, 2005. On April 28, 2005, Petitioner filed a successive motion for post conviction relief in the trial court. (App. J) In that motion, Petitioner asserted the Brady, Giglio and ineffectiveness claims that he had raised in his federal habeas petition filed in January 2004, and a claim of newly discovered evidence regarding the reliability of fingerprint evidence based on a withdraw order from a federal district court in Pennsylvania. The State responded to that motion on May 18, 2005. (App. K) On July 12, 2005, the trial court entered an order setting the Huff hearing for July 27, 2005. (App. L) At the Huff hearing, Petitioner was allowed to argue his motion fully. At the conclusion of the hearing, the trial court took the matter (App. G) 6 under advisement. The State subsequently received telephonic notice from the Judicial Assistant that a hearing was scheduled for September 9, 2005. The State appeared at the hearing, which was conducted in open court with a court reporter present. When the case was called, the State informed the trial court that Petitioner’s counsel was not present. The trial court informed the State that Petitioner’s counsel would not be appearing but that it was denying the motion. The court stated that it would be faxing the order to the State after a typographical error was corrected. When the State received its copy of the order, the State prepared and filed a notice to the federal court that the order had been entered, attaching a copy of the order, because the order was relevant to issues pending in the federal court. (App. M) The notice was sent on September 22, 2005. On September 23, 2005, Petitioner sent a motion to compel, claiming that the copy of the notice he received did not have the order attached. (App. N) The State responded to the motion and provided another copy of the order.2 (App. O) On October 3, 2005, Petitioner served the State with a 2 The federal court denied Petitioner’s federal habeas petition on January 30, 2006. 7 motion to disqualify the trial court for allegedly conducting an ex parte communication with the State and a motion for rehearing. (App. P, Q) The motion to disqualify was not filed until October 5, 2005. According to Petitioner, he also filed another motion for attorney’s fees at the same time. The State was not served with this motion and was unaware it had been filed. It does not appear that Petitioner has ever set this motion for hearing. On October 19, 2005, the State filed responses to the motions to disqualify and for rehearing. (App. R, S) The State pointed out that the motion to disqualify was untimely and meritless and the motion for rehearing was an improper attempt to reargue the merits of his motion.