Asay v. State

• Decision Date: 14 August 2017
• Docket Number: No. SC17-1400 No. SC17-1429.,SC17-1400 No. SC17-1429.
• Parties: Mark James ASAY, Appellant, v. STATE of Florida, Appellee. Mark James Asay, Petitioner, v. Julie L. Jones, etc., Respondent.
• Court: Florida Supreme Court

224 So.3d 695

Mark James ASAY, Appellant,
v.
STATE of Florida, Appellee.

Mark James Asay, Petitioner,
v.
Julie L. Jones, etc., Respondent.

No. SC17-1400 No. SC17-1429.

Supreme Court of Florida.

[August 14, 2017]

Martin J. McClain and Linda McDermott of McClain & McDermott, P.A., Wilton Manors, Florida; and John Abatecola, Estero, Florida, for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant Attorney General, Tallahassee, Florida, for Appellee/Respondent

Karen M. Gottlieb of Florida Center for Capital Representation at Florida International University College of Law, Miami, Florida, for Amicus Curiae Florida Center for Capital Representation at Florida International University College of Law

PER CURIAM.

Mark James Asay, a prisoner under sentences of death with an active death warrant, appeals the circuit court's order denying his third successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

224 So.3d 697

BACKGROUND

The underlying facts of this case have been previously set forth in this Court's opinion on direct appeal. See Asay v. State (Asay I ), 580 So.2d 610, 610–12 (Fla.), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991). A majority of the details described therein are accurate, with the following exceptions relating to Asay's second victim. We have previously described the victim born Robert McDowell as "a black man dressed as a woman." McDowell was known to friends and neighbors as Renee Torres. Torres was identified at trial by everyone who testified as white and Hispanic. Renee Torres née Robert McDowell may have been either white or mixed-race, Hispanic but was not a black man. We regret our previous error.

After trial, Mark Asay was convicted of two counts of first-degree murder for which a jury voted nine to three to recommend death sentences. We affirmed the convictions and sentences in Asay I, 580 So.2d 610.¹ Asay's sentences became final when the United States Supreme Court denied his petition for writ of certiorari on October 7, 1991. Asay v. Florida, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991).

We affirmed the denial of Asay's initial motion for postconviction relief. Asay v. State (Asay II ), 769 So.2d 974 (Fla. 2000).² We also denied Asay's petition for a writ of habeas corpus, filed October 25, 2001.³

224 So.3d 698

Asay v. Moore (Asay III ), 828 So.2d 985, 989 n.8 (Fla. 2002).

We affirmed the denial of Asay's successive motion for postconviction relief, in which he argued that Florida's capital sentencing scheme was unconstitutional pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Asay v. State (Asay IV ), 892 So.2d 1011 (Fla. 2004) (table). Additionally, Asay sought and was denied federal relief.⁴ Asay v. Sec'y, Fla. Dep't of Corr., Case No. 3:05-cv-00147-J-32PDB, 2014 WL 1463990 at *28 (N.D. Fla. Apr. 14, 2014).

On January 8, 2016, Governor Rick Scott signed a death warrant scheduling Asay's execution on March 17, 2016. On January 12, 2016, the United States Supreme Court issued its decision in Hurst v. Florida, ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), holding, in relevant part, that sections 775.082(1) and 921.141(1) – (3), Florida Statutes (2010), were unconstitutional because "[t]he Sixth 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." Id. at 619. Asay filed a petition for a writ of habeas corpus on January 19, 2016, and filed his second successive motion for postconviction relief on January 27, 2016.⁵ The circuit court summarily denied

224 So.3d 699

all four claims and Asay's motion for a stay of execution. Asay appealed and both cases were heard at Oral Argument on March 2, 2016, after which we stayed Asay's execution.

On December 22, 2016, we lifted the stay and issued an opinion denying postconviction relief. Asay v. State (Asay V ), 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16–9033 (U.S. Apr. 29, 2017). Asay sought a writ of certiorari in the United States Supreme Court on April 29, 2017. The State filed its brief in opposition on July 3, 2017. The petition is still pending.

Also on July 3, 2017, Governor Scott reset Asay's execution for August 24, 2017. Asay filed his third successive postconviction motion with the fourth circuit, arguing: (1) that he was denied access to public records, (2) that the new lethal injection protocol is unconstitutional; (3) that the manner in which the execution was reset violated due process, and (4) that section 922.06 is unconstitutional. The circuit court denied Asay's claims. This appeal follows.

ANALYSIS

Due Process

In this claim, Asay argues that the manner in which his execution was rescheduled violated his rights to due process. Asay also argues that he has been denied due process throughout the proceedings because he was denied access to public records, because he was not permitted a continuance to secure an expert witness, because he was not permitted to question certain witnesses, and because the circuit court denied his request to stay his execution.

As it relates to Asay's rescheduled execution, the circuit court summarily denied this claim. The circuit court first found that the claim was not cognizable under rule 3.851 and "decline[d] to consider [Asay's] argument as to why, how, and when the [Attorney General] requested the United States Supreme Court for an extension of time to file a brief." The circuit court therefore found that there was no correlation between the Attorney General's action and Asay's due process rights. Finally, the circuit court found the claim without merit.

A defendant is entitled to an evidentiary hearing on a postconviction motion unless it is clear from the motion or record that the movant is not entitled to relief or the claim is legally insufficient. See Jackson v. State, 147 So.3d 469, 485 (Fla. 2014) (citing Valentine v. State, 98 So.3d 44, 54 (Fla. 2012) ). Conclusory allegations are not sufficient and the defendant must establish a prima facie case based on a legally valid claim. Id. If there is any doubt whether the movant has made a facially sufficient claim, this Court will presume that an evidentiary hearing is required. Id. (quoting Walker v. State, 88 So.3d 128, 135 (Fla. 2012) ).

As discussed in the next issue, Asay cannot demonstrate that he is entitled to relief on his claim that the rescheduling of the warrant violated his right to due process. In fact, it appears that Asay's claim is actually a disagreement with the process that he is due as articulated by the statute. Asay acknowledges in his next issue that the statute permits exactly what occurred, which means he has been afforded the process available. The circuit court thus correctly concluded that Asay's claim was not cognizable under rule 3.851.

As it relates to the public records requests, the circuit court found that because the purpose of a rule 3.851 motion "is to challenge the validity of [a] [d]efendant's underlying conviction and sentence of death," the circuit court's intermittent rulings did "not give rise to additional claims for attacking the underlying conviction and sentence." Accordingly, the circuit court found the public records claim was not

224 So.3d 700

cognizable in a motion for postconviction relief. The circuit court nevertheless considered the merits of the claim and determined that Asay's claim was refuted by the record in several instances and otherwise without merit.

Florida Rule of Criminal Procedure 3.852(i)(2) requires production of public records upon a finding of the following:

(A) collateral counsel has made a timely and diligent search of the records repository;

(B) collateral counsel's affidavit identifies with specificity those additional public records that are not at the records repository;

(C) the additional public records sought are either relevant to the subject matter of a proceeding under rule 3.851 or appear reasonably calculated to lead to the discovery of admissible evidence; and

(D) the additional records request is not overly broad or unduly burdensome.

See Valle v. State, 70 So.3d 530, 549 (Fla. 2011) (quoting Florida Rule of Criminal Procedure 3.852(i)(2) ).

This Court has stated that "a defendant must show how the requested records relate to a colorable claim for postconviction relief and good cause as to why the public records request was not made until after the death warrant was signed." Tompkins v. State, 872 So.2d 230, 244 (Fla. 2003) (citing Glock v. Moore, 776 So.2d 243, 254 (Fla. 2001) ; Bryan v. State, 748 So.2d 1003, 1006 (Fla. 1999) ). In Sims v. State, 753 So.2d 66, 70 (Fla. 2000), this Court made clear that while the language of the rule and statute provide for the production of records after a warrant has been signed, "this discovery tool is not intended to be a procedure...