Asay v. State

Decision Date22 December 2016
Docket NumberNo. SC16–102,No. SC16–628,No. SC16–223,SC16–223,SC16–102,SC16–628
Citation210 So.3d 1
Parties Mark James ASAY, Appellant, v. STATE of Florida, Appellee. Mark James Asay, Petitioner, v. Julie L. Jones, Etc., Respondent. Mark James Asay, Petitioner, v. Julie L. Jones, etc., Respondent.
CourtFlorida Supreme Court

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

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

Billy Horatio Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Amicus Curiae The Capital Habeas Unit of the Office of the Federal Public Defender for the Northern District of Florida


Mark James Asay, a prisoner under sentence of death for whom a warrant has been signed,1 appeals from the summary denial of his second successive postconviction motion. Asay has also filed two petitions for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court's denial of postconviction relief. We also deny the petitions for a writ of habeas corpus.


The facts of this case are set forth in Asay's direct appeal:

According to testimony of Asay's brother, Robbie, and Robbie's friend, "Bubba" McQuinn, on July 17, 1987, the three met at a local bar where they drank beer and shot pool. They left the bar around 12:00 a.m. and went to a second bar where they stayed until closing at 2:00 a.m. Although Asay drank a number of beers, both Bubba and Robbie testified that Asay did not appear drunk or otherwise impaired.
After the bar closed, Robbie said he wanted to try to "pick up a girl" he had seen at the bar, so Bubba and Asay drove around the corner in Asay's truck. They returned to discover that Robbie had been unsuccessful with the girl he had seen, so Bubba suggested that they go downtown to find some prostitutes and he would pay for oral sex for them all. Asay and Bubba left in Asay's truck and Robbie left in his. Once downtown, Asay and Bubba soon spotted Robbie who was inside his truck talking to a black man, Robert Lee Booker. Robbie was telling Booker who was standing at the driver's side window of Robbie's truck that he and his friends were looking for prostitutes.
After spotting Booker standing by Robbie's truck, Asay told Bubba to pull up next to the truck. Asay immediately got out of his truck, proceeded to Robbie's truck, and told Robbie "You know you ain't got to take no s--t from these f---ing niggers." Although Robbie told Asay that "everything is cool," Asay began to point his finger in Booker's face and verbally attack him. When Booker told him "Don't put your finger in my face," Asay responded by saying "F--k you, nigger" and pulling his gun from his back pocket, shooting Booker once in the abdomen. Booker grabbed his side and ran. According to the medical examiner, the bullet perforated the intestines and an artery causing internal hemorrhaging. Booker's body was later found under the edge of a nearby house.
Robbie drove away immediately after the shooting. Asay jumped into the back of his truck, as Bubba drove off. When Asay got into the cab of the truck, Bubba asked him why he shot Booker. Asay responded, "Because you got to show a nigger who is boss." When asked if he thought he killed Booker, Asay replied, "No, I just scared the s--t out of him."
Bubba testified that after the shooting, Asay and Bubba continued to look for prostitutes. According to Bubba, he saw "Renee" who he knew would give them oral sex. It appears that at the time neither Bubba nor Asay was aware that "Renee" was actually Robert McDowell, a black man dressed as a woman. According to Bubba, he negotiated a deal for oral sex for them both. Bubba drove the truck into a nearby alley. McDowell followed. Bubba testified that McDowell refused to get into the truck with them both, so Asay left the truck and walked away to act as a lookout while Bubba and McDowell had sex. As McDowell started to get into the truck with Bubba, Asay returned, grabbed McDowell's arm, pulled him from the truck and began shooting him. McDowell was shot six times while he was backing up and attempting to get away. Asay jumped back in his truck and told Bubba to drive away. When asked why he shot McDowell, Asay told Bubba that he did it because "the bitch had beat him out of ten dollars" on a "blow job." McDowell's body was found on the ground in the alley soon after the shots were heard. According to the medical examiner, any of three wounds

to the chest cavity would have been fatal.

Asay later told Charlie Moore in the presence of Moore's cousin, Danny, that he shot McDowell because McDowell had cheated him out of ten dollars on a drug deal and that he had told McDowell, "if he ever got him that he would get even." Asay told Moore that he was out looking for "whores," when he came across McDowell. According to Moore's cousin, Danny, Asay also told Moore that his plan was to have Bubba get McDowell in the truck and they "would take her off and screw her and kill her." Moore testified that Asay told him that when Bubba "didn't have [McDowell] in the truck so they could go beat him up," Asay "grabbed [McDowell] by the arm and stuck the gun in his chest and shot him four times, and that when he hit the ground, he finished him off." As a result of tips received from Moore and his cousin after McDowell's murder was featured on a television Crime Watch segment, Asay was arrested and charged by indictment with two counts of first-degree murder.

The state also presented testimony of Thomas Gross, who was Asay's cellmate while he was awaiting trial. Gross testified that when the black prisoners, who were also housed in their cell, were out in the recreation area, Asay told him he was awaiting trial for a couple of murders. According to Gross, Asay then showed him some newspaper articles and told him, "I shot them niggers." While they were discussing the murders, Asay showed Gross his tattoos, which included a swastika, the words "White Pride," and the initials "SWP" which Gross said stand for supreme white power.

Asay v. State (Asay I ), 580 So.2d 610, 610–12 (Fla. 1991).

The jury found Asay guilty of both murders and recommended a death sentence by a vote of nine to three. The trial court followed the recommendation and imposed a sentence of death for each conviction. Id. at 612. The court found two aggravating factors established in connection with both murders: that Asay was under sentence of imprisonment at the time of the murders and had been previously convicted of a capital felony (based on the contemporaneous murder conviction). Id. In addition, the trial court found a third aggravator as to the McDowell murder only: that the murder was committed in a cold, calculated, premeditated manner (CCP). Id. As to both murders, the trial court found Asay's age of twenty-three at the time of the murders to be the only mitigation for his offenses. Id.

On direct appeal, Asay raised seven issues.2 This Court summarily denied the first four claims and also found, after some discussion, that no relief was warranted as to the remaining three claims. Id. at 612 n.1, 613–14. On June 21, 1991, this Court denied Asay's motion for rehearing, and the United States Supreme Court denied certiorari on October 7, 1991. Asay v. Florida , 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991).

In 1993, Asay filed a motion for postconviction relief3 pursuant to Florida Rule of Criminal Procedure 3.850 and an amended motion, raising twenty claims. Asay v. State (Asay II ), 769 So.2d 974, 977–78 & n.5 (Fla. 2000).4 He also filed a motion to disqualify the trial judge from presiding over the postconviction proceedings, primarily based on comments the judge made during Asay's 1988 trial. Asay II , 769 So.2d at 978. The trial judge denied the motion to disqualify and, after holding a Huff 5 hearing, summarily denied most of Asay's claims, granting an evidentiary hearing on only the ineffective assistance of trial counsel claims. Id. Following the evidentiary hearing, the trial court denied relief on those claims as well. Id. 6 Asay appealed the denial of relief, raising six issues.7 We denied the appeal, affirming the trial court's denial of postconviction relief. Id. at 989. We denied Asay's motion for rehearing on October 26, 2000. Asay then filed a petition for writ of habeas corpus in this Court on October 25, 2001, raising five claims.8 Asay v. Moore (Asay III ), 828 So.2d 985, 989 n.8 (Fla. 2002). We denied relief on June 13, 2002, and denied Asay's motion for rehearing on October 4, 2002. Id. at 993.

On October 17, 2002, Asay filed his first successive postconviction motion, in which he contended Florida's capital sentencing procedure was unconstitutional pursuant to Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The circuit court denied the motion on February 23, 2004. Asay appealed, and on December 20, 2004, this Court affirmed the circuit court's order. Asay v. State (Asay IV ), 892 So.2d 1011 (Fla. 2004) (table). Asay filed a petition for writ of certiorari, which the Supreme Court denied on November 2, 2009. McNeil v. Asay , 558 U.S. 1007, 130 S.Ct. 495, 175 L.Ed.2d 377 (2009).

On February 11, 2005, Asay filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida, raising eleven claims.9

Asay v. Sec'y, Fla. Dep't of Corr. (Asay V ), No. 3:05–cv–147–J–32PDB, 2014 WL 1463990, *6 (M.D. Fla. April 14, 2014). On April 14, 2014, the federal district court found that Asay was not entitled to relief and denied the petition. Id. at *28. A certificate of appealability was entered as to whether Asay received ineffective assistance during the penalty phase because his counsel...

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