Gore v. State, No. SC12–537.

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation91 So.3d 769
Decision Date09 April 2012
Docket NumberNo. SC12–537.
PartiesDavid Alan GORE, Appellant, v. STATE of Florida, Appellee.

91 So.3d 769

David Alan GORE, Appellant,
STATE of Florida, Appellee.

No. SC12–537.

Supreme Court of Florida.

April 9, 2012.

[91 So.3d 770]

Martin J. McClain, Linda McDermott and John Paul Abatecola of McClain and McDermott, P.A., Estero, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia A. Terenzio and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee.


David Alan Gore, a prisoner under sentence of death, appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Seeart. V, § 3(b)(1), Fla. Const. On February 28, 2012, the Governor signed a death warrant for Gore, with the execution scheduled for April 12, 2012. Gore subsequently sought postconviction

[91 So.3d 771]

relief in the circuit court, presenting five claims. On March 15, 2012, the circuit court entered an order that summarily denied relief on all claims. For the reasons discussed below, we affirm the order of the circuit court. We hold that the recent decision from the United States Supreme Court in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), does not provide Gore with any basis for relief in this Court.


On March 15, 1984, a jury found David Alan Gore guilty of the first-degree murder of Lynn Elliott. The facts of the murder were stated in the opinion of this Court affirming the judgment and sentence of death on Gore's initial direct appeal:

Gore and his cousin picked up fourteen-year-old [R.M.1] and seventeen-year-old Lynn Elliott who were hitchhiking to the beach. After the glove compartment in the pickup truck fell open and a gun became visible, Gore took the gun and held it to [R.M.'s] head. He grabbed the two girls' wrists and held them together. Gore then said that they should take the girls to Gore's home. He told the girls that if they said or did anything, they would be killed. When they arrived at his home, the girls were handcuffed and taken into a bedroom. The girls then were separated, and Lynn was tied up while [R.M.] was handcuffed. Gore cut [R.M.'s] clothes off of her and sexually assaulted her on three separate occasions. [R.M.] testified that she heard noises in the other room after Gore had left her. She heard Gore tell Lynn to shut up or he would kill her. Gore also told [R.M.] to be quiet or he would slit her throat and that he would do it anyway. Gore then put [R.M.] in the closet, and, after he left, she heard two or three shots. Gore then came back into the room and put [R.M.] in the attic where she stayed until rescued by a police officer.

Michael Rock, a fifteen-year-old boy, testified that on July 26, 1983, while riding his bicycle in the area of Gore's home, he heard screaming and observed a naked girl running down the driveway being chased by Gore who was also naked. He saw Gore catch up to her, drag her back to a palm tree, and shoot her twice in the head. Rock went home and told his mother, and she called the police. The police arrived and surrounded Gore's home. Lynn's body was found in the trunk of the car in the driveway. Her arms and legs had been tightly bound with rope. She had multiple abrasions on her body consistent with falling and being dragged. The gun used to kill her was found in Gore's home.

Gore was indicted for the first-degree, premeditated murder of Lynn Elliott, for the kidnapping of Lynn Elliott, for the kidnapping of [R.M.], and for three counts of sexual battery of [R.M.]. He was found guilty of all six counts. After a jury recommendation of death, the trial court imposed the death sentence for the first-degree murder of Lynn Elliott and imposed life sentences for the other crimes.

Gore v. State, 475 So.2d 1205, 1206 (Fla.1985)( Gore I ),cert. denied,475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986).

[91 So.3d 772]

On direct appeal, this Court affirmed the convictions and death sentence. See id. The Court subsequently affirmed the denial of Gore's initial rule 3.850 motion for postconviction relief and denied his petition for writ of habeas corpus. See Gore v. Dugger, 532 So.2d 1048, 1051 (Fla.1988)( Gore II ). However, the United States District Court for the Middle District of Florida granted Gore's federal petition for writ of habeas corpus and vacated his death sentence because the trial court had precluded Gore from presenting nonstatutory mitigating evidence in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Gore v. Dugger, 763 F.Supp. 1110, 1114, 1116 (M.D.Fla.1989)( Gore III ),aff'd,933 F.2d 904, 905 (11th Cir.1991)( Gore IV ),cert. denied,502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). After a resentencing proceeding, a jury unanimously recommended death, and the trial court followed that recommendation. On appeal, this Court affirmed the sentence. See Gore v. State, 706 So.2d 1328, 1336 (Fla.1997)( Gore V ),cert. denied,525 U.S. 892, 119 S.Ct. 212, 142 L.Ed.2d 174 (1998). This Court subsequently affirmed a postconviction court order that denied Gore relief under Florida Rule of Criminal Procedure 3.850 and also denied a petition for writ of habeas corpus filed by Gore. See Gore v. State, 964 So.2d 1257, 1277–78 (Fla.2007)( Gore VI ),cert. denied,552 U.S. 1197, 128 S.Ct. 1250, 170 L.Ed.2d 89 (2008). On April 11, 2008, the United States District Court for the Southern District of Florida denied a second federal habeas petition filed by Gore. See Gore v. McDonough, No. 07–22637–CIV–LENARD/TORRES (S.D. Fla. order filed Apr. 11, 2008). The United States Court of Appeals for the Eleventh Judicial Circuit subsequently denied Gore a “certificate of appealability,” see Gore v. Secretary, Department of Corrections, No. 08–14060–P (11th Cir. order filed Sept. 9, 2008), and the United States Supreme Court denied certiorari review, see Gore v. McNeil, ––– U.S. ––––, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009).

Gore raised the following claims in his successive postconviction motion filed after issuance of the warrant:

1. The clemency “update” process in this case was applied in an arbitrary and capricious manner in violation of the Eighth and Fourteenth Amendments and corresponding provisions of the Florida Constitution.

2. Florida's capital sentencing scheme is unconstitutional under the Eighth and Fourteenth Amendments because of the arbitrary and standardless power given to the Governor to sign death warrants.

3. Newly discovered evidence establishes that Gore was denied the effective assistance of counsel during his resentencing proceedings.

4. Gore was denied the effective assistance of counsel during his postconviction proceedings.

5. Given the inordinate length of time that Gore has spent on death row, adding his execution to that punishment would constitute cruel and unusual punishment.

With regard to the first claim, Gore stated that his clemency “update” process was applied in an arbitrary and capricious manner in violation of the United States and Florida Constitutions. Although Gore first received a clemency proceeding in 1987, the clemency proceeding to which Gore's claim is directed occurred in 2012. Subsequent to the 1987 proceeding, Gore's death sentence was overturned due to the refusal of the trial court to allow the presentation of mitigation evidence. Gore contends

[91 So.3d 773]

that the clemency board's 1987 investigation was “hardly accurate” because it was devoid of mitigating evidence presented during his 1992 resentencing proceeding. Gore stated that he learned of the 2012 clemency proceedings only after his death warrant was signed and, therefore, was unable to present information on his own behalf. Gore contends that the clemency process was one-sided because it included input from only the State, the victims, and the media, and therein denied his right to due process.

In his second claim, Gore alleged that the Governor of Florida wields an arbitrary and standardless power to sign death warrants, thereby rendering the Florida capital sentencing scheme unconstitutional. Gore notes that there are at least forty-two other death row inmates who are currently eligible for a death warrant, and the only reason he was selected was because a newspaper editorial board expressed an interest in the execution of Gore.

In his third claim, Gore alleges that newly discovered evidence establishes that he was denied the effective assistance of counsel during his resentencing. Following the Eleventh Circuit Court of Appeals' affirmance in May 1991 of the federal district court order granting Gore relief from his death sentence, Robert Udell was appointed to represent Gore during his resentencing proceedings, which ultimately resulted in a unanimous jury recommendation of death. During subsequent postconviction proceedings, Gore alleged that his resentencing counsel were ineffective. During the 2003 evidentiary hearing, Udell testified with regard to his representation of Gore, which included a discussion of why certain decisions were made. Thereafter, this Court affirmed the denial of postconviction relief and concluded that penalty phase counsel were not deficient.

Gore asserted that, unknown to postconviction counsel, the postconviction court, and this Court, Udell was not a credible witness. In October 2009, Udell was disbarred from the practice of law by this Court. Among other admissions, Udell admitted to submitting several affidavits and filing several motions for fees that contained false information about services performed for clients between 2005 and 2008. According to Gore, Udell's disbarment and his failure to be truthful indicate he is unable to be honest, even under oath. Resentencing co-counsel Jerome “Jay” Nickerson, who did not testify during the postconviction proceedings, informed current defense counsel that during the...

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