Marek v. State

• Decision Date: 08 May 2009
• Docket Number: No. SC09-765.,SC09-765.
• Parties: John Richard MAREK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

8 So.3d 1123

John Richard MAREK, Appellant, v. STATE of Florida, Appellee.

No. SC09-765.

Supreme Court of Florida.

May 8, 2009.

Martin J. McClain of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant.

Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

John Richard Marek, a prisoner under sentence of death, appeals the postconviction court's order denying his second successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the postconviction court's order denying relief.

I. BACKGROUND

Marek was convicted of first-degree murder, kidnapping, attempted burglary, and battery in the 1983 murder of Adella Marie Simmons, and was sentenced to death.¹ We affirmed the judgment and sentence on direct appeal. Marek v. State, 492 So.2d 1055 (Fla.1986). Thereafter, this Court affirmed the postconviction court's denial of Marek's initial motion for postconviction relief and denied his attendant petition for a writ of habeas corpus. Marek v. Dugger, 547 So.2d 109 (Fla.1989). Subsequently, we denied another habeas petition, Marek v. Singletary, 626 So.2d 160 (Fla.1993), and then affirmed the denial of relief on Marek's first successive postconviction motion and denied his third habeas petition, Marek v. State, Nos. SC04-229 & SC05-1491, 940 So.2d 427 (Fla. order filed June 16, 2006). Marek also sought postconviction relief in the federal courts. The United States District Court for the Southern District of Florida denied Marek's federal habeas petition, and the Court of Appeals for the Eleventh Circuit affirmed the denial. Marek v. Singletary, 62 F.3d 1295 (11th Cir.1995).

In May 2007, Marek filed his second successive motion for postconviction relief, which he later amended. The amended motion raised two claims and requested leave to amend the motion.

In his first claim, Marek argued that Florida's procedures for lethal injection violate the Eighth Amendment to the Constitution of the United States. Marek presented his challenge to the procedures as a newly discovered evidence claim based on the December 2006 execution of Angel Diaz and the subsequent investigations, reports and statements by the Governor and the Department of Corrections.

In his second claim, Marek argued generally that his death sentence was imposed arbitrarily and capriciously thus violating Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which held that the death penalty must be imposed fairly and consistently. Marek based this claim on the American Bar Association's September 17, 2006, report, Evaluating Fairness and Accuracy in the State Death Penalty Systems: The Florida Death Penalty Assessment Report (ABA Report), which criticizes Florida's death penalty scheme and clemency process. Marek asserted that the ABA Report constitutes newly discovered evidence demonstrating that his death sentence is unconstitutionally arbitrary and capricious. In addition to relying on the ABA Report, Marek asserted that his death sentence is unconstitutionally arbitrary as a result of the State's taking inconsistent positions in the separate trials of Marek and his codefendant, Raymond Wigley, concerning whether Marek or Wigley was the dominant actor in the kidnapping and murder.

Finally, as part of this second claim, Marek asserted that his previously raised claim that his trial counsel failed to conduct an adequate investigation of Marek's background for the presentation of mitigation in the penalty phase of his trial should be reevaluated under the standards enunciated in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Marek argues that these cases modified the standard of review for claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

On April 20, 2009, while Marek's second successive postconviction motion was pending in the circuit court, Governor Charlie Crist signed Marek's death warrant.

On April 23, 2009, the postconviction court summarily denied Marek's second successive motion for postconviction relief and request for leave to amend the motion. Citing this Court's recent cases rejecting constitutional challenges to Florida's lethal injection procedures, the postconviction court rejected Marek's Eighth Amendment challenge to Florida's lethal injection procedures. The postconviction court also ruled that the ABA Report did not constitute newly discovered evidence and held that Marek's claim that his sentencing was arbitrary in violation of Furman was meritless. The postconviction court found that the prosecutor did not pursue inconsistent theories at the separate trials of Marek and Wigley. And finally, the postconviction court rejected Marek's claim requesting another review of his claim of ineffective assistance of penalty-phase counsel, finding that the request was an improper attempt to relitigate a procedurally barred issue.

On April 27, 2009, Marek filed a motion that sought both rehearing of the postconviction court's summary denial of his motion to vacate and an opportunity to amend his motion to vacate. He requested leave to add the claims that his execution is unconstitutional because he has spent over twenty-five years on death row and that the United States Supreme Court's future holding in Caperton v. A.T. Massey Coal Co., No. 33350, ___ W.Va. ___, ___ S.E.2d ___, 2008 WL 918444 (W.Va. Apr. 3, 2008), cert. granted, ___ U.S. ___, 129 S.Ct. 593, 172 L.Ed.2d 452 (2008), may demonstrate that he was denied due process when Judge Kaplan presided over his initial postconviction proceeding. Later that same day, the postconviction court denied the motion for rehearing and the motion to amend.

Marek appeals the postconviction court's denial of his motion to vacate, his motion for rehearing, and his motion to amend. He argues that (A) his sentence of death violates the Eighth and Fourteenth Amendments of the United States Constitution because it is the result of a process that permitted the arbitrary and capricious imposition of a sentence of death; (B) Florida's lethal injection execution procedures violate the United States and Florida Constitutions; and (C) the postconviction court erred in denying his motion to amend and the claims contained therein.

II. ANALYSIS

An evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000). However, "[p]ostconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record." Connor v. State, 979 So.2d 852, 868 (Fla. 2007). Because a postconviction court's decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003). We conclude that the postconviction court's summary denial of Marek's second successive motion was not erroneous. Each of Marek's claims is legally insufficient or, because it could have been or was raised in a prior proceeding, procedurally barred.

A. Arbitrary Sentencing

In his first claim on appeal, Marek argues that his sentence is unconstitutionally arbitrary under Furman because (1) the State argued inconsistent theories in his trial and the trial of codefendant Wigley; (2) Marek's claim of ineffective assistance of penalty-phase counsel, raised in his initial postconviction motion, should be reevaluated; and (3) Florida's clemency process is inadequate. These arguments were raised in Marek's second successive postconviction motion, and the postconviction court expressly addressed the first two arguments in its order denying relief.

The postconviction court did not err in concluding that the prosecutor did not pursue inconsistent theories at trial and that Marek's argument on this point was meritless. Marek's argument that his death sentence is unconstitutionally arbitrary as a result of the State taking inconsistent positions about whether Marek or his codefendant was the dominant actor in the kidnapping and murder is insufficiently pleaded, procedurally barred, and based on the record before us, without merit.

Marek's inconsistent-theories argument is insufficiently pleaded under Florida Rule of Criminal Procedure 3.851(d)(2). Marek does not (1) explain why the facts upon which the argument is predicated were unknown and could not be ascertained by the exercise of due diligence or (2) cite to a newly established fundamental constitutional right that applies retroactively.

In his direct appeal, Marek argued that his death sentence was "cruel and unusual, arbitrary, and unequal" in light of codefendant Wigley's life sentence. Marek, 492 So.2d at 1058. That claim on direct appeal indicates that Wigley was sentenced prior to 1986. Yet Marek did not raise this claim of inconsistent theories until the instant postconviction proceeding. Marek does not explain why the prosecutor's theory in Wigley's case could not have been discovered previously by the exercise of due diligence.

Furthermore, we conclude that Marek's argument is not based on any new constitutional right. Marek asserts that in Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), and Raleigh v. State, 932 So.2d 1054 (Fla.2006), the Supreme Court and this Court recognized that the State's pursuit of inconsistent theories against codefendants...