Ventura v. State

• Decision Date: 29 January 2009
• Docket Number: No. SC08-60.,SC08-60.
• Citation: 2 So.3d 194
• Parties: Peter VENTURA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

2 So.3d 194

Peter VENTURA, Appellant, v. STATE of Florida, Appellee.

No. SC08-60.

Supreme Court of Florida.

January 29, 2009.

Bill Jennnings, Capital Collateral Regional Counsel, Mark S. Gruber and Maria Perinetti, Assistant CCR Counsel, Meddle Region, Tampa, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.

PER CURIAM.

This case is before the Court on appeal from an order summarily denying Peter Ventura's most recent successive postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.851. Through this motion, Ventura challenges the mode of his eventual execution (i.e., lethal injection).¹ Ventura has also filed a pro se all-writs petition seeking the removal of his appointed Capital Collateral Regional Counsel ("CCRC") attorney. We possess and exercise our jurisdiction to resolve these claims. See art. V, § 3(b)(1), (7), Fla. Const. As explained in our analysis, we reject each of Ventura's claims and affirm the circuit court's summary denial of his successive postconviction motion. We also deny his all-writs petition.

I. BACKGROUND

In 1988, Ventura was convicted of the first-degree, premeditated murder of Robert Clemente. Through our prior opinions addressing Ventura's direct and postconviction appeals, we have detailed the facts and procedural background surrounding this offense. See Ventura v. State, 560 So.2d 217, 217-18 (Fla.1990) ("Ventura I"), cert. denied, 498 U.S. 951, 111 S.Ct. 372, 112 L.Ed.2d 334 (1990); Ventura v. State, 673 So.2d 479, 479-80 (Fla.1996) ("Ventura II"); Ventura v. State, 794 So.2d 553, 558 (Fla.2001) ("Ventura III"), cert. denied, 535 U.S. 1098, 122 S.Ct. 2296 152 L.Ed.2d 1054 (2002). We have repeatedly affirmed Ventura's conviction and death sentence. Further, Ventura has experienced similar results in his related federal litigation. See Ventura v. Florida, 498 U.S. 951, 111 S.Ct. 372, 112 L.Ed.2d 334 (1990) (No. 90-5607); Ventura v. Florida, 535 U.S. 1098, 122 S.Ct. 2296, 152 L.Ed.2d 1054 (2002) (No. 01-7125) (denying certiorari petitions); Ventura v. Moore, No. 602CV1159ORL19KRS, 2004 WL 3767535, at *34 (M.D.Fla.2004), aff'd 419 F.3d 1269, 1292 (11th Cir.2005) (denying federal habeas petition).

Most recently, on October 22, 2007, Ventura filed his current successive motion for postconviction relief, which he claims is based upon "newly discovered evidence." In this motion, Ventura: (1) assails the constitutionality of lethal injection as currently administered in Florida; (2) asserts that section 27.702, Florida Statutes (2007), as interpreted by this Court, is unconstitutional facially and as applied because it prohibits CCRC from filing mode-of-execution challenges under 42 U.S.C. § 1983 (2000); (3) claims that section 945.10, Florida Statutes (2007), as interpreted by this Court, is unconstitutional because it prohibits him from discovering the identities of his executioners, which he contends precludes him from determining the adequacy of their qualifications and training; and (4) the ABA's recent report, Evaluating Fairness and Accuracy in the State Death Penalty Systems: The Florida Death Penalty Assessment, published September 17, 2006, reveals that Florida's death-penalty system is seriously flawed and unconstitutional.²

As explained below, Ventura's motion is meritless. That aside, Ventura has also failed to comply with rule 3.851(e)(2)(C). See Hunter v. State, 33 Fla. L. Weekly S721, S722, S725, ___ So.3d ___, ___, 2008 WL 4348485 (Fla. Sept. 25, 2008) (holding that the defendant-appellant did not comply with rule 3.851(e)(2)(C)(iii) because he failed to attach copies of the documents upon which his postconviction claim relied). Ventura maintains that his "newly discovered evidence" is drawn from the following sources:

• Florida's 2006 lethal-injection protocol;

• Factual information surrounding the December 13, 2006, execution of Angel Diaz;

• The Report of the Governor's Commission on the Administration of Lethal Injection in Florida;

• The May 9, 2007, and August 1, 2007, lethal-injection protocols;

• The Department of Corrections' response to the report of the Governor's Commission; and

• The evidentiary-hearing testimony considered by the circuit court in Lightbourne v. State (which, as we noted, resulted in a record exceeding 6,500 pages, see Lightbourne v. McCollum, 969 So.2d 326, 330 (Fla.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008)).

However, there is no indication in the record that Ventura ever provided the postconviction court with any of the documents upon which his claim supposedly rests (and he never proffered any witnesses). Cf. Hunter, 33 Fla. L. Weekly at S725, ___ So.3d at ___. Pursuant to binding Florida precedent, the postconviction court summarily denied each of Ventura's claims.

Ventura now appeals this summary denial. We write solely to address Ventura's lethal-injection claim.³ We do so to outline our understanding of the positions offered by the justices of the United States Supreme Court in Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and to explain why the plurality decision presented in that case has not affected the validity of our decisions in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007), and Schwab v. State, 969 So.2d 318 (Fla.2007).

II. ANALYSIS

A. Standard of Review

Florida Rule of Criminal Procedure 3.851 governs the filing of postconviction motions in capital cases. Rule 3.851(d)(1) generally prohibits the filing of a postconviction motion more than one year after the judgment and sentence become final. An exception permits filing beyond this deadline if the movant alleges that "the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence." Fla. R.Crim. P. 3.851(d)(2)(A). Here, Ventura alleges that he was unaware of the potentially unconstitutional nature of Florida's lethal-injection protocol until the "botched" execution of Angel Diaz on December 13, 2006.

Rule 3.851 also provides certain pleading requirements for initial and successive postconviction motions. For example, the motion must state the nature of the relief sought and must include "a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought." Fla. R.Crim. P. 3.851(e)(1)(C), (e)(1)(D), (e)(2)(A). As alluded to above, a successive motion based upon newly discovered evidence must also include:

(i) the names, addresses, and telephone numbers of all witnesses supporting the claim;

(ii) a statement that the witness will be available, should an evidentiary hearing be scheduled, to testify under oath to the facts alleged in the motion or affidavit;

(iii) if evidentiary support is in the form of documents, copies of all documents shall be attached, including any affidavits obtained; and

(iv) as to any witness or document listed in the motion or attachment to the motion, a statement of the reason why the witness or document was not previously available.

Fla. R.Crim. P. 3.851(e)(2)(C) (emphasis supplied).

Rule 3.851(f)(5)(B) permits the denial of a successive postconviction motion without an evidentiary hearing "[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief." A postconviction court's decision regarding whether to grant a rule 3.851 evidentiary hearing depends upon the written materials before the court; thus, for all practical purposes, its ruling is tantamount to a pure question of law and is subject to de novo review. See, e.g., Rose v. State, 985 So.2d 500, 505 (Fla.2008). In reviewing a trial court's summary denial of postconviction relief, we must accept the defendant's allegations as true to the extent that they are not conclusively refuted by the record. See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). The Court will uphold the summary denial of a newly-discovered-evidence claim if the motion is legally insufficient or its allegations are conclusively refuted by the record. See McLin v. State, 827 So.2d 948, 954 (Fla.2002).

At the outset, Ventura failed to comply with rule 3.851(e)(2)(C) because he never attached any of the relevant lethal-injection documents to his successive postconviction motion and he did not proffer any witnesses to support his claims. For these reasons, Ventura's successive motion is legally insufficient. See Hunter, 33 Fla. L. Weekly at S722, S725, ___ So.3d at ___, ___ (holding that the defendant-appellant failed to comply with rule 3.851(e)(2)(C) because he did not attach relevant documents and did not proffer any expert witnesses to support his claim). However, even if Ventura had attached supporting documents and provided sufficient notice regarding expert witnesses, his lethal-injection claim would nonetheless remain meritless.

B. Ventura's Lethal-Injection Claim

i. Ventura has Merely Reiterated the Claims Presented by Lightbourne and Schwab

We have repeatedly and consistently rejected Eighth Amendment⁴ challenges to Florida's current lethal-injection protocol. See Tompkins v. State, 994 So.2d 1072, 1080-82 (Fla.2008); Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 997 So.2d 1073, 1089 (Fla. 2008); Schwab v. State, 995 So.2d 922, 924-33 (Fla.2008); Woodel v. State, 985 So.2d 524, 533-34 (Fla.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 607, 172 L.Ed.2d 465 (2008); Lebron v. State, 982 So.2d 649, 666 (Fla.2008); Schwab v. State, 982 So.2d 1158, 1159-60 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326, 350-53 (Fla.2007). In his postconviction motion and brief to this Court, Ventura has simply re-alleged the criticisms of Florida's revised protocol that Lightbourne and his expert, Dr. Heath, presented in 2007. See Lightbourne, 969 So.2d at 347-49. Ventura has not presented any allegations beyond those of...