In The Supreme Court of Florida DANIEL JON PETERKA, Appellant, v. CASE NO. SC08-1413 STATE OF FLORIDA, Appellee. _______________________/

ON APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

IN AND FOR OKALOOSA COUNTY, FLORIDA

ANSWER BRIEF

BILL McCOLLUM ATTORNEY GENERAL CHARMAINE M. MILLSAPS ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 0989134 OFFICE OF THE ATTORNEY GENERAL THE CAPITOL, PL-01 TALLAHASSEE, FL 32399-1050 (850) 414-3300 COUNSEL FOR THE APPELLEE

- ii -

TABLE OF CONTENTS

PAGE(S) TABLE OF CONTENTS...............................................i TABLE OF CITATIONS.............................................ii PRELIMINARY STATEMENT...........................................1 STATEMENT OF THE CASE AND FACTS.................................3 SUMMARY OF ARGUMENT.............................................6 ARGUMENT........................................................8

ISSUE I

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE SUCCESSIVE POSTCONVICTION MOTION AS UNTIMELY? (Restated) ................8

CONCLUSION.....................................................22 CERTIFICATE OF SERVICE.........................................22 CERTIFICATE OF FONT AND TYPE SIZE..............................22

- ii -

TABLE OF CITATIONS CASES PAGE(S) Alexander v. Metrish, 2007 WL 542010 (W.D.Mich. 2007)................................17 Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)..........16 Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002).................................19 Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007) ...................................20 Green v. State, 975 So.2d 1090 (Fla. 2008).....................................14 Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)............20 House v. Bell, 311 F.3d 767 (6th Cir. 2002) ...................................21 House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).....13, 19, 21 In re Wright, 2008 WL 4748512 (5th Cir. 2008) ................................19 Johnson v. Florida Department Of Corrections, 513 F.3d 1328 (11th Cir. 2008) .................................15 Jones v. State, 709 So.2d 512 (Fla. 1998)......................................14 King v. State, 808 So.2d 1237 (Fla. 2002).....................................17 Kormondy v. State, 983 So.2d 418 (Fla. 2007)......................................14 Peterka v. Crosby, 2008 WL 4194525 (N.D.Fla. September 9, 2008)...................10 Peterka v. Florida, 513 U.S. 1129, 115 S.Ct. 940, 130 L.Ed.2d 884 (1995)........3, 11 Peterka v. McDonough, 2007 WL 1030078, Case No. 3:05cv00022/SPM (N.D.Fla. March 29, 2007)........................................................4, 10, 16

- iii -

Peterka v. McNeil, 532 F.3d 1199 (11th Cir. 2008) ..................................4 Peterka v. State, 640 So.2d 59 (Fla.1994)........................................3 Peterka v. State, 890 So.2d 219 (Fla. 2004)................................3, 4, 17 Rich v. Department Of Corrections State Of Fla, 2008 WL 4183930 (11th Cir. September 12, 2008) .................16 Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)............4 Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)....13, 16, 18 Tompkins v. State, 2008 WL 4824085 (Fla. November 7, 2008)..........2, 8, 12, 13, 21 United States v. Quinones, 313 F.3d 49 (2d Cir. 2002).....................................19 Wyzykowski v. Department of Corrections, 226 F.3d 1213 (11th Cir. 2000) .................................18 OTHER AUTHORITIES Rule 3.851(d)(2), Fla. R. Crim. Pro........................11, 12

- iv -

PRELIMINARY STATEMENT

Appellant, Daniel Jon Peterka, the defendant in the trial court,

will be referred to as appellant or by his proper name. Appellee, the

State of Florida, will be referred to as the State. Pursuant to Rule

9.210(b), Fla. R. App. P. (1997), this brief will refer to a volume

according to its respective designation within the Index to the Record

on Appeal. A citation to a volume will be followed by any appropriate

page number within the volume. The trial record will be referred to

as trial record followed by the page number. (T at *). The

evidentiary hearing testimony will be referred to as post conviction

record followed by the page number. (PC at *). The symbol "IB" will

refer to appellant’s initial brief and will be followed by any

appropriate page number. All double underlined emphasis is

supplied.

-2-

STATEMENT REGARDING ORAL ARGUMENT

The State objects to oral argument in this case. This is an appeal

of a successive postconviction motion in which no significant legal

question is presented. Indeed, there is controlling precedent from

this Court against this claim. Tompkins v. State, 2008 WL 4824085,

12 (Fla. November 7, 2008). This case can be readily decided on the

briefs without an oral argument.

-3-

STATEMENT OF THE CASE AND FACTS

This is an appeal in a capital case of a trial court’s denial of

a successive postconviction motion. Peterka was convicted of

first-degree murder and sentenced to death. This Court affirmed.

Peterka v. State, 640 So.2d 59 (Fla. 1994). On January 23, 1995,

the United States Supreme Court denied certiorari. Peterka v.

Florida, 513 U.S. 1129, 115 S.Ct. 940, 130 L.Ed.2d 884 (1995). Peterka fi

hearing in that proceeding. This Court affirmed the trial court’s

denial of the initial postconviction motion. Peterka v. State, 890

So.2d 219 (Fla. 2004). This Court listed the six claims raised in

that appeal as: (1) whether the trial court erred in denying Peterka's

claim that trial counsel were ineffective during the guilt phase; (2)

whether the trial court erred in denying Peterka's claim that trial

counsel were ineffective in failing to advise Peterka of his right

to testify; (3) whether the trial court erred in denying Peterka's

claim that trial counsel were ineffective during the penalty phase;

(4) whether the trial court erred in denying Peterka's claim that

trial counsel were ineffective during voir dire; (5) whether Peterka

was denied due process during the postconviction evidentiary hearing;

and (6) whether Peterka was denied due process by postconviction

counsel's failure to investigate and present evidence supporting his

claims for relief. Peterka, 890 So.2d 219, 228 n.6.

Peterka also filed a state habeas petition in this Court raising

eight claims: (1) Peterka is entitled to relief under the United

States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122

S.Ct. 2428, 153 L.Ed.2d 556 (2002); (2) appellate counsel was

-4-

ineffective for failing to raise the trial court's denial of Peterka's

motion to suppress evidence seized from his residence; (3) appellate

counsel was ineffective for failing to raise issues regarding the

prosecutor's arguments; (4) appellate counsel was ineffective for

failing to raise the admission of crime scene photographs; (5)

appellate counsel was ineffective for failing to raise the admission

of evidence of Russell's character; (6) appellate counsel was

ineffective for failing to raise that the jury was improperly

instructed on and the trial court improperly considered invalid

aggravating circumstances; (7) appellate counsel was ineffective for

failing to adequately present Peterka's claim that the trial court

erred in admitting hearsay evidence that Peterka was considered

“armed and dangerous”; and (8) appellate counsel was ineffective for

failing to adequately present Peterka's claim that the trial court

erred in admitting hearsay testimony that Russell was afraid of

Peterka's gun. Peterka, 890 So.2d 219, 228 n.7.

Peterka then filed a federal habeas petition in federal district

court. The district court denied the petition. Peterka v. McDonough,

2007 WL 1030078, Case No. 3:05cv00022/SPM (N.D.Fla. March 29, 2007).

The denial of Peterka’s federal habeas petition was affirmed by the

Eleventh Circuit Court of Appeals. Peterka v. McNeil, 532 F.3d 1199

(11th Cir. 2008). The Eleventh Circuit rejected Peterka’s claims of

ineffectiveness.

Peterka filed a successive postconviction motion in the trial

court claiming “actual innocence”. The trial court denied the

-5-

successive motion as untimely. This is the appeal of the trial

court’s order denying the successive motion.

-6-

SUMMARY OF ARGUMENT

Peterka asserts a claim of “actual innocence”. However, as the

trial court concluded, Peterka’s successive motion is untimely.

Peterka’s conviction became final in 1995. His successive motion was

filed in 2007, over a decade later. Peterka’s successive motion was

untimely.

Florida does not have the concept of actual innocence. This Court

has held that Florida does not recognize freestanding claims of

innocence; rather, Florida deals with such claims under the rubric

of newly discovered evidence. Peterka’s claim does not qualify as

a valid claim of newly discovered evidence because he has no new

evidence. Peterka has no new exculpatory scientific evidence,

trustworthy eyewitness accounts, recantation of a critical witness

or any other critical physical evidence, that was not presented at

trial. Everything that Peterka relies on in his claim was presented

at his trial.

Peterka asserts this Court should adopt the federal concept of a

freestanding claim of actual innocence but provides no reason for this

Court to do so. The United States Supreme Court has never recognized

freestanding claims of innocence. And, even if the United States

Supreme Court did recognize freestanding claims of innocence, it has

stated that it would limit such claims to states that do not have

avenues open to raise such claims, unlike Florida. Florida already

has the concept of newly discovered evidence which allows defendants

to present new evidence of innocence decades after their convictions

have become final. Florida has no procedural bars or time bar to

-7-

raising such claims. There is no reason for this Court to adopt the

federal freestanding innocence concept.

Furthermore, Peterka’s claim is not a true claim of actual, factual

innocence. Rather, it is a claim of legal innocence. Peterka is

really claiming that his trial lawyer was ineffective and if the

lawyer had presented his defense in the manner Peterka wished, he

would have been convicted of second degree murder, not first degree

murder. Peterka admits that he shot the victim. This type of

argument is not a valid claim of actual innocence. Peterka must

assert that he was not the perpetrator to raise a valid actual

innocence claim. Accordingly, the trial court’s order denying the

successive motion should be affirmed.

-8-

ARGUMENT

ISSUE WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE SUCCESSIVE POSTCONVICTION MOTION AS UNTIMELY? (Restated)

Peterka asserts a claim of actual innocence. As the trial court

ruled, Peterka’s claim is untimely. Furthermore, this Court has held

that Florida does not recognize freestanding claims of innocence.

Moreover, Peterka’s claim does not qualify as a valid claim of newly

discovered evidence because he has no new evidence. Peterka has no

new exculpatory scientific evidence, trustworthy eyewitness

accounts, recantation of a critical witness or any other critical

physical evidence, that was not presented at trial. Peterka’s claim

is not a true claim of actual, factual innocence. Peterka admits that

he shot the victim. Accordingly, the trial court’s order denying the

successive motion should be affirmed.

The standard of review

Whether an actual innocence exception exists under Florida law,

independent of a claim of newly discovered evidence under rule 3.851,

is a legal issue, and therefore, the standard of review is de novo.

Tompkins v. State, - So.2d -, 2008 WL 4824085, 5 (Fla. 2008)(noting

that a trial court’s summary denial of a 3.851 motion depends on the

written materials before the court therefore, for all intents and

purposes, its ruling constitutes a pure question of law and is subject

to de novo review).

-9-

The state trial court’s ruling

On August 27, 2007, Peterka filed a successive 3.851 motion raising

two grounds. (PCR Vol. I 57-122;123-187). The first ground of the

successive motion included seven subgrounds. (PCR Vol. I 79-80).

Peterka argued that he satisfied the actual innocence exception to

a procedural bar. (PCR Vol. I 118).

The State responded. (PCR Vol. II 244-261). The State explained

that a gateway claim of actual innocence was a federal habeas concept

without the equivalent in Florida law. (PCR Vol. II 248-249). The

State explained that to raise a valid newly discovered evidence claim

under Florida law, Peterka had to meet the Jones standard and he did

not because he presented no new evidence. The State also noted that

because Peterka’s claim was a claim of legal innocence, not factual

innocence, he would not meet the federal standard of actual innocence

either.

On June 26, 2008, the trial court summarily denied the successive

motion as untimely. (PCR Vol. II 262-263). The trial court ruled that

“Florida Rule of Criminal Procedure 3.851(d) governs the timeliness

of successive postconviction motions in final capital cases. This

rule specifically bars a postconviction motion filed more than one

year after a judgement and sentence are final. Since the Defendant’s

judgment and sentence have long since become final, and he has not

demonstrated an applicable exception to the timeliness requirement,

his motion is untimely and will not be considered by this Court.” (PCR

Vol. II 263).

-10-

The federal district court’s ruling

Peterka raised this claim of actual innocence in his federal habeas

petition. The federal district court rejected Peterka’s actual

innocence claim, reasoning: As to Petitioner's claim of actual innocence to support his request for an evidentiary hearing raised in his reply and in supplemental authority, Petitioner's claim does not fall within Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). In Schlup, the Supreme Court held that a habeas petitioner asserting actual innocence as a gateway to procedurally defaulted claims must establish that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. The petitioner thus is required to make a stronger showing than that needed to establish prejudice [citing Strickland].” Id. The Florida Supreme Court did not find that Petitioner's claim of ineffective assistance of postconviction counsel was procedurally barred. It found that Petitioner had not raised a valid claim for relief. Therefore, Petitioner cannot avail himself of a gateway claim of actual innocence pursuant to Schlup or House v. Bell, - U.S. -,126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), because he has not raised a legally recognized claim which is procedurally barred from being heard. See Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006)(“the procedural claim of actual innocence under Schlup is permitted in order to assure consideration of constitutional claims of an unfair trial where those claims have been procedurally defaulted.” (emphasis added)). Furthermore, as Respondent points out, Petitioner disputes the legal theory upon which he was convicted; he does not assert a claim of actual factual innocence. Therefore, Petitioner's request for an evidentiary hearing is denied, as is this claim for relief.

Peterka v. McDonough, 2007 WL 1030078, 25 (N.D.Fla. March 29, 2007);

See also Peterka v. Crosby, 2008 WL 4194525, 1 (N.D.Fla. September

9, 2008)(denying a 60(b) motion for rehearing, explaining that the

district court did not misunderstand the claim; rather, Peterka was

actually raising a claim of ineffective assistance of state

postconviction counsel arguing that state postconviction counsel,

-11-

Mr. Harper, failed to develop the factual allegations at issue during

the state court evidentiary hearing, because the “law, however, is

clear that ‘[t]he ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings shall not be

a ground for relief arising under section 2254.’ citing 28 U.S.C. §

2254(i); see Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct.

1990, 95 L.Ed.2d 539 (1987), Murray v. Giarratano, 492 U.S. 1, 10,

109 S.Ct. 2765, 106 L.Ed.2d 1 (1989).”).1

Merits

The rule of criminal procedure governing collateral relief after

death sentence has been imposed and affirmed on direct appeal, rule

3.851(d)(2), provides: No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(1) unless it alleges:

(A) 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, or (B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or (C) postconviction counsel, through neglect, failed to file the motion.

The successive motion was untimely. Peterka’s conviction and

sentence became final in 1995 when the the United States Supreme Court

1 The Eleventh Circuit denied a certificate of appealability regarding the actual innocence claims and therefore, did not review the district court’s determination that Peterka’s claim was a claim of legal innocence only. Peterka reasserted his claim of actual innocence in a 60(b) motion. However, his pro se notice of appeal of the denial of his 60(b) motion was untimely. So, the Eleventh Circuit lacks jurisdiction over the case.

-12-

denied certiorari. Peterka v. Florida, 513 U.S. 1129, 115 S.Ct. 940,

130 L.Ed.2d 884 (1995). Peterka’s successive motion was filed twelve

years later in 2007. The motion was over a decade late. None of the

three exceptions in 3.851(d)(2) apply and indeed, Peterka does not

even attempt to meet any of the three exceptions. Peterka’s

successive motion was untimely under the rule.

Peterka seems to argue that there should be a fourth exception of

“actual innocence” to the one year time limitations in 3.851(d)(1).

He asserts that because he is “actually innocent” there should be no

time limitations or procedural bars to his claim of ineffective

assistance of trial counsel for failing to present an accidental

shooting defense.

This Court has explained that there is no freestanding claim of

actual innocence in Florida. In Tompkins v. State, - So.2d -, 2008

WL 4824085, 12 (Fla. November 7, 2008), this Court affirmed a denial

of a successive motion in a capital case and rejected the invitation

to import the federal habeas concept of actual innocence into Florida

law. This Court explained, that while Florida law permits claims of

innocence based on newly discovered evidence, Florida law technically

does not recognize a freestanding claim of actual innocence.

Tompkins urged this Court to recognize a freestanding claim of actual

innocence. The Tompkins Court explained that “[u]nder Florida law,

this Court reviews the sufficiency of the evidence on direct appeal.

If new evidence subsequently surfaces, Florida law allows a defendant

to bring a newly discovered evidence claim, as announced in Jones.”

As this Court explained, “the standard in Florida for a newly

-13-

discovered evidence claim is more liberal than the standard for

raising an actual innocence claim in federal courts.” Tompkins, 2008

WL 4824085 at *13. Under federal law, a defendant is required to

produce “new reliable evidence - whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence - that was not presented at trial” for a claim of actual

innocence to be considered. Tompkins, 2008 WL 4824085 at *13 citing

House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1

(2006)(quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130

L.Ed.2d 808 (1995)). This Court rejected Tompkins’ claim because he

did not present any new, reliable evidence establishing that he was

factually innocent of the crime. Tompkins failed to meet the state

standard of newly discovered evidence and also failed to meet the

first requirement of the federal standard as articulated in House.

Peterka, like Tompkins, has not presented any new, reliable

evidence establishing that he was factually innocent of the crime.

Peterka has no new evidence at all. Peterka, like Tompkins, fails

to meet the state newly discovered evidence standard. Opposing

counsel does not cite, distinguish or discuss Tompkins and certainly

provides no reason for this Court to recede from its recent decision.

Peterka does not explain why Florida courts should adopt either

a gateway claim of innocence or a freestanding claim of innocence.

There simply is no reason to do so. The legal concept of “actual

innocence” is unique to federal habeas. A gateway claim of actual

innocence is a federal habeas concept. House v. Bell, 547 U.S. 518,

126 S.Ct. 2064, 2077, 165 L.Ed.2d 1 (2006). It is used to lift

-14-

procedural bars and allow the habeas litigition to proceed on an

underlying claim. Florida law has no such concept because Florida

does not place time or procedural limits on true claims of newly

discovered evidence. Florida courts entertain claims of innocence,

based on newly discovered evidence, pursuant to the Jones standard,

at any time and without procedural hurdles. Green v. State, 975 So.2d

1090, 1099-1100 (Fla. 2008)(discussing claims of newly discovered

evidence based on recantations and mDNA evidence and explaining the

standard to obtain a new trial based on newly discovered evidence

citing Jones v. State, 709 So.2d 512, 521 (Fla. 1998)). The Florida

Supreme Court routinely listens to claims of innocence raised years,

indeed decades, after the conviction was final. Green v. State, 975

So.2d 1090 (Fla. 2008)(reviewing claims of newly discovered evidence

in a conviction affirmed in 1994 in 2008); Kormondy v. State, 983

So.2d 418, 437 (Fla. 2007)(reviewing a claim of newly discovered

evidence based on witness recantation in relation to a 2003

resentencing in 2007). Indeed, the Jones standard is broader than

a federal claim of actual innocence because it does not require a

showing of actual innocence and also applies to the penalty phase.

Kormondy v. State, 983 So.2d 418, 437-438 (Fla. 2007)(noting that

claim of newly discovered evidence mitigation that would probably

yield a less severe sentence may be raised under Jones). While

Florida has a broader concept than actual innocence in federal habeas,

Peterka must meet the Jones standard to raise a claim of actual

innocence and he did not even attempt to do so in his successive

motion.

-15-

Substantively, there is also no reason to adopt the federal concept

of a freestanding claim of innocence. Peterka asserts that it is an

important “safety value” to correct unjust conviction, but Florida

courts already have such a mechanism. IB at 19. Real claims of

innocence, supported by new evidence, have been recognized by the

Florida Supreme Court at least since Jones. Any successive motion

supported by new evidence would be proper motion under rule

3.851(d)(2)(a) governing newly discovered evidence. There is no

reason to adopt either the federal habeas concept of gateway or a

freestanding claim of innocence in Florida.

Peterka’s real problem is that he is not raising a claim of actual

innocence. Peterka is arguing about the degree of murder he

committed, he is not claiming that he is not the actual perpetrator

as he must do to raise a valid actual innocence claim. A true claim

of actual innocence is: “I did not do it, you have the wrong guy.”

Peterka is not saying that he did not shoot the victim. Peterka

admits being the shooter. He just thinks that the jury should have

believed his story of self-defense/accident and convicted him of

manslaughter, not first degree murder. IB at 16, n.9. Peterka is

not saying that he is not the actual perpetrator of the murder; rather,

he is saying that because of his bad trial lawyer he was not convicted

of a lesser degree of murder such as second degree murder.

A claim of legal error does not count as actual innocence, much

less a claim of ineffectiveness. As the Eleventh Circuit recently

explained, actual innocence means factual innocence, not mere legal

insufficiency. Johnson v. Florida Department Of Corrections, 513 F.3d

-16-

1328, 1334 (11th Cir. 2008), citing Bousley v. United States, 523 U.S.

614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998)(explaining

that “actual innocence” means factual innocence, not mere legal

insufficiency). Indeed, this is partially why the district court

rejected Peterka’s claim of innocence in federal court. As explained

in federal district court’s ruling section above, the federal courts

have rejected Peterka’s claim of “actual innocence” under the federal

standard. The federal district court explained that Peterka was not

raising a valid claim of actual innocence because he disputed the

“legal theory upon which he was convicted” which is not a true claim

of actual factual innocence. Peterka v. McDonough, 2007 WL 1030078,

25 (N.D.Fla. March 29, 2007).

Peterka also failed to meet the federal standard gateway standard

of innocence and for the same reason. Peterka has no evidence of his

innocence. Peterka’s claim of “innocence” would never qualify as a

valid claim of actual innocence in federal court. First, there is

no new evidence, scientific or otherwise. The United States Supreme

Court requires new reliable evidence, such as “exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence, that was not presented at trial” to even get to first base

of an actual innocence claim. Schlup, 513 U.S. at 324, 115 S.Ct. at

865; Rich v. Department Of Corrections State Of Fla., 2008 WL 4183930,

1 (11th Cir. September 12, 2008)(stating: “Actual innocence claims

must also be supported ‘with new reliable evidence-whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence-that was not presented at trial’” quoting

-17-

Schlup). The actual innocence exception in federal habeas cannot be

used to merely relitigate the same evidence presented at the original

trial. Alexander v. Metrish, 2007 WL 542010, 10 (W.D.Mich.

2007)(refusing to apply the actual innocence exception to the federal

habeas statute of limitations where the defendant admitted killing

the victim and did not proffer any new exculpatory scientific

evidence, trustworthy eyewitness accounts, or physical evidence to

support his claim of actual innocence). This is exactly what Peterka

is attempting to do.

This is not an actual innocence claim. It is a claim of

ineffective assistance of counsel that was not raised in his first

postconviction motion as it should have been. Peterka’s claim,

regardless of his labeling them as a claim of actual innocence, is

actually a procedurally barred claim of ineffective assistance of

trial counsel mixed with a claim of ineffectiveness of state

postconviction counsel, which does not exist. IB at 21. In the

conclusion of the initial brief, counsel states that due to the “gross

misconduct of postconviction counsel”, which is a claim of

ineffective assistance of postconviction counsel. IB at 21. This

Court had already rejected this claim. Peterka v. State, 890 So.2d

219, 241 (Fla. 2004)(rejecting Peterka’s claim that he was denied due

process during his postconviction proceedings because of

postconviction counsel's failure to both present sufficient evidence

to support the claims raised and raise other meritorious claims,

explaining that a claim of ineffective assistance of postconviction

counsel is not a valid basis for relief citing King v. State, 808 So.2d

-18-

1237, 1245 (Fla. 2002)). Peterka is repackaging the exact same claim

already rejected by this Court as an actual innocence claim.

Peterka, in a footnote, asserts that the State has taken the

inconsistent position in federal court that a gateway claim of actual

innocence applies to rule 3.851/3.850 proceedings in Florida courts.

IB at 18 n. 11. It is not accurate. The footnote of Wyzykowski v.

Department of Corrections, 226 F.3d 1213, 1219, n.8 (11th Cir. 2000)

in relevant part reads: For the first time at oral argument before this panel, the State suggested that there may be an exception to the two-year statute of limitations in the Rule 3.850(b) in the case of actual innocence. The State suggested that a dismissal without prejudice for lack of exhaustion might be appropriate, whereby the state court rather than the federal court would address the factual issue of actual innocence in the first instance. Again, we decline to address issues relating to exhaustion, preferring that they be addressed in the first instance by the district court if appropriate.

This footnote of Eleventh Circuit’s opinion never mentions Schlup.

The State’s position in federal habeas is that all claims, including

valid claims of actual innocence based on newly discovered evidence,

must be exhausted in state court. All the State was saying to the

Eleventh Circuit in Wyzykowski, was that the claim had not be

exhausted in state court as required in all federal habeas cases.

While Wyzykowski’s claim of actual innocence was also one of legal

innocence, not factual innocence, as found by the district court on

remand from the Eleventh Circuit2, if Wyzykowski had presented a valid

2 On remand from the Eleventh Circuit, the magistrate denied the claim of actual innocence in Wyzykowski without conducting an evidentiary hearing ruling that the claim was a claim of legal innocence, not factual innocence because Wyzykowski admitted to stabbing the victim citing Bousley. (Case # 9:97-cv-08535-WDF Southern District of Florida Doc. #29). The district court adopted

-19-

claim of actual innocence with new evidence, he would need to present

that new evidence to a Florida court via 3.851 motion first before

being allowed to litigate the claim in federal court.

Moreover, federal courts do not currently recognize freestanding

actual innocence claims. The United States Supreme Court has never

held that there is such a claim. House v. Bell, 547 U.S. 518, 554-55,

126 S.Ct. 2064, 2086-87, 165 L.Ed.2d 1 (2006) (declining to resolve

whether freestanding actual innocence claim can be maintained). A

freestanding claim of actual innocence is not a cognizable claim in

federal habeas according to several circuits, including the Eleventh

Circuit. Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir.

2002)(rejecting an actual innocence claim in a capital case and

stating: “It is not our role to make an independent determination of

a petitioner's guilt or innocence based on evidence that has emerged

since the trial” and “federal habeas courts sit to ensure that

individuals are not imprisoned in violation of the Constitution-not

to correct errors of fact.”); See also In re Wright, 2008 WL 4748512,

3, n.3 (5th Cir. 2008)(stating that “actual innocence is not an

independently cognizable federal-habeas claim.”); United States v.

Quinones, 313 F.3d 49, 67 (2d Cir. 2002)(noting that actual innocence

has not been held to provide an independent basis for habeas relief).

Moreover, Peterka’s advocating Florida Courts adopt the federal

court’s concept of freestanding innocence is circular, the entire

concept was proposed as a residual guarantee for those states that

the magistrate’s report and recommendation. The Eleventh Circuit then denied COA on the issue of actual innocence.

-20-

did not permit newly discovered evidence litigation. The United

States Supreme Court has explained that if a freestanding claim of

actual innocence existed, it would be limited to states that do not

have avenues open to litigate new evidence, unlike Florida. Herrera

v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 869, 122 L.Ed.2d 203

(1993)(assuming without deciding “that in a capital case a truly

persuasive demonstration of ‘actual innocence’ made after trial would

render the execution of a defendant unconstitutional, and warrant

federal habeas relief if there were no state avenue open to process

such a claim”). The entire problem in the Herrera case was that Texas

did not permit litigation of newly discovered evidence. Texas only

allowed motions for new trial based on new evidence to be filed within

10 days of verdict.3 Florida has allowed litigation of newly

discovered evidence at least since the adoption of the Jones standard

in 1998. If the United States Supreme Court ever creates a

freestanding actual innocence claim, it will not apply to Florida.

Cooper v. Brown, 510 F.3d 870, 986 (9th Cir. 2007)(rejecting an actual

innocence claim because Petitioner also failed to show that there is

“no state avenue open to process such a claim” where the California

Supreme Court had addressed the issue on the merits.).4 In 3 Texas has since adopted such avenues and the freestanding innocence concept, if ever explicitly adopted by the United States Supreme Court, would not be applied to Texas either.

4 The problem in House was that, for some inexplicable reason, the Tennessee Supreme Court refused to answer the Sixth Circuit’s certified question about whether there were avenues open in Tennessee to address new evidence claims. House v. Bell, 311 F.3d 767 (6th Cir. 2002). There is no doubt as to the existence of such avenues in Florida.

-21-

those states like Florida that allow newly discovered evidence

litigation, the federal courts will never entertain freestanding

innocence claims. A Florida defendant must raise new evidence claims

in the Florida courts and may not then relitigate the Florida court’s

conclusion regarding the new evidence in federal court. Florida

courts are the one forum available for such claims.

In conclusion, Peterka’s successive motion was untimely.

Furthermore, the issue of freestanding claims of innocence is

controlled by this Court’s recent decision in Tompkins. This Court

will hear claims of innocence without time or procedural bars but only

those claims of innocence that involve new evidence. Accordingly,

the trial court’s denial of the postconviction motion should be

affirmed.

-22-

CONCLUSION

The State respectfully requests that this Honorable Court affirm

the trial court’s denial of the successive postconviction motion.

Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL ____________________________ CHARMAINE M. MILLSAPS ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 0989134 OFFICE OF THE ATTORNEY GENERAL THE CAPITOL TALLAHASSEE, FL 32399-1050 (850) 414-3300 COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER

BRIEF has been furnished by U.S. Mail to Linda McDermott, McClain &

McDermott, 141 N.E. 30th Street Wilton Manors, FL 33334 this 20th

day of January, 2009. ________________________________ Charmaine M. Millsaps Attorney for the State of Florida

CERTIFICATE OF FONT AND TYPE SIZE

Counsel certifies that this brief was typed using Courier New

12 point font. ________________________________ Charmaine M. Millsaps Attorney for the State of Florida