IN THE SUPREME COURT OF FLORIDA

CASE NO. SC14-1011

JAMES DENNIS FORD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURTOF THE TWENTIETH JUDICIAL CIRCUIT,

IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA

INITIAL BRIEF OF APPELLANT

MARTIN J. MCCLAINFlorida Bar No. 0754773McClain & McDermott, P.A.Attorneys at Law141 N.E. 30th StreetWilton Manors, FL 33334(305) 984-8344martymcclain@earthlinl.net

COUNSEL FOR APPELLANT

Filing # 19443864 Electronically Filed 10/15/2014 10:34:04 PM

RECEIVED, 10/15/2014 22:38:59, John A. Tomasino, Clerk, Supreme Court

PRELIMINARY STATEMENT

This proceeding involves the appeal of the circuit court's

summary denial of a post-conviction motion. At issue in the case

is not only the record from Mr. Ford’s trial, but also the record

from proceedings on his first post-conviction motion.

Citations to Mr. Ford’s record on direct appeal will be

designated as “R --”.

Citations to Mr. Ford’s first collateral record will be

designated as “PC-R --”.

Citations to current record on appeal of denial of Mr.

Ford’s current Rule 3.851 motion will be “2PC-R –-”.

REQUEST FOR ORAL ARGUMENT

Mr. Ford has been sentenced to death. The resolution of the

issues involved in this action will therefore determine whether

he lives or dies. This Court historically has not hesitated to

allow oral argument and provide a capital appellate the

opportunity to be heard in accord with due process. Huff v.

State, 622 So.2d 982, 983 (Fla. 1993). A full opportunity to air

the issues through oral argument would be appropriate in this

case, given the seriousness of the claims involved. The death

penalty is the gravest sentence our society may impose. Hall v.

Florida, 134 S.Ct. 1986, 2001 (2014)(“Persons facing that most

severe sanction must have a fair opportunity to show that the

Constitution prohibits their execution. Florida's law contravenes

i

our Nation's commitment to dignity and its duty to teach human

decency as the mark of a civilized world. The States are

laboratories for experimentation, but those experiments may not

deny the basic dignity the Constitution protects.”). Accordingly,

Mr. Ford, through counsel, asks this Court to grant him that

“fair opportunity” and permit him to have his counsel to appear

and orally argue his appeal.

ii

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . vi

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . 20

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . 47

SUMMARY OF THE ARGUMENTS. . . . . . . . . . . . . . . . . . . 48

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 50

ARGUMENT IBECAUSE MR. FORD’S ORIGINAL REGISTRY COUNSEL WASUNFAMILIAR WITH RULE 3.851, CONDUCTED NO INVESTIGATIONINTO A PENALTY PHASE INEFFECTIVENESS CLAIM, FAILED TOHIRE AN INVESTIGATOR, A MITIGATION SPECIALIST OR AMENTAL HEALTH EXPERT TO EVALUATE MR. FORD, ANDGENERALLY PROVIDED MR. FORD WITH AT BEST PRO FORMACOLLATERAL REPRESENTATION AND SERVED AS A MERESCRIVENER FOR MR. FORD, AND BECAUSE THERE IS A WEALTHOF EVIDENCE AND INFORMATION DEMONSTRATING THAT MR. FORDHAS A SUBSTANTIAL CLAIM OF PENALTY PHASEINEFFECTIVENESS THAT WAS PRECLUDED FROM BEING HEARD INTHE INITIAL RULE 3.851 PROCEEDINGS BY REGISTRY’S PROFORMA REPRESENTATION, THE CIRCUIT COURT ERRED INSUMMARILY DENYING MR. FORD’S CLAIM WITHOUT CONDUCTINGAN EVIDENTIARY HEARING... . . . . . . . . . . . . . 50

A. Mr. Mercurio’s Pro Forma Service As Mr. Ford’sCapital Collateral Registry Counsel. . . . . . 50

B. The Mitigation That Collateral CounselUnreasonably Failed To Discover And Present InSupport Of A Penalty Phase Substantive IneffectiveAssistance Of Counsel Claim. . . . . . . . . . 59

C. If A Capital Defendant Has Is A Right To Effective

iii

Assistance Collateral Representation, There MustBe An Available Remedy For A Breach Of That Right.. . . . . . . . . . . . . . . . . . . . . . . 66

D. Conclusion.. . . . . . . . . . . . . . . . . . 74

ARGUMENT II THE CIRCUIT COURT ERRED IN RULING THAT MR.FORD’S LETHAL INJECTION CHALLENGE WAS PREMATURE ANDCOULD ONLY BE HEARD WHEN HE HAD AN ACTIVE DEATH WARRANT. . . . . . . . . . . . . . . . . . . . . . . . . . 75

ARGUMENT IIIA NON-UNANIMOUS DEATH VERDICT VIOLATES THE EVOLVINGSTANDARDS OF DECENCY UNDER THE EIGHTH AMENDMENT.. . 75

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 75

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . 76

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . 76

iv

TABLE OF AUTHORITIES

Page

Atkins v. Virginia,

536 U.S. 304 (2002). . . . . . . . . . . . . 12, 13, 19, 29

Barker v. Wingo,

407 U.S. 514 (1972). . . . . . . . . . . . . . . . . . . 16

Brady v. Maryland,

373 U.S. 83 (1963).. . . . . . . . . . . . . . . . . . . 53

Bryant v. State,

901 So.2d 810 (Fla. 2005) .. . . . . . . . . . . . . . . 56

Chapman v. California,

386 U.S. 18 (1967).. . . . . . . . . . . . . . . . . . . . 5

Cherry v. State,

959 So.2d 702 (Fla. 2007). . . . . . . . . . . . . . . . 29

Cleveland Bd. of Ed. v. Loudermill,

470 U.S. 532 (1985). . . . . . . . . . . . . . . . . . . 75

Dansby v. Norris,

682 F.3d 711 (8th Cir. 2012). . . . . . . . . . . . . . . 72

Deaton v. Dugger,

635 So.2d 4 (Fla. 1993) .. . . . . . . . . . . . . . . . 30

Downs v. Dugger,

514 So.2d 1069 (Fla. 1987).. . . . . . . . . . . . . . 5, 6

Eddings v. Oklahoma,

455 U.S. 104 (1982). . . . . . . . . . . . . . . . . . . 27

v

Floyd v. State,

902 So.2d 775 (Fla. 2005). . . . . . . . . . . . . . 38, 53

Ford v. Florida,

535 U.S. 1103 (2002).. . . . . . . . . . . . . . . . 16, 22

Ford v. State,

802 So.2d 1121 (Fla. 2001).. . . . . . 1, 13, 22, 23, 60, 64

Ford v. State,

955 So.2d 550 (Fla. 2007). . . . . . . . . . . . . . . . 45

Furman v. Georgia,

408 U.S. 238 (1972) .. . . . . . . . . . . . . . . . . . 45

Garcia v. State,

622 So.2d 1325 (Fla. 1993).. . . . . . . . . . . . . 38, 53

Gaskin v. State,

737 So. 2d 509 (Fla. 1999).. . . . . . . . . . . . . . . 48

Gore v. State,

91 So.3d 769 (Fla. 2012).. . . . . . . . . . . . . . . . 71

Ha Van Nguyen v. Curry,

736 F.3d 1287 (9th Cir. 2013). . . . . . . . . . . . . . 73

Hall v. Florida,

134 S.Ct. 1986 (2014) .. . . . . . 1, 14, 19, 29, 49, 66, 74

Hildwin v. State,

141 So.3d 1178 (Fla. 2014).. . . . . . . . . . . . . 38, 53

Hitchcock v. Dugger,

481 U.S. 393 (1987) .. . . . . . . . . . . . . . . . . . . 5

vi

Holland v. Florida,

130 S.Ct. 2549 (2010). . . . . . . . . . . . . . . . . . 73

Howell v. State,

109 So.3d 763 (Fla. 2013). . . . . . . . . . . . . . . . 71

Johnson v. Mississippi,

486 U.S.578 (1988) . . . . . . . . . . . . . . . . . . 1, 74

Johnson v. State,

44 So.3d 51 (Fla. 2010). . . . . . . . . . . . . . . 38, 53

Jones v. State,

591 So.2d 911 (Fla. 1991). . . . . . . . . . . . . . . . 53

Kimbrough v. State,

125 So.3d 752 (Fla. 2013). . . . . . . . . . . . . . 49, 75

Lightbourne v. Dugger,

549 So. 2d 1364 (Fla. 1989). . . . . . . . . . . . . . . 48

Lockett v. Ohio,

438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . 27

Lugo v. Sec’y Dep’t of Corrs.,

750 F.3d 1198 (11th Cir. 2014) . . . . . . . . . . . . . 45

Makemson v. Martin County,

491 So.2d 1109 (Fla. 1986).. . . . . . . . . . . . . 67, 69

Mann v. State,

112 So.3d 1158 (Fla. 2013).. . . . . . . . . . . . . . . 71

Marbury v. Madison,

1 Cranch 137 (1803) .. . . . . . . . . . . . 14, 32, 44, 59

vii

Martinez v. Ryan,

132 S.Ct. 1309 (2012). . . . . . . . . . . . . . . . . 69-71

McClain v. Atwater,

110 So.3d 892 (Fla. 2013). . . . . . . . . . 14, 58, 68, 69

Moore v. State,

132 So.3d 718 (Fla. 2013). . . . . . . . . . . . . . . . 71

Mordenti v. State,

894 So.2d 161 (Fla. 2004). . . . . . . . . . . . . . 38, 53

Nelson v. State,

875 So.2d 579 (Fla.2004).. . . . . . . . . . . . . . . . 56

Olive v. Maas,

811 So.2d 644 (Fla. 2002). . . . . . . . . . . . . . 68, 69

Parker v. Dugger,

498 U.S. 308 (1991) .. . . . . . . . . . . . . . . . . 10-12

Peede v. State,

748 So. 2d 253 (Fla. 1999).. . . . . . . . . . . . . . . 48

Remeta v. State,

559 So.2d 1132 (Fla. 1990).. . . . . . . . . . . . . . 67-69

Richmond v. Lewis,

506 U.S. 40 (1992).. . . . . . . . . . . . . . . . . . . 20

Roberts v. State,

840 So.2d 962 (Fla. 2002). . . . . . . . . . . . . . 38, 53

Rogers v. State,

782 So.2d 373 (Fla. 2001). . . . . . . . . . . . . . 38, 53

viii

Roper v. Simmons,

543 U.S. 551 (2005). . . . . . . . . . . . . 17, 18, 20, 36

Sasser v. Hobbs,

735 F.3d 833 (8th Cir. 2013). . . . . . . . . . . . . . . 72

Smith v. State,

998 so. 2d 516 (Fla. 2008) . . . . . . . . . . . . . . . 44

Sochor v. Florida,

504 U.S. 527 (1992) .. . . . . . . . . . . . . . . . . 5, 6

Spalding v. Dugger,

526 So.2d 71 (Fla. 1988) . . . . . . 14, 20, 23, 32, 59, 66

Spencer v. State,

615 So. 2d 688 (Fla. 1993).. . . . . . . . . . . . . . . 21

State v. Mills,

788 So.2d 249 (Fla. 2001). . . . . . . . . . . . . . 38, 53

Strickland v. Washington,

466 U.S. 668 (1984). . . . . . 16, 27, 31, 37, 59, 65, 69,70

Swafford v. State,

125 So.3d 760 (Fla. 2013). . . . . . . . . . . . . . 38, 53

Tennard v. Dretke,

542 U.S. 274 (2004). . . . . . . . . . . . . 14, 15, 16, 36

Trevino v. Thaler,

133 S.Ct. 1911 (2013). . . . . . . . . . 20, 69, 70, 71, 74

Wilson v. Wainwright,

474 So.2d 1162 (Fla. 1985).. . . . . . . . . . . . . . . 67

ix

INTRODUCTION

“The fundamental respect for humanity underlying the EighthAmendment's prohibition against cruel and unusual punishment

gives rise to a special ‘need for reliability in thedetermination that death is the appropriate punishment’ in any

capital case.”

Johnson v. Mississippi, 486 U.S.578, 584 (1988)

“The death penalty is the gravest sentence our society mayimpose. Persons facing that most severe sanction must have a fair

opportunity to show that the Constitution prohibits theirexecution. Florida's law contravenes our Nation's commitment todignity and its duty to teach human decency as the mark of a

civilized world. The States are laboratories for experimentation,but those experiments may not deny the basic dignity the

Constitution protects.”

Hall v. Florida, 134 S.Ct. 1986, 2001 (2014)

As this Court in Mr. Ford’s direct appeal, he was recognized

by the sentencing judge as “learning disabled,” and a

“developmental age of fourteen.” Ford v. State, 802 So.2d 1121,

1127 n.3 (Fla. 2001).1 Even though the sentencing judge did find

that Mr. Ford was learning disabled and had a “developmental age

1This Court specifically discussed the sentencing judge’sfindings in this regard as follows:

In the present case, after the defense expertspresented proof that Ford (who was thirty-eight at thetime of sentencing) is a slow learner and has limitedcapabilities, the trial court held that the followingproposed nonstatutory factors were “proven” (i.e., thecourt held that the following proposed factors aremitigating in nature and are present in the instantcase): (a) The defendant is learning disabled; and (b)the defendant has a developmental age of fourteen.

Ford v. State, 802 So.2d at 1135 (emphasis added).

1

of fourteen,” she concluded that these were not mitigating

circumstances in Mr. Ford’s case. This Court found no error in

this legal determination saying:

However, based on extensive testimony by otherwitnesses showing that Ford functions well as a matureadult, the court concluded that these factors are notmitigating under the facts in the case at hand andaccorded them no weight. Our review of the record showsthat this ruling is supported by competent substantialevidence. We find no error.

Id. at 1135 (emphasis added).2

2While Mr. Ford presented 25 lay witnesses (family members,friends, school teachers, jailers), those witnesses did nottestify that “Ford function[ed] well as a mature adult.”Witnesses who were asked testified that Mr. Ford was drinkingbetween 18 and 24 beers a day (R 3956, 4020). Mr. Ford who was 38years old had been married twice, and at the time of the crimewhile still married to his second wife, Mr. Ford was living withyet another woman (R 4123-24, 4143-45). Mr. Ford only “went tothe ninth” grade before leaving school (R 4075). Mr. Ford “ha[d]a hard time with reading and he [did]n’t comprehend what hereads” (R 4183). In order to pass a test to obtain “a CDLlicense” necessary to operate “a semi and haul equipment,” Mr.Ford had to obtain videos of the questions and answers withdemonstrations because of his inability to comprehend writtenmaterials (R 4182-83). As an adult, he found work that paidhourly wages and changed jobs often (R 3969, 4027). At differenttimes he worked for hourly wages in an orange grove, ran “abackhoe or something,” and worked “at a mine” in Brooksville fora time (R 3969, 4027). While working with insecticides in orangegroves, Mr. Ford quit his job after a co-worker “became ill fromexposure to chemical or whatever, and couldn’t work any longer”and the employer wouldn’t help the co-worker disabled as a resultof the exposure to the insecticides (R 4035). During the weeksbefore the crime, Mr. Ford would often stay in a trailer on hisbrother’s property, the trailer in which their mother lived. Mr.Ford had to stay with his mother because he “was having troublewith the well at his house and he didn’t have any water” (R4075). In fact, it was common for an adult Mr. Ford “through theyears” to have to “[c]ome back and stay with Mom for a while” (R4075). A psychologist who evaluated Mr. Ford reported he hadmissed child support payments and had shown “an inability to

2

The sentencing judge also found that the defense did

established a “a family history of alcoholism,” “a medical

history of diabetes,” “the lack of sociopathic or psychopathic

tendencies,” and “the absence of antisocial tendencies,” but

ruled these factors also were not mitigating. As to the family

history of alcoholism, the judge wrote: “such a history does not

serve as valid mitigation” (R 2728). As to Mr. Ford being

diabetic, the judge wrote: “it does not serve as valid

mitigation” (R 2729). As to the fact that Mr. Ford was not “a

sociopath or psychopath,” the judge wrote: “it does not serve as

a valid mitigating circumstance” (R 2730). As to the fact that

Mr. Ford was not “antisocial,” the judge wrote: “it does not

serve as a valid mitigating circumstance” (R 2730). This Court

ruled that as to these four non-statutory mitigating

circumstances, the sentencing judge erred in her legal analysis:

The trial court held that the following proposednonstatutory factors are present in the instant casebut are not mitigating in nature: (a) a family historyof alcoholism; (b) a medical history of diabetes; (c)the lack of sociopathic or psychopathic tendencies; and(d) the absence of antisocial tendencies. We disagree.

handle checking accounts and checkbooks” (R 4296). Mr. Ford’sdifficulty arose from both “lack of income” and “because hecouldn’t add. He couldn’t write and he couldn’t read” (Id.). TheState did not contest the evidence presented by the defense thatMr. Ford was a functionally illiterate, an alcohol abuser,employable only as a day laborer who frequently changed jobs, andthat he from time-to-time had to return home and live with hismother when be unable to make it on his own. Contrary to thesentencing judge’s statement, the evidence was undisputed thatMr. Ford did not function well as a mature adult.

3

Each of these factors is mitigating in nature in thateach relates to a defendant's character or record orthe circumstances of the offense and reasonably mayserve as a basis for imposing a sentence less thandeath.

Id. at 1135-36. However as to the exclusion of these four

mitigating circumstances from the sentencing calculus, this Court

wrote: “we find any error harmless.” Id. at 1136.3 As an

explanation, this Court offered:

[W]e find any error harmless in light of the following:(a) These factors occupy a minor and tangentialposition in the present record; (b) the present case

3While finding the Eighth Amendment error harmless, thisCourt made no mention of the sentencing judge’s determinationthat the statutory mitigator of no history of criminal activity.Indeed, the sentencing judge wrote: “The Defendant has no suchhistory and the Court affords this mitigator great weight.” (R2722). Also not mentioned in this Court’s harmless error analysiswas the sentencing judge’s finding of a second statutorymitigator - the defendant’s age. The sentencing judge found thisstatutory mitigator present because of the expert testimonyregarding Mr. Ford’s mental age. The judge wrote: “While ... thisstatutory mitigating circumstance has been proven, the Courtaffords it very little weight.” (R 2727) (emphasis in original).

This Court also made no reference to the four non-statutorymitigators that the sentencing judge found were “proven.” These“proven” non-statutory mitigators included: “The Defendant was adevoted son”; “The Defendant was a loyal friend”; “TheDefendant’s excellent jail record and jail conduct”; and “TheDefendant’s self-improvement while in jail” R 2727-29).

This Court also made no mention of the two non-statutorymitigating circumstances that the sentencing judge found were“proven,” but which she refused to consider in the sentencingcalculus because she required the defense to establish a “nexus”between mitigating circumstances and “the commission of theseoffenses.” (R 2728). The two non-statutory mitigatingcircumstance that the judge rejected because of the failure toestablish such “a nexus” were “The Defendant’s own chronicalcoholism” and “The lack of intervention by the school system onthe Defendant as a child for his developmental impairments” (R2728-29).

4

contains vast aggravation, including multipleexecution-style murders; and (c) the trial courtrecognized and gave weight to numerous othermitigators.

Ford v. State, 802 So.2d at 1136. Of course, this statement or

justification is contrary to Eighth Amendment jurisprudence.

After Hitchcock v. Dugger, 481 U.S. 393 (1987) issued, this Court

in Downs v. Dugger, 514 So.2d 1069, 1071 (Fla. 1987):

Hitchcock rejected a prior line of cases issued by thisCourt, which had held that the mere opportunity topresent nonstatutory mitigating evidence was sufficientto meet Lockett requirements. Under this “merepresentation” standard, we routinely declined toconsider whether the judge or jury actually weighed theevidence in question.

* * *

We thus can think of no clearer rejection of the “merepresentation” standard reflected in the prior opinionsof this Court, and conclude that this standard nolonger can be considered controlling law. UnderHitchcock, the mere opportunity to present nonstatutorymitigating evidence does not meet constitutionalrequirements if the judge believes, or the jury is ledto believe, that some of that evidence may not beweighed during the formulation of an advisory opinionor during sentencing.

(Emphasis added). This Court’s analysis in Mr. Ford’s case was

also contrary to the Eighth Amendment requirements set forth in

Sochor v. Florida, 504 U.S. 527, 540 (1992) (“Since the Supreme

Court of Florida did not explain or even “declare a belief that”

this error “was harmless beyond a reasonable doubt” in that “it

did not contribute to the [sentence] obtained,” Chapman, supra,

386 U.S., at 24, 87 S.Ct., at 828, the error cannot be taken as

5

cured by the State Supreme Court's consideration of the case.”).

In its direct appeal opinion, this Court also found error in

the sentencing judge’s rejection as a matter of law of the non-

statutory mitigator that the alternative sentence was life

imprisonment without the possibility of parole. The sentencing

judge wrote: “The Court finds that it does not serve as a valid

mitigating circumstance” (R 2730). In finding this ruling to be

error, this Court explained:

The court ruled that another proposed nonstatutoryfactor, i.e., the alternative punishment to death islife imprisonment without parole, is not mitigating innature and gave it no weight. We disagree. Paroleineligibility is mitigating in nature because itrelates to the circumstances of the offense andreasonably may serve as a basis for imposing a sentenceless than death.

Ford v. State, 802 So.2d at 1136. However, this Court found the

sentencing judge’s rejection of this non-statutory mitigator as a

matter of law was harmless saying, “for reasons stated above.”

Id. This was an apparent reference to its finding the rejection

of the four other non-statutory mitigators was harmless error in

the preceding paragraph.4 This Court’s analysis was contrary to

Downs v. Dugger and Sochor v. Florida.

4Once again, while finding the error in the judge’srejection of this non-statutory mitigator harmless, this Courtmade no reference to the two statutory mitigating circumstancesand four non-statutory mitigators that the sentencing judge foundto have been established in Mr. Ford’s case and included in thesentencing calculus, nor to the four other non-statutorymitigating circumstances that it concluded that the judgeerroneously excluded from her sentencing calculus.

6

While finding error as to five separate non-statutory

mitigators, this Court did not address Mr. Ford’s challenge to

the sentencing judge’s rejection of the statutory mitigator of

“substantial impairment.” See Initial Brief, Case No. 95,972, at

57-60. The defense had called two mental health experts who both

evaluated Mr. Ford and testified to the presence of statutory

mitigating circumstances. Dr. Bill Mosman, a psychologist,

testified that “Mr. Ford was under the influence of extreme

mental and also emotional disturbance” at the time of the offense

(R 4286). He testified that “Mr. Ford’s capacity to appreciate -

to know and understand - to appreciate the criminality of his

conduct at the instant the crimes were committed or to conform

his conduct to the - - to what we expect him to do, those two

factors were substantially impaired” (R 4287).

Dr. Richard Greer, a psychiatrist, in his testimony focused

upon Mr. Ford’s medical history of diabetes,5 his alcohol abuse,

his high blood pressure, and the interplay between these

conditions, as well as Mr. Ford’s intellectual functioning.

“[W]hen a person has significantly elevated blood pressure with

alcohol, with high blood sugar, all of these factors may

influence very greatly their intellectual functioning, the way

5Dr. Greer testified that Mr. Ford had been diagnosed asdiabetic “at least seven or eight years” ago (R 4383). However,“[i]n Mr. Ford’s case [ ] it was not, again, a well-controlleddiabetes” (R 4384).

7

they think and how they act” (R 4382). Dr. Greer testified that

the effects of alcohol on an individual’s intellectual impairment

increase significantly in a diabetic with elevated blood sugar

and high blood pressure. “And not only does the alcohol increase

the blood sugar, but the blood sugar is going to increase the

effects of alcohol” (R 4387). Dr. Greer testified that in Mr.

Ford, “the interaction was significant and was very likely to

significantly impair his mental faculties or his mental

abilities” (R 4388). After noting Mr. Ford’s limited intellect,

Dr. Greer testified: “all three of those factors - the diabetes,

the alcohol and the high blood pressure - are going to further

diminish his intellect, that he’s not going to be thinking

anywhere near what his full capability is” (R 4388).6 Dr. Greer

was not asked about whether Mr. Ford was or was not under an

extreme mental or emotional disturbance at the time of the

6During the State’s cross of Dr. Greer, he explained: “I’msaying that [Mr. Ford] was substantially impaired by these veryhigh blood sugars, this alcohol intoxication including beer andwhiskey - 18 beers, a couple of whiskey drinks - high bloodpressure, these things combined with his limited intellectualcapabilities to, I think, put him a state of out of his mind, touse a lay term” (R 4404, 34). While he had explained during hisdirect testimony that an alcohol blackout “is an amnesia episode,a loss of memory” (R 4391), Dr. Greer clarified during cross thathe did not know whether Mr. Ford experienced an alcohol blackouton the day of the offense (R 4408) (“That’s as far as I can go.).Because Dr. Greer did not find that Mr. Ford experienced analcohol blackout, i.e. amnesia for a period of time, hisconclusion that the criteria for a statutory mitigator was met(substantial impairment) was not dependent on whether there wasor was not an alcoholic blackout.

8

offense.

In its rebuttal case, the State called only one witness, Dr.

Robert Wald (R 4513).7 The only substantive testimony the State

elicited from Dr. Wald was his opinion that “I do not believe

[Mr. Ford] experienced a blackout at that time” (R 4519). In

cross, Dr. Wald acknowledged that he “really [did]n’t know what

happened with respect to the Defendant and his conduct that day”

(R 4527). When the defense sought to ask Dr. Wald whether “Mr.

Ford’s ability to conform his conduct to the law may very well

have been substantially impaired,” the State objected and the

objection was sustained (R 4528). As a result, Dr. Wald’s

testimony regarding the statutory mitigating circumstance of

“substantial impairment” was precluded from being presented. As a

result, the testimony from the two defense experts that the

substantial impairment statutory mitigator was present was not

contested.

The sentencing judge, when rejecting the “substantially

impaired” statutory mitigator, erroneously asserted: “In support

of this statutory mitigator, the defense relies almost entirely

upon the testimony of Dr. Greer” (R 2725). The statement was

palpably false as the transcript of Dr. Mosman’s testimony

demonstrates. The judge also wrote, “According to Dr. Greer, on

7Dr. Wald was the only witness called by the State duringthe entirety of the penalty proceedings before the jury.

9

the date of these crimes Mr. Ford drank himself into a [sic]

alcohol blackout and thus was unable to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law was [sic] substantially impaired” (R 2725).

Again, the judge’s representation of what Dr. Greer testified to

was palpably false as the transcript of Dr. Greer’s testimony

demonstrates. The sentencing judge’s rejection of the

“substantially impaired” statutory mitigator rested on palpably

false findings and representations. This was Eighth Amendment

error. See Parker v. Dugger, 498 U.S. 308, 321 (1991) (Eighth

Amendment error found because “[t]he Florida Supreme Court did

not conduct an independent review here[;] [i]n fact, there is a

sense in which the court did not review Parker's sentence at

all.”). Though Mr. Ford pointed out the judge’s factual errors in

his direct appeal to this Court, this Court simply did not

address the issue raised regarding the statutory mitigator. See

Parker v. Dugger, 498 U.S. at 321.

On direct appeal, Mr. Ford also challenged the judge’s

rejection of a mitigator premised upon his mild organic brain

damage. See Initial Brief, Case No. 95,972, at 61-62. In

justifying her rejection of this mitigator, the judge falsely

asserted “that there has been no evidence, no tests, no proof

submitted to substantiate this mitigating circumstance” (R.

2728). Apparently, the judge was not listening to Dr. Mosman’s

10

testimony that he had conducted a Bender-Gestalt on Mr. Ford (R

4304). The Bender-Gestalt is a standard screening test for brain

damage. “Mr. Ford, this test indicates, does have some collateral

damage in some areas of the brain, that it is probably a

processing problem” (R 4304). Dr. Mosman testified that the

organic brain damage that his testing showed provided “one of the

most potent explanations for why we’ve got the learning

disabilities.” The school records showed that Mr. Ford “is

seriously learning disabled and has been all of his life” (R

4305). Dr. Mosman administered the Denman Verbal Memory Scale to

Mr. Ford who received “scores that he is serious[ly] diabled in

that area. * * * So he’s way off the board on here” (R 4305).

“[T]he only explanation is, once again, we’ve got a guy here

who’s got some minimal brain damage” (R 4306). On yet another

test used to measure organic brain damage, “[t]he scores are

pretty clear on that, mildly impaired” (R 4306). The sentencing

judge’s false representation that “no evidence, no tests, no

proof” had been presented to establish mild organic brain damage

was contrary to the record. See Parker v. Dugger, 498 U.S. at

321. Contrary to the Eighth Amendment, Mr. Ford’s organic brain

damage was not included in the sentencing calculus.

Mr. Ford also challenged on direct appeal the sentencing

judge’s employment of “a nexus” requirement as to mitigating

circumstances. See Initial Brief, Case No. 95,972, at 61. In her

11

sentencing order, the judge rejected Mr. Ford’s chronic

alcoholism, which she found “proven,” as a mitigating

circumstance because “[n]o nexus was established between the

Defendant’s alcoholism and the commission of these offenses” (R

2728). Similarly, she rejected the failure of the school system

to provide help to Mr. Ford when he was child with his

developmental impairments as mitigating because “there is no

nexus between any development impairments in the commission of

these offenses” (R 2729). However, Eighth Amendment law clearly

did not include a requirement that for a circumstance to qualify

as mitigation to be included in the sentencing calculus, the

defense must establish “a nexus” between the circumstance and the

offense. Though reference was made in Mr. Ford’s briefing to this

Court on direct appeal to the “nexus” requirement imposed by the

judge, this Court on direct appeal did not address the issue or

acknowledge the error. See Parker v. Dugger, 498 U.S. at 321.

After this Court’s affirmance of Mr. Ford’s conviction and

sentence of death, the United States Supreme Court issued Atkins

v. Virginia, 536 U.S. 304 (2002), where the Supreme Court wrote:

[I]n Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759,64 L.Ed.2d 398 (1980), we set aside a death sentencebecause the petitioner's crimes did not reflect “aconsciousness materially more ‘depraved’ than that ofany person guilty of murder.” Id., at 433, 100 S.Ct.1759. If the culpability of the average murderer isinsufficient to justify the most extreme sanctionavailable to the State, the lesser culpability of thementally retarded offender surely does not merit that

12

form of retribution. Thus, pursuant to our narrowingjurisprudence, which seeks to ensure that only the mostdeserving of execution are put to death, an exclusionfor the mentally retarded is appropriate.

Atkins, 536 U.S. at 319 (emphasis added).

While Mr. Ford’s court-appointed registry counsel8 initially

pled a claim in a Rule 3.851 motion that Mr. Ford’s execution

should be barred by Atkins v. Virginia, registry counsel

announced at the beginning of an evidentiary hearing on May 12,

2004, that he was abandoning the claim under Atkins v. Virginia

“in its entirety at this point” (PC-R 261). This was done even

though registry counsel did not hire a mental health expert to

conduct an evaluation of Mr. Ford in light of Atkins and despite

the fact that the sentencing judge had previously found that a

38-year-old Mr. Ford had “a developmental age of fourteen.” Ford

v. State, 802 So.2d at 1135 (emphasis added). In fact, billing

records showed that the registry attorney who represented Mr.

Ford in the Rule 3.851 proceedings in circuit court did not

obtain the services of either an expert or an investigator.

Indeed, registry counsel did not seek reimbursement of any kind

(2PC-R 27).9 Without conducting any investigation, registry

8Mr. Frederick Mercurio was appointed to serve as Mr. Ford’scapital collateral registry counsel on June 24, 2002. This wasfour days after Atkins v. Virginia issued.

9Under Fla. Stat. § 27.711, registry counsel had ample fundsto hire a qualified expert to examine Mr. Ford. However as thebilling records show, registry counsel chose not to hire anexpert, chose not to hire an investigator, chose not to expend

13

counsel abandoned Mr. Ford’s Atkins claim.10

On June 24, 2004, the United States Supreme Court rendered

its decision in Tennard v. Dretke, 542 U.S. 274 (2004). There,

the Supreme Court found that the Fifth Circuit Court of Appeals

had failed to follow controlling Eighth Amendment jurisprudence

when it concluded that mitigating evidence could be found to be

not “constitutionally relevant” and thus properly excluded from

the sentencing calculus in a capital case. Id. at 284.

Specifically, the Supreme Court found the “nexus” requirement

any resources whatsoever, and chose not devote any billable hoursto Mr. Ford’s case. This was abandonment. Mr. Ford had counsel inname only. He did not have effective legal representation. SeeSpalding v. Dugger, 526 So.2d 71, 72 (Fla. 1988) (“We recognizethat, under section 27.702, each defendant under sentence ofdeath is entitled, as a statutory right, to effective legalrepresentation by the capital collateral representative in allcollateral relief proceedings.”); Marbury v. Madison, 1 Cranch137, 163 (1803) (“The government of the United States has beenemphatically termed a government of laws, and not of men. It willcertainly cease to deserve this high appellation, if the lawsfurnish no remedy for the violation of a vested legal right.”).In McClain v. Atwater, 110 So.3d 892, 898 (Fla. 2013), this Courtwrote that to provide adequate compensation to collateralregistry counsel who litigated a successive Rule 3.851, a courtmust focus “on the defendant’s right to effective representationrather than the attorney’s right to fair compensation”. Mr. Forddid not receive what he was promised or even what the EighthAmendment demands. See Hall v. Florida, 134 S.Ct. 1986, 2001(2014) (a “[p]erson facing that most severe sanction must have afair opportunity show that the Constitution prohibits theirexecution.”).

10While there was testimony in the record that at some pointin his life Mr. Ford had received an IQ score in the 80's (R4300), there is also testimony that while in school, Mr. Ford’sIQ scores were in the mentally retarded range (R 4309) (“We alsohave, you know, the benefit of school testing on IQ at age 7. HisIQ is 65. * * * The next year he slid down to 62").

14

employed by the Fifth Circuit contrary to the Eighth Amendment

explaining:

In Atkins v. Virginia, 536 U.S., at 316, 122 S.Ct.2242, we explained that impaired intellectualfunctioning is inherently mitigating: “[T]oday oursociety views mentally retarded offenders ascategorically less culpable than the average criminal.”Nothing in our opinion suggested that a mentallyretarded individual must establish a nexus between hermental capacity and her crime before the EighthAmendment prohibition on executing her is triggered.Equally, we cannot countenance the suggestion that lowIQ evidence is not relevant mitigating evidence -andthus that the Penry question need not even beasked-unless the defendant also establishes a nexus tothe crime.

Tennard v. Dretke, 542 U.S. at 287 (emphasis added). The Supreme

Court further explained:

Evidence of significantly impaired intellectualfunctioning is obviously evidence that “might serve ‘asa basis for a sentence less than death,’ ” Skipper, 476U.S., at 5, 106 S.Ct. 1669; see also, e.g., Wiggins v.Smith, 539 U.S. 510, 535, 123 S.Ct. 2527, 156 L.Ed.2d471 (2003) (observing, with respect to an individualwith an IQ of 79, that “Wiggins['] ... diminishedmental capacitie[s] further augment his mitigationcase”); Burger v. Kemp, 483 U.S. 776, 779, 789, n. 7,107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (noting thatpetitioner “had an IQ of 82 and functioned at the levelof a 12-year-old child,” and later that “[i]n light ofpetitioner's youth at the time of the offense, ...testimony that his ‘mental and emotional developmentwere at a level several years below his chronologicalage’ could not have been excluded by the state court”(quoting Eddings, 455 U.S., at 116, 102 S.Ct. 869)).

Reasonable jurists also could conclude that the TexasCourt of Criminal Appeals' application of Penry to thefacts of Tennard's case was unreasonable. Therelationship between the special issues and Tennard'slow IQ evidence has the same essential features as therelationship between the special issues and Penry's

15

mental retardation evidence. Impaired intellectualfunctioning has mitigating dimension beyond the impactit has on the individual's ability to act deliberately.

Tennard, 542 U.S. at 288 (emphasis added).

This Court affirmed Mr. Ford’s death sentence even though

the sentencing judge in her sentencing order (1) specifically

rejected two non-statutory mitigators on the basis of a failure

to demonstrate “a nexus” between the mitigation and the offense

and (2) implicitly rejected Mr. Ford’s learning disability and

“developmental age of fourteen” as valid and proper mitigating

circumstances. The sentencing judge’s belief in and reliance upon

“a nexus” requirement before mitigation could be included in the

sentencing calculus was Eighth Amendment error as Tennard clearly

held. Yet even after the issuance of Tennard on June 24, 2004,

Mr. Ford’s registry counsel did nothing to bring this Eighth

Amendment error to this Court’s attention.11

11The order denying Mr. Ford’s initial Rule 3.851 motion wasrendered on July 14, 2004 (PC-R 359). Nothing was filedconcerning Tennard before the denial of relief was entered, norwas a motion for rehearing filed afterward seeking to raise aclaim on the basis of Tennard. Registry counsel filed a notice ofappeal on behalf of Mr. Ford on August 11, 2004 (PC-R 378).Registry counsel served a 21-page initial brief on behalf of Mr.Ford on July 28, 2005. Tennard was not one of the eight caseslisted in the brief’s Table of Citations. In fact, the only USSupreme Court decisions set forth therein were the denial ofcertiorari review in Ford v. Florida, 535 U.S. 1103 (2002), andStrickland v. Washington, 466 U.S. 668 (1984). The 3-page replybrief was served on May 16, 2006. No citation to Tennard appearedthere. Besides Strickland, the only US Supreme Court decisioncited in the reply brief was Barker v. Wingo, 407 U.S. 514(1972). Registry counsel did not file a petition for a writ ofhabeas corpus with this Court as provided for in Rule

16

On March 1, 2005, the United States Supreme Court issued

Roper v. Simmons, 543 U.S. 551, 575 (2005). There, the Supreme

Court held that “the death penalty cannot be imposed upon

juvenile offenders” under the Eighth Amendment. In its opinion,

the Supreme Court wrote:

Capital punishment must be limited to those offenderswho commit “a narrow category of the most seriouscrimes” and whose extreme culpability makes them “themost deserving of execution.” Atkins, supra, at 319,122 S.Ct. 2242. This principle is implementedthroughout the capital sentencing process. States mustgive narrow and precise definition to the aggravatingfactors that can result in a capital sentence.

Roper v. Simmons, 543 U.S. at 568 (emphasis added). The Supreme

Court explained:

From a moral standpoint it would be misguided to equatethe failings of a minor with those of an adult, for agreater possibility exists that a minor's characterdeficiencies will be reformed.

Id. at 570. The Supreme Court then addressed the penological

justifications for the death penalty (retribution and deterrence)

and wrote:

As for retribution, we remarked in Atkins that “[i]fthe culpability of the average murderer is insufficientto justify the most extreme sanction available to theState, the lesser culpability of the mentally retardedoffender surely does not merit that form ofretribution.” 536 U.S., at 319, 122 S.Ct. 2242. Thesame conclusions follow from the lesser culpability ofthe juvenile offender. Whether viewed as an attempt toexpress the community's moral outrage or as an attemptto right the balance for the wrong to the victim, thecase for retribution is not as strong with a minor as

9.142(b)(4), Fla. R. App. Pro.

17

with an adult. Retribution is not proportional if thelaw's most severe penalty is imposed on one whoseculpability or blameworthiness is diminished, to asubstantial degree, by reason of youth and immaturity.

As for deterrence, it is unclear whether the deathpenalty has a significant or even measurable deterrenteffect on juveniles, as counsel for petitioneracknowledged at oral argument.

Id. at 571 (emphasis added).12

In Mr. Ford’s case, the judge found that Mr. Ford’s

developmental age was the equivalent of a fourteen year-old, even

though the testimony was that Mr. Ford’s mental intellectual age

[was] 11 to 14[,] [a]nd the emotional impairment is a different

factor that emotional and developmentally, probably in the area

12The Supreme Court also noted in Roper, 541 U.S. at 573,that “[a]n unacceptable likelihood exists that the brutality orcold-blooded nature of any particular crime would overpowermitigating arguments based on youth as a matter of course.” Thislanguage strikes a chord in Mr. Ford’s case. The sentencing judgehere clearly permitted her feelings about the crime to“overpower” the plethora of mitigation presented whichdemonstrated and continues to demonstrate that Mr. Ford is not“among the worst offenders.” Roper v. Simmons, 543 U.S. at 569.Indeed just as in Roper, the judge turned mitigation intoaggravation finding the fact that he had no criminal history,that he had never been seen to be violent, and that he was notdiagnosed as having an antisocial personality disorder, deprivedMr. Ford of a means “to explain seemingly unexplainable crime” (R2224, 2227, 2230). The judge relied not just on the absence of anexplanation to reject mitigation as having “a nexus” to theoffense, but also a basis to not consider whether Mr. Ford was“among the worst offenders,” and a basis to ignore the fact thatthe Eighth Amendment precludes the execution of “the averagemurderer.” Roper, 543 U.S. at 570-71. The judge ignored the factthat it “is not proportional if the law’s most severe penalty isimposed on one whose culpability or blameworthiness isdiminished, to a substantial degree, by reason of youth andimmaturity.” Id. at 571.

18

at about 9" (R 2728, 4289). However after ignoring that the

developmental age was actually lower than what she stated, the

judge refused to accept Mr. Ford’s immaturity as mitigating under

the Eighth Amendment or to include it in her sentencing calculus.

She did not address at all the fact that in January of 1999, Mr.

Ford’s reading level “was equivalent to about an 11-year-old,”

while he ability to spell at the level of “a 10-year-old,” and

his math skills were at the level of “a 12-year-old” (R 4303).

And this was nearly two years after the offense, and after Mr.

Ford had “heavily invested in learning how to read and improving

those skills” while in jail (R 4303-04).

Recently, the United States Supreme Court issued its opinion

in Hall v. Florida, 134 S.Ct. 1986 (2014). There, the Supreme

Court struck down this Court’s ruling that an IQ of greater than

70 disqualified a capital defendant from asserting his execution

would violate the Eighth Amendment under Atkins v. Virginia. In

Hall v. Florida, 134 S.Ct. at 2001, the Supreme Court explained:

The death penalty is the gravest sentence our societymay impose. Persons facing that most severe sanctionmust have a fair opportunity to show that theConstitution prohibits their execution. Florida's lawcontravenes our Nation's commitment to dignity and itsduty to teach human decency as the mark of a civilizedworld. The States are laboratories for experimentation,but those experiments may not deny the basic dignitythe Constitution protects.

(Emphasis added). It is clear that Mr. Ford has been deprived of

a fair opportunity to show that he is not “among the worse

19

offenders,” that mental deficits and emotional and intellectual

immaturity show that his “culpability or blameworthiness is

diminished.” See Roper v. Simmons, 543 U.S. at 571. He has been

deprived of a fair opportunity to have his plethora of mitigating

circumstances actually considered and weighed during the

sentencing calculus. Richmond v. Lewis, 506 U.S. 40 (1992).

But beyond the Eighth Amendment issues, Mr. Ford was

deprived of his statutory right under Spalding v. Dugger, the

benefit of the contractual obligation imposed upon capital

collateral registry counsel and Fla. Stat. § 27.711, and the

equitable right applicable in collateral proceedings in Florida

under Trevino v. Thaler, 133 S.Ct. 1911 (2013), when his court-

appointed registry counsel failed to conduct any investigation,

failed to obtain the assistance of a mental health expert or an

investigator, failed to conduct any legal research, and failed to

do billable work on behalf of Mr. Ford as his registry attorney.

The proceedings in Mr. Ford’s case have been a sham.

STATEMENT OF THE CASE AND FACTS

On April 30, 1997, in the Twentieth Judicial Circuit Court

for Charlotte County, James Ford was indicted on first degree

murder, sexual battery, and child abuse charges arising from the

homicides of Greg and Kimberly Malnory in the presence of their

daughter Maranda Malnory (R 13). The jury trial began on February

22, 1999, before the Honorable Cynthia A. Ellis (R 1010-3728). On

20

March 8, 1999, the jury found Mr. Ford guilty of the first degree

murders of Greg and Kimberly Malnory, guilty of sexual battery

of Kimberly Malnory, and guilty of child abuse of Maranda Malnory

(R 2100-2103, 3721-3722). The penalty phase was conducted on

April 20-23, 1999 (R 3877-4697). After the defense called twenty-

five lay witnesses and two mental health experts, the State was

permitted to call over objection a mental health expert who had

examined Mr. Ford for competency to testify that in his opinion

Mr. Ford had not been in an alcoholic blackout at the time of the

offense (R 4519).13 Otherwise, the State did not challenge or

attempt to rebut the mitigating evidence presented by the

defense. The jury then returned death recommendations as to both

first degree murder convictions (R 2357-2358, 4691-4692).

A hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla.

1993), was held before Judge Ellis on May 3, 1999. At that

hearing, the State called three witnesses to testify to victim

impact information (R 4715-24). Mr. Ford’s sentencing hearing

occurred on June 3, 1999 (R 4734). At that time, Judge Ellis

sentenced James Ford to 19.79 years in prison for sexual battery

13In cross, the State’s expert admitted that he did notreally “know what happened with respect to the Defendant and hisconduct that day” (R 4527). The defense was precluded from askingthe State’s expert if he had an opinion as to whether “Mr. Ford’sability to conform his conduct to the law may very well have beensubstantially impaired” (R 4528). The defense was precluded fromasking the State’s expert if “Mr. Ford is amenable torehabilitation” (R 4528).

21

with a firearm, with a three-year minimum mandatory, and to a

concurrent sentence of five years in prison for felony child

abuse (R 4741-4742). For the two first degree murder convictions,

Judge Ellis imposed death sentences (R 4744-4769).

On direct appeal, this Court affirmed Mr. Ford’s convictions

and sentences of death. Ford v. State, 802 So.2d 1121 (Fla.

2001). The United States Supreme Court denied Mr. Ford’s petition

seeking certiorari review on May 28, 2002. Ford v. Florida, 535

U.S. 1103 (2002).

Meanwhile following the issuance of this Court’s mandate in

Mr. Ford’s case on December 13, 2001, proceedings pursuant to

Rule 3.851 commenced. On January 11, 2002, the Office of the

Capital Collateral Regional Counsel for the Southern Region filed

a pleading entitled: Motion to Withdraw. This motion asserted:

“Simply put, CCRC-South cannot provide effective representation

to the Defendant at this time due to its current caseload and

staff shortages. CCRC-South must therefore regretfully move to

withdraw and to appoint effective conflict-free counsel on behalf

of the Defendant.” An order issued on this motion on February 8,

2002. Thereafter, Robert Burr was appointed to represent Mr.

Ford. On June 17, 2002, a collateral hearing was held in Mr.

Ford’s capital case. Robert Burr was removed as Mr. Ford’s

22

counsel on June 17, 2002. On June 24, 2002,14 an order was

entered apparently appointing Frederick Mercurio to serve as Mr.

Ford’s registry counsel under §27.711, Fla. Stat.15 The record

does not reveal whether Mr. Mercurio ever advised the state

circuit court during his representation of Mr. Ford that on April

3, 2003, that this Court entered an order admonishing Mr.

Mercurio as a result of a complaint filed by the Florida Bar. See

Florida Bar v. Mercurio, Case No. SC02-1391 (April 3, 2003).

Certainly, Mr. Ford was not advised by either Mr. Mercurio or the

circuit court of this Court’s admonishment of Mr. Mecurio on

April 3, 2003.

Mr. Mercurio formally entered his appearance as Mr. Ford’s

14This was four days after the United States Supreme Court’sdecision in Atkins v. Virginia issued.

15Florida law provides that “[b]y accepting court appointmentunder s. 27.710 to represent a capital defendant, the attorneyagrees to continue such representation under the terms andcondition set forth in this section until the capital defendant’ssentence is reversed, reduced, or carried out, and the attorneyis permitted to withdraw from such representation by a court ofcompetent jurisdiction.” Fla. Stat. § 27.711(8). In §27.710(5), the Florida Legislature indicated that the courtappointed attorney was expected “to represent such person incollateral actions challenging the legality of the judgment andsentence in the appropriate state and federal courts.” Furthermore, this Court held in Spalding v. Dugger, 526 So.2d 71(Fla. 1988), the state-provided collateral counsel was obligatedto provide the capital collateral defendant with effectiverepresentation in all collateral proceedings. It was within thisframework that the court-appointed registry undertookrepresentation of Mr. Ford, who the sentencing court found to be“a slow learner” and possessing “limited capabilities.” Ford v.State, 802 So.2d at 1135.

23

registry counsel on June 26, 2002. Mr. Mercurio also signed a

contract with the Comptroller that obligated him to represent Mr.

Ford in federal court and pursue the collateral remedies

available there. This contractual provision mirrored the

statutory obligation that appeared in Fla. Stat. § 27.711(8).

A “Motion for Post-Conviction Relief” in a five page, pro se

format signed by Mr. Ford was filed on May 28, 2003, at 3:22 PM.

Mr. Ford’s signature was notarized as sworn on May 25, 2003, in

Union County where Union Correctional Institution is located and

where Mr. Ford was housed on death row at the time (PC-R 1). An

attorney signature does not appear as adopting the pleading.

There is a separate page attached to the pleading that is

entitled as Certificate of Service, and this is dated May 28,

2003. The Certificate of Service was signed by Frederick P.

Mercurio, and reflected a mailing address in Sarasota, Florida

(PC-R 6). Mr. Mercurio had used the Model Form for Use in Motions

for Postconviction Relief Pursuant to Florida Rule of Criminal

Procedure 3.850. See Rule 3.987. Despite being appointed to

represent Mr. Ford from the list of capital collateral registry

attorneys presumably knowledgeable as to the law governing

capital collateral proceedings, Mr. Mercurio was unaware that

capital collateral proceedings were governed by Rule 3.851 and

not by Rule 3.850. Indeed, the model form for pro se 3.850

motions did not and does not comport with the pleading

24

requirements of Rule 3.851. The use of the model form for 3.850

motions to submit a 3.851 motion quite clearly demonstrated that

Mr. Mercurio was not only not familiar with the capital

collateral process, he had also failed to bother to read the

governing rule, let alone conduct any legal research regarding

the capital collateral process.16

Using the pro se format, the claims and factual allegations

were to be set forth in the paragraph delineated as “14.” In the

motion filed in Mr. Ford’s case, paragraph 14 of the pleadings

was as follows:

14. State concisely every ground on which youclaim that the judgment or sentence is unlawful:Supporting FACTS (tell your story briefly withoutciting cases or law):

(a) The attorneys representing me, Paul Sullivanand Paul Alessandroni pursued the defense and JuryInstruction of voluntary intoxication over my objectionand without my permission or consent.

(b) Over my objection and without my permission orconsent defense counsel waived my right to a SpeedyTrial.

(c) Defense Counsel failed to sufficiently presentevidence from Dr. Mosman and Dr. Greer to support thefact that the Defendant’s chronological agenotwithstanding, that his mental age of at the time ofthe crime was 14 years of age.

Having the mental age of 14, Defense Counsel

16One of the major differences between the jurisprudenceregarding Rule 3.850 motions and Rule 3.851 motions is the factthat penalty phase ineffective assistance of counsel claims areraised in virtually every 3.851 motion, while ineffectivenessclaims in sentencing proceedings in non-capital case are prettyunusual. Mr. Mercurio’s clear assumption that he was appointed tohelp Mr. Ford complete the form for a 3.850 motion explains hiscomplete and total failure to investigate, research and submit apenalty phase ineffectiveness claim on behalf of Mr. Ford.

25

should have argued that the Death Penalty was notlegally appropriate due to the Defendant’s mentalretardation.

Mental retardation was not presented or requestedas a mitigating factor in the Defendant’s PenaltyPhase.

The Defendant’s Counsel failed to follow thecorrect procedure when a defendant is possibly mentallyretarded by failing to have the Court Appoint theDiagnosis and Evaluation Team of HRS to examine theDefendant pursuant to Florida Statutes §916.11(1)(d).

(PC-R 3-4). This was the extent to which Mr. Ford’s claims for

post conviction relief were pled.

The State filed a response on July 18, 2003. In its

response, the State wrote: “Although Ford may be entitled to an

evidentiary hearing in accordance with Rule 3.851(f)(5)(A), his

motion as pled is clearly insufficient for the granting of any

further relief.” (PC-R 55). The State argued: “While it is

apparent that Ford’s complaint is limited to the adequacy of his

attorneys’ performance, he has failed to provide any legitimate

framework for the granting of relief.” (PC-R 56). The State

asserted: “Ford’s claim, as pled, provides no basis for a finding

of deficient performance or prejudice. In fact, prejudice is not

even summarily alleged.” (PC-R 57). The State then wrote:

“Furthermore, some aspects of Ford’s claim are clearly refuted by

the trial transcripts.” (PC-R 58).17 The State also noted that

17Here, the State referenced the sentencing judge’s rejectionof limited intellectual functioning as not mitigating: “ThisCourt clearly considered Ford’s low intelligence, finding that itwas not mitigating, and this determination was upheld by theFlorida Supreme Court on appeal.” (PC-R 58). This was an

26

the motion did not pled or proffer the existence of a mental

health expert who could or would provide testimony demonstrating

prejudice as a result of trial counsel’s deficient performance.18

In its conclusion, the State nonetheless conceded that Mr. Ford

was entitled to an evidentiary hearing because Rule 3.851 created

a right to an evidentiary hearing: “Notwithstanding the obvious

factual and legal insufficiency of Ford’s motion, the State

acknowledges that, as previously noted, Rule 3.851 establishes

the right to an evidentiary hearing to insure full consideration

admission that Mr. Ford’s death sentence did not comport withEighth Amendment jurisprudence. See Eddings v. Oklahoma, 455 U.S.104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978). Yet, Mr.Mercurio, obviously unfamiliar with basic Eighth Amendmentjurisprudence failed to seize upon this admission of EighthAmendent error virtually identical to that found to have occurredin Eddings, 455 U.S. 113, when the sentencing judge there “didnot evaluate the evidence in mitigation and find it wanting as amatter of fact; rather he found that as a matter of law he wasunable even to consider the evidence.”

18Mr. Mercurio’s failure in this regard is all the morestriking in light of his assertion as to Claim 14 C, the mentalretardation claim, that Mr. Ford’s trial attorneys “failed tofollow the correct procedure when a defendant is possiblymentally retarded by failing to have the Court Appoint theDiagnosis and Evaluation Team of HRS to examine the Defendantpursuant to Florida Statute §916.11(1)(d).” (PC-R 4). Mr.Mercurio, himself, did not have Mr. Ford evaluated by any expertas the registry’s billing records reflect. In another words, Mr.Mercurio did not do want he claimed trial counsel was ineffectivefor not doing. Mr. Mercurio was unfamiliar with the controllingjurisprudence that in presenting an ineffective assistance ofcounsel claim, registry counsel was not only required to pleadand proof trial counsel’s deficient performance, but alsodemonstrate the prejudice to the defendant by showing whatinformation or evidence would have been unearthed had counselperformed adequately under Strickland v. Washington.

27

of Ford’s ineffective assistance of counsel claim.” (PC-R. 60).

Pursuant to the State’s assertion that Mr. Ford had a right

to an evidentiary hearing regardless of the adequacy of his Rule

3.851 motion, the circuit court granted an evidentiary hearing.

It was scheduled for May 12, 2004. At a status hearing on April

13, 2004, Mr. Mercurio, as Mr. Ford’s registry counsel, orally

moved for a continuance. As the judge subsequently explained,

“the motion was based on the unavailability or non-retention of a

potential witness.” (PC-R 260). The judge also explained that the

motion was denied at the April 13th status “without prejudice” to

renew the motion at or before the May 12th scheduled evidentiary

hearing (PC-R 260). Accordingly on May 12th, the judge began the

evidentiary hearing by inquiring: “So I need to ask again, Mr.

Mercurio, the status of your efforts to retain other witnesses.”

(PC-R 260). Mr. Mecurio responded: “I’ve advised [Mr. Ford] that

I have been unable to secure an expert that will be able to

testify that at or before the time of these events he would have

testified that Mr. Ford was classified, or could be classified as

mentally retarded.” (PC-R 260-61). Mr. Mecurio then stated:

“Based on the unavailability of any expert testimony that would

be able to come forward, as well as my speaking to Mr. Ford, Mr.

Ford has indicated that he does not wish to pursue that avenue of

28

post-conviction relief and is willing to waive that.”19 (PC-R

261) (emphasis added). Clearly, Mr. Ford’s willingness to give up

the claim at his attorney’s suggestion was premised up his

attorney’s failure to hire an expert to evaluate Mr. Ford.20 See

19It is doubtful that an individual whose execution isprecluded by Atkins v. Virgina and Hall v. Florida can waive theEighth Amendment ban on execution of an individual who isintellectually disabled. Hall v. Florida, 134 S.Ct. at 1992 (“Nolegitimate penological purpose is served by executing a personwith intellectual disability. Id., at 317, 320, 122 S.Ct. 2242.To do so contravenes the Eighth Amendment, for to impose theharshest of punishments on an intellectually disabled personviolates his or her inherent dignity as a human being.‘[P]unishment is justified under one or more of three principalrationales: rehabilitation, deterrence, and retribution.’”)(emphasis added).

20Mr. Mercurio indicated in response to a question from thejudge that his failure to obtain an expert was “not either afinancial difficulty or anything else, it’s a difficulty ingetting someone to go along with the proposition. Once they’vehad an opportunity to review all of the records and reports” (PC-R 263). However, the billing records for registry counsel clearlydemonstrate that in fact Mr. Mercurio did not retain any expertto review “all of the records and reports” (2PC-R 27). Thosebilling records clearly establish that no expert was paid toevaluate Mr. Ford and/or to review “all of the records andreports.” Contrary to Mr. Mercurio statement on the record, itdid not happen. Certainly had an expert been contacted, reviewedthe record and evaluated Mr. Ford, even if the expert concludedthat Mr. Ford did meet the then governing standard adoptedlegislatively, see Cherry v. State, 959 So.2d 702 (Fla. 2007),such an expert would have been in a position to address the manymisunderstandings of Mr. Ford’s mental health mitigationcontained in the sentencing judge’s sentencing order. But, Mr.Mercurio, who submitted no billable hours and retained neither anexpert of any kind or an investigator, presented no penalty phaseissues in the Rule 3.851 other than the Atkins claim. And thebilling records show why - Mr. Mercurio did absolutely nothing,no work, no billable hours, to investigate, obtain and review therecord, or legally research possible penalty phase issues,including ineffective assistance of counsel, that could raised ina properly written, properly research, properly investigated,

29

Deaton v. Dugger, 635 So.2d 4, 8 (Fla. 1993) (“In this case, the

trial judge found that Deaton had waived the right to testify and

the right to call witnesses to present evidence in mitigation,

but concluded that, because his counsel failed to adequately

investigate mitigation, Deaton's waiver of those rights was not

knowing, voluntary, and intelligent.”).

The circuit court then noted that only “claims 14 A and B”

were left to be heard (PC-R 261). The court asked Mr. Mecurio if

he was ready to proceed. He responded, “Yes.” (PC-R 261).21

After abandoning the mental retardation claim that he did

not investigate, Mr. Mercurio explained that the extent of the

claims that he was pursuing at Mr. Ford’s initial collateral

review of his death sentence:

We’ve raise two grounds in the motion, tworemaining grounds, and those are essentially that overMr. Ford’s objection his right to a speedy trial waswaived by defendant’s counsel without consultation andwithout any expressed agreement to waive speedy trial. It is his position that all times relevant to his casehe wished to have a fast and speedy trial.

properly pled Rule 3.851 motion.

21The State asked that the judge inquire of Mr. Ford on therecord regarding counsel’s announcement that he would not bepursuing the mental retardation claim. The judge then asked Mr.Ford about paragraph 14 C of the motion to vacate (PC-R 264-65)(“I direct your attention to section 14 C, this is the claim thatyour counsel is representing that you are abandoning today”). Mr. Ford explained his understanding of why the claim was notbeing pursued: “And the deal when we went to trial, when I wentand seen all the doctors to start with, I wasn’t found mentallyretarded, nor did I think I was at that time” (PC-R 265).

30

And in addition to that, that the defense counsel,Mr. Sullivan and Mr. Alessandronio, pursued the defenseof voluntary intoxication over Mr. Ford’s expressedobjection to them doing so.

Based on those errors we believe that there’sineffective assistance of counsel and the Court shouldreverse – or, excuse me, set aside his conviction andremand to a new proceeding.

(PC-R 266).

Thus it is clear that in the previous Rule 3.851 motion

filed by Mr. Mercurio, a claim of penalty phase ineffective

assistance was not presented or pursued. Indeed, Mr. Mercurio did

not investigate any penalty phase issues, let alone raise any

challenge in the initial collateral review of Mr. Ford’s death

sentences as to the effectiveness of trial counsel at the penalty

phase of Mr. Ford’s trial. Mr. Ford had wished to challenge his

death sentences and wished to challenge the effectiveness of the

representation that he received as inadequate under the Sixth

Amendment (2PC-R 4).

The only witness that Mr. Mercurio had to present at the

evidentiary hearing as to the two one-sentence ineffectiveness

assertions in the Rule 3.851 motion, indeed the only witness that

Mr. Mercurio ever talked to in preparing the Rule 3.851, was Mr.

Ford, himself (PC-R 268). Mr. Mercurio wrote those two sentences

pled as Claims 14A and 14B based upon his correspondence with Mr.

Ford, who was not and is not a lawyer, and who was not and is not

familiar with the jurisprudence beginning with Strickland v.

31

Washington, 466 U.S. 668 (1984), governing claims of ineffective

assistance.22 Mr. Mercurio did no research of his own; he did not

even read the record in Mr. Ford’s case. He merely took two

legally insignificant concerns that Mr. Ford, a learning disabled

layman functioning developmentally at most at the level of a

fourteen your-old, expressed to him in correspondence and pled

them as two one-sentence ineffective assistance of counsel

claims.

After presenting testimony from Mr. Ford, Mr. Mercurio

announced that “we don’t have any other witnesses to present”

(PC-R 294).23 At that point, the State called Mr. Ford’s trial

22During Mr. Mercurio’s brief, very brief, closing argumentat the conclusion of the evidentiary hearing that occurred onlybecause the State advised the circuit court that a hearing had tobe conducted, Mercurio acknowledged that the claims he raisedwere based solely upon information provided by Mr. Ford (PC-R102). That was the extent of his efforts, serving as Mr. Ford’sscrivener.

23Of course, there were no other witnesses to present becauseMr. Mercurio never interviewed any other witnesses or conductedany investigation into Mr. Ford’s case. And Mr. Ford, whilehoused on Florida’s death row was entirely dependent on Mr.Mercurio to function as effective collateral counsel within theguarantee this Court expressly found in Spalding v. Dugger, 526So.2d at 72 (“We recognize that, under section 27.702, eachdefendant under sentence of death is entitled, as a statutoryright, to effective legal representation by the capitalcollateral representative in all collateral relief proceedings.This statutory right was established to alleviate problems inobtaining counsel to represent Florida's death-sentencedprisoners in collateral relief proceedings.”) (emphasis added).See Marbury v. Madison, 1 Cranch at 163 (“The government of theUnited States has been emphatically termed a government of laws,and not of men. It will certainly cease to deserve this highappellation, if the laws furnish no remedy for the violation of a

32

attorneys, Paul Sullivan and Paul Alessandronio, to testify

regarding the ineffectiveness claims that Mr. Mercurio pled: 1)

counsel over Mr. Ford’s objection waived his right to a speedy

trial; and 2) counsel failed to present a voluntary intoxication

defense at the guilt phase.

When the trial attorneys’s testimony concluded, Mr. Mercurio

presented his closing argument. It occupied less than one full

transcription page (PC-R 355-56). It included no reference to any

case law, although Mr. Mercurio noted that the law presented in

the State’s response was correct and that he “had no law to the

contrary” (PC-R 355). Mr. Mercurio’s very brief argument amounted

to nothing more than repeating the two sentences set forth in the

Rule 3.851 motion as Claims 14A and 14B, but in a slightly more

verbose fashion, while conceding that the State was correct and

he had no legal bases for the claims that he had pled. It truly

reflected the fact that Mr. Mercurio had expended no billable

hours during his representation of Mr. Ford. Mr. Mercurio was the

epitome of an empty suit serving as Mr. Ford’s capital collateral

registry counsel.

On July 14, 2004, the circuit court entered its order

denying Mr. Ford’s Rule 3.851 motion (PC-R 359). On August 11,

2004, Mr. Mercurio served a notice of appeal (PC-R 378).

On July 28, 2005, Mr. Mercurio served a twenty-two page

vested legal right.”).

33

initial brief that he had prepared on behalf of Mr. Ford. Though

Mr. Mercurio had conceded in his closing argument in the circuit

court that the State’s written 3.851 response (that had argued

Mr. Ford’s claims provided no basis for relief (PC-R 57)) “fairly

well spelled out” the law and that he “had no law to the

contrary” (PC-R 355), he made token arguments in the initial

brief that the circuit court had erroneously denied Mr. Ford’s

claims. Mr. Mercurio’s two-page argument that trial counsel did

not provide effective representation as to the voluntary

intoxication issue, only argued that the circuit court’s order

denying relief on the claim was not supported by competent,

substantial evidence. Mr. Mercurio quibbled with the court’s use

of the word “moot” to describe aspects of the claim. However, Mr.

Mercurio made no argument that Mr. Ford had in fact received

ineffective assistance on the voluntary intoxication issue. See

Appellant’s Initial Brief, Case No. SC04-1611, at 16-17.

As to the ineffectiveness claim relating to the waiver of

the right to a speedy trial, Mr. Mercurio’s argument was a little

over two pages in length. Here, Mr. Mercurio did cite three

decisions from the District Courts of Appeal, none of which

supported his position.24 The three cases cited addressed whether

24Mr. Mercurio did not cite these three cases during hisclosing argument in the circuit court when he expressly indicatedthat he was familiar with the law cited by the State in itsresponse to the 3.851 motion and acknowledged that he had “no lawto the contrary to present” (PC-R 355). This failure either

34

the circuit courts in the three cases had erroneously denied Rule

3.850 motions without conducting an evidentiary hearing on

allegations that the trial attorneys failed to file either

demands for a speedy trial or notices of the expiration of the

speedy trial clock. None of the three cases addressed an

ineffectiveness claim in the context of a waiver of the right to

a speedy trial by filing a motion for a continuance in a capital

case. Moreover in Mr. Ford’s case, an evidentiary hearing had in

fact been conducted on the ineffectiveness claim. Therefore, the

three cases were not relevant as to whether the circuit court’s

order denying relief after holding an evidentiary hearing was

erroneous.

As to whether the circuit court’s order denying relief on

the claim was erroneous, Mr. Mercurio presented no argument. See

Appellant’s Initial Brief, Case No. SC04-1611, at 18-20.

When he filed the 22-page initial brief on August 1, 2005,

Mr. Mercurio did not also file a petition for a writ of habeas

corpus on Mr. Ford’s behalf as provided for in Rule 9.142(b)(4).

Mr. Mercurio’s failure to file such a petition was a product of

1) his ignorance of the language in Rule 9.142(b)(4); 2) his

failure to read the record and the briefs filed by Mr. Ford’s

demonstrates that he did no legal research on the issue while thecase was pending in the circuit court, or he was aware of thefact that the three cases were readily distinguishable and didnot support his position, or perhaps both.

35

counsel in his direct appeal to this Court; 3) his ignorance of

Eighth Amendment jurisprudence, particularly the 2004 decision in

Tennard v. Dretke and the March of 2005 decision in Roper v.

Simmons.

Meanwhile, Mr. Ford had served a pleading titled: Motion to

Terminate Counsel of an Emergency Nature on July 5, 2005.25

Though the pleading’s certificate of service clearly shows July

5, 2005, as the date of service, it was not filed by the clerk of

this Court until October 10, 2005. In the motion, Mr. Ford noted

that in preparing the motion he received “help [from] an

institutional law clerk, i.e. ‘Jailhouse Lawyer.’” The motion

alleged that Mr. Mercurio had refused to investigate his case and

had failed to have Mr. Ford “examined by a qualified profession

psychiatrist” as to whether he was mentally retarded. The motion

also alleged that Mr. Mercurio had threatened to “‘throw the case

and see to it that the defendant is executed” if Mr. Ford did not

waive his mental retardation issue. The motion also alleged that

Mr. Mercurio had advised Mr. Ford that his two trial attorneys

were “good friends of his” and that would not pursue claims that

would hurt them.

25When Mr. Mercurio served the initial brief that hesubmitted on behalf of Mr. Ford on July 28, 2005, he apparentlyhad already received Mr. Ford’s motion, a motion he laterindicated placed him an adversarial position with Mr. Ford.Nevertheless, he proceeded to serve and file the initial briefdespite this adversarial position.

36

On October 17, 2005, this Court requested a response to the

motion. The State served its response on October 25, 2005. In its

response, the State attacked Mr. Ford and argued that his motion

to remove Mr. Mercurio as his registry counsel should be

denied.26

Also on October 25, 2005, the State served its answer brief.

In it, the State pointed out the deficiencies in the two brief

arguments that Mr. Mercurio presented in the initial brief.27

On November 3, 2005, Mr. Mercurio served his response to Mr.

Ford’s motion. Therein, he disputed Mr. Ford’s factual

allegations. Mr. Mercurio asserted that other than what was pled

in the Rule 3.851 motion, “Mr. Ford did not present any

additional grounds to include in the Motion For Post Conviction

26While arguing that Mr. Ford’s motion to remove Mr. Mercurioshould be denied, the State seemingly forgot its argument in thecircuit court that Mr. Mercurio had failed to file a memorandumof law with the Rule 3.851 motion (PC-R 55) (“Ford’s motion wasnot accompanied by any memorandum of law, despite the fact thatthe applicable procedure clearly contemplate the filing of such amemorandum.”). The State also forgot its assertion that the Rule3.851 motion filed by Mr. Mercurio “is woefully inadequate” (PC-R59).

27Clearly as to whether Mr. Mercurio should be removed as Mr.Ford’s registry counsel, the State had a conflict. Certainly, itwas to the State’s benefit to burden Mr. Ford with collateralcounsel who conducted no investigation, did not read the record,failed to know the law regarding Rule 3.851 pleading requirementsand a movant’s burden of proof in demonstrating a violation ofStrickland v. Washington, and expended no billable hours duringthe time he was appointed as Mr. Ford’s capital collateralregistry counsel. The State and its representative had aninterest in insuring that Mr. Ford did not receive effectivecollateral representation.

37

Relief.”28

Also on November 3, 2005, Mr. Mercurio served a motion to

withdraw from representation of Mr. Ford before this Court. This

motion asserted that Mr. Ford’s motion and Mr. Mercurio’s

response had put them “in an adversarial position.” As a result,

Mr. Mercurio asserted that this made it impossible him “to have a

meaningful, productive, attorney/client relationship” with Mr.

Ford.

On November 16, 2005, this Court granted Mr. Mercurio’s

motion and relinquished jurisdiction to the circuit court for the

appointment of new registry counsel for Mr. Ford.

On January 5, 2006, the circuit court appointed Ryan T.

Truskoski as Mr. Ford’s new registry counsel. Mr. Truskoski

signed the contract and agreed to the terms that incorporated the

28Once again, this is an acknowledgment that Mr. Mercuriobelieved his role as registry counsel was to act as Mr. Ford’sscrivener. He failed, as the registry billing recordsdemonstrate, to read the record, to conduct any investigationinto possible claims that a mentally impaired layman like Mr.Ford was not in a position to know existed, to engage in legalresearch, to retain an expert to conduct a mental evaluation ofMr. Ford, and/or to retain an investigator to obtain records andinterview possible witnesses. Quite simply, had collateralcounsel in Hildwin v. State, 141 So.3d 1178 (Fla. 2014), and inSwafford v. State, 125 So.3d 760 (Fla. 2013), viewed their roleas collateral counsel to be the client’s scrivener, new trialswould not have been ordered. See also Garcia v. State, 622 So.2d1325 (Fla. 1993); Rogers v. State, 782 So.2d 373 (Fla. 2001);State v. Mills, 788 So.2d 249 (Fla. 2001); Roberts v. State, 840So.2d 962 (Fla. 2002); Mordenti v. State, 894 So.2d 161 (Fla.2004); Floyd v. State, 902 So.2d 775 (Fla. 2005); Johnson v.State, 44 So.3d 51 (Fla. 2010).

38

statutorily imposed obligations. He filed a notice of appearance

in this Court on January 12, 2006.

On March 24, 2006, this Court entered an order giving Mr.

Truskoski until May 29, 2006, to file a reply brief on behalf of

Mr. Ford.29 On March 30, 2006, Mr. Truskoski wrote Mr. Ford

saying:

I have received the court file from your trialattorney. I have begun to review your case. The FloridaSupreme Court just issued an order which I haveenclosed herein. The court has set the due date for thereply brief for May 29, 2006. Is there anything wrongwith the initial brief filed by your previous attorney? Are there any errors in it that you want me to address? What are your thoughts on this? Please let me know.

(2PC-R 6).30

On April 12,2006, Mr. Ford responded and wrote Mr. Truskoski

a letter detailing his thoughts which included his displeasure

with the initial brief filed by Mr. Mercurio, his desire for Mr.

Truskoski to raise a mental retardation claim, and noting errors

present in both the brief and his case. According to Mr.

29This Court also stated in the March 24, 2006, order that“the briefs already filed in the above styled case will beconsidered absent a motion from counsel.” Mr. Truskoski did notfile a motion subsequently seeking the opportunity to strike oramend the 22-page initial brief that Mr. Mercurio had served onJuly 28, 2005.

30At no time prior to this letter had Mr. Truskoski met withMr. Ford and/or discussed with him his case. Further, Mr.Truskoski’s files, which were subsequently provided to theundersigned, did not include any files, records, or documentsfrom Mr. Ford’s trial attorneys. Thus, contrary to the implicitrepresentation he made in his letter to Mr. Ford, he had notreceived the trial attorney files (2PC-R 6, n.8).

39

Truskoski, Mr. Ford’s April 12th letter did not reach him until

May 18, 2006. Not having received Mr. Ford’s letter responding to

the inquiries in his March 30th letter, and eleven days before

the reply brief was due, Mr. Truskoski served a four-page reply

brief on May 16, 2006.31 The reply brief was actually filed with

this Court on May 18, 2006. Interestingly also on May 18, 2006,

Mr. Truskoski wrote to Mr. Ford saying:

I have received your letter dated April 12, 2006,today, which is May 18, 2006, I do not know why therewas such a long delay. The post mark on the envelopesays May 13, 2006,. As you will have realized by now, Ialready mailed and completed the reply brief in yourcase before I got your letter. I know that you were notsatisfied with Mr. Mercurio’s brief. However, Ithoroughly reviewed and analyzed your case and he didmake the appropriate arguments. I did not find anygrounds to ask the court to permit me to file a newinitial brief. I cannot raise the fact that Mr.Mercurio forced you to testify how he wanted you to,and about dropping the mental retardation claim, forthe first time on appeal. I am not permitted to dothis. The court only looks at the record and thetranscripts from the lower court. Such issues must befirst raised in the trial court. This cannot be done atthis point. I know you had problems with Mr. Mercurio. However, the brief he filed was good. At this point weare just waiting for a decision. It will be a longwait. I do not know exactly when they will rule, but Iwill let you know as soon as they do.

(2PC-R 7).

Despite Mr. Truskoski’s factual recitation, there is no

other proof of when he received the April 12th letter from Mr.

Ford. Accepting his assertion that it was received on May 18th as

31Though the reply brief was four pages in length, itcontained only two pages of text.

40

true, there is no indication why Mr. Truskoski could not visit

his “learning disabled” client, telephone his “learning disabled”

client to find out what his thoughts were, or wait until the date

reply brief was due to be filed, particularly when in his letter

to Mr. Ford, Mr. Truskoski indicated that he had until May 29th

to file the reply brief.32 There is no explanation for why Mr.

Truskoski chose to serve the reply brief eleven days before the

date the brief was ordered to be served and not wait until the

due date as he had certainly implied he would do in his March

30th letter, other than the obvious inference that Mr. Truskoski

was not actually interested in hearing Mr. Ford’s thoughts.

Moreover, Truskoski’s May 18th letter to Mr. Ford contained false

assertions and representations by Mr. Truskoski which could only

serve to mislead and/or confuse his “learning disable[d]” client,

Mr. Ford.33

32On March 24, 2006, this Court entered an order giving Mr.Truskoski until May 29, 2006, to submit the reply brief in Mr.Ford’s appeal.

33For example, this Court had made it clear that Mr.Truskoski could seek to strike or amend the initial brief if heso desired. His representation that there were no grounds to askthe court to file a new brief were patently false; he had beeninvited to do so if he desired. Clearly, all Mr. Truskoski had todo was ask for the opportunity to submit a new or amended initialbrief. Certainly, the fact that Mr. Ford had served the pro semotion that caused Mr. Mercurio to be placed in an adversarialposition as to Mr. Ford and warrant his withdrawal well-beforeMr. Mercurio served the initial brief would warrant striking itso conflict-free counsel could prepared and submit his owninitial brief. Further, it is not uncommon to file motions torelinquish jurisdiction to raise matters that priorcounsel failed

41

After receiving Mr. Truskoski’s May 18th letter, Mr. Ford on

June 2, 2006, served a pleading in the Florida Supreme Court

entitled: “Motion to Consider and Seek Mercy for Fairness, of an

Emergency Nature.” This Court’s online docket shows that it

received Mr. Ford’s pro se pleading on June 15, 2006. Mr. Ford

attached copies of Mr. Truskoski’s March 30th and May 18th

letters. Within the body of his pleading, Mr. Ford explained “Mr.

Ford now comes to the heart of this Honorable Court on both hands

and knees and ask that this court please once again grant him a

ninety (90) day continuance just for the sake of providing his

attorney the proper opportunity to raise the desired meritorious

issues in which the defendant, Mr. Ford, wish to raise before

this Honorable Court.” Motion at 4. On June 23, 2006, Mr.

Truskoski filed a response, in which he asserted that “the

previous attorney raised all meritorious arguments and I saw no

reason to file a new initial brief.” He did not discuss Mr.

Mercurio’s failure to file a habeas petition in this Court with

the initial brief pursuant to Rule 9.142(b)(4), nor his own

failure to do so despite the existence of numerous meritorious

issues. The most likely explanation for this failure is Mr.

to raise or that had not been fully litigated in circuit court.And certainly, Mr. Truskoski could have sought to file a petitionfor a writ of habeas corpus in the Florida Supreme Court whichMr. Mercurio had inexplicably failed to file simultaneously withthe initial brief. Mr. Truskoski was either genuinely ignorant ofthe law and the options available to him or he sought to deceivehis client (2PC-R 8, n.10).

42

Truskoski’s ignorance of Rule 9.142(b)(4) and capital collateral

jurisprudence.34

34In 2006 and early 2007, Mr. Truskoski was appointed counselfor two other capital clients with their direct appeals pendingin this Court. In those cases, Mr. Truskoski’s ignorance ofEighth Amendment jurisprudence and his incompetence as a capitalcollateral registry were on full display. In Smith v. State, FSCCase No. SC06-1903, after his appointment Mr. Truskoski entered anotice of appearance on December 13, 2006. On April 30, 2007, Mr.Truskoski filed a motion for an extension of time to file theinitial brief. This Court granted the motion and gave Mr.Truskoski until September 28, 2007, to file the initial brief.Mr. Truskoski filed the initial brief on August 6, 2007.

After his appointment in Hunter v. State, FSC Case No. SC06-1963, Mr. Truskoski filed his notice of appearance on January 3,2007. On April 30, 2007, Mr. Truskoski requested an extension oftime to file the initial brief. This Court granted the motion andgave Mr. Truskoski until July 27, 2007, to file the initialbrief. The initial brief was not filed until October 5, 2007, anda motion to accept the brief as timely filed was granted.

When the decisions issued in both Smith v. State and Hunterv. State on September 25, 2008, Justice Anstead wrote:

Because I find both the written and oralpresentations of counsel for the appellantfundamentally lacking, I would strike the appellatebriefs, discharge counsel, and direct the trial courtto appoint new appellate counsel for the appellant. Capital cases represent the most serious category ofcase reviewed by this Court and such cases requirediligent and competent advocacy by counsel. While thisCourt has inherent responsibility to assure suchrepresentation, the Florida Legislature has explicitlycalled upon the courts to take responsibility forassuring such representation in capital litigation. Weshould honor that call here.

By coincidence, the Clerk of this Court scheduledoral argument in this case [Smith v. State] and thecase of Hunter v. State, No. SC06-1963 (Fla. Sept. 25,2008), for the same date. In examining the briefs forappellants in those two cases, I was struck by thesimilarity in approach and the facially flawed advocacycontained in the briefs in both cases. The oraladvocacy was similarly lacking in both cases. Ofcourse, the appellants are represented by the same

43

On August 22, 2006, this Court entered an order stating:

“Appellant’s pro se motion to consider and seek mercy for

fairness of an emergency nature is hereby denied.”

On October 30, 2006, this Court heard oral argument in Mr.

counsel in both cases, and I have come to the sameconclusion in Hunter as I have here.

Smith v. State, 998 so. 2d 516, 530 (Fla. 2008) (Anstead, J.,dissenting) (footnote omitted). In a footnote, Justice Ansteadwrote that “the court, to its credit, has notified the FloridaBar and the Executive Director of the Legislature’s Commission onCapital Cases of concerns about the performance of counsel in theSmith and Hunter cases as well as other filings by counsel inthis Court.” Id. (emphasis added).

On November 23, 2009, this Court entered the followingAdministrative Order in In re: Ryan T. Truskoski Order to ShowCause, FSC Case No. AOSC09-48:

Pursuant to the Court’s inherent authority tomonitor the representation by counsel of capitaldefendants to ensure that the defendants receivequality representation, see §§ 27.40(9) and 27.711(12),Fla. Stat. (2009), and its authority to issue sanctionspursuant to Florida Rule of Appellate Procedure 9.410,Ryan T. Truskoski is hereby directed to show cause, onor before December 14, 2009, why he should not beremoved from both the direct appeal list of capitalconflict attorneys and the registry for postconvictioncapital attorneys. Specifically, counsel is directedto address his performance at oral arguments, includingbut not limited to the failure to make rebuttalarguments, as well as the quality of his briefs.

Subsequent to that order, Mr. Truskoski was removed from theregistry for capital collateral attorneys because of his failureto provide the requisite quality representation. Mr. Ford was oneof the capital clients to whom Mr. Truskoski failed to provide the requisite quality representation. See Marbury v. Madison, 1Cranch at 163 (“The government of the United States has beenemphatically termed a government of laws, and not of men. It willcertainly cease to deserve this high appellation, if the lawsfurnish no remedy for the violation of a vested legal right.”).

44

Ford’s appeal. On April 12, 2007, this Court denied Mr. Ford’s

appeal. Ford v. State, 955 So.2d 550 (Fla. 2007).

Subsequently, Mr. Truskoski was removed as counsel for Mr.

Ford in the course of federal habeas proceedings by the Eleventh

Circuit, and Martin J. McClain was appointed to serve as Mr.

Ford’s CJA counsel in the federal proceedings. Thereafter,

Martin J. McClain was appointed to serve as Mr. Ford’s state-

court registry counsel on August 4, 2011.

After the dismissal of Mr. Ford’s federal habeas petition

was affirmed by the Eleventh Circuit because Mr. Truskoski failed

to file the petition timely, undersigned counsel filed a Rule

3.851 motion on Mr. Ford’s behalf on March 20, 2013 (2PC-R 1).35

35The failure of court-appointed registry counsel to timelyfile Mr. Ford’s federal habeas petition was included in the listof 34 Florida death row inmates whose court-appointed collateralcounsel ignominiously failed to timely file a federal habeaspetition. Lugo v. Sec’y Dep’t of Corrs., 750 F.3d 1198, 1216(11th Cir. 2014) (Martin, J., concurring in judgment) (“Mr. Lugois only one of a number of death row prisoners in Florida whohave failed to file their federal habeas petitions within theone-year statute of limitations for state prisoners. See 28U.S.C. § 2244(d)(1). There are currently 397 men and women onFlorida's death row. See Death Row Roster, Fla. Dep't of Corr.,http://www.dc.state.fl.us/activeinmates/deathrowroster.asp (lastvisited Apr. 23, 2014). By my count, at least thirty-four ofthose inmates have missed their one-year filing deadline sinceAEDPA's effective date. Two of these thirty-four were recentlyexecuted: Juan Chavez on February 12, 2014, and Paul Howell onFebruary 26, 2014.”). As Judge Martin in her opinion in Lugo: “itis simply arbitrary for our collateral review process to allowsome capital defendants to get federal habeas review (becausetheir court-appointed attorneys appreciate the significance ofAEDPA's statute of limitations), while others do not. Cf. Furmanv. Georgia, 408 U.S. 238, 294–95, 92 S.Ct. 2726, 2754–55, 33L.Ed.2d 346 (1972) (Brennan, J., concurring). As the thirty-four

45

During proceedings on that Rule 3.851 motion, the State sought to

have the undersigned removed as Mr. Ford’s registry counsel (2PC-

R 58-61).36 On August 14, 2013, the circuit court granted the

State’s request and appointed CCRC-Middle as Mr. Ford’s

collateral counsel (PC-R 195). Undersigned counsel on behalf of

Mr. Ford filed a petition seeking interlocutory review of the

circuit court’s action. See Ford v. State Case No. SC13-1674.

Ultimately, the State, through the Justice Administrative

Commission, agreed that undersigned counsel was entitled to

continue as Mr. Ford capital collateral registry counsel. The

petition for interlocutory review filed with this Court was

voluntarily dismissed, and on November 4, 2013, the circuit court

rescinded its order removing undersigned counsel from Mr. Ford’s

case (2PC-R 273).

On November 4, 2013, counsel filed a motion to amend the

pending Rule 3.851 motion on Mr. Ford’s behalf. The motion

indicated that leave to amend was sought to permit counsel to

include within the 3.851 motion reliance on Trevino v. Thaler, a

challenge to Florida’s lethal injection protocol in light of

October 15, 2013, execution of William Happ, and newly discovered

prisoners identified in the appendix demonstrate, whether aFlorida death row inmate gets federal habeas review may bedecided without regard to the facts of their crime or thecharacter of the defendant.” Lugo, 750 F.3d at 1218.

36The State did not seek the removal of either Mr. Mercurioor Mr. Truskoski as Mr. Ford’s registry counsel.

46

evidence regarding Florida’s use of non-unanimous jury verdicts

in penalty phase proceedings (2PC-R 229).

A case management hearing was held in the circuit court on

November 6, 2013. At that time, the circuit court took the motion

to amend under advisement, but gave the parties thirty days to

file supplemental case law (2PC-R 365). Mr. Ford’s registry

counsel filed a memorandum of law on December 6, 2013 (2PC-R

433).

On December 20, 2013, the circuit court filed its order

granting leave to amend and summarily denying the Rule 3.851 and

Mr. Ford’s request for an evidentiary hearing (2PC-R 450). On

January 6, 2014, Mr. Ford’s counsel filed a motion for rehearing

(2PC-R 457). On April 3, 2014, the circuit court denied Mr.

Ford’s motion for rehearing (2PC-R 480). On April 30, 2014, Mr.

Ford’s counsel timely filed a notice of appeal (2PC-R 483).

STANDARD OF REVIEW

Normally, where evidentiary development has been permitted

in circuit court rulings of law are reviewed de novo while

deference to the trial court is given as to findings of fact.

However, here the circuit court denied an evidentiary hearing,

and therefore, the facts alleged by Mr. Ford must be accepted as

true for purposes of this appeal in order to determine whether

the he is entitled to an opportunity to present evidence in

support of his factual allegations. Peede v. State, 748 So. 2d

47

253 (Fla. 1999); Gaskin v. State, 737 So. 2d 509 (Fla. 1999);

Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989).

SUMMARY OF THE ARGUMENTS

1. The circuit court erred in denying Claim I of Mr.

Ford’s successive Rule 3.851 motion without the benefit of an

evidentiary hearing. Claim I was premised upon the unreasonable

failure of Mr. Ford’s first capital collateral registry attorney,

Mr. Mecurio, to conduct any investigation or do any legal

research regarding whether Mr. Ford’s trial counsel rendered

ineffective assistance of counsel at his 1999 penalty phase

proceeding. Mr. Mercurio believed that he was representing Mr.

Ford in Rule 3.850 proceedings and that his role was to act Mr.

Ford’s scrivener. Mr. Mercurio was unaware of Rule 3.851 and the

capital collateral process. He did not conduct any investigation

into whether Mr. Ford received effective assistance of counsel at

his penalty phase proceedings. Mr. Mercurio failed to use the

resources available to him to investigate and research the issue.

He did not hire an investigator or a mitigation specialist,

despite having funding to do so. He did not retain a mental

health expert to evaluate Mr. Ford. Mr. Mercurio provide Mr. Ford

with pro forma representation that guaranteed that no meritorious

issued would be investigated, developed and presented. More

importantly, it guaranteed that Mr. Ford would not obtain Rule

3.851 relief. Had any of the capital collateral defendants who

48

have obtained Rule 3.851 relief been represented by Mr. Mercurio

or an attorney that provided equivalent pro forma representation,

they would not have prevailed and would not have obtained Rule

3.851 relief. Quite simply, the adversarial process did not

function in Mr. Ford’s case, and cannot function when court-

appointed registry counsel provides at best pro forma

representation.

Further, there was wealth of information available had

registry counsel investigated that could have be used to

construct a substantial, indeed a meritorious, penalty phase

ineffectiveness claim. However due to Mr. Mercurio’s pro forma

representation, Mr. Ford was deprived of “a fair opportunity to

show” that his death sentence stands in violation of the US

Constitution. See Hall v. Florida, 134 S.Ct. at 2001.

The circuit court erroneously denied Mr. Ford an evidentiary

hearing on Claim 1 of his Rule 3.851 motion.

2. The circuit court erroneously denied Mr. Ford’s lethal

injection claim as premature.

3. The circuit court denied Mr. Ford’s claim that new

evidence demonstrates that Florida’s use of non-unanimous

verdicts in the penalty phase of a capital case violates the

Eighth Amendment’s evolving standards of decency. While that

ruling was consistent with this Court’s decision in Kimbrough v.

State, 125 So.3d 752 (Fla. 2013), Mr. Ford submits that under the

49

“fair opportunity” language in Hall v. Florida, 134 S.Ct. 1986,

2001 (2014), and the decision there that the evolving standards

of decency have continued to develop, that a sentence of death

premised on less than a unanimous jury verdict violates the

Eighth Amendment.

ARGUMENT

ARGUMENT I

BECAUSE MR. FORD’S ORIGINAL REGISTRY COUNSEL WASUNFAMILIAR WITH RULE 3.851, CONDUCTED NO INVESTIGATIONINTO A PENALTY PHASE INEFFECTIVENESS CLAIM, FAILED TOHIRE AN INVESTIGATOR, A MITIGATION SPECIALIST OR AMENTAL HEALTH EXPERT TO EVALUATE MR. FORD, ANDGENERALLY PROVIDED MR. FORD WITH AT BEST PRO FORMACOLLATERAL REPRESENTATION AND SERVED AS A MERESCRIVENER FOR MR. FORD, AND BECAUSE THERE IS A WEALTHOF EVIDENCE AND INFORMATION DEMONSTRATING THAT MR. FORDHAS A SUBSTANTIAL CLAIM OF PENALTY PHASEINEFFECTIVENESS THAT WAS PRECLUDED FROM BEING HEARD INTHE INITIAL RULE 3.851 PROCEEDINGS BY REGISTRY’S PROFORMA REPRESENTATION, THE CIRCUIT COURT ERRED INSUMMARILY DENYING MR. FORD’S CLAIM WITHOUT CONDUCTINGAN EVIDENTIARY HEARING.

A. Mr. Mercurio’s Pro Forma Service As Mr. Ford’s CapitalCollateral Registry Counsel

Prior to the filing of Mr. Ford’s initial motion for

postconviction relief, Mr. Mercurio was appointed as Mr. Ford’s

capital collateral registry attorney. In the subsequent motion to

vacate filed on March 20, 2013, which is at issue in this appeal,

Mr. Ford alleged:

that in the previous Rule 3.851 motion, a claim ofpenalty phase ineffective assistance was not presentedand pursued. Indeed, Mr. Mercurio did not investigateany penalty phase issues, let alone raise any challenge

50

in the initial collateral review of Mr. Ford’s deathsentences as to the effectiveness of trial counsel atthe penalty phase of Mr. Ford’s trial.

(2PC-R 4). Mr. Ford further alleged:

Mr. Ford’s registry counsel in his initial collateralreview proceedings failed to investigate Mr. Ford’spenalty phase ineffective assistance of counsel claim. Mr. Ford wanted the issue raised. While learningdisabled and suffering from mild brain impairment andincarcerated on death row, Mr. Ford relied upon court-appointed registry to do what he could not, investigatethe facts in light of the controlling standards setforth in Strickland v. Washington, and challenge theadequacy of his penalty phase counsel’s representationand the death sentences that were imposed. Counsel’sfailure to conduct an adequate investigation and raisethe available challenge to the adequacy of penaltyphase counsel’s representation, indeed present anychallenge to Mr. Ford’s death sentences, is really nodifferent than the circumstances in Steele v. Kehoe,where collateral counsel failed to file a timelycollateral challenge causing the convicted to lose hisright to file a Rule 3.850 motion. Indeed unless thisCourt permits the presentation of Mr. Ford’s Stricklandchallenge to the penalty phase representation that hereceived, Mr. Ford will have lost the right tochallenge his death sentence in a Rule 3.851 motion.

(2PC-R 15).

Attached to Mr. Ford’s 2013 motion to vacate was a document

that he obtained from the Department of Financial Services

showing all reimbursement provided to registry counsel for Mr.

Ford. This document showed that Mr. Mercurio did not hire an

investigator, mitigation specialist or a mental health expert to

assist him in developing, investigating and presenting Mr. Ford’s

collateral claims. Indeed, he did not use any of the money

allocated for registry’s counsel use to providing effective

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collateral representation. Further, the time that he spent

representing Mr. Ford was so minimal that he submitted no

billable hours and sought no attorney fees.

Mr. Ford also pled that Mr. Mercurio used the model form for

a Rule 3.850 motion appearing in Rule 3.987 to submit one-

sentence summaries of what a learning disabled and developmental

challenged Mr. Ford had told him he thought were mistakes made by

trial counsel at the guilt phase. Mr. Mercurio, despite being on

the capital collateral registry, was unaware that capital

collateral proceedings were governed by Rule 3.851, not Rule

3.850. In fact, the model form used by Mr. Mercurio in Mr. Ford’s

case does not comport with the pleading requirements contained in

Rule 3.851.

The paragraph numbered “14" in the model form for Rule 3.850

motions, i.e. non-capital motions for postconviction relief,

directs the pro se litigant to “State concisely every ground on

which you claim that the judgment or sentence is unlawful:

Supporting FACTS (tell your story briefly without citing cases or

law).” See Rule 3.987. Using this form, Mr. Mercurio contacted

Mr. Ford to ascertain what claims he wanted inserted there. Mr.

Mercurio conducted no other investigation.37 He did not obtain

37From undersigned counsel’s experience, the capital clientis just about the least valuable source of information wheninvestigating and preparing a Rule 3.851 motion. Whatever theclient knew will not establish a newly discovered evidence claimunder Jones v. State, 591 So.2d 911 (Fla. 1991), because by

52

and read the record in Mr. Ford’s case. He did not obtain and

read the public records that were turned over to the Records

Repository. He did not interview witnesses. He did not retain an

investigator or mitigation specialist to read the record, then

locate and interview witnesses. He did not retain a mental health

expert to evaluate Mr. Ford’s mental condition. Mr. Mercurio did

not conduct any legal research regarding claims that may be

viable in Rule 3.851 proceedings. Mr. Mercurio’s failure to

conduct any legal research is most clearly demonstrated by his

definition the information that the client knew was known andthus not newly discovered. Similarly, information that the clientwas aware of will not be a basis for a claim under Brady v.Maryland, 373 U.S. 83 (1963), because if the client knew aboutit, it wasn’t suppressed. And as to ineffectiveness claims,information that the client knew about but failed to share withhis attorney cannot establish that trial counsel failed toadequately investigate and learn the information that the clientwithheld. As to an ineffectiveness claim premised upon a client’sassertion that trial counsel did not listen to him, waivedmatters without his permission, or coerced him to agree to thewaiver, such claims cannot be won unless there is corroboration.Finding corroboration requires finding other witnesses who knowand can recount the facts that give rise to the claim. In everycapital case in which Rule 3.851 relief has been granted on anewly discovered evidence claim, a Brady claim, or anineffectiveness claim, collateral counsel constructed the claimby obtaining and reading public records, interviewing witnessesfrom the case or from the client’s background, and obtaining theservices of investigators, mitigation specialists, or experts invarious fields relevant to the case. See Garcia v. State, 622So.2d 1325 (Fla. 1993); Rogers v. State, 782 So.2d 373 (Fla.2001); State v. Mills, 788 So.2d 249 (Fla. 2001); Roberts v.State, 840 So.2d 962 (Fla. 2002); Mordenti v. State, 894 So.2d161 (Fla. 2004); Floyd v. State, 902 So.2d 775 (Fla. 2005);Johnson v. State, 44 So.3d 51 (Fla. 2010); Swafford v. State, 125So.3d 760 (Fla. 2013); Hildwin v. State, 141 So.3d 1178 (Fla.2014).

53

failure to know and/or learn that Rule 3.851 governs the

procedure and pleading requirements when a death sentenced

individual files a motion for postconviction relief. The model

form for filing pro se Rule 3.850 motions did not and does not

comply with the pleading requirements set forth in Rule 3.851.38

Because Mr. Mercurio relied upon the model form for filing

pro se Rule 3.850 motions and the directions therein for the

defendant to “[s]tate concisely” and “tell your story briefly

without citing cases or law,” he acted only as Mr. Ford’s

scrivener. He put the model form on his word processor, and then

when he received correspondence from a “learning disabled” Mr.

Ford telling his story, Mr. Mercurio inserted one sentence for

Claim 14A, one sentence for Claim 14B, and four sentences for

Claim 14C (the claim he subsequently waived without retaining an

expert to review the files and records and mentally evaluate Mr.

Ford). As to Claim 14A and 14B, Mr. Mercurio, serving as Mr.

Ford’s scrivener, inserted the following language into the model

38Rule 3.851 provided that a motion for postconviction reliefin a capital case “shall include . . . a detailed allegation asto the basis for any claim for which an evidentiary hearing issought.” The rule provided that “[a]n initial motion andmemorandum of law filed under this rule shall not exceed 75 pagesexclusive of attachments.” The rule provided that the movant“shall set forth the applicable case law supporting the grantingof relief as to each separately pled claim.” The use of the word“shall” as to these pleading requirements clearly demonstratedthat compliance with them was mandatory. Because of his failureto either know the applicable law or to research it, Mr. Mercuriodid not prepare a motion on behalf of Mr. Ford that complied withthe mandatory provisions.

54

3.850 form:

14. State concisely every ground on which youclaim that the judgment or sentence is unlawful:Supporting FACTS (tell your story briefly withoutciting cases or law):

(a) The attorneys representing me, Paul Sullivanand Paul Alessandroni pursued the defense and JuryInstruction of voluntary intoxication over my objectionand without my permission or consent.

(b) Over my objection and without my permission orconsent defense counsel waived my right to a SpeedyTrial.

(PC-R 3).

In its Response to Motion for Post-Conviction Relief, the

State noted the failure to properly plead Mr. Ford’s claims by

providing the applicable case law supporting his claims for

relief:

Ford’s motion was not accompanied by any memorandum oflaw, despite the fact that the applicable proceduresclearly contemplate the filing of such a memorandum.See Rule 3.851(e)(1) (“The memorandum of law shall setforth the applicable case law supporting the grantingof relief as to each separately pled claim”).

(PC-R 55). The State asserted that Mr. Ford’s “motion as pled is

clearly insufficient for the granting of any further relief.”

(PC-R 56). The use of the word “further” referred to the position

taken by the State that an evidentiary hearing was mandatory

under Rule 3.851, even though the State maintained that

inadequately pled motion for postconviction relief precluded any

relief from Mr. Ford’s conviction or sentence of death. The State

explained “Although Ford’s motion is woefully inadequate to

55

compel relief, the rules of criminal procedure provide that Ford

is entitled to an evidentiary hearing ‘on claims listed by the

defendant as requiring a factual determination.’” (PC-R 60).

Even after he received the State’s response noting his

failure to file a motion that complied with the requirements set

forth in Rule 3.851, Mr. Mercurio failed to look up Rule 3.851,

read the pleading requirements detailed therein, and seek to

rectify his pleading blunder. Instead, he continued to do nothing

as the DFS billing records demonstrate. Though he advised the

presiding judge at a status hearing that he needed a continuance

of the evidentiary hearing because a mental health expert was not

available to testify at the scheduled hearing and was trying to

find one,39 the DFS billing records show that was no

39Normally in order to meet the pleading requirements of Rule3.851, collateral counsel hires the mental health expert andobtains an mental health evaluation of his client before filingthe motion for postconviction relief. This Court found that on aclaim that trial counsel was ineffective for failing to obtain aparticular type of expert and present his testimony, the failureto plead in the Rule 3.851 that an expert had been obtained bycollateral counsel and proffer what the expert would say renderedthe claim inadequately pled. Bryant v. State, 901 So.2d 810, 821-22 (Fla. 2005) (“Bryant next claims that trial counsel wasineffective for failing to obtain a false confession expert. Thisclaim is legally insufficient. We recently held that when adefendant alleges ineffective assistance of counsel for failureto call specific witnesses, a defendant is ‘required to allegewhat testimony defense counsel could have elicited from witnessesand how defense counsel's failure to call, interview, or presentthe witnesses who would have testified prejudiced the case.’Nelson v. State, 875 So.2d 579, 583 (Fla.2004). Neither in hispleadings below nor in his brief before this Court does Bryantallege specific facts about which a confession expert wouldtestify. He has not provided proposed testimony and does not even

56

reimbursement for an expert’s services in reviewing the record or

in evaluating Mr. Ford. These records demonstrate at no time did

an expert bill for review of the files and records in Mr. Ford’s

case or any other type of assistance to collateral counsel. Not

only should a mental health evaluation have been conducted by an

expert retained by collateral counsel before the Rule 3.851

motion was filed as to the mental retardation contained therein,

it should have been conducted in order to determine whether trial

counsel failed to properly understand and use Mr. Ford’s mental

condition in the penalty phase proceeding in the way best able to

benefit Mr. Ford. Even though Fla. Stat. § 27.711 in providing

funds for a mental health expert in every capital collateral case

because it was anticipated that collateral counsel as a matter of

standard practice would obtain a mental health evaluation of his

client, Mr. Mercurio did not have a mental health expert evaluate

Mr. Ford.

Between the time that the motion for postconviction relief

was filed and the evidentiary hearing was conducted, Mr. Mercurio

still did not review the public records, contact witnesses, hire

an investigator or mitigation specialist, hire a mental health

expert, conduct legal research, attempt to rectify his failure to

claim to have obtained an expert. Bryant merely concludes that anexpert could testify that ‘[Bryant's] confession is typical of those which are false.’ Without more specific factualallegations, such as proposed testimony, this claim isinsufficient under Nelson.”).

57

comply with the pleadings requirements of Rule 3.851, or do any

substantive work on behalf of Mr. Ford as the DFS billing records

demonstrate. His work on behalf of Mr. Ford was so insubstantial

that he sought no reimbursement for any attorney fees or

expenses.

In McClain v. Atwater, 110 So.3d at 898, this Court held

that the purpose of providing adequate compensation to collateral

registry counsel for his work in collateral litigation was to

protect “the defendant’s right to effective representation rather

than the attorney’s right to fair compensation”. Here, counsel

was paid no attorney fees for his service as Mr. Ford’s registry

counsel because he did not claim that he expended any billable

hours on behalf of Mr. Ford. The carrot that this Court in

McClain v. Atwater indicated should be dangled in front of

collateral counsel to insure that the capital collateral

defendant received effective representation was missing. In such

circumstances under this Court’s analysis in McClain v. Atwater,

the defendant’s right to effective representation was rendered a

broken promise. Mr. Mecurio as registry counsel had absolutely no

incentive to take time away from cases that were lucrative in

order to provide any more than pro forma representation to Mr.

Ford since he neither sought, nor received compensation. Without

a remedy for the denial of his right to effective collateral

representation, Mr. Ford has been left the empty promise this

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Court set forth in Spalding v. Dugger, 526 So.2d at 72 (“We

recognize that, under section 27.702, each defendant under

sentence of death is entitled, as a statutory right, to effective

legal representation by the capital collateral representative in

all collateral relief proceedings.”). See Marbury v. Madison, 1

Cranch at 163 (“The government of the United States has been

emphatically termed a government of laws, and not of men. It will

certainly cease to deserve this high appellation, if the laws

furnish no remedy for the violation of a vested legal right.”).

B. The Mitigation That Collateral Counsel Unreasonably FailedTo Discover And Present In Support Of A Penalty PhaseSubstantive Ineffective Assistance Of Counsel Claim.

In the Rule 3.851 motion at issue in this appeal, Mr. Ford

alleged that: “Mr. Mercurio conducted no investigation into Mr.

Ford’s case, let alone investigate the adequacy of penalty phase

counsel’s representation under Strickland.” (2PC-R 16). Mr. Ford

then pled:

23 Had Mr. Mercurio conducted an investigationinto Mr. Ford’s penalty phase ineffective assistance ofcounsel claim, there was plenty to discover. Mr.Ford’s current registry counsel has hired Lisa McDermott to conduct investigation into Mr. Ford’scase. Ms. McDermott is a Licensed Mental HealthCounselor and Licensed Private Investigator in theState of Florida. Capital case work has made up the90% of her practice for the past 13 years. She is notonly trained in mental health issues but also in thecriminal court system as it relates to death penaltywork in both the federal courts and Florida statecourts. From her review of the records and testimony,she has concluded that there were areas of themitigation investigation that were not covered eitherat the time of Mr. Ford’s trial or in his initial

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collateral review. Of particular concern is thatdespite the recognition of a learning disability, mildbrain impairment, developmental age of 14, a familyhistory of alcoholism, chronic alcoholism on Mr. Ford’spart, and diabetes, there was a failure to determinethe cause of the learning disability and brainimpairment, and a failure to explore the synergisticeffect these many conditions had on Mr. Ford and hismoral responsibility within the meaning of EighthAmendment jurisprudence. The understanding of thecauses of the various conditions and the relationshipbetween the conditions on Mr. Ford’s functioning are ofsignificant relevance to Mr. Ford and the weight to begiven to this mitigation. Indeed, the prejudice to Mr.Ford from the failure to fully investigate thesediverse mitigation threads is apparent from thesentencing judge’s findings in support of the deathsentences. While finding Mr. Ford’s learningdisability, mild brain impairment, and developmentalage of 14, all mitigating circumstances, she concludedthat the defense had failed to establish that they wereentitled to any weight.40 She found Mr. Ford was achronic alcoholic and concluded that was entitled tovery little weight. Additionally, the sentencing judgefound that Mr. Ford had a family history of alcoholism,that he had a medical history of diabetes, he lackedsociopathic or psychopathic tendencies, and that therewas an absence of antisocial tendencies, but ruled thatthese facts were not mitigating in nature. Though theFlorida Supreme Court reversed to find these factsmitigating, it concluded the error was harmless because“[t]hese factors occupy a minor and tangential positionin the present record.” Ford v. State, 802 So. 2d at1135-36. This is because of the inadequateinvestigation into these numerous mitigating factorsand the relationship between and their synergisticeffect on Mr. Ford.

24. Ms. McDermott’s investigation into Mr. Ford’sbackground and history has discovered multiple sourcesof head traumas that were not previously uncovered by

40A determination that was affirmed by the Florida SupremeCourt on appeal because the determination not to give these itemsweight was supported by competent substantial evidence. Ford v.State, 802 So. 2d at 1135. In another words penalty phasecounsel failed to demonstrate the significance of thesemitigating circumstances.

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prior penalty phase counsel or collateral counsel. Specifically, Mr. Ford has a history of multipletraumatic brain injuries from childhood with loss ofconsciousness on at least 5 occasions. Mr. Fordsuffered multiple head injuries to various areas of hishead beginning at ages 4 to 6 years. There are obviousscars present on the head still today. Mr. Ford alsoworked in the livestock business between the ages of 16to 18 and was kicked directly in the head multipletimes by “bucking” bulls and wild unbroken horses heworked with while performing at the rodeo. In thecourse of this work in the livestock that Mr. Fordsustained still more head injuries as a result ofkicked in the head by bulls and horses. The numeroushead injuries during Mr. Ford’s childhood and teenageyears are important for mental health experts to knowabout in determining the etiology of Mr. Ford’sdisabilities and impairments and how Mr. Ford’s otherconditions, like chronic alcoholism and diabetesinteract with and exacerbate the damage that was doneto Mr. Ford’s brain in his developmental years. There is no evidence from the files or records thatthere was any investigation done regarding Mr. Ford’srepeated head traumas or that this history was madeknown to mental health experts who evaluated Mr. Fordpre-trial.41

25. Ms. McDermott’s investigation also revealedthat neither trial counsel nor prior collateral counsellooked at environment factors in Mr. Ford’s backgroundsuch as exposure to toxins that would have beenimportant for any evaluating psychologists or medicalphysicians in order to fully piece together Mr. Ford’smental and physical condition. Due to Mr. Ford’sbackground and life in and around agriculture andlivestock, Mr. Ford has a history of significantexposure to multiple known neurotoxins. Some of thetoxins to which Mr. Ford had significant exposure havebeen banned by the FDA due in part to the danger theypose to the health and welfare of humans.

26. Ms. McDermott from her review of theavailable records and discussions with members of thedefense team has discovered that despite the level ofMr. Ford’s chronic alcoholism and the resultingpotential for black outs, particularly as a result of

41Mr. Mercurio did not have Mr. Ford evaluated by mentalhealth experts during the initial collateral review process.

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interactions with the mild brain impairment, thediabetes, and the neurotoxins that Mr. Ford was exposedto, a toxicologist was not employed, nor was thepotential for blackouts which Mr. Ford describespursued.

27. A comprehensive neuropsychologicalevaluation, consultation with toxicologist andexamination of the impact from environmental issueswould have assisted in measuring the impact that Mr.Ford’s history and what impact it had on his behaviorat the time of the offense and ultimately could haveproduced information relevant to any number ofstatutory and non-statutory mitigating circumstances. It is clear from reviewing the trial counsel’s filesand records that both trial counsel and the mitigationspecialist he used believed that there was somethingwrong with Mr. Ford. Unfortunately, the focus was onintoxication and retardation as opposed to a organic ortraumatic brain injury, neurotoxins, and the interplayof these conditions with diabetes and chronicalcoholism. A neuropsychological evaluation would haveprovided objective medical data to the jury and judgethat most likely would have had a significant effect ontheir decision-making as to whether the death penaltyshould have been imposed in this case.

28. Recent medical research published hasreported a connection between aggressive behavior andpoorly controlled diabetes. While Mr. Ford’suncontrolled diabetes was presented as a mitigatingcircumstance which the sentencing judge wrongly ruledwas not mitigating, the correlation between thediabetes, neurological impairment, chronic alcoholism,neurotoxins and Mr. Ford’s other mental health relatedissues was not assessed by trial counsel or priorcollateral counsel.

29. In addition, current counsel has retained Dr.Robert H. Ouaou, Ph.D. Dr. Ouaou has been recognizedas a clinical and neuropsychology expert in testifyingregarding sentencing determination issues includingmitigation and competency in both state and federalcourts. Dr. Ouaou has reviewed the trial anddeposition testimony of the various mental healthexperts that were involved in Mr. Ford’s case at thetime of trial and reviewed their various writtenreports. Based on his review of the records andtestimony he has concluded that there could be severalimpaired regions of the brain that control behaviorthat were not assessed. A comprehensive

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neuropsychological evaluation allows for assessment ofmultiple brain regions, especially the frontal lobes –an area of brain related to behavior and impulsecontrol and judgment. Mr. Ford has a history ofpotential neurological trauma and disease related tohead injuries, severe alcoholism, learning disorder,and potential cerebrovascular disease related touncontrolled diabetes.

30. Dr. Ouaou believes that Mr. Ford’s history ofmultiple traumatic brain injuries from childhood withloss of consciousness is quite significant. Hesuffered multiple head injuries to the various areas ofthe head beginning at ages 4 to 6 years. Other headinjuries occurred when Mr. Ford worked in the livestockbusiness between the ages of 16 to 18 and was kickeddirectly in the head multiple times by “bucking” bullsand wild unbroken horses while performing at the rodeo. It is during this age period that the frontal lobesdevelop. This area of the brain controls behavioralimpulses, emotions, and judgment. Mr. Ford hasdescribed several other occasions when he sufferedblows to the head and there is a history of traumaticbrain injury sequelae including possible absenceseizures, dizziness, blurred vision, and headaches. Hecontinues to experience headaches.

31. Of additional significance to Dr. Ouaou as itrelates to Mr. Ford’s neurological functioning is hisexposure to numerous toxins through his agriculturalbackground as well as his work with livestock. Thereis a history of significant exposure to multiple knownneurotoxins in Mr. Ford’s background. He was exposedto toxins from working with cattle, in citrus groves,and cane fields included insecticides, herbicides andother toxins currently banned by the FDA. The chronicexposure included the chemicals Ethion and Parathion,which are known to cause central nervous systemdysfunction. Research on Parathion has revealed thatchronic exposure causes changes in human brain weight. This exposure in Mr. Ford’s background could explain alot. But further testing is necessary in light of thisinformation not developed by trial counsel, nor priorcollateral counsel.

32. It is Dr. Ouaou’s opinion that, because ofbrain damage and mental illness, the capital offenselikely was committed while the defendant was under theinfluence of extreme mental or emotional disturbanceand his capacity to conform his conduct to the

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requirements of the law was substantially impaired.42 Aneuropsychological evaluation would have providedobjective medical data to the jury and judge that mostlikely would have had a significant effect on theirdecision-making as to whether the death penalty shouldhave been imposed in this case. The mental healthexperts’ testing (based on his in-court description)and testimony were inadequate to accomplish that goal.

33. Also of significance to Dr. Ouaou is the factthat there is recent published medical research thatreveals there is a connection between aggressivebehavior and poorly controlled diabetes. While therewas testimony regarding Mr. Ford’s uncontrolleddiabetes the correlation between the diabetes,neurological impairment and other mental health relatedissues were seemingly not addressed. Certainly ananalysis of the correlation between Mr. Ford’s variousconditions and impairments is necessary to properlyunderstand the mitigating value of these conditions andimpairments and then to ascribe them the proper weightwhen determining the sentence to recommend for and/orimpose upon Mr. Ford. In this regard, these conditionsand impairments have a synergy that makes the damage tothe individual burden with all of them greater than youwould assume for just looking at them one by one asapparently the sentencing judge did in her sentencingorder.

34. Penalty phase counsel failed to adequatelyinvestigate Mr. Ford’s background as was necessary toproperly understand the etiology of Mr. Ford’sdisabilities and impairments. Trial counsel failed tolearn of Mr. Ford’s numerous head injuries in hisdevelopmental years. As a result, this history of headinjuries and the damage done to Mr. Ford’s brain wasnot fully evaluated, and thus its significance was notpresented to Mr. Ford’s judge and jury. Trial counselfailed to learn of Mr. Ford’s exposure to numerousdamaging neurotoxins. As a result, this exposure toneurotoxins was not developed and/or evaluated and itssignificance to Mr. Ford’s disabilities and impairmentswas not presented to Mr. Ford’s judge and jury. Though

42In her sentencing order, the sentencing judge concludedthat Mr. Ford’s penalty phase counsel had failed to prove thestatutory mitigating circumstances of extreme mental or emotionaldisturbance and/or substantially impaired capacity. Ford v.State, 802 So. 2d at 1127 n.2.

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it was clear to trial counsel, just as it was to thejudge that there were disabilities and impairment, thefull weight and effect of these disabilities andimpairments did not reach the sentencer as shown by thejudge giving these circumstances no weight because theimportance of each piece of the puzzle that is Mr.Ford’s mental and physical was not properly explainedbecause trial counsel failed to adequately investigate. Mr. Ford’s penalty phase counsel’s performance infailing to inadequately investigate was deficient, andas a result, Mr. Ford was prejudiced when themitigating value and weight were found lacking by thesentencing judge. Indeed, the sentencing judge foundthat the statutory mental health mitigators had notbeen established by the defense.

(2PC-R 16-23).43

Accepting Mr. Ford’s factual allegations as true, he had at

a minimum a colorable claim of ineffective assistance of a

penalty phase counsel under Strickland v. Washington and its

progeny, which due to Mr. Mercurio’s pro forma collateral

representation, went undiscovered and unpresented during the

initial collateral review proceedings. Because of Mr. Mercurio’s

pro forma collateral representation, Mr. Ford did not receive “a

fair opportunity” to demonstrate that due to the ineffective

representation at the penalty phase, his death sentence stands in

43It should be noted that in the testimony of witnessespresented by the defense at trial reference was made to the factthat one of Mr. Ford’s co-workers suffered greatly from hisexposure to the insecticides that he and Mr. Ford were using (R4034-35). Despite knowing of Mr. Ford’s exposure to toxins, trialcounsel unreasonably failed to understand and investigate thisobvious lead as to the likelihood that Mr. Ford was damaged as aresult. No experts in the area were contacted, no researchconducted as to the amount of the exposure and the likely orpossible effects from such exposure. The ball was dropped.

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violation of the Eighth Amendment. Hall v. Florida, 134 S.Ct at

2001.

C. If A Capital Defendant Has Is A Right To EffectiveAssistance Collateral Representation, There Must Be AnAvailable Remedy For A Breach Of That Right.

In Spalding v. Dugger, 626 So.2d at 72, this Court wrote:

We recognize that, under section 27.702, each defendantunder sentence of death is entitled, as a statutoryright, to effective legal representation by the capitalcollateral representative in all collateral reliefproceedings.

(Emphasis added). This Court observed that the statutory right

was established, at least in part, due to the “recognition of the

appropriateness for all death-sentenced prisoners to have counsel

in collateral relief proceedings.” Id.

When the Legislature created the capital collateral registry

in addition to the capital collateral regional counsel offices,

it made clear that the death-sentenced individuals who received

collateral representation by a registry attorney were entitled to

the same right to effective representation recognized in

Spalding. This is reflected in Fla. Stat. § 27.711(12), which

provides: “The court shall monitor the performance of assigned

counsel to ensure that the capital defendant is receiving quality

representation.” Historically, this Court has held that Florida

judges when appointing counsel in a capital case were obligated

to make sure appointed counsel provide effective representation:

Appointment of appellate counsel for indigent

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defendants is the responsibility of the trial court. Westrongly urge trial judges not to take thisresponsibility lightly or to appoint appellate counselwithout due recognition of the skills and attitudesnecessary for effective appellate representation. Aperfunctory appointment of counsel withoutconsideration of counsel's ability to fully, fairly,and zealously advocate the defendant's cause is adenial of meaningful representation which will not betolerated.

Wilson v. Wainwright, 474 So.2d 1162, 1164-65 (Fla. 1985). Yet in

Mr. Ford’s case, counsel’s perfunctory representation was and has

been tolerated. It served as the basis for the denial of Claim I

of Mr. Ford’s Rule 3.851 at issue in this appeal.

This Court has long recognized the link between the

effectiveness of the representation provided by court appointed

counsel and the adequacy of the attorney fees. This was first

addressed by this Court in Makemson v. Martin County, 491 So.2d

1109, 1114-15 (Fla. 1986), where this Court observed:

The link between compensation and the quality ofrepresentation remains too clear. See the dissent inMackenzie, 288 So.2d at 202 (“The adage that ‘you getwhat you pay for’ applies not infrequently. In ourpecuniary culture the calibre of personal servicesrendered usually has a corresponding relationship tothe compensation provided.”); Gideon v. Wainwright, 372U.S. at 344, 83 S.Ct. at 796 (“[T]here are fewdefendants charged with crime, few indeed, who fail tohire the best lawyers they can get to prepare andpresent their defense.”).

(Emphasis added).

Subsequently in Remeta v. State, 559 So.2d 1132, 1135 (Fla.

1990), this Court, when addressing the adequacy of the attorney

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fees awarded to court-appointed clemency counsel in a death

penalty case, wrote:

First, it is clear that this state has established aright to counsel in clemency proceedings for deathpenalty cases, and this statutory right necessarilycarries with it the right to have effective assistanceof counsel.

This Court then adopted the reasoning of Makemson and explained:

The appointment of counsel in any setting would bemeaningless without some assurance that counsel giveeffective representation. As we said in Makemson, ourfocus must be on “the defendant's right to effectiverepresentation rather than the attorney's right to faircompensation.” Makemson, 491 So.2d at 1112 (emphasissupplied). Unfortunately, the “link betweencompensation and the quality of representation remainstoo clear.” Id. at 1114. Trial courts must have theauthority to fairly compensate court-appointed counsel.It is the only way to ensure effective representationand give effect to the right to counsel in these deathpenalty clemency proceedings.

Remeta v. State, 559 So.2d at 1135 (emphasis added).

After the creation of the capital collateral registry, this

Court in Olive v. Maas, 811 So.2d 644, 653 (Fla. 2002), wrote:

Respondents/appellees candidly conceded during oralarguments that Makemson, White, and Remeta wereapplicable to the present case and that, accordingly,in capital cases where extraordinary or unusualcircumstances exist, trial courts are authorized toaward fees in excess of the statutory schedule set outin section 27.711(4). That Makemson and its progenycontrol this issue is expressly noted in a staffanalysis forming part of the legislative history ofsection 27.711.

On March 21, 2013, this Court issued its opinion in McClain

v. Atwater, 110 So.3d 892 (Fla. 2013), and not only held that a

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capital defendant was entitled to effective representation in

collateral proceedings, but the means of protecting and

guaranteeing that right to effective collateral representation

was through the award of adequate attorney fees. Id. at 898.

However, Mr. Ford was represented by registry counsel who

did not seek reimbursement for attorney fees or expenses. In Mr.

Ford’s case the logic and reasoning of Makemson, Remeta, Olive

and McClain breaks down. No attorney fees were paid in order to

insure that effective representation was provided.

Separately and apart from his statutory right to effective

collateral representation, Mr. Ford possessed an equitable right

to effective representation during the first Rule 3.851

proceedings, which was his first opportunity to present a Sixth

Amendment challenge to the effectiveness of his penalty phase

counsel. In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the United

States Supreme Court concluded that a criminal defendant had, at

a minimum, an equitable right to effective collateral

representation at the initial review of his claim that trial

counsel provided ineffective representation within the meaning of

Strickland v. Washington.44 The equitable right was premised upon

44The US Supreme Court in Trevino extended the equitableright first identified in Martinez v. Ryan, 132 S.Ct. 1309(2012), as applying in States that precluded convicted criminaldefendants from raising in a direct appeal their challenges tothe effectiveness of trial counsel under Strickland. In Martinez,it was noted that criminal defendants have a constitutional rightto effective representation in a direct appeal. States that

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the understanding that “the right to the effective assistance of

counsel at trial is a bedrock principle in our justice system . .

. Indeed, the right to counsel is the foundation of our adversary

system.” Trevino, 133 S.Ct. at 1917 (internal citations omitted).

The circuit court denied Claim I of Mr. Ford’s Rule 3.851

motion on the basis of decisions by this Court that held that

since Martinez v. Ryan, 132 S.Ct. 1309 (2012), did not create a

constitutional right to effective collateral representation, it

precluded convicted defendants from raising the issue in thedirect appeal forced the defendants to raise their Stricklandchallenges in proceeding that did not provide them with a rightto effective representation. Because the procedural rules adoptedby States precluding the presentation of Strickland claims ondirect appeal operated to remove the right to effectiverepresentation when presenting a Strickland claim, the US SupremeCourt found that it was proper to impose upon those States theequitable obligation to provide effective representation in thecollateral proceeding that provided the convicted defendant withthe initial review of his Strickland claim. The US Supreme Courtin Trevino concluded the equitable right to effective collateralcounsel should also apply in States that procedurally encourageconvicted defendants to not raise their Strickland claims indirect appeals which carry a Sixth Amendment right of effectiveappellate representation, but instead raise their Stricklandclaims in a proceedings without the Sixth Amendment protection.Because Florida is one of the States that encourages convicteddefendants to bypass the presentation of Strickland claims ondirect appeal, Trevino clearly applies in Florida. Under Trevino,the State’s action in encouraging the presentation of aStrickland claim in a collateral proceeding without the SixthAmendment right to effective representation gives rise to anequitable right to effective representation. To hold otherwisewould be to unfairly strip the defendant of a right that he wouldotherwise have. When a State gets a criminal defendant to presenta Strickland claim in a proceeding without the Sixth Amendmentright to effective representation instead of a proceeding withsuch a right, the defendant cannot equitably be stripped of theright to effective counsel that he would otherwise have had.

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did not apply in Florida (2PC-R 453). See Moore v. State, 132

So.3d 718 (Fla. 2013); Mann v. State, 112 So.3d 1158 (Fla. 2013);

Howell v. State, 109 So.3d 763 (Fla. 2013); and Gore v. State, 91

So.3d 769 (Fla. 2012). While these decisions did conclude that

Martinez did not apply to proceedings in Florida state courts,

this Court did not address Trevino and its expansion of the

equitable right set forth in Martinez to States, like Florida,

who encourage convicted defendants to not raise Strickland claims

in direct appeals when represented by counsel guaranteed under

the Sixth Amendment to provide effective assistance, but instead

in collateral proceedings in which the defendants did not have an

enforceable constitutional right to effective assistance. After

Trevino, it is clear the equitable right first identified in

Martinez does exist in Florida. It is not equitable to encourage

defendants to raise Strickland claims in a proceeding without the

Sixth Amendment guarantee to effective representation, instead of

a proceeding to which the Sixth Amendment right attaches.

The circuit court, in summarily denying Mr. Ford’s claim,

erroneously concluded that “[t]he Supreme Court did not expand

its Martinez decision in Trevino, and merely found no significant

distinction between a state procedure requiring defendants to

raise ineffective assistance of counsel claims during

postconviction proceedings, and procedures appearing to allow

defendants to raise such claims during appeal.” (2PC-R 454). This

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ruling that Trevino did not expand Martinez is simply wrong.

In Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013), the 8th

Circuit found that Trevino had significantly expanded the scope

of Martinez:

The Supreme Court expanded this exception in Trevino,reasoning “a distinction between (1) a State thatdenies permission to raise [an ineffective assistanceof counsel] claim on direct appeal and (2) a State thatin theory grants permission but, as a matter ofprocedural design and systematic operation, denies ameaningful opportunity to do so is a distinctionwithout a difference.” Trevino, 569 U.S. at ––––, 133S.Ct. at 1921.

Sasser v. Hobbs, 735 F.3d at 851. As a result, the 8th Circuit

concluded: “Arkansas did not ‘as a systematic matter’ afford

Sasser ‘meaningful review of a claim of ineffective assistance of

trial counsel’ on direct appeal.” Id. at 853. Thus, only because

of the expansion of Martinez that occurred in Trevino, was the

equitable right to effective collateral counsel found to exist in

collateral proceedings in Arkansas state courts.45

45 Before Trevino issued, the 8th Circuit in Dansby v. Norris,682 F.3d 711 (8th Cir. 2012), held:

Martinez does not apply here, because Arkansas does notbar a defendant from raising claims of ineffectiveassistance of trial counsel on direct appeal. Arkansaslaw permitted Dansby to raise a claim of ineffectiveassistance in a motion for new trial and on directappeal.

Id. at 729. After Trevino issued, the US Supreme Court vacatedthe 8th Circuit’s decision in Dansby and remanded forreconsideration. Dansby v. Norris, 133 S.Ct. 2767 (2013).

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Similarly in Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296

(9th Cir. 2013), the 9th Circuit surveyed the decisions from its

sister circuits and noted that their limited readings of Martinez

as to the states in which it applied were rejected in Trevino:

In rejecting that understanding of Martinez, the Courtin Trevino made clear that the “limited-circumstances”language in Martinez did not limit its holding to thecircumstance where a state law categorically forbidsclaims of trial-counsel IAC on direct appeal. Trevino,133 S.Ct. at 1921.

Ha Van Nguyen, at 1296.

Under Trevino, there is a right to effective representation

in the initial Rule 3.851 proceedings as to substantial

Strickland claims. The equitable right means collateral counsel

is obligated to provide effective assistance in investigating,

developing, pleading and litigating a Florida capital defendant’s

Strickland claims before the circuit court. While certainly there

are distinctions between constitutional rights and equitable

rights, a court’s inherent equitable powers exist to insure

fairness. In Holland v. Florida, 130 S. Ct. 2549, 2563 (2010),

the U.S. Supreme Court explained:

But we have also made clear that often the “exercise ofa court’s equity powers . . . must be made on a case-by-case basis.” Baggett v. Bullitt, 377 U.S. 360, 375(1964). In emphasizing the need for “flexibility,” foravoiding “mechanical rules,” Holmberg v. Armbrecht, 327U.S. 360, 375 (1946), we have followed a tradition inwhich courts of equity have sought to “relievehardships which, from time to time, arise from a hardand fast adherence” to more absolute legal rules,which, if strictly applied, threaten the “evils of

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archaic rigidity,” Hazel-Atlas Glass Co. V. Hartford-Empire Co., 322 U.S. 238, 248 (1944). The “flexibility”inherent in “equitable procedure” enables courts “tomeet new situations [that] demand equitableintervention, and to accord all the relief necessary tocorrect . . . particular injustices.” Ibid.

Equitable principles are particularly important in capital

cases. “The fundamental respect for humanity underlying the

Eighth Amendment's prohibition against cruel and unusual

punishment gives rise to a special ‘need for reliability in the

determination that death is the appropriate punishment’ in any

capital case.” Johnson v. Mississippi, 486 U.S.578, 584 (1988).

See Hall v. Florida, 134 S.Ct. at 2001 (a “[p]erson facing that

most severe sanction [execution] must have a fair opportunity to

show that the Constitution prohibits their execution.”

D. Conclusion.

Mr. Ford had both a statutory right to effective collateral

counsel and equitable one under Trevino. Instead what he received

was a scrivener who acted as his counsel only in a pro forma or

perfunctory sense. Thus, Mr. Ford did not receive that to which

he was entitled, statutorily and equitably. As a result, the

substantial Strickland challenge detailed in the Rule 3.851

motion at issue in this appeal was not heard, and Mr. Ford was

prejudiced. The circuit court erred in summarily denying this

Claim I of Mr. Ford’s motion to vacate. Reversal is warranted.

ARGUMENT II

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THE CIRCUIT COURT ERRED IN RULING THAT MR. FORD’SLETHAL INJECTION CHALLENGE WAS PREMATURE AND COULD ONLYBE HEARD WHEN HE HAD AN ACTIVE DEATH WARRANT.

The circuit court’s denial of Mr. Ford’s lethal injection

claim on grounds that it was premature and could not be heard

until he had an active death warrant is contrary to the provision

of Rule 3.851 that requires presentation of claims within a year

of discovery. It is important for this Court to specifically

address this holding because capital defendants and their

collateral counsel need to know when a lethal injection can and

should be raised under due process principles. The right to due

process entails “‘notice and opportunity for hearing appropriate

to the nature of the case.’” Cleveland Bd. of Ed. v. Loudermill,

470 U.S. 532, 542 (1985).

ARGUMENT III

A NON-UNANIMOUS DEATH VERDICT VIOLATES THE EVOLVINGSTANDARDS OF DECENCY UNDER THE EIGHTH AMENDMENT.

While this Court rejected this claim in Kimbrough v. State,

125 So.3d 752 (Fla. 2013), reconsideration is warranted under the

evolving standards of decency analysis conducted by US Supreme

Court in Hall v. Florida, 134 S.Ct. 1986 (2014).

CONCLUSION

In light of the foregoing arguments, Mr. Ford urges this

Court to vacate the summarily denial his Rule 3.851 motion and

remand for a full and fair evidentiary hearing.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been

furnished by email, to Carol Dittmar, Assistant Attorney General,

Office of the Attorney General, at her primary email address

CapApp@myfloridalegal.com on October 15, 2014.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font

requirements of rule 9.210(a)(2) of the Florida Rules of

Appellate Procedure.

___________________________MARTIN J. MCCLAINFlorida Bar No. 0754773McClain & McDermott, P.A.Attorneys at Law141 N.E. 30th StreetWilton Manors, FL 33334(305) 984-8344martymcclain@earthlink.net

Registry Counsel for Mr. Ford

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/s/ Martin J. McClain