Donald David Dillbeck v. State of Florida & Donald David Dillbeck v. Ricky D. Dixon, etc. ( 2023 )


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  •           Supreme Court of Florida
    ____________
    No. SC23-190
    ____________
    DONALD DAVID DILLBECK,
    Appellant,
    vs.
    STATE OF FLORIDA,
    Appellee.
    ____________
    No. SC23-220
    ____________
    DONALD DAVID DILLBECK,
    Petitioner,
    vs.
    RICKY D. DIXON, etc.,
    Respondent.
    February 16, 2023
    PER CURIAM.
    Donald David Dillbeck, a prisoner under sentence of death
    and an active death warrant, appeals the circuit court’s order
    summarily denying his fourth successive postconviction motion
    filed under Florida Rule of Criminal Procedure 3.851 and petitions
    this Court for a writ of habeas corpus. We affirm the summary
    denial of Dillbeck’s motion and deny his habeas petition. We also
    deny the two motions for stay of execution and two motions for oral
    argument that Dillbeck has filed in this Court. 1
    I. BACKGROUND
    Dillbeck was 15 years old when he committed his first murder
    by shooting Deputy Dwight Lynn Hall to death in 1979. He entered
    a negotiated guilty plea of first-degree premeditated murder and
    was sentenced to life in prison with the possibility of parole after 25
    years. Eleven years later, Dillbeck murdered again:
    While serving his sentence [relating to Deputy Hall], he
    walked away from a public function he and other inmates
    were catering in Quincy, Florida. He walked to
    Tallahassee, bought a paring knife, and attempted to
    hijack a car and driver from a shopping mall parking lot
    on June 24, 1990. Faye Vann, who was seated in the
    car, resisted and Dillbeck stabbed her several times,
    killing her. Dillbeck attempted to flee in the car, crashed,
    and was arrested shortly thereafter and charged with
    first-degree murder, armed robbery, and armed burglary.
    He was convicted on all counts and sentenced to
    consecutive life terms on the robbery and burglary
    charges, and, consistent with the jury’s eight-to-four
    recommendation, death on the murder charge.
    1. We have jurisdiction, see art. V, § 3(b)(1), (9), Fla. Const.
    -2-
    Dillbeck v. State, 
    643 So. 2d 1027
    , 1028 (Fla. 1994).
    In sentencing Dillbeck to death for Vann’s murder, the trial
    court found five aggravating circumstances: “[1] that Dillbeck was
    under sentence of imprisonment and [2] had previously been
    convicted of another capital felony [Deputy Hall’s 1979 murder],
    and [3] that the murder was committed during the course of a
    robbery and burglary, [4] was committed to avoid arrest or effect
    escape, and [5] was especially heinous, atrocious, or cruel.” 
    Id.
     at
    1028 n.1 (citing § 921.141, Fla. Stat. (1989)). As to mitigation,
    “[t]he trial court found one statutory mitigating circumstance, i.e.,
    that Dillbeck was substantially impaired, see § 921.141(6)(f), Fla.
    Stat. (1989), and numerous nonstatutory circumstances: abused
    childhood, fetal alcohol effect, mental illness, the mental illness is
    treatable, imprisonment at an early age in a violent prison, good-
    behavior, a loving family, and remorse.” Dillbeck, 
    643 So. 2d at
    1028 n.2.
    On direct appeal, we affirmed Dillbeck’s convictions and
    sentences, 
    id. at 1031
    , which became final when the United States
    -3-
    Supreme Court denied certiorari review in 1995. See Dillbeck v.
    Florida, 
    514 U.S. 1022
     (1995).
    In the decades since, Dillbeck has unsuccessfully challenged
    his convictions and sentences many times. See Dillbeck v. State,
    
    882 So. 2d 969
    , 977 (Fla. 2004) (denying Dillbeck’s habeas petition
    and affirming the denial of one of Dillbeck’s initial postconviction
    claims but remanding for the circuit court to make the required
    findings of fact and conclusions of law supporting denial of the
    remaining claims); Dillbeck v. State, 
    964 So. 2d 95
    , 97 (Fla. 2007)
    (affirming the denial of Dillbeck’s remaining initial postconviction
    claims after remand); Dillbeck v. State, 
    168 So. 3d 224
    , *1 (Fla.
    2015) (table) (affirming the denial of Dillbeck’s first successive
    postconviction motion); Dillbeck v. State, 
    234 So. 3d 558
    , 559 (Fla.)
    (affirming the denial of Dillbeck’s second successive postconviction
    motion), cert. denied, 
    139 S. Ct. 162 (2018)
    ; Dillbeck v. State, 
    304 So. 3d 286
    , 288 (Fla. 2020) (affirming the dismissal of Dillbeck’s
    third successive postconviction motion), cert. denied, 
    141 S. Ct. 2733 (2021)
    .
    Governor Ron DeSantis signed Dillbeck’s death warrant on
    January 23, 2023. Dillbeck then filed his fourth successive
    -4-
    postconviction motion under rule 3.851. In his motion, Dillbeck
    argued that he is exempt from execution because he has a mental
    condition that is equivalent to intellectual disability, that newly
    discovered evidence related to the prior violent felony aggravator
    requires vacating his death sentence or granting a stay of execution,
    and that the Eighth Amendment prohibits his execution after 30
    years on death row. Dillbeck conceded below that the claim based
    on his length of time on death row presents a purely legal issue but
    sought an evidentiary hearing on his claims alleging an exemption
    from execution and newly discovered evidence. The circuit court
    summarily denied all three claims.2
    Dillbeck now appeals, petitions this Court for a writ of habeas
    corpus, moves for a stay of execution, and requests oral argument.
    II. ANALYSIS OF APPEAL
    In appealing the circuit court’s summary denial of his fourth
    successive postconviction motion, Dillbeck raises three issues: (1)
    the circuit court erred in summarily denying his claim that he is
    2. Dillbeck also challenged the constitutionality of his
    clemency proceedings below, but he does not appeal the circuit
    court’s summary denial of that claim.
    -5-
    exempt from execution because he has a mental condition that is
    equivalent to intellectual disability; (2) the circuit court erred in
    summarily denying his claim that newly discovered evidence related
    to the prior violent felony aggravator requires vacating his death
    sentence or, at minimum, staying his execution to allow him to
    challenge the 1979 conviction that supports the prior violent felony
    aggravator; and (3) the Eighth Amendment precludes executing him
    after 30 years on death row. Because the circuit court denied these
    claims without an evidentiary hearing, our review is de novo. See
    Bowles v. State, 
    276 So. 3d 791
    , 794 (Fla. 2019) (“A postconviction
    court’s decision regarding whether to grant an evidentiary hearing
    is a pure question of law and is reviewed de novo.”); see also Fla. R.
    Crim. P. 3.851(f)(5)(B) (providing for the summary denial of a
    successive postconviction motion “[i]f the motion, files, and records
    in the case conclusively show that the movant is entitled to no
    relief”). As explained below, we affirm the circuit court’s summary
    denial of all three claims.
    (1) Exemption from Execution
    Dillbeck first argues that the circuit court erred in summarily
    denying his claim that he is exempt from execution because he has
    -6-
    a mental condition that is equivalent to intellectual disability.
    Dillbeck has an average IQ of 98 to 100, but he has been diagnosed
    with a fetal alcohol spectrum disorder called neurodevelopmental
    disorder associated with prenatal alcohol exposure (ND-PAE). He
    relies on an alleged newly emerged medical and scientific consensus
    that ND-PAE is equivalent to intellectual disability to argue that the
    Eighth and Fourteenth Amendments require exempting him from
    execution.
    The circuit court properly summarily denied Dillbeck’s
    exemption claim. As a newly discovered evidence claim of
    intellectual disability, it is untimely and procedurally barred; if it is
    not a newly discovered evidence claim (and Dillbeck says that it is
    not), then it is not cognizable in a successive postconviction motion.
    Moreover, the claim is meritless.
    This Court has explained that an intellectual disability claim
    that is based on newly discovered evidence must be filed “within
    one year of the date upon which the claim became discoverable
    through due diligence.” Pittman v. State, 
    337 So. 3d 776
    , 777 (Fla.
    2022); see also Bowles, 276 So. 3d at 794 (affirming summary
    denial of untimely intellectual disability claim).
    -7-
    Dillbeck’s claim depends on his ND-PAE diagnosis. But three
    years ago, in 2020, we affirmed the dismissal of Dillbeck’s third
    successive postconviction motion as untimely because we held that
    Dillbeck and his counsel had failed to diligently pursue a diagnosis
    of ND-PAE:
    Dillbeck and his counsel knew that Dillbeck had brain
    damage related to fetal alcohol exposure even before he
    was sentenced in 1991. Thus, . . . a diagnosis of ND-PAE
    and qEEG [quantitative electroencephalogram] results . .
    . could have been discovered by the exercise of due
    diligence as early as 2013, when ND-PAE became a
    diagnosable condition. Dillbeck and his counsel failed to
    exercise diligence by waiting until 2018 to pursue
    evaluation, testing, and a diagnosis of ND-PAE.
    Dillbeck, 304 So. 3d at 288. This claim is therefore barred.
    Attempting to avoid the procedural bar of our 2020 decision
    and establish due diligence in bringing his exemption claim,
    Dillbeck argues that his exemption claim is not based on the same
    evidence from his third successive postconviction proceeding, but
    on a “sociolegal tipping point” that ND-PAE is the equivalent of
    intellectual disability that is happening now, in 2023. Even if our
    prior ruling did not procedurally bar him, Dillbeck’s claim still
    comes too late to be newly discovered evidence.
    -8-
    Dillbeck cites a 2021 article for the proposition that the
    medical and scientific community view ND-PAE as equivalent to
    intellectual disability, and that article in turn relies on older
    sources. “[N]ew opinions or research studies based on a
    compilation or analysis of previously existing data and scientific
    information” are not generally considered newly discovered
    evidence. Henry v. State, 
    125 So. 3d 745
    , 750 (Fla. 2013). But
    even if they could be, the record conclusively refutes that Dillbeck
    diligently pursued an exemption claim based on them. The alleged
    new scientific and medical consensus that undergirds Dillbeck’s
    claim has existed since at least 2021.
    Another timing problem for Dillbeck is that if his exemption
    claim is not a newly discovered evidence claim, which he repeatedly
    says it is not, then the claim is not cognizable at all in a successive
    postconviction motion. “Rule 3.851 requires in pertinent part that
    motions for postconviction relief must be filed within one year from
    when the conviction and sentence become final unless the claim is
    based on newly discovered evidence or a newly recognized
    fundamental constitutional right that has been held to apply
    -9-
    retroactively.” Carroll v. State, 
    114 So. 3d 883
    , 886 (Fla. 2013)
    (citing Fla. R. Crim. P. 3.851(d)(1)(A)-(B); 3.851(d)(2)(A)-(B)).
    In Carroll, a capital defendant under an active death warrant
    argued that mental illness barred his execution, specifically that
    “the principles set forth in [Atkins and Roper3] should be extended
    to the class of persons such as himself who suffer from mental
    illness, based on the precept that such persons are less morally
    culpable and that, under the ‘evolving standards of decency that
    mark the progress of a maturing society,’ their mental illnesses
    should bar their executions.” 
    114 So. 3d at 886
     (citation omitted).
    In explaining why Carroll’s claim was untimely and therefore
    unauthorized in a rule 3.851 successive postconviction motion, this
    Court wrote:
    Carroll’s claim . . . is not a claim based on a newly
    recognized, retroactive fundamental constitutional right
    that may be asserted beyond the time limits established
    in the rule. What Carroll is seeking is the recognition of
    a new fundamental constitutional right, which is not
    properly pled under rule 3.851(d)(2)(B).
    Id.
    3. Atkins v. Virginia, 
    536 U.S. 304
     (2002); Roper v. Simmons,
    
    543 U.S. 551
     (2005).
    - 10 -
    Likewise, if Dillbeck’s claim is not a newly discovered evidence
    claim subject to the time and due diligence limitations of rule
    3.851(d)(2)(A), then it is not cognizable in a rule 3.851 successive
    postconviction motion. Carroll flatly refutes Dillbeck’s contention
    that no time limits apply to categorical exemption claims based on
    conditions alleged to have intellectual disability equivalence.
    The time and procedural bars discussed above are fatal to
    Dillbeck’s exemption claim, but even if they were not, the claim is
    also meritless. We have long held that the categorical bar of Atkins
    that shields the intellectually disabled from execution does not
    apply to individuals with other forms of mental illness or brain
    damage. See Gordon v. State, 
    350 So. 3d 25
    , 37 (Fla. 2022) (“[F]or
    the purposes of the Eighth Amendment, the existence of a
    traumatic brain injury does not reduce an individual’s culpability to
    the extent they become immune from capital punishment.”). The
    result is the same even where, as here, the defendant argues that
    “his mental illness and neurological impairments . . . cause him to
    experience the same deficits in reasoning, understanding and
    processing information, learning from experience, exercising good
    judgment, and controlling impulses as those experienced” by the
    - 11 -
    intellectually disabled. Johnston v. State, 
    27 So. 3d 11
    , 26 (Fla.
    2010); see also Carroll, 
    114 So. 3d at 886
    .
    Because Dillbeck’s exemption claim is time barred,
    procedurally barred, and without merit, we affirm the circuit court’s
    summary denial.
    (2) Newly Discovered Evidence
    Next, Dillbeck argues that the circuit court erred in summarily
    denying his claim that newly discovered evidence related to the
    prior violent felony aggravator requires vacating his death sentence
    or, at minimum, staying his execution to allow him to challenge the
    1979 conviction that supports the prior violent felony aggravator.
    We disagree and affirm the summary denial of this claim.
    To obtain relief where alleged newly discovered evidence
    relates to the penalty phase, “a defendant must establish: (1) that
    the newly discovered evidence was unknown by the trial court, by
    the party, or by counsel at the time of trial and it could not have
    been discovered through due diligence, and (2) that the evidence is
    of such a nature that it would probably . . . yield a less severe
    sentence on retrial.” Dailey v. State, 
    329 So. 3d 1280
    , 1285 (Fla.
    2021).
    - 12 -
    After describing the alleged new evidence, we explain why
    Dillbeck’s newly discovered evidence claim is untimely and why we
    agree with the circuit court’s alternative ruling that even if the claim
    is timely, the alleged new evidence is not of such a nature that it
    would probably yield a less severe sentence on retrial. Last, we
    explain why Dillbeck is not entitled to a stay of execution to
    challenge his 1979 conviction.
    The Alleged New Evidence
    After the Governor signed Dillbeck’s death warrant, Dillbeck’s
    legal team obtained statements from five people who witnessed his
    “bizarre” behavior surrounding Deputy Hall’s 1979 shooting. Of the
    five, three gave prior statements to law enforcement in 1979; a
    fourth is married to one of the people who gave a statement in
    1979. The fifth witness saw Dillbeck being arrested in 1979 after
    the shooting but was not interviewed by law enforcement. In
    addition to the five witness statements, Dillbeck’s legal team
    obtained a post-warrant statement from Dillbeck’s childhood friend
    to help contextualize Dillbeck’s “bizarre” behavior surrounding
    Deputy Hall’s shooting.
    - 13 -
    Then, Dillbeck’s legal team gave the post-warrant witness
    statements to two doctors who reviewed them and offered new
    opinions about Dillbeck’s mental state. Dillbeck argues that the
    doctors’ new opinions prove that his capacity was diminished
    during the prior murder, that he was insane at the time of the prior
    murder, and that he was incompetent to plead guilty to the prior
    murder.
    Finally, in response to the State’s argument below that
    Dillbeck’s detailed 1979 plea colloquy evinced his mental state,
    Dillbeck’s legal team obtained a statement from the assistant public
    defender who met with Dillbeck on the day he was arrested but did
    not otherwise have contact with him. Dillbeck argues that the
    attorney’s affidavit shows that his plea colloquy contains inaccurate
    representations because he answered affirmatively when asked if he
    had discussed the facts of the case with her, but she does not recall
    doing so. He also argues that this statement supports his new
    doctors’ reports questioning whether he was competent to plead
    guilty because it shows he had been primed to say “yes” during the
    colloquy.
    - 14 -
    The Claim is Untimely
    We agree with the circuit court that Dillbeck’s newly
    discovered evidence claim is “decades late.” Rule 3.851(d)(2)(A)
    precludes filing a postconviction claim based on newly discovered
    evidence more than one year after the conviction and sentence of
    death become final unless “the facts on which the claim is
    predicated were unknown to the movant or the movant’s attorney
    and could not have been ascertained by the exercise of due
    diligence.” See also Fla. R. Crim. P. 3.851(e)(2) (requiring good
    cause for failing to assert successive claims earlier). “It is
    incumbent upon the defendant to establish the timeliness of a
    successive postconviction claim.” Mungin v. State, 
    320 So. 3d 624
    ,
    626 (Fla. 2020).
    In attempting to avoid the time bar, Dillbeck argues that due
    diligence only requires reasonable efforts. He contends that nothing
    in the 1979 witness statements would have given him or his
    counsel reason to know that there were third-party witnesses to his
    bizarre behavior who could shed light on his mental state at the
    time of the 1979 shooting. We disagree.
    - 15 -
    Dillbeck himself detailed his behavior during the shooting in
    his 1979 plea colloquy and again during his 1991 penalty phase
    testimony. It is also beyond dispute that there were witnesses who
    saw and even interacted with Dillbeck at the beach around the time
    of Deputy Hall’s shooting. Some of the statements taken in 1979
    refer to other people who were present on the beach, so it is clear
    that law enforcement did not take statements from everyone and
    that there were other potential witnesses to question. Moreover, the
    1979 witness statements contain observations about Dillbeck’s
    behavior: one witness stated that Dillbeck “[s]eemed like he was
    kinda depressed”; another said that Dillbeck was “pacing so hard
    an[d] . . . he looked like he was messed up.” Similarly, the arresting
    officer’s 1979 statement described Dillbeck as “bewildered.”
    Whether any of the witnesses at the beach, who were either
    expressly named or discoverable by due diligence, might have been
    able to describe Dillbeck’s behavior in a way that could have
    potentially aided him in advancing claims about his mental state is
    a question that diligent counsel would ask—particularly as
    Dillbeck’s mental state has been a feature of his claims for 30-plus
    years. Because counsel inquired “decades late,” we affirm the
    - 16 -
    summary denial of Dillbeck’s newly discovered evidence claim as
    untimely.
    The “New” Evidence Would Not Probably Yield a Lesser Sentence
    We also agree with the circuit court’s alternative ruling that
    even if Dillbeck’s claim were timely, he would still not be entitled to
    relief from his death sentence because the “new” evidence is not of
    such nature that it would probably yield a less severe sentence on
    retrial. See Dailey, 329 So. 3d at 1285.
    The circuit court cogently explained why Dillbeck cannot make
    the necessary showing:
    Five aggravators were proven in this case: (1) under
    sentence of imprisonment; (2) murder committed during
    a robbery/burglary; (3) murder committed to avoid
    arrest/effect escape; (4) murder was especially heinous,
    atrocious, or cruel; and (5) prior violent felony for the
    first-degree murder of Deputy Hall. Dillbeck, 
    643 So. 2d at
    1028 n.1. Dillbeck proved the following mitigation: (1)
    he was substantially impaired under § 921.141(6)(f),
    Florida Statutes (1989); (2) childhood abuse; (3) fetal
    alcohol effects; (4) treatable mental illness; (5)
    imprisonment at an early age in a violent prison; (6) good
    behavior; (7) a loving family; and (8) remorse. Id. at n.2.
    Overall, little weight was given to this mitigation by the
    [trial court].
    . . . Dillbeck’s new evidence (at most) shows he was
    acting oddly before and after he killed Deputy Hall and
    that two doctors, who have evaluated this evidence in
    2023, doubt his competence to plead guilty and form
    premeditated intent in 1979. That barely alters the
    - 17 -
    profile of the aggravating and mitigating circumstances,
    especially considering intent was litigated extensively in
    1991 [in the Vann murder case], his 1979 plea colloquy
    [for Deputy Hall’s murder] was introduced to the [Vann
    penalty-phase] jury, and the State would still be able to
    use the non-vacated 1979 conviction to prove the prior
    violent felony aggravator.
    Accordingly, because Dillbeck’s newly discovered evidence
    claim is untimely and, moreover, because the alleged new evidence
    would not probably yield a less severe sentence, we affirm the
    circuit court’s summary denial.
    Dillbeck is Not Entitled to a Stay of Execution
    Dillbeck also argues that the circuit court should have granted
    a stay of execution to allow him to challenge his 1979 conviction.
    He acknowledges that the circuit court correctly ruled that his
    attempt to invalidate the prior violent felony aggravator is not
    cognizable. Indeed, Johnson v. Mississippi, 
    486 U.S. 578
    , 584-85
    (1988), requires “reexamination of [a] death sentence” only where
    the death sentence is “based in part on a reversed conviction.”
    Because Dillbeck’s 1979 conviction stands, Johnson provides no
    avenue to invalidate the prior violent felony aggravator that is based
    on his 1979 conviction.
    - 18 -
    Yet Dillbeck argues that the circuit court erred by denying his
    Johnson claim without first giving him the chance to use the alleged
    new evidence to invalidate his 1979 conviction. He is wrong that
    the circuit court needed to hold open the Johnson claim, and he is
    also wrong that the circuit court erred in denying a stay.
    In challenging the denial of his Johnson claim, Dillbeck points
    to no authority that supports holding open an unripe Johnson claim
    based on speculation that it might become cognizable. To the
    contrary, many cases do say that “[p]ostconviction relief cannot be
    based on speculative assertions.” Jones v. State, 
    845 So. 2d 55
    , 64
    (Fla. 2003). And others generally recognize that a “concession that
    [an] issue is not yet ripe” means “th[e] claim is without merit.”
    Kimbrough v. State, 
    886 So. 2d 965
    , 984 (Fla. 2004) (addressing
    premature claim of competency for execution).
    Of course, Dillbeck may challenge, and he does challenge, the
    circuit court’s denial of his motion for stay of execution. But that
    argument also fails because “a stay of execution on a successive
    motion for postconviction relief is warranted only where there are
    substantial grounds upon which relief might be granted.” Davis v.
    State, 
    142 So. 3d 867
    , 873-74 (Fla. 2014) (citing Buenoano v. State,
    - 19 -
    
    708 So. 2d 941
    , 951 (Fla. 1998)). Belated attacks on a conviction
    that has been final for over 40 years fall well short of the necessary
    showing, particularly where the proposed vehicle for those attacks
    is a newly discovered evidence claim under rule 3.850 that cannot
    meet the applicable due-diligence requirement. See Fla. R. Crim. P.
    3.850(b)(1).
    Accordingly, we affirm the circuit court’s summary denial of
    Dillbeck’s Johnson claim and its denial of a stay of execution.
    (3) Length of Time on Death Row
    In his third and last issue on appeal, Dillbeck argues that the
    circuit court erred in denying his claim that executing him after 30
    years on death row violates the Cruel and Unusual Punishments
    Clause of the Eighth Amendment. We disagree and affirm,
    consistent with our longstanding precedent that such claims are
    “facially invalid,” including when the defendant’s stay on death row
    exceeded 30 years. Valle v. State, 
    70 So. 3d 530
    , 552 (Fla. 2011)
    (33 years); see also Lambrix v. State, 
    217 So. 3d 977
    , 988 (Fla.
    2017) (over 31 years); Long v. State, 
    271 So. 3d 938
    , 946 (Fla. 2019)
    (over 30 years).
    - 20 -
    “[N]o federal or state court has accepted the argument that a
    prolonged stay on death row constitutes cruel and unusual
    punishment.” Booker v. State, 
    969 So. 2d 186
    , 200 (Fla. 2007).
    And Dillbeck’s arguments about conditions on death row do not
    persuade us that our precedent is “clearly erroneous.” State v.
    Poole, 
    297 So. 3d 487
    , 507 (Fla. 2020); see also Muhammad v.
    State, 
    132 So. 3d 176
    , 207 (Fla. 2013) (holding that “the fact that
    [the defendant] was placed in special solitary confinement after
    murdering a correctional officer while on death row does not provide
    a sufficient distinguishing basis for this Court to depart from its
    established precedent” repeatedly rejecting the claim that “adding
    execution to the lengthy period of time . . . served on death row
    constitutes cruel and unusual punishment”). 4
    4. Dillbeck argues that the conditions on death row amount
    to “solitary confinement” prohibited by the original meaning of the
    Cruel and Unusual Punishments Clause. In rejecting this
    argument below, the circuit court looked to the original meaning of
    “solitary confinement”—i.e., “complete isolation of the prisoner from
    all human society” and confinement in a cell such that “he had no
    direct intercourse with or sight of any human being,” In re Medley,
    
    134 U.S. 160
    , 167-68 (1890). And then the circuit court compared
    those conditions to the “access to multimedia kiosks . . .
    telephones, . . . and outdoor exercise” available to Florida death row
    inmates, Davis v. Dixon, No. 3:17-CV-820-MMH-PDB, 
    2022 WL 1267602
    , at *3 (M.D. Fla. Apr. 28, 2022). We decline to hold that
    - 21 -
    Moreover, because Dillbeck has “contributed to the lengthy
    time and delay by continually challenging his convictions and
    sentences,” he “ ‘cannot now contend that his punishment has been
    illegally prolonged.’ ” Lambrix, 
    217 So. 3d at 988
     (quoting Valle, 
    70 So. 3d at 552
    ). Dillbeck has been on death row since 1991; his
    convictions and sentences became final in 1995, and litigation on
    his initial postconviction motion did not end until 2007. In the time
    when Dillbeck asserts there was no impediment to the issuance of
    his death warrant—i.e., from 2013 when his clemency proceedings
    concluded until 2023 when the Governor signed his death
    warrant—Dillbeck continued to challenge his convictions and
    sentences through three successive postconviction motions.
    We affirm the circuit court’s denial of this claim.
    III. ANALYSIS OF HABEAS PETITION
    In his habeas petition, Dillbeck challenges (1) the lack of a
    unanimous jury recommendation for death; (2) the HAC aggravator;
    the circuit court erred in refusing to expand the original meaning of
    a term to justify a claim that we have repeatedly held is not
    cognizable under the Eighth Amendment.
    - 22 -
    and (3) the effecting-escape aggravator. None of his claims warrant
    relief, and we deny his habeas petition.
    (1) Jury Recommendation
    In his first habeas claim, Dillbeck argues that executing him
    would violate the Eighth Amendment because his jury did not
    unanimously recommend a death sentence. But we have already
    rejected Dillbeck’s Eighth Amendment challenge to his death
    sentence, including for lack of juror unanimity as to the
    recommended sentence. See Dillbeck, 234 So. 3d at 559.
    And we are “bound by Supreme Court precedents that
    construe the United States Constitution,” and the Supreme Court’s
    precedent establishes that the Eighth Amendment does not require
    a unanimous jury recommendation of death. Poole, 297 So. 3d at
    504. The Supreme Court “rejected th[e] exact argument . . . that
    the Eighth Amendment requires a unanimous jury recommendation
    of death” in Spaziano v. Florida, 
    468 U.S. 447
    , 465 (1984). Poole,
    297 So. 3d at 504. To the extent that our prior decision rejecting
    Dillbeck’s Eighth Amendment challenges to his death sentence does
    not foreclose relief, Spaziano is still good law and requires denying
    Dillbeck’s claim.
    - 23 -
    (2) HAC Aggravator
    Dillbeck next argues that the HAC aggravator is facially invalid
    because it is vague, overbroad, and fails to serve the narrowing
    function required by the United States Constitution so that it was
    fundamental error to apply the aggravator in his case. This claim is
    procedurally barred and meritless.
    “[H]abeas corpus ‘is not a second appeal and cannot be used
    to litigate or relitigate issues which could have been . . . or were
    raised on direct appeal.’ ” Deparvine v. State, 
    146 So. 3d 1071
    ,
    1108 (Fla. 2014) (quoting Breedlove v. Singletary, 
    595 So. 2d 8
    , 10
    (Fla. 1992)). On direct appeal, Dillbeck unsuccessfully challenged
    the HAC aggravator. Dillbeck, 
    643 So. 2d at
    1028 n.3, 1031 n.6.
    He cannot challenge it again now.
    Moreover, the Court has consistently rejected as “without
    merit” challenges that the HAC aggravator is “overbroad, vague, and
    fail[s] to narrow the class of persons eligible for the death penalty.”
    Card v. State, 
    803 So. 2d 613
    , 628 (Fla. 2001); see also Cruz v.
    State, 
    320 So. 3d 695
    , 731 (Fla. 2021) (“declin[ing] to revisit”
    precedent “rejecting as meritless the argument that the jury
    instruction on HAC is unconstitutionally vague”) (citing Gilliam v.
    - 24 -
    State, 
    582 So. 2d 610
    , 612 (Fla. 1991)); Colley v. State, 
    310 So. 3d 2
    , 16 (Fla. 2020) (“declin[ing] to revisit” precedent rejecting the
    argument that “the HAC aggravator [is] unconstitutionally vague
    and overbroad”) (citing Victorino v. State, 
    23 So. 3d 87
    , 104 (Fla.
    2009)).
    Dillbeck is not entitled to habeas relief on this claim.
    (3) Effecting-Escape Aggravator
    In his third and last habeas claim, Dillbeck argues that the
    effecting-escape aggravator is invalid because the evidence is
    insufficient to prove that his primary motive in killing Vann was
    elimination of a witness to avoid detection. He also argues that
    manifest injustice would result if the Court does not overturn its
    prior decision holding this claim is procedurally barred.
    On direct appeal, Dillbeck unsuccessfully challenged the
    escape aggravator, see Dillbeck, 
    643 So. 2d at 1031
    , but he did not
    raise the motive-based argument at issue here. Rather, Dillbeck
    raised his motive-based challenge for the first time in his first
    successive postconviction motion, and we held it is “procedurally
    barred.” Dillbeck, 
    168 So. 3d 224
    , at *1.
    - 25 -
    We reject Dillbeck’s argument that enforcing the procedural
    bar would result in “manifest injustice.” State v. Akins, 
    69 So. 3d 261
    , 268 (Fla. 2011) (quoting Muehleman v. State, 
    3 So. 3d 1149
    ,
    1165 (Fla. 2009)). Even if Dillbeck had timely raised his motive-
    based challenge to the escape aggravator, and even if he had
    succeeded in having the aggravator stricken, any error would be
    harmless beyond a reasonable doubt in light of the four other
    aggravators in his case, which include the HAC and prior violent
    felony aggravators that “are among the most serious aggravators.”
    Buzia v. State, 
    82 So. 3d 784
    , 800 (Fla. 2011); see also Aguirre-
    Jarquin v. State, 
    9 So. 3d 593
    , 608 (Fla. 2009) (“Even if the witness
    elimination aggravator were stricken, there would still be a nine-to-
    three jury recommendation for the death penalty along with several
    other aggravators, including heinous, atrocious, or cruel (HAC)
    [and] prior violent felony[.]”), receded from on other grounds by
    Hooks v. State, 
    286 So. 3d 163
    , 170 (Fla. 2019).
    We deny habeas relief as to this claim.
    IV. CONCLUSION
    For the above reasons, we affirm the circuit court’s summary
    denial of Dillbeck’s fourth successive postconviction motion. We
    - 26 -
    also deny Dillbeck’s habeas petition and his pending motions for
    stay of execution and oral argument.
    No rehearing will be entertained by this Court, and the
    mandate shall issue immediately.
    It is so ordered.
    MUÑIZ, C.J., and CANADY, POLSTON, COURIEL, GROSSHANS,
    and FRANCIS, JJ., concur.
    LABARGA, J., concurs in result with an opinion.
    LABARGA, J., concurring in result.
    In State v. Poole, 
    297 So. 3d 487
     (Fla. 2020) (receding in part
    from this Court’s decision in Hurst v. State, 
    202 So. 3d 40
     (Fla.
    2016)), I strongly dissented on the issue of unanimity in jury
    recommendations of death, and I adhere to my dissent today.
    However, even before this Court’s decision in Poole, including
    in Dillbeck v. State, 
    234 So. 3d 558
    , 559 (Fla. 2018), this Court
    consistently held that the Hurst unanimity requirement did not
    apply retroactively to sentences of death that became final before
    the United States Supreme Court’s decision in Ring v. Arizona, 
    536 U.S. 584
     (2002). See, e.g., Hitchcock v. State, 
    226 So. 3d 216
    , 217
    (Fla. 2017); Lambrix v. State, 
    227 So. 3d 112
    , 113 (Fla. 2017).
    Consequently, I concur in the result.
    - 27 -
    An Appeal from the Circuit Court in and for Leon County,
    Angela C. Dempsey, Judge
    Case No. 371990CF002795AXXXXX
    And an Original Proceeding – Habeas Corpus
    Linda McDermott, Chief, Capital Habeas Unit, Office of the Federal
    Public Defender, Northern District of Florida, Tallahassee, Florida;
    and Baya Harrison of Baya M. Harrison, P.A., Monticello, Florida,
    for Appellant/Petitioner
    Ashley Moody, Attorney General, Charmaine M. Millsaps, Senior
    Assistant Attorney General, and Jason W. Rodriguez, Assistant
    Attorney General, Tallahassee, Florida,
    for Appellee/Respondent
    - 28 -