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

Supreme Court of Florida
____________
No. SC23-190
____________
DONALD DAVID DILLBECK,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC23-220
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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.
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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 at1028 n.2.
On direct appeal, we affirmed Dillbeck’s convictions and
sentences, id. at 1031, which became final when the United States
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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
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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.
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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
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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).
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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.
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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
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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).
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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
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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).
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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.
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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.
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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.
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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
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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
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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.
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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,
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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).
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“[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
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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.
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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.
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(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.
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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.
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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
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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.
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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
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