ANTHONY FLOYD WAINWRIGHT v. STATE OF FLORIDA (2017)

Anthony Wainwright, a prisoner under sentence of death, appeals the circuit court's order summarily denying his sixth successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

We previously affirmed Wainwright's convictions and sentence of death on direct appeal. Wainwright v. State, 704 So. 2d 511 (Fla. 1997). We upheld the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Wainwright v. State, 896 So. 2d 695 (Fla. 2004). We also upheld the denial of his first and second successive motions for postconviction relief. Wainwright v. State, 2 So. 3d 948 (Fla. 2008); Wainwright v. State, 43 So. 3d 45 (Fla. 2010) (table). On our own motion, we dismissed Wainwright's third successive motion for postconviction relief seeking review of a nonfinal order. Wainwright v. State, 77 So. 3d 648 (Fla. 2011) (table). Wainwright did not appeal the subsequent denial of his third, fourth, or fifth successive motions for postconviction relief to this Court. Wainwright filed his current sixth successive postconviction motion on April 6, 2015. The circuit court summarily denied the motion as untimely and procedurally barred in two orders dated June 2, 2015, and September 22, 2015. This appeal follows.

In his first claim on appeal, Wainwright asserts that the circuit court erred in summarily denying his claim that pretrial counsel, Victor Africano, misadvised him that the plea agreement required him to pass a polygraph test proving that he did not rape and kill the victim, which allegedly caused him to reject the plea agreement. We find no error in the summary denial of this claim. The claim is procedurally barred because it does not meet any of the three exceptions that would permit judicial review of this untimely claim under Florida Rule of Criminal Procedure 3.851(d)(2). The claim is also procedurally barred as the law of the case because Wainwright raised this claim in his initial postconviction motion and this Court resolved the claim on appeal. Wainwright, 896 So. 2d at 700-02. Although this Court affirmed on appeal the trial court's erroneous factual finding that the plea agreement required Wainwright to pass a polygraph test proving that he did not rape and kill the victim when the agreement only required him to prove that he did not kill the victim, we conclude that reliance on our previous decision will not result in manifest injustice. See State v. Owen, 696 So. 2d 715, 720 (Fla. 1997). The record from the hearing held on January 23, 2002, conclusively shows that Wainwright refused to take the polygraph test solely because the plea agreement was not reduced to writing. Notwithstanding Wainwright's alleged understanding that the plea agreement required him to prove that he did not rape the victim, Wainwright testified at the hearing that he would have still taken the polygraph test if there had been a written plea agreement. Moreover, Wainwright waited approximately thirteen years after the 2002 hearing where he allegedly became aware that pretrial counsel misadvised him of the terms of his plea agreement to raise this claim. No manifest injustice is present under such facts. We also conclude that Wainwright has failed to demonstrate that Africano rendered ineffective assistance. There was no deficient performance of counsel because Wainwright's testimony regarding Africano's erroneous communication of the terms of the plea agreement lacks credibility. Wainwright, 896 So. 2d at 701. But even assuming that Africano erroneously communicated the terms of the plea agreement to Wainwright, Wainwright has failed to demonstrate prejudice because the record reflects that he refused to take the polygraph test solely because the plea agreement was not reduced to writing. In addition, Wainwright's argument assumes that he would have passed the polygraph test, a contention which the evidence at trial rebuts.

In his second claim on appeal, Wainwright asserts that the circuit court erred in summarily denying his claim that he was deprived of a fair trial when the trial court permitted the State to introduce DNA evidence that was not disclosed to the defense until after opening statements. We find no error in the summary denial of this claim. The claim is procedurally barred because it does not meet any of the three exceptions that would permit judicial review of this untimely claim under rule 3.851(d)(2). The claim is also procedurally barred as the law of the case because Wainwright raised this claim on direct appeal and this Court resolved the claim on appeal. Wainwright, 704 So. 2d at 514-15. Regardless, we conclude that Wainwright was not deprived of his right to a fair trial because the defense “was on notice that the State was proceeding in the DNA testings.” Id. at 514. Moreover, no evidence within the record indicates that the State deliberately withheld the evidence, committed some other discovery violation, or induced the defense to announce a strategy that it was already prepared to refute.

In his third claim on appeal, Wainwright asserts that the circuit court erred in summarily denying his claim that the imposition of the death penalty violated his Sixth Amendment right to trial by jury. We find no error in the summary denial of this claim. See Asay v. State, Nos. SC16-223, SC16-102, & SC16-628, 2016 WL 7406538 (Fla. Dec. 22, 2016).

In his fourth claim on appeal, Wainwright asserts that the circuit court erred in summarily denying his claim that he was denied a fair trial by an impartial jury when a juror with pending criminal charges was permitted to serve until the tenth day of trial. We find no error in the summary denial of this claim. The claim is procedurally barred because it does not meet any of the three exceptions that would permit judicial review of this untimely claim under rule 3.851(d)(2). The claim is also procedurally barred because Wainwright could have raised this claim on direct appeal, but failed to do so. See Marshall v. State, 854 So. 2d 1235, 1248 (Fla. 2003). Regardless, we conclude that Wainwright was not denied a fair trial by an impartial jury because he has failed to demonstrate that a member of the jury who adjudicated his guilt was actually biased. See Lebron v. State, 135 So. 3d 1040, 1058 (Fla. 2014); Carratelli v. State, 961 So. 2d 312, 323-24 (Fla. 2007).

For these reasons, we affirm the circuit court's order denying Wainwright's sixth successive motion for postconviction relief.

It is so ordered.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

A True Copy Test:

John A. Tomasino Clerk, Supreme Court

tw Served:

BAYA HARRISON III

CARINE L. EMPLIT

W. GREG GODWIN, CLERK, CLERK

HON. DAVID WILLIAM FINA, JUDGE

JOHN N. WEED

LABARGA, C.J., and, LEWIS, QUINCE, and POLSTON, JJ., concur., and PERRY, Senior Justice, concur. PARIENTE AND CANADY, JJ., concur in result.