TONEY DERON DAVIS v. STATE OF FLORIDA (2017)

Toney Deron Davis, a prisoner under sentence of death, appeals the circuit court's order summarily denying his first 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 Davis's convictions and sentence of death on direct appeal. Davis v. State, 703 So. 2d 1055 (Fla. 1997). We upheld the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Davis v. State, 136 So. 3d 1169 (Fla. 2014). Davis filed his current first successive postconviction motion on October 8, 2014. On July 2, 2015, the circuit court entered an order summarily denying Davis's successive postconviction claims. This appeal followed. While Davis's postconviction case was pending in this Court, the United States Supreme Court issued its opinion in Hurst v. Florida, 136 S. Ct. 616 (2016). Davis filed a motion requesting leave to address the impact of Hurst v. Florida in the briefs in this appeal, which this Court granted.

In his first claim on appeal, Davis asserts that the circuit court erred in summarily denying his guilt phase claim that newly discovered evidence related to the study of Shaken Baby Syndrome/Abusive Head Trauma undermines the State's trial theory that Davis murdered the victim by beating her unconscious and, instead, supports his own theory that the victim's fatal injuries resulted from an accidental fall or prior abuse. 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). Regardless, we conclude that the articles and affidavits submitted by Davis in support of his newly discovered evidence claim do not constitute newly discovered evidence. See, e.g., Howell v. State, 145 So. 3d 774, 775 (Fla. 2013); Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007). We also conclude that Davis has failed to demonstrate that the alleged newly discovered evidence is of such nature that it would probably produce an acquittal on retrial. The State presented ample evidence at trial that Davis committed each of the acts charged, and there is no reasonable possibility that the jury would have acquitted Davis of first-degree felony murder based on the alleged newly discovered evidence.

In his second claim on appeal, Davis asserts that the circuit court erred in summarily denying his claim that trial counsel was ineffective for failing to investigate and present newly discovered mitigation evidence at the penalty phase. 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 it could have been raised during the initial postconviction proceeding. See Everett v. State, 54 So. 3d 464, 488 (Fla. 2010). Regardless, we conclude that Davis's ineffective assistance of counsel claim is legally insufficient because it fails to allege specific facts establishing deficient performance. See Jones v. State, 998 So. 2d 573, 587 (Fla. 2008). We also conclude that Davis is unable to show prejudice because there is no reasonable probability that the result would have been different had Davis presented the alleged newly discovered mitigation evidence, and the mitigation evidence presented in the initial postconviction proceeding, at the penalty phase.

In his third claim on appeal, Davis asserts that he is entitled to the retroactive application of Hurst v. Florida. We deny this claim. See Asay v. State, 41 Fla. L. Weekly S646, 2016 WL 7406538 (Fla. Dec. 22, 2016).

For these reasons, we affirm the circuit court's order summarily denying Davis's first successive motion for postconviction relief and deny Davis's Hurst v. Florida claim.

It is so ordered.

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

PARIENTE, J., concurring in result.

I concur in result because I am bound by this Court's precedent from Asay v. State, 41 Fla. L. Weekly S646 (Fla. Dec. 22, 2016), which is now final. However, as I explained in my concurring in part and dissenting in part opinion in Asay, I would not deny retroactive application of Hurst to the defendant.

A True Copy

Test:

John A. Tomasino Clerk, Supreme Court

cd

Served:

RICHARD ADAM SICHTA

JOSEPH STEWART HAMRICK

HON. RONNIE FUSSELL, CLERK

HON. HENRY ELISHA DAVIS, JUDGE

HON. MARK HARRISON MAHON, CHIEF JUDGE

SUSANNE K. SICHTA

MEREDITH CHARBULA

JENNIFER L. KEEGAN

LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion. CANADY, J., concurs in result.