SC13-136 – Paul Augustus Howell v. State of Florida

SUPREME COURT CASES

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State: Florida

Court: Supreme Court

Docket No: sc13-136

Case Date: 02/19/2013

Plaintiff: SC13-136 – Paul Augustus Howell

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC13-136
PAUL AUGUSTUS HOWELL,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[February 19, 2013]
PER CURIAM.
Paul Augustus Howell, a prisoner under sentence and active warrant of
death, appeals the trial court’s order summarily denying his successive motion for
postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851.1
Howell was convicted and sentenced to death when the bomb he constructed, with
the specific purpose of killing a witness, instead detonated and killed a Florida
Highway Patrol Trooper.   This Court upheld Howell’s convictions and death
sentence on direct appeal in 1998, Howell v. State, 707 So. 2d 674, 683 (Fla.
1.   We have jurisdiction.   See art. V, § 3(b)(1), Fla. Const.

1998), and affirmed the trial court’s denial of postconviction relief in 2004.
Howell v. State, 877 So. 2d 697, 705 (Fla. 2004).
After the Governor signed a death warrant on January 18, 2013, and the
execution was set for February 26, 2013, this Court entered a scheduling order
providing a deadline by which Howell could file any successive motions for
postconviction relief in the trial court.   The trial court summarily denied Howell’s
amended successive motion for postconviction relief by order dated February 4,
2013.   Howell appeals that summary denial, raising three claims: (1) the trial court
erred in denying his motion to remove appointed registry counsel due to a conflict
of interest; (2) the trial court erred in denying his motions to appoint experts and
investigators; and (3) Florida’s capital sentencing scheme is unconstitutional
specifically with respect to lethal injection.   In addition, Howell filed an
application for stay of execution.
We have carefully reviewed the claims raised, as well as the prior history of
this case, and for the reasons more fully set forth in this opinion, we affirm the trial
court’s order denying postconviction relief and deny the motion for stay.
PROCEDURAL HISTORY
The facts of this case are set forth in Howell’s direct appeal of his conviction
and death sentence:
In January of 1992, Howell constructed a bomb for the specific
purpose of killing Tammie Bailey at her home in Marianna, Florida.
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Bailey, Howell, and Howell’s brother, Patrick, were part of a drug
ring involving a number of other individuals in which drugs were
obtained in Fort Lauderdale and then sold in Marianna, Florida.
Howell intended to eliminate Bailey as a witness because she had
knowledge that could link Howell and his brother to a prior murder.
The bomb was placed inside a microwave oven and then the oven was
gift-wrapped.   Howell paid Lester Watson to drive and deliver the
microwave to Bailey.   Although he knew that Howell had often made
pipe bombs, Watson testified that he thought the microwave contained
drugs.   Howell rented a car for Watson to use for the trip.   Watson
was accompanied on the trip by Curtis Williams.
While traveling on I-10 toward Marianna, Watson was stopped
by Trooper Jimmy Fulford for speeding.   Fulford ran a registration
check on the car and a license check on Watson, who gave the trooper
a false name and birth date because he did not have a valid driver’s
license.   The radio dispatcher contacted the car rental company and
was informed that Howell had rented the car.   The dispatcher
contacted Howell at his home in Fort Lauderdale, Florida, to
determine whether the rental car had been stolen from him.   Howell
told the dispatcher that he had loaned the car to Watson but did not
know that Watson would be traveling so far with the vehicle.   Howell
was informed by the dispatcher that Watson was going to be taken to
the Jefferson County Jail.   Howell did not give any warning to the
dispatcher regarding the bomb.
Deputies Harrell and Blount of the Jefferson County Sheriff’s
Department arrived at the scene and Watson gave them permission to
search the vehicle.   Trooper Fulford and the deputies observed the
gift-wrapped microwave in the trunk of the car.   Watson was arrested
for speeding and driving without a valid driver’s license and was
transported, along with Williams, to the jail by Deputy Blount.
Deputy Harrell also proceeded to the jail, leaving Trooper Fulford
alone with the rental car.   Shortly thereafter, a massive explosion took
place at the scene.   Testimony presented at Howell’s trial by the
State’s explosives expert indicated that Trooper Fulford had been
holding the microwave in his hands when the bomb went off.   Trooper
Fulford died instantly due to the massive trauma caused by the
explosion.
The jury found Howell guilty of first-degree murder and of
making, possessing, placing, or discharging a destructive device or
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bomb.   The jury also returned a special verdict finding that the charge
of first-degree murder was established by both proof of premeditated
design and felony murder.   At the penalty phase, the jury
recommended death by a vote of ten to two.   The trial court found that
the following aggravators applied to the murder: (1) Howell
knowingly created a great risk of death to many persons; (2) the
murder was committed while Howell was engaged in the unlawful
making, possessing, placing, or discharging of a destructive device or
bomb; (3) the murder was committed for the purpose of avoiding or
preventing a lawful arrest; (4) the victim was a law enforcement
officer engaged in the performance of his official duties; and (5) the
murder was committed in a cold, calculated, and premeditated manner
without any pretense of moral or legal justification (CCP).   The trial
court also found that the following statutory and nonstatutory
mitigators applied: (1) Howell had no significant history of prior
criminal activity; (2) the murder was committed while Howell was
under the influence of extreme mental or emotional disturbance (given
little weight); (3) Howell had served in the military and received an
honorable discharge (given little weight); (4) Howell displayed good
behavior as a pretrial detainee; and (5) Howell was a good family man
(deemed inconsequential).   The trial court found that the enormity of
the proved aggravating circumstances far outweighed the mitigating
circumstances and imposed the death penalty in conformance with the
jury’s recommendation that Howell be sentenced to death.   The trial
court declined to impose a sentence on Howell’s conviction for
constructing the bomb because this charge and the murder charge both
arose from a single underlying offense.
Howell, 707 So. 2d at 676-77.
On direct appeal to this Court, Howell, represented by attorney Robert A.
Norgard, raised nine issues, which we rejected.2                                     In his only guilt-phase claim,
2.   The issues raised were: (1) whether the trial court erred in refusing to
appoint different defense counsel and refusing to appoint a second attorney; (2)
whether the trial court erred in finding that Howell had knowingly created a great
risk to many persons; (3) whether the trial court erred in finding that the murder
was committed to avoid or prevent arrest; (4) whether the trial court erred in
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Howell challenged the trial court’s refusal to appoint different defense counsel for
him and its refusal to appoint a second attorney.   Specifically as to the trial court’s
refusal to appoint different defense counsel, the State had filed a motion to
disqualify defense counsel Frank Sheffield from the state court proceedings, stating
that Howell had similar charges pending in both state court and federal court and
Sheffield had been removed as defense counsel in the federal proceedings and was
replaced by attorney William Pfeiffer.   Id. at 677.   The trial judge held a hearing
and found that Sheffield requested to be removed as counsel in the federal
proceedings because Sheffield’s wife received a threat directed to Sheffield that if
“Howell goes down, Mr. Sheffield is going down too.”   Id. at 678.   However, at the
hearing, Sheffield stated that he was still willing to continue as Howell’s counsel in
the state proceedings and had conducted “tons and tons” of discovery.   Id. at 677.
In addition, he had significant experience in handling capital cases.   Id.
The trial court denied the State’s motion to disqualify, finding that Sheffield
was not removed in the federal proceedings based on a lack of diligence, there was
finding the murder was cold, calculated, and premeditated (CCP); (5) whether the
trial court erred in finding that the victim was a law enforcement officer engaged in
the performance of his official duties because the evidence did not establish that
Howell knowingly killed a law enforcement officer; (6) whether the death sentence
was disproportionate; (7) whether the trial court erred in failing to give special
requested penalty phase instructions; (8) whether the trial court erred in weighing
the mitigating circumstances against the aggravating circumstances; and (9)
whether the felony-murder aggravator is unconstitutional.   Id. at 677-82.   The
Court rejected the last three challenges without discussion.   Id. at 682 n.1.
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no basis to question Sheffield’s performance in the state proceedings, and Pfeiffer
did not have any experience handling a capital case.   Id. at 677-78.   The State filed
a motion for rehearing and attached the transcripts from the federal proceedings,
asserting that the transcripts supported a possible conflict between Sheffield and
Howell based on the threat Sheffield’s wife received.   Id. at 678.   Specifically,
although the threat to Sheffield was investigated, it could not be substantiated
through telephone records, leading to the possibility that Sheffield’s wife may have
falsified the threat.   Id.   When the trial court attempted to inquire from Howell as
to whether there was any conflict or problem between Sheffield and Howell,
Howell replied, “the [c]ourt can determine it.”   Id. at 679.
On review, this Court first determined that there was no abuse of discretion
in not disqualifying Sheffield from representation:
It is evident that any apprehension that Sheffield had concerning the
bomb threat which had allegedly occurred some nine months before
had dissipated.   When Howell was asked concerning his position on
the matter, he deferred to the court’s judgment.   From this record, we
cannot say that the court abused its discretion in not disqualifying
Sheffield from representing defendant.   The State had made the
motion out of an abundance of caution, and at no time during the
hearing before Judge Steinmeyer did Howell ask that Sheffield be
removed as his attorney.
Id.
Further, as to Howell’s claim that he should have been provided with a
second attorney or been permitted to replace Sheffield as his attorney based on
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complaints about Sheffield’s representation, the Court noted that when a defendant
complains about the representation of counsel, the judge must make a sufficient
inquiry into the complaint, but recognized that this inquiry “can only be as specific
as the defendant’s complaint.”   Id. at 680.  The Court concluded that the trial court
made an adequate inquiry into Howell’s complaints of ineffectiveness, properly
determined them to be without merit, and did not abuse its discretion in denying
the State’s motion to disqualify.   Id.   In addition, as to Howell’s motion to have a
second attorney appointed, the Court held that the trial court did not abuse its
discretion in denying that motion.   Id.
Howell next challenged on direct appeal whether the trial court properly
found numerous aggravators.   Howell first alleged that the trial court erred in
finding that Howell had knowingly created a great risk to many persons because
Trooper Fulford was alone when the bomb exploded.   Id.   This Court rejected that
challenge:
As pointed out by the trial court, if the bomb Howell constructed had
reached its intended destination, Tammie Bailey, Bailey’s child,
Lester Watson, Yolanda McAllister, and the mother and two children
residing in the adjoining apartment would have been potentially at risk
of death.   Furthermore, even though the victim Howell originally
targeted was not killed, this case involved a sophisticated and lethal
bomb of great magnitude transported on major interstate highways all
the way from Fort Lauderdale to Marianna, Florida.   That fortuitously
only one person was killed does not change the fact that Howell knew
that the bomb he constructed and caused to be transported through the
length and breadth of Florida had the capacity to kill a “great number
of people” as we have previously defined that term.   Based on the
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expert testimony presented regarding the violence of the explosion
and the fire that it caused, there was a likelihood or high probability
that the occupants of any vehicles driving on I-10 in the near vicinity
at the time of the explosion were at risk of death.
Id. at 681.   Thus, this Court held that the trial court did not err in finding that the
defendant knowingly created an immediate and present risk of death to many
persons.   Id.
Next, Howell asserted that the trial court erred in finding that the murder
was committed to avoid or prevent arrest.   This Court detailed the evidence
presented at trial that established the intended victim, Bailey, was involved in the
cover-up of another murder and that Howell had asked a person to transport a
package to “some girls” who had “snitched” on his brother, indicating with
gestures that the package contained a bomb.   Id.   The Court then found that the
concept of “transferred intent” was applicable to apply the avoid arrest aggravator
to Trooper Fulford.   Id. at 682.
Howell also challenged CCP, asserting that he had no intent to kill Trooper
Fulford and that transferred intent should not apply to the CCP aggravator.   This
Court disagreed, holding that the heightened premeditation necessary for CCP does
not have to be directed at the specific victim and this Court reviews the level of
planning, not the success of the plan.   Id.   Moreover, here, Howell was informed
that law enforcement officers took custody of the car with the bomb, and Howell
chose not to warn them of the existence of the bomb.   Id.
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Along similar grounds, Howell asserted that the trial court erred in finding
the aggravator that the victim was a law enforcement officer engaged in the
performance of his official duties because Howell did not intend to kill an officer.
The Court rejected this claim, noting again that while Howell had been informed
that law enforcement officers had custody of the car, he did not warn them about
the bomb and could have reasonably foreseen that an officer may search the car
and detonate the bomb.   Id.
Finally, Howell asserted that the death sentence was disproportionate,
relying primarily on the fact that Lester Watson and Patrick Howell (his
codefendants) did not receive death sentences.   This Court held that disparate
treatment is permissible where one defendant is more culpable and that the
evidence supported that Howell had greater culpability.   Id. at 682-83.   Thus, this
Court affirmed his convictions and sentence of death.   Id. at 683.   Howell
subsequently filed a petition for writ of certiorari in the United States Supreme
Court, which was denied.   Howell v. Florida, 524 U.S. 958 (1998).
Howell’s initial postconviction registry counsel, Danielle Jorden, was
appointed by the trial court.   After seeking an extension of time to file the
postconviction motion from the Florida Supreme Court on March 19, 1999, Jorden
filed the state postconviction motion on August 30, 1999, and subsequently was
allowed to withdraw from representation.   Clyde Taylor, Jr., was appointed as
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registry counsel on March 2, 2000, to represent Howell and filed an amended
motion that raised eighteen claims, but later conceded several were moot and
would be withdrawn.3                                                                      After conducting an evidentiary hearing, the postconviction
court subsequently denied the motion for postconviction relief.
Howell appealed the denial of relief, raising only two claims: “(1) whether
trial counsel was ineffective in both the guilt and penalty phases in failing to assert
that the trooper’s violation of FHP procedures in opening the package containing
the bomb constituted an intervening cause, and (2) whether Florida’s death penalty
is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v.
3.   Howell’s postconviction motion raised the following claims: (1) certain
agencies withheld access to records; (2) Sheffield had a conflict of interest that
impaired his ability to adequately represent Howell; (3) trial counsel was
ineffective; (4) section 119.19, Florida Statutes (1999), was unconstitutional; (5)
Rule 3.850’s one-year time limit was unconstitutional; (6) Howell was innocent of
the death penalty; (7) the jury was erroneously instructed as to the weight accorded
to an expert’s testimony; (8) the jury was given inadequate instructions on
aggravating circumstances; (9) the trial court failed to find and consider mitigating
circumstances that were established by the record; (10) Howell was denied
effective assistance of counsel because counsel cannot conduct post-verdict
interviews with jurors; (11) Howell’s convictions were materially unreliable based
upon the cumulative effect of ineffectiveness; (12) Howell’s convictions were
materially unreliable as established by newly discovered evidence; (13) the State
withheld evidence; (14) Howell was denied his rights to mental health experts at
the guilt and penalty phases; (15) execution by electrocution is cruel and unusual
punishment; (16) Florida’s capital sentencing scheme is unconstitutional on its face
and as applied; (17) Florida’s capital sentencing scheme is unconstitutional in light
of Ring v. Arizona, 536 U.S. 584 (2002); and (18) counsel was ineffective in
failing to urge a nonstatutory mitigator that Trooper Fulford was responsible for
his own death.
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New Jersey, 530 U.S. 466 (2000).”   Howell, 877 So. 2d at 700.   Specifically,
Howell asserted that counsel was ineffective for failing to argue that Trooper
Fulford contributed to his own demise when he opened the package because this
was a violation of a Florida Highway Patrol policy statement that directed officers
not to open items that were securely wrapped—a claim that could have supported
both a defense of intervening cause during the guilt phase and supported
nonstatutory mitigation during the penalty phase.   Id. at 702.   However, evidence
from the evidentiary hearing demonstrated that trial counsel had considered this
defense and concluded that it was not viable and, as a strategic matter, would have
only inflamed the jury.   Id. at 702-03.
This Court rejected Howell’s ineffectiveness claim, agreeing with the trial
court that the defense was not viable because death was clearly a foreseeable result
of placing a bomb in a microwave and setting it to explode when the microwave
door was opened, as “it was almost certain that Howell’s actions would result in
the death of someone, if not his intended victim.”   Id. at 703.   As to the portion of
the claim involving the guilt phase, this Court concluded “the low probability of
success, combined with the tremendous potential for alienating the jury by blaming
the trooper for his own death, fully justifies trial counsel’s strategic decision to
forego presentation of the alleged policy violation during the guilt phase as being
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well within the wide range of reasonable professional assistance.”   Id. at 703-04
(footnote omitted).
This Court made a similar holding as to whether counsel was ineffective in
failing to use the alleged policy violation in support of a nonstatutory mitigator,
concluding that “counsel made a reasonable strategic decision that introducing the
evidence of the policy violation would have alienated the jury without contributing
substantially to mitigation.”   Id. at 704.
The Court also rejected the Ring claim, relying on prior precedent denying
the claim and based on the fact that in this case, the trial court “found that the
murder was committed in the course of the felony of making, possessing, placing,
or discharging a bomb, and the jury also unanimously found Howell guilty of this
separate felony beyond a reasonable doubt.”   Id. at 705.   Accordingly, this Court
affirmed the postconviction court’s denial of relief.   Id.   This Court denied
rehearing on June 25, 2004.
Howell filed a petition for writ of habeas corpus in the federal trial court,
raising three arguments that this Court had previously rejected: (1) trial counsel
was ineffective for not presenting the contributory negligence of the victim as a
defense in the guilt phase and as nonstatutory mitigation in the penalty phase; (2)
Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584 (2002); and
(3) Howell was denied the effective assistance of trial counsel when the trial court
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denied the motion to remove counsel based on a conflict of interest after trial
counsel’s wife received a threat.   The federal trial court dismissed the petition as
untimely.   Howell, through appointed registry counsel, Clyde Taylor, Jr., and Baya
Harrison, III, filed an appeal to the Eleventh Circuit Court of Appeals, arguing that
he was entitled to equitable tolling under 28 U.S.C. § 2244(d)(2), because the
private attorney appointed to represent Howell during his state postconviction
proceedings failed to file a petition for federal habeas relief within the time limit.
Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir. 2005).   The Eleventh Circuit
affirmed the dismissal, holding that in order to rely on equitable tolling, Howell
was required to show “extraordinary circumstances that are both beyond his
control and unavoidable even with diligence”—a standard that he did not meet.   Id.
at 1251-52.   Specifically, the Eleventh Circuit concluded that “Howell was not a
victim of extraordinary circumstances beyond his control, and the district court did
not commit clear error when it determined that Howell was not diligent.”   Id. at
1252.
In addition to these proceedings involving Howell’s death sentence imposed
in state court, Howell and numerous other codefendants were charged and
convicted in federal proceedings based on the activities of an active drug ring
engaged in obtaining drugs in Fort Lauderdale and then selling them in Marianna.
Howell or members of this drug ring were also suspected of committing another
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murder.   See United States v. Mothersill, 87 F.3d 1214, 1217 (11th Cir. 1996)
(detailing the facts of the “elaborate drug operation” involved in the federal drug
conspiracy and racketeering prosecution and detailing facts of the prior murder).
ANALYSIS
Florida Rule of Criminal Procedure 3.851 provides the pleading
requirements that govern Howell’s successive postconviction motion.   Fla. R.
Crim. P. 3.851(e)(2)(a).   In particular, a motion for postconviction relief must state
the nature of the relief the defendant seeks, Fla. R. Crim. P. 3.851(e)(1)(C), and
must include “a detailed allegation of the factual basis for any claim for which an
evidentiary hearing is sought.”   Fla. R. Crim. P. 3.851(e)(1)(D).
In his appeal to this Court, Howell argues as follows: (1) the trial court erred
by denying Howell’s motion to remove appointed registry counsel due to a conflict
of interest; (2) the trial court erred by denying Howell’s motion to appoint a
mitigation specialist and fact investigator and his motion to appoint a
neuropsychologist and forensic psychologist; and (3) the trial court erred in
denying his postconviction claim that Florida’s capital sentencing scheme is
unconstitutional.   In addition, Howell has also filed an application for stay of
execution.   We address each claim below.
Motion to Remove Appointed Registry Counsel
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Howell first claims that the trial court erred in denying a motion to remove
appointed registry counsel because registry counsel Taylor had a “conflict of
interest” in continuing to represent Howell.   Specifically, the record shows that
another attorney, Jorden, initially represented Howell during the postconviction
proceedings, but requested to withdraw from representation after missing the
deadline in which to file a federal petition for writ of habeas corpus under 28
U.S.C. § 2254.4                                                                           The trial judge granted Jorden’s request to withdraw and then
appointed Taylor to represent Howell during the initial postconviction proceedings.
Taylor has continued to serve as registry counsel for Howell and still represents
Howell in these proceedings.
After the Governor signed the death warrant for Howell, the trial court held
an initial case management hearing, at which point Taylor informed the court that
he may have a conflict of interest and requested more time in which to determine
whether a conflict existed.   Although the federal deadline was missed before
Taylor was appointed to represent Howell, Taylor informed the court that because
he shared office space with the former counsel who missed the federal deadline, he
4.   In an affidavit accompanying Howell’s motion to stay filed in this Court,
Jorden asserted that it was her “understanding that by filing a motion for extension
of time to file” the state postconviction motion, the federal “statute of limitations
would be tolled.”   Jorden stated that she filed a motion for extension in state court,
which was granted, and “therefore delayed filing the [federal] motion until after the
one-year” deadline.
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was uncertain whether he might have had any knowledge of those circumstances
and therefore expressed concern about whether he should continue to represent
Howell.   Taylor never moved to withdraw, but at the State’s suggestion, the trial
court appointed Harrison, who had formerly assisted Taylor in the postconviction
proceedings, as co-counsel to assist in representing Howell.   Registry counsel then
filed a successive motion for postconviction relief.
On January 30, 2013, Michael Ufferman and Sonya Rudenstine (retained
counsel) filed a notice of appearance, informing the court that they had been
privately retained to represent Howell.   In addition, retained counsel filed a motion
to substitute themselves as counsel for Howell.   At a hearing the next day, the trial
court accepted their notice of appearance, considering Ufferman and Rudenstine
counsel of record.   However, the court denied the motion for substitution of
counsel.   Retained counsel Ufferman and Rudenstine subsequently filed a motion
to remove appointed registry counsel Taylor and Harrison based on the conflict of
interest, asserting that Taylor shared office space with the postconviction attorney
who missed the federal deadline and that retained counsel had concerns that
registry counsel may not be rendering effective assistance of counsel.   In addition,
retained counsel asserted that they may raise claims pursuant to Martinez v. Ryan,
132 S. Ct. 1309 (2012), which would involve whether postconviction counsel
failed to raise certain claims during the initial-review collateral proceedings, and
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appointed registry counsel would not be able to advise Howell on such claims or
pursue those claims based on this conflict of interest.   Retained counsel also argued
that they may need to call Taylor as a witness regarding the missed federal
deadline.
The trial court subsequently denied the motion to remove appointed registry
counsel Taylor and Harrison, stressing that the issue before the court was not
whether retained counsel Ufferman and Rudenstine could appear as counsel of
record, but whether the court should require appointed registry counsel to
withdraw.   The trial court then reasoned that retained counsel read Martinez too
broadly and recognized that this Court has already determined that Martinez does
not provide a new cause of action in state court proceedings.   In denying the
motion, the trial court reasoned that retained counsel did not show good cause for
removal of appointed registry counsel and that registry counsel possessed
important familiarity with the facts, so Howell would be better served by having all
four attorneys working on the case, given the expedited schedule.   The trial court
recognized various practical concerns, including that retained counsel appeared at a
late stage in the litigation, an expedited schedule had been ordered, and appointed
registry counsel had “significant knowledge of this case.”
As this Court recognized in Weaver v. State, 894 So. 2d 178, 187 (Fla.
2004), “[a] court’s decision involving withdrawal or discharge of counsel is subject
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to review for abuse of discretion.”   On the other hand, when reviewing whether a
defendant’s counsel labored under a conflict, this Court applies a “mixed standard
of review, deferring to the lower court’s factual findings but reviewing its ultimate
legal conclusions de novo.”   See State v. Larzelere, 979 So. 2d 195, 208 (Fla.
2008).
Howell contends the trial court’s ruling was in error based on four reasons.
The State argues that as to two of the grounds for disqualifying appointed registry
counsel based on Taylor’s potential knowledge of the missed federal deadline,
those issues “will arise, if at all, in the future in federal court, as part of the federal
litigation.”   Further, the State contends that Howell is attempting to raise an
ineffective assistance of counsel claim in the guise of a “conflict of interest claim.”
Lastly, the State suggests that Howell is actually raising a “counsel of choice
claim, not a conflict of interest claim.”   We address each argument raised by
Howell.
First, Howell argues that he has chosen retained counsel to represent him,
and because he has a right to counsel of his choice, the trial court erred in denying
his motion to remove appointed registry counsel.   While the State contends that
there is no Sixth Amendment right to counsel of choice, we conclude that Howell
has not even demonstrated that he was denied his choice of counsel at all.   The
issue before the Court in this proceeding is not whether the trial court erred in
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denying retained counsel from representing Howell, but whether the trial court
erred in denying the motion to remove appointed registry counsel.
In reality, the trial court permitted Howell to exercise his choice of counsel
by recognizing Ufferman and Rudenstine as counsel of record in this case, and
since retained counsel filed their notice of appearance, they have filed motions,
conducted discovery, and even filed the current appellate briefs with this Court.
Howell fails to explain how he is being denied counsel of his choice in light of the
fact that his retained attorneys are actively pursuing his case but are simply limited
in their options because they were not retained until after the death warrant was
signed.
Second, Howell contends that the trial court erred in denying the motion to
remove appointed registry counsel because appointed registry counsel Taylor may
have to serve as a witness in upcoming federal habeas proceedings.   In support,
Howell cites to rule 4-3.7(a) of the Florida Rules of Professional Conduct.   Rule 4-
3.7(a), however, does not require a trial court to remove an attorney when that
attorney may be a potential witness in a different case in a different forum when
that litigation has not yet commenced.   We therefore conclude that the trial court
did not abuse its discretion in refusing to remove Taylor as registry counsel on that
basis because it is not within the scope of this Court’s review to address any claims
Howell may attempt to raise in the federal forum.
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Indeed, retained counsel’s arguments regarding the alleged “conflict of
interest” are primarily directed toward future federal proceedings and the
possibility of raising claims based on Martinez and Holland v. Florida, 130 S. Ct.
2549 (2010), in that forum.   Importantly, Howell has not specifically raised any
viable new allegation that appointed registry counsel failed to bring forth in the
state court proceedings due to any “conflict of interest.”
Third, Howell contends that the trial court erred in its ruling because in
Martinez, 132 S. Ct. at 1320, the United States Supreme Court recognized an
exception to the procedural bar rule that would have otherwise prevented an
ineffective assistance of trial counsel claim from being raised in a subsequent
proceeding where postconviction counsel failed to raise such a claim with the trial
court in the initial-review collateral proceedings.   Because appointed registry
counsel served as Howell’s counsel in his initial-review collateral proceedings,
retained counsel argue that appointed registry counsel have a conflict of interest
with respect to advising Howell of a potential Martinez claim.
However, Martinez addresses a very narrow issue: whether a federal court
reviewing a petition filed under 28 U.S.C. § 2254 can excuse the procedural
default that occurred during state proceedings where a defendant was denied his
right to effective assistance of trial counsel and has been unable to raise this claim
in the state proceedings because postconviction counsel rendered ineffective
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assistance in failing to raise the claim in the initial-review collateral proceedings.
Id.   As this Court has made clear, though, Martinez does not provide an
independent basis for relief in state court proceedings.
In Gore v. State, 91 So. 3d 769 (Fla.), cert. denied, 132 S. Ct. 1904 (2012),
this Court had the opportunity to review Martinez and its impact on state
proceedings and analyzed this claim as follows:
Gore asserts that the recent decision of the United States Supreme
Court in Martinez, 132 S. Ct. 1309, creates a new and independent
cause of action for ineffective assistance of collateral counsel in our
state courts system.   While the decision in Martinez                                    does contain
expansive language, a proper analysis reveals that the Supreme Court
specifically declined to address the issue of whether a constitutional
right to effective assistance of collateral counsel exists:
While petitioner frames the question in this case as a
constitutional one, a more narrow, but still dispositive,
formulation is whether a federal habeas court may excuse
a procedural default of an ineffective-assistance claim
when the claim was not properly presented in state court
due to an attorney’s errors in an initial-review collateral
proceeding.
Id. at 1313.   Even Justice Scalia in his dissent acknowledged that the
majority chose to evade this issue.   See id. at 1326 (Scalia, J.,
dissenting) (noting that the reframing of the issue “avoid[ed] the
Court’s need to confront the established rule that there is no right to
counsel in collateral proceedings”).   It appears that Martinez                          is
directed toward federal habeas proceedings and is designed and
intended to address issues that arise in that context.
Gore, 91 So. 3d at 777-78.   Accordingly, we have already rejected the claim that
Martinez can be used in state proceedings.
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Moreover, while Howell contends that appointed registry counsel have a
conflict of interest because they provided ineffective assistance of counsel, this
Court has repeatedly held that claims of ineffective assistance of postconviction
counsel are not cognizable.   See Gore v. State, 24 So. 3d 1, 16 (Fla. 2009); Kokal
v. State, 901 So. 2d 766, 777 (Fla. 2005); Foster v. State, 810 So. 2d 910, 917 (Fla.
2002); King v. State, 808 So. 2d 1237, 1245 (Fla. 2002); Waterhouse v. State, 792
So. 2d 1176, 1193 (Fla. 2001); Lambrix v. State, 698 So. 2d 247, 248 (Fla. 1996).
Further, as to the viability of any claims that may arise in federal court
proceedings, those claims have not yet been raised and are not before this Court.
With respect to whether Martinez provides an independent basis for removing
counsel in the state court proceedings, we conclude that under the circumstances of
this case there is no basis to remove appointed registry counsel.   In Martinez, 132
S. Ct. at 1315, the defendant had been unable to raise the denial of his right to
effective assistance of trial counsel until federal proceedings began, based on the
unique facts and circumstances of the state court proceedings in that case.   Here,
however, the federal habeas petition that Howell originally filed raised only claims
that were fully litigated in previous state court proceedings, and this Court has
found those claims to be without merit.   Thus, Howell’s registry counsel litigated
his claims in state court both on direct appeal and in postconviction proceedings,
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and counsel has therefore shown no legal basis for removing appointed registry
counsel from state court proceedings based on Martinez.
Fourth, Howell argues that the trial court erred in its ruling because
appointed registry counsel were insufficiently prepared to represent Howell in the
warrant proceedings.   However, as the trial court correctly recognized and we have
observed, the issue before this Court is not whether retained counsel Ufferman and
Rudenstine may join the case as counsel of record, but whether the trial court was
required to remove the appointed registry counsel.   In its written order denying the
motion to remove appointed registry counsel, the trial court noted that it was
required to make a finding of good cause to allow registry counsel to withdraw
under the registry statute, citing section 27.710(3), Florida Statutes (2012).
Critical to our analysis here, retained counsel have not specifically identified
any non-procedurally barred claim that they could have, but were unable to, raise
in the trial court and to this Court, based on appointed registry counsel’s alleged
inadequate representation in this proceeding.   Rather, the claim of retained counsel
appears to be that they have not had adequate time to review the record, including
the public records, to determine what additional claims could be raised.   In this
case, however, Howell is under an active death warrant, and we conclude that there
is no basis for the trial court to have removed the only counsel who were familiar
with this case.
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As to this last point, this Court emphasizes that if Howell was unhappy with
the representation of his registry counsel Taylor, he had from 2000 until the time
that the death warrant was signed to seek other counsel.   To the extent Howell
alleges that registry counsel should have raised issues relating to mitigation in the
postconviction proceedings, these claims are nothing more than a speculative
attempt to raise an assertion of ineffective assistance of postconviction counsel at
this late time.   If this Court were to allow the last minute substitution of counsel to
create a situation in which the entire case could be relitigated at the time the death
warrant was signed, as the State correctly points out, this could become a standard
delay tactic in any death warrant case.   While this Court has an obligation to ensure
that the death penalty is administered with integrity and within constitutional
boundaries, this Court will also not condone tactics that would delay a case where
all proceedings in this Court were completed in 2004.
Because Howell has not shown that appointed registry counsel have a
conflict of interest that would have required the removal of registry counsel in the
warrant proceedings or otherwise demonstrated that the trial court abused its
discretion in denying the motion to remove appointed registry counsel, we deny
this claim.
Denial of the Motions for the Appointment of Investigators and Experts
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In his next claim, Howell asserts that the trial court erred in denying his
motions for the appointment of investigators and experts.   Specifically, the record
shows that retained counsel filed an ex parte motion to retain a mitigation specialist
and fact investigator on February 1, 2013.   On February 5, retained counsel filed an
ex parte motion to appoint a neuropsychologist and a forensic psychologist,
asserting that although a mental health evaluation was conducted prior to trial, the
evaluation was in conjunction with Howell’s federal conspiracy case and was
under “pretty severe time constraints as the federal trial stopped [proceedings] to
do [it] as quickly as possible.”   In addition, retained counsel alleged that neither a
forensic psychologist nor a neuropsychologist have undertaken a competent
examination of Howell, both of which are critical to a full assessment of mitigating
circumstances in this case.
The trial court summarily denied both of these motions.   This Court reviews
the denial of a motion for appointment of experts for an abuse of discretion.   See
Marshall v. Crosby, 911 So. 2d 1129, 1133 (Fla. 2005) (“A trial court’s ruling on a
motion for appointment of experts will be affirmed on appeal in the absence of an
abuse of discretion.”).   We conclude that Howell has failed to show how the trial
court abused its discretion.   In particular, Howell has not alleged that the experts he
sought to obtain could assist in any viable state claim.   Moreover, sections
27.711(5) and (6) place monetary limits on payments for investigators and experts,
- 25 -

and counsel must demonstrate that “extraordinary circumstances” are present in
order to exceed the cap for compensating expert witnesses.   § 27.711, Fla. Stat.
(2012).   In this case, however, counsel did not address whether these limits were
previously reached and did not attempt to show extraordinary circumstances.
As to both of these motions, retained counsel made no attempt at this stage
of the proceedings, on the eve of a death warrant, to demonstrate that there was any
need for the appointment of experts.   In other words, the motion was not linked to
any pending claim or any assertion that a non-procedurally barred claim could
even be raised.   There is no allegation that there is any doubt as to Howell’s guilt,
and any attempt to appoint a mitigation expert almost two decades after his initial
trial took place and almost a decade after the completion of his initial
postconviction proceedings is long since barred.   Thus, we conclude that the trial
court did not abuse its discretion in denying these motions.
Lethal Injection Protocol
In his third contention, Howell asserts that the trial court erred in denying
the postconviction motion, which raised a singular claim pertaining to whether
Florida’s capital sentencing scheme is unconstitutional.   Specifically, in Howell’s
successive motion for postconviction relief, appointed registry counsel raised one
claim: the lethal injection protocol constitutes cruel and unusual punishment and
creates a substantial risk of serious harm to Howell.   Howell requested an
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evidentiary hearing, noting that “the defendant is the first African-American
inmate that is subject to receiving pentobarbital, his medical history is different
than those executed, his body weight and blood-type is different, and he is
significantly younger than any of those previously put to death using
pentobarbital.”   On January 31, 2013, counsel filed an amended motion for
postconviction relief, stating that “Howell is allergic to aspirin, has a long history
of ulcers, frequently suffers from extreme headaches and dizziness, continues to
experience numbing pain radiating down his leg, and experienced bouts of
insomnia during his incarceration.”
During a hearing, appointed registry counsel Taylor informed the trial court
that he did not have evidence to present during an evidentiary hearing.   At this
same hearing, the judge recognized retained counsel Ufferman and Rudenstine as
counsel of record and asked whether retained counsel planned on relitigating any
issues.   As to the lethal injection claim, Ufferman informed the court that retained
counsel had “no basis to believe that we would be relitigating that, but I can’t
affirmatively tell you that we won’t, depending on what we discover going
forward.”   After this representation, counsel did not inform the court that new
evidence had been discovered.
The trial court denied the motion for postconviction relief, which raised only
whether lethal injection constituted cruel and unusual punishment.   In support, the
- 27 -

trial court relied on this Court’s prior precedent and held that after careful
examination of the specific allegations raised, Howell was not raising any new
scientific evidence and that based on the allegations raised, Howell was not entitled
to relief.
We conclude that the trial court did not err in its ruling.   This Court
previously set forth the standard of review for a summary denial of a
postconviction motion as follows:
An evidentiary hearing on a rule 3.851 motion should be held
whenever the movant makes a facially sufficient claim that requires a
factual determination.   However, postconviction claims may be
summarily denied when they are legally insufficient, should have been
brought on direct appeal, or are positively refuted by the record.
Because the circuit court denied [the] successive rule 3.851 motion
without holding an evidentiary hearing, we review the circuit court’s
decision de novo, accepting the movant’s factual allegations as true to
the extent they are not refuted by the record, and affirming the ruling
if the record conclusively shows that the movant is entitled to no
relief.
Pardo v. State, 37 Fla. L. Weekly S749 (Fla.) (internal quotations and citations
omitted), cert. denied, 133 S. Ct. 815 (2012).   In terms of raising a successful
Eighth Amendment challenge, a defendant must demonstrate
that the conditions presenting the risk must be sure or very likely to
cause serious illness and needless suffering, and give rise to
sufficiently imminent dangers.   That is, there must be a substantial
risk of serious harm, an objectively intolerable risk of harm that
prevents prison officials from pleading that they were subjectively
blameless for purposes of the Eighth Amendment.   An inmate faces a
heavy burden to show that lethal injection procedures violate the
- 28 -

Eighth Amendment.   A defendant cannot simply rely on conjecture
and speculation.
Id. at S750 (internal quotations, emphasis, and citations omitted).   In Pardo, this
Court considered and rejected whether the current lethal injection protocol is
unconstitutional.   Id.   Howell is not relying on any new evidence or new claims
that this Court has not considered.
Regarding his as-applied challenge to the lethal injection protocol, Howell
has not raised a colorable claim that his asserted medical conditions would
interfere with the administration of the drugs set forth in the lethal injection
protocol.   See Troy v. State, 57 So. 3d 828, 839-40 (Fla. 2011).   As the State
asserts, the Department of Corrections is familiar with Howell’s medical condition
and medical records as he has been under its custody for the past eighteen years.
This Court’s “role is not to micromanage the executive branch in fulfilling its own
duties relating to executions.”   Lightbourne v. McCollum, 969 So. 2d 326, 351
(Fla. 2007).   Accordingly, the trial court did not err in denying Howell’s motion for
postconviction relief as to his lethal injection claim.
Application for Stay of Execution
Howell, through his retained counsel, also filed an Application for Stay of
Execution on February 14, 2013, asserting that appointed registry counsel have a
conflict of interest based on the missed federal deadline and the inadequate
representation in the initial postconviction proceedings, that appointed registry
- 29 -

counsel were unprepared to represent Howell in the warrant proceedings, and that
retained counsel should be permitted time to review the thousands of pages of
repository records and the guilt-phase transcripts.
Retained counsel assert that they intend to challenge the missed federal
deadline under Holland and may file a claim under Martinez in subsequent federal
proceedings because appointed registry counsel Taylor now states he “may have
overlooked possible claims cognizable under rule 3.851,” including ineffective
assistance of counsel claims.   However, as we have already addressed above, the
federal habeas petition that Howell originally filed raised only claims that were
fully litigated in state court proceedings and found to be without merit.   The relief
that counsel is now seeking, on the eve of an execution, is to permit retained
counsel to raise entirely new claims outside of an initial-review collateral
proceeding—something for which counsel has not shown any legal basis.
In Martinez, the United States Supreme Court explicitly reiterated its
holding in Coleman v. Thompson, 501 U.S. 722, 753-54 (1991), that an attorney’s
negligence in a postconviction proceeding does not establish cause to excuse a
procedural default, but Martinez would provide a limited and narrow exception for
cases involving initial-review collateral proceedings for claims of ineffective
assistance of counsel at trial.   Here, however, retained counsel claim
- 30 -

ineffectiveness that began at trial and continued through multiple attorneys until
the present when the death warrant was signed in 2013.
Howell, through his retained attorneys, asserts that “since undersigned
counsel were hired, they have discovered numerous factors that should alarm the
Court in moving forward with these proceedings without providing Mr. Howell’s
counsel of choice the same amount of time to represent him in circuit court that
appointed counsel were afforded.”   However, other than claims regarding the
missing of the federal habeas deadline and assertions that more mitigation should
have been presented at trial, Howell provides no basis aside from speculation for
this Court to be alarmed about allowing the death warrant to be carried out.
In order to grant a stay of execution at this stage, Howell must show that
there are substantial grounds upon which relief might be granted.   Buenoano v.
State, 708 So. 2d 941, 951 (Fla. 1998).   We conclude that this showing has not
been made.   Accordingly, we deny the application for stay of execution.
CONCLUSION
Based on the foregoing analysis, we affirm the trial court’s denial of
Howell’s successive rule 3.851 motion for postconviction relief.   In addition, we
deny the application for stay of execution.   No rehearing will be entertained by this
Court.   The mandate shall issue immediately.
It is so ordered.
- 31 -

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
An Appeal from the Circuit Court in and for Jefferson County,
Angela Cote Dempsey, Judge - Case No. 1992-22-CFC
Sonya Rudenstine, Gainesville, Florida; Michael Robert Ufferman of Michael
Ufferman Law Firm, P.A., Tallahassee, Florida; Baya Harrison, III, Monticello,
Florida; and Clyde M. Taylor, Jr., of Taylor & Taylor, Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General and Charmaine Millsaps, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
- 32 -

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