In fact when this Court issued its opinion in State v.Mills, it simply stated:
As to Mills’ first claim, the trial court foundthat the evidence Mills presented met the test fornewly discovered evidence as enunciated in Jones v.State, 709 So. 2d 512, 519 (Fla. 1998). We agree. The evidence presented by Anderson was unknown at the timeof trial and neither Mills nor his counsel could have discovered it with due diligence, the evidence wouldhave been admissible at trial, if only for impeachment;and the newly discovered evidence, when considered inconjunction with the evidence at Mills’ trial and 3.850proceedings, would have probably produced a differentresult at sentencing.
State v. Mills, 788 So. 2d at 250. Thus, it is clear thatcomplete procedural history of Mr. Mills’ case and the analysisof the issues raised at every step in the process did not andcould not establish a res adjudicata bar.
was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death.2
In the 1988 proceedings on Mr. Marek’s a motion to vacate, the State seems to suggest that the outcome there has some bearing on the decision of the newly discovered evidence claim against Mr. Marek. However in 1988 at the time of the “initial” Rule 3.850 motion, the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell and William Green was not known or presented, nor for that matter was any testimony presented regarding statements made by Raymond Wigley that he killed Adela Simmons while Mr. Marek slept in the pickup truck. The evidence that has been presented now was not in the record at the time of the “initial” Rule 3.850 was heard and denied, and thus this evidence was not considered or addressed by either the circuit court or this Court when Mr. Marek was denied collateral relief.3
Similarly, the State seems to suggest that to the Eleventh Circuit’s affirmance of the denial of Mr. Marek’s petition for federal habeas relief is somehow binding and has decided the
2The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented at trial and was not of record at the time ofthe direct appeal.
3The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman wasnot known nor presented at during the proceedings on Mr. Mills’“initial” Rule 3.850 motion.
newly discovered evidence claim adversely to Mr. Marek. However
at the time that Mr. Marek filed his federal habeas petition, he
was unaware of what Jessie Bannerman, Robert Pearson, Michael
Conley, Leon Douglass, Carl Mitchell and William Green had to
say. Mr. Marek did not know or present their testimony in his
federal habeas petition, nor for that matter was any testimony
presented regarding statements made by Raymond Wigley that he
killed Adela Simmons while Mr. Marek slept in the pickup truck.
When the Eleventh Circuit issued its opinion, it did not have any
evidence before it of Raymond Wigley’s statements indicating that
he was the one who had killed Adela Simmons. So therefore, the
Eleventh Circuit could not have addressed its significance.4
Moreover, the State’s reliance upon the Eleventh Circuit’s
discussion of trial counsel’s strategy is irrelevant to the
4The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented in Mr. Mills’ federal habeas petition and hadnot been considered by the federal courts when federal habeasrelief was denied. Mills v. Singletary, 161 F.3d 1273 (11th Cir. 1998).
Moreover, the decision by the Eleventh Circuit denying Mr.Marek’s ineffective assistance of counsel issued in 1995, wasbefore the United States Supreme Court’s decisions in Williams v.Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510(2003), Rompilla v. Beard, 545 U.S. 374 (2005). The decision in
th
Marek v. Singletary, 62 F.3d 1295 (11 Cir. 1995), is simplyerroneous in light of the subsequent decisions by the UnitedStates Supreme Court. And in fact, the United States SupremeCourt recently granted certiorari review in case in which theEleventh Circuit had denied habeas relief on a penalty phaseineffectiveness claim in order to address whether the standards employed by the Eleventh Circuit to review ineffectiveness claimscomports with the controlling precedent from the Supreme Court.Wood v. Allen, – U.S. – , Case No. 08-9156 (cert. granted May 18,2009).
newly discovered evidence claim given that trial counsel did not have the new evidence and therefore any decision making occurred without the new evidence and would have been altered by the new evidence had it been known, as trial counsel, Hilliard Moldof, testified on June 2, 2009. Certainly, the Eleventh Circuit did not have Mr. Moldof’s 2009 testimony regarding the new evidence and the effect it would have had on how he proceeded at Mr. Marek’s trial when it rendered its decision in 1995.5
As to Mills’ first claim, the trial court foundthat the evidence Mills presented met the test fornewly discovered evidence as enunciated in Jones v.State, 709 So. 2d 512, 519 (Fla. 1998). We agree. The evidence presented by Anderson was unknown at the timeof trial and neither Mills nor his counsel could have discovered it with due diligence, the evidence wouldhave been admissible at trial, if only for impeachment;and the newly discovered evidence, when considered inconjunction with the evidence at Mills’ trial and 3.850proceedings, would have probably produced a differentresult at sentencing.
State v. Mills, 788 So. 2d at 250. Thus, it is clear thatcomplete procedural history of Mr. Mills’ case and the analysisof the issues raised at every step in the process did not andcould not establish a res adjudicata bar.
was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death.2
In the 1988 proceedings on Mr. Marek’s a motion to vacate, the State seems to suggest that the outcome there has some bearing on the decision of the newly discovered evidence claim against Mr. Marek. However in 1988 at the time of the “initial” Rule 3.850 motion, the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell and William Green was not known or presented, nor for that matter was any testimony presented regarding statements made by Raymond Wigley that he killed Adela Simmons while Mr. Marek slept in the pickup truck. The evidence that has been presented now was not in the record at the time of the “initial” Rule 3.850 was heard and denied, and thus this evidence was not considered or addressed by either the circuit court or this Court when Mr. Marek was denied collateral relief.3
Similarly, the State seems to suggest that to the Eleventh Circuit’s affirmance of the denial of Mr. Marek’s petition for federal habeas relief is somehow binding and has decided the
2The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented at trial and was not of record at the time ofthe direct appeal.
3The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman wasnot known nor presented at during the proceedings on Mr. Mills’“initial” Rule 3.850 motion.
newly discovered evidence claim adversely to Mr. Marek. However
at the time that Mr. Marek filed his federal habeas petition, he
was unaware of what Jessie Bannerman, Robert Pearson, Michael
Conley, Leon Douglass, Carl Mitchell and William Green had to
say. Mr. Marek did not know or present their testimony in his
federal habeas petition, nor for that matter was any testimony
presented regarding statements made by Raymond Wigley that he
killed Adela Simmons while Mr. Marek slept in the pickup truck.
When the Eleventh Circuit issued its opinion, it did not have any
evidence before it of Raymond Wigley’s statements indicating that
he was the one who had killed Adela Simmons. So therefore, the
Eleventh Circuit could not have addressed its significance.4
Moreover, the State’s reliance upon the Eleventh Circuit’s
discussion of trial counsel’s strategy is irrelevant to the
4The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented in Mr. Mills’ federal habeas petition and hadnot been considered by the federal courts when federal habeasrelief was denied. Mills v. Singletary, 161 F.3d 1273 (11th Cir. 1998).
Moreover, the decision by the Eleventh Circuit denying Mr.Marek’s ineffective assistance of counsel issued in 1995, wasbefore the United States Supreme Court’s decisions in Williams v.Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510(2003), Rompilla v. Beard, 545 U.S. 374 (2005). The decision in
th
Marek v. Singletary, 62 F.3d 1295 (11 Cir. 1995), is simplyerroneous in light of the subsequent decisions by the UnitedStates Supreme Court. And in fact, the United States SupremeCourt recently granted certiorari review in case in which theEleventh Circuit had denied habeas relief on a penalty phaseineffectiveness claim in order to address whether the standards employed by the Eleventh Circuit to review ineffectiveness claimscomports with the controlling precedent from the Supreme Court.Wood v. Allen, – U.S. – , Case No. 08-9156 (cert. granted May 18,2009).
newly discovered evidence claim given that trial counsel did not have the new evidence and therefore any decision making occurred without the new evidence and would have been altered by the new evidence had it been known, as trial counsel, Hilliard Moldof, testified on June 2, 2009. Certainly, the Eleventh Circuit did not have Mr. Moldof’s 2009 testimony regarding the new evidence and the effect it would have had on how he proceeded at Mr. Marek’s trial when it rendered its decision in 1995.5
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