The arbitrary Florida death penalty

http://johnmarek.us/legal/applicationforCOA.pdf

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-61231-CIV-Ungaro

JOHN RICHARD MAREK,
Petitioner,
v.
WALTER McNEIL,
Secretary, Florida
Department of Corrections
Respondent.
and
BILL McCOLLUM,
Attorney General
Additional Respondent.
_________________________________/
APPLICATION FOR A CERTIFICATE OF APPEALABILITY

COMES NOW the Petitioner, JOHN RICHARD MAREK, by and
through his undersigned counsel, and herein moves this Court
for a certificate of appealability in the above-captioned
case. In support thereof, Petitioner states:

1. On April 19, 2009, there were over 50 death
sentenced individuals on Florida’s death row who were
eligible for a death warrant in that their first round of
post conviction litigation had been completed in state and
federal court and the either had no litigation pending
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anywhere, or they had successive litigation pending in state
court.

The death sentenced individuals on the list
included:
Gary Alvord;
Richard Anderson;
Jeffrey Atwater;
Chadwick Banks;
McArthur Breedlove;
Jim Eric Chandler;
Oba Chandler;
Loran Cole;
Danny Doyle;
Charles Finney;
Charles Foster;
Konstantinos Fotopoulose;
John Freeman;
Guy Gamble;
Louis Gaskin;
Olen Gorby;
Robert Gordon;
Marshall Gore;
Martin Grossman;
Jerry Haliburton;
Robert Hendrix;
John Henry;
Paul Howell;
James Hunter;
Etheria Jackson;
Edward James;
Ronnie Johnson;
David Johnston;
Randall Jones;
William Kelley;
Gary Lawrence;
Ian Lightbourne;
John Richard Marek;
John Marquard;
Sonny Boy Oats;
Dominick Occhiccone;
Norman Parker;
Robert Patten;
Daniel Peterka;
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1Respondents did not challenge the accuracy of this
list which was set forth in Mr. Marek’s petition. Response
at 67.

2The statute providing for a continuous warrant was
adopted in 1996. It was not the law when Mr. Marek received
death warrants in 1988 (before any post conviction
litigation had even commenced) and in 1989 (after the state
post conviction process had been completed, but before a
3
Kenneth Quince;
Paul Scott;
Richard Shere;
Kenny Stewart;
William Sweet;
Melvin Trotter;
William Turner;
Manuel Valle;
William Van Poyck;
Peter Ventura;
Anthony Wainwright;
Robert Waterhouse;
Johnny Williamson;
William Zeigler.

This list is not exhaustive.1 There were still others who
were in the same posture.

2. On April 20, 2009, with no explanation and with no
advance notice to Petitioner or his counsel, the Governor of
Florida selected two names from this list, John Richard
Marek and David Johnston, for execution. On April 20th, Mr.
Marek received a continuous death warrant setting his
execution for May 13, 2009. Under Florida law, the
continuous death warrant remains in effect until Mr. Marek
is either executed or his death sentence is vacated.2 Even
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federal habeas petition had even been filed).

3In their Response to the habeas petition, Respondents
inexplicably state: “Marek was treated the same as
Rutherford, Glock and Bundy, and all other named death row
inmates listed in his pleading.” Response at 73.
Respondents refuse to recognize that unlike Mr. Marek who
has an execution scheduled, and Mr. Rutherford, Mr. Glock
and Mr. Bundy who have been executed, all of the other
listed death row inmates are alive with no continuous death
warrant in effect and no scheduled execution date.
Mr.
Marek has not been treated the same as those with whom he
had an identical status on April 19, 2009.
4
though Mr. Marek received an indefinite stay of execution on
May 11, 2009, from the Florida Supreme Court, the continuous
warrant remained in effect. When the Florida Supreme Court
vacated the stay on July 16, 2009, the Governor, as required
under Florida law, rescheduled the execution for August 19,
2009.

3. In the nearly four months since April 20, 2009,
until today, those who had been on the list on April 19th
along with Mr. Marek, remain on the list and have had no
death warrant and no scheduled execution facing them.
Respondents have not just offered no explanation for why Mr.
Marek and David Johnston received death warrants on April
20th, they have denied that receiving a death warrant and an
execution date is any different treatment than not receiving
a death warrant and an execution date.3

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4. Respondents do not contend that Mr. Marek’s death
sentence was the oldest on the list and that was why he
received a death. This contention cannot be made because a
number of individuals on the list received a death sentence
before Mr. Marek received his, and similarly many of the
individuals were convicted of crimes that occurred before
the one serving as the basis for his sentence of death.

5. Respondents offered no explanation for why Mr.
Marek received a death warrant on April 20th while more than
50 other similarly situated death sentenced individuals did
not because no explanation exists. The best that can be
said as to the basis for the obviously different treatment
on April 20th, is that the basis for that distinction is a
secret.

6. On August 13, 2009, this Court rejected Mr.
Marek’s challenge to his sentence of death in which he
argued that the process for selecting him for execution on
April 20th was arbitrary and capricious and tantamount to a
lottery in violation of Furman v. Georgia, 408 U.S. 238
(1972).

7. In rejecting Mr. Marek’s claim, this Court first
addressed whether the claim fit within the category of
claims that could be presented in a technically successive
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petition, but not be barred because the claim was not ripe
at the time of a first habeas petition was presented. This
Court recognized that Mr. Marek relied upon the recent
decision in Panetti v. Quarterman, 551 U.S. 930 (2007), as
authorizing the presentation of his claim at this time.
This Court even acknowledged that “the meaning of ‘second or
successive’ in the AEDPA after Panetti is not entirely
clear” before rejecting Mr. Marek’s claim for lack of
jurisdiction. Order at 5.

8. Despite dismissing Mr. Marek’s petition on
jurisdictional grounds (meaning that his claims did not fit
into the Panetti exception), this Court proceeded to
alternatively address Mr. Marek’s claim on the merits. This
Court concluded that the Florida Supreme Court’s decision
rejecting the claim “was not contrary to, nor did it
unreasonably apply, ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’”
Order at 8. In the course of addressing the merits of Mr.
Marek’s clemency claim, this Court did indicate that it
“does not wholly embrace the Florida Supreme Court’s view of
Woodard.” Order at 7, n. 10. So even though this Court did
not find the Florida Supreme Court’s decision was “contrary
to” or an “unreasonable application” of United States
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Supreme Court, it did refuse to find the decision to be
consistent with or a proper application of United States
Supreme Court precedent.

9. Mr. Marek has now filed a notice of appeal seeking
to obtain appellate review of this Court’s decision.
However before such an appeal can be heard by the Eleventh
Circuit, Mr. Marek must obtain a certificate of
appealability. In this application he requests that this
Court issue a certificate of appealablity because as this
Court recognized the law as to the effect of Panetti is
unclear and the Florida Supreme Court’s reading of United
States Supreme Court as to Mr. Marek’s claim cannot be
embraced by this Court.

10. The standard for issuing a certificate of
appealability is “materially identical” to the standard for
issuing a certificate of probable cause under the pre-AEDPA
regime. Hardwick v. Singletary, 126 F. 3d 1312, 1313 (11th
Cir. 1997). A certificate of appealability should be issued
if the petitioner makes “a substantial showing of the denial
of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322 (2003); Barefoot v. Estelle, 463 U.S. 880 (1983). While
the severity of the penalty is not by itself sufficient to
warrant the automatic issuance of a certificate of
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4See also Songer v. Wainwright, 605 F. Supp. 686 (M.D.
Fla. 1985) (granting certificate of probable cause where
court’s determination of issue may be debatable among
jurists of reason and where petitioner in capital case
should be provided the opportunity to urge the issues on
appeal).

5Certainly, this Court recognized that Panetti left the
controlling law unclear as to its jurisdiction to hear Mr.
Marek’s habeas petition. Jurists of reason may of course
disagree when the law is unclear.
Similarly, this Court’s discomfort with the Florida
Supreme Court’s reading of United States Supreme Court
precedent as to the merits of Mr. Marek’s claim, also
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appealability, “[i]n a capital case, the nature of the
penalty is a proper consideration in determining whether to
issue a certificate of probable cause.” Barefoot, 463 U.S.
at 893 n.4.4

11. The question of whether a COA should issue is not
the same as whether the issues to be raised in the appeal
would prevail on the merits. Barefoot, 463 U.S. at 893 n.4.
Under 28 U.S.C. Sec. 2253, a petitioner seeking a COA “need
only demonstrate ‘a substantial showing of the denial of a
constitutional right.’” Miller-El, 537 U.S. at 327. “A
petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve
encouragement to proceed further.”5 Id. Thus, “[t]he COA
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demonstrates that there this Court recognizes that there is
room for jurists of reason to disagree.
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inquiry asks only if the District Court’s decision [is]
debatable.” Miller-El, 537 U.S. at 348.

12. The Supreme Court has explained that the COA
inquiry “requires an overview of the claims in the habeas
petition and a general assessment of their merits.” Miller-
El, 537 U.S. at 336. Conducting “an overview of the claims
in the habeas petition and a general assessment of their
merits” makes it clear that Mr. Marek should receive a COA
so that his appeal can be heard by the Eleventh Circuit.

13. Where this Court expressed discomfort with the
Florida Supreme Court’s reading of United States Supreme
Court precedent in addressing the merits of Mr. Marek’s
claim, if other reasonable jurists had concluded that the
discomfort amounted to a failure by the Florida Supreme
Court to reasonably apply federal law, then the decision is
not entitled to any deference in federal habeas proceedings.
In Panetti v. Quarterman, 127 S. Ct. 2842, 2858-59 (2007),
the Supreme Court explained:
Under AEDPA, a federal court may grant habeas
relief, as relevant, only if the state court’s
“adjudication of [a] claim on the merits . . .
resulted in a decision that . . . involved an
unreasonable application” of the relevant law. When
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a state court’s adjudication of a claim is dependent
on an antecedent unreasonable application of federal
law, the requirement set forth in § 2254(d)(1) is
satisfied. A federal court must then resolve the
claim without the deference AEDPA otherwise
requires. See Wiggins v. Smith, 539 U.S. 510, 534,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)
(performing the analysis required under
Strickland’s second prong without deferring to the
state court’s decision because the state court’s
resolution of Strickland’s first prong involved an
unreasonable application of law); id., at 527-529,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (confirming that
the state court’s ultimate decision to reject the
prisoner’s ineffective-assistance-of-counsel claim
was based on the first prong and not the second).
See also Williams, supra, at 395-397, 120 S. Ct.
1495, 146 L. Ed. 2d 389; Early v. Packer, 537 U.S.
3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per
curiam) (indicating that § 2254 does not preclude
relief if either “the reasoning [or] the result of
the state-court decision contradicts [our cases]”).
(Emphasis added). See Smith v. Secretary, Dept. Of Corr.,
2009 WL 1857302 (11th Cir. June 30, 2009). Thus, if the
Florida Supreme Court unreasonably applied federal law, its
rejection of Mr. Marek’s claim is entitled to no deference
and his claim is subject to plenary review in these federal
proceedings.

14. Under these circumstances, a certificate of
appealability should issue.
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WHEREFORE, the Petitioner, John Richard Marek, applies
to this Court for the reasons stated herein for the issuance
of a certificate of appealability as to this Court’s
decision of August 13, 2009.

Respectfully submitted,
/s/ Martin J. McClain
MARTIN J. MCCLAIN
Fla. Bar No. 0754773

LINDA MCDERMOTT
Fla. Bar No. 102857
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, Florida 33334
Telephone: (305) 984-8344
FAX: (954)564-5412
Attorneys for Petitioner
JOHN RICHARD MAREK

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing
Motion has been furnished by electronic service to Carolyn
Snurkowsi, Assistant Deputy Attorney General, Office of the
Attorney General, The Capitol - PL - 01, Tallahassee, FL
32399-6536, on this day of August, 2009.
/s/ Martin J. McClain
MARTIN J. MCCLAIN
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