Summary
affirming denial of relief in second successive postconviction motion
Summary of this case from Zakrzewski v. StateOpinion
No. SC11–1896.
2012-11-9
Edward J. ZAKRZEWSKI, Appellant(s) v. STATE of Florida, Appellee(s).
Edward J. Zakrzewski, a prisoner under sentence of death, appeals the circuit court's order denying a successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution.
On appeal, Zakrzewski raised two claims: (1) the circuit court erred in denying Zakrzewski's claim that Porter v. McCollum, 130 S.Ct. 447 (2009), applies retroactively and requires reconsideration of his previously denied ineffective assistance of counsel claim; and (2) the circuit court erred in denying Zakrzewski's motion to amend his postconviction motion in light of the June 8th adoption of a new lethal injection protocol, which changed the first drug used in the three-drug protocol, and in denying an evidentiary hearing on this claim.
We affirm the denial of Zakrzewski's claim that Porter v. McCollum, 130 S.Ct. 447 (2009), is retroactive. See Walton v. State, 77 So.3d 639 (Fla.2011). Although Zakrzewski requests that this Court reconsider its decision in Walton, he has not provided any compelling reason to do so.
Zakrzewski also argues that refusing to apply the benefit of the “evolutionary refinement” of Porter to his case, where Porter received that same benefit, is arbitrary and a violation of due process. This claim is without merit. This Court stated in Walton that Porter “involved a mere application and evolutionary refinement and development of the Strickland analysis, i.e., it addressed a misapplication of Strickland.” Walton, 77 So.3d at 644 (emphasis added).
This Court did not state that the Strickland standard had changed such that it would be a violation of due process and unconstitutionally arbitrary not to apply it in Zakrzewski's case.
With respect to Zakrzewski's motion to amend, even accepting for the sake of argument that the circuit court erred in denying the motion, any such error would clearly be harmless. Zakrzewski did not allege what evidence he would present differently than was considered in Valle v. State, 70 So.3d 530 (Fla.2011). Nor did he present any allegations beyond those of Valle. See Ventura v. State, 2 So.3d 194, 198 (Fla.2009) (“We have repeatedly and consistently rejected Eighth Amendment challenges to Florida's current lethal-injection protocol.... Ventura has not presented any allegations beyond those of Lightbourne and Schwab (who predicated his claims upon those of Lightbourne). This Court has thus previously rejected each of these challenges to Florida's lethal-injection protocol and-based upon the sound principle of stare decisis-we continue the same course here.” (citations and footnote omitted)); Schwab v. State, 969 So.2d 318, 323–24 (Fla .2007) (“In this case, judicial notice would have been sufficient because Schwab has not presented any argument as to specific evidence he wanted to present in this case that had not been presented in the Lightbourne proceeding. Given the record in Lightbourne and our extensive analysis in our opinion in Lightbourne v. McCollum, we reject the conclusion that lethal injection as applied in Florida is unconstitutional.”).
Finally, while this case was pending in this Court, Zakrzewski filed a motion to relinquish or, in the alternative, for supplemental briefing. In that motion, he alleged that the Florida Department of Corrections had again revised the lethal injection protocol on September 4, 2012, to change the second drug used in the three-drug protocol.
Zakrzewski requested that this Court either relinquish this case to the circuit court so that he may investigate and file a successive postconviction motion on this basis or, in the alternative, to allow supplemental briefing. We deny Zakrzewski's motion to relinquish without prejudice to file a successive postconviction motion in the circuit court regarding the September 4, 2012, lethal injection protocol.
Accordingly, we affirm the circuit court's orders denying Zakrzewski's successive motion for postconviction relief and Zakrzewski's motion to amend.
It is so ordered.