Gore v. State

91 So. 3d 769, 37 Fla. L. Weekly Supp. 265, 2012 Fla. LEXIS 642, 2012 WL 1149320
CourtSupreme Court of Florida
DecidedApril 9, 2012
DocketNo. SC12-537
StatusPublished
Cited by39 cases

This text of 91 So. 3d 769 (Gore v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gore v. State, 91 So. 3d 769, 37 Fla. L. Weekly Supp. 265, 2012 Fla. LEXIS 642, 2012 WL 1149320 (Fla. 2012).

Opinion

PER CURIAM.

David Alan Gore, a prisoner under sentence of death, appeals the summary denial of his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. On February 28, 2012, the Governor signed a death warrant for Gore, with the execution scheduled for April 12, 2012. Gore subsequently sought postconviction [771]*771relief in the circuit court, presenting five claims. On March 15, 2012, the circuit court entered an order that summarily denied relief on all claims. For the reasons discussed below, we affirm the order of the circuit court. We hold that the recent decision from the United States Supreme Court in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), does not provide Gore with any basis for relief in this Court.

FACTS AND PROCEDURAL HISTORY

On March 15, 1984, a jury found David Alan Gore guilty of the first-degree murder of Lynn Elliott. The facts of the murder were stated in the opinion of this Court affirming the judgment and sentence of death on Gore’s initial direct appeal:

Gore and his cousin picked up fourteen-year-old [R.M.1] and seventeen-year-old Lynn Elliott who were hitchhiking to the beach. After the glove compartment in the pickup truck fell open and a gun became visible, Gore took the gun and held it to [R.M.’s] head. He grabbed the two girls’ wrists and held them together. Gore then said that they should take the girls to Gore’s home. He told the girls that if they said or did anything, they would be killed. When they arrived at his home, the girls were handcuffed and taken into a bedroom. The girls then were separated, and Lynn was tied up while [R.M.] was handcuffed. Gore cut [R.M.’s] clothes off of her and sexually assaulted her on three separate occasions. [R.M.] testified that she heard noises in the other room after Gore had left her. She heard Gore tell Lynn to shut up or he would kill her. Gore also told [R.M.] to be quiet or he would slit her throat and that he would do it anyway. Gore then put [R.M.] in the closet, and, after he left, she heard two or three shots. Gore then came back into the room and put [R.M.] in the attic where she stayed until rescued by a police officer.
Michael Rock, a fifteen-year-old boy, testified that on July 26, 1983, while riding his bicycle in the area of Gore’s home, he heard screaming and observed a naked girl running down the driveway being chased by Gore who was also naked. He saw Gore catch up to her, drag her back to a palm tree, and shoot her twice in the head. Rock went home and told his mother, and she called the police. The police arrived and surrounded Gore’s home. Lynn’s body was found in the trunk of the car in the driveway. Her arms and legs had been tightly bound with rope. She had multiple abrasions on her body consistent with falling and being dragged. The gun used to kill her was found in Gore’s home.
Gore was indicted for the first-degree, premeditated murder of Lynn Elliott, for the kidnapping of Lynn Elliott, for the kidnapping of [R.M.], and for three counts of sexual battery of [R.M.]. He was found guilty of all six counts. After a jury recommendation of death, the trial court imposed the death sentence for the first-degree murder of Lynn Elliott and imposed life sentences for the other crimes.

Gore v. State, 475 So.2d 1205, 1206 (Fla. 1985) (Gore I), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986).

[772]*772On direct appeal, this Court affirmed the convictions and death sentence. See id. The Court subsequently affirmed the denial of- Gore’s initial rule 3.850 motion for postconviction relief and denied his petition for writ of habeas corpus. See Gore v. Dugger, 532 So.2d 1048, 1051 (Fla.1988) (Gore II). However, the United States District Court for the Middle District of Florida granted Gore’s federal petition for writ of habeas corpus and vacated his death sentence becaúse the trial court had precluded Gore from presenting nonstatu-tory mitigating evidence in violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Gore v. Dugger, 763 F.Supp. 1110, 1114, 1116 (M.D.Fla.1989) (Gore III), aff'd, 933 F.2d 904, 905 (11th Cir.1991) (Gore IV), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). After a resentencing proceeding, a jury unanimously recommended death, and the trial court followed that recommendation. . On appeal, this Court affirmed the sentence. See Gore v. State, 706 So.2d 1328, 1336 (Fla.1997) (Gore V), cert. denied, 525 U.S. 892, 119 S.Ct. 212, 142 L.Ed.2d 174 (1998). This Court subsequently affirmed a postconvietion court order that denied Gore relief under Florida Rule of Criminal Procedure 3.850 and also denied a petition for writ of habeas corpus filed by Gore. See Gore v. State, 964 So.2d 1257, 1277-78 (Fla.2007) (Gore VI), cert. denied, 552 U.S. 1197, 128 S.Ct. 1250, 170 L.Ed.2d 89 (2008). On April 11, 2008, the United States District Court for the Southern District of Florida denied a second federal habeas petition filed by Gore. See Gore v. McDonough, No. 07-22637-CIV-LENARD/TORRES (S.D. Fla. order filed Apr. 11, 2008). The United States Court of Appeals for the Eleventh Judicial Circuit subsequently denied Gore a “certificate of appealability,” see Gore v. Secretary, Department of Corrections, No. 08-14060-P (11th Cir. order filed Sept. 9, 2008), and the United States Supreme Court denied certiorari review, see Gore v. McNeil, — U.S. -, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009).

Gore raised the following claims in his successive postconviction motion filed after issuance' of the warrant:

1. The clemency “update” process in this case was applied in an arbitrary and capricious manner in violation of the Eighth and Fourteenth Amendments and corresponding provisions of the Florida Constitution.
2. Florida’s capital sentencing scheme is unconstitutional under the Eighth and Fourteenth Amendments because of the arbitrary and standard-less power given to the Governor to sign death warrants.
3. Newly discovered evidence establishes that Gore was denied the effective assistance of counsel during his resentencing proceedings.
4. Gore was denied the effective assistance of counsel during his postcon-viction proceedings.
5. Given the inordinate length of time that Gore has spent on death row, adding his execution to that punishment would constitute cruel and unusual punishment.

With regard to the first claim, Gore stated that his clemency “update” process was applied in an arbitrary and capricious manner in violation of the United States and Florida Constitutions. Although Gore first received a clemency proceeding in 1987, the clemency proceeding to which Gore’s claim is directed occurred in 2012. Subsequent to the 1987 proceeding, Gore’s death sentence was overturned due to the refusal of the trial court to allow the presentation of mitigation evidence. Gore con[773]

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Bluebook (online)
91 So. 3d 769, 37 Fla. L. Weekly Supp. 265, 2012 Fla. LEXIS 642, 2012 WL 1149320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gore-v-state-fla-2012.