Jermaine Foster v. State of Florida

• Court: Supreme Court of Florida
• Decided: August 29, 2024
• Docket: SC2023-0831
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC2023-0831 ____________

JERMAINE FOSTER, Appellant,

vs.

STATE OF FLORIDA, Appellee.

August 29, 2024

SASSO, J.

Jermaine Foster, a prisoner under sentences of death, appeals

the circuit court’s denial of his successive motion for postconviction

relief under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons we

explain below, we affirm the denial of postconviction relief.

I.

A.

In 1994, Appellant Jermaine A. Foster (“Foster”) was convicted

of two counts of first-degree murder, one count of attempted first- degree murder, and four counts of kidnapping, for which the jury

ultimately recommended two death sentences. Foster v. State, 679

So. 2d 747, 751 (Fla. 1996). Following the sentencing hearing, the

trial court sentenced Foster to death. Id. On appeal, we affirmed

his convictions and sentences. Id. at 756. The U.S. Supreme Court

denied certiorari review. Foster v. Florida, 520 U.S. 1122 (1997).

Foster then sought postconviction relief based on intellectual

disability claims, filing his first motion in 2002. Before the

postconviction court ruled on his motion, but following an

evidentiary hearing that included testimony concerning Foster’s

mental abilities, the U.S. Supreme Court decided Atkins v. Virginia,

536 U.S. 304 (2002), holding that “death is not a suitable

punishment for a mentally retarded criminal,” as “such punishment

is excessive” and offends the Eighth Amendment. Id. at 321. So

after the postconviction court denied his motion, Foster appealed to

this Court seeking relief based on Atkins, among other grounds.

After oral argument, we relinquished jurisdiction to the

postconviction court for an evidentiary hearing on one of Foster’s

claims. Foster v. State, 929 So. 2d 524, 528 (Fla. 2006). The

postconviction court also reviewed Foster’s evidence allegedly

-2- supporting his Atkins claim and concluded that he failed to

establish “the necessary prongs to show mental retardation.” See

id. at 531-33. We affirmed the postconviction court in all respects.

Id. at 537.

B.

After the U.S. Supreme Court decided Hall v. Florida, 572 U.S.

701 (2014), which this Court decided should be applied

retroactively in Walls v. State (Walls I), 213 So. 3d 340, 346 (Fla.

2016), Foster filed a successive motion for postconviction relief,

again asserting an intellectual disability claim. Foster v. State, 260

So. 3d 174, 179 (Fla. 2018). The postconviction court summarily

denied Foster’s motion without an evidentiary hearing, concluding

that his claim was procedurally barred because all three prongs of

the intellectual disability test had already been considered. Id. On

appeal, we concluded that because Hall and Walls I required a

different standard by which Foster had not yet had the opportunity

to present evidence, Foster was entitled to a Hall-compliant

evidentiary hearing. Id. We therefore remanded to the

postconviction court for such a hearing but affirmed the

postconviction court’s denial of Foster’s other claims. Id. at 181.

-3- C.

On May 21, 2020, before Foster’s Hall-compliant hearing took

place in the postconviction court, this Court decided Phillips v.

State, 299 So. 3d 1013 (Fla. 2020). In Phillips, we held that the

Walls I decision was clearly erroneous and that Hall should not be

given retroactive application. Id. at 1019-21. Relying on Phillips,

the State moved for cancellation of the Hall-compliant hearing in

Foster’s case and requested that the postconviction court dismiss

his intellectual disability claim. However, at a hearing on the

State’s motion, the State conceded that based on our intervening

decision in State v. Okafor, 306 So. 3d 930 (Fla. 2020), the

postconviction court could not deviate from our mandate requiring

an evidentiary hearing in Foster’s case. Accepting the State’s

concession, in orders dated February 8, 2021, and February 18,

2021, the postconviction court denied the State’s motion for

summary denial of Foster’s intellectual disability claim. The

postconviction court cited Okafor and concluded that because the

State filed its motion after the statutorily imposed 120-day deadline

to recall the mandate, “the mandate for [the court] to hold an

-4- evidentiary hearing on the intellectual disability claim remains

undisturbed.”

D.

On March 31, 2022, this Court decided Thompson v. State,

341 So. 3d 303 (Fla. 2022). We had previously remanded

Thompson’s case for an evidentiary hearing following our decisions

in Hall and Walls I, but Phillips was decided before the hearing was

held. The State argued below that our decision in Phillips was an

intervening change in law that eliminated the need for the hearing.

Id. at 305. The trial court agreed and denied Thompson’s claim. Id.

On appeal, we affirmed, concluding that, unlike in Okafor, where

the defendant’s sentence had been “wiped . . . clean” by this Court’s

mandate vacating it, in Thompson’s case the death sentence was

final and fully intact. Id. at 306. We further concluded that Phillips

represented a change in the relevant fundamental controlling legal

principles, and therefore constituted an exception to the law of the

case doctrine. Id. As a result, because of the finality of Thompson’s

sentence and the decision in Phillips, we held that Thompson could

not succeed on his Hall-based disability claim. Id.

-5- On the same day Thompson was decided, the State filed a

renewed motion for summary denial of Foster’s intellectual

disability claim. The State argued that, while the postconviction

court had denied its previous motion based on Okafor, Thompson

distinguished Okafor in cases such as Foster’s. In response, Foster

argued that the State had waived and abandoned the claim that

Hall does not retroactively apply.

The postconviction court granted the State’s renewed motion

on May 3, 2023, and denied Foster’s intellectual disability claim. In

doing so, the postconviction court concluded that Phillips

constituted an intervening change in controlling case law, Hall did

not apply retroactively, and the State’s concession as to the

applicability of Okafor did not constitute a waiver of the argument

that Hall is not retroactive. This appeal follows.

II.

Foster raises three issues on appeal. Specifically, he argues

that the postconviction court erred when it (1) concluded that

Phillips was correctly decided and is applicable in Foster’s case, (2)

summarily denied Foster’s request for an evidentiary hearing, and

(3) concluded that the State did not waive its argument against a

-6- retroactive application of Hall when it initially conceded that Phillips

did not apply under existing precedent. We disagree.

Foster’s intellectual disability claim, in large part, relies on

retroactive application of Hall. But Phillips forecloses that prospect.

So, Foster now argues that Phillips was wrongly decided.

Consistent with our decision in Walls v. State (Walls II), 361 So. 3d

231, 233-34 (Fla. 2023), we reject Foster’s invitation to recede from

Phillips. See, e.g., id.; Thompson, 341 So. 3d at 306; Nixon v. State,

327 So. 3d 780, 783 (Fla. 2021); Pittman v. State, 337 So. 3d 776,

777 (Fla. 2022); Freeman v. State, 300 So. 3d 591, 594 (Fla. 2020);

Cave v. State, 299 So. 3d 352, 353 (Fla. 2020). And because we

reject Foster’s invitation to recede from Phillips, his second

argument fails as well. As the postconviction court properly

concluded, Foster is procedurally barred from the relief he seeks

based on this Court’s current precedent of Nixon and Thompson.

See Thompson, 341 So. 3d at 306 (affirming summary denial of

Hall-based intellectual disability claim); Nixon, 327 So. 3d at 783

(declining to review the merits of a Hall-based intellectual disability

challenge).

-7- B.

Foster’s argument that the State was precluded from

challenging the retroactive application of Hall also falls short.

In support of this point, Foster relies on appellate waiver cases

that are inapplicable here. For example, Foster relies on Godinez v.

Moran, 509 U.S. 389, 397 n.8 (1993), in which the U.S. Supreme

Court declined to address an argument regarding retroactive

application of a decision where the issue of retroactivity was not

raised in the lower courts or in the petitioner’s petition for writ of

certiorari. Foster also cites Schiro v. Farley, 510 U.S. 222, 229

(1994), in which the U.S. Supreme Court declined as a matter of

discretion to address the State’s argument regarding retroactivity

where the State had not raised the argument in its petition for writ

of certiorari.

Here, unlike the circumstances in Schiro and Godinez, the

State essentially sought reconsideration of a non-final order after

Thompson clarified and limited Okafor’s application. So, even

characterizing the State’s comments at the first hearing as a

concession as to whether Okafor permitted the trial court to deviate

from this Court’s mandate, the concession was not binding. See,

-8- e.g., Landmark Am. Ins. Co. v. Pin-Pon Corp., 267 So. 3d 411, 412

(Fla. 4th DCA 2019) (noting stipulations to questions of law are not

binding); Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002)

(noting court was not bound by State’s mistaken concession

regarding the applicability of case law to the issue before the court).

Instead, the postconviction court properly evaluated the State’s

renewed motion and applied the intervening decisions of Thompson,

Nixon, Walls II, and Lawrence. 1

III.

Consistent with Nixon, Thompson, and Walls II, we conclude

that Foster does not get the benefit of Hall. Consequently, his Hall-

based intellectual disability claim fails, and we therefore affirm the

1. We likewise reject Foster’s argument that Okafor rather than Thompson informs the question of whether Phillips applies to Foster’s case. See Thompson, 341 So. 3d at 306; Nixon, 327 So. 3d at 783; Walls II, 361 So. 3d at 233-34. And we find no merit in Foster’s argument that his case is more similar to Okafor’s because both mandates were “founded on their first opportunity to be fairly heard.” See Foster, 929 So. 2d at 531-33 (“After reviewing the record and the postconviction court’s findings, we reject Foster’s claim that his rights under Atkins were violated. Foster was afforded a hearing on the issue of mental retardation and was permitted to introduce expert testimony on the issue. The postconviction court found that the evidence did not support his claim. We find no errors in the postconviction court’s findings or conclusions.”).

-9- postconviction court’s summary denial of his successive motion for

postconviction relief.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, and FRANCIS, JJ., concur. LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

LABARGA, J., dissenting.

In my view, Foster’s intellectual disability claim should not be

summarily denied. Thus, I dissent to the majority opinion,

consistent with my dissent in Phillips v. State, 299 So. 3d 1013 (Fla.

2020) (receding from Walls v. State, 213 So. 3d 340 (Fla. 2016), and

holding that Hall v. Florida, 572 U.S. 701 (2014), does not apply

retroactively).

In 2018, this Court concluded that Foster—who first alleged

his intellectual disability in 2002—was entitled to a Hall-compliant

hearing on his intellectual disability claim. However, in light of this

Court’s subsequent decision in Phillips, and consistent with its

2022 decision in Thompson v. State, 341 So. 3d 303 (Fla. 2022), the

majority here concludes that Foster is not entitled to that

- 10 - consideration. Consequently, the majority affirms the summary

denial of Foster’s claim.

Because this Court, in Phillips, concluded that Hall does not

apply retroactively, Foster’s entitlement to a Hall-compliant hearing

turns on whether his convictions and death sentences became final

before Hall was decided. They did become final before Hall, thus

foreclosing relief on Foster’s intellectual disability claim.

In my dissent in Phillips, I explained that “[t]he import of

[Phillips] is that some individuals whose convictions and sentences

were final before Hall was decided, despite timely preserved claims

of intellectual disability, are not entitled to consideration of their

claims in a manner consistent with Hall. . . . This arbitrary result

undermines the prohibition of executing the intellectually disabled.”

Phillips, 299 So. 3d at 1025 (Labarga, J., dissenting). “If Hall is not

retroactively applied in a uniform manner, an intellectually disabled

individual on Florida’s death row may eventually be put to death.”

Id.

For these reasons, I respectfully dissent.

An Appeal from the Circuit Court in and for Orange County, Jalal A. Harb, Judge Case No. 481993CF012001000AOX

- 11 - Linda McDermott and Lauren Rolfe, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida; and Eric Pinkard, Capital Collateral Regional Counsel, and Julissa R. Fontán, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Doris Meachum, Assistant Attorney General, Daytona Beach, Florida,

for Appellee

- 12 -