Supreme Court of Florida ____________
No. SC2023-1233 ____________
MICHAEL DUANE ZACK, III, Appellant,
vs.
STATE OF FLORIDA, Appellee.
September 21, 2023
FRANCIS, J.
Michael Duane Zack, III, murdered two women in 1996 over
the course of a nine-day crime spree. On August 17, 2023,
Governor Ron DeSantis signed Zack’s death warrant for the murder
of Ravonne Smith, scheduling Zack’s execution for October 3, 2023.
Zack sought relief, filing his fourth successive postconviction
motion in the circuit court raising two claims: (1) that his execution
should be barred under the Eighth Amendment because his Fetal
Alcohol Syndrome (FAS) is the functional equivalent of an
intellectual disability; and (2) that his execution should be barred under the Eighth Amendment because the jury’s penalty phase
recommendation to impose the death penalty was not unanimous
(eleven-to-one). The postconviction court summarily denied Zack’s
claims as untimely, procedurally barred, and meritless. We agree
and affirm. 1 We also deny Zack’s motion for stay of execution and
request for oral argument filed in this Court.
I. Facts
We described the facts of the case on direct appeal as follows:
Although the murder of Smith took place on June 13, 1996, the chain of events which culminated in this murder began on June 4, 1996, when Edith Pope (Pope), a bartender in Tallahassee, lent her car to Zack. In the weeks prior, Zack had come to Pope’s bar on a regular basis. He generally nursed one or two beers and talked with Pope; she never saw him intoxicated. He told her that he had witnessed his sister murder his mother with an axe. As a result, Pope felt sorry for Zack, and she began to give him odd jobs around the bar. When Zack’s girlfriend called the bar on June 4 to advise him that he was being evicted from her apartment, Pope lent Zack her red Honda automobile to pick up his belongings. Zack never returned. From Tallahassee, Zack drove to Panama City where he met Bobby Chandler (Chandler) at a local pub. Over the next several days, Zack frequented the pub daily and befriended Chandler. Chandler, who owned a construction subcontracting business, hired Zack to work in his construction business. When Chandler
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
-2- discovered that Zack was living out of a car (the red Honda), he invited Zack to live with him temporarily. On the second night at Chandler’s, Zack woke up screaming following a nightmare. Chandler heard Zack groan words which sounded like “stop” or “don’t.” Although Chandler questioned him, Zack would not discuss the nightmare. Two nights later, on June 11, 1996, Zack left Chandler’s during the night, stealing a rifle, a handgun, and forty- two dollars from Chandler’s wallet. Zack drove to Niceville, and on the morning of June 12, 1996, pawned the guns for $225. From Niceville, Zack traveled to Okaloosa County and stopped at yet another bar. At this bar, Zack was sitting alone drinking a beer when he was approached by Laura Rosillo (Rosillo). The two left the bar in the red Honda and drove to the beach, reportedly to use drugs Zack said he possessed. Once on the beach, Zack attacked Rosillo and beat her while they were still in the Honda. He then pulled Rosillo from the car and beat her head against one of the tires. Rosillo’s tube top was torn and hanging off her hips. Her spandex pants were pulled down around her right ankle. The evidence suggests she was sexually assaulted; however, the sperm found in Rosillo’s body could not be matched to Zack. He then strangled her, dragged her body behind a sand dune, kicked dirt over her face, and departed. Zack’s next stop on this crime-riddled journey was Dirty Joe’s bar located near the beach in Pensacola. He arrived there on the afternoon of June 13, 1996, and met the decedent, Ravonne Smith. Throughout the afternoon, Smith, a bar employee, and Zack sat together in the bar talking and playing pool or darts. The bar was not very busy, so Smith spent most of her time with Zack. Both bar employees and patrons testified that Zack did not ingest any significant amount of alcohol and that he did not appear to be intoxicated. In the late afternoon, Smith contacted her friend Russell Williams (Williams) and invited him to the bar because she was lonely. Williams arrived at the bar around 5:30 p.m.
-3- Prior to leaving the bar around 7 p.m., Smith called her live-in boyfriend, Danny Schaffer, and told him she was working late. Smith, Williams, and Zack then left the bar and drove to the beach where they shared a marijuana cigarette supplied by Zack. Afterwards, they returned to the bar and Williams departed. Zack and Smith left the bar together sometime around 8 p.m. and eventually arrived at the house Smith shared with her boyfriend. Forensic evidence indicates that immediately upon entering the house Zack hit Smith with a beer bottle causing shards of glass and blood to spray onto the living room love seat and two drops of blood to spray onto the interior doorframe. Zack pursued Smith down the hall to the master bedroom leaving a trail of blood. Once in the bedroom Zack sexually assaulted Smith as she lay bleeding on the bed. Following the attack Smith managed to escape to the empty guest bedroom across the hall. Zack pursued her and beat her head against the bedroom’s wooden floor. Once he incapacitated Smith, Zack went to the kitchen where he got an oyster knife. He returned to the guest bedroom where Smith lay and stabbed her in the chest four times with the knife. The four wounds were close together in the center of Smith’s chest. Zack went back to the kitchen, cleaned the knife, put it away, and washed the blood from his hands. He then went back to the master bedroom, placed Smith’s bloody shirt and shorts in her dresser drawer, stole a television, a VCR, and Smith’s purse, and placed the stolen items in Smith’s car. During the night, Zack drove Smith’s car to the area where the red Honda was parked. He removed the license plate and several personal items from the Honda then moved it to a nearby lot. Zack returned to Panama City in Smith’s car and attempted to pawn the television and VCR. Suspecting the merchandise was stolen, the shop owners asked for identification and told Zack they had to check on the merchandise. Zack fled the store and abandoned Smith’s car behind a local restaurant.
-4- Zack was apprehended after he had spent several days hiding in an empty house. After he was arrested, Zack confessed to the Smith murder and to the Pope and Chandler thefts. Zack claimed he and Smith had consensual sex and that she thereafter made a comment regarding his mother’s murder. The comment enraged him, and he attacked her. Zack contended the fight began in the hallway, not immediately upon entering the house. He said he grabbed a knife in self-defense, believing Smith left the master bedroom to get a gun from the guest bedroom.
Zack v. State (Zack I), 753 So. 2d 9, 13–14 (Fla. 2000) (footnotes
omitted).
During the guilt phase, Zack’s defense was that due to
suffering from FAS as well as posttraumatic stress disorder (PTSD),
he was “impulsive, under constant mental and emotional distress,
and could not form the requisite intent to commit premeditated
murder.” Id. at 14. The State’s theory, on the other hand, was that
“Zack was a calculated stalker/predator, who stalked his prey in
bars.” Id. “His method of operation included befriending his prey,
gaining each person’s sympathy with stories of his mother’s death
and his abusive childhood, then taking advantage of the persons by
either robbing or sexually assaulting them.” Id. The jury found
Zack guilty on all counts on September 15, 1997.
-5- During Zack’s penalty phase, to establish statutory mitigators,
Zack presented four expert witnesses who discussed Zack’s mental
and emotional health including his FAS. Dr. William Spence, a
forensic psychologist, had previously diagnosed Zack with PTSD
when evaluating Zack in connection with an earlier offense. The
other three experts, Dr. James Larson, Dr. Barry Crown, and Dr.
Michael Maher, evaluated Zack after the murders of Ms. Smith and
Ms. Rosillo, and each diagnosed Zack with both PTSD and FAS.
Though none of the experts spoke to anyone who had contact with
Zack around the time of the murders, they “opined that the murder
was committed while Zack was under an extreme mental or
emotional disturbance and that Zack’s ability to appreciate the
criminality of his conduct was substantially impaired.” Id. at 15.
One of Zack’s experts also presented evidence of his IQ. Dr.
Larson testified that Zack had a full-scale IQ of 92. According to
Dr. Larson, Zack’s performance score was 104 and his verbal score
was 84. He opined that the twenty-point difference is statistically
significant and makes it highly probable that Zack has organic
brain damage.
-6- In rebuttal, the State’s expert, neuropsychologist Dr. Eric
Mings, testified that Zack’s full-scale IQ score was 86—in the low
average range. He testified that “[h]e could not diagnose Zack with
fetal alcohol syndrome because there were too many variables.” Id.
The State’s other expert, forensic psychologist Dr. Harry
McClaren, “indicated he administered the MMPI to Zack, but the
malingering scale was outside of the normal limits, making the test
useless.” Id. “Dr. McClaren opined, after interviews with persons
who had contact with Zack around the time of the murder, that the
statutory mental mitigators did not apply and that Zack’s actions
around the time of the murder were more planned than
spontaneous.” Id.
Additionally, Dr. McClaren testified that he diagnosed Zack as
having a personality disorder with prominent antisocial features.
Dr. McClaren also testified that Zack had anger directed toward
women.
Following the penalty phase, the jury voted to recommend the
death sentence by eleven to one. The trial court imposed the death
-7- sentence after finding six aggravators. 2 The trial court also found
there were four mitigators, including that Zack committed the crime
while under an extreme mental or emotional disturbance and that
he lacked capacity to understand the criminality of his conduct.
But the trial court gave these mitigating circumstances little
weight. 3
We affirmed Zack’s conviction and death sentence on direct
appeal. Id. at 26. Zack’s conviction and sentence became final on
October 2, 2000, when the United States Supreme Court denied
2. The trial judge found the following six aggravating circumstances: (1) the defendant was convicted of a capital felony while under a sentence of felony probation; (2) the crime was committed in conjunction with a robbery, sexual battery, or burglary; (3) the defendant committed the crime to avoid lawful arrest; (4) the defendant committed the crime for financial gain; (5) the crime was especially heinous, atrocious, and cruel; and (6) the crime was committed in a cold, calculated, and premeditated manner.
3. The trial court found that the following four mitigating circumstances were entitled to little weight: (1) the defendant committed the crime while under an extreme mental or emotional disturbance; (2) the defendant was acting under extreme duress; (3) the defendant lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; and (4) nonstatutory mitigating factors of remorse, voluntary confession, and good conduct while incarcerated.
-8- certiorari review. Zack v. Florida, 531 U.S. 858 (2000). Among the
twelve issues raised on direct appeal, Zack launched no challenge
to the jury’s nonunanimous recommendation to impose the death
sentence during the penalty phase, nor did he allege that he should
be categorically exempt from execution under the Eighth
Amendment. 4
Zack filed his first postconviction motion in 2002. That same
year, the United States Supreme Court decided two landmark death
4. Zack raised the following claims of error on direct appeal, alleging that the trial court erred by: (1) admitting similar fact evidence under Williams v. State, 110 So. 2d 654 (Fla. 1959); (2 & 3) denying a motion for judgment of acquittal on the sexual battery charge and on the robbery charge, respectively; (4) instructing the jury on felony murder based upon a burglary; (5) failing to consider all of Zack’s mitigating evidence in the sentencing order; (6 & 7) finding two aggravators, that the murder was committed to avoid or prevent a lawful arrest and was committed in a cold, calculated, and premeditated manner, respectively; (8) using victim impact evidence; (9) admitting rebuttal evidence from Zack’s former girlfriend, Candice Fletcher; (10) failing to give Zack’s proposed instruction on sympathy; (11) retroactively applying the aggravating factor of a murder committed while on felony probation; and (12) refusing to admit a family photo during the penalty phase. Zack I, 753 So. 2d at 16 n.5. This Court agreed with Zack on claim (6), that the “prevent lawful arrest” aggravator was not established, but this Court concluded it was harmless error. This Court also agreed with Zack on claim (11), that the felony probation aggravator was not retroactive, but again, this Court concluded that it was harmless error, particularly in light of the other four aggravators that supported imposition of the death penalty.
-9- penalty decisions: Atkins v. Virginia, 536 U.S. 304 (2002) (holding
that the Eighth Amendment does not permit the execution of
“mentally retarded” defendants), 5 and Ring v. Arizona, 536 U.S. 584
(2002) (holding that the Sixth Amendment requires a jury, not a
sentencing judge alone, to find an aggravating circumstance
necessary to impose the death penalty). Unsurprisingly, among
Zack’s six initial postconviction claims 6 were an Atkins and a Ring
claim.
5. Before Atkins was decided, the Florida Legislature created section 921.137, Florida Statutes (2001), which prohibited the execution of “mentally retarded” defendants; i.e., a defendant with “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” Ch. 2001-202, § 1, Laws of Fla. “[S]ignificantly subaverage general intellectual functioning” was defined as meaning “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Department of Children and Family Services.” Id. In 2006, the Legislature changed the responsible agency for the standardized intelligence test to the Agency for Persons with Disabilities. Ch. 2006-195, § 23, Laws of Fla. In 2013, the Legislature substituted the term “intellectual disability” for “mental retardation.” Ch. 2013-162, § 38, Laws of Fla. Otherwise, the definitions have not been materially changed.
6. Zack’s registry counsel raised six issues in his motion for postconviction relief: (1) whether counsel was ineffective for failing to object to DNA evidence and for failing to request a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (2) whether the trial court erred in failing to sua sponte hold a Frye hearing; (3)
- 10 - To establish his Atkins claim for his 2002 postconviction
motion, Zack was evaluated by Brett Turner, Psy.D., who prepared
a neuropsychological evaluation for collateral counsel during
postconviction litigation. Dr. Turner performed a WAIS-III IQ test in
2002 that showed a current full-scale IQ of 79. Dr. Turner’s written
report also referred to a prior IQ test performed in 1980 when Zack
was eleven years old, showing a full-scale IQ of 92. The
postconviction court, however, relying on expert testimony from
trial reflecting that Zack’s IQ was 84 or 86, summarily denied
Zack’s Atkins claim because he did not meet the statutory definition
of intellectually disabled. Zack v. State (Zack II), 911 So. 2d 1190,
whether trial counsel was ineffective for calling Zack to testify without preparing him for cross-examination or explaining to him that he had a choice whether to testify; (4) whether the death penalty is disproportionate due to Zack’s possible brain dysfunction and mental impairment, both of which are in the same category as mental retardation and prohibit Zack’s execution under Atkins; (5) whether trial counsel was ineffective in closing arguments to the jury; and (6) whether the sentence is unconstitutional pursuant to Ring. Zack v. State (Zack II), 911 So. 2d 1190, 1196 (Fla. 2005). The trial court summarily denied issues two, four, and six, but held an evidentiary hearing on issues one, three, and five. The trial court ultimately denied all postconviction relief.
- 11 - 1196 (Fla. 2005). The trial court also summarily denied his Ring
Zack appealed the postconviction court’s order in 2005 and
raised five issues, including challenges to the trial court’s summary
denial of his Atkins and Ring claims. 7 Zack also filed a petition for
writ of habeas corpus which was addressed in Zack II. 8 This Court
affirmed the summary denial of Zack’s Atkins claim in Zack II,
7. On postconviction appeal, Zack raised the following issues: (1) trial counsel’s ineffectiveness for failing to challenge the State’s DNA evidence; (2) trial counsel’s ineffectiveness for failing to prepare Zack to testify at trial; (3) trial counsel’s ineffectiveness in making prejudicial remarks to the jury in both opening statement and closing argument; (4) the postconviction court erred in summarily denying Zack’s postconviction claims involving Zack’s right to a Frye hearing and the constitutionality of the death sentence under Atkins; (5) that Florida’s capital sentencing scheme is unconstitutional under Ring; and (6) postconviction counsel was ineffective. Zack II, 911 So. 2d at 1197.
8. In his habeas petition, Zack alleged that his appellate counsel was ineffective for failing to raise six claims on direct appeal: (1) that the State’s peremptory challenge during jury selection was racially motivated; (2) that the prosecutor made impermissible arguments to the jury; (3) that the State impermissibly introduced nonstatutory aggravating factors; (4) that the trial court erred by admitting crime scene photos that were prejudicial and gruesome; (5) that the trial court erred by admitting evidence of other crimes; and (6) that the trial court erred by admitting irrelevant and prejudicial evidence. Zack II, 911 So. 2d at 1203.
- 12 - noting that Zack did not meet the statutory criteria based even on
his lowest IQ score of 79, and that Atkins claims should be raised in
a motion filed under Florida Rule of Criminal Procedure 3.203. 911
So. 2d at 1201–02. As to Zack’s Ring claim, this Court held, in
part, that because Ring did not retroactively apply to cases that
were already final when it was decided, Ring did not apply to Zack’s
sentence. Id. at 1203. Thus, this Court affirmed the postconviction
court’s order and denied Zack’s petition for habeas relief. Id. at
1211.
We set out most of Zack’s subsequent, successive
postconviction history related to his intellectual disability claim in
Zack v. State (Zack III):
Zack filed a successive postconviction motion on December 1, 2004, raising an Atkins claim. The trial court denied the claim without an Atkins hearing, finding that after a review of the expert trial testimony none had found Zack’s I.Q. to be near the required statutory figure of 70 in order to establish intellectual disability. This Court affirmed the trial court’s denial [by order]. In its order, this Court relied on Cherry v. State, 781 So. 2d 1040 (Fla. 2000), and held that “Zack has not provided any new evidence of [intellectual disability] and previous evidence demonstrates that his I.Q. was well above the statutory figure of 70 or below.” [Zack v. State, 982 So. 2d 1179 (Fla. 2007) (table).] On March 4, 2005, Zack filed a second petition for a writ of habeas corpus based upon the Supreme Court’s
- 13 - decision in Crawford v. Washington, 541 U.S. 36 (2004). This Court denied the petition on October 6, 2005. Zack v. Crosby, 918 So. 2d 240 (Fla. 2005). Zack also filed a federal habeas petition that included an Atkins claim. Zack v. Crosby, 607 F.Supp.2d 1291 (N.D. Fla. 2008). All claims not based on Atkins were dismissed with prejudice as untimely. Id. at 1295. Zack’s Atkins claim was denied with prejudice on the merits on March 26, 2009. In its order, the court found that the record refuted Zack’s allegation that he is intellectually disabled and held that the record uniformly concluded that Zack’s I.Q. was significantly above the minimum threshold for intellectual disability. The Eleventh Circuit, in an en banc opinion, affirmed the dismissal of many of the claims in the habeas petition as untimely. Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013). The Supreme Court denied certiorari review on October 7, 2013. Zack v. Crews, [571 U.S. 863] (2013). On May 26, 2015, Zack filed a second successive postconviction motion raising a claim of intellectual disability based on Hall v. Florida, [572 U.S. 701] (2014). The trial court summarily denied the motion on July 8, 2015.
228 So. 3d 41, 45–46 (Fla. 2017) (second alteration in original).
This Court affirmed the postconviction court’s summary denial
of the Hall claim in Zack III, explaining that Zack was unable to
“present additional evidence of intellectual disability” because his
“I.Q. test score falls within the test’s acknowledged and inherent
margin of error.” Id. at 46 (quoting Hall, 572 U.S. at 723). As this
Court further explained,
- 14 - At the Huff [v. State, 622 So. 2d 982 (Fla. 1993)] hearing, Zack presented his full range of scores, as well as evidence of adaptive deficits before age 18. The record demonstrates five I.Q. scores for Zack: a score of 92 in 1980 when Zack was 11 years old, and four scores after Zack turned 18—84 and 86 in 1997 at 27 years of age, 79 in 2002, and 80 in 2015. While a holistic hearing is required, defendants must still be able to meet the first prong of Hall. Because Zack’s current score is well above 75, and there are no scores in his history below 75, it is unlikely that he would ever be able to satisfy the significantly subaverage intellectual functioning prong.
Id. at 47 (footnote omitted).
Zack also filed a successive habeas petition asserting that his
death sentence is unconstitutional under Hurst v. Florida, 577 U.S.
92 (2016). Zack III, 228 So. 3d. at 47. This Court denied this claim
in Zack III, holding that Hurst has been interpreted as an extension
of Ring and does not apply retroactively to cases that were final
before Ring was decided. Id. at 47–48. The United States Supreme
Court denied certiorari review. Zack v. Florida, 138 S. Ct. 2653
(2018).
Nonetheless, Zack filed his third successive postconviction
motion in 2017, raising five claims that were all dependent on the
retroactive application of Hurst. Zack v. State (Zack IV), 43 Fla. L.
Weekly S429 (Fla. Oct. 4, 2018). The postconviction court
- 15 - summarily denied relief, holding that Zack’s sentence was final
before Ring, so Hurst did not retroactively apply to him. Id. at
S429. This Court affirmed in 2018, id. at S430, and the United
States Supreme Court denied certiorari review. Zack v. Florida, 139
S. Ct. 1622 (2019).
On August 17, 2023, Governor DeSantis issued a death
warrant for the execution of Zack. The execution is scheduled for
Tuesday, October 3, 2023, at 6:00 p.m. Zack timely filed his fourth
successive postconviction motion raising two claims asserting that
his execution is barred by the Eighth Amendment on the basis that
(1) his FAS diagnosis is the functional equivalent of an intellectual
disability, and (2) his penalty phase jury recommendation was not
unanimous. The postconviction court summarily denied both
claims, finding both to be untimely, procedurally barred, and
meritless under this Court’s recent Dillbeck decision. See Dillbeck
v. State, 357 So. 3d 94 (Fla. 2023).
On appeal, Zack asserts that the postconviction court erred by
summarily denying his fourth successive postconviction motion.
We find no error and affirm.
- 16 - II. Analysis
“Summary denial of a successive postconviction motion is
appropriate ‘[i]f the motion, files, and records in the case
conclusively show that the movant is entitled to no relief.’ ” Owen
v. State, 364 So. 3d 1017, 1022 (Fla. 2023) (quoting Bogle v. State,
322 So. 3d 44, 46 (Fla. 2021) (alteration in original)). The
appropriate standard of review of “the circuit court’s decision to
summarily deny a successive rule 3.851 motion [is] de novo,
accepting the movant’s factual allegations as true to the extent they
are not refuted by the record, and affirming the ruling if the record
conclusively shows that the movant is entitled to no relief.” Id. at
1022–23 (quoting Walton v. State, 3 So. 3d 1000, 1005 (Fla. 2009)).
It is also appropriate for a postconviction court to summarily
dismiss claims raised in a successive postconviction motion that are
untimely or procedurally barred. See Fla. R. Crim. P. 3.851(e)(2) (“A
claim raised in a successive motion shall be dismissed if the trial
court finds that it fails to allege new or different grounds for relief
and the prior determination was on the merits; or, if new and
different grounds are alleged, the trial court finds that the failure to
assert those grounds in a prior motion constituted an abuse of the
- 17 - procedure; or, if the trial court finds there was no good cause for
failing to assert those grounds in a prior motion; or, if the trial court
finds the claim fails to meet the time limitation exceptions set forth
in subdivision (d)(2)(A), (d)(2)(B), or (d)(2)(C).”).
With some exceptions, Florida Rule of Criminal Procedure
3.851(d) bars “[a]ny motion to vacate judgment of conviction and
sentence of death” not filed “within 1 year after the judgment and
sentence become final.” 9 But there are three exceptions to raising
postconviction claims outside of the one-year timeframe:
(A) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or (B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or (C) postconviction counsel, through neglect, failed to file the motion.
Fla. R. Crim. P. 3.851(d)(2)(A)–(C).
9. Under rule 3.851(d)(1)(A) and (B), a judgment becomes final upon either “the expiration of the time permitted to file in the United States Supreme Court a petition for writ of certiorari seeking review of the Supreme Court of Florida decision affirming a judgment and sentence of death (90 days after the opinion becomes final)” or upon “the disposition of the petition for writ of certiorari by the United States Supreme Court, if filed.”
- 18 - A. Extension of Atkins
In his first issue on appeal, Zack claims that the
postconviction court erred by summarily denying his claim—that
FAS is the functional equivalent of an intellectual disability under
the Eighth Amendment and Atkins—as untimely, procedurally
barred, and meritless. Finding no error, we agree and affirm.
(1) Timeliness
The postconviction court found that Zack’s claims were
untimely filed under rule 3.851(d)(1), and that he improperly seeks
to avoid this procedural bar under rule 3.851(d)(2) by asserting
there is a new consensus—based on research articles and
opinions—that FAS is now considered to be equivalent to an
intellectual disability. The postconviction court is correct.
Zack’s FAS claim meets none of the exceptions under rule
3.851(d)(2)(A)–(C). As demonstrated by the extensive history of
Zack’s postconviction and habeas proceedings, the facts upon
which his intellectual disability claim is predicated have long been
known to him and his attorneys. He has long known his IQ score
range (the lowest score of 79 was established in 2002) and his
experts’ FAS diagnosis (relied on at trial in 1997). Yet, he relies on
- 19 - this twenty-year-old-plus information to now claim he should be
deemed intellectually disabled and, thus, categorically exempt from
execution under Atkins. But Zack raises no newly discovered
evidence on this point. See Dillbeck, 357 So. 3d at 99 (“[A]n
intellectual disability claim that is based on newly discovered
evidence must be filed ‘within one year of the date upon which the
claim became discoverable through due diligence.’ ”) (quoting
Pittman v. State, 337 So. 3d 776, 777 (Fla. 2022)).
Zack instead cites to “new scientific consensus” found in
several articles published in 2017 and 2021, though one was
corrected in 2022. 10 Zack also offered a declaration from one of the
article’s authors, Natalie Novick Brown, Ph.D., who evaluated Zack
and explained why FAS (which is the most severe form of Fetal
10. There are three cited articles: (1) Stephen Greenspan, Natalie Novick Brown & William J. Edwards, Determining Disability Severity Level for Fetal Alcohol Spectrum Disorder: Assessing the Extent of Impairment, Evaluating Fetal Alcohol Spectrum Disorders in the Forensic Context (Springer, 2021; corrected, 2022); (2) Natalie Novick Brown & Stephen Greenspan, Diminished Culpability in Fetal Alcohol Spectrum Disorders (FASD), 2021 Behav. Sci. L. 1; and (3) Jerrod M. Brown, et al., Fetal Alcohol Spectrum Disorders (FASD) and Competency to Stand Trial (CST), 52 Int’l. J. L. & Psych. 19, 21–22 (2017).
- 20 - Alcohol Spectrum Disorders (FASD)), is now recognized as being
equivalent to an intellectual disability. She also explained why IQ
scores, though relevant, are an “outmoded concept” for determining
intellectual disability. But these articles and Dr. Novick Brown’s
declaration rely on older sources. Dr. Novick Brown’s declaration
notes that she helped promulgate this information within the legal
community in 2012, through a resolution adopted by the American
Bar Association that she helped author.
This Court has repeatedly held that “ ‘[n]ew opinions or
research studies based on a compilation or analysis of previously
existing data and scientific information’ are not generally
considered newly discovered evidence.” Dillbeck, 357 So. 3d at 99
(quoting Henry v. State, 125 So. 3d 745, 750 (Fla. 2013) (noting that
“Dillbeck cites a 2021 article for the proposition that the medical
and scientific community view ND-PAE as equivalent to intellectual
disability, and that article in turn relies on older sources”)). And
this Court has found “new scientific consensus” to be an
unpersuasive reason to restart the clock for purposes of timely filing
successive postconviction claims. Barwick v. State, 361 So. 3d 785,
793 (Fla. 2023) (affirming summary denial of a successive
- 21 - postconviction Eighth Amendment claim as untimely because “the
APA resolution does not constitute newly discovered evidence such
that it creates an exception to the one-year time limitation for filing
postconviction claims”); Sliney v. State, 362 So. 3d 186, 189 (Fla.
2023) (affirming summary denial of a successive postconviction
Eighth Amendment claim seeking to expand Roper v. Simmons, 543
U.S. 551 (2005), based on a new scientific consensus regarding
brain development as untimely).
Additionally, as to the second timeliness exception, Zack cited
to no new case announcing a newly recognized, retroactive
fundamental constitutional right establishing that FAS is the
functional equivalent of an intellectual disability. Rather, it appears
Zack improperly sought to have a new fundamental constitutional
right recognized in his successive rule 3.851 motion. See Carroll v.
State, 114 So. 3d 883, 886 (Fla. 2013) (holding that Caroll’s claim
that Atkins should be extended to mentally ill persons is a claim
“seeking . . . recognition of a new fundamental constitutional right,
which is not properly pled under rule 3.851(d)(2)(B)”).
Finally, Zack’s postconviction counsel throughout the years
certainly have not neglected to raise some form of his current claim,
- 22 - that FAS is equivalent to an intellectual disability under Atkins and
bars his execution. Thus, because Zack meets none of the
exceptions to the timeliness requirement set forth in rule
3.851(d)(2)(A)–(C), the postconviction court did not err in finding
this claim to be untimely.
(2) Procedural Bar
The record supports the postconviction court’s conclusion that
Zack’s claim is procedurally barred. Zack has repeatedly raised
some variation of the claim he now raises, that FAS is the
functional equivalent of an intellectual disability under Atkins and
the Eighth Amendment. As noted by the postconviction court’s
order, Zack’s FAS intellectual disability claim was raised and
decided against him in 2002, see Zack II, 911 So. 2d at 1202
(affirming denial of Atkins claim); in 2004, see Zack, 982 So. 2d
1179 (unpublished order affirming summary denial of Atkins claim
where Zack presented no new evidence of intellectual disability); in
2015, see Zack III, 228 So. 3d at 47 (affirming denial of Atkins claim
raised in light of Hall); and in 2017, see Zack IV, 43 Fla. L. Weekly
at S429 (affirming denial of claim pertaining to “a jury finding of
intellectual disability” in light of Hurst).
- 23 - Though Zack’s latest claim that FAS is equivalent to an
intellectual disability is grounded in “new scientific consensus” and
“evolving standards of decency,” this Court recently reiterated in
Barwick that “using ‘a different argument to relitigate the same
issue’ . . . is inappropriate.” Barwick, 361 So. 3d at 793 (quoting
Medina v. State, 573 So. 2d 293, 295 (Fla. 1990)). In Barwick, this
Court found Barwick’s claim that he should be “exempt from
execution due to his mental deficiencies” was, at its core, the same
claim he’d previously raised three times and was, thus,
procedurally barred. Id. at 795 (“Thus, the instant claim is a
variation of claims that were raised in prior proceedings, and as
such, is procedurally barred.”). Like Barwick’s, Zack’s claim that he
should be exempt from execution under the Eighth Amendment due
to his FAS diagnosis is, at its core, the same claim he’s repeatedly
raised since 2002. Thus, the postconviction court did not err in
concluding that this claim is procedurally barred.
Further, “[e]ven if this claim had not been raised in a prior
proceeding, it is still procedurally barred because it could have been
raised previously.” Id.; see also Branch v. State, 236 So. 3d 981,
986 (Fla. 2018) (holding that an extension-of-Roper claim was
- 24 - procedurally barred in an active warrant case because it could have
been raised previously); Simmons v. State, 105 So. 3d 475, 511 (Fla.
2012) (rejecting as procedurally barred a claim, based on Roper and
Atkins, that the defendant was exempt from execution based on
mental illness and neuropsychological deficits because it could have
been raised in prior proceedings). “Evolving standards of decency”
arguments in the Eighth Amendment context have long been
recognized. See Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (“The
basic concept underlying the Eighth Amendment is nothing less
than the dignity of man. . . . The Amendment must draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society.”); Atkins, 536 U.S. at 311–12
(quoting Trop, 356 U.S. at 100–01). And Zack’s own exhibits to his
fourth successive postconviction motion reflect that the medical
consensus for forensically evaluating FAS as an intellectual
disability was widely accepted as early as 2018 or 2019.
Thus, the postconviction court did not err in finding this claim
to be procedurally barred.
- 25 - (3) Merits
Finally, even if timely and not procedurally barred, Zack’s
claim is meritless as recognized in this Court’s recent active
warrant decisions in Dillbeck and Barwick. In both Dillbeck and—
in reliance on Dillbeck—Barwick, this Court rejected similar
“extension-of-Atkins” claims because this Court has “long held that
the categorical bar of Atkins that shields the intellectually disabled
from execution does not apply to individuals with other forms of
mental illness or brain damage.” Dillbeck, 357 So. 3d at 100 (citing
Gordon v. State, 350 So. 3d 25, 37 (Fla. 2022) (“For the purposes of
the Eighth Amendment, the existence of a traumatic brain injury
does not reduce an individual’s culpability to the extent they
become immune from capital punishment.”)); Barwick, 361 So. 3d
at 795 (rejecting as untimely, procedurally barred, and meritless a
claim that the protections of Atkins as well as Roper should be
extended); see also Carroll, 114 So. 3d at 887 (rejecting as untimely,
procedurally barred, and meritless a claim that the protections of
Atkins and Roper should be extended to a defendant who is less
culpable as a result of mental illness); Simmons, 105 So. 3d at 511
(rejecting a claim that persons with mental illness must be treated
- 26 - similarly to those with intellectual disability due to reduced
culpability); Lawrence v. State, 969 So. 2d 294, 300 n.9 (Fla. 2007)
(rejecting a claim that the Equal Protection Clause requires an
extension of Atkins to the mentally ill due to their reduced
culpability).
And as recognized by Barwick, this Court lacks the authority
to extend Atkins to individuals who “are not intellectually disabled
as provided in Atkins.” Barwick, 361 So. 3d at 795. This Court
must interpret Florida’s prohibition against cruel and unusual
punishment in conformity with decisions of the United States
Supreme Court under the conformity clause in article I, section 17
of the Florida Constitution. 11 Id. “This means that the Supreme
Court’s interpretation of the Eighth Amendment is both the floor
and the ceiling for protection from cruel and unusual punishment
in Florida . . . .” Id. at 794. “[A]nd this Court cannot interpret
11. The conformity clause in article I, section 17 states, “The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution.”
- 27 - Florida’s prohibition against cruel and unusual punishment to
provide protection that the Supreme Court has decided is not
afforded by the Eighth Amendment.” Id. Supreme Court precedent
“has limited the categorical ban announced in Atkins so that
individuals with mental deficiencies other than intellectual
disability are outside the scope of that ban.” Id. at 795.
Because Florida Courts lack the authority to extend Atkins to
Zack, who is not “intellectually disabled as provided in Atkins,” id.,
the postconviction court properly denied this claim as meritless.
B. Nonunanimous Penalty Phase Jury Recommendation
The postconviction court concluded that Zack’s second claim,
that his nonunanimous death recommendation by the jury during
his penalty phase violates the Eighth Amendment, is untimely,
procedurally barred, and meritless. Again, the postconviction court
committed no reversible error.
As noted under Issue I, Zack cannot meet any of the timing
exceptions under rule 3.851(d)(2)(A)–(C) for raising the claim that
his nonunanimous penalty phase verdict violates the Eighth
Amendment. Zack has clearly known about the jury’s
- 28 - nonunanimous recommendation since his 1997 penalty phase, but
he raised no challenge to it in his direct appeal. He did raise this
issue in his initial postconviction motion, after Ring was decided in
2002. But in 2005, this Court affirmed the trial court’s denial of
Zack’s Ring claim, holding that Ring did not retroactively apply to
Zack’s sentence because it was already final when Ring was
decided. Zack II, 911 So. 2d at 1203. Zack raised this claim again
in a state habeas petition after Hurst was decided in 2016. But in
2017, noting that Hurst is an extension of Ring, this Court denied
his petition, holding that Zack is not covered by Hurst because
Hurst does not retroactively apply to cases that were final before
Ring. See Zack III, 228 So. 3d at 47–48. Nonetheless, Zack filed
another successive postconviction motion in 2018 raising multiple
Hurst-based claims premised on Hurst being retroactive. This
Court, again, affirmed the postconviction court’s denial of these
claims, holding that, as a matter of law, Zack was not entitled to
relief and had provided no compelling argument for reconsideration
of the Court’s prior rulings. Zack IV, 43 Fla. L. Weekly at S429.
Now in his fourth successive postconviction motion, Zack
presents nothing constituting an exception to the one-year
- 29 - timeframe. He cites neither to newly discovered evidence nor a case
setting forth a newly established and retroactive fundamental
constitutional right on this point. He instead raises an “evolving
standards of decency” argument and alleges that Florida—along
with Alabama—is a jurisdictional outlier in failing to require a
unanimous jury recommendation for death. But this argument is
nothing new and could have been raised in Zack’s direct appeal.
See Spaziano v. Florida, 468 U.S. 447, 463–65 (1984) (considering
whether Florida’s capital sentencing scheme offended the
“contemporary standards of fairness and decency” by looking at
sentencing schemes in other jurisdictions).
Zack attempts to establish that his “evolving standards of
decency” claim is timely in light of Hurst and the Florida
Legislature’s adoption of a less than unanimous jury
recommendation in 2023. See ch. 2023-23, § 1, Laws of Fla.
(amending section 921.141(2)(c) and 921.141(3)(a)2., Florida
Statutes (2022), which required a unanimous jury recommendation,
to permit trial courts to impose a death sentence if at least eight
jurors recommend a sentence of death) (effective April 20, 2023).
But neither applies to Zack. When Zack was sentenced in 1997, a
- 30 - unanimous jury recommendation for death was not required. See
§ 921.141(2), Fla. Stat. (1996) (requiring that the jury render an
advisory sentence to the trial court, including whether defendant
should be sentenced to life or death). And Hurst v. State, 202 So.
3d 40, 59 (Fla. 2016)—which was abrogated in part by State v.
Poole, 297 So. 3d 487, 504 (Fla. 2020)—was never held to
retroactively apply to Zack because Ring did not retroactively apply
to Zack. See Zack III, 228 So. 3d at 47–48.
Accordingly, there is no error in the postconviction court’s
conclusion that this claim is untimely.
Further, there is no error in the postconviction court’s
conclusion that this claim is procedurally barred. As already noted,
Zack has repeatedly raised the claim that his nonunanimous jury
recommendation for death violates the Eighth Amendment. See
Zack II, 911 So. 2d at 1203 (rejecting Ring claim); Zack III, 228 So.
3d at 47–48 (rejecting Hurst claim); Zack IV, 43 Fla. L. Weekly at
S429–S430 (rejecting Hurst claim).
To avoid this bar, Zack’s current iteration of his claim rests on
an “evolving standards of decency” argument. But as noted
- 31 - already, “evolving standards of decency” arguments in the Eighth
Amendment context have long been recognized, see Trop, 356 U.S.
at 100–01; Spaziano, 468 U.S. at 465, and Zack could have raised
this claim on direct appeal. Further, though meritless, Zack’s
argument that juries were required to sentence defendants to death
at the time of the Eighth Amendment’s adoption in 1791 was
certainly an argument he could have discovered by the time of his
trial 200 years later and raised on direct appeal.
Thus, the postconviction court did not err in finding this claim
(3) Merits
Even if timely and not barred, to the extent Zack frames this
issue as one of “evolving standards of decency” under the Eighth
Amendment, this Court rejected precisely the same argument in
Dillbeck. In Dillbeck, this Court explained that a nonunanimous
jury challenge is meritless because “we are ‘bound by Supreme
Court precedents that construe the United States Constitution,’ and
the Supreme Court’s precedent establishes that the Eighth
Amendment does not require a unanimous jury recommendation of
death.” 357 So. 3d at 104 (quoting Poole, 297 So. 3d at 504). This
- 32 - Court further explained in Dillbeck that “[t]he Supreme Court
‘rejected the exact argument . . . that the Eighth Amendment
requires a unanimous jury recommendation of death’ in Spaziano,”
id. (quoting Poole, 297 So. 3d at 504), and that “Spaziano is still
good law.” Id. at 104.
In Poole, this Court overturned its earlier precedent in Hurst v.
State, which held “that the Eighth Amendment requires a
unanimous jury recommendation of death.” 297 So. 3d at 504. In
so doing, Poole clarified that Ring and Hurst were Sixth Amendment
cases that had “nothing to do with jury sentencing.” Id. (quoting
Ring, 536 U.S. at 612, (Scalia, J., concurring)). Further, Poole
found that Hurst v. State erred in holding that “the Eighth
Amendment requires a unanimous jury recommendation of death”
because “[t]he Supreme Court rejected that exact argument in
Spaziano.” Id. “The Constitution permits the trial judge, acting
alone, to impose a capital sentence.” Id. (quoting Harris v.
Alabama, 513 U.S. 504, 515 (1995)). “We are bound by Supreme
Court precedents that construe the United States Constitution.” Id.
Because the Supreme Court’s Eighth Amendment precedent to
which we are bound does not require a unanimous jury
- 33 - recommendation for death during the penalty phase, the
postconviction court properly found this claim to be meritless.
III. Conclusion
We affirm the summary denial of Zack’s fourth successive
motion for postconviction relief. We also deny his motions for stay
of execution and for oral argument. No motion for rehearing will be
entertained by this Court. The mandate shall issue immediately.
It is so ordered.
MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, and SASSO, JJ., concur. LABARGA, J., concurs in result.
An Appeal from the Circuit Court in and for Escambia County, Linda L. Nobles, Judge Case No. 171996CF002517XXXAXX
Robert Friedman, Capital Collateral Regional Counsel, Dawn B. Macready, Assistant Capital Collateral Regional Counsel, and Stacy R. Biggart, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida,
for Appellant
Ashley Moody, Attorney General, Charmaine M. Millsaps, Senior Assistant Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, Florida,
for Appellee
- 34 -