Omar Blanco v. State of Florida

249 So. 3d 536

Opinion

PER CURIAM.

Omar Blanco, a prisoner under sentence of death, appeals the circuit court's orders summarily denying his fifth motion for postconviction relief, which was filed under Florida Rules of Criminal Procedure 3.851 and 3.203. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

In 1982, a jury convicted Blanco of first-degree murder and armed burglary. We affirmed Blanco's convictions and sentence of death on direct appeal. Blanco v. State , 452 So.2d 520 (Fla. 1984). We also upheld the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Blanco v. Wainwright , 507 So.2d 1377 (Fla. 1987). A federal court later vacated the death sentence based on ineffective assistance of penalty phase counsel. Blanco v. Dugger , 691 F.Supp. 308 (S.D. Fla. 1988), aff'd sub nom. Blanco v. Singletary , 943 F.2d 1477 (11th Cir. 1991). 1 In 1994, following a new penalty phase on resentencing, the jury recommended a death penalty by a vote of ten to two. We affirmed Blanco's resentence of death. Blanco v. State , 706 So.2d 7 (Fla. 1997). We also upheld the denial of his fourth postconviction motion. Blanco v. State , 963 So.2d 173 (Fla. 2007).

In May 2015, Blanco filed his current fifth postconviction motion under Florida Rules of Criminal Procedure 3.851 and 3.203. Within his motion, Blanco sought relief based on Hall v. Florida , --- U.S. ----, 134 S.Ct. 1986 , 188 L.Ed.2d 1007 (2014), and Atkins v. Virginia , 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002). Blanco subsequently filed an *537 amended postconviction motion in which he sought additional relief based on Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016). In January 2017, the circuit court issued an order summarily denying Blanco's intellectual disability claim as time-barred in light of this Court's decision in Rodriguez v. State , No. SC15-1278, 2016 WL 4194776 (Fla. Aug. 9, 2016) (unpublished order). This appeal followed. 2 While Blanco's postconviction case was pending in this Court, the Court directed Blanco to show cause why the circuit court's May 2017 order-entered by the circuit court on relinquishment-should not be affirmed in light of this Court's decision in Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017). This Court also directed further briefing on the intellectual-disability-related issue.

We conclude that Blanco's intellectual disability claim is foreclosed by the reasoning of this Court's decision in Rodriguez . In Rodriguez , this Court applied the time-bar contained within rule 3.203 to a defendant who sought to raise an intellectual disability claim under Atkins for the first time in light of Hall . We also conclude that Blanco's Hurst claim is foreclosed by this Court's decision in Hitchcock . In Hitchcock , this Court applied Asay to mean that Ring v. Arizona , 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), is the cutoff for any and all Hurst -related claims. Accordingly, we affirm the circuit court's orders denying Blanco's fifth motion for postconviction relief.

Any rehearing motion containing reargument will be stricken.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

I agree with the per curiam opinion's result because this Court's opinions regarding Hurst retroactivity are now final. Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513 , 199 L.Ed.2d 396 (2017) ; Asay v. State ( Asay V ), 210 So. 3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41 , 198 L.Ed.2d 769 (2017). However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock that Hurst should apply retroactively to cases like Blanco's. Hitchcock , 226 So.3d at 220-23 (Pariente, J., dissenting). Applying Hurst to Blanco's sentence of death, I would grant a new penalty phase based on the jury's nonunanimous recommendation for death by a vote of ten to two. Majority op. at 536-37.

1 Blanco's second postconviction motion was filed during the federal habeas proceedings, but it was dismissed as moot when the federal court ordered resentencing.

Blanco's third postconviction motion was filed during the pendency of the resentencing proceedings. We affirmed. Blanco v. State , 702 So.2d 1250 (Fla. 1997).

2 While Blanco's postconviction case was pending in this Court, the Court temporarily relinquished jurisdiction for the circuit court to enter a written order on the Hurst -related claim contained within Blanco's amended postconviction motion. In May 2017, the circuit court issued an order on relinquishment summarily denying Blanco's Hurst claim in light of this Court's decision in Asay v. State , 210 So.3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41 , 198 L.Ed.2d 769 (2017).