          Supreme Court of Florida
                                  ____________

                                  No. SC17-790
                                  ____________

                         HAROLD LEE HARVEY, Jr.,
                               Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                November 15, 2018

PER CURIAM.

      Harold Lee Harvey, Jr., appeals the summary denial of his successive

postconviction motion to vacate his sentences of death under Florida Rule of

Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Because we find that the record conclusively demonstrates that Harvey is not

entitled to relief, we find that the postconviction court properly summarily denied

Harvey’s motion.

      Harvey was convicted in 1986 for the murders of Ruby and William Boyd.

His crimes are detailed in Harvey v. State, 529 So. 2d 1083 (Fla. 1988). We

affirmed Harvey’s convictions and sentences. Id. His death sentences became
final on February 21, 1989, when the United States Supreme Court denied

certiorari review. See Harvey v. Florida, 489 U.S. 1040 (1989). We denied

habeas relief in Harvey v. Dugger, 656 So. 2d 1253 (Fla. 1995), and affirmed the

denial of Harvey’s initial postconviction motion in Harvey v. State, 946 So. 2d

937, 940 (Fla. 2006). In the instant appeal, Harvey argues that the postconviction

court erred in denying his intellectual disability claim without an evidentiary

hearing and in denying his claim for relief under Hurst v. Florida, 136 S. Ct. 616

(2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016).

      A postconviction court’s decision on whether to grant an evidentiary hearing

on a postconviction motion is a pure question of law, reviewed de novo. Mann v.

State, 112 So. 3d 1158, 1162 (Fla. 2013). “If the motion, files and records in the

case conclusively show that the movant is entitled to no relief, the motion may be

denied without an evidentiary hearing.” Fla. R. Crim. P. 3.851(f)(5)(B).

      Harvey’s motion was filed December 20, 2016. Harvey, who had never

before raised an intellectual disability claim, argues that his claim was timely

because he filed two months after this Court decided Walls v. State, 213 So. 3d 340

(Fla. 2016). We have previously held that a similarly situated defendant’s claim

was untimely because he failed to raise a timely intellectual disability claim under

Atkins v. Virginia, 536 U.S. 304 (2002). See Rodriguez v. State, 250 So. 3d 616




                                         -2-
(Fla. 2016). Accordingly, the record conclusively shows that Harvey’s claim is

untimely, and he is not entitled to relief.

      Harvey also contends that he is eligible for Hurst relief. This Court has

repeatedly held that Hurst relief does not extend to cases final before the United

States Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002). See, e.g.,

Hitchcock v. State, 226 So. 3d 216, 217 (Fla. 2017), cert. denied, 138 S. Ct. 513

(2017). Harvey’s case became final when the United States Supreme Court denied

certiorari review of our opinion on direct appeal on February 21, 1989. See

Harvey v. Florida, 489 U.S. 1040 (1989).1 Accordingly, the record conclusively

demonstrates that he is not entitled to relief on this claim.

      Based on the foregoing, we affirm the postconviction court’s summary

denial of Harvey’s motion.

      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.




       1. This is true despite the fact that, in an opinion that never became final, we
briefly vacated Harvey’s convictions and remanded for a new trial in Harvey v.
State, 28 Fla. L. Weekly S513, S513-15 (Fla. July 3, 2003) (citing Nixon v.
Singletary, 758 So. 2d 618 (Fla. 1995)). In light of the United States Supreme
Court’s decision in Florida v. Nixon, 543 U.S. 175, 187 (2004), we withdrew that
opinion on rehearing, rejected Harvey’s ineffective assistance claim, and affirmed
his death sentence. See Harvey v. State, 946 So. 2d 937, 940 (Fla. 2006).


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ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.

PARIENTE, J., concurring in result.

      I agree that Harvey is not entitled to relief on his intellectual disability claim

because he “failed to raise a timely . . . claim under Atkins v. Virginia, 536 U.S.

304 (2002).” Per curiam op. at 2. However, as I have explained several times, I

would apply Hurst 2 retroactively to Harvey’s case. See Hitchcock v. State, 226 So.

3d 216, 222-23 (Fla.) (Pariente, J., dissenting), cert. denied, 138 S. Ct. 513 (2017);

see also Asay v. State (Asay V), 210 So. 3d 1, 32-36 (Fla. 2016) (Pariente, J.,

concurring in part and dissenting in part), cert. denied, 138 S. Ct. 41 (2017).

      Applying Hurst to Harvey’s case, the jury’s nonunanimous

recommendations for death by votes of eleven to one indicate that the Hurst error

is not harmless beyond a reasonable doubt. Harvey v. State, 946 So. 2d 937, 941

(Fla. 2006); see Davis v. State, 207 So. 3d 142, 175 (Fla. 2016). In addition, as

Justice Anstead argued and I agreed in 2006, Harvey’s counsel failed to present

significant evidence of mitigation:

      [D]ue to counsel’s blatant neglect in heeding the psychologist’s
      advice, none of this powerful mitigating evidence was ever

      2. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

                                         -4-
      investigated, developed, or presented. As our death penalty
      jurisprudence makes clear, counsel’s duty is to thoroughly investigate
      first, and then evaluate in order to develop a sound defense strategy.
      We have a clear breach of counsel’s duty here and substantial
      prejudice as a result. In the face of an almost apologetic case for
      mitigation, the jury’s recommendation for death was virtually a
      certainty.

Harvey, 946 So. 2d at 951 (Anstead, J., concurring in part and dissenting in part,

joined by Pariente, C.J.) (emphasis added). The “evidence of several important

statutory mitigators and extensive nonstatutory mitigation” in Harvey’s case

included “numerous and serious mental problems, including organic brain

damage . . . growing out of the defendant’s deprived and abusive childhood, and at

least two major traumatic events.” Id. Thus, Justice Anstead concluded:

             I would hold that we cannot have confidence in the outcome of
      proceedings so infected by trial counsel’s neglect and ineffectiveness.
      While counsel’s neglect may ultimately have made no difference in
      the establishment of his guilt, the record in this case clearly
      establishes that the adversarial testing mandated by Strickland did not
      take place in the penalty phase proceedings of this case. We should
      remand for a new penalty phase, so that this essential adversarial
      testing can take place before a reasoned and informed judgment is
      rendered on life or death.

Id. at 952. Counsel’s deficient representation, as explained by Justice Anstead,

directly affected what we now know to be Hurst-relevant inquiries, specifically the

weighing of aggravation and mitigation. See Hurst, 202 So. 3d at 44.

      Accordingly, I would apply Hurst to Harvey’s case, vacate Harvey’s

sentences of death, and remand for a new penalty phase.



                                        -5-
An Appeal from the Circuit Court in and for Okeechobee County,
     Robert L. Pegg, Judge - Case No. 471985CF000075CFAXMX

Ross B. Bricker of Jenner & Block, LLP, Chicago, Illinois,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner and
Donna M. Perry, Assistant Attorneys General, West Palm Beach, Florida,

      for Appellee




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