            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                         No. 1D18-4115
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LOUIS ANTHONY MCCRAE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Bruce Anderson, Judge.

                           July 9, 2019


RAY, C.J.

     Louis Anthony McCrae appeals the denial of his petition for
writ of habeas corpus collaterally attacking his 2004 judgment and
sentence. The petition alleged that the circuit court caused a
manifest injustice eight years ago by denying his prior
postconviction challenge that raised the same claim he makes in
the instant petition. The court properly treated the petition as a
motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850 and summarily denied the motion. We affirm.

     McCrae was convicted of second-degree murder and sentenced
to thirty years in prison with a mandatory minimum of twenty-five
years for the use of a firearm. This court upheld his conviction and
sentence on direct appeal and mandate issued nearly fourteen
years ago in 2005. McCrae v. State, 908 So. 2d 1095 (Fla. 1st DCA
2005).

     The next year, McCrae filed his first 3.850 motion alleging
ineffective assistance of counsel. The summary denial of that
motion was affirmed on appeal. McCrae v. State, 969 So. 2d 1022
(Fla. 1st DCA 2007). Then in 2010, McCrae filed a second 3.850
motion alleging that the trial court committed fundamental error
when it gave the jury the standard instruction for manslaughter
by act as a lesser included offense of second-degree murder.
McCrae argued that the instruction erroneously included an
intent-to-kill element, which prevented the jury from properly
considering whether to convict him of manslaughter rather than
second-degree murder. The postconviction court denied the motion
as untimely and successive because it was filed more than two
years after his conviction became final, and although he alleged a
new ground for relief, his failure to raise the jury-instruction claim
in his previous postconviction challenge was an abuse of process.
The court also rejected McCrae’s attempt to circumvent these
procedural bars by asserting a claim of fundamental error under
Montgomery v. State, 39 So. 3d 252 (Fla. 2010) (holding that giving
the standard instruction for manslaughter by act as a lesser-
included offense of second-degree murder constitutes fundamental
error). The court distinguished Montgomery factually based on
then-controlling precedent from this court and further concluded
that Montgomery did not have retroactive effect. We affirmed.
McCrae v. State, 54 So. 3d 494 (Fla. 1st DCA 2011).

     Eight years later, McCrae filed the instant postconviction
claim challenging the portion of the court’s order that
distinguished his case from Montgomery. He argued that he is now
entitled to relief because the Florida Supreme Court’s decision in
Haygood v. State, 109 So. 3d 735 (Fla. 2013), quashed the
precedent relied on by the court to deny his 2010 postconviction
motion. We disagree.

    Although McCrae correctly argued the law as it relates to
Haygood—overcoming one of the grounds for the denial of his 2010
motion—McCrae still cannot prevail because the error in the
standard jury instruction was not recognized by the Florida
Supreme Court until after McCrae’s conviction became final.

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Neither Haygood nor Montgomery apply retroactively. Kerney v.
State, 217 So. 3d 138, 142 (Fla. 3d DCA 2017) (discussing
Haygood); Rushing v. State, 133 So. 3d 943, 944 (Fla. 1st DCA
2010) (discussing Montgomery). This court issued its mandate in
McCrae’s direct appeal in 2005—nearly five years before the
supreme court decided Montgomery and over seven years before
Haygood. He therefore cannot rely on those cases to obtain
postconviction relief. And because McCrae is not similarly situated
to other defendants whose cases were not yet final when
Montgomery was decided, denying him the same relief that those
defendants received does not create a manifest injustice. Cf. Peede
v. State, 955 So. 2d 480, 498 (Fla. 2007) (holding death row inmate
could not rely on favorable Supreme Court decision that did not
apply retroactively because his sentence became final long before
that case was decided).

     To the extent that McCrae argues retroactivity is not an issue
because his claim is based on the law as it existed at the time of
his trial rather than on a change in the law, the claim is untimely
and successive. See Fla. R. Crim. P. 3.850(b) & 3.850(h)(2); see also
Baker v. State, 878 So. 2d 1236, 1241 (Fla. 2004) (reaffirming that
habeas petitions cannot be used for additional appeals of issues
that could have been raised on direct appeal, or that have been
raised in a previous 3.850 motion).

    AFFIRMED.

B.L. THOMAS and WINOKUR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Louis Anthony McCrae, pro se, Appellant.

Ashley Moody, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.

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