Opinion
No. SC13–1825.
06-20-2014
Edward J. ZAKRZEWSKI, Appellant(s) v. STATE of Florida, Appellee(s).
Opinion
Edward J. Zakrzewski, a prisoner under sentence of death, appeals the postconviction court's order summarily denying his third successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns a motion for postconviction relief from sentences of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), of the Florida Constitution.
We have previously affirmed Zakrzewski's convictions and sentences of death, see Zakrzewski v. State, 717 So.2d 488 (Fla.1998), and also rejected his appeal from the denial of postconviction relief, see Zakrzewski v. State, 866 So.2d 688 (Fla.2003). Since that time, Zakrzewski has filed previous unsuccessful, successive postconviction motions. See, e.g., Zakrzewski v. State, 13 So.3d 1057 (Fla. Feb. 17, 2009) (Case No. SC08–59) (affirming denial of relief in first successive postconviction motion) (unpublished opinion); Zakrzewski v. State, 115 So.3d 1004 (Fla. Nov. 9, 2012) (Case No. SC11–1896) (affirming denial of relief in second successive postconviction motion) (unpublished opinion).
On appeal, Zakrzewski raises two claims: (1) he is entitled to postconviction relief because a recently submitted affidavit shows that penalty-phase witnesses provided inaccurate testimony concerning the beliefs of philosopher Friedrich Nietzsche; and (2) because the Florida Legislature recently adopted the standard announced in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 587 (1993), this standard should be retroactively applied to the admissibility of the testimony concerning Nietzsche during his 1996 penalty-phase proceeding.
We reject Zakrzewski's claims as untimely because the claims at issue do not meet the specific exceptions set forth in Florida Rule of Criminal Procedure 3.851(d)(2), which address when a court can consider a postconviction motion filed more than one year after the judgment and sentence became final. Specifically, as to the Nietzsche claim, the facts on which this claim is predicated could have been ascertained by the exercise of due diligence. Moreover, Zakrzewski has previously raised arguments in prior proceedings concerning the portions of the penalty phase involving Nietzsche. He cannot transform this untimely, procedurally barred claim into a timely claim simply by attaching a new affidavit—fifteen years after the penalty phase—challenging the accuracy of the testimony. To the extent that Zakrzewski asserts that he can raise whether initial collateral counsel rendered effective representation in regard to this claim based on Trevino v. Thaler, 133 S.Ct. 1911 (2013), this Court has already rejected this general proposition in Gore v. State, 91 So.3d 769, 778 (Fla.2012), and Howell v. State, 109 So.3d 763, 774 (Fla.2013).
Regarding the Daubert claim, this legislative change does not retroactively apply. Further, testimony concerning Nietzsche's philosophical beliefs is not governed by either the Frye or Daubert tests.
Because this current successive motion for postconviction relief is both untimely and devoid of merit, we affirm the postconviction court's order denying Zakrzewski's third successive motion for postconviction relief.
No motion for rehearing shall be allowed.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.