Duane Eugene Owen v. State of Florida

Supreme Court of Florida
____________

No. SC2023-0732
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DUANE EUGENE OWEN,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

June 5, 2023

PER CURIAM.

Duane Eugene Owen has been sentenced to death for two

murders he committed in 1984. On May 9, 2023, Governor Ron

DeSantis signed a death warrant for the murder of Georgianna

Worden, scheduling Owen’s execution for June 15, 2023. Owen

sought relief in the circuit court and now appeals three of its

orders: (1) an order summarily denying his fourth postconviction

motion filed under Florida Rule of Criminal Procedure 3.851; (2) an

order denying his motion for competency determination; and (3) an

order denying his motion for MRI and PET scan. We affirm all
three. We also deny his motion for stay of execution and request for

oral argument filed in this Court. 1

I

Georgianna Worden’s children discovered her body as they

prepared for school on the morning of May 29, 1984. Owen v. State

(Owen I), 596 So. 2d 985, 986 (Fla. 1992). Owen had forcibly

entered Ms. Worden’s Boca Raton home during the night, beat her

repeatedly on the head with a hammer as she slept, and then

sexually assaulted her. Id. Owen was arrested the next day on

unrelated charges. He confessed to the murder and several other

crimes, including the murder of Karen Slattery, whom he had killed

in a similar fashion a few months earlier. Id. at 986-87.

Owen was indicted for first-degree murder, sexual battery, and

burglary in the Worden and Slattery cases. Id. at 987. He was tried

for the Worden murder in 1986. 2 Id. The jury convicted him on all

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

2. Owen was first tried, convicted, and sentenced to death in
the Slattery case, but we reversed his convictions on direct appeal
and remanded the case for retrial, which took place in 1999. Owen
v. State (Owen II), 773 So. 2d 510, 512-13, 513 n.6 (Fla. 2000).
Owen was again convicted in the Slattery case on retrial. Owen v.
State, 862 So. 2d 687, 690 (Fla. 2003). The jury recommended, and

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charges and recommended death by a vote of ten to two. Id. The

trial judge followed the jury’s recommendation and imposed a death

sentence, finding that the aggravating factors3 outweighed the

mitigating circumstances.4 Id. at 987 & nn.1-2. On direct appeal,

this Court affirmed Owen’s convictions and death sentence, id. at

986, 5 which became final when the United States Supreme Court

the trial court imposed, another death sentence for the murder of
Ms. Slattery. Id. On direct appeal, this Court affirmed. Id. at 704.

3. The trial court found these four aggravating circumstances:
(1) Owen had been previously convicted of a violent felony; (2) the
murder was committed during a burglary or sexual battery; (3) the
murder was especially heinous, atrocious, or cruel; and (4) the
murder was cold, calculated, and premeditated. Owen I, 596 So. 2d
at 987 n.1.

4. The trial court considered these six mitigating
circumstances: (1) Owen’s mother died when he was young; (2) his
alcoholic father committed suicide a year later; (3) Owen and his
brother were shuffled from one foster home to another until his
brother finally ran away and left him; (4) Owen was sexually and
otherwise abused in the foster homes; (5) Owen’s mind “snapped”
during the murder; and (6) he had enlisted twice in the army and
aspired to be a police officer. Owen I, 596 So. 2d at 987 n.2.

5. Owen raised fifteen claims on direct appeal: (1) Owen’s
convictions for murder and sexual battery were improper because
the victim was dead prior to sexual union; (2) the police lacked
sufficient grounds for stopping and arresting Owen; (3) Owen’s
statements to law enforcement were obtained through psychological
coercion; (4) Owen’s confession was obtained in violation of the
rules established in Miranda v. Arizona, 384 U.S. 436 (1966); (5) the

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denied certiorari review in 1992, Owen v. Florida, 506 U.S. 921

(1992).

Since then, Owen has unsuccessfully challenged his

convictions and death sentence in state and federal court. Owen’s

first motion for postconviction relief was denied after he elected not

jury was “death qualified” and “conviction prone”; (6) Owen’s Fifth
Amendment rights were violated when police failed to act on his
request to speak with an assistant state attorney about forthcoming
charges against him; (7) Owen’s due process rights were violated
when police failed to videotape every occasion in which he faced
police questioning; (8) Owen’s confession to the Worden murder was
obtained in violation of his Sixth Amendment right to counsel; (9)
the trial judge erred by hearing victim-impact testimony from the
victim’s father; (10) the death penalty is cruel and unusual
punishment in violation of the Eighth Amendment; (11) the
statutory mitigating circumstances are too restrictive; (12) the
aggravating circumstance that the murder was committed during
an enumerated felony fails to narrow the class of death-eligible
defendants; (13) the death penalty is arbitrary and discriminatory;
(14) Owen is entitled to a new sentencing proceeding because his
convictions and death sentence in the Slattery case were later
reversed by this Court; and (15) the trial court erred in finding as
an aggravating circumstance that the murder was committed
during a sexual battery or burglary. Owen I, 596 So. 2d at 987-90.

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to proceed with an evidentiary hearing. 6 We affirmed. 7 Owen v.

State (Owen II), 773 So. 2d 510, 511 (Fla. 2000). We later affirmed

6. Owen had been granted an evidentiary hearing on claims
that his counsel had rendered ineffective assistance and failed to
disclose various conflicts of interest. Owen II, 773 So. 2d at 512-
13. But after the first witness finished testifying at the hearing,
Owen declined to proceed; even though the trial court had agreed to
bar disclosure of privileged information, Owen claimed that going
on with the hearing would force him to waive attorney-client
privilege in the pending Slattery retrial. Id. at 513. After the trial
court explained the consequences of Owen’s decision and confirmed
that he still did not wish to proceed, it ended the hearing and later
denied relief.

7. Owen raised eighteen claims on appeal: (1) the trial court
should have stayed the hearing pending completion of the retrial on
the Slattery murder; (2) the trial court should have conducted a
hearing under Faretta v. California, 422 U.S. 806 (1975), when
Owen opted not to proceed with the evidentiary hearing; (3) Owen’s
trial counsel was ineffective and suffered a conflict of interest; (4)
the instruction on the aggravating factor “heinous, atrocious, or
cruel” (HAC) was improper under Espinosa v. Florida, 505 U.S.
1079 (1992); (5) the felony murder instruction was improper; (6) the
“avoiding arrest” instruction was improper; (7) the “prior violent
felony” instruction was improper; (8) the instruction on the “cold,
calculated, and premeditated” (CCP) factor was improper; (9) details
of prior violent felonies were improperly admitted during the penalty
phase; (10) Owen’s counsel was ineffective during the suppression
hearing; (11) the penalty phase instructions improperly shifted the
burden of proof to the defendant; (12) the penalty phase jury was
improperly instructed concerning its role in violation of Caldwell v.
Mississippi, 472 U.S. 320 (1985); (13) the prosecutor made
inflammatory remarks during closing argument; (14) Owen should
have been allowed to poll the jurors; (15) the trial court erred in
failing to allow a change of venue; (16) Florida’s capital sentencing
statute is unconstitutional; (17) the video of the crime scene was

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the denial of Owen’s second motion for postconviction relief. 8 Owen

v. Crosby (Owen III), 854 So. 2d 182 (Fla. 2003). We also denied

Owen’s petition for a writ of habeas corpus, filed on September 28,

2001. 9 Id. Additionally, Owen sought and was denied federal relief.

unduly prejudicial; and (18) the cumulative weight of errors
deprived Owen of a fair trial. Owen II, 773 So. 2d at 513 n.5.

8. Owen raised these five claims: (1) the trial court erred by
failing to grant Owen an evidentiary hearing on his claim that prior
postconviction counsel was ineffective because of a conflict of
interest; (2) the trial court should have granted Owen an evidentiary
hearing on his claim that he received ineffective assistance of
counsel during the litigation of his initial motion for postconviction
relief; (3) the trial court erred by finding that Owen’s claim of actual
innocence was procedurally barred; (4) the trial court erred in
summarily denying Owen’s claim that the State withheld evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (5) the
trial court’s order denying Owen’s second postconviction motion
was inadequate because the court failed to specify what information
from the record it considered in reaching its decision. Owen III, 854
So. 2d at 187 n.4.

9. Owen raised eleven grounds for relief: (1) Owen’s appellate
counsel was ineffective for failing to raise and argue on direct
appeal that Owen was denied a fair trial because of the admission
into evidence of statements he made during plea negotiations with
the State; (2) Owen’s appellate counsel was ineffective for failing to
raise and argue that the venire from which the jury was selected in
Owen’s trial was unconstitutional because it excluded African
Americans; (3) Owen’s appellate counsel was ineffective for failing to
raise and argue on direct appeal that the trial court should have
declared a mistrial or struck a law enforcement officer’s improper
statement from the record; (4) Owen’s appellate counsel was
ineffective for failing to raise and argue on direct appeal that Owen

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Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894 (11th Cir. 2009).10 We

then affirmed the denial of Owen’s third postconviction motion

was denied due process of law because the trial judge was biased
toward the State and should have recused himself; (5) Owen’s
appellate counsel was ineffective for failing to raise and argue on
direct appeal the trial court’s denial of Owen’s jury instruction on
the difference between sexual battery and vaginal penetration of a
deceased individual killed before any sexual contact; (6) Owen’s
appellate counsel ineffectively raised and argued the sufficiency of
the State’s evidence used to prove the aggravators and failed to
argue that the trial court did not properly consider all of the
mitigation in favor of Owen; (7) Owen’s sentence on the noncapital
cases is illegal because his offenses predated the effective date of
the sentencing guidelines used by the trial court; (8) Owen’s
appellate counsel was ineffective for failing to cite controlling
authority on whether Owen’s confession was involuntary; (9) the
Florida death penalty sentencing statute as applied is
unconstitutional under the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution; (10) Owen’s Eighth
Amendment right against cruel and unusual punishment will be
violated because he may be incompetent at the time of execution;
and (11) this Court erred by not appointing conflict-free counsel for
Owen’s direct appeal. Owen III, 854 So. 2d at 188 n.6.

10. Owen raised these eighteen claims in the United States
District Court for the Southern District of Florida: (1) Owen’s trial
counsel was ineffective for failing to suppress his statements to
police, and Owen was not afforded a fair opportunity to present
evidence to establish his ineffective assistance claims; (2) Owen’s
motion to suppress his confession should have been granted; (3)
Owen was denied due process when the this Court allowed Owen’s
conviction for sexual battery to stand without evidence proving that
he committed the offense; (4) Owen’s trial counsels’ failure to
disclose conflicts of interest denied Owen the effective assistance of
counsel; (5) Owen was denied relief on the properly pled Brady [v.
Maryland, 373 U.S. 83 (1963)] Claim, which Owen discovered in

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1999 while pending retrial in the Slattery case; (6) Owen was denied
the effective assistance of counsel because his counsel failed to
provide the mental health experts with available information needed
to make an accurate competency determination, and the State
withheld material exculpatory information needed to reach such a
determination; (7) Owen’s convictions and death sentence are
unreliable because he was denied effective assistance of counsel at
the guilt phase of his trial for the failure of his counsel to
adequately investigate and prepare the defense case and challenge
the State’s case without full adversarial testing; (8) Owen was
deprived of his right to reliable adversarial testing and denied the
effective assistance of counsel at the penalty phase of his trial; (9)
Owen was deprived of his right to effective assistance of counsel in
violation of his rights to due process and equal protection; (10) this
Court denied Owen the right to effective and conflict-free appellate
counsel or a finding of fact on whether there was conflict of interest
between Owen and appellate counsel; (11) Owen’s appellate counsel
was ineffective for failing to raise and argue on direct appeal that
the trial court should have declared, or granted Owen’s motion for,
a mistrial or struck improper statement that the “hurting would
start all over again”; (12) Owen’s appellate counsel was ineffective
for failing to raise and argue on direct appeal that he was denied a
fair trial because of the admission into evidence of statements he
made during plea negotiations; (13) Owen’s appellate counsel was
ineffective for failing to raise and argue on direct appeal that Owen
was denied due process because the trial court was biased toward
the State and should have recused itself; (14) Owen’s appellate
counsel was ineffective for failing to cite precedent and the record
on whether Owen’s confession was involuntary, thus denying the
federal court the opportunity for meaningful review; (15) Owen’s
appellate counsel was ineffective by inadequately raising issue with
the sufficiency of the State’s evidence used to prove the aggravators
against Owen and by failing to argue that the trial court disregarded
some mitigation; (16) Owen was denied due process and effective
assistance of appellate counsel in his direct appeal when this Court
allowed his conviction for sexual battery to stand and denied his
claim of ineffective assistance of appellate counsel for failure to
raise issue with the trial court’s denial of the relevant jury

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seeking relief from his death sentence under the U.S. Supreme

Court’s decision in Hurst v. Florida, 577 U.S. 92 (2016), and this

Court’s decision on remand in Hurst v. State, 202 So. 3d 40 (Fla.

2016), receded from in part by State v. Poole, 297 So. 3d 487 (Fla.

2020). Owen v. State (Owen IV), 247 So. 3d 394, 395 (Fla. 2018).

Owen filed his fourth motion for postconviction relief under

Florida Rule of Criminal Procedure 3.851 after the Governor signed

his death warrant. 11 The circuit court, after holding a Huff 12

instruction; (17) Florida’s capital sentencing scheme was
unconstitutional as applied; and (18) the jury that recommended
death was unconstitutionally instructed and improperly considered
unconstitutional aggravators. Owen v. Crosby, No. 03-81152-CIV,
2007 WL 9719051, at *1-2 (S.D. Fla. Sept. 6, 2007), aff'd sub nom.
Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894 (11th Cir. 2009).

11. Owen’s counsel has since submitted a letter to the
Governor stating that Owen appears to be insane. Following
section 922.07, Florida Statutes (2022), the Governor appointed a
commission of three psychiatrists to examine Owen and temporarily
stayed execution of the sentence pending receipt of the
commission’s report. Fla. Exec. Order No. 23-106 (May 22, 2023).
On May 25, 2023, the Governor adopted the commission’s
conclusion that “O[wen] has the mental capacity to understand the
nature of the death penalty and the reasons why it is to be imposed
upon him” and lifted the temporary stay. Fla. Exec. Order No. 23-
116 (May 25, 2023).

12. In Huff v. State, 622 So. 2d 982, 983 (Fla. 1993), we
decided that in proceedings for an initial postconviction motion
where the death penalty has been imposed, the trial court must

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hearing, summarily denied relief on all four claims: (1) that he was

denied due process in his first postconviction proceeding because

the court failed to stay Owen’s evidentiary hearing or conduct a

proper inquiry before allowing Owen to waive his constitutional

rights; (2) that Owen obtained newly discovered evidence about his

brain damage, declining mental condition, and competency; (3) that

Owen’s severe mental illness should bar execution under the Eighth

and Fourteenth Amendments; and (4) that the Eighth Amendment

prohibits Owen’s execution after thirty-seven years on death row.

The circuit court also denied his motion for determination of

competency, his motion for MRI and PET scan, and his motion for

stay of execution.

Owen now appeals the denial of his postconviction motion and

raises four issues. Additionally, he appeals the denial of his motion

for competency determination and his motion for MRI and PET

hold a hearing “for the purpose of determining whether an
evidentiary hearing is required and to hear legal argument relating
to the motion.” This requirement was later expanded to include
successive postconviction motions under Florida Rule of Criminal
Procedure 3.851(f)(5)(B). See Taylor v. State, 260 So. 3d 151, 157
(Fla. 2018).

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scan. Owen also moves this Court for a stay of execution and

requests oral argument.

II

A

“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.’ ” Bogle v.

State, 322 So. 3d 44, 46 (Fla. 2021) (alteration in original) (quoting

Fla. R. Crim. P. 3.851(f)(5)(B)). We review “the circuit court’s

decision to summarily deny a successive rule 3.851 motion 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.” Walton

v. State, 3 So. 3d 1000, 1005 (Fla. 2009). That is the case here.

1

In his first issue on appeal, Owen claims that he was denied

due process in his initial postconviction proceeding because, he

alleges, he did not properly waive an evidentiary hearing and

multiple ineffective assistance of counsel claims. Owen argues that

the trial court should have stayed the evidentiary hearing until the

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Slattery retrial concluded or conducted a Faretta-type 13 inquiry

before allowing him to waive the hearing and ineffective assistance

claims.14 He seeks a new evidentiary hearing and a determination

of the ineffective assistance of counsel claims on the merits. The

circuit court below summarily denied this claim, finding it both

procedurally barred and untimely. We agree.

Postconviction claims in capital cases must generally be filed

within one year after the judgment and sentence become final. Fla.

R. Crim. P. 3.851(d)(1). Owen’s judgment of conviction and

13. Faretta v. California, 422 U.S. 806 (1975).

14. Owen otherwise suggests that the trial court could have
summarily denied these claims rather than denying them after
granting an evidentiary hearing. That way, Owen submits, the
claims could have been heard based on the factual allegations
presented in the postconviction motion so long as the record did not
“conclusively refute[]” the allegations. See Ventura v. State, 2 So. 3d
194, 198 (Fla. 2009). To the extent that we have not addressed this
argument before, it is untimely and procedurally barred, as Owen
could have raised it in his initial postconviction proceeding over
twenty years ago. See Atkins v. State, 663 So. 2d 624, 626 (Fla.
1995) (holding that an issue was procedurally barred “because it
should have been raised in prior collateral proceedings”); Fla. R.
Crim. P. 3.851(e)(2) (“A claim raised in a successive motion shall be
dismissed 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).”).

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sentence of death became final when the U.S. Supreme Court

denied his petition for writ of certiorari in 1992. Owen v. Florida,

506 U.S. 921 (1992); see Fla. R. Crim. P. 3.851(d)(1)(B) (providing

that a judgment is final “on the disposition of the petition for writ of

certiorari by the United States Supreme Court, if filed”). And

Owen’s waiver of the evidentiary hearing for the ineffective

assistance claims occurred in 1997—over 25 years ago. Though

there are exceptions to the time bar, see Florida Rule of Criminal

Procedure 3.851(d)(2)(A)-(C), Owen has not shown that any of them

apply, meaning he has failed to “establish the timeliness of [this]

successive postconviction claim,” Mungin v. State, 320 So. 3d 624,

626 (Fla. 2020). The circuit court thus properly summarily denied

this claim as untimely. See Fla. R. Crim. P. 3.851(e)(2) (“A claim

raised in a successive motion shall be dismissed . . . 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).”).

This claim is also procedurally barred. “Claims raised and

rejected in prior postconviction proceedings are procedurally barred

from being relitigated in a successive motion.” Hendrix v. State, 136

So. 3d 1122, 1125 (Fla. 2014). This Court has twice before rejected

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Owen’s challenge to the validity of his waiver, and once before

rejected his challenge to the trial court’s handling of the evidentiary

hearing.

We first rejected Owen’s arguments when we affirmed the trial

court’s denial of Owen’s initial motion for postconviction relief. See

Owen II, 773 So. 2d at 514-15. Owen argued, among other things,

that “he did not receive the due process to which he was entitled

when the circuit court judge prevented him from litigating his Rule

3.850 motion because he invoked his attorney-client privilege

relating to his pending capital retrial.” Initial Brief of Appellant at

16, Owen II. Even considering Owen’s attorney-client privilege,

Owen contended, “the court forced counsel to proceed” rather “than

stay[ing] the proceedings until the Slattery case was resolved.” Id.

at 27. We, however, found “no abuse of discretion in the manner in

which the court conducted the hearing.” Owen II, 773 So. 2d at

515.

Owen also argued that the trial court “failed to conduct a

Faretta-type evaluation to determine whether [he] understood the

consequences of what the court characterized as a waiver of his

postconviction proceedings.” Initial Brief of Appellant at 39, Owen

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II. As a result, Owen asserted that the “record does not

affirmatively demonstrate that [he] knowingly, intelligently and

voluntarily waived his postconviction proceedings.” Id. We, though,

said that “the principles underlying Faretta are applicable only

when a defendant in a criminal case seeks to waive professional

legal representation and proceed unrepresented.” Owen II, 773 So.

2d at 515. And after reviewing the record, we concluded “that

collateral counsel and Owen jointly made the strategic decision to

end the evidentiary hearing.” Id. Thus, because Owen’s ineffective

assistance of counsel claims were “fact-based issue[s],” and Owen

“opted to forego” the evidentiary hearing, we determined that Owen

waived them. Id.

In his second postconviction motion, Owen again challenged

the validity of his waiver, and we again denied relief. This time,

using “a different argument to relitigate the same issue,” Medina v.

State, 573 So. 2d 293, 295 (Fla. 1990), Owen argued that his waiver

stemmed from the ineffective assistance of collateral counsel in his

first postconviction proceeding. Owen alleged that collateral

counsel had a conflict of interest because counsel shared experts

and information with his trial counsel in the Slattery retrial, which

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put “his post-conviction proceedings on a collision course towards

default.” Defendant’s Pro-Se Motion for Post-Conviction Relief

and/or for Extraordinary Writ at 7, Owen III. He also claimed that

collateral counsel breached their “duty to provide effective

representation . . . during the post-conviction evidentiary hearing

when [counsel] advised [Owen] not to proceed with the hearing

. . . .” Id. at 9. According to Owen, “[t]his was erroneous advise

[sic] which created an ineffective waiver,” and so the waiver of his

postconviction claims should have been attributed to collateral

counsel, not him. Id. at 10. 15 The trial court denied these claims,

and we affirmed, finding that they were procedurally barred. See

Owen III, 854 So. 2d at 187. 16

15. Owen also brought an actual innocence claim based
partially on the ineffectiveness of trial counsel. Defendant’s Pro-Se
Motion for Post-Conviction Relief and/or for Extraordinary Writ at
11, Owen III. As with Owen’s other claims, we found this claim to
be procedurally barred. Owen III, 854 So. 2d at 187.

16. Owen also challenged his waiver of the evidentiary hearing
in federal habeas proceedings. The United States Court of Appeals
for the Eleventh Circuit concluded that “the record fully supports
the 3.850 court’s and the Florida Supreme Court’s findings that
Owen failed to proceed in good faith at the 3.850 evidentiary
hearing and thereby waived his 3.850 evidentiary hearing claims.”
Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 909 (11th Cir. 2009).
The Eleventh Circuit noted that “Owen refused to avail himself of

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 Because Owen’s arguments on this issue have “already been

raised and considered by this Court in prior proceedings,” Owen’s

due process claim is procedurally barred. Thompson v. State, 759

So. 2d 650, 657 (Fla. 2000). And the circuit court properly

summarily denied it on this basis. See Matthews v. State, 288 So.

3d 1050, 1060 (Fla. 2019) (noting that a court “may summarily

deny a postconviction claim when the claim is . . . procedurally

barred . . . .”); 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 . . . .”).

We decline Owen’s invitation to reconsider our prior ruling on

the validity of his waiver and affirm the circuit court’s summary

denial. See Zeigler v. State, 632 So. 2d 48, 51 (Fla. 1993) (“This

claim was previously raised and rejected in a [postconviction]

the opportunity to present at least some evidence at the Worden
3.850 evidentiary hearing” and that the “record belies Owen’s
argument that Owen’s waiver of his 3.850 claims was invalid
because he did not fully understand the consequences of his
decision not to proceed at the evidentiary hearing.” Id. at 912 &
n.18.

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motion . . . and there is nothing presented in the instant motion

which would cause us to revisit that decision.”). 17

2

Next, Owen asserts that the circuit court erred by summarily

denying his argument over his alleged brain damage, declining

mental condition, and incompetency. We reject this claim, for we

agree with the circuit court that Owen’s argument is both untimely

and procedurally barred.

Owen’s allegedly declining mental condition18 and alleged

incompetence to proceed with postconviction litigation 19 are

17. The circuit court did not expressly pass on Owen’s
argument that it should overlook the time and procedural bars to
correct a “manifest injustice.” State v. McBride, 848 So. 2d 287,
292 (Fla. 2003). We find no error in the circuit court’s refusal to do
so. See Gaskin v. State, 48 Fla. L. Weekly S57, S59 (Fla. Apr. 6,
2023) (concluding that the petitioner’s arguments were “insufficient
to overcome the procedural bar”).

18. Owen alleges that it is “also clear that [his] declining
mental condition, schizophrenia, and fixed delusions . . . place
[him] outside of the class of individuals allowed to be executed.”
Initial Brief of the Appellant at 58.

19. “Dr. Eisenstein’s [May 15, 2023] evaluation of Owen
revealed that Owen is not competent to proceed in postconviction
proceedings. . . . Owen is ‘unable to provide legal counsel with any
significant assistance at the present time.’ ” Initial Brief of the
Appellant at 55-56 (quoting Dr. Eisenstein’s report).

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relevant only to his invocation of section 922.07(1), Florida

Statutes, 20 and his appeal of the circuit court’s denial of his Motion

for a Determination of Competency under Florida Rule of Criminal

Procedure 3.851(g), respectively.

The circuit court correctly determined that Owen’s brain

damage claim is untimely. Again, about three decades have passed

since his conviction and sentence became final in 1992, and—as

with his first claim—none of the three exceptions under Florida

Rule of Criminal Procedure 3.851(d)(2) apply. Contrary to what

Owen argues, his brain damage claim does not constitute newly

discovered evidence under the Jones v. State, 709 So. 2d 512 (Fla.

1998), two-part test:

First, in order to be considered newly discovered, the
evidence “must have been unknown by the trial court, by
the party, or by counsel at the time of trial, and it must
appear that defendant or his counsel could not have
known [of it] by the use of diligence.” Second, the newly
discovered evidence must be of such nature that it would
probably produce an acquittal on retrial.

20. Separate proceedings concerning Owen’s alleged insanity
to be executed are underway pursuant to Florida Rules of Criminal
Procedure 3.811 and 3.812.

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Id. at 521 (alteration in original) (citation omitted) (quoting

Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla.

1994)). And when an appellant is challenging his sentence

instead of (or together with) his conviction, the second prong

will instead (or also) “require[] that the newly discovered

evidence would probably yield a less severe sentence.” Long v.

State, 271 So. 3d 938, 942 (Fla. 2019) (alteration in original)

(quoting Walton v. State, 246 So. 3d 246, 249 (Fla. 2018)).

Neither of those elements can be established here. As to the

first Jones prong, Owen himself alleged in his December 8, 1997,

Fourth Amended Motion to Vacate Judgments of Conviction and

Sentences with Special Request for Leave to Amend that he

possessed evidence of his brain damage at the time of his trial. 21

21. Owen’s December 1997 motion included the following
assertions:
• Claim V: Owen’s public defender “told the court that Mr.
Owen’s mental health was at issue at trial, and he sought
funds for an insanity defense . . . . [The public defender] also
requested funds to have a CAT scan conducted and
neurological testing of Mr. Owen because he found evidence of
brain damage.” December 1997 Motion at 25 (emphasis
added).
• Claim V: “Mr. Owen also suffers from organic brain damage
that is located in the frontal lobe.” Id. at 28 (emphasis added).

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That brain imaging technology has improved over the intervening

years does not alter our conclusion, as such technology would at

best be a tool that could be used to uncover relevant evidence, and

of course not itself evidence. See Branch v. State, 236 So. 3d 981,

986 (Fla. 2018) (explaining that “scientific research with respect to

brain development does not qualify as newly discovered evidence”

when based on previously available data). Indeed, some form of the

evidence that Owen believes he could now find through brain

imaging could have been discovered anytime during the past few

decades. See Davis v. State, 742 So. 2d 233, 237 (Fla. 1999)

(finding a similar claim to be procedurally barred because PET scan

technology—even if less advanced—has been reported in cases as

early as 1992).

• Claim VI: “The jury had no idea that Mr. Owen was psychotic
and delusional, or that he had brain damage that which
rendered him incapable of forming the requisite intent to
commit first-degree premeditated murder.” Id. at 47-48
(emphasis added).
• Claim VIII: “Based on neuropsychological testing and Mr.
Owen’s history, an expert is also prepared to testify that Mr.
Owen suffers from severe impairment due to brain damage.”
Id. at 87 (emphasis added).

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 And as to the second Jones prong, we are also unconvinced.

In fact, the jury in the Slattery retrial recommended death by a vote

of ten to two for Owen’s strikingly similar murder despite his

production of brain damage evidence. Owen v. State, 862 So. 2d

687, 691 n.3 (Fla. 2003) (listing the mitigating factors that the trial

court considered, one of which was that “the defendant suffered

from organic brain damage”).

In any event, the circuit court correctly determined that

Owen’s brain damage claim is procedurally barred too. Again, in

that December 1997 Motion, Owen argued that his trial counsel

was ineffective for failing to investigate his mental health, and he

mentioned “brain damage” several times. See supra note 21.

Because Owen then refused to present any evidence supporting

these claims, the circuit court denied his motion, and we affirmed.

Owen II, 773 So. 2d at 515. Therefore, as Owen’s brain damage

argument has “already been raised and considered by this Court in

prior proceedings,” Thompson, 759 So. 2d at 657, this claim is

procedurally barred, see Hendrix, 136 So. 3d at 1125.

Although Owen did not invoke the McBride “manifest injustice”

exception in his motion to the circuit court on this claim, he does so

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here. Even so, we are unconvinced that his arguments overcome

the procedural bars just discussed. See Gaskin, 48 Fla. L. Weekly

at S59 (concluding that the petitioner’s arguments were

“insufficient to overcome the procedural bar”).

3

Owen further claims his mental illness should be a complete

bar to execution under the Eighth and Fourteenth Amendments.

Yet Owen correctly acknowledges that Florida courts have declined

to recognize this claim. See, e.g., Newberry v. State, 288 So. 3d

1040, 1050 (Fla. 2019); Long, 271 So. 3d at 947; McCoy v. State,

132 So. 3d 756, 775 (Fla. 2013); Lawrence v. State, 969 So. 2d 294,

300 n.9 (Fla. 2007). We do so again here because Owen has

presented no reason for this Court to reconsider its precedent on

this issue. We therefore affirm the circuit court’s denial of this

claim.

4

Owen also appeals the circuit court’s denial of his claim that

thirty-seven years on death row violates the Eighth Amendment’s

Cruel and Unusual Punishments Clause, citing Justice Stevens’

memorandum opinion for the U.S. Supreme Court’s denial of

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certiorari review in Lackey v. Texas, 514 U.S. 1045 (1995). Owen,

however, rightly concedes that Florida courts have declined to

recognize claims that a prolonged stay on death row constitutes

cruel and unusual punishment. Indeed, this Court has

consistently rejected such claims as “facially invalid.” Orme v.

State, 48 Fla. L. Weekly S85, S85 (Fla. May 18, 2023) (quoting

Lucas v. State, 841 So. 2d 380, 389 (Fla. 2003)); see, e.g., Long, 271

So. 3d at 946; Ferguson v. State, 101 So. 3d 362, 366 (Fla. 2012);

Correll v. State, 184 So. 3d 478, 486 (Fla. 2015); Waterhouse v.

State, 82 So. 3d 84, 87 (Fla. 2012). Again, Owen has provided no

basis for this Court to depart from precedent. Accordingly, the

circuit court properly summarily denied relief on this claim.

B

Finally, Owen appeals the denial of two motions filed in

support of his fourth motion for postconviction relief: (1) his motion

for competency determination and (2) his motion for MRI and PET

scan. Because we find that the circuit court appropriately denied

each of Owen’s 3.851 claims as untimely and procedurally barred,

or not cognizable, Owen cannot relate the two motions to any

substantive claim he has made in his motion for postconviction

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relief. Accordingly, the circuit court correctly denied both motions.

See Fla. R. Crim. P. 3.851(g)(1) (“[A]ll collateral relief issues that

involve only matters of record and claims that do not require the

defendant’s input shall proceed in collateral proceedings

notwithstanding the defendant’s incompetency.”); Ferguson, 101 So.

3d at 367 (affirming the denial of a motion for competency

determination because the defendant failed to identify specific

factual issues that required the defendant to consult counsel

competently); Bottoson v. State, 813 So. 2d 31, 34 (Fla. 2002)

(affirming the denial of the defendant’s motion for SPECT/PET scan

because the defendant “failed to relate the need for this testing to

any substantive claim he has made in his motion for postconviction

relief”).

C

As Owen is not entitled to relief, we deny his motion for stay of

execution. Dillbeck v. State, 357 So. 3d 94, 103 (Fla. 2023) (“[A]

stay of execution on a successive motion for postconviction relief is

warranted only where there are substantial grounds upon which

relief might be granted.”) (quoting Davis v. State, 142 So. 3d 867,

873-74 (Fla. 2014)).

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 III

We affirm the summary denial of Owen’s fourth motion for

postconviction relief, along with the circuit court’s denial of his

motion for competency determination and his motion for MRI and

PET scan. We also deny his motion for stay of execution. No oral

argument is necessary, and no petition for rehearing will be

entertained by this Court. The mandate shall issue immediately.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and
SASSO, JJ., concur.
LABARGA, J., recused.

An Appeal from the Circuit Court in and for Palm Beach County,
Jeffrey Dana Gillen, Judge
Case No. 501984CF004000AXXXMB

Eric Pinkard, Capital Collateral Regional Counsel, Lisa M. Fusaro,
Assistant Capital Collateral Regional Counsel, and Morgan P.
Laurienzo, Assistant Capital Collateral Regional Counsel, Middle
Region, Temple Terrace, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, Celia
Terenzio, Chief Assistant Attorney General, West Palm Beach,
Florida, and Leslie Campbell, Assistant Attorney General, West
Palm Beach, Florida,

for Appellee

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