Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3842 _____________________________ JIMMY LEE TOLIVER, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition for Writ of Habeas Corpus—Original Jurisdiction. April 7, 2020 B.L. THOMAS, J. Petitioner seeks a new trial and alleges ineffective assistance of appellate counsel and manifest injustice. He argues that he is entitled to relief because his appellate counsel failed to preserve the issue of an erroneous lesser-included offense jury instruction on manslaughter by placing his case in the pipeline of Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009), approved, 39 So. 3d 252 (Fla. 2010). We disagree. We treat the petition as a petition for writ of habeas corpus. Petitioner having failed to demonstrate manifest injustice, the petition is dismissed as procedurally barred. See Baker v. State, 878 So. 2d 1236 (Fla. 2004). Petitioner’s conviction became final in 2007 after his direct appeal was affirmed in Toliver v. State, 953 So. 2d 713 (Fla. 1st DCA 2007), rev. denied, 966 So. 2d 971 (Fla. 2007), and thus before the issuance of this Court’s opinion in Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009). The holding in Montgomery does not apply retroactively to convictions that were final before the opinion issued. Rozzelle v. State, 29 So. 3d 1141, 1142 (Fla. 1st DCA 2009). Petitioner’s postconviction proceeding that was pending in 2009 could not operate to place him in the Montgomery pipeline. See Castano v. State, 119 So. 3d 1208, 1210-11 (Fla. 2012) (Pariente, J., concurring) (explaining that a pending postconviction proceeding can only operate to place the defendant in the pipeline of a case making new law if the new law would apply to claims appropriately raised in a postconviction proceeding rather than in direct appeal). Additionally, Petitioner cannot demonstrate manifest injustice because the Florida Supreme Court’s recent opinion in Knight v. State, 2019 WL 6904690 (Fla. 2019), receded from State v. Montgomery, 39 So. 3d 252 (Fla. 2010). We write also to address Petitioner’s filing history. Apart from the instant case, Petitioner has filed five other pro se actions in this Court attacking his judgment and sentence: 1D09-0739, 1D09-5656, 1D13-1188, 1D13-2185, and 1D18-5108. These actions include postconviction appeals, petitions for writ of habeas corpus, and a petition alleging ineffective assistance of appellate counsel. Petitioner has failed to obtain relief in these actions. Petitioner is warned that any future filings that this Court determines to be frivolous may result in the imposition of sanctions, including a prohibition against any further pro se filings in this Court and a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes (2019) (providing that a prisoner who is found by a court to have brought a frivolous or malicious suit, action, claim, proceeding, or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections). WOLF and ROBERTS, JJ., concur. 2 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jimmy Lee Toliver, pro se, Petitioner. Ashley Moody, Attorney General, Tallahassee, for Respondent. 3