Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2524 _____________________________ RUTHEY TWANA HAYES, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Adrian G. Soud, Judge. December 29, 2021 ROWE, C.J. Ruthey Twana Hayes appeals an order denying her petition for writ of habeas corpus. We affirm because the petition is untimely, successive, and without merit. Over twenty years ago, a jury found Hayes guilty of second- degree murder. She received a life sentence and then appealed. This Court affirmed. Hayes v. State, 801 So. 2d 925 (Fla. 1st DCA 2001) (unpublished table decision). Last year, Hayes petitioned for a writ of habeas corpus, arguing that manifest injustice occurred because the trial court fundamentally erred when it instructed the jury on manslaughter. The trial court denied the petition. Hayes appealed. We affirm for three reasons. First, Hayes’ postconviction challenge was untimely. She had until December 2003 to file a timely postconviction motion. See Fla. R. Crim. P. 3.850(b). Hayes waited until 2020. And she alleged no exception to the two-year limit set out in rule 3.850(b). See Fla. R. Crim. P. 3.850(b); Baker v. State, 878 So. 2d 1236, 1245 (Fla. 2004) (“The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.”); Zuluaga v. State, 32 So. 3d 674, 676–77 (Fla. 1st DCA 2010) (explaining that “[h]abeas corpus is not a vehicle for obtaining additional appeals of issues which were raised or should have been raised on direct appeal, or which could have been, should have been, or were raised in post- conviction proceedings”). Second, Hayes’ postconviction challenge was successive. See Fla. R. Crim. P. 3.850(h)(2) (“[A] court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits . . . .”). Hayes filed a postconviction motion in 2018, raising a nearly identical argument to the one raised in her habeas petition—that the trial court fundamentally erred when it instructed the jury on manslaughter. The trial court denied her motion, and when Hayes appealed, this Court affirmed. See Hayes v. State, 277 So. 3d 60 (Fla. 1st DCA 2019) (unpublished table decision). Third, Hayes’ postconviction challenge lacks merit. She argued that the trial court fundamentally erred when it instructed the jury on manslaughter, leading to manifest injustice. Citing State v. Montgomery, 39 So. 3d 252 (Fla. 2010), Hayes asserted that she was entitled to a new trial because the instruction given at her trial prevented the jury from returning a verdict for manslaughter unless it found that Hayes had the intent to kill the victim. See Montgomery, 39 So. 3d at 258–59 (holding that giving the standard instruction for manslaughter by act as a lesser- included offense of second-degree murder constitutes fundamental error). But Hayes’ trial took place ten years before the supreme court decided Montgomery. Montgomery does not apply 2 retroactively to convictions that were final before the opinion issued. See McCrae v. State, 278 So. 3d 147, 148 (Fla. 1st DCA 2019). More importantly, the supreme court receded from Montgomery. See Knight v. State, 286 So. 3d 147, 151 (Fla. 2019) (“In the cases on which Knight relies, we erred in our fundamental error analysis. Most importantly, we erred by transforming the unreviewable pardon power of the jury into a fundamental right of the defendant. And we further erred by treating the deprivation of the defendant’s nonexistent right to the availability of a jury pardon as a structural defect that vitiates the fairness of the trial.”). We thus affirm the trial court’s order denying Hayes’ habeas petition. And because she has twice raised the same postconviction claim, the Court warns Hayes that any future filings determined 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. See § 944.279(1), Fla. Stat. (2021). AFFIRMED. OSTERHAUS and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Ruthey Twana Hayes, pro se, Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. 3