Petition for Writ of Certiorari — Eric Scott Branch, Petitioner v. Florida
Supreme Court briefFeb 12, 2018
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No. ______
IN THE
Supreme Court of the United States
___________________________________________________________
ERIC SCOTT BRANCH,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of Florida
______________________________________________________________
PETITIONER’S APPENDIX
______________________________________________________________
THIS IS A CAPITAL CASE
WITH AN EXECUTION SCHEDULED FOR
THURSDAY, FEBRUARY 22, 2018, AT 6:00 P.M.
STACY BIGGART
KATHLEEN PAFFORD
Office of the Capital Collateral
Regional Counsel-North Region
1004 DeSoto Park Drive
Tallahassee, Florida 32301
(850) 487-0922
stacy.biggart@ccrc-north.org
kathleen.pafford@ccrc-north.org
BILLY H. NOLAS
Counsel of Record
SEAN GUNN
KIMBERLY NEWBERRY
KIMBERLY SHARKEY
Office of the Federal Public Defender
Northern District of Florida
Capital Habeas Unit
227 North Bronough St., Suite 4200
Tallahassee, Florida 32301
(850) 942-8818
billy_nolas@fd.org
INDEX TO APPENDIX
Exhibit 1 — Florida Supreme Court Opinion Below (Jan. 22, 2018) ................ 1a
Exhibit 2 — Florida Supreme Court Order Denying Stay of Execution
Pending Certiorari Review (Feb. 6, 2018) ...................................... 5a
Exhibit 3 — Florida Supreme Court Order to Show Cause (Sep. 27, 2017) ..... 7a
Exhibit 4 — Escambia County Circuit Court Order Denying Relief
(July 12, 2017) ................................................................................. 9a
Exhibit 5 — Petitioner/Appellant’s Motion for Stay of Execution Pending
Certiorari Review (Jan. 31, 2018) ................................................ 13a
Exhibit 6 — Respondent/State’s Response in Opposition to Stay of Execution
Pending Certiorari Review (Feb. 1, 2018) .................................... 23a
Exhibit 7 — Petitioner/Appellant’s Response to Order to Show Cause
(Oct. 17, 2017) ............................................................................... 30a
Exhibit 8 — Respondent/State’s Response to Order to Show Cause
(Oct. 31, 2017) ............................................................................... 52a
Exhibit 9 — Petitioner/Appellant’s Reply in Support of Response to Order to
Show Cause (Nov. 11, 2017) ......................................................... 70a
Exhibit 10 — Florida Death Penalty Appeals Decided in Light of Hurst ....... 81a
(Source: Death Penalty Information Center)
Exhibit 11 — List of Florida Supreme Court Opinions Summarily Denying
Relief in Light of Hitchcock (Jan.-Feb. 2018)............................. 89a
EXHIBIT 1
1a
Supreme Court of Florida
____________
No. SC17-1509
____________
ERIC SCOTT BRANCH,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 22, 2018]
PER CURIAM.
We have for review Eric Scott Branch’s appeal of the circuit court’s order
denying Branch’s motion filed pursuant to Florida Rule of Criminal Procedure
3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Branch’s motion sought relief pursuant to the United States Supreme Court’s
decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on remand in
Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161
(2017). This Court stayed Branch’s appeal pending the disposition of Hitchcock v.
State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017). After this
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Court decided Hitchcock, Branch responded to this Court’s order to show cause
arguing why Hitchcock should not be dispositive in this case.
After reviewing Branch’s response to the order to show cause, as well as the
State’s arguments in reply, we conclude that Branch is not entitled to relief.
Branch was sentenced to death following a jury’s recommendation for death by a
vote of ten to two. Branch v. State, 685 So. 2d 1250, 1252 (Fla. 1996). Branch’s
sentence of death became final in 1997. Branch v. Florida, 520 U.S. 1218 (1997).
Thus, Hurst does not apply retroactively to Branch’s sentence of death. See
Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the denial of Branch’s
motion.
The Court having carefully considered all arguments raised by Branch, we
caution that any rehearing motion containing reargument will be stricken. It is so
ordered.
LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
LEWIS and CANADY, JJ., concur in result.
PARIENTE, J., concurring in result.
I concur in result because I recognize that this Court’s opinion in Hitchcock
v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now
final. However, I continue to adhere to the views expressed in my dissenting
opinion in Hitchcock.
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An Appeal from the Circuit Court in and for Escambia County,
Edward Phillips Nickinson III, Judge - Case No.
171993CF000870XXXAXX
Robert S. Friedman, Capital Collateral Regional Counsel, Stacy Biggart, Alice B.
Copek, and Kathleen Pafford, Assistant Capital Collateral Regional Counsel,
Northern Region, Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Lisa Hopkins, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
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EXHIBIT 2
5a
Filing # 67545964 E-Filed 02/06/2018 09:22:20 AM
Supreme Court of Florida
TUESDAY, FEBRUARY 6, 2018
CASE NO.: SC17-1509
Lower Tribunal No(s).:
171993CF000870XXXAXX
ERIC SCOTT BRANCH
Appellant(s)
vs.
STATE OF FLORIDA
Appellee(s)
Appellant’s Motion to Stay Execution Pending Filing and Disposition of
Petition for Writ of Certiorari in the Supreme Court of the United States is hereby
denied.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
A True Copy
Test:
cd
Served:
LISA HOPKINS
BILLY H. NOLAS
KATHLEEN PAFFORD
CHARMAINE M. MILLSAPS
JOHN A. MOLCHAN
STACY BIGGART
HON. PAM CHILDERS, CLERK
HON. LINDA LEE NOBLES, CHIEF JUDGE
HON. EDWARD PHILLIPS NICKINSON III, JUDGE
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EXHIBIT 3
7a
Supreme Court of Florida
WEDNESDAY, SEPTEMBER 27, 2017
CASE NO.: SC17-1509
Lower Tribunal No(s).:
171993CF000870XXXAXX
ERIC SCOTT BRANCH
Appellant(s)
vs.
STATE OF FLORIDA
Appellee(s)
Appellant shall show cause on or before Tuesday, October 17, 2017, why the
trial court’s order should not be affirmed in light of this Court's decision Hitchcock
v. State, SC17-445. The response shall be limited to no more than 20 pages.
Appellee may file a reply on or before Wednesday, November 1, 2017, limited to
no more than 15 pages. Appellant may file a reply to the Appellee’s reply on or
before Monday, November 13, 2017, limited to no more than 10 pages.
Motions for extensions of time will not be considered unless due to a
medical emergency.
A True Copy
Test:
lc
Served:
KATHLEEN PAFFORD
ALICE B. COPEK
LISA HOPKINS
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EXHIBIT 4
9a
Filing# 58919599 E-Filed 07/12/2017 02:59:52 PM
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
IN AND FOR ESCAMBIA COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff,
v.
ERIC SCOTT BRANCH,
Defendant.
I Case No.: 1993 CF 000870 A
Div.: A
ORDER DENYING AMENDED SUCCESSIVE RULE 3.851 MOTION
FOR POST-CONVICTION RELIEF
THIS MATTER came before the Court upon Defendant's Amended Successive Rule
3.851 Motion for Post-Conviction Relief in Light of Hurst v. Florida and Hurst v. State, filed
April 3, 2017; the State's Response to Branch's Amended Successive Postconviction Motion,
filed April 20, 2017; and Defendant's Reply to State's Response, filed June 14, 2017. On June
14, 2017, an hearing was held on the motion, at which the Court heard argument as to the claims
raised in Defendant's motion. Having reviewed the amended motion, the State's response,
Defendant's reply, the record, and case law, and having heard and carefully considered argument
of counsel, the Court finds the amended motion can be denied without need of an evidentiary
hearing.
PROCEDURAL HISTORY
On May 3, 1994, Defendant was sentenced to death for the January 1993 first-degree
murder of Susan Morris after a jury recommendation of 10 to two in favor of death. Defendant's
conviction and sentence were affirmed on direct appeal. Branch v. State, 685 So. 2d 1250 (Fla.
Pagel of3
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1996). Defendant's conviction and death sentence became final on May 12, 1997, when the
United States Supreme Comi denied certiorari review in the direct appeal. Branch v. Florida,
520 U.S. 1218, 117 S.Ct. 1709, 137 L.E.2d 833 (1997).
DEFENDANT'S CLAIM
Defendant claims his death sentence violates the Sixth, Eighth, and Fourteenth
Amendments and corresponding provisions of the Florida Constitution in light of Hurst v.
Florida, -U.S.-, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) and Hurst v. State, 202 So. 3d 40
(Fla. 2016). He argues Hurst v. Florida and Hurst v. State should be applied retroactively to his
case.
The Florida Supreme Court has held Hurst v. Florida and Hurst v. State do not apply
retroactively to any death sentences that became final prior to the issuance of the U.S. Supreme
Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), on June 24, 2002. See Asay v. State,
210 So. 3d 1, 22 (Fla. 2016); Mosley v. State, 209 So. 3d 1248, 1274 (Fla. 2016). See also
Archer v. Jones, SC16-2111, 2017 WL 1034409, at *l (Fla. Mar. 17, 2017) (denying relief
pursuant to the holding in Asay v. State, 210 So. 3d 1, 22 (Fla. 2016), "that Hurst v. Florida and
Hurst v. State do not apply retroactively to capital defendants whose death sentences were final
when Ring v. Arizona, 536 U.S. 584 (2002), was decided."). Because Defendant's death
sentence became final in 1997, the Hurst decisions to not apply retroactively to Defendant's
case, and Defendant is not entitled to relief.
Accordingly, it is
ORDERED AND ADJUDGED Defendant's Amended Successive Rule 3.851 Motion
Page 2 of3
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for Post-Conviction Relief in Light of Hurst v. Florida and Hurst v. State is DENIED.
Defendant has the right to appeal within 30 days of the rendition of this order.
DONE AND ORDERED in Chambers at Pensacola, Escambia County, Florida.
eSigned by CIRCUIT COURT JUDGE E P NICKINSON Ill
on 07112/2017 12:16:24
EPN/awg
Service of the Order Denying Amended Successive Rule 3.851 Motion for Post-Conviction
Relief shall be made by the Clerk upon:
ALICE COPEK, Assistant Capital Collateral Regional Counsel, Northern Region
175 Salem Court, Tallahassee, FL 32301
Alice. Copek(cV,ccrc-north.org
KATHLEEN LITTLE, Assistant Capital Collateral Regional Counsel, Northern Region
175 Salem Court, Tallahassee, FL 32301
Kathleen.little~ccrc-north.Qrg
JOHN A. MOLCHAN, Assistant State Attorney
Office of the State Attorney, 190 Governmental Center, Pensacola, FL 32502
JMolchan@saO1.org
LISA HOPKINS, Assistant Attorney General
Office of the Attorney General, PL-01, The Capitol, Tallahassee, FL 32399
capapp@myfloridalegal.com
Lisa.Hopkins(ii)myfloridalegal.com
S. DOUGLAS KNOX, ESQ.
Quarles & Brady, LLP, 101 East Kennedy Boulevard, Suite 3400, Tampa, FL 33602-5195
douglas.knox@quarles.com
ERIC SCOTT BRANCH (DC# 313067)
Union Correctional Institution
7819 N.W. 228th St.
Raiford, FL 32026-4000
Page 3 of3
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EXHIBIT 5
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Filing # 67340065 E-Filed 01/31/2018 04:47:34 PM
IN THE SUPREME COURT OF FLORIDA
ERIC SCOTT BRANCH,
RECEIVED, 01/31/2018 04:48:26 PM, Clerk, Supreme Court
Appellant,
Case No. SC17-1509
v.
DEATH WARRANT ISSUED
STATE OF FLORIDA,
EXECUTION SCHEDULED FOR
FEBRUARY 22, 2018 AT 6:00 PM
Appellee.
_______________________/
MOTION TO STAY EXECUTION PENDING FILING AND
DISPOSITION OF PETITION FOR WRIT OF CERTIORARI
IN THE SUPREME COURT OF THE UNITED STATES
Appellant Eric Scott Branch moves to stay the execution of his death sentence,
currently scheduled for February 22, 2018, at 6:00 p.m., pending the timely filing
and disposition of a petition for a writ of certiorari in the United States Supreme
Court, through which he will seek review of this Court’s January 22, 2018, decision
affirming the denial of relief under Hurst v. Florida, 136 S. Ct. 616 (2016).
Appellant’s certiorari petition will present important and unresolved federal
constitutional questions arising from this Court’s unusual and, we submit,
problematic partial retroactivity framework for Hurst claims. Under that framework,
this Court applies Hurst retroactively and grants relief in many collateral-review
cases, but refuses to apply Hurst retroactively to other prisoners, like Appellant,
whose death sentences became final before the decision in Ring v. Arizona, 536 U.S.
584 (2002).
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This Court should grant a stay of execution in Appellant’s case to permit the
United States Supreme Court to consider, in an untruncated manner, the important
federal constitutional questions arising from this Court’s approach now. Needless
to say, the United States Supreme Court’s docket will be inundated in the coming
months with many certiorari petitions challenging this Court’s Ring-based
retroactivity cutoff for Hurst claims. A stay of execution by this Court here may
also avoid needless last-minute stay litigation in this and other cases in the United
States Supreme Court, and is consistent with the widely-accepted judicial policy that
lower courts enter stays of their decisions pending review by a higher court.
I.
A stay should be granted to allow the United States Supreme Court to
address the important and unresolved federal constitutional questions
regarding this Court’s Hurst retroactivity framework now, in
Appellant’s case, before the Supreme Court is inundated with scores of
certiorari petitions raising similar issues in the coming months
A wave of certiorari petitions, approximately 100, challenging this Court’s
Hurst retroactivity framework is set to flood the United States Supreme Court’s
docket shortly after Appellant’s scheduled execution. This Court should grant a stay
of execution here to allow the United States Supreme Court to address the important
and unresolved federal constitutional questions regarding the Ring-based Hurst
retroactivity cutoff created by this Court before the United States Supreme Court is
inundated with these petitions in the coming months.
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In 2017, this Court entered stays, followed by orders to show cause, in over
100 appeals and state habeas proceedings, including Appellant’s, in which Hurst
claims were raised in the context of death sentences that became final on direct
appeal before Ring. See Exhibit 1 (attached). In January 2018, this Court embarked
on the mass-denial of relief in those cases, including Appellant’s, in summary
opinions that cited Hitchcock v. State, 226 So. 3d 216 (2017). In these decisions,
this Court reaffirmed its Ring-based retroactivity cutoff, and declined to specifically
discuss federal constitutional law. In the last two weeks alone, this Court has denied
Hurst relief in 67 such cases, with more opinions being released each day. See
Exhibit 2 (attached).
These cases will begin reaching the United States Supreme Court through
petitions for certiorari that, like Appellant’s, will likely challenge the
constitutionality of this Court’s Ring-based retroactivity cutoff. See Sup. Ct. R. 13.1
(providing that certiorari petitions must be filed within 90 days of the judgment
under review). Given the timing of Appellant’s scheduled execution, his certiorari
petition will likely be the first, or among the first, of these cases to reach the United
States Supreme Court.
This Court’s entry of a stay will not only reflect respect for the United States
Supreme Court’s docket, but will also further the interests of judicial efficiency in
Florida’s courts by promoting the prompt resolution of questions surrounding this
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Court’s handling of Hurst claims. Allowing the United States Supreme Court to
address the constitutionality of this Court’s Hurst retroactivity cutoff in an
untruncated manner in Appellant’s case will avoid prolonged uncertainty and
injustice. Appellant would be remiss if he did not point out that there has been a
history of prolonged uncertainty and injustice in Florida related to this Court’s nineyear mishandling of claims under Lockett v. Ohio, 438 U.S. 586 (1978), see
Hitchcock v. Dugger, 481 U.S. 393 (1987), 12-year mishandling of claims under
Atkins v. Virginia, 536 U.S. 304 (2002), see Hall v. Florida, 134 S. Ct. 1986 (2014),
and long history of mishandling jury-sentencing claims, see Hurst, 136 S. Ct. at 621.
Appellant’s case is an ideal vehicle for the resolution of these federal
constitutional issues, given his preservation of a broad range of federal arguments in
both the circuit court and this Court. The United States Supreme Court should be
afforded a meaningful opportunity to decide whether to address Hurst retroactivity
issues in his case without the time constraints of an impending execution. A stay
entered by this Court at this juncture will avoid needless last-minute stay litigation
in the United States Supreme Court.
The interests of justice favor granting Appellant a stay of execution pending
the filing and disposition of his certiorari petition. At some point, the United States
Supreme Court will review this Court’s Hurst retroactivity framework. If that
review occurs after Appellant’s execution, and the United States Supreme Court
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invalidates this Court’s retroactivity cutoff, the injustice in Appellant’s case will be
irreparable.
This Court should not wait for the United States Supreme Court to grant a
stay. Widely-accepted judicial policy and respect for efficiency in the appellate
process favor the entry of stays pending appeal by the lower court in the first
instance, not the reviewing court. That is why the United States Supreme Court’s
rules provide that “[e]xcept in the most extraordinary circumstances, an application
for a stay will not be entertained unless the relief requested was first sought in the
appropriate courts below.” Sup Ct. R. 23.3. The Federal Rules of Appellate
Procedure similarly provide that applications for a stay pending appeal must always
be made initially in the lower court. Fed. R. App. P. 8.
The United States Supreme Court’s preference for the entry of stays of
execution by the lower courts cases is reflected in the deference the Court affords to
such stays. See, e.g., Barefoot v. Estelle, 463 U.S. 80, 895-96 (1983); Dugger v.
Johnson, 485 U.S. 945, 947 (1988) (O’Connor, J., concurring).
In the past, this Court has stayed executions to allow the United States
Supreme Court to resolve important federal constitutional questions without the time
constraints of an impending execution, and without burdening Supreme Court with
unnecessary and last-minute stay litigation. See, e.g., Correll v. State, No. SC15147, Order at 5 (Feb. 27, 2015) (LaBarga, C.J., concurring in stay of execution) (“[A]
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stay pending determination of the issue in the United States Supreme Court will not
prejudice the State and, more importantly, will ensure that Florida does not risk an
unconstitutional execution, a risk that would threaten the viability of Florida’s entire
death penalty scheme.”), motion to vacate stay denied sub nom., Florida v. Correll,
No. 14A875, 135 S. Ct. 1491 (mem.) (Feb. 25, 2015).
II.
There is a significant possibility that the United States Supreme Court
will grant review of the important and unresolved federal constitutional
questions regarding this Court’s Hurst retroactivity framework in
Appellant’s certiorari petition
There is a significant chance that the United States Supreme Court will grant
review of the important federal constitutional questions arising from this Court’s
Hurst retroactivity framework in Appellant’s certiorari petition. See Barefoot, 463
U.S. at 895-96. This makes a stay of execution from this Court appropriate. Chavez
v. State, 132 So. 3d 826, 832 (Fla. 2014).
Appellant’s certiorari petition will present questions as to whether this Court’s
Ring-based retroactivity cutoff violates the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. Specifically, Appellant will argue
that by denying Hurst retroactivity to him and other “pre-Ring” defendants, while
applying Hurst retroactively to other “post-Ring” defendants, this Court created a
scheme that violated the Eighth and Fourteenth Amendments’ prohibition against
arbitrary and capricious imposition of the death penalty, and the Fourteenth
Amendment’s guarantee of equal protection and due process, because the effect of
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the Court’s line-drawing is to deny Hurst relief to precisely the class of death row
defendants for whom relief makes the most sense. Appellant will show that this
Court’s retroactivity cutoff involves a level of arbitrariness that runs far beyond that
tolerated by standard-fare retroactivity rules.
Appellant also intends to argue that because the United States Supreme
Court’s decision in Hurst v. Florida and this Court’s decision in Hurst v. State, 202
So. 3d 40 (Fla. 2016), announced substantive constitutional rules, the Supremacy
Clause of the United States Constitution requires this Court to apply those rules
retroactively on collateral review to all defendants, not merely some defendants.
See, e.g., Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
Appellant presented these arguments to this Court, but the Court did not
meaningfully grapple with them.
These federal constitutional arguments will provide substantial grounds for
the United States Supreme Court to grant a writ of certiorari and address this Court’s
January 22, 2018, decision in Appellant’s case. A stay of execution by this Court
pending certiorari review should be granted.
III.
The equities of Appellant’s case make a stay of execution particularly
appropriate
The equities of Appellant’s case make a stay of execution pending the filing
and disposition of a certiorari petition especially appropriate. In addition to Hurst,
Appellant has substantial unresolved constitutional litigation pending in a Florida
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circuit court, which may ultimately come before this Court and the United States
Supreme Court, requiring review that should not have to occur in the truncated
period before his scheduled execution.
Appellant has presented to the circuit court evidence of a new medical,
scientific consensus regarding his cognitive underdevelopment at the age of 21,
when the offense occurred, which renders Appellant the equivalent of a juvenile who
should be afforded the Eighth Amendment protections articulated in Roper v.
Simmons, 543 U.S. 551 (2005). Appellant’s circuit-court pleading is supported by
nearly 800 pages of exhibits, including scientific evidence, reports by medical
professionals, and witness declarations showing the underdevelopment of
Appellant’s brain into his early twenties. These exhibits also chronicle the horrific
conditions of Appellant’s upbringing, which included prolonged neglect,
abandonment, and emotional and physical abuse, including gang-rape. The State
has neither challenged the validity of Appellant’s proffer nor the expert conclusions
that the scientific consensus was not previously available.
This case has real considerations favoring a stay and untruncated review by
this Court and the United States Supreme Court. A stay of execution from this Court
pending the filing and disposition of a petition for a writ of certiorari on the Hurst
issue therefore is especially appropriate.
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IV.
Conclusion
This Court should stay Appellant’s execution pending the filing and
disposition of a petition for a writ of certiorari in the United States Supreme Court.
Respectfully submitted,
/s/ Stacy Biggart
Stacy Biggart
Assistant Capital Collateral
Regional Counsel—North
stacy.biggart@ccrc-north.org
Florida Bar No. 89388
Kathleen Pafford
Assistant Capital Collateral
Regional Counsel—North
kathleen.pafford@ccrc-north.org
Florida Bar No. 99527
Office of the Capital Collateral
Regional Counsel—North
1004 DeSoto Park Drive
Tallahassee, FL 32301
(850) 487-0922
/s/ Billy H. Nolas
Billy H. Nolas
Chief, Capital Habeas Unit
billy_nolas@fd.org
Florida Bar No. 806821
Kimberly Sharkey
Attorney, Capital Habeas Unit
kimberly_sharkey@fd.org
Florida Bar No. 505978
Office of the Federal Public Defender
Northern District of Florida
227 N. Bronough Street, Suite 4200
Tallahassee, FL 32301-1300
(850) 942-8818
Counsel for Appellant Eric Branch
CERTIFICATE OF SERVICE
On January 31, 2018, this motion was served via the e-portal to Assistant
Attorney General Charmaine Millsaps at charmaine.millsaps@myfloridalegal.com
and capapp@myfloridalegal.com; and Billy Nolas, Chief of the Capital Habeas Unit
of the Office of the Public Defender for the Northern District of Florida, at
billy_nolas@fd.org.
/s/ Stacy Biggart
Stacy Biggart
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EXHIBIT 6
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Filing # 67360537 E-Filed 02/01/2018 10:27:22 AM
In the Supreme Court of Florida
ERIC SCOTT BRANCH,
Appellant,
RECEIVED, 02/01/2018 10:28:29 AM, Clerk, Supreme Court
v.
CASE NO. SC17-1509
EXECUTION SCHEDULED
THURSDAY, FEBRUARY 22, 2018
STATE OF FLORIDA,
Appellee.
_______________________/
STATE’S RESPONSE TO MOTION FOR STAY OF THE EXECUTION
On January 31, 2018, Branch, represented by Capital Collateral Regional
Counsel - North (CCRC-N), filed a motion to stay his execution in this Court to
allow the United States Supreme Court to decide the petition for writ of certiorari
he intends to file in the High Court. Branch intends to file a petition regarding
this Court’s recent decision in Branch v. State, 2018 WL 495024 (Fla. Jan. 22,
2018), holding that, under Hitchcock v. State, 226 So.3d 216 (Fla. 2017), he was
not entitled to retroactive application of Hurst v. State, 202 So.3d 40 (Fla. 2016)
(Hurst v. State). Branch insists that a stay is necessary for the United States
Supreme Court to have time to properly consider his petition. There are no
substantial grounds in the proposed petition, and therefore, the motion for stay
should be denied.
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Wrong court
Preliminarily, the motion for stay is being sought in the wrong court. The
United States Supreme Court is quite capable of entering a stay of execution if
they think one is necessary. While opposing counsel cites the rule regarding
seeking relief in the lower court first, opposing counsel does not cite one case
where the United States Supreme Court denied a stay of execution in a capital
case that the Court otherwise thought was warranted because the same motion
to stay was not filed in the state court first. Furthermore, opposing counsel
already filed a motion to stay in the trial court, which would suffice if there was
such a requirement. Filing a motion to stay in one court for the alleged benefit of
another court is a duplicate effort that is a waste of the time and resources of this
Court.
Motions to stay executions
A stay of execution is warranted only when there are substantial grounds
upon which relief might be granted. Chavez v. State, 132 So.3d 826, 832 (Fla.
2014) (citing Bowersox v. Williams, 517 U.S. 345 (1996), and denying a stay);
Howell v. State, 109 So.3d 763, 778 (Fla. 2013) (stating that a defendant must
show that there are substantial grounds upon which relief might be granted to
obtain a stay of execution and denying a stay).
There are no substantial grounds
being raised in the proposed petition for writ of certiorari and therefore, there is
no need for a stay.
The United States Supreme Court often decides whether to grant petitions on
the day of the execution because that is often when the petitions in a warrant case
are filed. And they often decided two or more petitions on that last day. As this
Court is well aware, all warrant litigation proceeds at a fast pace. All the courts
-2-
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involved operate under short time frames necessitating long hours. That simply
is the nature of warrant litigation, not a reason to stay an execution.
If Branch files his petition for writ of certiorari on Monday, February 5, 2018,
the United States Supreme Court will have 18 days to decide the petition, which
is 17 days more than they normally have in a warrant to decide whether to grant
review. Seventeen days is a cornucopia of time to the High Court.
And it will not be difficult or time consuming for the United States Supreme
Court to decide the petition is devoid of any merit, regardless of when the petition
is filed. Any petition raising the retroactivity of Hurst v. State will be easily decided
by the United States Supreme Court without any stay. Contrary to opposing
counsel’s assertion, there is NOT a “significant chance” the United States Supreme
Court will grant review of this Court’s decision regarding the retroactivity of Hurst
v. State.
The United States Supreme Court already decided years ago that state courts
are entitled to formulate their own retroactivity standards in Danforth v.
Minnesota, 552 U.S. 264 (2008). Under the existing precedent, states are not
required to adopt the federal test for retroactivity established in Teague v. Lane,
489 U.S. 288 (1989). Rather, states are free to have broader retroactive tests; they
just may not have narrower tests. Montgomery v. Louisiana, 136 S.Ct. 718, 729
(2016) (explaining that the federal Constitution requires state courts to give
retroactive effect to new substantive rules). This Court is entitled to use its test
in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), to decide the retroactivity of its
decision in Hurst v. State. The United States Supreme Court simply will view the
entire issue as a matter of state law over which they lack jurisdiction. Kansas v.
Carr, 136 S.Ct. 633, 641 (2016) (explaining that when a state court’s decision
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26a
rests on an adequate and independent state law ground, the United States
Supreme Court has no jurisdiction over the claim).
Alternatively, even if retroactivity is viewed as a federal question, the
controlling precedent from the United States Supreme Court is that Sixth
Amendment right-to-a-jury-trial decisions, such as Hurst, are not retroactive.
Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (holding that Ring v. Arizona, 536
U.S. 584 (2002), is not retroactive using the federal test of Teague); DeStefano v.
Woods, 392 U.S. 631 (1968) (holding that the Sixth Amendment right-to-a-jurytrial is not retroactive). The Summerlin Court reasoned that “if under DeStefano
a trial held entirely without a jury was not impermissibly inaccurate, it is hard to
see how a trial in which a judge finds only aggravating factors could be.”
Summerlin, 542 U.S. at 357. Opposing counsel may view right-to-a-jury-trial
claims as substantive but the United States Supreme Court does not. The High
Court has repeatedly characterized such decisions as procedural, including in
Montgomery itself. Summerlin, 542 U.S. at 353-54 (stating that “Ring's holding is
properly classified as procedural” because the Sixth Amendment's jury-trial
guarantee “has nothing to do with the range of conduct a State may criminalize”
and explaining that rules that allocate decision-making authority between the
judge and the jury “are prototypical procedural rules” and noting that they had
classified the right-to-a-jury-trial as procedural “in numerous other contexts”
citing cases). If Teague applies, then Hurst v. State is not retroactive at all.
The argument Branch intends to present to the United States Supreme Court
in the proposed petition fundamentally makes no sense. If it is federal law, then
Branch loses under Summerlin; if it is state law, then this Court’s decision in
Branch stands and Branch loses under Hitchcock. It must be one or the other, it
cannot be both. And either way, the petition will be denied.
-4-
27a
Opposing counsel’s reliance on Correll v. State, No. SC15-147 (Feb. 27, 2015),
is misplaced. In Correll, this Court entered a stay in a death warrant case pending
the United States Supreme Court’s decision in Glossip v. Gross, 135 S.Ct. 2726
(2015), a case involving the same drug, midazolam, that was then being used in
Florida’s protocol, because review of that issue had already been granted. This
Court granted a stay of Correll’s execution on February 17, 2015, because review
of Glossip had been granted, just a few days before, by the High Court on January
23, 2015. But, here, unlike the situation in Correll, the United States Supreme
Court has not granted review of the retroactivity of Hurst v. State. Review by the
High Court of the issue was a certainty in Correll, but it is only an extremely
remote possibility here.
There are no substantial grounds being raised in the proposed petition for writ
of certiorari and therefore, the motion to stay the execution should be denied.
Accordingly, this Court should deny the motion to stay.
-5-
28a
CONCLUSION
The State respectfully requests that this Court deny the motion to stay the
execution.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Charmaine Millsaps
CHARMAINE M. MILLSAPS
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0989134
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3300
primary email:
capapp@myfloridalegal.com
secondary email:
charmaine.millsaps@myfloridalegal.com
COUNSEL FOR THE STATE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing STATE’S
RESPONSE TO MOTION TO STAY THE EXECUTION has been furnished via the
e-portal to via the e-portal to STACY R. BIGGART, Assistant Capital Collateral
Regional Counsel-North, 1004 DeSoto Park Drive, Tallahassee, FL, 32301; phone:
(850) 487-0922 x114; email: Stacy.Biggart@ccrc-north.org and KATHLEEN
PAFFORD, Assistant Capital Collateral Regional Counsel-North, 1004 DeSoto Park
Drive,
Tallahassee,
FL,
32301;
Kathleen.Pafford@ccrc-north.org this
phone:
1st
(850)
487-0922;
email:
day of February, 2018.
/s/ Charmaine Millsaps
Charmaine M. Millsaps
Attorney for the State of Florida
-6-
29a
EXHIBIT 7
30a
Filing # 62914483 E-Filed 10/17/2017 10:10:44 AM
IN THE SUPREME COURT OF FLORIDA
ERIC SCOTT BRANCH,
Appellant,
v.
Case No. SC17-1509
RECEIVED, 10/17/2017 10:13:26 AM, Clerk, Supreme Court
STATE OF FLORIDA,
Appellee.
_______________________/
RESPONSE TO ORDER TO SHOW CAUSE
Branch, ERIC SCOTT BRANCH, responds to this Court’s Order to Show
Cause why the trial court’s order should not be affirmed in light of this Court’s
holding in Hitchcock v. State, SC17-445 issued on September 22, 2017. In support
thereof, Branch states:
Branch’s death sentence was imposed pursuant to a capital sentencing scheme
that was ruled unconstitutional by the United States Supreme Court in Hurst v.
Florida, 136 S. Ct. 616 (2016), and this Court in Hurst v. State, 202 So. 3d 40 (Fla.
2016). Branch’s sentence became “final” in 1997. The issue in this case is whether
this Court’s “retroactivity cutoff” denying Branch Hurst relief on the ground that his
sentence did not become final at least one day after the 2002 decision in Ring v.
Arizona, 536 U.S. 584 (2002) is constitutional in light of Hurst v. State, Hurst v.
Florida, Florida state law, and federal law.
This Court has already applied Hurst retroactively as a matter of state law in
dozens of collateral-review cases where the defendant’s sentence became final after
Ring. But the Court has also created a state-law cutoff at the date Ring was
31a
decided—June 24, 2002—to deny relief in dozens of other collateral-review cases.
The Ring-based cutoff is unconstitutional and should not be applied to Branch.
Denying Branch Hurst relief because his sentence became final in 1997, rather than
some date between 2002 and 2016, would violate the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, and the corresponding provisions of
the Florida Constitution. Branch is entitled to Hurst retroactivity as a matter of state
and federal law. 1
REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING
This appeal presents an important issue of first impression: whether federal
law requires this Court to extend Hurst retroactivity to death sentences that became
final before Ring, rather than cabining Hurst relief to post-Ring death sentences.
Branch respectfully requests oral argument on this and related issues pursuant to Fla.
R. App. P. 9.320. Branch also requests that the Court permit full briefing in this case
in accord with the normal, untruncated rules of appellate practice.
Depriving Branch the opportunity for full briefing in this case would
constitute an arbitrary deprivation of the vested state right to a mandatory plenary
appeal in capital cases. See Doty v. State, 170 So. 3d 731, 733 (Fla. 2015) (“[T]his
Court has a mandatory obligation to review all death penalty cases to ensure that the
death sentence is imposed in accordance with constitutional and statutory
directives.”); see also Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Hicks
1
Relief should not be denied here in light of Hitchcock v. State, No. SC17-445, 2017
WL 3431500 (Fla. Aug. 10, 2017). Branch notes that there is a petition for a writ of
certiorari pending in Hitchcock (No. 17-6180).
32a
v. Oklahoma, 447 U.S. 343 (1980). Due process does not permit Branch to be
foreclosed by the decision rendered in Hitchcock v. State, Case No. SC17-445 (Fla.
2016). Branch deserves an individualized appellate review of his sentence.
ARGUMENT
I.
Due process does not permit Branch to be foreclosed by Hitchcock v. State
Branch’s substantive right to appeal the denial of his successive 3.851 motion
is protected by the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. See Evitts v. Lucy, 469 U.S. 387, 393 (1985). In a capital case in which
a death sentence has been imposed, the Eighth Amendment requires a special need
for reliability. Johnson v. Mississippi, 486 U.S. 578, 584 (1988) (“The fundamental
respect for humanity underlying the Eighth Amendment’s prohibition against cruel
and unusual punishment gives rise to a special ‘need for reliability in the
determination that death is the appropriate punishment’ in any capital case.”) The
process by which the Court has directed Branch to proceed in his appeal indicates
its intention on binding him to the outcome rendered in Hitchcock’s appeal,
regardless of the fact the record on appeal in each case is unique. The fact that this
Court has sua sponte issued identical orders in numerous other cases utilizing the
same truncated procedure it does here, reflects baseless prejudgment of the appeals
and their scope. Branch deserves an individualized appellate process.
In Hall v. Florida, 134 S. Ct. 1986, 2001 (2014), the United States Supreme
Court declared “[t]he death penalty is the gravest sentence our society may impose.
Persons facing that most severe sanction must have a fair opportunity to show that
the Constitution prohibits their execution.” This Court’s attempt to limit Branch’s
33a
review on appeal to the outcome of Hitchcock denies him the opportunity to
demonstrate how the record and facts in his unique case prohibit his execution.
Moreover, in denying relief in Hitchcock, this Court relied upon Asay v. State for the
determination that Hurst was not retroactive to cases final before Ring v. Arizona.
Hitchcock v. State, Case No. SC17-445 at *2-3. This Court did so despite the fact
that the opinion in Asay was not premised upon, nor did it even address, the holding
in Hurst v. State. It is in this regard that this Court must acknowledge that the
holding in Asay, and this Court’s reliance upon that holding in Hitchcock, does not
foreclose the availability of Hurst relief to Branch.
II.
Branch’s death sentence violates Hurst, and the error is not “harmless”
Branch was sentenced to death pursuant to a capital sentencing scheme
deemed unconstitutional by the United States Supreme Court in Hurst v. Florida
because it violated the Sixth Amendment as it required the judge, not the jury, to
make the findings of fact required to impose the death penalty under Florida law.
136 S. Ct. at 620-22.
On remand, this Court applied the holding of Hurst v. Florida, and further
held that the Eighth Amendment requires unanimous jury fact-finding as to each of
the required elements, and also a unanimous recommendation by the jury to impose
the death penalty. Hurst v. State, 202 So. 3d at 53-59. The Court also noted that,
even if the jury unanimously finds that each of the required elements is satisfied,
the jury is not required to recommend the death penalty, and the judge is not
required to sentence the defendant to death. Id. at 57-58. In Mosley v. State, this
Court noted that the unanimity requirement in Hurst v. State carried with it
34a
“heightened protection” for a capital defendant. Id., 209 So. 3d at 1278. This Court
stated in Mosley that Hurst v. State had “emphasized the critical importance of a
unanimous verdict.” Id.
Branch’s pre-Hurst jury recommended the death penalty by a vote of 10-2.
This Court’s precedent makes clear that Hurst errors are not harmless where the
defendant’s pre-Hurst jury recommended death by a non-unanimous vote. See
Dubose v. State, 210 So. 3d 641, 657 (Fla. 2017). This Court has declined to apply
the harmless error doctrine in every case where the pre-Hurst jury’s recommendation
was not unanimous. 2
III.
This Court’s “retroactivity cutoff” at Ring is unconstitutional and should
not be applied to Branch
Beginning with Mosley v. State, 209 So. 3d 1248 (Fla. 2016), this Court has
applied Hurst retroactively as a matter of state law and granted relief in dozens of
2
See, e.g., Bailey v. Jones, No. SC17-433, 2017 WL 2874121, at *1 (Fla. July 6,
2017) (11-1 jury vote); Hertz v. Jones, 218 So. 3d 428, 431-32 (Fla. 2017) (10-2 jury
vote); Hernandez v. Jones, 217 So. 3d 1032, 1033 (Fla. 2017) (11-1 jury vote); Card
v. Jones, 219 So. 3d 47, 48 (Fla. 2017) (11-1 jury vote); McMillian v. State, 214 So.
3d 1274, 1289 (Fla. 2017) (10-2 jury vote). Moreover, although this Court’s statelaw precedent is sufficient to resolve any harmless-error inquiry in this case, the
United States Constitution would also prohibit a denial of relief based on the
harmless error doctrine because any attempt to discern what a jury in a constitutional
proceeding would have decided—based solely on the pre-Hurst jury’s advisory
recommendation—would violate the Sixth and Eighth Amendments. See, e.g.,
Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985) (explaining that a jury’s belief
about its role in death sentencing can materially affect its decision-making); Sullivan
v. Louisiana, 508 U.S. 275, 279-80 (1993) (foreclosing application of the harmlesserror doctrine to deny relief based on jury decisions not comporting with Sixth
Amendment requirements).
35a
collateral-review cases where the defendant’s sentence became final after Ring. But
the Court has created a state-law cutoff at the date Ring was decided—June 24,
2002—to deny relief in dozens of other collateral-review cases. The Court recently
reaffirmed its retroactivity cutoff in Hitchcock v. State, No. SC17-445, 2017 WL
3431500 (Fla. Aug. 10, 2017). The Court’s arbitrary cutoff violates the Florida
Constitution and the Eighth and Fourteenth Amendments of the United States
Constitution. The Court has not addressed in any case whether this retroactivity
cutoff at Ring is constitutional as a matter of federal law.
Denying Branch Hurst retroactivity because his death sentence became final
in 1997, while affording retroactivity to similarly-situated defendants who were
sentenced (or resentenced) between 2002 and 2016, would violate the Florida
Constitution under Hurst v. State, the Eighth and Fourteenth Amendments’
prohibition against arbitrary and capricious imposition of the death penalty, as well
as the Fourteenth Amendment’s guarantee of equal protection and due process.
A.
Hurst is retroactive to Branch under the fundamental fairness
doctrine
Even if this Court were to maintain its unconstitutional retroactivity “cutoff”
at Ring, individuals who preserved the substance of the Hurst decisions before Hurst,
such as Branch, should receive the retroactive benefit of Hurst under this Court’s
“fundamental fairness” doctrine, which the Court has previously applied in other
contexts, see, e.g., James v. State, 615 So. 2d 668, 669 (Fla. 1993), and which the
Court has applied once in the Hurst context, see Mosley, 209 So. 3d at 1274, but
inexplicably never addressed since.
Justice Lewis recently endorsed this
36a
“preservation” approach in Hitchcock. See 2017 WL 3431500, at *2 (Lewis, J.,
concurring) (stating that the Court should “simply entertain Hurst claims for those
defendants who properly presented and preserved the substance of the issue, even
before Ring arrived.”). Branch urges that the Court allow him to brief this aspect of
his case in an untruncated fashion.
In Mosley, this Court focused its fundamental fairness analysis on whether it
would be unfair to bar Mr. Mosley from seeking Hurst relief, regardless of when his
sentence became final, by virtue of the fact that he had previously attempted to
challenge Florida’s unconstitutional sentencing scheme and was “rejected at every
turn” under the Florida Supreme Court’s flawed pre-Hurst law. Id. at 1275. In
assessing fundamental fairness, this Court explained that an important inquiry is
whether the defendant unsuccessfully attempted to raise a challenge to Florida’s
capital sentencing scheme before Hurst v. Florida and Hurst v. Florida were
decided. See id. at 1275. If Mosley had raised such a challenge, this Court reasoned,
it would be fundamentally unfair to prohibit him from seeking post-conviction relief
under Hurst, given that he had accurately anticipated the fatal defects in Florida’s
capital sentencing scheme even before they were recognized in the Hurst decisions.
See id. This Court emphasized that ensuring fundamental fairness in assessing
retroactivity outweighed any State’s interest in finality of death sentences. Id. (“In
this instance…the interests of finality must yield to fundamental fairness.”).
Here, as in Mosley, the Hurst decisions are retroactive under the fundamental
fairness doctrine. Although Branch’s direct appeal was pre-Ring, he attempted to
challenge Florida’s unconstitutional capital sentencing statute before both the Ring
37a
and Hurst decisions. Before trial, Branch filed pretrial motions raising Ring and
Hurst-like challenges to the operation of Florida’s “advisory” capital-sentencing
jury system, including under Caldwell v. Mississippi, 472 U.S. 320 (1985), and
Maynard v. Cartwright, 486 U.S. 356 (1988), and also challenged Florida’s lack of
a unanimous verdict on all the elements required to impose death as unconstitutional.
(R. 77-90). After Ring but before Hurst, Branch filed a 3.850 motion specifically
raising claims under Ring and Caldwell, and further arguing that Florida’s capital
sentencing scheme allowing for a non-unanimous recommendation was
unconstitutional. (PCR. 698-718). Under the rationale of Mosley, these
circumstances provide a sufficient basis to apply the Hurst decisions retroactively to
Branch, regardless of the fact that his sentence became final before the issuance of
Ring. See Mosley, 209 So. 3d at 1276 n.13.
B.
This Court’s retroactivity cutoff violates the Eighth and
Fourteenth Amendments’ prohibition against arbitrary and
capricious imposition of the death penalty
This Court’s retroactivity cutoff violates the Eighth and Fourteenth
Amendments’ prohibition against arbitrary and capricious imposition of the death
penalty. The death penalty cannot “be imposed under sentencing procedures that
create[] a substantial risk that it would be inflicted in an arbitrary or capricious
manner.” Gregg v. Georgia, 428 U.S. 153, 188 (1976); see also Furman v. Georgia,
408 U.S. 238, 310 (1972) (“[T]he Eighth and Fourteenth Amendments cannot
tolerate the infliction of a sentence of death under legal systems that permit this
unique penalty to be so wantonly and so freakishly imposed.”) (Stewart, J.,
38a
concurring). In other words, the death penalty cannot be imposed in a way that is
comparable to being “struck by lightning.” Furman, 408 U.S. at 308.
Experience has already shown the arbitrary results inherent in this Court’s
application of the Ring-based retroactivity cutoff. The date of a particular death
sentence’s finality on direct appeal in relation to the June 24, 2002 decision in
Ring—and thus whether this Court has held Hurst retroactive based on its brightline cutoff—has at times depended on whether there were delays in transmitting the
record on appeal to this Court for the direct appeal; whether direct appeal counsel
sought extensions of time to file a brief; whether a case overlapped with this Court’s
summer recess; how long the assigned Justice of this Court took to submit the
opinion for release; whether an extension was sought for a rehearing motion and
whether such a motion was filed; whether there was a scrivener’s error necessitating
issuance of a corrected opinion; whether counsel chose to file a petition for a writ of
certiorari in the United States Supreme Court or sought an extension to file such a
petition; and how long a certiorari petition remained pending in the Supreme Court.
In one striking example, this Court affirmed Gary Bowles’s and James Card’s
unrelated death sentences in separate opinions that were issued on the same day,
October 11, 2001. Bowles v. State, 804 So. 2d 1173 (Fla. 2001); Card v. State, 803
So. 2d 613 (Fla. 2001). Both inmates petitioned for a writ of certiorari in the United
States Supreme Court. Mr. Card’s sentence became final four (4) days after Ring
was decided—on June 28, 2002—when his certiorari petition was denied. Card v.
Florida, 536 U.S. 963 (2002). Mr. Bowles’s sentence, however, became final seven
(7) days before Ring was decided—on June 17, 2002—when his certiorari petition
39a
was denied. Bowles v. Florida, 536 U.S. 930 (2002). This Court recently granted
Hurst relief to Mr. Card, ruling that Hurst was retroactive because his sentence
became final after the Ring cutoff. See Card, 219 So. 3d at 47. Mr. Bowles, on the
other hand, whose case was decided on direct appeal on the same day as Mr. Card’s,
and who filed his certiorari petition in the Supreme Court after Mr. Card, now finds
himself on the pre-Ring side of this Court’s current retroactivity cutoff.
Other arbitrary factors affecting whether a defendant receives Hurst relief
under this Court’s date-of-Ring-based retroactivity approach include whether a
resentencing was granted. Under the Court’s current approach, “older” cases dating
back to the 1980s with a post-Ring resentencing are subject to Hurst, while other
less “old” cases are not. See, e.g., Johnson v. State, 205 So. 3d 1285, 1285 (granting
Hurst relief to a defendant whose crime occurred in 1981 but was granted relief on
a third successive post-conviction motion in 2010, years after the Ring decision);
Card, 219 So. 3d at 47 (granting Hurst relief to a defendant whose crime occurred
in 1981 but was afforded relief on a second successive post-conviction motion in
2002—just four days after Ring was decided); cf. Calloway v. State, 210 So. 3d 1160
(Fla. 2017) (granting Hurst relief in a case where the crime occurred in the late
1990s, but interlocutory appeals resulted in a ten-year delay before the trial). Under
this Court’s approach, a defendant who was originally sentenced to death before
Branch, but who was later resentenced to death after Ring, would receive Hurst relief
and Branch would not.
Moreover, under the Court’s current rule, some litigants whose Ring claims
were wrongly rejected on the merits during the 2002-2016 period will be denied the
40a
benefit of Hurst because the Court addressed the issue in a post-conviction rather
than a direct appeal posture. See, e.g., Miller v. State, 926 So. 2d 1243, 1259 (Fla.
2006); Nixon v. State, 932 So. 2d 1009, 1024 (Fla. 2006); Bates v. State, 3 So. 3d
1091, 1106 n.14 (Fla. 2009); Bradley v. State, 33 So. 3d 664, 670 n.6 (Fla. 2010).
Making Hurst retroactive to only post-Ring sentences also unfairly denies
Hurst access to defendants who were sentenced between Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring. The fundamental unfairness of that result is stark
given that the Supreme Court made clear in Ring that its decision flowed directly
from Apprendi. See Ring, 536 U.S. at 588-89. And in Hurst v. Florida, the Court
repeatedly stated that Florida’s scheme was incompatible with “Apprendi’s rule,” of
which Ring was an application.
136 S. Ct. at 621.
This Court itself has
acknowledged that Ring was an application of Apprendi. See Mosley, 209 So. 3d at
1279-80. This Court’s drawing of its retroactivity cutoff at Ring instead of Apprendi
represents the sort of capriciousness that is inconsistent with the Eighth Amendment.
C.
This Court’s retroactivity cutoff violates the Fourteenth
Amendment’s guarantee of equal protection and due process
As an equal protection matter, the cutoff treats death-sentenced prisoners in
the same posture—on collateral review—differently without “some ground of
difference that rationally explains the different treatment.” Eisenstadt v. Baird, 405
U.S. 438, 447 (1972). When two classes are created to receive different treatment
by a state actor like this Court, the question is whether there is a rational basis for
the different treatment. Id.; see also McLaughlin v. Florida, 379 U.S. 184, 191
(1964). The Fourteenth Amendment requires that distinctions in state criminal laws
41a
that impinge upon fundamental rights be strictly scrutinized. See, e.g., Skinner v.
Oklahoma, 316 U.S. 535, 541 (1942). Capital defendants have a fundamental right
to a reliable determination of their sentences. See Lockett v. Ohio, 438 U.S. 586,
604 (1978). When a state draws a line between defendants who will receive the
benefit of the rules designed to enhance the quality of decision-making by a penaltyphase jury and those who will not, the state’s justification for that line must satisfy
strict scrutiny. Far from meeting strict scrutiny, this Court’s Hurst retroactivity
cutoff lacks even a rational connection to any legitimate state interest. See Dep’t of
Agric. v. Moreno, 413 U.S. 528, 533 (1973).
As a due process matter, denying Hurst retroactivity to “pre-Ring” defendants
like Branch violates the Fourteenth Amendment because once a state requires certain
sentencing procedures, it creates Fourteenth Amendment life and liberty interests in
those procedures. See, e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985) (due process
interest in state-created right to direct appeal); Hicks, 447 U.S. at 346 (liberty interest
in state-created sentencing procedures); Ford v. Wainwright, 477 U.S. 399, 427-31
(1986) (O’Connor, J., concurring) (liberty interest in meaningful state competency
proceedings); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89 (1998)
(O’Connor, J., with Souter, Ginsburg, & Breyer, JJ., concurring) (life interest in
state-created right to capital clemency proceedings).
Although the right to the particular procedure is established by state law, the
violation of the life and liberty interest it creates is governed by federal constitutional
law. See Hicks, 447 U.S. at 347; Ford, 477 U.S. at 399, 428-29; Evitts, 469 U.S. at
393 (state procedures employed “as ‘an integral part of the . . . system for finally
42a
adjudicating the guilt or innocence of a defendant’” must comport with due process).
Defendants have “a substantial and legitimate expectation that [they] will be
deprived of [their] liberty only to the extent determined by the jury in the exercise
of its discretion . . . and that liberty interest is one that the Fourteenth Amendment
preserves against arbitrary deprivation by the State.” Hicks, 447 U.S. at 346. Courts
have found in a variety of contexts that state-created death penalty procedures vest
in a capital defendant life and liberty interests that are protected by due process. See.
e.g., Ohio Adult Parole Auth., 523 U.S. at 272; Ford, 477 U.S. at 427-31. In Hicks,
the Supreme Court held that the trial court’s failure to instruct the jury that it had the
option to impose an alternative sentence violated the state-created liberty interest
(and federal due process) in having the jury select his sentence from the full range
of alternatives available under state law. 447 U.S. at 343.
IV.
Because the Hurst decisions announced substantive constitutional rules,
the Supremacy Clause of the United States Constitution requires state
courts to apply those rules retroactively to all cases on collateral review
A.
The Supremacy Clause requires state courts to apply substantive
constitutional rules retroactively to all cases on collateral review
In Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016), the United States
Supreme Court held that the Supremacy Clause of the Constitution requires state
courts to apply “substantive” constitutional rules retroactively as a matter of federal
constitutional law, notwithstanding any separate state-law retroactivity analysis. In
Montgomery, a Louisiana state prisoner filed a claim in state court seeking
retroactive application of the rule announced in Miller v. Alabama, 567 U.S. 460
(2012) (holding that imposition of mandatory sentences of life without parole on
43a
juveniles violates the Eighth Amendment). The state court denied the prisoner’s
claim on the ground that Miller was not retroactive as a matter of state retroactivity
law. Montgomery, 136 S. Ct. at 727. The United States Supreme Court reversed,
holding that because the Miller rule was substantive as a matter of federal law, the
state court was obligated to apply it retroactively. See id. at 732-34.
Montgomery clarified that the Supremacy Clause requires state courts to apply
substantive rules retroactively, notwithstanding state-law analysis. Montgomery,
136 S. Ct. at 728-29 (“[W]hen a new substantive rule of constitutional law controls
the outcome of a case, the Constitution requires state collateral review courts to give
retroactive effect to that rule.”) (emphasis added). Thus, Montgomery held, “[w]here
state collateral review proceedings permit prisoners to challenge the lawfulness of
their confinement, States cannot refuse to give retroactive effect to a substantive
constitutional right that determines the outcome of that challenge.” Id. at 731-32.
Importantly for purposes of Hurst retroactivity analysis, the Supreme Court
found the Miller rule substantive in Montgomery even though the rule had “a
procedural component.” Id. at 734. Miller did “not categorically bar a penalty for a
class of offenders or type of crime—as, for example, [the Court] did in Roper or
Graham.” Miller, 567 U.S. at 483. Instead, “it mandate[d] only that a sentence
follow a certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.”
Id.
Despite Miller’s
procedural mandates, the Court in Montgomery warned against “conflat[ing] a
procedural requirement necessary to implement a substantive guarantee with a rule
that ‘regulate[s] only the manner of determining the defendant’s culpability.’”
44a
Montgomery, 136 S. Ct. at 734 (quoting Schriro v. Summerlin, 542 U.S. 348, 353
(2004)). Instead, the Court explained, “[t]here are instances in which a substantive
change in the law must be attended by a procedure that enables a prisoner to show
that he falls within a category of persons whom the law may no longer punish,” id.
at 735, and that the necessary procedures do not “transform substantive rules into
procedural ones,” id. Miller “bar[red] life without parole . . . . For that reason, Miller
is no less substantive than are Roper and Graham.” Id. at 734.
B.
The Hurst decisions announced substantive rules that must be
applied retroactively to Branch under the Supremacy Clause
At least two substantive rules were established by Hurst v. Florida and Hurst
v. State. First, a Sixth Amendment rule was established requiring that a jury find as
fact beyond a reasonable doubt: (1) each aggravating circumstance; (2) that those
particular aggravating circumstances together are “sufficient” to justify imposition
of the death penalty; and (3) that those particular aggravating circumstances together
outweigh the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Such
findings are manifestly substantive. See Montgomery, 136 S. Ct. at 734 (holding
that the decision whether a juvenile is a person “whose crimes reflect the transient
immaturity of youth” is a substantive, not procedural, rule). As in Montgomery, these
requirements amounted to an “instance[] in which a substantive change in the law
must be attended by a procedure that enables a prisoner to show that he falls within
a category of persons whom the law may no longer punish.” Id. at 735.
Second, an Eighth Amendment rule was established that requires those three
beyond-a-reasonable-doubt findings to be made unanimously by the jury. The
45a
substantive nature of the unanimity rule is apparent from this Court’s explanation in
Hurst v. State that unanimity (1) is necessary to ensure compliance with the
constitutional requirement that the death penalty be applied narrowly to the worst
offenders, and (2) ensures that the sentencing determination “expresses the values
of the community as they currently relate to the imposition of the death penalty.”
202 So. 3d at 60-61. The function of the unanimity rule is to ensure that Florida’s
death-sentencing scheme complies with the Eighth Amendment and to “achieve the
important goal of bringing [Florida’s] capital sentencing laws into harmony with the
direction of the society reflected in [the majority of death penalty] states and with
federal law.” Id. As a matter of federal retroactivity law, the rule is therefore
substantive. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“[T]his Court
has determined whether a new rule is substantive or procedural by considering the
function of the rule”). This is true even though the rule’s subject concerns the
method by which a jury makes its decision. See Montgomery, 136 S. Ct. at 735
(noting that state’s ability to determine method of enforcing constitutional rule does
not convert rule from substantive to procedural).
The United States Supreme Court’s decision in Welch is illustrative of the
substantive nature of Hurst. In Welch, the Court addressed the retroactivity of the
constitutional rule articulated in Johnson v. United States, 135 S. Ct. 2551, 2560
(2015). In Johnson, the Court held that a federal statute that allowed sentencing
enhancement was unconstitutional. Id. at 2556. Welch held that Johnson’s ruling
was substantive because it “affected the reach of the underlying statute rather than
the judicial procedures by which the statute is applied”—therefore it must be applied
46a
retroactively.
Welch, 136 S. Ct. at 1265.
The Court emphasized that its
determination whether a constitutional rule is substantive or procedural “does not
depend on whether the underlying constitutional guarantee is characterized as
procedural or substantive,” but rather whether “the new rule itself has a procedural
function or a substantive function,” i.e., whether the new rule alters only the
procedures used to obtain the conviction, or alters instead the class of persons the
law punishes. Id. at 1266. In Welch, the Court pointed out that, “[a]fter Johnson,
the same person engaging in the same conduct is no longer subject to the Act and
faces at most 10 years in prison. The residual clause is invalid under Johnson, so it
can no longer mandate or authorize any sentence.” Id. Thus, “Johnson establishes,
in other words, that even the use of impeccable factfinding procedures could not
legitimate a sentence based on that clause.” Id. “It follows,” the Court held, “that
Johnson is a substantive decision.” Id. (internal quotation omitted).
The same reasoning applies in the Hurst context. The Sixth Amendment
requirement that each element of a Florida death sentence must be found beyond a
reasonable doubt, and the Eighth Amendment requirement of jury unanimity in factfinding, are substantive constitutional rules as a matter of federal law because they
place certain murders “beyond the State’s power to punish,” Welch, 136 S. Ct. at
1265, with a sentence of death. Following the Hurst decisions, “[e]ven the use of
impeccable factfinding procedures could not legitimate a sentence based on” the
judge-sentencing scheme.
Id.
And in the context of a Welch analysis, the
“unanimous finding of aggravating factors and [of] the facts that are sufficient to
impose death, as well as the unanimous finding that they outweigh the mitigating
47a
circumstances, all serve to help narrow the class of murderers subject to capital
punishment,” Hurst, 202 So. 3d at 60 (emphasis added), i.e., the new law by
necessity places certain individuals beyond the state’s power to impose a death
sentence. The decision in Welch makes clear that a substantive rule, rather than a
procedural rule, resulted from the Hurst decisions. See Welch, 136 S. Ct. at 126465 (a substantive rule “alters . . . the class of persons that the law punishes.”).
Hurst retroactivity is not undermined by Summerlin, 542 U.S. at 364, where
the United States Supreme Court held that Ring was not retroactive in a federal
habeas case. In Ring, the Arizona statute permitted a death sentence to be imposed
on a finding of fact that at least one aggravating factor existed. Summerlin did not
review a statute, like Florida’s, that required the jury not only to conduct the factfinding regarding the aggravators, but also as to whether the aggravators were
sufficient to impose death and whether the death penalty was an appropriate
sentence. Summerlin acknowledged that if the Court itself “[made] a certain fact
essential to the death penalty . . . [the change] would be substantive.” 542 U.S. at
354. Such a change occurred in Hurst where, for the first time, the Court found it
unconstitutional for a judge alone to find that “sufficient aggravating factors exist
and [t]hat there are insufficient mitigating circumstances to outweigh the
aggravating circumstances.” 136 S. Ct. at 622 (internal citation omitted).
Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard in addition to the jury trial right, and the United States Supreme Court
has always regarded proof-beyond-a-reasonable-doubt decisions as substantive.
See, e.g., Ivan V. v. City of New York, 407 U.S. 203, 205 (1972) (explaining that “the
48a
major purpose of the constitutional standard of proof beyond a reasonable doubt
announced in [In re Winship, 397 U.S. 358 (1970)] was to overcome an aspect of a
criminal trial that substantially impairs the truth-finding function, and Winship is
thus to be given complete retroactive effect.”); Powell v. Delaware, 153 A.3d 69
(Del. 2016) (holding Hurst retroactive under Delaware’s state Teague-like
retroactivity doctrine and distinguishing Summerlin on the ground that Summerlin
“only addressed the misallocation of fact-finding responsibility (judge versus jury)
and not . . . the applicable burden of proof.”).3
The recent ruling of an Eleventh Circuit panel in Lambrix v. Sec’y, No. 17-14413,
2017 WL 4416205 (11th Cir. Oct. 5, 2017), does not negate Branch’s arguments.
First, Lambrix was decided in the context of the current federal habeas statute, which
dramatically curtails review: “A state court’s decision rises to the level of an
unreasonable application of federal law only where the ruling is objectively
unreasonable, not merely wrong; even clear error will not suffice.” Id. at *8 (internal
quotation marks omitted). In contrast, this Court’s application of federal
constitutional protections is not circumscribed, as this Court noted in the Hurst
context in Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016) (“[W]e hold that the Supreme
Court’s decision in Hurst v. Florida requires that all critical findings necessary
before the trial court may consider imposing a sentence of death must be found
unanimously by the jury . . . . We also hold . . . under the Eighth Amendment to the
United States Constitution, that in order for the trial court to impose a sentence of
death, the jury’s recommended sentence must be unanimous”). Second, Lambrix
dealt with an idiosyncratic issue—the “retroactivity” of Florida’s new capital
sentencing statute. Lambrix did not argue, as Branch does here, for the retroactivity
of the constitutional rules arising from the Hurst decisions. Third, the Eleventh
Circuit did not address the specific arguments about federal retroactivity that are
raised here. Fourth, almost needless to say, an Eleventh Circuit panel decision has
no precedential value in this forum.
3
49a
C.
This Court has an obligation to address Branch’s federal
retroactivity arguments
Because this Court is bound by the federal constitution, it has the obligation
to address Branch’s federal retroactivity arguments. See Testa v. Katt, 330 U.S. 386,
392-93 (1947) (state courts must entertain federal claims in the absence of a “valid
excuse”); Martin v. Hunter’s Lessee, 14 U.S. 304, 340-42 (1816).
Addressing those claims meaningfully in the present context requires full
briefing and oral argument. The federal constitutional issues were raised to this
Court in Hitchcock, but this Court ignored them. Dismissing this appeal on the basis
of Hitchcock would compound that error.
CONCLUSION
This Court should hold that Hurst v. Florida, Hurst v. State, Florida state law,
and federal law require the Hurst decisions to be applied retroactively to Branch,
vacate Branch’s death sentence, and remand to the circuit court for a new penalty
phase or imposition of a life sentence.
50a
Respectfully submitted,
/s/ Stacy Biggart
/s/ Kathleen Pafford
Stacy Biggart
Assistant Capital Collateral
Regional Counsel – North
Florida Bar No. 89388
1004 DeSoto Park Drive
Tallahassee, Florida 32301
(850) 487-0922
Stacy.Biggart@ccrc-north.org
Kathleen Pafford
Assistant Capital Collateral
Regional Counsel – North
Florida Bar No. 99527
1004 DeSoto Park Drive
Tallahassee, FL 32301
(850) 487-0922
Kathleen.Pafford@ccrc-north.org
Counsel for Branch
CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2017, the foregoing was electronically
served via the e-portal to Assistant Attorney General Lisa Hopkins at
lisa.hopkins@myfloridalegal.com and capapp@myfloridalegal.com.
/s/ Stacy Biggart
Stacy Biggart
51a
EXHIBIT 8
52a
Filing # 63549391 E-Filed 10/31/2017 01:52:16 PM
IN THE SUPREME COURT OF FLORIDA
ERIC SCOTT BRANCH,
Appellant,
CASE NO. SC17-1509
L.T. NO. 1991-CF-008144
DEATH PENALTY CASE
v.
RECEIVED, 10/31/2017 01:53:29 PM, Clerk, Supreme Court
STATE OF FLORIDA,
Appellee.
____________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT,
IN AND FOR ESCAMBIA COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE
PAMELA JO BONDI
ATTORNEY GENERAL
LISA A. HOPKINS
ASSISTANT ATTORNEY GENERAL
Florida Bar No. 99459
The Capitol, PL-01
Tallahassee, Florida 32311
Telephone: (850) 414-3300
Facsimile: (850) 414-0997
Lisa.Hopkins@myfloridalegal.com
Counsel for Appellee
53a
TABLE OF CONTENTS
TABLE OF CONTENTS............................................. ii
TABLE OF AUTHORITIES......................................... iii
STATEMENT OF THE CASE AND FACTS................................ 1
OBJECTION TO ORAL ARGUMENT..................................... 2
SUMMARY OF THE ARGUMENT........................................ 2
ARGUMENT....................................................... 3
CONCLUSION.................................................... 12
CERTIFICATE OF SERVICE........................................ 13
CERTIFICATE OF FONT COMPLIANCE................................ 13
54a
TABLE OF AUTHORITIES
Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000).................... 9
Archer v. Florida, 519 U.S. 876 (1996)......................... 9
Archer v. Jones, 2017 WL 1034409 (Fla. Mar. 17, 2017).......... 9
Asay v. Florida, 502 U.S. 895 (1991)........................... 9
Asay v. State, 224 So. 3d 695 (Fla. 2017)..................... 10
Asay v. State, 210 So.3d 1 (Fla. 2016)................ 2, 3, 8, 9
Bogle v. Florida, 516 U.S. 978 (1995)......................... 10
Bogle v. State, 213 So. 3d 833 (Fla. 2017).................... 10
Branch v. Florida, 520 U.S. 1218 (1997)........................ 1
Branch v. McDonough, 779 F.Supp.2d 1309 (M.D. Fla. 2010)....... 1
Branch v. Sec’y, Fla. Dep’t of Corr., 638 F.3d 1353 (11th Cir.
2011) ........................................................ 1
Branch v. State, 658 So. 2d 1250 (Fla. 1996)................... 1
Branch v. State, 952 So. 2d 470 (Fla. 2006).................... 1
Branch v. Tucker, 132 S.Ct. 1735 (2012)........................ 1
Cherry v. Florida, 494 U.S. 1090 (1990)........................ 9
Cherry v. Jones, 2017 WL 1033693 (Fla. Mar. 17, 2017).......... 9
Danforth v. Minnesota, 522 U.S. 264 (2008)..................... 3
Davis v. Florida, 524 U.S. 930 (1998)......................... 10
Davis v. State, 2017 WL 656307 (Fla. Feb. 17, 2017)........... 10
Dobbert v. Florida, 432 U.S. 282 (1977)........................ 7
Finney v. State, 660 So. 2d 674 (Fla. 1995).................... 4
Floyd v. State, 497 So. 2d 1211 (Fla. 1986).................... 4
Gaskin v. Florida, 510 U.S. 925 (1993)........................ 10
Gaskin v. State, 218 So. 3d 399 (Fla. Jan. 19, 2017).......... 10
Geralds v. Florida, 519 U.S. 891 (1996)....................... 10
Geralds v. Jones, 2017 WL 944236 (Fla. Mar. 10, 2017)......... 10
Griffith v. Kentucky, 479 U.S. 314 (1987)...................... 7
Hamilton v. Florida, 524 U.S. 956 (1998)...................... 10
Hamilton v. Jones, 2017 WL 836807 (Fla. Mar. 3, 2017)......... 10
Hartley v. Florida, 522 U.S. 825 (1997)....................... 10
Hartley v. Jones, 2017 WL 944232 (Fla. Mar. 10, 2017)......... 10
Hitchcock v. State, 2017 WL 3431500 (Fla. Aug. 10, 2017) 2, 9, 10
Hitchcock v. State, 531 U.S. 1040 (2000)....................... 9
Hurst v. State, 202 So. 3d 40 (Fla. 2016)...................... 3
Ivan V. v. City of New York, 407 U.S. 203 (1972)............... 3
Johnson v. State, 904 So. 2d 400 (Fla. 2005)................... 3
55a
Jones v. Florida, 515 U.S. 1147 (1995)......................... 9
Jones v. Jones, 2017 WL 1034410 (Fla. Mar. 17, 2017)........... 9
Jones v. State, 2017 WL 4296370 (Fla. Sept. 28, 2017).......... 9
Lambrix v. Florida, 2017 WL 4456332 (Oct. 5, 2017)............. 6
Lambrix v. Sec’y, Fla. Dep’t of Corr., 2017 WL 4416205 (11th
Cir. Oct. 5, 2017) ........................................ 6, 7
Lambrix v. State, 2017 WL 4320637 (Fla. Sept. 29, 2017)....... 10
Lambrix v. State, 217 So. 3d 977 (Fla. 2017).................. 10
Lukehart v. Florida, 533 U.S. 934 (2001)....................... 9
Lukehart v. Jones, 2017 WL 1033691 (Fla. Mar. 17, 2017)........ 9
Marshall v. Florida, 508 U.S. 915 (1993)....................... 9
Marshall v. Jones, 2017 WL 1739246 (Fla. May 4, 2017).......... 9
Oats v. Florida, 474 U.S. 865 (1985)........................... 9
Oats v. Jones, 220 So. 3d 1127 (Fla. 2017)..................... 9
Penry v. Lynaugh, 492 U.S. 302 (1989).......................... 7
Powell v. Delaware, 153 A.3d 69 (Del. 2016)................. 3, 4
Rauf v. State, 145 A.3d 430 (Del. 2016)........................ 4
Ring v. Arizona, 536 U.S. 584 (2002)........................... 3
Rodriguez v. Florida, 510 U.S. 830 (1993)...................... 9
Rodriguez v. State, 219 So. 3d 751 (Fla. 2017)................. 9
Schriro v. Summerlin, 542 U.S. 348 (2004)................... 5, 6
Smith v. State, 598 So. 2d 1063 (Fla. 1992).................... 7
Stein v. Florida, 513 U.S. 834 (1994)......................... 10
Stein v. Jones, 2017 WL 836806 (Fla. Mar. 3, 2017)............ 10
Suggs v. Jones, 2017 WL 1033680 (Fla. Mar. 17, 2017)........... 9
Teague v. Lane, 489 U.S. 288 (1989)............................ 3
Wainwright v. Florida, 523 U.S. 1127 (1998)................... 10
Wainwright v. State, 2017 WL 394509 (Fla. Jan. 30, 2017)...... 10
Willacy v. Florida, 522 U.S. 970 (1997)........................ 9
Willacy v. Jones, 2017 WL 1033679 (Fla. Mar. 17, 2017)......... 9
Witt v. State, 387 So. 2d 922 (Fla. 1980)...................... 3
Zack v. Florida, 531 U.S. 858 (2000)........................... 9
Zack v. State, 2017 WL 2590703 (Fla. June 15, 2017)............ 9
Zakrzewski v. Florida, 525 U.S. 1126 (1999).................... 9
Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017)............... 9
Zeigler v. State, 580 So. 2d 127 (Fla. 1991)................... 4
Other Authorities
Fla. R. Crim. P. 3.851(d)(1)(B)................................ 1
56a
STATEMENT OF THE CASE AND FACTS
Appellant, Eric Scott Branch, was convicted of first-degree
murder, armed kidnapping, six counts of armed robbery, burglary,
and aggravated battery. Branch v. State, 658 So. 2d 1250 (Fla.
1996). The judgment and sentence became final upon denial of
certiorari by the United States Supreme Court on May 12, 1997.
Branch
v.
Florida,
520
U.S.
1218
(1997);
Fla.
R.
Crim.
P.
3.851(d)(1)(B) (A judgment and sentence become final “on the
disposition of the petition for writ of certiorari by the United
States Supreme Court, if filed.”). This Court affirmed the denial
of Appellant’s postconviction motion and denied a previous writ of
habeas corpus.
Branch v. State, 952 So. 2d 470, 484 (Fla. 2006).
Appellant sought a writ of habeas corpus in federal court, which
was denied.
2010).
Branch v. McDonough, 779 F.Supp.2d 1309 (M.D. Fla.
The Eleventh Circuit Court of Appeals affirmed the denial
of Appellant’s writ of habeas corpus.
Branch v. Sec’y, Fla. Dep’t
of Corr., 638 F.3d 1353 (11th Cir. 2011), cert. denied, Branch v.
Tucker, 132 S.Ct. 1735 (2012).
On August 14, 2017, Appellant filed with this Court a notice
of appeal for the denial of a successive postconviction motion for
relief under Hurst v. Florida.
On August 22, 2017, this Court
stayed the appeal pending the disposition of Hitchcock.
On August
10, 2017, this Court affirmed the conviction and sentence in
Hitchcock
in
accordance
with
this
Court’s
decision
in
Asay.
57a
Hitchcock v. State, No. SC17-445, 2017 WL 3431500, *2 (Fla. Aug.
10, 2017); Asay v. State, 210 So. 3d 1 (Fla. 2016).
On September
27, 2017, this Court issued an order for Appellant to show cause
as to “why the trial court’s order should not be denied in light
of this Court’s decision Hitchcock v. State, SC17-455.” On October
11, 2017, Appellant filed his “Response to September 27, 2017 Order
to Show Cause.” (Response).
This is the Appellee’s reply to
Appellant’s Response.
OBJECTION TO ORAL ARGUMENT
Appellee objects to Appellant’s request for oral argument. In
the briefing schedule, this Court ordered the parties to respond
to a limited issue that has been decided by this Court in other
cases. As such, oral argument would not serve any purpose other
than to delay the proceedings.
SUMMARY OF THE ARGUMENT
The
lower
court
properly
summarily
denied
Appellant’s
successive motion for postconviction relief. Appellant has failed
to show cause as to why his case should be excluded from this
Court’s precedent in Asay as reaffirmed by Hitchcock.
Because
Appellant’s judgment and sentence were final prior to the decision
in Ring, Hurst is not retroactive to him.
58a
ARGUMENT
In
Asay,
this
Court
held
that
Hurst
v.
State
is
not
retroactive to any case in which the death sentence was final prior
to the June 24, 2002, decision in Ring.
Asay v. State, 210 So. 3d
at 22; Hurst v. State, 202 So. 3d 40 (Fla. 2016); Ring v. Arizona,
536 U.S. 584 (2002).
The judgment in Asay became final October 7,
1991, and thus Asay was not eligible for any relief under Hurst.
Asay, 210 So. 3d at 8.
In
Asay,
this
Court
discussed
applying retroactivity to Hurst.
the
appropriate
test
for
Asay, 210 So. 3d at 15-16.
This
Court applied the Witt analysis for retroactivity under state law,
“which provides more expansive retroactivity standards than those
adopted in Teague,” which enumerates the federal retroactivity
standards.
Id. (emphasis in original), quoting Johnson v. State,
904 So. 2d 400, 409 (Fla. 2005); Witt v. State, 387 So. 2d 922
(Fla. 1980); Teague v. Lane, 489 U.S. 288 (1989); see also Danforth
v. Minnesota, 522 U.S. 264, 280-81 (2008) (allowing states to adopt
a retroactivity test that is broader than Teague).
Petitioner relies upon Ivan V. and Powell for the premise
that Hurst should be retroactive under Teague as a substantive
change.
(Response at 18-19); Ivan V. v. City of New York, 407
U.S. 203, 205 (1972); Powell v. Delaware, 153 A.3d 69 (Del. 2016).
Petitioner
argues
that
Hurst
reasonable-doubt standard.”
“addressed
the
proof-beyond-a-
(Response at 19).
However, the
59a
standard of proof for proving aggravating factors in Florida has
been beyond a reasonable doubt, long before Hurst was decided.
See Floyd v. State, 497 So. 2d 1211, 1214-15 (Fla. 1986); Zeigler
v. State, 580 So. 2d 127, 129 (Fla. 1991); Finney v. State, 660
So. 2d 674, 680 (Fla. 1995).
The Delaware Court in Powell agreed:
“neither Ring nor Hurst involved a Due Process Clause violation
caused by the unconstitutional use of a lower burden of proof.”
Powell, 153 A.3d at 74.
The Delaware Supreme Court used this fact
to distinguish Delaware’s “watershed ruling” in Rauf which was the
basis for Delaware to find that retroactivity applied to Powell
under Teague, from Ring and Hurst.
Powell, 153 A.3d at 74; Rauf
v. State, 145 A.3d 430 (Del. 2016).
Thus, Powell applies to
Delaware cases and distinguishes Hurst and Ring under Delaware
law.
Appellant insists that the cut-off date of 2002 created in
Asay
is
arbitrary
in
violation
of
due
process,
the
Eighth
Amendment, and equal protection. This Court has rejected those
same claims in Asay and Lambrix. Asay, 224 So. 3d at 702; Lambrix,
2017 WL 4320637 at *1-*2 (denying Eighth Amendment, due process,
and equal protection challenges to the holding in Asay citing
Hitchcock). Indeed, many of these same arguments were made by the
dissenters in Asay itself but were rejected by the majority.1 The
Asay, 210 So. 3d at 31 (Lewis, J., concurring) (“Florida will
treat similarly situated defendants differently — here, the
1
60a
majority in Asay drew the cut-off in full awareness of these
constitutional attacks.
As to fundamental fairness, due process does not require
courts to abandon all retroactivity analysis and apply all new
rules to all cases. Such an argument negates all finality in
criminal law and it is finality that is the overriding concern in
any retroactivity analysis, including in capital cases. Further,
despite Appellant’s claim that Hurst created a substantive change
requiring federal retroactivity, in Schriro, the Supreme Court
determined that Ring was a procedural rule and did not create a
substantive constitutional change in the law because it only
“altered the range of permissible methods for determining whether
a defendant’s conduct is punishable by death, requiring that a
jury rather than a judge find the essential facts bearing on
punishment.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). Ring
difference between life and death — for potentially the simple
reason of one defendant’s docket delay” and characterizing the
majority’s cut-off date based on Ring as being “arbitrary”); Id.
at 35 (Pariente, J., dissenting) (stating that Hurst II is that
“rare situation in which finality yields to fundamental fairness”
and that the majority’s rule results in “arbitrariness as to who
receives relief depending on when the defendant was sentenced or,
in some cases, resentenced” and taking the view that to “avoid
such arbitrariness and to ensure uniformity and fundamental
fairness in Florida’s capital sentencing,” “Hurst should be
applied retroactively to all death sentences”); Id. at 37 (Perry,
J., dissenting) (“the line drawn by the majority is arbitrary and
cannot withstand scrutiny under the Eighth Amendment because it
creates an arbitrary application of law to two groups of similarly
situated persons”).
61a
did not alter the “range of conduct or the class of persons that
the law punishes.”
Id.
Thus, Ring “announced a new procedural
rule that does not apply retroactively to cases already final on
direct review.”
Id. at 358.
Since the Supreme Court held that
Ring did not create a substantive constitutional rule and is not
retroactive, Hurst is also not a substantive constitutional rule,
nor is it retroactive under federal law.
The Eleventh Circuit has rejected the argument that Hurst is
retroactive under federal law, stating: “[t]he Supreme Court has
held that Ring does not apply retroactively to cases on collateral
review.
See Schriro, 542 U.S. at 358[ ](holding that Ring does
not apply retroactively under federal law to death-penalty cases
already final on direct review.).”
Lambrix v. Sec’y, Fla. Dep’t
of Corr., No. 17-14413, 2017 WL 4416205, *8 (11th Cir. Oct. 5,
2017), cert. denied, Lambrix v. Jones, Nos. 17-6290, 17A380, 2017
WL 4456332 (Oct. 5, 2017).
Further, the Eleventh Circuit held
that this Court’s ruling, that Hurst did not retroactively apply
to Lambrix, whose judgment was final in 1986, “is fully in accord
with the U.S. Supreme Court’s precedent in Ring and Schriro.”
Lambrix, 2017 WL 4416205 at *8. The Eleventh Circuit also rejected
the statutory retroactivity argument stating
jurists of reason would not find this position
debatable: the Florida court’s rejection of Lambrix’s
constitutional-statutory claim was not contrary to, or
an unreasonable application of, the holding of a Supreme
Court decision.
62a
Id. at *9; see also Dobbert v. Florida, 432 U.S. 282, 301 (1977).
Additionally, with retroactivity, there is usually a cut-off
date to provide for finality in appellate processing.
Penry v.
Lynaugh, 492 U.S. 302, 314 (1989) (holding finality concerns in
retroactivity are applicable in the capital context). In Griffith,
the Supreme Court held “that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear
break’ with the past.”
Griffith v. Kentucky, 479 U.S. 314, 328
(1987); see also Smith v. State, 598 So. 2d 1063, 1065 (Fla. 1992).
Under this “pipeline” concept, only those still pending direct
review would receive the benefit of relief from Hurst error.
The
fact that this Court has drawn the line at the decision date in
Ring
instead
of
the
decision
date
in
Hurst,
benefits
more
appellants.
Inherent in the concept of non-retroactivity is that some
cases will get the benefit of a new development, while other cases
will not, depending on a date. Drawing a line between newer cases
that will receive benefit of the new development is part and parcel
of the landscape of retroactivity analysis. It is simply part of
the
retroactivity
paradigm
that
some
cases
will
be
treated
differently than other cases based on the age of the case. Neither
63a
Asay nor Griffith nor Teague violate due process. Retroactivity
analysis itself is not fundamentally unfair in violation of due
process.
As to Equal Protection, it is doubtful that Equal Protection
analysis even applies to judicial decisions, such as Asay, as
opposed to statutes. Bouie v. City of Columbia, 378 U.S. 347 (1964)
(using due process, not equal protection, when a judicial decision
is at issue). But even assuming it does, such an argument makes
little jurisprudential sense. A cut-off date does not create a
protected class and there is no fundamental right involved. The
date of finality of a defendant’s sentence is not an immutable
characteristic
requiring
application
of
strict
scrutiny
or
intermediate scrutiny. The only possible standard of review under
equal protection principles, would be rational basis review. And
the cut-off date of Ring established by this Court in Asay more
than satisfies rational basis review. Again, all retroactivity
analysis depends on cut-off dates. According to Appellant’s logic,
all
retroactivity
tests
violate
equal
protection.
The
Equal
Protection Clause does not mandate that every major change in the
law be applied retroactively, which would be the necessary outcome
of adopting this view. Neither Asay nor Griffith nor Teague violate
equal protection.
In Asay, this Court discussed Apprendi’s role in developing
the Court’s decisions in Ring and Hurst.
Asay, 210 So. 3d at 11-
64a
19.
However, “the Supreme Court distinguished capital cases from
its holding in Apprendi.”
Id. at 19; citing Apprendi v. New
Jersey, 530 U.S. 466, 496-97 (2000) (“this Court has previously
considered and rejected the argument that the principles guiding
our decision today render invalid state capital sentencing schemes
. . .”).
After Asay, this Court continuously adhered to using the Ring
decision date as the cut-off point for retroactivity.
Thus far,
this Court has chosen not to extend Hurst v. State to 23 cases,
including Asay, based solely on the fact that the judgments were
finalized prior to the decision in Ring.2
See Asay, 210 So. 3d at 8, 22 (sentence final in 1991; see Asay
v. Florida, 502 U.S. 895 (1991)); Jones v. State, No. SC15-1549,
2017 WL 4296370, *2 (Fla. Sept. 28, 2017); Hitchcock, 2017 WL
3431500 (sentence final in 2000; see Hitchcock v. State, 531 U.S.
1040 (2000)); Zack v. State, Nos. SC15-1756, SC16-1090, 2017 WL
2590703, *5 (Fla. June 15, 2017)(sentence final in 2000; see Zack
v. Florida, 531 U.S. 858 (2000)); Zakrzewski v. Jones, 221 So. 3d
1159, 1159 (Fla. 2017)(sentence final in 1999; see Zakrzewski v.
Florida, 525 U.S. 1126 (1999)); Oats v. Jones, 220 So. 3d 1127,
1129 (Fla. 2017)(sentence final in 1985; see Oats v. Florida, 474
U.S. 865 (1985)); Marshall v. Jones, No. SC16-779, 2017 WL 1739246
(Fla. May 4, 2017)(sentence final in 1993; see Marshall v. Florida,
508 U.S. 915 (1993)); Rodriguez v. State, 219 So. 3d 751, 760 (Fla.
2017)(sentence final in 1993; see Rodriguez v. Florida, 510 U.S.
830 (1993)); Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla.
Mar. 17, 2017)(sentence final in 1997; see Willacy v. Florida, 522
U.S. 970 (1997)); Suggs v. Jones, No. SC16-1066, 2017 WL 1033680,
*1 (Fla. Mar. 17, 2017)(sentence final in 1995; see Suggs v.
Florida, 514 U.S. 1083 (1995)); Lukehart v. Jones, No. SC16-1225,
2017 WL 1033691, *1 (Fla. Mar. 17, 2017)(sentence final in 2001;
see Lukehart v. Florida, 533 U.S. 934 (2001)); Cherry v. Jones,
No. SC16-694, 2017 WL 1033693, *1 (Fla. Mar. 17, 2017)(sentence
final in 1990; see Cherry v. Florida, 494 U.S. 1090 (1990)); Archer
v. Jones, No. SC16-2111, 2017 WL 1034409, *1 (Fla. Mar. 17,
2
65a
On August 10, 2017, in Hitchcock, this Court reaffirmed the
decision in Asay stating
[a]lthough Hitchcock references various constitutional
provisions as a basis for arguments that Hurst v.
State should entitle him to a new sentencing proceeding,
these are nothing more than arguments that Hurst v.
State should be applied retroactively to his sentence,
which became final prior to Ring. As such, these
arguments
were
rejected
when
we
decided Asay.
Accordingly, we affirm the circuit court's order
summarily denying Hitchcock's successive postconviction
motion pursuant to Asay.
Hitchcock, 2017 WL 3431500 at *2; see also Asay v. State, 224 So.
3d 695, 703 (Fla. 2017) (rejecting the claim that Chapter 2017-1,
Laws of Florida, “creates a substantive right to a life sentence
unless
a
jury
unanimously
recommends
otherwise”);
Lambrix
v.
2017)(sentence final in 1996; see Archer v. Florida, 519 U.S. 876
(1996)); Jones v. Jones, No. SC16-607, 2017 WL 1034410 (Fla. Mar.
17, 2017)(sentence final in 1995; see Jones v. Florida, 515 U.S.
1147 (1995)); Hartley v. Jones, No. SC16-1359, 2017 WL 944232, *1
(Fla. Mar. 10, 2017)(sentence final in 1997; see Hartley v.
Florida, 522 U.S. 825 (1997)); Geralds v. Jones, No. SC16-659,
2017 WL 944236, *1 (Fla. Mar. 10, 2017) (sentence final in 1996;
see Geralds v. Florida, 519 U.S. 891 (1996)); Lambrix v. State,
217 So. 3d 977, 989 (Fla. Mar. 9, 2017)(sentence final in 1986);
Stein v. Jones, No. SC16-621, 2017 WL 836806 (Fla. Mar. 3,
2017)(sentence final in 1994; see Stein v. Florida, 513 U.S. 834
(1994)); Hamilton v. Jones, No. SC16-984, 2017 WL 836807 (Fla.
Mar. 3, 2017)(sentence final in 1998; see Hamilton v. Florida, 524
U.S. 956 (1998)); Davis v. State, No. SC16-264, 2017 WL 656307
(Fla. Feb. 17, 2017)(sentence final in 1998; see Davis v. Florida,
524 U.S. 930 (1998)); Bogle v. State, 213 So. 3d 833, 855 (Fla.
2017)(sentence final in 1995; see Bogle v. Florida, 516 U.S. 978
(1995)); Wainwright v. State, No. SC15-2280, 2017 WL 394509 (Fla.
Jan. 30, 2017)(sentence final in 1998; see Wainwright v. Florida,
523 U.S. 1127 (1998)); Gaskin v. State, 218 So. 3d 399, 400 (Fla.
2017)(sentence final in 1993; see Gaskin v. Florida, 510 U.S. 925
(1993)).
66a
State, No. SC17-1687, 2017 WL 4320637, *1 (Fla. Sept. 29, 2017)
(rejecting arguments based on the Eighth Amendment, denial of due
process and equal protection, and a substantive right based on new
legislation).
Thus, this Court’s retroactivity cutoff does not
violate the Fourteenth Amendment’s guarantee of equal protection
and due process.
Here,
just
as
in
Hitchcock,
Appellant
raises
various
constitutional provisions to argue that Hurst v. State should be
retroactively applied to him.
reaffirmed
by
retroactively
Hitchcock,
to
Appellant.
However, just as in Asay, as
Hurst
v.
State
Appellant
does
also
not
relies
apply
on
the
concurring opinion in Hitchcock, 2017 WL 3431500, *2, to argue
that he should receive relief because he raised challenges prior
to Ring. However, this argument has been made before this Court
and was rejected. This Court has consistently applied the decision
in Asay, denying the retroactive application of Hurst v. Florida
to defendants whose death sentences were final prior to the
decision in Ring. This case became final on May 12, 1997, which is
prior to the June 24, 2002, decision in Ring.
State is not retroactive to this case.
As such, Hurst v.
Thus, this Petition should
be denied.
Appellant has demonstrated no cause that this Court should
re-review his case. This Court’s rulings in Asay and Hitchcock
apply to Appellant. Because Appellant’s judgment and sentence were
67a
final prior to the decision in Ring, Hurst is not retroactive to
him.
CONCLUSION
In conclusion, as a matter of law, Appellant is not entitled
to Hurst relief, and Appellee respectfully requests that this
Honorable Court affirm the postconviction court’s order denying
Appellant relief under Hurst.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Lisa A. Hopkins
Assistant Attorney General
Florida Bar No. 99459
Office of the Attorney General
PL-01, The Capitol
Tallahassee, Florida 32399
Telephone: (850)414-3336
Facsimile: (850)414-0997
capapp@myfloridalegal.com [and]
lisa.hopkins@myfloridalegal.com
COUNSEL FOR APPELLEE
68a
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 31st day of October, 2017, I
electronically filed the foregoing with the Clerk of the Court by
using the Florida Courts E-Portal Filing System which will send a
notice of electronic filing to the following: Stacy Biggart,
Stacy.Biggart@ccrc-north.org,
and
Kathleen
Pafford,
Kathleen.
Pafford@ccrc-north.org, Attorneys for Appellant.
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the size and style of the type used in
this brief is 12-point Courier New, in compliance with Fla. R.
App. P. 9.210(a)(2).
/s/ Lisa A. Hopkins
COUNSEL FOR APPELLEE
69a
EXHIBIT 9
70a
Filing # 64067192 E-Filed 11/11/2017 10:33:56 AM
IN THE SUPREME COURT OF FLORIDA
ERIC SCOTT BRANCH,
Appellant,
v.
Case No. SC17-1509
STATE OF FLORIDA,
Appellee.
RECEIVED, 11/11/2017 10:38:29 AM, Clerk, Supreme Court
_______________________/
APPELLANT’S REPLY1
I.
The State is incorrect in suggesting that Hitchcock and prior cases
addressed federal retroactivity in the Hurst context
The State is incorrect in its claim that both state and federal courts have
already rejected Appellant’s federal retroactivity arguments. The State erroneously
suggests that Appellant “raises various constitutional provisions” that have already
been rejected in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug.
10, 2017), and Asay. See State’s Resp. at 11. This Court’s decision in Hitchcock did
not explicitly address or reject any of the federal retroactivity arguments in
Appellant’s response to the order to show cause. See Appellant’s Resp. at 5-19.
This Court’s opinion in Hitchcock relied exclusively on the reasoning in Asay
v. State, 210 So. 3d 1 (Fla. 2016). As the State acknowledges, the Court’s decision
in Asay rested entirely on the state retroactivity law articulated in Witt. See State’s
Resp. at 3 (In Asay, “[t]his Court applied the Witt analysis for retroactivity under
state law”); see also Asay, 210 So. 3d at 16 (“To apply a newly announced rule of
1
Mr. Branch renews his request that this Court permit untruncated briefing and
oral argument.
1
71a
law to a case that is already final at the time of the announcement, this Court must
conduct a retroactivity analysis pursuant to the dictates of Witt.”).2 Asay did not
address whether federal law required the Hurst decisions to be applied retroactively,
and certainly did not address the federal retroactivity arguments raised in
Appellant’s response to the order to show cause in this proceeding. Namely, Asay
did not address whether a retroactivity “cutoff” drawn at Ring violates the Eighth
Amendment’s prohibition against arbitrary and capricious imposition of the death
penalty or the Fourteenth Amendment’s Equal Protection and Due Process Clauses.
Nor did Asay address whether the Hurst decisions are “substantive” within the
meaning of federal law, such that the Supremacy Clause of the Constitution requires
state courts to apply the decisions retroactively in light of Montgomery v. Louisiana,
136 S. Ct. 718 (2016).
Hitchcock, in relying totally on Asay, also did not explicitly address or reject
Appellant’s federal retroactivity arguments. See Hitchcock, 2017 WL 3431500, at
*1 (“We affirm because we agree with the circuit court that our decision in Asay
forecloses relief.”); id. at *2 (“Accordingly, we affirm the circuit court’s order
summarily denying Hitchcock’s successive postconviction motion pursuant to
Asay.”). The State’s response here attempts to highlight the conclusory sentence in
Hitchcock that reads: “Although Hitchcock references various constitutional
provisions as a basis for arguments that Hurst v. State should entitle him to a new
2
As this Court has repeatedly emphasized, Witt addresses retroactivity as a matter
of state law, which is separate and distinct from federal retroactivity analysis. See,
e.g., Falcon v. State, 162 So. 3d 954, 955-56 (Fla. 2015).
2
72a
sentencing proceeding, these are nothing more than arguments that Hurst v. State
should be applied retroactively to his sentence, which became final prior to Ring.”
State’s Resp. at 10 (citing Hitchcock, 2017 WL 3431500, at *2) (emphasis added).
But the Hitchcock Court’s reference to “constitutional provisions” cannot be
reasonably read to address Appellant’s federal retroactivity arguments, as the very
next sentence in Hitchcock reads: “As such, these arguments were rejected when we
decided Asay.” Hitchcock, 2017 WL 3431500, at *2. As explained above, Asay
rested its analysis entirely on state retroactivity law and the Florida Constitution.
During the nearly eight months between this Court’s decisions in Asay and
Hitchcock, many Hurst defendants have raised federal retroactivity arguments in this
Court and the circuit courts, explaining that Asay did not resolve those matters in its
exclusively state-law analysis and imploring that federal law be addressed. Those
defendants, appellants, and petitioners, as Appellant does here, advanced federal
retroactivity arguments under the Eighth and Fourteenth Amendments, as well as the
Supremacy Clause and Montgomery. If this Court had intended to put those
arguments to rest in Hitchcock, it could have done so. But any fair reading of
Hitchcock leads to the conclusion that those issues remain unresolved in light of the
Court’s wholesale reliance on Asay. Indeed, Hitchcock neither mentions the Eighth
Amendment’s prohibition against arbitrary and capricious imposition of the death
penalty, nor the Fourteenth Amendment’s Equal Protection and Due Process
Clauses. Nor does Hitchcock cite Montgomery or otherwise explain why the
Supremacy Clause does not require the substantive rules announced in the Hurst
3
73a
decisions to be retroactively applied by state courts. The State’s response to the order
to show cause in this case does not contend otherwise.3
The State also suggests that Appellant’s federal arguments have been
addressed in the Eleventh Circuit’s decision in Lambrix v. Sec’y, Fla. Dep’t of Corr.,
No. 17-14413, 2017 WL 4416205 (11th Cir. Oct. 5, 2017). Lambrix is not
precedential in this Court and was decided in the context of the current federal
habeas statute, which dramatically restricts federal review of state-court decisions.
This Court’s application of federal constitutional protections, on the other hand, is
not circumscribed. More importantly, Lambrix dealt with an idiosyncratic issue.
Contrary to the State’s assertion that Lambrix found that the Hurst decisions are not
retroactive under federal law, see State’s Resp. at 6, Lambrix actually dealt with the
“retroactivity” of Florida’s new capital sentencing statute and did not squarely
address the retroactivity of the constitutional rules arising from the Hurst decisions.
Similar idiosyncratic presentations also render inapplicable to Appellant this Court’s
recent active-death-warrant decisions in Asay v. State, 224 So. 3d 695 (Fla. 2017),
Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla. Sep. 29, 2017), and
Hannon v. State, No. SC17-1837, 2017 WL 4944899 (Fla. Nov. 1, 2017).
3
The State refers to twenty-three other cases where, like Hitchcock, this Court relied
on Asay’s state-law retroactivity principles to deny relief because the defendants’
sentences were final before Ring. Because these cases did not address federal
retroactivity arguments like those Appellant makes here, they do not preclude relief
in this case.
4
74a
II.
The State’s cursory response to Mr. Branch’s more general federal
retroactivity arguments regarding the Ring cutoff should also be rejected
The State fails to substantively engage most of Mr. Branch’s more general
federal retroactivity arguments regarding the Ring cutoff. The State does not cite
Montgomery, let alone address Mr. Branch’s argument that because the Hurst
decisions are substantive, the Supremacy Clause of the Constitution requires state
courts to apply them retroactively. See Branch’s Resp. at 13-19. The State also failed
to address Appellant’s claim that the Ring-based cutoff violates the Eighth
Amendment prohibition against arbitrary and capricious capital sentencing. See
Branch’s Resp. at 8-11. The State has therefore abandoned any arguments on those
issues. Cf. Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (“[A]n issue not raised
in an initial brief is deemed abandoned”).
While the State did address Appellant’s equal protection and due process
claims, its arguments did not provide a valid bar for relief. Instead, The State’s
argument that retroactivity always includes a cutoff is unpersuasive and exposes the
exact equal protection and due process errors and unconstitutionally arbitrary and
capricious sentencing that results from any Ring-based cutoff. The State suggests
that Appellant’s equal protection argument means any retroactivity test violates
equal protection. See State’s Resp. at 8. However, the State is misreading
Appellant’s equal protection claim to compare a class of all defendants, when
Appellant is speaking only to a class of similarly-situated defendants on collateral
review. See Branch’s Resp. at 11-13. Under Teague v. Lane, 489 U.S. 288 (1989),
courts look to whether a conviction was final on the date of the new rule. Id. at 295.
5
75a
Here, the Ring-based cutoff takes a group of defendants whose decisions were final
at the time of the Hurst decisions and grants and denies relief based on arbitrary
factors. As Appellant previously explained, the Ring cutoff injects into Florida’s
death penalty jurisprudence a level of arbitrariness and capriciousness, as well as a
denial of equal protection and due process, that is not present in typical
circumstances where retroactivity is withheld based on the pragmatic necessity to
evolve constitutional protections prospectively without undue cost to the finality of
preexisting judgments. A retroactivity cutoff at Ring inaugurates a kind and degree
of capriciousness that far exceeds the level justified by normal non-retroactivity
jurisprudence.
A Hurst retroactivity cutoff at Ring inaugurates a degree of capriciousness
that far exceeds the level justified by “normal” jurisprudence. To see why this is so,
one need only consider how Florida’s pre-Ring inmates do and do not differ from
their post-Ring peers. The two groups were both sentenced under a procedure that
allowed death sentences to be predicated upon factual findings not tested by a jury
trial. But inmates whose death sentences became final before Ring have been on
death row longer than their post-Ring counterparts and have demonstrated over a
longer time that they are capable of adjusting to that environment and continuing to
live without endangering any valid interest of the State. Pre-Ring inmates also have
undergone the prolonged suffering chronicled by Justice Breyer, dissenting from the
denial of certiorari in Sireci v. Florida, 137 S. Ct. 470 (2016), longer than their postRing counterparts.
6
76a
Pre-Ring inmates also are more likely than their post-Ring counterparts to
have been sent to death row under standards that would not produce a capital
sentence—or even a capital prosecution—under the conventions of decency
prevailing today. In the generation since Ring, prosecutors and juries have been
increasingly unlikely to seek and impose death sentences. A significant number of
cases which terminated in a death verdict before Ring are cases where a death
sentence would not be imposed, or even pursued, in the modern era. And pre-Ring
inmates are more likely to have received death sentences in trials involving
problematic factfinding: the past two decades have witnessed a broad-spectrum
recognition of the unreliability of numerous kinds of evidence—flawed forensicscience theories and practices, hazardous eyewitness identification testimony, and
so forth—that was accepted without question in pre-Ring capital trials. Doubts that
would cause today’s prosecutors, juries, and judges to hesitate to seek or impose a
death sentence were unrecognized in the pre-Ring era. Evidence that led to confident
convictions and unhesitating death sentences decades ago would have substantially
less convincing power to prosecutors, juries, and judges today.
Taken together, these considerations highlight that a Ring-based retroactivity
cutoff involves a level of caprice that exceeds that tolerated by standard-fare
retroactivity rules. A Ring cutoff’s denial of relief in precisely the class of cases in
which relief makes the most sense is irremediably perverse and inconsistent with the
Eighth and Fourteenth Amendments.
The State’s remaining arguments can be dispensed with briefly. The State
asserts, without any authority, that “[t]he only possible standard of review under
7
77a
equal protection principles, would be rational basis review.” State’s Resp. at 8. This
ignores Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), where the Court states that
a law “which involves one of the basic rights of man” is subject to strict scrutiny.
The State also relies on Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for
the proposition that the United States Supreme Court’s ruling in that case—that Ring
is not retroactive in a federal habeas proceeding—means Hurst is also not retroactive
in any proceeding. See State’s Resp. at 5-6. But as Appellant explained initially, see
Appellant’s Resp. at 18-19, the Arizona statute at issue in Ring and Summerlin did
not require fact-finding regarding the aggravators and their “sufficiency” to justify
the death penalty. That difference is critical for federal retroactivity. Indeed,
Summerlin acknowledged that if the Court itself “[made] a certain fact essential to
the death penalty . . . [the change] would be substantive.” 542 U.S. at 354. Such a
change occurred in the Hurst decisions where, for the first time, the United States
Supreme Court and this Court found it unconstitutional for a judge alone to make a
finding of fact as to the “sufficiency” of the aggravation.
Moreover, unlike Ring, Hurst was grounded on the beyond-a-reasonabledoubt standard. The State unpersuasively attempts to distinguish Ivan V. v. City of
New York, 407 U.S. 203 (1972). See State’s Resp. at 5. Even assuming, as the State
suggests, that Florida’s scheme formerly incorporated the beyond-a-reasonabledoubt standard, the standard was misapplied to factfinding by the trial judge, not
findings made by the jury. The Hurst decisions held that the jury must make the
beyond-a-reasonable-doubt findings that subject a defendant to a death sentence.
Indeed, a federal judge in Florida, citing Ivan, has already observed the distinction
8
78a
between Summerlin and Hurst because of the beyond-a-reasonable-doubt standard.
See Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May 27, 2016) (contrasting
Hurst to Ring and Summerlin because the latter decisions “did not address the
requirement for proof beyond a reasonable doubt,” and “[t]he Supreme Court has
held a proof-beyond-a-reasonable-doubt decision retroactive”).
The State also suggests that any interest in finality outweighs Appellant’s
constitutional rights. However, the State relies on Penry v. Lynaugh, 492 U.S. 302
(1989) in making this assertion. Penry itself makes clear that finality does not
outweigh constitutional rights:
[A] new rule placing a certain class of individuals beyond the State’s
power to punish by death is analogous to a new rule placing certain
conduct beyond the State’s power to punish at all. In both cases, the
Constitution itself deprives the State of the power to impose a certain
penalty, and the finality and comity concerns . . . have little force.
Id. at 2953.
III.
The State abandons any “harmless error” arguments
The State abandons any argument that the Hurst error in Mr. Branch’s case
was harmless by failing to reference harmless error in its response. See Hoskins, 75
So. 3d at 257. The Hurst error in this case is not harmless in light of the advisory
jury’s non-unanimous recommendation to impose the death penalty.
CONCLUSION
This Court should hold that federal law requires the Hurst decisions to be
applied retroactively to Appellant and remand for a hearing concerning the effect of
the error on counsel, or a new penalty phase, and/or imposition of a life sentence.
9
79a
Respectfully submitted,
/s/ Stacy Biggart
/s/ Kathleen Pafford
Stacy Biggart
Assistant Capital Collateral
Regional Counsel – North
Florida Bar No. 89388
1004 DeSoto Park Drive
Tallahassee, Florida 32301
(850) 487-0922
Stacy.Biggart@ccrc-north.org
Kathleen Pafford
Assistant Capital Collateral
Regional Counsel – North
Florida Bar No. 99527
1004 DeSoto Park Drive
Tallahassee, FL 32301
(850) 487-0922
Kathleen.Pafford@ccrc-north.org
Counsel for Branch
CERTIFICATE OF SERVICE
I hereby certify that on November 11, 2017, the foregoing was electronically
served via the e-portal to Assistant Attorney General Lisa Hopkins at
lisa.hopkins@myfloridalegal.com and capapp@myfloridalegal.com.
/s/ Stacy Biggart
Stacy Biggart
10
80a
EXHIBIT 10
81a
Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Ce...
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EXECUTION DATABASE
STATE-BY-STATE
Florida Death-Penalty Appeals Decided in Light of Hurst
Last updated: February 9, 2018
Total number of prisoners whose cases have been reviewed by Florida Supreme Court (or, if relief is granted, by a Circuit Court) in light of Hurst: 236
Number of prisoners who have obtained relief under Hurst: 125 (52.97%)
Number of prisoners who have been denied relief under Hurst: 111 (47.03%)
The Florida Supreme Court has declared that it will apply its decisions in Hurst v. State and Asay v. State—which held that non-unanimous jury recommendations
of death violate the Florida state constitution and the Sixth Amendment of the U.S. Constitution—to new death penalty cases and to older cases in which the
direct appeal process was final on or before the U.S. Supreme Court decided Ring v. Arizona in June 2002.
Prisoner Name
County of
Conviction
Conviction Final
Before Ring?
Jury Recommendation
Unanimous?
Abdool, Dane
Orange
N
N
Allred, Andrew
Seminole
N
WAIVED JURY
Alston, Pressley
Bernard
Duval
Y
N
Altersberger, Joshua
Lee
Highlands
N
Anderson, Charles L.
Broward
Anderson, Richard
Jury Vote(s)
Date of
Court Order
Y
4/6/17
N
11/16/17
9-3
N
1/22/18
N
9-3
Y
4/27/17
N
N
8-4
Y
3/9/17
Hillsborough
Y
N
11-1
N
1/26/18
Archer, Robin Lee
Escambia
Y
N
7-5
N
3/17/17
Armstrong, Lancelot
Uriley
Broward
N
N
9-3
Y
1/19/17
Asay, Marc
Duval
Y
N
9-3, 9-3
N (EXECUTED)
12/22/16
Atwater, Jeffrey Lee
Pinellas
Y
N
11-1
N
1/23/18
Ault, Howard Steven
Broward
N
N
9-3, 10-2
Y
3/9/17
Bailey, Robert J.
Bay
N
N
11-1
Y
7/6/17
Baker, Cornelius
Flagler
N
N
9-3
Y
3/23/17
Banks, Donald
Duval
N
N
10-2
Y
4/20/17
Bargo, Michael Shane
Marion
N
N
10-2
Y
6/29/17
Barnhill, Arthur
Seminole
N
N
9-3
Y
2/20/17
Bates, Kayle Barrington
Bay
Y
N
9-3
N
1/22/18
Beasley, Curtis W.
Polk
Y
N
10-2
N
1/23/18
Belcher, James
Duval
N
N
9-3
Y
11/2/17
Bell, Michael
Duval
Y
Y
12-0, 12-0
N
1/29/18
Bevel, Thomas
Duval
N
N
8-4, 12-0
Y*
6/15/17
Booker, Stephen Todd
Duval
Y
N
8-4
N
1/30/18
Bowles, Gary Ray
Duval
Y
Y
12-0
N
1/29/18
Braddy, Harrel
Miami-Dade
N
N
11-1
Y
6/15/17
https://deathpenaltyinfo.org/Hurst_Cases_Reviewed
10-2
Death Sentence
Reversed?
82a
2/10/2018
Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Ce...
Prisoner Name
County of
Conviction
Conviction Final
Before Ring?
Jury Recommendation
Unanimous?
Jury Vote(s)
Death Sentence
Reversed?
Page 2 of 8
Date of
Court Order
Bradley, Brandon Lee
Brevard
N
N
10-2
Y
3/30/17
Bradley, Donald
Clay
Y
N
10-2
N
1/22/18
Branch, Eric Scott
Escambia
Y
N
10-2
N
1/22/18
Brookins, Elijah
Gadsden
N
N
10-2
Y
4/20/17
Brooks, Lamar
Okaloosa
N
N
9-3, 11-1
Y
3/10/17
Brown, Paul Alfred
Hillsborough
Y
N
7-5
N
1/29/18
Burns, Daniel Jr.
Manatee
Y
Y
12-0
N
1/23/18
Buzia, John
Seminole
N
N
8-4
Y
4/6/17
Calloway, Tavares
David
Miami-Dade
N
N
7-5, 7-5, 7-5,
7-5, 7-5
Y
1/26/17
Campbell, John
Citrus
N
N
8-4
Y
8/30/17
Card, James
Bay
N
N
11-1
Y
5/4/17
Carr, Emilia
Marion
N
N
7-5
Y
2/7/17
Carter, Pinkney
Duval
N
N
9-3, 8-4
Y
10/4//17
Caylor, Matthew
Bay
N
N
8-4
Y
5/18/17
Clark, Ronald Wayne Jr. Duval
Y
N
11-1
N
1/23/18
Cole, Loran
Marion
Y
Y
12-0
N
1/23/18
Cole, Tiffany Ann
Duval
N
N
9-3, 9-3
Y
6/29/17
Conde, Rory
Miami-Dade
N
N
9-3
Y
8/31/17
Consalvo, Robert
Broward
Y
N
11-1
N
1/31/18
Cox, Allen
Lake
N
N
10-2
Y
7/23/17
Cozzie, Steven Anthony
Walton
N
Y
12-0
N
5/11/17
Damren, Floyd William
Clay
Y
Y
12-0
N
2/2/18
Darling, Dolan a/k/a
Sean Smith
Orange
N
N
11-1
Y
3/29/17
Davis, Adam W.
Hillsborough
N
N
7-5
Y
5/2/17
Davis, Barry T.
Walton
N
N
9-3, 10-2
Y
5/11/17
Davis, Jr., Leon
Polk
N
Y
12-0, 12-0, 8-4
N
11/10/16
Davis, Jr., Leon
Polk
N
WAIVED JURY
N
11/10/16
Davis, Mark Allen
Pinellas
Y
N
8-4
N
1/29/18
Davis, Toney D.
Duval
Y
N
11-1
N
2/17/17
Dennis, Labrant
Miami-Dade
N
N
11-1, 11-1
Y
7/7/17
Deparvine, Williams
James
Hillsborough
N
N
8-4, 8-4
Y
4/6/17
Derrick, Samuel Jason
Pasco
Y
N
7-5
N
2/2/18
Dessaure, Kenneth
Pinellas
N
WAIVED JURY
N
11/16/17
Deviney, Randall
Duval
N
N
8-4
Y
3/23/17
Diaz, Joel
Lee
N
N
9-3
Y
6/15/17
Dillbeck, Donald David
Leon
Y
N
8-4
N
1/24/18
Doorbal, Noel
Miami-Dade
N
N
8-4, 8-4
Y
9/20/17
Doty, Wayne
Bradford
N
N
10-2
Y
8/7/17
Douglas, Luther
Duval
N
N
11-1
Y
6/29/17
https://deathpenaltyinfo.org/Hurst_Cases_Reviewed
83a
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Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Ce...
Prisoner Name
County of
Conviction
Conviction Final
Before Ring?
Jury Recommendation
Unanimous?
Jury Vote(s)
Death Sentence
Reversed?
Page 3 of 8
Date of
Court Order
Dubose, Rasheem
Duval
N
N
8-4
Y
2/9/17
Durousseau, Paul
Duval
N
N
10-2
Y
1/31/17
Eaglin, Dwight
Charlotte
N
N
8-4, 8-4
Y
4/3/17
England, Richard
Volusia
N
N
8-4
Y
5/22/17
Evans, Paul H.
Indian River
N
N
9-3
Y
3/20/17
Evans, Steven Maurice
Orange
Y
N
11-1
N
1/24/18
Evans, Wydell Jody
Brevard
N
N
10-2
Y
Finney, Charles
Hillsborough
Y
N
9-3
N
1/26/18
Floyd, Maurice Lamar
Putnam
N
N
11-1
Y
5/17/17
Ford, James D.
Charlotte
Y
N
11-1, 11-1
N
1/23/18
Foster, Charles
Bay
Y
N
8-4
N
1/29/18
Foster, Kevin Don
Lee
Y
N
9-3
N
1/29/18
Fotopoulos,
Konstantinos
Volusia
Y
N
8-4, 8-4
N
1/29/18
Frances, David
Orange
N
N
9-3, 10-2
Y
3/29/17
Franklin, Richard P.
Columbia
N
N
9-3
Y
11/23/16
Gamble, Guy R.
Lake
Y
N
10-2
N
1/29/18
Glover, Dennis T.
Duval
N
N
10-2
Y
9/14/17
Gonzalez, Leonard
Escambia
N
N
10-2
Y
5/23/17
Gordon, Robert R.
Pinellas
Y
N
9-3
N
1/31/18
Gregory, William
Volusia
N
N
7-5, 7-5
Y
8/31/17
Griffin, Michael Allen
Miami-Dade
Y
N
10-2
N
2/2/18
Guardado, Jesse
Walton
N
Y
12-0
N
5/11/17
Gudinas, Thomas Lee
Collier
Y
N
10-2
N
1/30/18
Guzman, Victor
Miami-Dade
N
N
7-5
Y
4/6/17
Hall, Donte Jermaine
Lake
N
N
8-4
Y
6/15/17
Hall, Enoch D.
Volusia
N
Y
12-0
N
2/9/17
Hamilton, Richard
Hamilton
Y
N
10-2
N
2/18/18
Hampton, John
Pinellas
N
N
9-3
Y
5/4/17
Hannon, Patrick
Hillsborough
Y
Y
12-0
N (EXECUTED)
11/1/17
Hartley, Kenneth
Duval
Y
N
9-3
N
1/26/18
Hayward, Steven
St. Lucie
N
N
8-4
Y
3/24/17
Hernandez, Michael
Santa Rosa
N
N
11-1
Y
5/11/17
Hernandez-Alberto,
Pedro
Hillsborough
N
N
10-2, 10-2
Y
5/9/17
Hertz, Gerry
Wakulla
N
N
10-2, 10-2
Y
5/18/17
Heyne, Justin
Brevard
N
N
10-2, 8-4
Y
4/6/17
Hitchcock, James
Orange
Y
N
10-2
N
8/10/17
Hodges, George
Michael
Hillsborough
Y
N
10-2
N
2/2/18
Hodges, Willie James
Escambia
N
N
10-2
Y
3/16/17
Hojan, Gerhard
Broward
N
N
9-3, 9-3
Y
1/31/17
Huggins, John
Orange
N
N
9-3
Y
5/23/17
https://deathpenaltyinfo.org/Hurst_Cases_Reviewed
84a
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Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Ce...
Prisoner Name
County of
Conviction
Conviction Final
Before Ring?
Jury Recommendation
Unanimous?
Jury Vote(s)
Death Sentence
Reversed?
Page 4 of 8
Date of
Court Order
Hunter, Jerone
Volusia
N
N
10-2, 10-2, 9-3,
9-3
Y
6/16/17
Hurst, Timothy
Escambia
N
N
7-5
Y
10/14/16
Israel, Connie Ray
Duval
N
N
7-5
Y
3/21/17
Jackson, Etheria Verdell Duval
Y
N
7-5
N
1/24/18
Jackson, Kenneth R.
Hillsborough
N
N
11-1
Y
3/23/17
Jackson, Michael
James
Duval
N
N
8-4, 8-4
Y
6/9/17
Jackson, Ray
Volusia
N
N
9-3
Y
4/24/17
Jeffries, Kevin G.
Bay
N
N
10-2
Y
7/13/17
Jeffries, Sonny Ray
Orange
Y
N
11-1
N
1/26/18
Jennings, Brandy Bain
Collier
Y
N
10-2, 10-2, 10-2
N
1/29/18
Johnson, Emanuel
Sarasota
Y
N
8-4, 10-2
N
2/2/18
Johnson, Paul Beasley
Polk
N
N
11-1, 11-1, 11-1
Y
12/1/16
Johnson, Richard Allen
St. Lucie
N
N
11-1
Y
3/24/17
Johnston, Ray
Hillsborough
N
N
11-1
Y
7/21/17
Johnston, Ray
Hillsborough
N
Y
12-0
N
7/21/17
Jones, Henry Lee
Brevard
N
Y
12-0
N
3/2/17
Jones, Marvin Burnett
Duval
Y
N
9-3
N
1/22/18
Jones, Victor
Miami-Dade
Y
Y/N
10-2, 12-0
N
9/28/17
Jordan, Joseph
Volusia
N
N
10-2
Y
8/22/17
Kaczmar, III, Leo L.
Clay
N
Y
12-0
N
1/31/17
Kelley, William H.
Highlands
Y
N
8-3 [not a typo]
N
1/26/18
King, Cecil
Duval
N
N
8-4
Y
7/12/17
King, Michael L.
Sarasota
N
Y
12-0
N
1/26/17
Kirkman, Vahtiece
Brevard
N
Y
10-2
Y
1/11/18
Knight, Richard
Broward
N
Y
12-0, 12-0
N
1/31/17
Kocaker, Genghis
Pinellas
N
N
11-1
Y
10/6/17
Kokal, Gregory Alan
Duval
Y
Y
12-0
N
1/24/18
Kopsho, William M.
Marion
N
N
10-2
Y
1/19/17
Krawczuk, Anton
Duval
Y
Y
12-0
1/31/18
Lamarca, Anthony
Pinellas
Y
N
11-1
N
1/30/18
Lambrix, Cary Michael
Glades
Y
N
8-4, 10-2
N (EXECUTED)
9/29/17
Lawrence, Gary
Santa Rosa
Y
N
9-3
N
2/2/18
Lebron, Jermaine
Osceola
N
N
7-5
Y
4/20/17
Lightbourne, Ian
Marion
Y
N
Unrecorded
N
1/26/18
Long, Robert Joe
Hillsborough
Y
Y
12-0
N
1/29/18
Lucas, Harold Gene
Lee
Y
N
11-1
N
1/24/18
Marquard, John
St. Johns
Y
Y
12-0
N
1/24/18
Martin, David
Clay
N
N
9-3
Y
7/13/17
Matthews, Douglas
Volusia
N
N
10-2
Y
12/5/17
Duval
N
N
7-5
Y
9/6/17
https://deathpenaltyinfo.org/Hurst_Cases_Reviewed
85a
2/10/2018
Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Ce...
Prisoner Name
County of
Conviction
Conviction Final
Before Ring?
Jury Recommendation
Unanimous?
Jury Vote(s)
Death Sentence
Reversed?
Page 5 of 8
Date of
Court Order
McCoy, Richard (aka
Jamil Rashid)
McGirth, Renaldo
Devon
Marion
N
N
11-1
Y
1/26/17
McKenzie, Norman
Blake
St. Johns
N
N
10-2, 10-2
Y
6/19/17
McLean, Derrick
Orange
N
N
9-3
Y
4/24/17
McMillian, Justin
Duval
N
N
10-2
Y
4/13/17
Melton, Antonio
Lebaron
Escambia
Y
N
8-4
N
2/2/18
Mendoza, Marbel
Miami-Dade
Y
N
7-5
N
1/30/18
Merck, Jr., Troy
Pinellas
N
N
9-3
Y
5/5/17
Middleton, Dale
Okeechobee
N
Y
12-0
N
3/9/17
Miller, David Jr.
Duval
Y
N
7-5
N
1/31/18
Miller, Lionel Michael
Orange
N
N
11-1
Y
5/8/17
Morton, Alvin
Pasco
Y
N
11-1, 11-1
N
2/2/18
Morris, Dontae
Hillsborough
N
Y
12-0, 12-0
N
4/27/17
Morris, Dontae
Hillsborough
N
N
10-2
Y
1/11/18
Morris, Robert D.
Polk
Y
N
8-4
N
1/26/18
Mosley, John F.
Duval
N
N
8-4
Y
12/22/16
Mullens, Khadafy
Pinellas
N
WAIVED JURY
N
6/16/16
Murray, Gerald Delane
Duval
N
N
11-1
Y
4/4/17
Nelson, Joshua D.
Lee
Y
Y
12-0
N
1/31/18
Nelson, Micah
Polk
N
N
9-3
Y
3/8/17
Newberry, Rodney
Duval
N
N
8-4
Y
4/6/17
Oats, Jr. Sonny Boy
Marion
Y
UNKNOWN
N
5/25/17
Occhicone, Dominick
A.
Pasco
Y
N
7-5
N
1/30/18
Okafor, Bessman
Orange
N
N
11-1
Y
6/8/17
Oliver, Terence Tabius
Brevard
N
Y
12-0, 12-0
N
4/6/17
Orme, Roderick
Bay
N
N
11-1
Y
3/30/17
Overton, Thomas M.
Monroe
Y
N
8-4, 9-3
N
2/2/18
Pace, Bruce Douglas
Santa Rosa
Y
N
7-5
N
1/30/18
Pagan, Alex
Broward
N
N
7-5, 7-5
Y
2/1/18
Parker, J.B.
Martin
N
N
11-1
Y
4/20/17
Partin, Phillup Alan
Pasco
N
N
9-3
Y
3/27/17
Pasha, Khalid
Hillsborough
N
N
11-1, 11-1
Y
5/11/17
Peterka, Daniel Jon
Okaloosa
Y
N
8-4
N
1/22/18
Peterson, Robert Earl
Duval
N
N
7-5
Y
7/6/17
Pham, Tai
Seminole
N
N
10-2
Y
3/22/17
Phillips, Galante
Duval
N
N
7-5
Y
4/20/17
Phillips, Harry Franklin
Miami-Dade
Y
N
7-5
N
1/22/18
Philmore, Lenard
James
Martin
N
Y
12-0
N
1/25/18
https://deathpenaltyinfo.org/Hurst_Cases_Reviewed
86a
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Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Ce...
Prisoner Name
County of
Conviction
Conviction Final
Before Ring?
Jury Recommendation
Unanimous?
Jury Vote(s)
Death Sentence
Reversed?
Page 6 of 8
Date of
Court Order
Pietri, Norberto
Palm Beach
Y
N
8-4
N
2/2/18
Poole, Mark
Polk
N
N
11-1
Y
3/31/17
Puiatti, Carl
Pasco
Y
N
11-1
N
1/23/18
Quince, Kenneth Darcell Volusia
Y
WAIVED JURY
N
1/18/18
Rhodes, Richard
Wallace
Pinellas
Y
N
10-2
N
1/23/18
Rigterink, Thomas
William
Polk
N
N
7-5, 7-5
Y
4/6/17
Rimmer, Robert
Broward
N
N
9-3, 9-3
Y
6/29/17
Robards, Richard
Pinellas
N
N
7-5, 7-5
Y
4/6/17
Rodgers, Jeremiah
Santa Rosa
N
WAIVED JURY
N
2/8/18
Rodgers, Theodore
Orange
N
N
8-4
Y
4/3/17
Rogers, Glen Edward
Hillsborough
Y
Y
12-0
N
1/30/18
Rodriguez, Manuel
Antonio
Miami-Dade
Y
Y
12-0, 12-0, 12-0
1/31/18
Schoenwetter, Randy
Brevard
N
N
10-2, 9-3
Y
4/7/17
Seibert, Michael
Broward
N
N
9-3
Y
6/22/17
Serrano, Nelson
Polk
N
N
9-3, 9-3, 9-3,
9-3
Y
5/11/17
Sexton, John
Pasco
N
N
10-2
Y
6/29/17
Silvia, William
Seminole
N
N
11-1
Y
2/20/17
Simmons, Eric Lee
Lake
N
N
8-4
Y
12/22/16
Sireci, Henry Perry
Orange
Y
N
11-1
N
1/31/18
Sliney, Jack R.
Charlotte
Y
N
7-5
N
1/31/18
Smith, Corey
Miami-Dade
N
N
9-3, 10-2
Y
3/16/17
Smith, Joseph
Sarasota
N
N
10-2
Y
7/13/17
Smith, Stephen V.
Charlotte
N
Y
9-3
Y
4/21/17
Snelgrove, David B.
Flagler
N
N
8-4, 8-4
Y
5/11/17
Sochor, Dennis
Broward
Y
N
10-2
N
1/30/18
Stein, Steven Edward
Duval
Y
N
10-2
N
1/31/18
Stephens, Jason
Demetrius
Duval
Y
N
9-3
N
1/22/18
Stewart, Kenneth Allen
Hillsborough
Y
N
10-2
Y
4/25/17
Stewart, Kenneth Allen
Hillsborough
Y
N
10-2
N
1/26/18
Sweet, William Earl
Duval
Y
N
10-2
N
1/24/18
Suggs, Ernest
Walton
Y
N
7-5
N
3/17/17
Taylor, John Calvin
Clay
N
N
10-2
Y
10/12/17
Taylor, Steven Richard
Duval
Y
N
10-2
N
1/24/18
Thomas, William
Gregory
Duval
Y
N
11-1
N
1/24/18
Trease, Robert J.
Sarasota
Y
N
11-1
N
1/24/18
Trepal, George
Polk
Y
N
9-3
N
1/26/18
Trotter, Melvin
Manatee
Y
N
11-1
N
1/26/18
Troy, John
Sarasota
N
N
11-1
Y
6/13/17
https://deathpenaltyinfo.org/Hurst_Cases_Reviewed
87a
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Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Ce...
Prisoner Name
County of
Conviction
Conviction Final
Before Ring?
Jury Recommendation
Unanimous?
Jury Vote(s)
Death Sentence
Reversed?
Page 7 of 8
Date of
Court Order
Truehill, Quentin
St. Johns
N
Y
12-0
N
2/23/17
Tundidor, Randy W.
Broward
N
Y
12-0
N
4/27/17
Turner, James Daniel
St. Johns
N
N
10-2
Y
6/19/17
Twilegar, Mark
Lee
Y
WAIVED JURY
N
11/2/17
Victorino, Troy
Volusia
N
N
10-2, 10-2, 9-3,
7-5
Y
6/14/17
Wade, Alan L.
Duval
N
N
11-1, 11-1
Y
5/1/17
Walls, Frank
Okaloosa
Y
Y
12-0
N
1/22/18
Wheeler, Jason
Lake
N
N
10-2
Y
5/23/17
White, Dwayne
Seminole
N
N
8-4
Y
3/30/17
Whitfield, Ernest
Sarasota
Y
N
7-5
Y
1/30/18
White, William Melvin
Orange
N
N
10-2
Y
4/20/17
Whitton, Gary Richard
Walton
Y
Y
12-0
N
1/31/18
Willacy, Chadwick
Brevard
Y
N
11-1
N
1/23/18
Williams, Donald Otis
Lake
N
N
9-3
Y
1/19/17
Williams , Ronnie Keith
Broward
N
N
10-2
Y
6/29/17
Windom, Curtis
Orange
Y
Y
12-0, 12-0, 12-0
N
1/23/18
Wood, Zachary Taylor
Washington
N
Y
12-0
Y**
1/31/17
Woodel, Thomas
Polk
N
N
7-5
Y
8/18/17
Zack, Michael Duane
Escambia
Y
N
11-1
N
6/15/17
Zakrzewski, Edward
Okaloosa
Y
N
7-5, 7-5, 6-6
N
5/25/17
Zommer, Todd
Osceola
N
N
10-2
Y
4/13/17
* The Florida Supreme Court granted relief under Hurst on Bevel's non-unanimous death sentence, but granted relief based on ineffective assistance of counsel
on Bevel's unanimous death sentence.
** The Florida Supreme Court noted that Wood's sentence would not have been harmless under Hurst because it struck two of the three aggravating
circumstances found by the trial court; however, the court vacated the death sentence and imposed a life sentence under its statutory review for proportionality.
Not counted in total.
For more background on the Florida legislative and court actions related to the jury unanimity issue, see Hurst v. Florida Background.
To check on the status of cases involving Florida death-row prisoners with non-unanimous jury recommendations for death whose sentences became final after
the U.S. Supreme Court's June 2002 decision in Ring v. Arizona, see this chart.
Hannah Gorman, with the Florida Center for Capital Representation at Florida International University, created the pie chart below (November 16, 2017)
based on her analysis of Florida death sentences that have been or will be overturned based on Hurst, as well as sentences that have been or will be
affirmed because they either (A) became final before Ring (i.e., based on the date of their appeal) or (B) were presumed harmless based on a
unanimous jury verdict or the defendant's waiver of a jury sentence. This chart includes prisoners who have had their death sentences affirmed by
Circuit Courts. According to this information, there are a total of 377 prisoners who were sentenced under the unconstitutional sentencing scheme,
but only 42% (157) of Florida death-row prisoners who were sentenced under that scheme will be entitled to relief.
https://deathpenaltyinfo.org/Hurst_Cases_Reviewed
88a
2/10/2018
EXHIBIT 11
89a
1.
Alston v. State, Nos. SC17-499, SC17-983, 2018 WL 494427 (Fla. Jan. 22, 2018)
2.
Bates v. State, Nos. SC17-850, SC17-1224, 2018 WL 494751 (Fla. Jan. 22, 2018)
3.
Bradley v. Jones, No. SC17-1219, 2018 WL 494464 (Fla. Jan. 22, 2018)
4.
Branch v. State, No. SC17-1509, 2018 WL 495024 (Fla. Jan. 22, 2018)
5.
Jones v. State, No. SC17-497, 2018 WL 494465 (Fla. Jan. 22, 2018)
6.
Peterka v. State, Nos. SC17-593, SC17-1003, 2018 WL 494425 (Fla. Jan. 22, 2018)
7.
Phillips v. State, No. SC17-984, 2018 WL 494656 (Fla. Jan. 22, 2018)
8.
Stephens v. State, Nos. SC17-820, SC17-1204, 2018 WL 494426 (Fla. Jan. 22, 2018)
9.
Suggs v. State, Nos. SC17-1225, SC16-1066, 2018 WL 494652 (Fla. Jan. 22, 2018)
10.
Walls v. State, No. SC17-959, 2018 WL 494655 (Fla. Jan. 22, 2018)
11.
Atwater v. State, No. SC17-926, 2018 WL 507357 (Fla. Jan. 23, 2018)
12.
Beasley v. State, No. SC17-566, 2018 WL 507583 (Fla. Jan. 23, 2018)
13.
Burns v. State, No. SC17-726, 2018 WL 507585 (Fla. Jan. 23, 2018)
14.
Clark v. State, No. SC17-587, 2018 WL 507355 (Fla. Jan. 23, 2018)
15.
Cole v. State, No. SC17-737, 2018 WL 507429 (Fla. Jan. 23, 2018)
16.
Ford v. State, Nos. SC17-859, SC16-706, 2018 WL 507356 (Fla. Jan. 23, 2018)
17.
Puiatti v. State, No. SC17-552, 2018 WL 507580 (Fla. Jan. 23, 2018)
18.
Rhodes v. State, No. SC17-628, 2018 WL 507584 (Fla. Jan. 23, 2018)
19.
Willacy v. State, No. SC17-1605, 2018 WL 507578 (Fla. Jan. 23, 2018)
20.
Windom v. State, No. SC17-902, 2018 WL 507630 (Fla. Jan. 23, 2018)
21.
Dillbeck v. State, No. SC17-847, 2018 WL 522421 (Fla. Jan. 24, 2018)
22.
Evans v. State, No. SC17-869, 2018 WL 524796 (Fla. Jan. 24, 2018)
23.
Jackson v. State, No. SC17-704, 2018 WL 525292 (Fla. Jan. 24, 2018)
90a
24.
Kokal v. State, No. SC17-807, 2018 WL 525295 (Fla. Jan. 24, 2018)
25.
Lucas v. State, No. SC17-589, 2018 WL 525289 (Fla. Jan. 24, 2018)
26.
Marquard v. State, No. SC17-862, 2018 WL 524794 (Fla. Jan. 24, 2018)
27.
Sweet v. State, No. SC17-699, 2018 WL 524789 (Fla. Jan. 24, 2018)
28.
Taylor v. State, No. SC17-818, 2018 WL 525307 (Fla. Jan. 24, 2018)
29.
Thomas v. State, No. SC17-809, 2018 WL 524791 (Fla. Jan. 24, 2018)
30.
Trease v. State, No. SC17-686, 2018 WL 524786 (Fla. Jan. 24, 2018)
31.
Anderson v. State, No. SC17-884, 2018 WL 560624 (Fla. Jan. 26, 2018)
32.
Finney v. State, No. SC17-985, 2018 WL 563999 (Fla. Jan. 26, 2018)
33.
Hartley v. State, No. SC17-899, 2018 WL 563828 (Fla. Jan. 26, 2018)
34.
Jeffries v. State, No. SC17-920, 2018 WL 564138 (Fla. Jan. 26, 2018)
35.
Kelley v. State, No. SC17-830, 2018 WL 564132 (Fla. Jan. 26, 2018)
36.
Lightbourne v. State, No. SC17-837, 2018 WL 564150 (Fla. Jan. 26, 2018)
37.
Morris v. State, No. SC17-873, 2018 WL 563957 (Fla. Jan. 26, 2018)
38.
Stewart v. State, No. SC17-889, 2018 WL 564136 (Fla. Jan. 26, 2018)
39.
Trepal v. State, No. SC17-892, 2018 WL 564137 (Fla. Jan. 26, 2018)
40.
Trotter v. State, No. SC17-950, 2018 WL 564139 (Fla. Jan. 26, 2018)
41.
Bell v. State, No. SC17-1045, 2018 WL 577718 (Fla. Jan. 29, 2018)
42.
Bowles v. State, No. SC17-1754, 2018 WL 579107 (Fla. Jan. 29, 2018)
43.
Brown v. State, No. SC17-1001, 2018 WL 578945 (Fla. Jan. 29, 2018)
44.
Davis v. State, No. SC17-1259, 2018 WL 579768 (Fla. Jan. 29, 2018)
45.
Foster v. State, No. SC17-1383, 2018 WL 578947 (Fla. Jan. 29, 2018)
46.
Foster v. State, No. SC17-1141, 2018 WL 79756 (Fla. Jan. 29, 2018)
91a
47.
Fotopoulos v. State, No. SC17-971, 2018 WL 579814 (Fla. Jan. 29, 2018)
48.
Gamble v. State, No. SC17-1101, 2018 WL 578716 (Fla. Jan, 29, 2018)
49.
Jennings v. State, No. SC17-938, 2018 WL 579800 (Fla. Jan. 29, 2018)
50.
Long v. State, No. SC17-942, 2018 WL 579113 (Fla. Jan. 29, 2018)
51.
Booker v. Jones, No. SC17-1205, 2018 WL 615082 (Fla. Jan. 30, 2018)
52.
Davis v. Jones, No. SC17-1711, 2018 WL 618411 (Fla. Jan. 30, 2018)
53.
Gudinas v. State, No. SC17-919, 2018 WL 618595 (Fla. Jan. 30, 2018)
54.
Lamarca v. State, No. SC17-1179, 2018 WL 618728 (Fla. Jan. 30, 2018)
55.
Mendoza v. State, No. SC17-1324, 2018 WL 618592 (Fla. Jan. 30, 2018)
56.
Occhicone v. State, No. SC17-1112, 2018 WL 618409 (Fla. Jan. 30, 2018)
57.
Pace v. State, No. SC17-1021, 2018 WL 618590 (Fla. Jan. 30, 2018)
58.
Rogers v. State, No. SC17-945, 2018 WL 618700 (Fla. Jan. 30, 2018)
59.
Sochor v. State, No. SC17-1343, 2018 WL 618698 (Fla. Jan. 30, 2018)
60.
Whitfield v. State, No. SC17-1399, 2018 WL 615022 (Fla. Jan. 30, 2018)
61.
Consalvo v. State, No. SC17-1309, 2018 WL 635988 (Fla. Jan. 31, 2018)
62.
Gordon v. State, No. SC17-1133, 2018 WL 636418 (Fla. Jan. 31, 2018)
63.
Krawczuk v. State, No. SC17-1142, 2018 WL 635983 (Fla. Jan. 31, 2018)
64.
Miller v. Jones, No. SC17-1211, 2018 WL 636104 (Fla. Jan. 31, 2018)
65.
Nelson v. State, No. SC17-939, 2018 WL 636067 (Fla. Jan. 31, 2018)
66.
Rodriguez v. State, No. SC17-1268, 2018 WL 635986 (Fla. Jan. 31, 2018)
67.
Sireci v. State, No. SC17-1143, 2018 WL 635985 (Fla. Jan. 31, 2018)
68.
Sliney v. State, No. SC17-1547, 2018 WL 636066 (Fla. Jan. 31, 2018)
69.
Stein v. State, No. SC17-1547, 2018 WL 636066 (Fla. Jan. 31, 2018)
92a
70.
Whitton v. State, No. SC17-1118, 2018 WL 635982 (Fla. Jan. 31, 2018)
71.
Damren v. State, No. SC17-1080, 2018 WL 665173 (Fla. Feb. 2, 2018)
72.
Derrick v. State, No. SC17-1242, 2018 WL 665175 (Fla. Feb. 2, 2018)
73.
Griffin v. State, No. SC17-1306, 2018 WL 671475 (Fla. Feb. 2, 2018)
74.
Hodges v. State, No. SC17-1586, 2018 WL 671744 (Fla. Feb. 2, 2018)
75.
Johnson v. State, Nos. SC17-1401, SC17-1402, 2018 WL 671154 (Fla. Feb. 2, 2018)
76.
Lawrence v. State, No. SC17-1442, 2018 WL 671479 (Fla. Feb. 2, 2018)
77.
Melton v. State, No. SC17-1147, 2018 WL 671363 (Fla. Feb. 2, 2018)
78.
Morton v. State, No. SC17-1715, 2018 WL 671746 (Fla. Feb. 2, 2018)
79.
Overton v. State, No. SC17-1435, 2018 WL 671477 (Fla. Feb. 2, 2018)
80.
Pietri v. State, No. SC17-1281, 2018 WL 671468 (Fla. Feb. 2, 2018)
93a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.