Opposition Brief — Eric Scott Branch, Petitioner v. Florida
Supreme Court briefFeb 16, 2018
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No. 17-7758
IN THE
SUPREME COURT OF THE UNITED STATES
ERIC SCOTT BRANCH, Petitioner,
Vv.
STATE OF FLORIDA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SUPREME COURT
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
PAMELA JO BONDI
Attorney General of Florida
CAROLYN M. SNURKOWSKI
Deputy Assistant Attorney General
Counsel of Record
CHARMAINE M. MILLSAPS
Senior Assistant Attorney General
OFFICE OF THE ATTORNEY
GENERAL
CAPITAL APPEALS
PL-01, THE CAPITOL
TALLAHASSEE, FL 32399-1050
(850) 414-3584
(850) 487-0997 (FAX)
capapp@myfloridalegal.com
CAPITAL CASE
QUESTION PRESENTED
I. Whether this Court should grant review of a decision of the Florida
Supreme Court holding that Hurst v. State, 202 So.3d 40 (Fla. 2016), was
not retroactive as to Branch under state law?
TABLE OF CONTENTS
PAGE(S)
QUESTION PRESENTED .... 2.0.0.0 cece tet eens i
TABLE OF CONTENTS .. 2... ce cee ee eee enes ii
TABLE OF AUTHORITIES ........ 0.00.0 ec cee ete es ili
OPINION BELOW ...... 0... ce cee cence eee eeee 1
JURISDICTION ..... 0... Lec eee eee eee eee naes 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........... 2
STATEMENT OF THE CASE AND PROCEDURAL HISTORY ............... 4
REASON FOR DENYING THE WRIT ........ 20.0... cece ete 12
ISSUET 2.0... cece ete n ete eee nee eens 12
WHETHER THIS COURT SHOULD GRANT REVIEW OF A
DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT
HURST V. STATE, 202 So.38d 40 (FLA. 2016), WAS NOT
RETROACTIVE AS TO BRANCH UNDER STATE LAW?
The Florida Supreme Court’s decisions .....................000. 12
Matter of state law 2.0... 0... ee eee ees 15
No conflict with this Court’s retroactivity jurisprudence ........... 17
No conflict with any federal appellate court or state supreme court .. 18
The Eighth Amendment and arbitrariness ...................... 21
The Supremacy Clause and Montgomery ...............0020005. 25
CONCLUSION ......... 0... e ene n enn e ee eeas 27
CERTIFICATE OF SERVICE ....... 0.0... ccc cc eect eee ees 28
li
TABLE OF AUTHORITIES
CASES PAGE(S)
Aguirre-Jarquin v. State,
9 So.8d 593 (Fla. 2009) .. 0... ccc ccc eee e eee euae 21
Apprendi v. New -Jersey,
580 U.S. 466 (2000) «0... ccc ce eee eee e eee eeeeaee 19
Asay v. Florida,
138 S.Ct. 41 (2017) 2.0 ccc cece tee e nent eeeneee 13
Asay v. State,
210 So.3d 1 (Fla. 2016) ...... 0... cece cece ence neeae passim
Brady v. Maryland,
373 U.S. 83 (1963) 20. cc cee ee eee teen eee cee nn nes 6
Branch v. Florida,
520 U.S. 1218 (1997) 20. ccc cece cee ete e ee eeaaes 6,13
Branch v. McDonough,
779 F.Supp.2d 1309 (N.D. Fla. 2010) .... 0... cece eee eee 4,5,8
Branch v. Sec’y, Fla. Dept. of Corr.,
638 F.3d 1353 (11th Cir. 2011) .0 0.0... cece ec eee eeceeeeeeeeues 4,9
Branch v. State,
671 So.2d 224 (Fla. 1st DCA 1996), affirmed, 684 So.2d 195 (Fla. 1996) ........ 4
Branch v. State,
__So.3d__, 43 Fla. L. Weekly S21, 2018 WL 495024 (Fla. Jan. 22, 2018) .. passim
Branch v. Tucker,
565 U.S. 1248 (2012) 2... cc cece cece eee eeeeeeeeeeneenes 9
Braxton v. United States,
500 U.S. 344 (1991) 20 cc ccc cee cece eecueeuecens 18
Brown v. State.
521 So.2d 110 (Fla. 1988) 2.0... oc cece ccc ccc cece cece eee eee eeeeeee 24
Butler v. McKellar.
494 U.S. 407 (1990) 2.0... cc ccc cece cece bebe ebb cb een cbeebcecees 21
Caldwell v. Mississippi,
472 U.S. 8320 (1985) 2... ce ccc eee enact eecenuces 23,24,25
Dantorth v. Minnesota,
552 U.S. 264 (2008) .. 2... cc eee ence nee euues 15,16,17,20,26
ii
Davis v. Singletary,
119 F.8d 1471 (11th Cir. 1997) 2... ccc cece cece eceues 24
DeStefano v. Woods,
392 U.S. 631 (1968) 2. cece cece cece cece vuneas 17,26
Doyle v. Ohio,
426 U.S. 610 (1976) 20 cc ccc ence nee ce cece euecncnenes 9
Florida v. Powell,
559 U.S. 50 (2010) 60 ccc cece nee e eee ev eeeueus 15,21
Floyd v. State,
497 So.2d 1211 (Fla. 1986) .. 00... ce ccc ee cece eeeeus 21
Frye v. United States,
293 F. 1013 (D.C. Cir. 1923) 20... cee ce cece ccc c ee eeeeueus 8
Gigho v. United States,
405 U.S. 150 (1972) 20 cc cc ce ec cece ence ecucenenenue 6
Griffith v. Kentucky,
479 U.S. 814 (1987) 20 cc cece ence cece neeeeuneeens 21,22
Hannon v. Sec’y, Dept. of Corr.,
2017 WL 5177614 (11th Cir. Nov. 8, 2017) .......... 0c cece cece cece eee cues 13
Hannon v. State,
228 So.3d 505 (Fla. 2017),
cert. denied, Hannon v. Florida, 138 S.Ct. 441 (2017) ...... 0.0.0.0. cece eee ee 13
Hitchcock v. State,
226 So.3d 216 (Fla. 2017),
cert. denied, Hitchcock v. Florida, 138 S.Ct. 513 (2017) ................ 13,16,19
Hurst v. Florida,
186 S.Ct. 616 (2016) 2.06 ccc ce nec e eee e en eeneas passim
Hurst v. State,
202 So.3d 40 (Fla. 2016) .... 20.0.0. e een eeees passim
In re Standard Criminal Jury Instructions in Capital Cases,
214 So.3d 1236 (Fla. 2017) 2.0... ce cece ene cee cees 24
Ivan V. v. City of New York,
407 U.S. 208 (1972) 2... ccc cee cece ee eee e eee eanas 18,21
dames v. State,
615 So.2d 668 (Fla. 1993) .... 00.0.0. 0c cece cece eee eevaeaeeas 14
Iv
Johnson v. State,
904 So.2d 400 (Fla. 2005) 2.0... cece cece cece ccececceececeveceeeeeeeees 16
Johnston v. Singletary,
162 F.3d 630 (ith Cir. 1998) 0.0... cece eee eee eee c eee e ccc eeeenes 24
Kansas v. Carr,
136 S.Ct. 633 (2016) 0... eee ccc ccc ccc cence cece ecb bevecebeebennes 19
Lambrix v. State,
227 So. 3d 112 (Fla. 2017),
cert. denied, Lambrix v. Florida, 138 S.Ct. 312 (2017) ......0.c0.ec cece cece. 20
Lambrix v. Sec’y, Fla. Dept. of Corr.,
851 F.3d 1158 (1 (ith Cir. 2017),
cert. denied, Lambrix v. Jones, 188 S.Ct. 217 (2017) 2.0.0... 0. cee ee ee 18
Lambrix v. Sec’y, Fla. Dept. of Corr.,
872 F.3d 1170 (11th Cir. 2017),
cert. denied, Lambrix v. Jones, 138 S.Ct. 8312 (2017) .......... 02.00 cee ee 19
Michigan v. Long,
463 U.S. 1032 (1983) 2.0. ccc eee ec ce cee eeeeeueeuns 15
Montgomery v. Louisiana,
186 S.Ct. 718 (2016) 2.0... cc ccc cen nce e en eecneeeuee 16,25
Mosley v. State,
209 So. 3d 1248 (Fla. XO AS) 13,14
Nelson v. State,
274 So.2d 256 (Fla. 4th DCA 1973) .. 00... c cece ccc cc ccc ucececeeeeeeues 8
Parker v. State,
873 So.2d 270 (Fla. 2004) 2.0... ccc cece cece cece ce cuceeeeeecucecesesess 21
Penry v. Lynaugh,
492 U.S. 302 (1989) BG Be ce cece ee cee cece ence eee eascencrcceaaceae 23,26
Powell v. Delaware,
153 A.3d 69 (Del. 2016) .. 0... oe eee ccc ccc cee ccucecbeeenceveeeees 20
Provenzano v. Singletary,
148 F.3d 1827 (11th Cir. 1998) 2.0... eee eee eens 24
Rauf v. State,
145 A.3d 430 (Del. 2016) .. 0... ccc c ccc ec c ec eee ccebeeceveceebeeen. 20
fing v. Arizona,
536 ay. S. 584 (2002) 20... cece e cece cee eeeeeeuteevevtvtneees passim
Romano v. Oklahoma,
512 U.S. 1(1994) 0. cc cence nee e nee neeceneeneees 23,24
Sawyer v. Smith,
A497 U.S. 227 (1990) 2... cc cece cee nen ence nen eeneuevas 24
Schriro v. Summerlin,
542 U.S. 348 (2004) . 0. ccc cece cece ene eneene 17,19,20,25,26
State v. Ballard,
956 So.2d 470 (Fla. 2d DCA 2007) ....... 0.0 ce eee cence neues 24
Teague v. Lane,
489 U.S. 288 (1989) ... 0.0 cc cece cece eenee 15,16,17,22,23,24
Truehill v. Florida,
188 S.Ct. 3 (2017) 2. ccc cence c ec eee eeeeeeneenues 24,25
Welch v. United States,
136 S.Ct. 1257 (2016) «0... cc ccc ce cece eee ec eeeeuenues 26
Williams v. State,
37 So.3d 187 (Fla. 2010) .. 0... cece eee nen e nancies 21,24
Witt v. State,
387 So.2d 922 (1980) .. 0... cc cece cece cece eeeeeus 14,15,16
Ybarra v. Filson,
869 F.3d 1016 (9th Cir. 2017)... 2. eee nee e ee eee 18,19
vi
CONSTITUTIONAL PROVISIONS
Art. VI, cl. 2 20 cnn cence teen ee eeees 3,25
U.S. Const. Amend. V ... 2... ee ene cence ee een eens 3
U.S. Const. Amend. VI 2.0.2... cc eee cee een een ee eenes 3
U.S. Const. Amend. VITT .... 2.0.0... 2.0... cece 3,12,14,20,21-23,26
U.S. Const. Amend. XIV .. 0... ce cnet eee eeeeas 3
STATUTES
28 U.S.C. § 1257(a) 6. cece eee eee ee eneeeneeees 2
28 U.S.C. § 2101) 2. cece ee cece eee eee ee eeeeaee 2
42 U.S.C. § 1983 2... ce ene e ene ene ees 10
Ch. 2017-1, § 1, Laws of Fla. ........00 000.000.0000. ce ee eee eee 24
RULES
Sup. Ct. R. 10... ete eet ence een tenes 17,18
Sup. Ct. R.18.38 2.00. ee cee eee eee eee eeeeees 2
vii
IN THE
SUPREME COURT OF THE UNITED STATES
No. 17-7758
ERIC SCOTT BRANCH, Petitioner,
V.
STATE OF FLORIDA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SUPREME COURT
BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
OPINION BELOW
The Florida Supreme Court’s opinion is reported at Branch v. State, __ So.3d __
2
43 Fla. L. Weekly S21, 2018 WL 495024 (Fla. Jan. 22, 2018) (SC17-1509).
JURISDICTION
The opinion affirming the summary denial of the state successive postconviction
motion was issued on January 22, 2018. Branch filed.a petition for writ of certiorari
on February 12, 2018. The petition was timely. See Sup. Ct. R. 13.3; 28 U.S.C. §
2101(c). Jurisdiction exists pursuant to 28 U.S.C. § 1257(a). This Court, however, does
not exercise that jurisdiction to review issues that are solely a matter of state law.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.
Art. VI, el. 2.
The Fifth Amendment of the United States Constitution, which provides:
me person shall be . . . deprived of life, liberty, or property, without due process
of law...
U.S. Const. Amend. V.
The Sixth Amendment to the United States Constitution, which provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury. . .
U.S. Const. Amend. VI.
The Eighth Amendment to the United States Constitution, which provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.
U.S. Const. Amend. VIII.
The Fourteenth Amendment of the United States Constitution, section one, which
provides:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. Amend. XIV.'
' Actually, none of these federal constitutional provisions are involved because
the question presented regarding partial retroactivity is solely a matter of state law.
3
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Branch was convicted and sentenced to death for the murder of a young college
student, “whom he robbed and savagely beat and stomped and strangled and sexually
assaulted and then left her nude body in the woods.” Branch y. Sec’y, Fla. Dept. of
Corr., 638 F.3d 1353, 1853 (11th Cir. 2011); see generally Branch v. McDonough, 779
F.Supp.2d 1309, 1313-16 (N.D. Fla. 2010) (detailing the facts of the crime).
Branch had been improperly released from prison for sexual battery of a 14-yearold girl. He joined his cousin in Panama City, Florida, in a Pontiac Bonneville. Once
in Panama City, Branch raped another woman. Branch v. State, 671 So.2d 224 (Fla.
1st DCA 1996), affirmed, 684 So.2d 195 (Fla. 1996) (affirming a Bay County conviction
and sentence for sexual battery).
Branch spent the weekend prior to the murder on the campus of the University of
West Florida in Pensacola, spending Sunday night in the dorm room of a student,
Melissa. On Monday, January 11, 1993, Branch, who was worried that law
enforcement was looking for him either for the recent rape or on an Indiana warrant
and could trace him via the Pontiac Bonneville, drove the Bonneville to the Pensacola
airport, parked it, and took a taxi back to campus.
Shortly after 8:20 p.m., Branch kidnapped a young female college student from a
remote parking lot on campus to steal her car. Branch savagely beat her. The medical
examiner, who had conducted thousands of autopsies, testified that he will always
remember this one because of the extent of her injuries. The medical examiner
testified at trial, that out of more than three thousand autopsies which he has
performed, this “one will stand out in his mind as a result of the brutality of the
injuries.” Branch v. State, SC18-190 (Fla. Feb. 15, 2018) (quoting the trial court’s
sentencing order). Branch stomped; strangled; and sexually assaulted her with a tree
branch. He left her nude body in the nearby woods after covering her with leaves and
4
debris. Branch then stole her red Toyota Celica with a black antenna and broken left
taillight. Branch then returned to the dorm room. Melissa noticed that Branch had
a cut on his hand.
The next day, Branch drove back to Panama City and then to Bowling Green,
Kentucky, in the victim’s red Toyota. He called his grandfather in Indiana to come
pick him up. The victim’s car was recovered shortly afterward in a parking lot in
Bowling Green.
After arriving in Indiana and speaking with a lawyer, Branch turned himself in.
The booking officer who took Branch’s fingerprints noticed he had a cut on his hand.
see generally Branch v. McDonough, 779 F.Supp.2d 1309, 1313-16 (N.D. Fla. 2010)
(detailing the facts of the crime).
Judge Edward Phillips Nickinson III, presided at the trial. The prosecution
presented DNA evidence consisting of the victim’s blood located on boots and socks in
Branch’s Pontiac Bonneville. The bloodstains matched the victim’s DNA profile
“conservatively” at one in 9 million. (T. Vol. II 519). The jury convicted Branch of
first-degree murder, sexual battery, and grand theft. Branch testified at the guilt
phase admitting that he stole the victim’s car. His story was that, while he helped an
“other Eric” carry the victim into the woods, it was the “other Eric” who beat and
murdered her.
The jury recommended a death sentence by a vote of ten to two. The judge found
three aggravators: 1) the murder was committed in the course of a sexual battery: 2)
prior violent felony based on an Indiana rape conviction;* and 3) the murder was
2 The Indiana rape conviction, not the Florida rape conviction, was used as the
basis for the prior violent felony aggravator. Branch v. State, 685 So.2d 1250, 1253
(Fla. 1996) (finding the remainder of Branch’s claims in the direct appeal to be
“without merit”); Branch v. State, 952 So.2d 470, 482 (Fla. 2006) (rejecting a claim of
ineffectiveness of appellate counsel for raising but not adequately briefing the issue of
5
especially heinous, atrocious, or cruel. The trial court found several nonstatutory
mitigating circumstances, including: remorse; unstable childhood: positive personality
traits; and acceptable conduct at trial. The trial court sentenced Branch to death.
In the direct appeal to the Florida Supreme Court, Branch raised nine issues.
Branch v. State, 685 So.2d 1250, 1252, n.3 (Fla. 1996) (listing the nine issues in a
footnote).? The Florida Supreme Court affirmed the convictions and death sentence.
Branch v. State, 685 So.2d 1250 (Fla. 1996).
Branch then filed a petition for writ of certiorari in the United States Supreme
Court. On May 12, 1997, the United States Supreme Court denied review. Branch v.
Florida, 520 U.S. 1218 (1997).
On May 7, 1998, Branch filed a shell motion for postconviction relief in state trial
court and then on April 1, 2003, he filed a second amended motion, raising fourteen
claims. Branch v. State, 952 So.2d 470, 474, n.1 (Fla. 2006) (listing the claims raised
in the amended 3.851 motion).* The trial judge, Judge Nickinson, also presided over
the admissibility of the Indiana conviction).
3 The nine issues were: 1) failure to grant a continuance; 2) failure to conduct
a hearing into counsel's competence; 3) failure to give a requested instruction on
circumstantial evidence; 4) insufficient evidence; 5) comment on right to silence; 6)
photo of the victim; 7) failure to give a requested instruction defining mitigating
circumstances; 8) evidence of another crime: and 9) victim impact evidence.
4 The fourteen claims were: 1) ineffective assistance of trial counsel at the guilt
phase and violations of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972); 2) ineffective assistance of trial counsel during the penalty
phase and violations of Brady and Giglio; 3) newly discovered evidence shows that the
jury and trial court considered a nonstatutory aggravating circumstance of an improper
prior violent felony; 4) counsel was ineffective for failing to obtain an adequate mental
health evaluation; 5) postconviction counsel was unconstitutionally hindered because
of the rules prohibiting counsel from interviewing jurors; 6) jury instructions diluted
the jury's sense of overall responsibility in Florida's death penalty scheme; 7) Florida's
death penalty sentencing scheme is unconstitutional under fing v. Arizona, 536 U.S.
584 (2002); 8) unconstitutionality of execution by electrocution and lethal injection; 9)
6
the state postconviction proceedings. The trial court held an evidentiary hearing on
three claims. Two defense mental health experts testified at the state evidentiary
hearing. Dr. James Larson, who had been hired by trial counsel as a confidential
mental health expert before trial, but who was not presented at the penalty phase
because his testimony would not be “helpful,” testified during the postconviction
evidentiary hearing. Branch, 952 So.2d at 478 (stating that “Dr. Larson’s evaluation
was not helpful to the defense”). And state postconviction counsel Michael Reiter also
presented Dr. Henry L. Dee at the evidentiary hearing to support the claim of
ineffectiveness for failing to obtain an adequate mental health evaluation. Jd. (noting
much of the proposed mitigation presented at the evidentiary hearing either was “not
credible or would actually have been harmful to the defendant's case”). Dr. Dee’s
deposition was taken before the evidentiary hearing and was filed with the trial court.
Dr. Dee testified during the deposition that Branch’s full scale IQ was 115. The trial
court denied the motion following the evidentiary hearing.
In his postconviction appeal to the Florida Supreme Court, Branch raised nine
issues.” Branch v. State, 952 So.2d 470, 474 (Fla. 2006). Branch also filed a state
defendant may become mentally incompetent by the time of his execution; 10) felony
underlying felony murder was an automatic aggravating circumstance; 11) improper
direct appeal and ineffective assistance of appellate counsel; 12) public records are
being withheld; 13) Florida's capital punishment statute is unconstitutional because
it fails to prevent the arbitrary imposition of the death penalty; and 14) cumulative
error.
° The nine issues were: 1) trial counsel was ineffective for failing to file a motion
to suppress the items taken from the Pontiac; 2) trial counsel was ineffective for failing
to investigate and present sufficient mitigation evidence during the penalty phase: 3)
trial counsel was ineffective for failing to hire experts; 4) trial counsel was ineffective
for failing to object to the introduction of the abstract of judgment during the penalty
phase: 5) trial counsel was ineffective for failing to impeach witnesses; 6) trial counsel
was ineffective for failing to investigate for the guilt phase; 7) trial counsel was
ineffective for failing to object at the guilt and penalty phases; 8) Branch's Indiana
7
habeas petition raising four claims of ineffectiveness of appellate counsel.®° Branch,
952 So.2d at 481. The Florida Supreme Court affirmed the trial court’s denial of the
postconviction motion and denied the state habeas petition.
On March 28, 2007, Branch, represented by Michael Reiter, filed a 132-page
habeas petition in federal court, raising seven issues.’ Branch vy. McDonough,
4:06-cv-00486-RH (Doc. #7). The district court denied the federal habeas petition but
granted a certificate of appealability on one issue. Branch v. McDonough, 779
conviction was not a felony under Florida law in order to establish the prior violent
felony aggravating circumstance; and 9) Branch was entitled to relief based on
cumulative error.
®* The four claims of ineffectiveness of appellate counsel were: 1) failing to argue
that the Indiana conviction was not a felony under Florida law and the inadmissibility
of the abstract of judgment; 2) failing to raise on appeal the trial court's error in
admitting into evidence DNA probability statistics without conducting a proper Frye
v. United States, 293 F. 1018, 1014 (D.C. Cir. 1923), hearing; 3) failing to raise the
issue of the trial court's order denying the defense's request for a recess; and 4) failing
to argue that the trial court had failed to conduct a proper Nelson v. State, 274 So.2d
256 (Fla. 4th DCA 1973), inquiry.
" The seven issues were: 1) ineffective assistance of counsel in (a) not filing a
motion to suppress the evidence seized from the Pontiac, (b) not hiring a blood-spatter
expert, (c) not hiring a forensic pathologist to rebut the medical examiner’s testimony
about the stick found in the victim’s vagina and the effect of the ligature found around
her neck, (d) insufficiently investigating and presenting evidence in mitigation, and (e)
not challenging on direct appeal the admission of DNA evidence; 2) the state trial
court’s failure to conduct a hearing on Mr. Branch’s attorney’s competence; 3) the state
trial court’s refusal to continue the trial; 4) the prosecutor’s references to Mr. Branch’s
failure to disclose the “other Eric” story prior to the trial; 5) the state trial court’s
refusal to give a requested jury instruction further defining the term “mitigation”; 6)
the admission, during the penalty phase, of evidence of Mr. Branch’s sexual-battery
conviction in Indiana, without a showing that it was a crime of violence and a felony
as required for use as an aggravating circumstance under the Florida death-penalty
statute: and 7) the State’s failure to provide additional postconviction resources to hire
additional postconviction experts.
F.Supp.2d 1309 (N.D. Fla. 2010) (detailing the facts and denying the federal habeas
petition).
The Eleventh Circuit rejected the Doyle v. Ohio, 426 U.S. 610 (1976), claim and
affirmed the federal district court’s denial of habeas relief. Branch v. Sec’y, Fla. Dept.
of Corr., 638 F.3d 1353 (11th Cir. 2011).
On October 19, 2011, Branch filed a petition for writ of certiorari in the United
States Supreme Court from the Eleventh Circuit opinion, raising two issues: 1)
whether there is a right of self-representation in a federal habeas appeal and 2) the
Doyle issue. The United States Supreme Court denied certiorari review. Branch v.
Tucker, 565 U.S. 1248 (2012) (No. 11-8117).
On December 7, 2012, Branch filed a pro se motion for DNA testing. Branch
sought DNA testing of a towel in Melissa’s dorm room; a brochure that may have
belonged to Eric St. Pierre, who Branch asserted was the “other Eric”; hair found in the
Pontiac Bonneville; the victim’s shoelaces; and a stocking used to choke the victim
(actually a sock). Branch also sought a court order for DNA samples from Eric St.
Pierre in Maine. Prior state postconviction counsel, registry counsel Michael Reiter,
was replaced by Capital Collateral Regional Counsel - North (CCRC-N), as state
postconviction counsel of record.
On March 19, 2015, CCRC-N counsel adopted the pro se motion for DNA testing.
The State filed an answer to the DNA motion objecting the DNA testing of the towel
and pointing out the DNA evidence tying Branch to the murder. At trial, the
prosecution established that a sock, found in the Pontiac Bonneville that Branch had
been driving and then abandoned in the Pensacola airport parking lot, had bloodstains
matching the victim’s DNA profile at one in 9 million. (T. Vol. ITI 519).
On July 1, 2015, the trial court denied the motion. The trial court noted that the
towel and the stocking had been previously DNA tested and the results were admitted
at the 2004 postconviction evidentiary hearing as Exhibits B & C. The DNA testing
performed by the Florida Department of Law Enforcement (FDLE) on the victim’s sock
showed only her DNA. The trial court noted that the towel was not involved in the
murder or located at the crime scene. The trial court ruled there was an insufficient
nexus between the towel and the issues in the case. The trial court found the motion
for DNA insufficient because Branch failed to explain how the DNA results would show
he was not present at the crime scene.
The Florida Supreme Court affirmed the denial of the motion for DNA testing
concluding that Branch had “failed to demonstrate a nexus between the potential
results of DNA testing on each piece of evidence and the issues in the case, or how the
DNA testing of each item requested to be tested would give rise to a reasonable
probability of acquittal or a lesser sentence.” Branch v. State, 2016 WL 4182823 (Fla.
Aug. 8, 2016) (SC15-1869).
On April 2, 2014, Branch, represented by S. Douglas Knox of Quarles & Brady,
filed a 42 U.S.C. § 1988 action in federal district court challenging the registry statute
on two equal protection grounds. The district court dismissed the § 1983 action on
statute of limitations grounds. Following oral argument, the Eleventh Circuit affirmed
the dismissal. Branch v. Sec'y, Fla. Dept. of Corr., 608 Fed. Appx. 912 (11th Cir. 2015).
On June 30, 2016, Branch, represented by CCRC-N, filed a_ successive
postconviction motion raising a claim that his death sentence violated the right to jury
trial established in Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst v. Florida), and Hurst
v. State, 202 So.3d 40 (Fla. 2016) (Hurst v. State). On April 3, 2017, Branch filed an
amended motion. On July 12, 2017, the trial court denied summarily the Hurst claim
concluding that Hurst did not retroactively apply to Branch citing Asay v. State, 210
So.3d 1, 22 (Fla. 2016).
10
The Florida Supreme Court affirmed the trial court’s denial of the Hurst claim.
Branch v. State, 2018 WL 495024 (Fla. Jan. 22, 2018) (SC17-1509).
On January 18, 2018, the Governor of Florida signed a death warrant scheduling
the execution in this case for Thursday, February 22, 2018.
On February 12, 2018, Branch then filed a petition for writ of certiorari in this
Court from the Florida Supreme Court’s opinion. This is the State’s brief in opposition.
11
REASON FOR DENYING THE WRIT
ISSUE I
WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION OF
THE FLORIDA SUPREME COURT HOLDING THAT AURST V. STATE, 202
So.3d 40 (FLA. 2016), WAS NOT RETROACTIVE AS TO BRANCH UNDER
STATE LAW?
Petitioner Branch asserts that the Florida Supreme Court’s partial retroactivity
analysis violates the Eighth Amendment and the Supremacy Clause. He claims that
both Hurst v. Florida, and Hurst v. State, must be fully retroactive to all capital cases.
But the issue is solely a matter of independent state law. The Florida Supreme Court’s
decision was based on the state test for retroactivity. Furthermore, there is no conflict
between the Florida Supreme Court’s decision and this Court’s jurisprudence on
retroactivity. Indeed, the Florida Supreme Court’s decision granting partial
retroactivity provides greater relief than this Court’s own decisions would. Nor is there
any conflict between the Florida Supreme Court's decision and that of any other federal
appellate court or state supreme court. The only circuit court to have reached the
issue, the Eleventh Circuit, has held that Hurst v. Florida is not retroactive and that
the Florida Supreme Court’s partial retroactivity does not violate the federal
constitution. The Eleventh Circuit agrees with the Florida Supreme Court.
Additionally, neither the Eighth Amendment nor the Supremacy Clause are involved.
Neither speak to retroactivity analysis. This Court should deny review of this state
law claim.
The Florida Supreme Court’s decisions
Branch argued in the Florida Supreme Court that this Court’s decision in Hurst
v. Florida, and the Florida Supreme Court’s decision on remand in Hurst v. State,
should be applied retroactively to him.
12
The Florida Supreme Court rejected the claim, reasoning:
Branch's motion sought relief pursuant to the United States Supreme Court's
decision in Hurst v. Florida, _ U.S. _, 186 S.Ct. 616, 193 L.Ed.2d 504 (2016),
and our decision on remand in Hurst v. State (Hurs?), 202 So.3d 40 (Fla. 2016),
cert. denied, _ U.S. __, 187 8.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court
stayed Branch's appeal pending the disposition of Hitchcock v. State, 226 So.3d
216 (Fla. 2017), cert. denied, _ U.S. __, 188 S.Ct. 518, __ L.Ed.2d __ (2017).
After this 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, 117
S.Ct. 1709, 187 L.Ed.2d 833 (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.
Branch v. State, 48 Fla. L. Weekly S21 (Fla. Jan. 22, 2018).
The Florida Supreme Court's decision in this case was based on its prior ruling in
Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, Hitchcock v. Florida, 138
S.Ct. 518 (2017) (No. 17-6180). Hitchcock, in turn, was based on the Florida Supreme
Court’s prior decision in Asay v. State, 210 So.3d 1 (Fla. 2016), cert. denied, Asay v.
Florida, 138 S.Ct. 41 (2017) (No. 16-9033). See Hitchcock, 226 So.3d at 217 (stating:
“our decision in Asay forecloses relief’).
In Asay v. State, 210 So.3d 1 (Fla. 2016), cert. denied, Asay v. Florida, 138 S. Ct.
41 (2017), and Mosley v. State, 209 So.3d 1248 (Fla. 2016), the Florida Supreme Court
created a partial retroactivity analysis. In these two cases, the Florida Supreme Court
held that their prior decision in Hurst v. State was retroactive as to cases where the
death sentence was not final before Ring v. Arizona, 536 U.S. 584 (2002), but was not
retroactive as the cases where the death sentence was final before Ring. See Hannon
v. State, 228 So.3d 505, 512 (Fla. 2017) (stating: “we have consistently held that Hurst
is not retroactive prior to June 24, 2002”), cert. denied, Hannon v. Florida, 138 S.Ct.
441 (2017) (No. 17-6650); Hannon v. Sec’y Dept. of Corr., 2017 WL 5177614 (11th Cir.
13
Nov. 8, 2017) (observing that Hurst is “not retroactive to him under the Florida
Supreme Court's decision in Asay’).
The Florida Supreme Court in Asay relied on the state test for retroactivity of Witt
v. State, 387 So.2d 922 (1980). See Asay, 210 So.3d at 15-22. The Florida Supreme
Court in Mos/ey relied on two state tests for retroactivity, that of James v. State, 615
So.2d 668 (Fla. 1993), and Witt. See Mosley, 209 So.3d at 1274-1283.
In his petition, Branch attacks the Florida Supreme Court’s holding in this case
and in Asay on Eighth Amendment and Supremacy Clause grounds.®
8 It is not clear whether Branch’s claim is limited to a claim that Hurst v. State
must be retroactively applied under the federal constitution or includes Hurst v.
Florida, too. There are significant differences between the holding of this Court in
Hurst v. Florida and the holding of the Florida Supreme Court in Hurst v. State. The
most obvious difference is that this Court declined to address the Eighth Amendment
unanimity argument in Hurst v. Florida; whereas, the Florida Supreme Court held
that the Eighth Amendment requires unanimity as both a matter of federal
constitutional law and state constitutional law. Hurst v. State, 202 So.3d 40, 44 (Fla.
2016) (holding that “in order for the trial court to impose a sentence of death, the jury's
recommended sentence of death must be unanimous”). Furthermore, the Florida
Supreme Court’s decision required additional factual findings by the jury regarding
sufficient aggravating circumstances, mitigation, as well as weighing; whereas, this
Court's decision was limited to factual findings by the jury regarding the aggravating
circumstances only.
14
Matter of state law
This Court lacks the authority to consider this claim. This Court does not review
claims that are based on independent state law grounds. Michigan v. Long, 463 U.S.
1032, 1040 (1983) (explaining that respect for the “independence of state courts, as well
as avoidance of rendering advisory opinions, have been the cornerstones of this Court’s
refusal to decide cases where there is an adequate and independent state ground” for
the decision). Ifa state court’s decision is based on separate state law, this Court “of
course, will not undertake to review the decision.” Florida v. Powell, 559 U.S. 50, 57
(2010); Long, 463 U.S. at 1041. This Court has observed that it is “fundamental” that
state courts “be left free and unfettered by us” in interpreting their own state
constitutions and state laws. Powell 559 U.S. at 56.
The Florida Supreme Court’s decisions were based on independent state law. They
were based on the state test for retroactivity. In the lead case of Asay, the Florida
Supreme Court invoked the state test for retroactivity of Witt v. State, 387 So.2d 922
(Fla. 1980). In Asay, the Florida Supreme Court analyzed its prior decision in Hurst
v. State, using the Witt test, at great length. Asay, 210 So.3d at 15-22 (explicitly and
repeatedly citing Witt as the basis for the retroactivity analysis).
As this Court has held, states are free to have different retroactivity tests than the
federal test for retroactivity established in Teague v. Lane, 489 U.S. 288 (1989).
Danforth v. Minnesota, 552 U.S. 264 (2008). The Danforth Court held that states are
not required to adopt Teague. Id. at 266. The High Court noted that the Oregon
Supreme Court correctly stated that states “are free to choose the degree of
retroactivity” ..., “so long as the state gives federal constitutional rights at least as
broad a scope as the United States Supreme Court requires.” Jd. at 276 (emphasis
added). This Court concluded that “the remedy a state court chooses to provide its
15
citizens for violations of the Federal Constitution is primarily a question of state law.”
Id. at 288 (emphasis added).
Under Danforth, states are free to have a broader retroactivity test; they just may
not have a narrower test. 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). Florida’s test for retroactivity is broader than the federal
test. Asay, 210 So.3d at 15 (citing Johnson v. State, 904 So.2d 400, 409 (Fla. 2005));
Johnson v. State, 904 So.2d 400, 409 (Fla. 2005) (rejecting the use of the federal test
of Teague to determine retroactivity, and continuing to apply “our longstanding Witt
analysis, which provides more expansive retroactivity standards than those adopted
in Teague’). Because the state test for retroactivity is broader and provides more relief
than Teague, the retroactivity of the Florida Supreme Court's decisions is solely a
matter of state law. Florida is entitled to adopt a partial retroactivity analysis in cases
where there would be no retroactivity under the federal test of Teague.
The Florida Supreme Court may hold that Hurst v. State is not retroactive as to
cases where the sentence was final before Ring, just as they did in Asayand Hitchcock.
When the Danforth Court spoke of state courts being free to choose the “degree of
retroactivity” that includes partial retroactivity. Partial retroactivity is solely a matter
of state law.
Opposing counsel, in his petition, asserts that this Court’s decision in Danforth
assumed a date of finality based on when the sentence became final. Pet. at 11. But
none of this Court’s reasoning in Danforth was based on dates. It was based on this
Court’s respect for state courts’ independence and their dual sovereignty.
Furthermore, the Florida Supreme Court's partial retroactivity analysis also depends
on the date the sentence became final — before or after Ring. Danforth cannot be
distinguished on this basis and its holding cannot be so lightly brushed aside.
16
Under Danforth, the issue being raised is solely a matter of state law. Partial
retroactivity is solely a matter of state law and this Court does not review state law
matters. On this basis alone, review should be denied.
No conflict with this Court’s retroactivity jurisprudence
There is no conflict between the Florida Supreme Court’s decision in this case and
this Court’s decisions regarding retroactivity. Sup. Ct. R. 10(¢) (listing conflict with this
Court as a consideration in the decision to grant review). Not only has this Court held
that states may employ their own retroactivity tests provided that their tests grant at
least as much relief as Teague, but this Court’s own retroactivity analysis under
Teague would not grant any retroactive relief to any capital defendant.
This Court has held that Sixth Amendment right-to-a-jury trial decisions are not
retroactive. Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (holding that Ringwas not
retroactive using the federal test of Teague); DeStefano v. Woods, 392 U.S. 631 (1968)
(holding that a Sixth Amendment right-to-a-jury-trial decision in an earlier case was
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.
Under this Court’s logic in Summerlin, Hurst v. Florida would not be retroactive.
Under this Court’s view, Hurst v. Florida would not be retroactively applied to any
capital defendant in Florida or any other state for that matter. The Florida Supreme
Court’s partial retroactivity analysis provides more relief than this Court’s analysis
does.
The Florida Supreme Court’s decisions in this case and Asay does not conflict with
either this Court’s decision in Danforth or this Court’s decision in Summerlin. There
is no conflict between the Florida Supreme Court and this Court.
17
No conflict with any federal appellate court or state supreme court
Not only is there no conflict with this Court, there is no conflict with that of any
federal appellate court or state supreme court either. As this Court has observed, a
principal purpose for certiorari jurisdiction “is to resolve conflicts among the United
States courts of appeals and state courts concerning the meaning of provisions of
federal law.” Braxton v. United States, 500 U.S. 344, 347 (1991); see also Sup. Ct. R.
10(b) (listing conflict among state supreme courts as a consideration in the decision to
grant review). In the absence of such conflict, certiorari is rarely warranted.
The Eleventh Circuit has held that Hurst v. Florida is not retroactive at all.
Lambrix v. Sec'y, Fla. Dept. of Corr., 851 F.3d 1158, 1165, n.2 (11th Cir. 2017)
(Lambrix V) (“under federal law Hurst, like Ring, is not retroactively applicable on
collateral review”), cert. denied, Lambrix v. Jones, 138 8.Ct. 217 (2017) (No. 17-5153).
The Ninth Circuit has also held that Hurst v. Florida is not retroactive. Ybarra v.
Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017). The Ninth Circuit denied permission
to file a successive habeas petition raising a Hurst v. Florida claim concluding that
Hurst v. Florida did not apply retroactively. Indeed, Ybarra made the same argument
regarding the Hurst v. Florida decision being substantive that Branch is making in
this petition. The Ninth Circuit disagreed, concluding that Hurst v. Florida was not
a substantive rule because it did not “decriminalize” any conduct or place any conduct
“beyond the scope of the state’s authority to proscribe.” Ybarra, 869 F.3d at 10382.
Ybarra also argued the Hurst v. Florida should be applied retroactively because it
involved the standard of proof citing Jvan V. v. City of New York, 407 U.S. 203 (1972),
just as Branch does in his petition. The Ninth Circuit rejected that argument too,
reasoning that even if Hurst v. Florida extends the reasonable-doubt standard to the
18
weighing determination, it does not redefine capital murder. Yharra, 869 F.3d at 1032."
The Ninth Circuit also observed that because neither Ringnor Apprend! v. New Jersey,
530 U.S. 466 (2000), applied retroactively, “we fail to see why Hurst would apply
retroactively.” /d. at 1033. There is no conflict among the federal appellate courts
regarding the retroactivity of Hurst v. Florida at present and it is unlikely that one will
ever develop in the future in light of this Court’s holding in Summerlin.
The Eleventh Circuit has also rejected the exact claim raised in the petition
regarding partial retroactivity. The Eleventh Circuit rejected constitutional attacks
on the Florida Supreme Court’s partial retroactivity analysis. The Eleventh Circuit
concluded that the Florida Supreme Court’s ruling that Hurst v. State was not
retroactively applicable to cases final before Ring does not violate the federal
constitution. In Lambrix v. Sec'y, Fla. Dept. of Corr., 872 F.3d 1170 (11th Cir. 2017)
(Lambrix VD, cert. denied, Lambrix v. Jones, 138 S.Ct. 312 (2017) (No. 17-6290), the
Eleventh Circuit rejected a series of constitutional attacks on the Florida Supreme
Court’s rulings in Asayand Aitchcock. Lambrix contended that his federal due process,
° Neither Hurst v. Florida nor Hurst v. State involved the standard of proof.
The issue in Hurst v. Florida was who decides — the judge versus the jury — not the
standard of proof. This Court in Hurst v. Florida did not extend the standard of proof
to weighing. Weighing was not at issue in Hurst v. Florida. This Court’s decision was
limited to factual findings regarding aggravating circumstances. Indeed, after this
Court decided Hurst v. Florida, it decided the case of Kansas v. Carr, 136 S.Ct. 633
(2016), in which this Court rejected any notion that weighing is even a fact to which
any standard of proof applies. This Court in Carrnoted that while aggravating factors
are “purely factual determination”; in contrast, whether mitigation exists is “largely
a judgment call (or perhaps a value call).” The Carr Court explained that the ultimate
question of whether mitigating circumstances outweigh aggravating circumstances,
Le., weighing, is mostly “a question of mercy.” The concept of a standard of proof does
not apply to non-facts, such as mercy.
Nor is the new unanimity requirement established by the Florida Supreme
Court in Hurst v. State, the equivalent of a standard of proof. They are two very
different concepts. The “retroactivity” of the beyond-a-reasonable-doubt standard of
proof is a non-issue in this case and all other Florida capital cases as well.
19
equal protection, and Eighth Amendment rights were violated by the state court’s
failure to give full retroactive effect to Hurst v. State. Id. at 1178. The Eleventh Circuit
noted that “this Court already indicated that Hurst is not retroactively applicable on
collateral review under federal law, and we hold here that no reasonable jurist would
find that issue debatable.” /d. at 1182. The Eleventh Circuit noted that the United
States Supreme Court held that Aingdoes not apply retroactively to cases on collateral
review in Summerlin. Id. The Eleventh Circuit concluded that the Florida Supreme
Court’s ruling that Hurst v. State was not retroactively applicable to be “fully in
accord” with this Court's “precedent in Ringand Schriro.” Id. at 1182-83. The Eleventh
Circuit then denied a certificate of appealability (COA) on the issue. /d. at 1183. And
the Eleventh Circuit concluded with the statement that “the Florida courts’ rejection
of Lambrix's constitutional claim was not contrary to nor an unreasonable application
of a holding of a Supreme Court decision.” /d.
The Eleventh Circuit agrees with the Florida Supreme Court that the partial
retroactivity analysis the Florida Supreme Court established in Asay does not violate
due process, equal protection, or the Eighth Amendment. Lambrix v. State, 227 So. 3d
112, 113 (Fla. 2017) (rejecting the claims that the partial retroactivity established in
Asay violates the Eighth Amendment, due process or equal protection based on an
assertion of arbitrariness), cert. denied, Lambrix v. Florida, 138 S.Ct. 312 (2017) (No.
17-6222). So, there is no conflict between the Florida Supreme Court and the one
federal circuit to have directly addressed the claim presented in the petition that
partial retroactivity violates the federal constitution.
There is no conflict between the Florida Supreme Court and the Delaware Supreme
Court either. Pet. at 31. While the Delaware Supreme Court held that its prior
decision in Rauf v. State, 145 A.3d 430 (Del. 2016), was fully retroactive in Powell v.
Delaware, 158 A.3d 69 (Del. 2016), it did so as a matter of state law. Under Danforth,
20
each state is permitted to apply its own decisions as broadly as they choose. Moreover,
the Delaware case involved a standard of proof issue that the Florida cases did not.
Powell, 153 A.3d at 73-74. Unless two cases involve the same issues, the two cases
cannot conflict. ©
There is no conflict between the Florida Supreme Court’s decision and that of any
federal circuit court of appeals or that of any state supreme court. The lack of conflict
is a second reason to deny the petition.
The Eighth Amendment and arbitrariness
Branch insists that the Florida Supreme Court’s partial retroactivity analysis is
arbitrary in violation of the Eighth Amendment. It is not.
Branch seems to be arguing that retroactivity analysis based on court dates is itself
arbitrary. But all modern retroactivity tests depend on dates of finality. Both federal
and state courts have retroactivity doctrines that depend on dates. For example, a cut-
off date is part of the pipeline doctrine first established in Griffith v. Kentucky, 479
© And Ivan V. v. City of New York, 407 U.S. 203 (1972), is irrelevant to any
retroactivity analysis in Florida. Ifa rule of law it not new, there is no retroactivity
analysis required. Butler v. McKellar, 494 U.S. 407, 412 (1990) (defining a “new rule”
for purpose of retroactivity as one that “breaks new ground or imposes a new
obligation,” such as a decision that explicitly overrules an earlier holding). Florida’s
standard of proof for aggravating circumstances is not new. Florida law has required
that the State prove aggravators at the beyond-a-reasonable-doubt standard of proof
for over three decades. Williams v. State, 37 So.3d 187, 194-95 (Fla. 2010) (stating that
the State has the burden to prove beyond a reasonable doubt each and every
aggravating circumstance); Aguirre-Jarquin v. State, 9 So.3d 593, 607 (Fla. 2009)
(explaining that the State must prove the existence of an aggravator beyond a
reasonable doubt citing Parker v. State, 873 So.2d 270, 286 (Fla. 2004); cf Floyd v.
State, 497 So.2d 1211, 1214 (Fla. 1986) (striking an aggravator that was not proven
“beyond a reasonable doubt”). Proving aggravators beyond a reasonable doubt is not
new in Florida. The “retroactivity” of the beyond-a-reasonable-doubt standard of proof
is a non-issue in this case and all other Florida capital cases as well.
21
U.S. 314, 328 (1987). The Griffith Court created the pipeline concept by holding that
all new developments in the criminal law must be applied retrospectively to all cases,
state or federal, that are pending on direct review. Griffith depends on the date of
finality of the direct appeal. The current federal test for retroactivity in the
postconviction context, Teague, also depends on a date. If a case is final on direct
review, the defendant will not receive benefit of the new rule unless one of the
exceptions to Jeague applies.
The Florida Supreme Court’s partial retroactivity test also depends on a date. The
critical date under Asay is whether the sentence was final before or after Ring. The
Florida Supreme Court’s line drawing based on a date is no more arbitrary than this
Court’s in Griffith.
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 a new development in the law and
older final cases that will not 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 Griffith nor Teague nor Asay violates the Eighth Amendment.
The Florida Supreme Court’s decision in Asay is no more arbitrary than this
Court’s in Griffith and neither violate the Eighth Amendment.
The only way to ensure complete uniformity is to abolish the retroactivity doctrine
all together and hold all significant changes in the law will apply to all cases no matter
how old the case, which would negate all finality. If opposing counsel’s view was
adopted by courts, with every new development in the law, a capital defendant would
get a new trial or a new penalty phase ad infinitum. Such a policy would, of course,
result in endless new trials and endless new penalty phases. Given that the litigation
22
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