Opposition Brief — Eric Scott Branch, Petitioner v. Florida

CAPITAL CASE

EXECUTION SCHEDULED FOR THURSDAY, FEBRUARY 20, 2018, @ 6:00 P.M.

No. 17-7825

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 the Eighth Amendment prohibition

established in Roper v. Simmons, 548 U.S. 551 (2005), does not apply to

a capital defendant who was nearly 22 years old at the time of the

murder?

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED ...... 20.0... cece cee ee teen eens i

TABLE OF CONTENTS . 2.1... cc eee eee eens i

TABLE OF AUTHORITIES .............. 00. ccc cee eee e ete ee il

OPINION BELOW ....... 0.0... cece nee cent eee eeeas 1

JURISDICTION .... 0.0... cen ence eee nnes 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........... 2

STATEMENT OF THE CASE AND PROCEDURAL HISTORY ............... 3

REASON FOR DENYING THE WRIT ....... 0... 0.00.2 eee c eee eens 11

ISSUE .. 0. ee cence eee e een eeeas 11

WHETHER THIS COURT SHOULD GRANT REVIEW OF A

DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT

THE EIGHTH AMENDMENT PROHIBITION ESTABLISHED IN

ROPER V. SIMMONS, 543 U.S. 551 (2005), DOES NOT APPLY TO A

CAPITAL DEFENDANT WHO WAS NEARLY 22 YEARS OLD AT

THE TIME OF THE MURDER?

The Florida Supreme Court’s decision ................0000000005 11

Procedurally barred under state law ................ 00.00 e ce eee 15

No conflict with this Court’s Eighth Amendment jurisprudence .... . 16

No conflict with any federal appellate court or state supreme court .. 20

The Eighth Amendment prohibition and brain development articles . 28

il

TABLE OF AUTHORITIES

CASES PAGE(S)

Adams v. Robertson,

520 U.S. 838 (1997) . 0 ce cece cece cece cece neneuvaeues 15

Asay v. State,

210 So.3d 1 (Fla. 2016) 2.2... ec ccc cence e nent een neueneuas 9

Atkins v. Virginia,

536 U.S. 304 (2002)... cece cece cee eceenees 9,17,18,19

Bowling v. Commonwealth,

224 S.W.3d 577 (Ky. 2006) 2.2... ccc cece cece ence ee cenenes 21,22

Brady v. Maryland,

373 U.S. 83 (1963) 2... cc cece cece ence nee cent cecnueus 5

Branch v. Florida,

520 U.S. 1218 (1997) 2... ce cece een een eenececncnus 5,19

Branch v. McDonough,

779 F.Supp.2d 1309 (N.D. Fla. 2010) .. 00.20. oe eee eee 3,4,7

Branch v. Sec’y, Fla. Dep’t of Corr.,

638 F.3d 1353 (11th Cir. 2011)... occ ccc ccc ccc cccccceuneceeeneee 3.7

Branch y. State,

671 So.2d 224 (Fla. 1st DCA 1996), affirmed, 684 So.2d 195 (Fla. 1996)......... 3

Branch v. State,

__So.8d _, 48 Fla. L. Weekly S21, 2018 WL 495024 (Fla. Jan. 22, 2018) .. passim

Branch v. Tucker,

565 U.S. 1248 (2012) 2... cee cence ee cece eee eeneeneees 7

Bravo v. United States,

532 F.3d 1154 (11th Cir. 2008) 2... cence eee eee 15

Braxton v. United States,

500 U.S. 344 (1991) occ cc cee eee eee nee nee nneeneenes 20

Camreta v. Greene

563 U.S. 692 (2011) 0... ccc cc ccc ce cece cee ecnceetcncuneees 21

Cruz v. United States,

__ F.Supp.3d __, 2017 WL 3638176 (D. Conn. Apr. 3, 2017).................. 21

Davis v. State,

142 So.3d 867 (Fla. 2014) 2.0... ccc ccc e eee eeeeeees 13

iil

Diaz v. State,

945 So.2d 1186 (Fla. 2006) ... 0.0... 0 cece cee cee e eee eeeeee 13

Doyle v. Ohio,

A426 U.S. 610 (1976) 20. cc cece nec ne ene cence eeeueneeees 7

Eddings v. Oklahoma,

455 U.S. 104 (1982)... cc ccc cece cence ee eeneeaees 25

Ex parte Briseno,

135 S.W.3d 1 (Tex. Crim. App. 2004) .......00. 0.0.00 cece eee 18,19

Farina v. State

992 So.2d 819 (Fla. 2008) ... 2... cece ce ccc cece ce ceeeeecesutueesucues 14

Frye v. United States,

293 F. 1013 (D.C. Cir. 1923) .. 0.0 ccc ce cence eeeecncacs 6

In re Garner,

612 F.3d 533 (6th Cir. 2010)... 0... cc cece cece e ee neuns 20

In re Ronald Phillips,

2017 WL 4541664 (6th Cir. July 20, 2017) ....... 00 ccc cee 23

Giglio v. United States,

405 U.S. 150 (1972) 0... ccc ce eee cece ee eeeeeeeeeunees 5

Graham v. Florida,

560 U.S. 48 (2010) 2... ccc cc ee nec n nee e eee eeaeees 14,17

Hall v. Florida,

134 S.Ct. 1986 (2014) 2.0 ccc cece ene neeennes 17,24

Hill v. State,

921 So.2d 579 (Fla. 2006) .... 0... cece ee een ene eeeeeas 14

Hurst v. Florida,

136 S.Ct. 616 (2016) 2... cece cence cece ee eeeaeeuas 9

Hurst v. State,

202 So.3d 40 (Fla. 2016) .. 00... ce cence eee eueucnenees 9

Johnson v. Lee,

186 S.Ct. 1802 (2016) ... 0... cece ce eee e eee eeeeueees 15

Johnson v. Texas,

509 U.S. 350 (1993)... ccc cece eee een eeeeceenenus 25

Lackey v. Texas,

514 U.S. 1045 (1995) 2. cc ccc cence een ence neeneuee 10

lv

Lockett v. Ohio,

438 U.S. 586 (1978) 6... cence cece neve eeenenanes 24

Massachusetts v. United States,

833 U.S. 611 (1948) 2... ce ccc eee cee e eee neeeneeues 15

Melton v. Sec’y, Fla. Dep't of Corr.,

778 F.3d 1284 (11th Cir. 2015) 20... cece ence eee 20

Miller v. Alabama,

567 U.S. 460 (2012) 0. ec eee cence eeees 14,17,21,25

Mitchell v. State,

235 P.3d 640 (Okla. Crim. App. 2010) ...... 20.0.0. 0. cee eee ee eee eee 22

Moore v. Texas,

187 S.Ct. 1089 (2017) 200 ccc cece cece eee eeenes 16-20

Moreno v. Dretke,

450 F.3d 158 (5th Cir. 2006)... 2... ce cee eee eeeaeaes 20

Morton v. State,

995 So.2d 233 (Fla. 2008) ..... 0.0... ce cee cee cece ee neeeeeues 13

Nelson v. State,

274 So.2d 256 (Fla. 4th DCA 1973) 2.002. cece eee ee eees 6

Parr v. Quarterman,

A472 F.3d 245 (5th Cir. 2006) 2... cece cece ee eeeneees 20

Ring v. Arizona,

536 U.S. 584 (2002) 2... ccc cee cee eee ence eee eneueeeees 5

Roper v. Simmons,

543 U.S. 551 (2005) 2. ccc ec ee cee seen eee eneeaees passim

St. Clair v. Commonwealth,

451 S.W.3d 597 (Ky. 2014) oo. ccc cece cece cece cent eeae 22

Schwab v. State,

969 So.2d 318 (Fla. 2007) .. 0.0... 0c cece cece ev eecunees 13,14

State v. Campbell,

988 So.2d 810 (La. 2008)... 0... ccc eee cece cence eenenee 22

State v. Tucker,

181 So.3d 590 (La. 2015) 2... cc ccc cece ne eeeeeenne 22,25

Thompson v. State,

153 So. 3d 84 (Ala. Crim. App. 2012) ... 0... 0. eee ee ees 21

United States v. Bernard,

762 F.3d 467 (5th Cir. 2014) 2... ccc cece cece e cece enes 20

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VII] .........0.0 000000 cece cece eees passim

U.S. Const. Amend. XIV ... 0.0... cc ce eee eee eee eeeeeees 3

STATUTES

28 U.S.C. § 1257(a) occ ce ec ee cece eee eeneeunteenae 1

28 U.S.C. § 2101) 2... cc cece cee e nee een eeeenes 1

42 U.S.C.§ 19838 2.2... cee eee cece eee nee enes 9

RULES

Sup. Ct.R. 10... 0.0.0.0. eee ee nee nen n eee 16,20,21,22

Sup. Ct.R.13.3 0.000. e eee eee e neste eenetenseeecereees 1

vl

IN THE

SUPREME COURT OF THE UNITED STATES

No. 17-7825

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

__,2018 WL 897079 (Fla. Feb. 15, 2018) (SC18-190).

JURISDICTION

The Florida Supreme Court’s opinion affirming the summary denial of the state

successive postconviction motion was issued on February 15, 2018. Branch filed a

petition for writ of certiorari on February 20, 2018. The petition was timely. See Sup.

Ct. R. 18.3; 28 U.S.C. § 2101(c). Jurisdiction exists pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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.

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 v. Sec’y, Fla. Dep’t of

Corr., 638 F.3d 1358, 1358 (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 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 (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. III 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

especially heinous, atrocious, or cruel. The trial court found several nonstatutory

| ‘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 the admissibility of the Indiana conviction).

4

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 raising two claims: 1) whether the Sixth Amendment requires a pre-trial inquiry

into retained counsel effectiveness; and 2) whether the jury instructions sufficiently

defined mitigation. 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

2 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.

> The fourteen claims were: 1) ineffective assistance of trial counsel at the guilt phase and

violations of Brady v. Maryland, 373 U.S. 88 (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 Ring v. Arizona, 536 U.S. 584 (2002); 8) unconstitutionality of execution by

electrocution and lethal injection; 9) 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.

5

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

habeas petition raising four claims of ineffectiveness of appellate counsel.” Branch,

4 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 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.

5 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. 1013, 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.

6

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 182-page

habeas petition in federal court, raising seven issues.° Branch v. 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

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. Dep't

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

4th DCA 1973), inquiry.

8 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.

7

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. III 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. § 1983 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. Dep't 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 I). 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).

The Florida Supreme Court recently affirmed the trial court’s denial of the Hurst

claim. Branch v. State, 2018 WL 495024 (Fla. Jan. 22, 2018) (SC17-1509).

2018 warrant litigation

On January 19, 2018, Governor Scott signed a warrant scheduling Branch’s

execution for Thursday, February 22, 2018, at 6:00 p.m.

On January 29, 2018, Branch, represented by Capital Collateral Regional Counsel -

North (CCRC-N), and the Capital Habeas Unit of the federal public Defender’s Office

(CHU), filed a successive postconviction motion raising two claims. (2018 Succ. PC

207-230). The two claims were: 1) a claim based on a combination of Atkins v.

Virginia, 536 U.S. 304 (2002), and Hoper v. Simmons, 543 U.S. 551 (2005), asserting

that the Eighth Amendment prohibition on execution should be extended to cognitively

immaturity; and 2) a claim that 24 years on death row violates the Eighth Amendment

prohibition on cruel and unusual punishment. On January 30, 2018, the State filed

an answer to the successive postconviction motion. (2018 Succ. PC 1060-1088). On

February 1, 2018, the trial court summarily denied the successive postconviction

motion and denied the motion to stay as well. (2018 Succ. PC 1132-1138).

Branch appealed to the Florida Supreme Court raising three issues: 1) whether the

trial court properly summarily denied the Roper v. Simmons, 543 U.S. (2005), claim;

2) whether the trial court properly summarily denied the Lackey v. Texas, 514 U.S.

1045 (1995), claim; and 3) whether the trial court abused its discretion in denying the

public records demands of the Department of Corrections for the expiration date of the

drugs used in the lethal injection protocol and the demands of the Medical Examiner’s

Office for the autopsy report from the Hannon execution.

On February 15, 2018, following briefing, the Florida Supreme Court affirmed the

trial court summary denial of the successive postconviction motion. Branch v. State,

___ So. 3d __, 2018 WL 897079 (Fla. Feb. 15, 2018) (SC18-190; SC18-218).

On February 20, 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.

10

REASON FOR DENYING THE WRIT

ISSUE I

WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION OF

THE FLORIDA SUPREME COURT HOLDING THAT THE PROHIBITION

ESTABLISHED IN ROPER V. SIMMONS, 543 U.S. 551 (2005), DOES NOT

APPLY TO A CAPITAL DEFENDANT WHO WAS NEARLY 22 YEARS OLD

AT THE TIME OF THE MURDER?

Petitioner Branch seeks review of the Florida Supreme Court’s decision holding

that prohibition on the execution of minors established in Roper v. Simmons, 543 U.S.

551 (2005), does not extend to capital defendants over 17 years old at the time of the

murder. Branch claims, based on recent articles regarding human brain development

showing that the human brain is not fully developed until a person is 26 years old, that

although he was nearly 22 years old at the time of the murder, he is the functional

equivalent, in terms of cognitive maturity, of a minor. But, as the Florida Supreme

Court concluded, the claim is procedurally barred. Furthermore, there is no conflict

between the Florida Supreme Court’s decision and this Court’s jurisprudence. This

Court was well aware in Hoperand specifically noted that drawing a bright-line at 18

years of age would include mature teenagers and exclude immature adults but adopted

a categorical rule anyway. Nor is there any conflict between the Florida Supreme

Court’s decision and that of any other federal appellate court or state supreme court.

No appellate court has extended Roper to adult defendants. Nor is there any reason

to extend Roper. Age and cognitive immaturity may still be presented as mitigation

at sentencing regardless of Roper. This Court should deny review of this claim.

The Florida Supreme Court’s decision

Branch argued in the Florida Supreme Court that this Court’s decision in Roper

should be extended to cognitively immature adults.

The Florida Supreme Court rejected the claim, reasoning:

1l

Branch next contends that the circuit court erred when it summarily denied his

claim that he is ineligible for the death penalty. However, the Supreme Court

in Roper designated eighteen as the critical age for determining death

eligibility, stating:

Drawing the line at 18 years of age is subject, of course, to the

objections always raised against categorical rules. The qualities that

distinguish juveniles from adults do not disappear when an individual

turns 18. By the same token, some under 18 have already attained a

level of maturity some adults will never reach.... [Hlowever, a line must

be drawn.... The age of 18 is the point where society draws the line for

many purposes between childhood and adulthood. It is, we conclude, the

age at which the line for death eligibility ought to rest.

543 U.S. at 574, 125 S.Ct. 1183 (emphasis added in Florida Supreme Court

opinion). Branch argues for an expansion of Roper on the basis that newly

discovered evidence — in the form of scientific research with respect to

development of the human brain, as well as the evolution of state and

international law — mandates that individuals who committed murder in their

late teens and early twenties be treated like juveniles.’ The circuit court

properly denied this claim without an evidentiary hearing.

First, this issue is procedurally barred. The trial court's order sentencing

Branch to death found that Branch's age was not a mitigating circumstance:

The defendant was twenty-one years of age at the time of this offense.

There was testimony from the defendant's brother and grandfather that

he was not particularly mature for his age, and that he frequently

requested the assistance of relatives, primarily his grandfather, in

making important decisions. The defendant did not, however, appear

to be mentally deficient in any way. He assisted his counsel throughout

trial, and testified at trial with great specificity and detail. The

defendant's age at the time of the crime is not a mitigating factor.

On direct appeal, Branch did not challenge the trial court's rejection of age as

a mitigating circumstance. Furthermore, the Supreme Court decided Roperon

March 1, 2005. Branch filed the habeas petition in Branch JJ on August 31,

2005, and he did not assert that he was ineligible for execution pursuant to

7 Branch further relies upon American Bar Association Resolution 111 which “urges each

jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or

execution of any individual who was 21 years old or younger at the time of the offense.” ABA House of

Delegates Resolution 111 (adopted Feb. 5, 2018),

https://www.americanbar.org/content/dam/aba/images/abanews/mym2018res/111.pdf. The resolution is

based on the same considerations as those presented by Branch in these proceedings. See, e.g., A.B.A.

Death Penalty Due Process Rev. Project & Sec. Civ. Rts. & Soc. Just., Report to the House of Delegates

3 (2018) (“The newly-understood similarities between juvenile and late adolescent brains, as well as the

evolution of death penalty law and relevant standards under the Eighth Amendment lead to the clear

conclusion that individuals in late adolescence should be exempted from capital punishment.”).

12

oper. Accordingly, this claim is waived as it could have been raised

previously.

Second, we have rejected similar claims on the basis that scientific research

with respect to brain development does not qualify as newly discovered

evidence. For example, in Morton v. State, 995 So.2d 233, 245 (Fla. 2008), the

defendant claimed that a 2004 brain mapping study established that sections

of the human brain are not fully developed until the age of twenty-five. He

argued this constituted newly discovered evidence which required a reweighing

of his age—nineteen-and-a-half years old at the time of the murder—as a

mitigating circumstance. /d. In rejecting this claim, we stated:

We have previously rejected recognizing “new research studies” as

newly discovered evidence if based on previously available data. See

Schwab [v. State, 969 So.2d 318, 325 (Fla. 2007)I (citing Diaz v. State,

945 So.2d 1186, 1144 (Fla. 2006) (concluding doctor's letter addressing

lethal injection research was not newly discovered evidence because

conclusions in letter were based on old data)). Although this 2004 brain

mapping study had not yet been published at the time of Morton's

trials, Morton or his counsel could have discovered similar research at

that time that stated that the human brain was not fully developed

until early adulthood. See Jay D. Aronson, Brain Imaging, Culpability

and the Juvenile Death Penalty, 13 Psychol. Pub. Pol'y & L. 115, 120

(2007) (“In the past few decades ... neuroscientists have discovered that

two key developmental processes, myelination ... and pruning of neural

connections, continue to take place during adolescence and well into

adulthood .... [Blrain regions responsible for basic life processes and

sensory perception tend to mature fastest, whereas the regions

responsible for behavioral inhibition and control, risk assessment,

decision making, and emotion maturing take longer (Yakovlev &

Lecours, 1967).”). Therefore, the 2004 study would not constitute newly

discovered evidence and the trial court correctly denied this claim

without an evidentiary hearing.

Id. at. 245-46 (some alterations in original). We further rejected on the merits

Morton's claim that he was entitled to relief pursuant to Roper:

Hoper has no application here where the facts are undisputed that

Morton's chronological age was above nineteen at the time he

committed the crimes. Because it is impossible for Morton to

demonstrate that he falls within the ages of exemption, his claim is

facially insufficient and it was proper for the court to deny Morton a

hearing on this claim.

Id. at 245.

Similarly, in Davis v. State, 142 So.3d 867 (Fla. 2014), the defendant—who

was under an active death warrant— contended that he was not eligible for the

death penalty because, despite his chronological age of twenty-five at the time

of the murder, he was the “functional equivalent of a child.” Jd. at 870. The

defendant relied upon “allegedly newly discovered evidence regarding the

13

effects of alcoholism and sexual abuse on brain development in children, and

... Roper.” Id. at 874. This Court concluded that the evidence presented by the

defendant was not newly discovered and, even if it was, the claim would still

fail on the merits:

The studies cited by Davis, addressing the effects of alcoholism and

sexual abuse on brain development, do not constitute newly discovered

evidence. This Court has previously stated that it “has not recognized

‘new opinions' or ‘new research studies' as newly discovered evidence.”

Schwab v. State, 969 So.2d 318, 325 (Fla. 2007). The articles that Davis

relies upon fall squarely within this subject area and therefore do not

constitute newly discovered evidence. See Farina v. State, 992 So.2d

819 (Fla. 2008) (table decision) (holding that a “study on brain mapping

is not newly discovered evidence”); Schwab, 969 So.2d at 325

(concluding that “two recent scientific articles regarding brain anatomy

and sexual offense” did not constitute newly discovered evidence).

Further, as explained above, even if these recently published articles

were considered newly discovered evidence, Davis still fails to put forth

a cognizable claim. The United States Supreme Court's decision in

oper prohibits the execution of those individuals “who were under the

age of 18 when their crimes were committed.” 543 U.S. at 578, 125 S.Ct.

1183. In interpreting the Supreme Court's decision, this Court has

previously stated that “Roper only prohibits the execution of those

defendants whose chronological age is below eighteen.” Hill fv. State,

921 So.2d 579, 584 (Fla. 2006) ]. Therefore, because Davis was over the

age of eighteen when he committed murder, Roper does not apply, and

his claim is without merit.

Id. at 875-76.

Finally, the United States Supreme Court has continued to identify eighteen

as the critical age for purposes of Eighth Amendment jurisprudence. See Miller

v. Alabama, 567 U.S. 460, 465, 182 S.Ct. 2455, 188 L.Ed.2d 407 (2012)

(prohibiting mandatory sentences of life without parole for homicide offenders

who committed their crimes before the age of eighteen); Graham v. Florida, 560

U.S. 48, 74-75, 180 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (prohibiting sentences

of life without parole for nonhomicide offenders who committed their crimes

before the age of eighteen). Therefore, unless the United States Supreme Court

determines that the age of ineligibility for the death penalty should be

extended, we will continue to adhere to Hoper.

Accordingly, Branch is eligible for execution because he was not under the age

of eighteen at the time he murdered [the victim], and the circuit court properly

denied this claim without an evidentiary hearing.

Branch v. State, __ So.3d __,2018 WL 897079, *3-*5 (Fla. Feb. 15, 2018) (SC18-190)

(footnotes included but renumbered).

14

Procedurally barred under state law

This Court normally does not grant review of issues that are procedurally barred

under a state procedural rule out of respect for state courts. Adams v. Robertson, 520

U.S. 88, 90 (1997) (stating it would be “unseemly in our dual system of government”

to disturb the finality of state judgments on a federal ground that the state court did

not have occasion to consider and noting such a rule “serves an important interest of

comity”); cf Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016) (finding California’s

procedural rule which requires criminal defendants to raise available claims on direct

appeal to be an independent and adequate state procedural rule precluding federal

habeas review). A defendant who has not properly presented the claim to the state

courts free of procedural hurdles should not be heard in this Court.

The Florida Supreme Court concluded that the Roper claim was procedurally

barred on two grounds: 1) because Branch did not raise a claim in the direct appeal

that the trial court had improperly rejected his age as mitigating; and 2) because

Branch did not raise a Roperclaim in his initial state habeas petition even though the

first habeas petition was filed months after this Court’s decision in Roper was issued.

In his petition to this Court, opposing counsel does not dispute the existence of

either of these two procedural bars. Rather, opposing counsel insists that the

procedural bar does not present a hurdle to this Court’s review because the Florida

Supreme Court’s procedural holding was interwoven with its federal constitutional law

holding on the merits. Opposing counsel seems confused as to the concept of

alternative holdings. Massachusetts v. United States, 333 U.S. 611, 623 (1948)

(explaining that when a case is decided on two grounds, both grounds are effective);

Bravo v. United States, 532 F.8d 1154, 1162 (11th Cir. 2008) (explaining that

“alternative holdings are not dicta, but instead are as binding as solitary holdings”

citing cases). Alternative holdings are not automatically interwoven as opposing

15

counsel would have it. The Florida Supreme Court’s discussion of the procedural issue

was separate and distinct from its discussion of the substantive Eighth Amendment

issue. The Florida Supreme Court’s holding as to the procedural issue was not

interwoven with its holding as to the merits of the issue. They were true alternative

holdings which does present a hurdle to this Court’s review. Regardless of any holding

from this Court regarding the reach of Roper, this Eighth Amendment claim would still

be procedurally barred under state law.

This Court should not grant review of an issue that is procedurally barred under

state law. The state law procedural bar is the first reason this Court should deny

review.

No conflict with this Court’s Eighth Amendment jurisprudence

There is no conflict between the Florida Supreme Court’s decision in this case and

this Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005), or Moore v. Texas, 137

S.Ct. 1039 (2017). See Sup. Ct. R. 10(c) (listing conflict with this Court as a

consideration in the decision to grant review).

The Eighth Amendment prohibition on the execution of minors established in

foperonly applies to those under 18 years of age. Roperis limited to chronological age,

it does not extend to cognitive maturity. Branch is seeking to expand oper from

minors to adults. Branch is seeking to expand Ropernot merely to those over 18 years

old but to those over 21 years of age. Branch was born on February 7, 1971, and this

murder occurred on January 11, 1998. Branch was nearly 22 years old at the time of

the murder. Branch was exactly 21 years and 11 months old in January 1993. Indeed,

he was just 27 days shy of his twenty-second birthday.

The Hoper Court was well aware that drawing a bright-line rule based on

chronological age would include mature 17 year olds in the prohibition but exclude

16

immature 19 year olds. The Roper Court noted that drawing “the line at 18 years of

age is subject, of course, to the objections always raised against categorical rules,”

because many of the qualities that distinguish juveniles from adults do not just

“disappear when an individual turns 18,” but nevertheless held that “a line must be

drawn.” Roper, 543 U.S. at 574. This Court specifically noted that drawing a brightline at 18 years of age would include mature teenagers and exclude immature adults

but adopted a categorical rule anyway. There is no conflict with Roper.

The Florida Supreme Court’s decision in this case is also in line with this Court’s

decisions in Graham v. Florida, 560 U.S. 48, 74-75 (2010), and Miller v. Alabama, 567

U.S. 460, 465 (2012), which also drew the Eighth Amendment line at 18 years of age.

Furthermore, Branch is not a particularly compelling defendant to make this claim.

Branch is not a defendant who was under 21 years old, of low IQ with some mental

illness. Branch has none of those characteristics. He was nearly 22 years old at the

time of the murder. And Branch has higher intellectual functioning than the average

person. Branch’s own postconviction mental health expert, Dr. Henry L. Dee, reported

that Branch has a full scale IQ of 115. Nor does he suffer from any mental illness.

Both of the defense mental health experts, Dr. Larson and Dr. Dee, found that Branch

does not suffer from any significant mental illness. Rather, both defense. experts

concluded that Branch had some features of anti-social personalty disorder.®

Nor does the Florida Supreme Court's decision conflict with this Court’s decision

in Moore v. Texas, 137 S.Ct. 1039 (2017). In Moore, this Court held that the additional

factors used by Texas courts to determine intellectual disability, which were an

“invention” of the state court that were not “aligned” with the medical community’s

views, created an unacceptable risk that a person with intellectual disabilities will be

8 Branch’s IQ of 115 means that neither Atkins v. Virginia, 536 U.S. 304 (2002),

nor Hall v. Florida, 134 S.Ct. 1986 (2014), has any relevance to this case.

17

executed in violation of the Eighth Amendment. Moore was sentenced to death but

argued in postconviction that he was intellectually disabled and therefore exempt from

execution under Atkins v. Virginia, 536 U.S. 304 (2002). The state postconviction court

held an evidentiary hearing in 2014 and then made factual findings and determined

that Moore was intellectually disabled using the current clinical standards. Moore, 137

S.Ct. at 1045-46. But a Texas appellate court reversed using the additional factors

from the earlier case of Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). The

Texas appellate court suggested other causes for Moore’s adaptive deficits rather than

intellectual disability such as abusive childhood, undiagnosed learning disorders,

multiple elementary school transfers, racially motivated harassment and violence at

school, and a history of academic failure, drug abuse, and absenteeism. Moore,137

S.Ct. at 1047. This Court reversed on Eighth Amendment grounds.

Texas had adopted the 1992 edition of the American Association on Mental

Retardation (AAMR) manual’s definition of intellectual disability as the legal standard

for determining intellectual disability, but Texas courts also looked at “seven

evidentiary factors” that were not part of the clinical definition from /x parte Briseno.

Moore, 137 S.Ct. at 1046.2 The Briseno Court did not cite to any authority, medical

or judicial, as the source for these factors. Jd. at 1046. The additional Briseno factors

were in this Court’s words, “wholly nonclinical.” Jd. at 1053. This Court also noted that

no state legislature had adopted the Briseno factors or any similar factors. /d. at 1052.

® The additional Briseno factors were: 1) did those who knew the person best during the

developmental stage — his family, friends, teachers, employers, authorities — think he was mentally

retarded at that time, and, if so, act in accordance with that determination; 2) has the person formulated

plans and carried them through or is his conduct impulsive: 3) does his conduct show leadership or does

it show that he is led around by others; 4) is his conduct in response to external stimuli rational and

appropriate, regardless of whether it is socially acceptable: 5) does he respond coherently, rationally, and

on point to oral or written questions or do his responses wander from subject to subject; 6) can the person

hide facts or lie effectively in his own or others’ interests; and 7) putting aside any heinousness or

gruesomeness surrounding the capital offense, did the commission of that offense require forethought,

planning, and complex execution of purpose. Moore, 137 S.Ct. at 1046, n.6.

18

This Court noted that Texas itself did not follow Briseno in other contexts, such as

assessing students for intellectual disabilities. Jd. This Court characterized the

Briseno factors as an “outlier.” Jd. This Court found that the state court’s use of the

Briseno factors deviated from current clinical standards and from the older clinical

standards as well. /d. at 1050. This Court concluded that both by “design and in

operation, the Sriseno factors create an unacceptable risk that persons with

intellectual disability will be executed.” Jd, at 1051.'°

Branch, relying on Moore, argues whenever there is a new scientific consensus that

new scientific consensus trumps this Court’s precedent. Opposing counsel is

overeading Moore. The Moore Court explained that, while the views of medical experts

do not “dictate” a definition of intellectual disability determination, any definition must

be “informed” by the medical community's definition and a state’s definition may not

“disregard” the medical definition. Moore, 137S.Ct. at 1048-49. And, while states have

“some flexibility” in the definition, they do not have “unfettered discretion,” and the

“medical community’s current standards supply one constraint” on the states’ leeway.

fd. at 1052-58. Opposing counsel would have the emerging scientific consensus

regarding human brain development trump the holding of this Court in Roper. But the

Moore Court specifically stated that a scientific consensus does not “dictate” the law.

Psychologists do not decide the law; Justices do.

Moore did not overrule Roper. Indeed, the Moore Court cited Roper a few times

and mainly for general principles of Eighth Amendment law, such as the “Eighth

Amendment prohibits cruel and unusual punishments and reaffirms the duty of the

10 Chief Justice Roberts in his dissenting opinion observed that the Court unanimously agreed

that the Briseno factors were an “unacceptable” method of enforcing the guarantee of Atkins, and that

. the state trial court erred in using them to analyze adaptive deficits. Moore, 137 S.Ct. at 1053 (Roberts,

C.J., dissenting). The dissent agreed that the Briseno factors were “incompatible” with the Eighth

Amendment. /d. at 1060.

19

government to respect the dignity of all persons.” Moore, 137 S.Ct. at 1048 (citing

Roper, 543 U.S. at 560). Roperis still the law of the land after Moore.

The Florida Supreme Court’s decision in this case does not conflict with either this

Court’s decision in Foper or this Court’s decision in Moore. There is no conflict

between the Florida Supreme Court and this Court.

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 federal appellate courts and state supreme courts as a

consideration in the decision to grant review). In the absence of such conflict, certiorari

is rarely warranted.

All of the federal circuit courts that have reached the issue of expanding Roper

have rejected the invitation to do so. United States v. Bernard, 762 F.3d 467, 482 (5th

Cir. 2014) (denying a certificate of appealability (COA) on a claim seeking to extend

Roper to “mental age” in a case where the defendant who was 19 years old when he

committed the murder citing Parr v. Quarterman, 472 F.3d 245, 261 (5th Cir. 2006));

Moreno v. Dretke, 450 F.3d 158, 166 (5th Cir. 2006) (denying a COA on aclaim seeking

to extend Roper to a defendant who was 18 years old when he committed the murder

but formed the plan when he was under 18 years old); Jn re Garner, 612 F.3d 533, 534

(6th Cir. 2010) (denying permission to file a successive habeas petition seeking to

extend FHoper to a defendant who was 19 years old at the time of the murder based on

“mental age”); Melton v. Sec'y, Fla. Dep't of Corr., 778 F.3d 1234, 1237 (11th Cir. 2015)

20

(denying a COA on aclaim seeking to extend Roperto a defendant who committed the

murder when he was 18 years old but committed the crime used as an aggravator when

he was under 18 years old). Some of these federal appellate courts have rejected

invitations to expand Hoperon more compelling facts than those Branch presents.

Branch may not rely on Cruz v. United States,__ F.Supp.3d ___, 2017 WL 3638176

(D. Conn. Apr. 3, 2017), to establish conflict among federal appellate courts. Pet. at 12.

The Cruz ruling is from a federal district court, not a federal appellate court. This

Court’s rule governing considerations as to whether to grant review looks to conflict

from decisions of the United States courts of appeals only. Sup. Ct. R. 10(b).

Furthermore, as this Court has observed, a federal district court’s ruling is not binding

precedent to any court, not even the single judge who issued the ruling. Camreta v.

Greene, 563 U.S. 692, 709, n.7 (2011) (explaining that a “decision of a federal district

court judge is not binding precedent in either a different judicial district, the same

judicial district, or even upon the same judge in a different case”). And the ultimate

ruling in Cruz was that the habeas petitioner was entitled to a hearing, not relief."'

Cruz does not establish any conflict among the federal courts.

Various state supreme courts have rejected any expansion of Aoper as well.

Thompson v. State, 153 So. 3d 84, 177 (Ala. Crim. App. 2012) (refusing to extend Roper

to an 18-year-old who was “traumatized, abused, and mentally ill”); Bowling v.

Commonwealth, 224 S.W.3d 577 (Ky. 2006) (refusing to extend Roper to mental age

" There is no factual dispute in this case, as opposing counsel acknowledges in

his petition, but then oddly requests an evidentiary hearing regardless of that

acknowledgment. In the state trial court in the current warrant litigation, opposing

counsel admitted that, because the State did not dispute the experts’ reports or the

brain development articles, there was no need for an evidentiary hearing.

Furthermore, the district court in Cruzmistakenly found there was “an issue of

material fact as to whether the line established in Mil/ershould be moved.” Cruz, 2017

WL 3638176 at *10. But the expansion of Mil/erbeyond 18 years of age is not an issue

of fact, it is a question of law.

21

rather than chronological age); State v. Tucker, 181 So.3d 590, 627 (La. 2015) (refusing

to extend Hoper to a defendant who was “barely over the age of 18” and had an IQ of

74); State v. Campbell, 983 So.2d 810, 830 (La. 2008) (refusing to extend Roper to

mental age in a case where the defendant was 18 years old when he committed the

murder); Mitchell v. State, 235 P.3d 640, 659 (Okla. Crim. App. 2010) (refusing to

extend FHoper in a case where the defendant was only two weeks over 18 years old

when he committed the murder).

Branch may not rely on Commonwealth v. Bredhold, Ky. Fayette Cir. 7th Div. No.

14-CR-161 (Aug. 1, 2017), to establish conflict among the state courts of last resort.

Pet. at 20. In Bredhold, a Kentucky common pleas court extended Roper to capital

defendants under 21 years of age at the time of the crime and declared Kentucky’s

death penalty statute unconstitutional as applied to those who were under 21-yearsold. But the Bredhold ruling is from a state trial court, not a state supreme court.

This Court’s rule governing considerations as to whether to grant review looks to the

decisions of the state courts of last resort only. Sup. Ct. R. 10(b). Furthermore, the

ruling is in direct conflict with the holdings of the Kentucky Supreme Court. St. Clair

v. Commonwealth, 451 S.W.3d 597, 651 (Ky. 2014) (observing that nothing in Roper

suggests that the Constitution would bar the execution of an adult offender based on

mental age and stating that Roper set “a bright-line rule based on chronological age”);

Bowling v. Commonwealth, 224 S.W.3d 577 (Ky. 2006). The Bredhold ruling does not

22

represent the current law of Kentucky.'* Bredhold does not establish conflict among

the state supreme courts.

Bredhold does not help Branch anyway because its ruling was limited to those

under 21 years of age. Branch was over 21 years of age when he committed this

brutal murder and rape. So, Bredhold itself does not actually conflict with the Florida

Supreme Court’s decision in this case anyway.

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 the second reason to deny the petition.

The Eighth Amendment prohibition and brain development articles

Even if there is a scientific consensus emerging regarding when the human brain

is fully developed, that does not mean that society cannot hold a person who was

nearly 22 years old at the time of the murder fully responsible for his actions. A

2-year-old, a 17-year-old; an 18-year-old, and nearly 22-year-old are not the same in

terms of their brain development. There is a continuum. And this Court is entitled to

draw the Eighth Amendment line on that continuum and, in fact, drew that line at 18

years old in Aoper.

Any extension of Roper to include capital defendants under 21 years old would not

benefit Branch. Branch was over 21 years old when he committed this brutal murder

It does not represent the current law of the Sixth Circuit, which covers

Kentucky, either. Jn re Ronald Phillips, 2017 WL 4541664, *3 (6th Cir. July 20, 2017)

(No. 17-3729) (denying authorization to file a successive federal habeas petition;

rejecting a claim that Ropershould be extended beyond 18 year old based on cognitive

immaturity; and stating that “no authority exists at the present time,” to support the

argument that the capital defendant who 19 years old at the time he committed the

capital offense was ineligible for the death penalty). The Sixth Circuit has rejected the

exact same argument regarding cognitive immaturity based brain development studies

that Branch raises in his petition.

23

[OCR skipped on page(s) 31-34]

[Read from a scan; the first 30 pages.]