Opposition Brief — Michael Duane Zack, III, Petitioner v. Florida, et al.

CAPITAL CASE

No. 17-8134

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL DUANE ZACK III, Petitioner,

v.

STATE OF FLORIDA, Respondent.

On Petition for a Writ of Certiorari

to the Florida Supreme Court

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

PAMELA JO BONDI

Attorney General of Florida

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

CHARMAINE M. MILLSAPS

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY

GENERAL

CAPITAL APPEALS

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3584

(850) 487-0997 (FAX)

capapp@myfloridalegal.com

CAPITAL CASE

QUESTIONS PRESENTED

I. Whether this Court should grant review of a decision of the Florida

Supreme Court holding that Hall v. Florida, 134 S.Ct. 1986 (2014), does

not apply to a case where all of the iq scores are above the statistical

error of measurement?

II. Whether this Court should grant review of a decision of the Florida

Supreme Court holding that no evidentiary hearing was required to

determine the other prongs of the test for intellectual disability where the

defendant does not meet the first prong?

III. Whether this Court should grant review of a decision of the Florida

Supreme Court that did not address the issue of whether the sixth

amendment requires a jury determination of intellectual disability?

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED.......... 0.0.00... cece cece een ees i

TABLE OF CONTENTS... 0.0... 0c cece eee eet e ences ii

TABLE OF AUTHORITIES. ....... 0.000... ccc cee eee cece eens iv

OPINION BELOW. .......0. 0... cee eee ence eee ene e eee 1

JURISDICTION. ... 0... eee e eee eee nee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............ 3

STATEMENT OF THE CASE AND PROCEDURAL HISTORY. ............... 4

REASON FOR DENYING THE WRIT. ............ 0.0.00. 0 eee eee eee ee 11

ISSUE LT... eee eee tent n en eeaes 11

WHETHER THIS COURT SHOULD GRANT REVIEW OF A

DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT

HALL V. FLORIDA, 134 S.Ct. 1986 (2014), DOES NOT APPLY TO A

CASE WHERE ALL OF THE IQ SCORES ARE ABOVE THE

STATISTICAL ERROR OF MEASUREMENT?

The Florida Supreme Court’s decision... ............. 0000000 e eee 11

Florida’s test for intellectual disability...................0000005 12

First prong of significantly subaverage intellectual functioning... 13

Third prong of onset... 2.2.0.0... ccc eee eee teens 14

No conflict with this Court’s Eighth Amendment jurisprudence. .... . 15

No conflict with any federal appellate court or state supreme court... 18

ii

ISSUE TL... nee eee teen e enna 20

WHETHER THIS COURT SHOULD GRANT REVIEW OF A

DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT

NO EVIDENTIARY HEARING WAS REQUIRED TO DETERMINE

THE OTHER PRONGS OF THE TEST FOR INTELLECTUAL

DISABILITY WHERE THE DEFENDANT DOES NOT MEET THE

FIRST PRONG?

The Florida Supreme Court’s decision..............00000c0 cence 21

No conflict with this Court’s Eighth Amendment jurisprudence...... 21

No conflict with any federal appellate court or state supreme court... 23

ISSUE TID. 2. eee eect nent teenies 25

WHETHER THIS COURT SHOULD GRANT REVIEW OF A

DECISION OF THE FLORIDA SUPREME COURT THAT DID NOT

ADDRESS THE ISSUE OF WHETHER THE SIXTH AMENDMENT

REQUIRES A JURY DETERMINATION OF INTELLECTUAL

DISABILITY?

The Florida Supreme Court’s decision................20000 eevee 25

Not properly presented.........0...000 0c eee ec eee eee 26

No conflict with this Court’s Sixth Amendment jurisprudence. ...... 26

No conflict with any federal appellate court or state supreme court... 29

CONCLUSION. ..... 0... ccc ccc ee en eee nee eee eee ene 32

CERTIFICATE OF SERVICE. ......... 0... ccc cece teen e eens 33

ill

TABLE OF AUTHORITIES

CASES PAGE(S)

Adams v. Robertson,

520 U.S. 83 (1997)... cee ee eee ee eee eee e eee eee eens 26

Adarand Constructors, Incorporated v. Mineta,

5384 U.S. 108 (2001)... 6 ce ee ete eee ee eeeees 26

Alleyne v. United States,

570 U.S. 99 (2013)... eee ete e tee eevee eee 29

Apprendi v. New Jersey,

530 U.S. 466 (2000)... 0. ce tee eee eeeeeas 29

Atkins v. Virginia,

536 U.S. 304 (2002)... 6. eee eee en eee passim

Betterman v. Montana,

136 S.Ct. 1609 (2016). 2... ee eee e eee nee e ees 27

Bowling v. Commonwealth,

163 S.W.3d 361 (Ky. 2005). 2.0.0... cc ccc ccc cee ccc cceceuceuceeecseveees 30

Braxton v. United States,

500 U.S. 844 (1991)... cc ee eee eee eee e eee ee ee ees 18,29

Brown v. State,

959 So.2d 146 (Fla. 2007). 2... ec eee eee eee eee 10

Cherry v. State,

781 So. 2d 1040 (Fla. 2000)... 0... ec ee cece eee e eee 6

Commonwealth v. Bracey,

986 A.2d 128 (Pa. 2009). 2... cc eee eee eee eee eens 30

Commonwealth v. Sanchez,

386 A.3d 24, 62 (Pa. 2011). 2... cc ee eee eee eee 30

Ford v. Wainwright,

AT7 U.S. 399 (1986)... nec e eee eee nen e ee eeeenes 12

Glover v. State,

226 So.3d 795 (Fla. 2017). 2... ce eee ees 13,14,22

Haliburton v. State,

163 So.3d 509 (Fla. 2015). 2... ccc eee eee eee ee eeee 8

Hall v. Florida,

134 S.Ct. 1986 (2014). 2. ce eee ee eee eee passim

Iv

Head v. Hill,

587 S.E.2d 613 (Ga. 2008)... 6... ce eee eee ees 30

Holland v. Florida,

560 U.S. 631 (2010)... 0... ee eee eee ete e enna 7

Howell v. State,

151 S.W.3d 450 (Tenn. 2004). 2.0... ee ee etc e ee eee 30

Hurst v. Florida,

136 S.Ct. 616 (2016). 2... ccc teen eee eeenees 25-28

Hurst v. State,

202 So.3d 40 (Fla. 2016)... 0.0.0... 0. cee eee eee e ences 27

In re Johnson,

334 F.3d 408 (5th Cir. 2008)... 0.0.0... eee eee ee eee eee aee 29

Jones v. State,

281 So.3d 374 (Fla. 2017). 0... een ence ween eee ees 13

Michigan v. Long,

463 U.S. 1032 (1988)... 0.0. cee cence eee ee ee ee neaee 27

Moore v. Texas,

137 S.Ct. 1089 (2017). 2. ee eee ence eens passim

Oats v. Jones,

220 So.3d 1127 (Fla. 2017). 2... ee eee eee 26,27,29,31

Oats v. State,

181 So.8d 457 (Fla. 2015). 0. cc nee ee ee eee eee eens 9

Parks v. State,

816 So. 2d 219 (Fla. lst DCA 2005). 0... ce eee ees 6

Pruitt v. State,

834 N.E.2d 90 (Ind. 2005)... 2... ccc eee eeeeeeeen eee e nas 30

Quince v. State,

43 Fla. L. Weekly $175, 2018 WL 1755470 (Fla. Apr. 12, 2018). .............. 22

Ring v. Arizona, :

536 U.S. 584 (2002)... cette teen e eens 27

Russell v. State,

849 So.2d 95 (Miss. 2008)... 0.0.0... ee ee eee eees 30

Salazar v. State

188 So.3d 799 (Fla. 2016)... 0. ccc eee eee eeeee 13,22

State v. Agee,

364 P.3d 971 (Ore. 2015)... ce ee eee nee eee eee enna 23

State v. Flores,

93 P.3d 1264 (N.M. 2004)... ce ccc ete eee ene ee ee ee en eee 30

State v. Grell,

135 P.3d 696 (Ariz. 2006). 2... ce eee cence eee teen eae 30

State v. Herring,

76 So0.38d 891 (Fla. 2011)... eee eee eee e teen nee 10

State v. Laney,

627 S.E.2d 726 (S.C. 2006)... eee ee eee teen eee 30

State v. Were,

890 N.E.2d 263 (Ohio 2008). 2.0... ec ee eee eee nee e eas 30

Strickland v. Washington,

466 U.S. 668 (1984)... ee ee eee eee e teen eee eeees 22,23

Walker v. True,

399 F.3d 315 (4th Cir. 2005)... ee ee eee teen aee 30

Walls v. State,

218 So.3d 340 (Fla. 2016), 0... eee ee ee eee eee eee cena 9

Wright v. Florida,

138 S.Ct. 360 (Oct. 16, 2017). 0. cc ce ee teen eee e eee e ene 10

Wright v. State,

213 So.3d 881 (Fla. 2017). 2... ee ee eee ee nee eeees 10

Zack v. Crews,

1384 8.Ct. 156 (2018). 2... eee eee eee e ee eeeeees 7

Zack v. Crosby,

607 F.Supp.2d 1291 (N.D. Fla. Nov. 17, 2008). ............ 0.00 0c ce ee eee 6,7

Zack v. Florida,

531 U.S. 858 (2000)... eee ee cece eee ees 4

Zack v. Sec’y, Fla. Dept. of Corr.,

2018 WL 388240 (11th Cir. Jan. 12, 2018). ... 0... ee eee ee 7,14

Zack v. State,

228 So.3d 41 (Fla. 2017)... ete ee eee eee eees passim

Zack v. Tucker,

704 F.3d 917 (11th Cir. 2018)... 00. ee eee ec eee eens 7

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VIL... 0... eens passim

U.S. Const. Amend. XIV... 0. ee ee tent e ene 3

Art. V, § 3(b)(1), Fla. Const... 0.000 eee enn enes 6

Art. V, § 10, Pa. Const... 2... ee ence eens 30

STATUTES

28 U.S.C. § 1257(a). 2. ce eee eee e ene n eee 2

28 U.S.C. § 2101(c). 2. ee eee ent een eens 2

§ 921.137, Fla. Stat a.. .ne. was e+: + + + + ccm: ore cote + oe oe 5,9,13,22,27,28

RULES

Sup. Ct. R. 10.0... ee ce eee cee n eens 15,18,29,30

Sup. Ct. R. 13.8... 00. ee tne nee e een eee ee neee 2

Fla. R. Crim. P. 3.203. .....0....0 00. eens 5,6,9,13,27

IN THE

SUPREME COURT OF THE UNITED STATES

No. 17-8134

MICHAEL DUANE ZACK III, Petitioner,

v.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Zack v. State, 228 So.3d 41

(Fla. 2017) (SC15-1756).

JURISDICTION

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

successive postconviction motion was issued on June 15, 2017. Zack filed a motion for

rehearing. On October 12, 2017, the Florida Supreme Court denied rehearing. On

January 5, 2018, Zack filed an application for extension of time in this Court to file the

petition for writ of certiorari. On March 12, 2018, Zack filed a petition for writ of

certiorari in this Court. The petition is timely. See Sup. Ct. R. 13.3; 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

Zack was convicted of the robbery, sexual assault, and first-degree murder of

Ravone Kennedy Smith and sentenced to death. A day earlier, Zack had murdered

another young woman, Laura Rosillo, by beating her head against one of the tires and

strangling her. While that prior murder was used as evidence in the capital trial, it

was not used as an aggravating circumstance. Zack v. State, 753 So.2d 9, 16 (Fla. 2000)

(holding the trial court did not err in admitting evidence of other crimes during

two-week period prior to the capital murder, including the prior murder).

Penalty phase

At the penalty phase, Dr. Larson, who was called by the defense, testified that

Zack’s IQ was a full scale of 92. (T. X. 1866-1867). According to Dr. Larson, Zack’s

performance score was 104 and his verbal score was 84. (T. X. 1867). Dr. Mings, a

neuropsychologist, who was called by the State, testified at the penalty phase that

Zack had a full scale IQ of 86. (T. XI 1890).

Direct appeal

Zack raised 12 issues in the direct appeal to the Florida Supreme Court. Zack v.

State, 753 So.2d 9, 16, n.5 (Fla. 2000) (listing issues). The Florida Supreme Court

affirmed the convictions and death sentence. The United States Supreme Court denied

certiorari review on October 2, 2000. Zack v. Florida, 531 U.S. 858 (2000).

Initial postconviction motion

On October 18, 2002, Zack filed his first amended 3.850 motion raising six claims

in the state trial court. While Zack's collateral motion was pending in state court, the

United States Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002), which

held that the execution of a mentally retarded person is cruel and unusual punishment

in violation of the Eighth Amendment.

During the postconviction proceedings, Brett Turner, Ph.D. conducted a

neuropsychological evaluation for collateral defense counsel. Dr. Turner performed his

own WAIS-IIT IQ test in 2002, which showed Zack had a full scale IQ of 79. (PC IT 253).

However, the Dr. Turner’s written report also refers to a prior IQ test, performed in

1980, when Zack was 11 years old, showing his full scale IQ score of 92. (PC IT 241-256;

245).

In June of 2008, the trial court denied Zack’s rule 3.850 postconviction motion, and

the Florida Supreme Court affirmed that ruling on appeal. Zack v. State, 911 So.2d

1190 (Fla. 2005). The Florida Supreme Court noted that the “evidence in this case

shows Zack's lowest IQ score to be 79.” Zack, 911 So.2d at 1201. The Florida Supreme

Court directed Zack to file a motion pursuant to Florida Rule of Criminal Procedure

3.208 raising the Atkins claim. Zack, 911 So.2d at 1202.

Successive postconviction motion proceedings

On December 1, 2004, Zack filed a successive motion raising an Atkins claim. The

state trial court denied the Atkins claim without an evidentiary hearing. The state

trial court found: “A review of the expert trial testimony on this issue shows that not

one expert found Defendant's IQ to be near the statutory figure, 70, which would be

required to establish mental retardation. Because Defendant is not mentally retarded

as defined by Fla. Stat. 921.137, he is not entitled to the Eighth Amendment

protections afforded mentally retarded persons who may face the Death Penalty.”

The Florida Supreme Court’s first decision regarding intellectual disability

The Florida Supreme Court affirmed the denial of the Atkins claim. The Florida

Supreme Court’s order provides:

Michael Duane Zack, III, a prisoner under sentence of death, appeals the

circuit court's denial of his successive motion for postconviction relief under

Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const. Zack requests that we allow him an opportunity to file a

successive motion for postconviction relief based on a claim of mental

retardation, pursuant to Florida Rule of Criminal Procedure 3.203 and Atkins

v. Virginia, 536 U.S. 304 (2002).

Zack asserts that the circuit court erred by dismissing his successive motion

for postconviction relief with prejudice instead of holding it in abeyance until

the proceedings before us on his initial motion for postconviction relief were

final. Zack also asserts that he has produced sufficient evidence for a claim of

mental retardation.

In its order dismissing Zack's successive motion for postconviction relief,

which raised a mental retardation claim, the circuit court properly recognized

that it lacked jurisdiction to entertain the motion because Zack's initial motion

for postconviction relief raised a similar claim of mental retardation under

Atkins, and the appeal on the denial of this motion was pending in this Court.

However, the circuit court erred by considering the merits of the motion and

dismissing the motion with prejudice because it lacked the jurisdiction to do so.

See Parks v. State, 816 So. 2d 219 (Fla. 1st DCA 2005). However, we find that

although the circuit court erred in dismissing Zack's successive motion for

postconviction relief with prejudice, this error was harmless because Zack had

an opportunity to present an Atkins claim in his initial postconviction motion

and it was found to be without merit. The circuit court's determination was

affirmed by this Court. See Zack v. State, 911 So. 2d 1190 (Fla. 2005). Zack has

not provided any new evidence of mental retardation and previous evidence

demonstrates that his IQ was well above the statutory required figure of 70 or

below. See Cherry v. State, 781 So. 2d 1040 (Fla. 2000) (accepting expert

testimony that in order to be found mentally retarded, an individual must score

70 or below on an [IQ test). Accordingly, we affirm the circuit court's denial of

postconviction relief.

Zack v. State, SC05-968 (Fla. Sept. 20, 2007).

Federal habeas proceedings

Zack then filed a federal habeas petition which raised an Atkins claim. Zack v.

Crosby, 607 F.Supp.2d 1291 (N.D. Fla. Nov. 17, 2008). The federal district court found

most of the claims in the petition to be untimely but rejected the Atkins claim on the

merits. Zack v. Crosby, 3:05-cv-369-RH Doc. #36. Regarding the intellectual disability

claim, the district court found:

Mr. Zack has failed to put forward any evidence to establish that he satisfies

the first prong of an Atkins claim. At trial, Mr. Zack’s own expert, Dr. Larson,

testified that Mr. Zack’s IQ was 84 based on the Wechsler Intelligence Scale.

(R. at tab QQ at 1854, 1868). Dr. Larson also reviewed Mr. Zack’s score from

the Wechsler Intelligence Scale for Children that was administered when Mr.

Zack was about 12 years old. Jd. at 1865-67. That score reflected an IQ of 92.

Id. The state’s expert, Dr. Ming, testified that Mr. Zack’s IQ was 86,

determining that the improvement was due to the practice effect. Id. at

1978-79, 1986. During the postconviction proceedings, Mr. Zack arranged

another examination— administered after Atkins—which found that Mr. Zack’s

IQ was 79. (R. at tab CC, page 13 of Neuropsychological Evaluation.)

(Doc. #86 at 10). The district court observed that the “record developed at trial refutes

Mr. Zack’s allegation that he is mentally retarded.” (Doc. #36 at 12). The district court

concluded: “As the record already makes clear, four Wechsler Intelligence Scale tests

have uniformly concluded that Mr. Zack’s IQ is significantly above the minimum

threshold for mental retardation.” (Doc. #86 at 11).

The Eleventh Circuit, in an en banc opinion, affirmed the dismissal of many of the

claims in the habeas petition as untimely. Zack v. Tucker, 704 F.3d 917 (11th Cir.

2013) (en banc). Zack did not appeal the denial of his intellectual disability claim to

the Eleventh Circuit. The United States Supreme Court denied certiorari review of the

federal habeas petition on October 7, 2013. Zack v. Crews, 134 S.Ct. 156 (20138).

On August 25, 2014, Zack filed a 60(b)(6) motion to reopen his closed federal

habeas case in the district court arguing that the district court should find equitable

tolling based on Holland v. Florida, 560 U.S. 631 (2010). The district court denied the

60(b)(6) motion and the Eleventh Circuit affirmed concluding that there were no

extraordinary circumstances which justified reopening the case. Zack v. Sec'y, Fla.

Dept. of Corr., 2018 WL 388240 (11th Cir. Jan. 12, 2018) (14-14998).

Third successive postconviction motion

On May 26, 2015, Zack, now represented by Dawn Macready of Capital Collateral

Regional Counsel - North (CCRC-N), filed a third successive postconviction motion in

the state trial court raising a claim of intellectual disability based on Hall v. Florida,

134 S.Ct. 1986 (2014). On June 9, 2015, the State filed an answer. On July 2, 2015,

the trial court conducted a Huff hearing on the motion.

The trial court summarily denied the successive postconviction motion raising the

Hall claim. The trial court first addressed the retroactivity of Hall and relying on

Haliburton v. State, 163 So.38d 509 (Fla. 2015) (unpublished), concluded that the

Florida Supreme Court “implicitly” treated Hallas retroactive. Alternatively, the trial

court addressed the merits of the claim, concluding Zack was not entitled to any relief.

The trial court noted that most recently Zack was determined by Dr. Eisenstein to have

a full scale IQ of 80. The trial court noted the various IQ scores as 79, 80, 84, 86, and

92 with the lowest one being 79. Zack argued, based on his history of significant

difference between his verbal IQ scores and his performance IQ scores, his IQ scores

may not be indicative of his true abilities and that Hall should be given a “more

expansive interpretation” to cover such types of IQ scores. But the trial court rejected

that expansion of Hall because that was “not the holding of Hall.” Rather, as the trial

court observed, “Hall squarely holds” that individuals with IQ scores “between 70 and

75 or lower’ are entitled to present additional evidence in support of a claim of

intellectual disability. The trial court noted that the Supreme Court in Hall never said

a petitioner with an IQ of 78 would be entitled in “anyway to make up the difference

with other evidence of deficiencies.” The trial court concluded that Zack’s IQ scores did

“not place him within the range of concern contemplated in the Hall decision.” The

trial court summarily denied the successive motion.

Appeal of third successive motion

Zack appealed the trial court’s denial of his Hall claim to the Florida Supreme

Court.

On June 15, 2017, the Florida Supreme Court affirmed the trial court’s

summary denial of the Hall claim. This Florida Supreme Court concluded:

Zack's first claim is based on the trial court's summary denial of his motion

pursuant to a rule of law that has now been found unconstitutional under Hail.

During the pendency of this case, we determined that Hall applies retroactively

as a development of fundamental significance. Walls v. State, 213 So.3d 340,

346 (Fla. 2016).

A postconviction court's decision on whether to grant an evidentiary hearing

on a claim is a pure question of law, reviewed de novo. Mann v. State, 112

So.3d 1158, 1162 (Fla. 2013). A claim may be summarily denied if it is legally

insufficient or positively refuted by the record. Id. at 1161. To prevail on a

claim of intellectual disability, a defendant must establish three elements: (1)

significantly subaverage general intellectual functioning, (2) existing

concurrently with deficits in adaptive behavior, and (3) manifesting prior to age

18. § 921.137, Fla. Stat. (2016); Fla. R. Crim. P. 3.203.

Hall recognizes that intellectual disability “is a condition, not a number.” Hall,

134 S.Ct. at 2001. In a recent opinion, we found that Hall requires courts to

consider all three prongs of intellectual disability in tandem and that no single

factor should be dispositive of the outcome. See Oats v. State, 181 So.3d 457,

459 (Fla. 2015). However, Hail also states that a “defendant must be able to

present additional evidence of intellectual disability” where “a defendant's I.Q.

test score falls within the test's acknowledged and inherent margin of error.”

Hall, 134 S.Ct. at 2001. Generally, the standard error of measurement is

approximately five points. Jd. at 1998 (citing to Diagnostic and Statistical

Manual of Mental Disorders 28 (rev. 3d ed. 1987)). Thus, an “I.Q. score of 70

is considered to represent a band or zone of 65 to 75.” Id.

The trial court correctly found the significantly subaverage intellectual

functioning prong dispositive of Zack's intellectual disability claim based on

Zack's scores prior to age 18, which were all over 75. At the Huff hearing, Zack

presented his full range of scores, as well as evidence of adaptive deficits before

age 18. The record demonstrates five I.Q. scores for Zack: a score of 92 in 1980

when Zack was 11 years old, and four scores after Zack turned 18 — 84 and 86

in 1997 at 27 years of age, 79 in 2002, and 80 in 2015. While a holistic hearing

is required, defendants must still be able to meet the first prong of Hail.

Because Zack's current score is well above 75, and there are no scores in his

history below 75, it is unlikely that he would ever be able to satisfy the

significantly subaverage intellectual functioning prong. Accordingly, we affirm

the trial court's summary denial of Zack's intellectual disability claim.

Zack's second claim is that the trial court erred in dismissing his motion on the

basis that his I.Q. was too high for an Atkins hearing without considering other

evidence as required by Hail. In reviewing the trial court's determination that

-9-

Zack is not intellectually disabled, “this Court examines the record for whether

competent, substantial evidence supports the determination of the trial court.”

State v. Herring, 76 So.3d 891, 895 (Fla. 2011). We do not “reweigh the

evidence or second-guess the circuit court's findings as to the credibility of

witnesses.” Brown v. State, 959 So.2d 146, 149 (Fla. 2007). However, questions

of law are reviewed de novo. Herring, 76 So.3d at 895.

We find that the trial court's determination that Zack did not satisfy the

significantly subaverage intellectual functioning prong is supported by

competent, substantial evidence. As previously mentioned, Zack provided

several I.Q. scores that were all well outside the standard error of

measurement. While Zack argues that Hall requires the trial court to consider

other evidence, a defendant's scores must first fall within the test's

acknowledged and inherent margin of error. Hall, 134 S.Ct. at 2001. Here, all

of the scores presented—-92, 84, 86, 79, and 80—are outside of the test's margin

of error and the presentation of evidence regarding the other two prongs do not

cure Zack's inability to satisfy the first. Consequently, we affirm the trial

court's determination.

Zack v. State, 228 So.3d 41, 47 (Fla. 2017) (SC15-1756).

On June 30, 2017, Zack filed a motion for hearing. On October 12, 2017, the

Florida Supreme Court denied the rehearing.

On October 30, 2017, the Florida Supreme Court issued the mandate. On

November 6, 2017, Zack filed a motion to recall the mandate based on this Court’s

vacating Wright v. State, 213 So.3d 881 (Fla. 2017), and remanding for reconsideration

in light of Moore v. Texas, 137 S.Ct. 1039 (2017). See Wright v. Florida, 138 S.Ct. 360

(Oct. 16, 2017) (granting writ, vacating judgment, and remanding to the Florida

Supreme Court). The State filed a response to the motion to recall the mandate. On

January 23, 2018, the Florida Supreme Court summarily denied the motion to recall.

On March 18, 2018, Zack, represented by CCRC-N, 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.

REASON FOR DENYING THE WRIT

ISSUE I

WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION OF

THE FLORIDA SUPREME COURT HOLDING THAT HALL V. FLORIDA,

134 S.Ct. 1986 (2014), DOES NOT APPLY TO A CASE WHERE ALL OF THE

IQ SCORES ARE ABOVE THESTATISTICAL ERROR OF MEASUREMENT?

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

Hall v. Florida, 134 S.Ct. 1986 (2014), does not apply to a case where all of the IQ

scores are above the statistical error of measurement. Zack insists that there is no

bright-line number for intellectual disability determinations. Zack’s five IQ scores are

92, 86, 84, 80, and 79, all of which are above the cut-off of 75 established in Hall. Hall

does not apply when all of the IQ scores are above 75. There is no conflict between

this Court’s intellectual disability cases and the Florida Supreme Court’s decision. And

there is no conflict between the Florida Supreme Court’s decision and that of any other

federal appellate court or state court of last resort. Review of this issue should not be

granted.

The Florida Supreme Court’s decision

The Florida Supreme Court affirmed the trial court’s summary denial of the claim

of intellectual disability stating that the “trial court correctly found the significantly

subaverage intellectual functioning prong dispositive of Zack's intellectual disability

claim.” Zack v. State, 228 So.3d 41, 47 (Fla. 2017) (SC15-1756). The Florida Supreme

Court detailed Zack’s IQ scores as “a score of 92 in 1980 when Zack was 11 years old,

and four scores after Zack turned 18 — 84 and 86 in 1997 at 27 years of age, 79 in

2002, and 80 in 2015.” Zack, 228 So.3d at 47. The Florida Supreme Court concluded

that Hall did not apply because “Zack provided several IQ scores that were all well

outside the standard error of measurement.” The Florida Supreme Court explained

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that for Hall to apply and require an evidentiary hearing, “a defendant's scores must

first fall within the test’s acknowledged and inherent margin of error.” Jd. But, here,

as the Florida Supreme Court noted, “all of the scores presented — 92, 84, 86, 79, and

80 — are outside of the test's margin of error.” Jd. The Florida Supreme Court

concluded that “Zack’s current score is well above 75, and there are no scores in his

history below 75, it is unlikely that he would ever be able to satisfy the significantly

subaverage intellectual functioning prong.” Jd. In other words, the Florida Supreme

Court concluded that Zack failed the first prong of the test for intellectual disability.

Florida’s test for intellectual disability

This Court left the definition of intellectual disability to state legislature and state

courts in Atkins.’ This Court in Moore struck Texas’ definition of intellectual

disability because it did not comport with any clinical definition. Texas’ definition was,

in this Court’s words, “wholly nonclinical.” Moore, 137 S.Ct. at 1053. But the Moore

Court also noted that states retained “some flexibility” in the definition of intellectual

disability and the Halil Court explained that the psychiatric community does not

“dictate” the legal definition. Moore, 137 S.Ct. at 1052; Hall, 134 S.Ct. at 2000; see also

Hall, 1348.Ct. at 2006 (Alito, J., dissenting) (noting that tying Eighth Amendment law

to the views of professional associations that often change would “lead to instability”

1 Atkins, 536 U.S. at 317 (leaving to the states the “task of developing

appropriate ways to enforce the constitutional restriction” as this Court had done in

the area of insanity citing Ford v. Wainwright, 477 U.S. 399 (1986)); Hall, 134 S.Ct.

at 1989 (noting that “Atkins did not give” states “unfettered discretion” to define

intellectual disability); Moore, 187 S.Ct. at 1048 (stating that although Afkins and

Hall left the definition of, and procedures for determining, intellectual disability to the

states, their discretion was not “unfettered”).

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and “fuel protracted litigation”). States are not required to adopt a new definition of

intellectual disability every time the clinical manuals are updated.

Under Florida’s three-prong test for intellectual disability, a defendant must

demonstrate “(1) significantly subaverage general intellectual functioning; (2)

concurrent deficits in adaptive behavior; and (3) manifestation of the condition before

age eighteen.” Glover v. State, 226 So.3d 795, 808 (Fla. 2017) (citing Salazar v. State,

188 So.3d 799, 811 (Fla. 2016); Fla. R. Crim. P. 3.203; and § 921.137(1), Fla. Stat.

(2013)). “Significantly subaverage general intellectual functioning” is defined as

“performance that is two or more standard deviations from the mean score on a

standardized intelligence test specified in the rules of the Agency for Persons with

Disabilities.” Jones v. State, 231 So.3d 374, 375 (Fla. 2017) (citing § 921.137(1), Fla.

Stat. (2015)).

Florida’s statutory definition of intellectual disability derived from American

Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-

IV), which was a standard clinical definition in 2001 when the statute prohibiting the

imposition of the death penalty on intellectually disabled defendants was first adopted

by the Florida legislature, before Atkins had even been decided. Atkins, 536 U.S. at

308, n.3 (reciting the definition of intellectual disability in the DSM-IV published in

2000); § 921.137(1), Fla. Stat. (2001).

First prong of significantly subaverage intellectual functioning

The first prong of Florida’s test for intellectual disability requires significantly

subaverage intellectual functioning. This case, in the Florida Supreme Court’s words,

involves “a score of 92 in 1980 when Zack was 11 years old, and four scores after Zack

turned 18 — 84 and 86 in 1997 at 27 years of age, 79 in 2002, and 80 in 2015.” Zack,

228 So.3d at 47. Zack’s current IQ score is 80 based on an IQ test taken in 2015. All

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of Zack’s IQ scores are above 75. Indeed, his lowest IQ score is 79. Zack v. Sec'y, Fla.

Dept. of Corr., 2018 WL 388240, *1 (11th Cir. Jan. 12, 2018) (noting mental-health

experts “placed his IQ, at the lowest, at 79”). Because Zack’s intellectual functioning

is not significantly subaverage, Zack fails the first prong.

Third prong of onset

Zack also fails the third prong of the test. The third prong requires onset of the

disability as a minor. Glover, 226 So.3d at 808; see also DSM -V at 33 (requiring “[o]nset

of intellectual and adaptive deficits during the developmental period”); AAIDD 2010

Manual at 1 (“This disability originates before 18.”). As the Florida Supreme Court

noted in “1980, when Zack was 11 years old, his IQ score was 92.” Zack, 228 So. 3d at

47. This score is 17 points above the cut-off of 75. Zack’s IQ when he was a teenager

was 92 which is low normal intellectual functioning. Zack’s claim of intellectual

disability is totally negated by this one score. Zack fails the third prong.

This Court has not addressed the third prong of onset in its recent cases. Hall, 134

S.Ct. at 1994 (noting that the first and second prongs were “central” and specifically

noted that the third prong, the “age of onset” was “not at issue”); Moore, 187 8.Ct. at

1045, n.3 (stating the “third element is not at issue here”). The onset prong is often the

most reliable evidence of intellectual disability because it is generated at a time when

there is no incentive to slant the evidence. As the Pennsylvania Supreme Court

explained, in a case where the defendant had IQ scores of 80 and 85 as a teenager,

capital defendants, who were never clinically diagnosed with intellectual disability

? Despite formally limiting their decision to the first prong, the Florida Supreme

Court implicitly addressed the third prong as well because the Florida Supreme Court

relied on “Zack's scores prior to age 18” to conclude the trial court properly denied the

claim. Zack, 228 So.3d at 47.

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before Atkins, have a “powerful incentive to malinger and to slant evidence.”

Commonwealth v. Hackett, 99 A.3d 11, 33 (Penn. 2014). Not only is the onset prong is

often the most reliable IQ score, but IQ scores in general are the most objective

measure of intellectual ability in comparison to the highly subjective adaptive

functioning prong. Not allowing courts to rely solely on high IQ scores, as either an

adult or as a child, to deny an Atkins claim undermines the reliability of the

determination of intellectual disability.

Zack fails both the first and the third prongs and therefore, is not intellectually

disabled.

No conflict with this Court’s Eighth Amendment jurisprudence

There is no conflict between this Court’s Eighth Amendment jurisprudence

regarding intellectual disability and the Florida Supreme Court’s decision in this case.

See Sup. Ct. R. 10(c) (listing conflict with this Court as a consideration in the decision

to grant review).

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

Court’s decision in this case. The Hall Court stated that this “Court agrees with the

medical experts that when a defendant's IQ test score falls within the test's

acknowledged and inherent margin of error, the defendant must be able to present

additional evidence of intellectual disability, including testimony regarding adaptive

deficits.” Hall, 134 S.Ct. at 2001 (emphasis added). The Hall Court observed that

“when a defendant's IQ test score falls within the test's acknowledged and inherent

margin of error, the defendant must be able to present additional evidence of

intellectual disability, including testimony regarding adaptive deficits.” Id. at 2001

(emphasis added). If the defendant’s “IQ score is 75 or below the inquiry would

consider factors indicating whether the person had deficits in adaptive functioning.”

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Id. at 1996 (emphasis added). The Hall Court concluded that “an individual with an

IQ test score between 70 and 75 or lower, may show intellectual disability by

presenting additional evidence regarding difficulties in adaptive functioning.” Id. at

2000 (emphasis added).

If there was any doubt about the reach of Hall, this Court clarified it in Moore v.

Texas, 1387 S.Ct. 1089 (2017). The Moore Court wrote that “Hall instructs that, where

an IQ score is close to, but above, 70, courts must account for the test’s standard error

of measurement.” Jd. at 1049 (emphasis added). This Court in Moore explained that

“in line with Hall, we require that courts continue the inquiry and consider other

evidence of intellectual disability where an individual's IQ score, adjusted for the test's

standard error, falls within the clinically established range for intellectual-functioning

deficits” Id. at 1050 (emphasis added). The Moore majority explained that “because

the lower end of Moore’s score range falls at or below 70,” the Texas courts “had to

move on to consider Moore’s adaptive functioning.” Jd. at 1049 (emphasis added).

Opposing counsel insists that there is no bright-line cut-off for intellectual

functioning. But there is a bright-line. Hall merely adjusted the bright-line rule to

include the statistical error of measurement (SEM) of five points.2 The Hall Court

increased the line from 70 to 75 to account for the SEM in recognition of the fact that

an IQ score of 75 could actually represent an IQ of 70 due to the SEM. The IQ score

must be within the SEM, which is under 76, to warrant inquiry into the other prongs

> And the Hall Court was being generous when it created a statistical error of

measurements of + five points since most of the statistical error of measurements for

the standard IQ tests are actually two to three points, not five points. For example, the

SEM at 95% confidence interval for the WAIS-IV is two or three points, not five points.

If the actual SEM for a particular IQ test is available, it should be used rather than the

Hall+ 5 point default SEM.

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or an evidentiary hearing. A capital defendant who does not have a single score within

the SEM range necessarily is not intellectually disabled.

Not a single one of Zack’s five different IQ scores was below 76. His lowest score

is 79 which is three points above the cut-off and his highest score is 92 which is sixteen

points above the cut-off. Contrary to opposing counsel’s argument, there is still a

bright-line cut-off after Hall and Moore, and Zack fails to met it.

The Florida Supreme Court correctly read Hall as not applying to a case where all

of the IQ scores are above 75.4. There is no conflict between this Court and the

Florida Supreme Court.

4 Actually, Hall does not apply if the IQ scores, considered collectively, is above

70. Zack’s five IQ scores were 92, 86, 84, 80, and 79. The average of the five scores is

84,2 and the mean of the five scores is 85.5. Zack’s IQ is approximately 85, which is

15 points above the 70 figure for intellectual disability. This case involves numerous

IQ scores taken at different ages over a span of three decades and using different IQ

tests. A collective IQ score of numerous IQ tests taken over decades with different

types of IQ instruments is a more accurate representation of a defendant’s true

intellectual abilities than a couple of scores adjusted for the SEM. Hall, 134 S.Ct. at

2011 & n.13 (Alito, J., dissenting) (noting the “well-accepted view is that multiple

consistent scores establish a much higher degree of confidence”). While this Court has

observed that “the analysis of multiple IQ scores jointly is a complicated endeavor,”

that does not mean that it is not necessary. Hall, 134 S.Ct. at 1995. This Court cannot

require mathematical precision regarding statistical errors of measurement in

determinations of intellectual disability but not follow mathematical principles in

general. Statistics considers scores collectively. In a case that involves numerous valid

IQ scores, including scores when the defendant was a minor, there is no need to adjust

the IQ scores to account for the SEM at all. Hall truly does not apply to such a case.

Adjusting IQ scores to include the SEM is only necessary when there are only a small

number of IQ test results, such as one or two IQ scores, available. One either needs

to adjust the scores for the SEM or use a collective score, not both. But, here, there is

no need for a debate about considering all the IQ scores collectively because all five of

Zack’s IQ scores are above 75.

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No conflict with any federal appellate court or state supreme court

There is also no conflict with that of any federal appellate court or state supreme

court. 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.

There is no conflict between the Florida Supreme Court’s decision and that of any

federal circuit court. Opposing counsel does not cite any federal circuit case holding

further inquiry into a claim of intellectual disability was required where all of the IQ

scores are outside the SEM.

There is no conflict between the Florida Supreme Court's decision and that of any

state court of last resort. The Pennsylvania Supreme Court in Commonwealth v.

Hackett, 99 A.3d 11 (Penn. 2014), held that the evidence did not support a finding of

intellectual disability. The trial court had found the capital defendant was

intellectually disabled and reduced his sentence to life. The Pennsylvania Supreme

Court reversed both because the finding was not supported by the record and because

the trial court improperly equated borderline intellectual functioning with intellectual

disability. Jd. at 18. The trial court held an evidentiary hearing on the Atkins claim.

Hackett had an IQ score of 80 when he was eight years old and an IQ score of 85 when

he was fifteen years old. Jd. at 16. The Court concluded that the defendant failed to

met his burden to establish intellectual disability by a preponderance of the evidence.

Id. at 35.

The Florida Supreme Court decision in this case is in accord with the Pennsylvania

Supreme Court’s decision in Hackett. Zack, like the trial court in Hackett, is

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improperly equating borderline intellectual functioning with intellectual disability .

Indeed, given Zack’s IQ score of 92 as a minor, Zack is equating low normal intellectual

functioning with intellectual disability.

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.

There is no basis for granting certiorari review of this issue.

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ISSUE II

WHETHER THIS COURT SHOULD GRANT REVIEW OF A

DECISION OF THE FLORIDA SUPREME COURT HOLDING THAT

NO EVIDENTIARY HEARING WAS REQUIRED TO DETERMINE

THE OTHER PRONGS OF THE TEST FOR INTELLECTUAL

DISABILITY WHERE THE DEFENDANT DOES NOT MEET THE

FIRST PRONG?

Zack asserts that he is entitled to an evidentiary hearing to explore the other

prongs of the test for intellectual disability regardless of his failure to met the first

prong. He insists that because intellectual disability is a condition not a number, he

is entitled to an evidentiary hearing to explore the other prongs of the test for

intellectual disability. There is no conflict between this Court’s recent decision in

Moore v. Texas, 137 S.Ct. 1039 (2017), and the Florida Supreme Court holding in this

case that Zack was not entitled to an evidentiary hearing. This Court in Moore

explained that further inquiry into an intellectual disability claim was only required

when the IQ scores are within the range for intellectual disability which is below 76.

Zack’s latest IQ score in 2015 was 80. Indeed, all five of his IQ scores, both as a child

and as an adult, are all above 75. Zack does not fall within the range that requires

further inquiry of the claim at an evidentiary hearing. Under Moore, no evidentiary

hearing is required. Furthermore, there is no conflict between this Court’s

jurisprudence regarding multi-prong legal tests and the Florida Supreme Court’s

decision denying the claim based on only one prong. The test for intellectual disability

requires that the defendant establish all three prongs including the first prong of

significantly subaverage general intellectual functioning. Zack’s current IQ score is

80 which is not significantly subaverage intellectual functioning. Zack, therefore, fails

the first prong. As with any other conjunctive multi-prong legal test, the failure to

meet any one of the prongs means the claim fails. The failure to meet any one of the

three prongs of the test for intellectual disability is determinative of the issue of

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intellectual ability and no evidentiary hearing is required if the defendant fails the

first prong. And there is no conflict between the Florida Supreme Court’s decision and

that of any other federal appellate court or state court of last resort either. No

evidentiary hearing is required when a capital defendant cannot establish that his

intellectual functioning is not significantly subaverage, as Zack cannot.

The Florida Supreme Court’s decision

The Florida Supreme Court affirmed the trial court’s summary denial of the claim

of intellectual disability. Zack v. State, 228 So.3d 41, 47 (Fla. 2017). The Florida

Supreme Court explained that for Hall to apply and require an evidentiary hearing,

“a defendant's scores must first fall within the test’s acknowledged and inherent

margin of error.” Jd. (emphasis added). The Florida Supreme Court reasoned that no

evidentiary hearing was required because “presentation of evidence regarding the

other two prongs” would “not cure Zack’s inability to satisfy the first.” Id.

No conflict with this Court’s Eighth Amendment jurisprudence

There is no conflict between this Court’s decisions in Moore v. Texas, 137 S.Ct. 1039

(2017), and the Florida Supreme Court holding in this case that Zack was not entitled

to an evidentiary hearing. This Court in Moore explained that further inquiry into the

intellectual disability claim was only required when the IQ scores are below 76. Moore,

137 S.Ct. at 1049 (“Because the lower end of Moore's score range falls at or below 70,

the CCA had to move on to consider Moore's adaptive functioning.”) (emphasis added).

The Moore Court explained that further inquiry into the intellectual disability claim

was only required when the defendant “falls within the clinically established range for

intellectual-functioning deficits.” Jd. at 1050 (“in line with Hail, we require that courts

continue the inquiry and consider other evidence of intellectual disability where an

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individual's IQ score, adjusted for the test's standard error, falls within the clinically

established range for intellectual-functioning deficits”). Zack’s latest IQ score in 2015

was 80. And all of his scores are above 75. He does not fall within the clinically

established range for intellectual deficits and therefore, no further inquiry at an

evidentiary hearing was required.

More generally, there is no conflict with this Court’s view of determining claims

based on one prong and the Florida Supreme Court denying an evidentiary hearing

based on one prong. Florida’s test for intellectual disability is a conjunctive test.

Glover v. State, 226 So.3d 795, 808 (Fla. 2017) (explaining Florida’s three-prong test

for intellectual disability requires a defendant to demonstrate: “(1) significantly

subaverage general intellectual functioning; (2) concurrent deficits in adaptive

behavior; and (3) manifestation of the condition before age eighteen” citing §

921.137(1), Fla. Stat. (2013)) (emphasis added). Ifthe defendant fails to prove any one

prong of the three prongs, the defendant will not be found to be intellectually disabled.

Quince v. State, 43 Fla. L. Weekly S175, 2018 WL 1755470 (Fla. Apr. 12, 2018) (citing

Salazar v. State, 188 So.3d 799, 812 (Fla. 2016)). As with any other conjunctive multiprong legal test, the failure to meet any one of the prongs means the claim fails. For

example, in the multi-prong test for ineffective assistance of counsel established by this

Court in Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must establish

both prongs. Jd. at 700 (stating that the failure “to make the required showing of

either deficient performance or sufficient prejudice” defeats the ineffectiveness claim)

(emphasis added). Courts are not required to address both prongs of the Strickland

test. Id. at 697 (stating that there is no reason for a court deciding an ineffective

assistance claim to “address both components of the inquiry if the defendant makes an

insufficient showing on one”). Likewise, there is no reason for a court to address all

three components of intellectual disability, if the defendant makes an insufficient

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