Petition for Writ of Certiorari — Ernest D. Suggs, Petitioner v. Florida, et al.
Supreme Court briefMay 31, 2018
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No. ______
IN THE
Supreme Court of the United States
___________________________________________________________
ERNEST D. SUGGS,
Petitioner,
v.
STATE OF FLORIDA, ET AL.,
Respondents.
____________________________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of Florida
______________________________________________________________
PETITIONER’S APPENDIX
______________________________________________________________
DAWN MACREADY
STACY BIGGART
Capital Collateral Regional Counsel
North Region
1004 DeSoto Park Drive
Tallahassee, Florida 32301
(850) 487-0922
dawn.macready@ccrc-north.org
stacy.biggart@ccrc-north.org
BILLY H. NOLAS
Counsel of Record
SEAN T. GUNN
ANGELA J. ROLLINS
Office of the Federal Public Defender
Northern District of Florida
Capital Habeas Unit
227 North Bronough St., Suite 4200
Tallahassee, FL 32301-1300
(850) 942-8818
billy_nolas@fd.org
sean_gunn@fd.org
angela_rollins@fd.org
INDEX TO APPENDIX
Exhibit 1 — Florida Supreme Court Opinion Below (Jan. 22, 2018) ................ 1a
Exhibit 2 — Florida Supreme Court Order to Show Cause (Sep. 27, 2017)) .... 5a
Exhibit 3 — Walton County Circuit Court Order Denying Relief
(May 30, 2017) ................................................................................. 8a
Exhibit 4 — Petitioner/Appellant’s Response to Order to Show Cause
(Oct. 17, 2017) ............................................................................... 12a
Exhibit 5 — Respondent/State’s Response to Order to Show Cause
(Oct. 31, 2017) ............................................................................... 33a
Exhibit 6 — Petitioner/Appellant’s Reply in Support of Response to Order to
Show Cause (Nov. 11, 2017) ......................................................... 52a
Exhibit 7 — Florida Death Penalty Appeals Decided in Light of Hurst ......... 63a
(Source: Death Penalty Information Center)
Exhibit 8 — List of Florida Supreme Court Opinions Summarily Denying
Relief in Light of Hitchcock (Jan.-Feb. 2018) .............................. 73a
EXHIBIT 1
Florida Supreme Court Opinion Below (Jan. 22, 2018)
1a
Supreme Court of Florida
____________
No. SC17-1225
____________
ERNEST D. SUGGS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC16-1066
____________
ERNEST D. SUGGS,
Appellant,
vs.
JULIE L. JONES, etc.,
Appellee.
[January 22, 2018]
PER CURIAM.
We have for review Ernest D. Suggs’ appeal of the circuit court’s order
denying Suggs’ motion filed pursuant to Florida Rule of Criminal Procedure 3.851,
2a
as well as Suggs’ motion for rehearing on his petition for a writ of habeas corpus.
This Court has jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
Suggs’ motion and habeas petition sought relief pursuant to the United
States Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our
decision on remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert.
denied, 137 S. Ct. 2161 (2017). This Court stayed Suggs’ appeal and consideration
of his motion for rehearing pending the disposition of Hitchcock v. State, 226 So.
3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017). After this Court decided
Hitchcock, Suggs responded to this Court’s order to show cause arguing why
Hitchcock should not be dispositive in both cases.
After reviewing Suggs’ response to the order to show cause, as well as the
State’s arguments in reply, we conclude that Suggs is not entitled to relief. Suggs
was sentenced to death following a jury’s recommendation for death by a vote of
seven to five. Suggs v. State, 644 So. 2d 64, 66 (Fla. 1994). His sentence of death
became final in 1995. Suggs v. Florida, 514 U.S. 1083 (1995). Thus, Hurst does
not apply retroactively to Suggs’ sentence of death. See Hitchcock, 226 So. 3d at
217. Accordingly, we affirm the denial of Suggs’ motion and deny Suggs’ motion
for rehearing on his petition for a writ of habeas corpus.
3a
The Court having carefully considered all arguments raised by Suggs, we
caution that any rehearing motion containing reargument will be stricken. It is so
ordered.
LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
LEWIS and CANADY, JJ., concur in result.
PARIENTE, J., concurring in result.
I concur in result because I recognize that this Court’s opinion in Hitchcock
v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now
final. However, I continue to adhere to the views expressed in my dissenting
opinion in Hitchcock.
An Appeal from the Circuit Court in and for Walton County,
Kelvin Clyde Wells, Judge - Case No. 661990CF000338CFAXMX
And an Original Proceeding – Habeas Corpus
Robert S. Friedman, Capital Collateral Regional Counsel, Dawn B. Macready, and
Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Lisa Hopkins, Assistant Attorney
General, Tallahassee, Florida,
for Appellee/Respondent
4a
EXHIBIT 2
5a
Supreme Court of Florida
WEDNESDAY, SEPTEMBER 27, 2017
CASE NOS.: SC17-1225 & SC16-1066
Lower Tribunal No(s).:
661990CF000338CFAXMX
ERNEST D. SUGGS
vs.
STATE OF FLORIDA
ERNEST D. SUGGS
vs.
JULIE L. JONES, ETC.
Appellant/Petitioner
Appellee/Respondent
Appellant/Petitioner shall show cause on or before Tuesday, October 17,
2017, why the trial court’s order should not be affirmed and rehearing should not
be denied in light of this Court's decision Hitchcock v. State, SC17-445. The
response shall be limited to no more than 20 pages. Appellee/Respondent may file
a reply on or before Wednesday, November 1, 2017, limited to no more than 15
pages. Appellant/Petitioner may file a reply to the Appellee/Respondent’s reply on
or before Monday, November 13, 2017, limited to no more than 10 pages.
Motions for extensions of time will not be considered unless due to a
medical emergency.
A True Copy
Test:
jat
Served:
6a
CASE NO.: SC17-1225
Page Two
LISA HOPKINS
STACY BIGGART
DAWN B. MACREADY
7a
EXHIBIT 3
8a
Filing # 57091962 E-Filed 05/31/2017 10:54:45 AM
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
IN AND FOR WALTON COUNTY, FLORIDA
STATE OF FLORIDA,
v.
CASE NO.: 1990-CF-000338
ERNEST D. SUGGS,
Defendant.
ORDER AFTER CASE MANAGEMENT CONFERENCE
and
ORDER DENYING THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
IN LIGH T OF HURST v. FLORIDA
THIS CAUSE comes before the court after the filing of the Defendant's Motion for Post-
Conviction Relief in Light of Hurst v. Florida, electronically filed by counsel on January 11,
2017; and the State's Response and Notice of Florida Supreme Court's Order, electronically filed
by counsel on March 17, 2017; pursuant to rule 3.851, Florida Rules of Criminal Procedure. A
case management conference was held on April 20, 2017. Present before the court were Ms.
Dawn Macready, Capital Collateral Regional Counsel-North; and Ms. Stacy Biggart, Capital
Collateral Regional Counsel-North. Mr. Joseph Schiller, Assistant State Attorney, First
Judicial Circuit, Escambia County, Florida; and Ms. Berdene Beckles, Assistant Attorney
General, Office of the Attorney General; attended by telephone.
Order After Case Management Conference and
Order Denying the Defendant's Motionfor Post-Conviction Reliefin Light ofHw st v. Florida
State ofFlorida v. Ernest D. Suggs 1990-CF-000338
Page 1 of3
Electronically Filed Walton Case # 90000338CFAXMX 05/31/2017 09:54:45 AM
9a
After the case management conference, the court determined that an evidentiary hearing
was not necessary regarding the defendant's successive motion. In the instant case, the
defendant's death sentence was final before Rina v. Arizona was decided. As a result, the legal
authority is clear that Hurst v. Florida does not apply retroactively to the instant defendant.
Furthermore, the Supreme Court of Florida denied the defendant's petition for a writ of habeas
corpus based on Hurst v. Florida on March 17, 2017. Therefore, considering the court is
required to follow existing, clear legal authority, the instant motion is denied. Additionally, the
defendant's request for a new penalty phase is denied.
Accordingly, it is hereby ORDERED that:
1. The Defendant's Motion for Post-Conviction Relief in Light of Hurst v. Florida,
electronically filed by counsel on January 11, 2017, is DENIED.
2. The defendant has thirty days to file his notice of appeal.
DONE AND ORDERED in Chambers in DeFuniak Springs, Walton County, Florida.
eSigned by KELVIN. WELLS in 01 JUDGE WELLS INBoX FOLDER
on 05/30/2017 13:58:32 WOqYFf6H.
KELVIN C. WELLS
CIRCUIT JUDGE
KCW/elm
{Certificate of Service on the Next Page]
Order After Case Management Conference and
Order Denying the Defendant's Motionfor Post-Conviction Reliefin Light ofHw st v. Florida
State ofFlorida v. Ernest D. Suggs 1990-CF-000338
Page 2 of3
10a
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing Order has been
furnished by regular U.S. mail (unless otherwise indicated) to:
DAWN B. MACREADY, Capital Collateral Regional Counsel - North
175 Salem Court, Tallahassee, Florida 32301
by electronic delivery to: Dawn.Macready@ccrc-north.org
STACY BIGGART, Capital Collateral Regional Counsel - North
175 Salem Court, Tallahassee, Florida 32301
by electronic delivery to: stacy.biggart@ccrc-north.org
BERDENE BECKLES, Assistant Attorney General
Office of the Attorney General, Capital Appeals
PL-01 The Capitol, Tallahassee, Florida 32399-1050
by electronic delivery to: capapp@myfloridalegal.com AND
berdene.beckles@myfloridalegal.com
JOFs SCHILLER, Assistant State Attorney
190 Governmental Center, Pensacola, Florida 32302
by electronic delivery to: joe_schiller@saol .org
ERNEST D. SUGGS, DC# 220267
Union Correctional Institution
7819 N.W. 228th Street
Raiford, Florida 32026
ALEX ALFORD
Clerk of Court
eSigned by JOYCE VANN in 02 CRIMINAL INBOXf0LDER
on 05/30/2017 16:19i27 xxJ38zMU
Order Afïer Case Management Confèrence and
Order Denying the Defendant's Motionfbr Post-Conviction Reliefin Light ofHurst v. Florida
State ofFlorida v. Ernest D. Suggs 1990 CF 000338
Page 3 of3
11a
EXHIBIT 4
12a
Filing # 62933167 E-Filed 10/17/2017 01:20:02 PM
IN THE SUPREME COURT OF FLORIDA
ERNEST D. SUGGS,
Appellant/Petitioner,
CASE NOS.: SC17-1225;
SC16-1066
v.
STATE OF FLORIDA and
JULIE L. JONES, ETC.
RECEIVED, 10/17/2017 01:23:26 PM, Clerk, Supreme Court
Appellee/Respondent.
_______________________________/
RESPONSE TO ORDER TO SHOW CAUSE
The Appellant/Petitioner, ERNEST D. SUGGS, by and through undersigned
counsel, hereby responds to this Court’s Order to Show Cause why the trial court’s
order should not be affirmed and rehearing should not be denied in light of this
Court’s decision in Hitchcock v. State, SC17-445. In support thereof, Mr. Suggs
states:
INTRODUCTION
Mr. Suggs’ death sentence was imposed pursuant to a capital sentencing
scheme that has since been ruled unconstitutional by the United States Supreme
Court in Hurst v. Florida, 136 S.Ct. 616 (2016), and this Court in Hurst v. State, 202
So.3d 40 (Fla. 2016). Mr. Suggs’ sentence became “final” in 1995, prior to the
United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466
(2000) and Ring v. Arizona, 536 U.S. 584 (2002). The issue in this case is whether
this Court’s approach to limited retroactivity to deny Mr. Suggs Hurst relief on the
ground that his sentence became final prior to the 2002 decision in Ring is
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constitutional in light of Hurst v. Florida, Hurst v. State, Florida law, and federal
law.
This Court has already granted Hurst relief as a matter of state law in dozens
of collateral-review cases where the defendant’s sentence became final after Ring.
But this Court has also created a state-law cutoff at the date Ring was decided – June
24, 2002 – to deny relief in dozens of other collateral-review cases. The Ring-based
cutoff is unconstitutional and should not be applied to Mr. Suggs. Denying Mr.
Suggs Hurst relief because his sentence became final after 1995, rather than some
date between 2002 and 2016, would violate the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. Mr. Suggs is entitled to Hurst
retroactivity as a matter of state and federal law.
Relief should not be denied here in light of Hitchcock. Mr. Suggs notes that
there is still a petition for writ of certiorari still pending in Hitchcock v. Florida, (No.
17-6180). Moreover, the issues raised in Mr. Suggs’ appeal and his petition for
habeas relief were not addressed in this Court’s decision in Hitchcock v. State.
REQUEST FOR ORAL ARGUMENT
This case presents an important issue of first impression: whether federal and
state law requires this Court to extend Hurst retroactivity to death sentences that
became final before Ring, rather than cabining Hurst relief to post-Ring death
sentences. Mr. Suggs respectfully requests oral argument on this and related issues
pursuant to Fla.R.App.P. 9.320. Mr. Suggs also requests that the Court permit full
review in this case in accord with the normal, untruncated habeas and briefing rules.
14a
Depriving Mr. Suggs the opportunity for full merits review would constitute
an arbitrary deprivation of the vested right to habeas corpus review under Article I,
§ 13, and Article V, § 3(b)(9), of the Florida Constitution. See Logan v. Zimmerman
Brush Co., 455 U.S. 422 (1982); Hicks v. Oklahoma, 447 U.S. 343 (1980). Due
process does not permit Mr. Suggs to be foreclosed by the decision rendered in
Hitchcock v. State, Case No. SC17-445 (Fla. 2016). Mr. Suggs deserves an
individualized appellate review of his sentence.
ARGUMENT
I.
Due Process does not permit Mr. Suggs to be foreclosed by the
decision rendered in Hitchcock v. State.
Mr. Suggs is exercising a substantive right to appeal the denial of his
successive Rule 3.851 motion See Fla. Stat. § 924.066 (2016); Fla.R.App.Pro.
9.140(b)(1)(D). Because he has been provided this substantive right, Mr. Suggs’
right to appeal is protected by the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. Evitts v. Lucy, 469 U.S. 387, 393 (1985) (“if a State has
created appellate courts as ‘an integral part of the … system for finally adjudicating
the guilt or innocence of a defendant,’ Griffin v. Illinois, 351 U.S. at 18, 76 S.Ct., at
590, the procedures used in deciding appeals must comport with the demands of the
Due Process and Equal Protection Clauses of the Constitution.”).
In a capital case in which a death sentence has been imposed, courts are
required to go further when considering challenges to the death sentence. The Eighth
Amendment requires more due to a special need for reliability. Johnson v.
Mississippi, 486 U.S. 578, 584 (1988). The process by which the Court has directed
15a
Mr. Suggs to proceed in his appeal, indicates its intention on binding Mr. Suggs to
the outcome rendered in Hitchcock’s appeal, regardless of the fact that the record on
appeal in each case is distinct and separate from one another. The fact that this Court
has sua sponte issued identical orders, in numerous other cases, employing the same
truncated procedure it does here, reflects baseless prejudgment of the appeals and
their scope. Mr. Suggs deserves an individualized appellate process.
“The death penalty is the gravest sentence our society may impose. Persons
facing the most severe sanction must have a fair opportunity to show that the
Constitution prohibits their execution.” Hall v. Florida, 134 S.Ct. 1986, 2001 (2014).
Yet, Mr. Suggs is being denied that opportunity by this Court’s attempt to confine
him to the outcome in Hitchcock without first providing a fair opportunity of his
own to demonstrate how the record and facts in his particular case prohibit his
execution. Moreover, in denying relief in Hitchcock, this Court relied upon Asay v.
State for the determination that Hurst was not retroactive to cases final before Ring
v. Arizona. Hitchcock v. State, Case No. SC17-445 at *2-3.
This Court did so despite the fact that the opinion in Asay was not premised
upon, nor did it even address, the holding in Hurst v. State, 202 So.3d 40 (Fla. 2016).
Furthermore, Asay was not given the opportunity to argue that he should be given
the benefit of Hurst v. Florida by way of fundamental fairness, as recognized in
Mosley v. State, 209 So.3d 1248 (Fla. 2016). It is in that regard that this Court must
acknowledge that the holding in Asay, and this Court’s reliance upon that holding in
Hitchcock, does not foreclose the availability of Hurst relief to Mr. Suggs.
16a
II.
Mr. Suggs’ death sentence violates Hurst v. Florida and Hurst v. State,
and the error is not harmless.
Mr. Suggs was sentenced to death pursuant to an unconstitutional Florida
capital sentencing scheme. In Hurst v. Florida, the United States Supreme Court held
that Florida’s scheme violated the Sixth Amendment because it required the judge,
not the jury, to make the findings of fact required to impose the death penalty under
Florida law. 136 S.Ct. at 620-22. On remand, this Court applied the holding of Hurst
v. Florida, and further held that the Eighth Amendment requires unanimous jury factfinding as to each of the required elements, and also a unanimous recommendation
by the jury to impose the death penalty. Hurst v. State, 202 So.3d at 53-59. In Mosley
v. State, this Court noted that the unanimity requirement in Hurst v. State carried
with it “heightened protection” for a capital defendant. Id., 209 So. 3d at 1278. This
Court stated in Mosley that Hurst v. State had “emphasized the critical importance
of a unanimous verdict.” Id.
Mr. Suggs’ jury recommended the death penalty by a vote of 7 to 5. This
Court’s precedent makes clear that Hurst errors are not harmless where the
defendant’s pre-Hurst jury recommended death by a non-unanimous vote. Dubose
v. State, 210 So.3d 641, 657 (Fla. 2017)(“[I]n cases where the jury makes a nonunanimous recommendation of death, the Hurst error is not harmless.”). This Court
has declined to apply the harmless error doctrine in every case where the pre-Hurst
jury’s recommendation was not unanimous.1
1
See, e.g., Bailey v. Jones, No. SC17-433, 2017 WL 2874121, at *1 (Fla. July 6,
2017)(11-2 jury vote); Hertz v. Jones, 218 So. 3d 428, 431-32 (Fla. 2017)(10-2 jury
vote); Hernandez v. Jones, 217 So.3d 1032, 1033 (Fla. 2017) (11-1 jury vote); Card
v. Jones, 219 So.3d 47, 48 (Fla. 2017)(11-1 jury vote); McMillian v. State, 214 So.3d
1274, 1289 (Fla. 2017)(10-2 jury vote).
17a
III.
This Court’s “retroactivity cutoff” at Ring is unconstitutional and should
not be applied to Mr. Suggs.
Beginning with Mosley v. State, 209 So. 3d 1248 (Fla. 2016), this Court has
applied Hurst retroactively as a matter of state law and granted relief in dozens of
collateral-review cases where the defendant’s sentence became final after Ring. But
the Court has created a state-law cutoff at the date Ring was decided—June 24,
2002—to deny relief in dozens of other collateral-review cases. The Court recently
reaffirmed its retroactivity cutoff in Hitchcock v. State, No. SC17-445, 2017 WL
3431500 (Fla. Aug. 10, 2017). This Court’s arbitrary cutoff violates the Florida
Constitution and the Eighth and Fourteenth Amendments of the United States
Constitution.
Denying Hurst relief to Mr. Suggs because his death sentence became final in
1995, while affording retroactivity to similarly-situated defendants who were
sentenced (or resentenced) between 2002 and 2016, would violate the Florida
Constitution under Hurst v. State, the Eighth and Fourteenth Amendments’
prohibition against arbitrary and capricious imposition of the death penalty, as well
as the Fourteenth Amendment’s guarantee of equal protection and due process.
A.
Mr. Suggs is entitled to retroactive application of Hurst on the basis
of fundamental fairness.
Even if this Court were to maintain its unconstitutional retroactivity “cutoff”
at Ring, individuals who preserved the substance of the Hurst decisions before Hurst,
such as Mr. Suggs, should receive the retroactive benefit of Hurst under this Court’s
“fundamental fairness” doctrine, which the Court has previously applied in other
contexts, see, e.g., James v. State, 615 So. 2d 668, 669 (Fla. 1993), and which the
18a
Court has applied once in the Hurst context, see Mosley, 209 So. 3d at 1274, but
inexplicably never addressed since. Justice Lewis recently endorsed this
“preservation” approach in Hitchcock. See 2017 WL 3431500, at *2 (Lewis, J.,
concurring) (stating that the Court should “simply entertain Hurst claims for those
defendants who properly presented and preserved the substance of the issue, even
before Ring arrived.”).
In Mosley, this Court focused its fundamental fairness analysis on whether it
would be unfair to bar Mr. Mosley from seeking Hurst relief, regardless of when his
sentence became final, by virtue of the fact that he had previously attempted to
challenge Florida’s unconstitutional sentencing scheme and was “rejected at every
turn” under the Florida Supreme Court’s flawed pre-Hurst law. Id. at 1275. In
assessing fundamental fairness, this Court explained that an important inquiry is
whether the defendant unsuccessfully attempted to raise a challenge to Florida’s
capital sentencing scheme before Hurst v. Florida and Hurst v. State were decided.
See id. at 1275. If Mosley had raised such a challenge, this Court reasoned, it would
be fundamentally unfair to prohibit him from seeking post-conviction relief under
Hurst, given that he had accurately anticipated the fatal defects in Florida’s capital
sentencing scheme even before they were recognized in the Hurst decisions. See id.
This Court emphasized that ensuring fundamental fairness in assessing retroactivity
outweighed any State’s interest in finality of death sentences. Id. (“In this
instance…the interests of finality must yield to fundamental fairness.”).
Here, as in Mosley, the Hurst decisions are retroactive under the fundamental
fairness doctrine. Although Mr. Suggs’ case was pre-Ring, he attempted to challenge
19a
Florida’s unconstitutional capital sentencing statute before both the Ring and Hurst
decisions. Before trial, Mr. Suggs filed pretrial motions raising Ring and Hurst-like
challenges to the operation of Florida’s “advisory” capital-sentencing jury system
under Caldwell v. Mississippi, 472 U.S. 320 (1985), and also challenged Florida’s
lack of a unanimous verdict on all the elements required to impose death as
unconstitutional. (R. 90-104). In his direct appeal brief, Mr. Suggs challenged the
penalty-phase jury instructions based on the reasonable doubt standard. In his
postconviction proceedings, Mr. Suggs continued to raise such challenges to his
death sentence. In his Second Amended Motion to Vacate Convictions and
Sentences, which was filed pre-Ring, he raised state and federal constitutional
challenges to Florida’s capital sentencing scheme under Espinosa v. Florida, 505
U.S. 1079 (1993). Following the United States Supreme Court’s decision in Ring,
Mr. Suggs filed a Petition for Writ of Habeas Corpus in this Court based upon that
decision. He was denied at every turn. Under the rationale of Mosley, these
circumstances provide a sufficient basis to apply the Hurst decisions retroactively to
Mr. Suggs, regardless of the fact that his sentence became final before the issuance
of Ring. See Mosley, 209 So. 3d at 1276 n.-13.
B.
This Court’s retroactivity cutoff violates the Eighth and
Fourteenth Amendments’ prohibition against arbitrary and
capricious imposition of the death penalty.
This Court’s retroactivity cutoff violates the Eighth and Fourteenth
Amendments’ prohibition against arbitrary and capricious imposition of the death
penalty. The death penalty cannot “be imposed under sentencing procedures that
create[] a substantial risk that it would be inflicted in an arbitrary or capricious
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manner.” Gregg v. Georgia, 428 U.S. 153, 188 (1976); see also Furman v. Georgia,
408 U.S. 238, 310 (1972) (“[T]he Eighth and Fourteenth Amendments cannot
tolerate the infliction of a sentence of death under legal systems that permit this
unique penalty to be so wantonly and so freakishly imposed.”) (Stewart, J.,
concurring). In other words, the death penalty cannot be imposed in a way that is
comparable to being “struck by lightning.” Furman, 408 U.S. at 308.
Experience has already shown the arbitrary results inherent in this Court’s
application of the Ring-based retroactivity cutoff. The date of a particular death
sentence’s finality on direct appeal in relation to the June 24, 2002 decision in
Ring—and thus whether this Court has held Hurst retroactive based on its brightline cutoff—has at times depended on whether there were delays in transmitting the
record on appeal to this Court for the direct appeal; whether direct appeal counsel
sought extensions of time to file a brief; whether a case overlapped with this Court’s
summer recess; how long the assigned Justice of this Court took to submit the
opinion for release; whether an extension was sought for a rehearing motion and
whether such a motion was filed; whether there was a scrivener’s error necessitating
issuance of a corrected opinion; whether counsel chose to file a petition for a writ of
certiorari in the United States Supreme Court or sought an extension to file such a
petition; and how long a certiorari petition remained pending in the Supreme Court.
In one striking example, this Court affirmed Gary Bowles’s and James Card’s
unrelated death sentences in separate opinions that were issued on the same day,
October 11, 2001. Bowles v. State, 804 So. 2d 1173 (Fla. 2001); Card v. State, 803
So. 2d 613 (Fla. 2001). Both inmates petitioned for a writ of certiorari in the United
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States Supreme Court. Mr. Card’s sentence became final four (4) days after Ring
was decided—on June 28, 2002—when his certiorari petition was denied. Card v.
Florida, 536 U.S. 963 (2002). Mr. Bowles’s sentence, however, became final seven
(7) days before Ring was decided—on June 17, 2002—when his certiorari petition
was denied. Bowles v. Florida, 536 U.S. 930 (2002). This Court recently granted
Hurst relief to Mr. Card, ruling that Hurst was retroactive because his sentence
became final after the Ring cutoff. See Card, 219 So. 3d at 47. Mr. Bowles, on the
other hand, whose case was decided on direct appeal on the same day as Mr. Card’s,
and who filed his certiorari petition in the Supreme Court after Mr. Card, now finds
himself on the pre-Ring side of this Court’s current retroactivity cutoff.
Other arbitrary factors affecting whether a defendant receives Hurst relief
under this Court’s date-of-Ring-based retroactivity approach include whether a
resentencing was granted. Under the Court’s current approach, “older” cases dating
back to the 1980s with a post-Ring resentencing are subject to Hurst, while other
less “old” cases are not. See, e.g., Johnson v. State, 205 So. 3d 1285, 1285 (granting
Hurst relief to a defendant whose crime occurred in 1981 but was granted relief on
a third successive post-conviction motion in 2010, years after the Ring decision);
Card, 219 So. 3d at 47 (granting Hurst relief to a defendant whose crime occurred in
1981 but was afforded relief on a second successive post-conviction motion in
2002—just four days after Ring was decided); cf. Calloway v. State, 210 So. 3d 1160
(Fla. 2017) (granting Hurst relief in a case where the crime occurred in the late
1990s, but interlocutory appeals resulted in a ten-year delay before the trial). Under
this Court’s approach, a defendant who was originally sentenced to death before Mr.
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Suggs, but who was later resentenced to death after Ring, would receive Hurst relief
and Mr. Suggs would not.
Moreover, under the Court’s current rule, some litigants whose Ring claims
were wrongly rejected on the merits during the 2002-2016 period will be denied the
benefit of Hurst because the Court addressed the issue in a post-conviction rather
than a direct appeal posture. See e.g., Miller v. State, 926 So. 2d 1243, 1259 (Fla.
2006); Nixon v. State, 932 So. 2d 1009, 1024 (Fla. 2006); Bates v. State, 3 So. 3d
1091, 1106 n.14 (Fla. 2009); Bradley v. State, 33 So. 3d 664, 670 n.6 (Fla. 2010).
Making Hurst retroactive to only post-Ring sentences also unfairly denies
Hurst access to defendants who were sentenced between Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring. The fundamental unfairness of that result is stark
given that the Supreme Court made clear in Ring that its decision flowed directly
from Apprendi. See Ring, 536 U.S. at 588-89. And in Hurst v. Florida, the Court
repeatedly stated that Florida’s scheme was incompatible with “Apprendi’s rule,” of
which Ring was an application.
136 S. Ct. at 621.
This Court itself has
acknowledged that Ring was an application of Apprendi. See Mosley, 209 So. 3d at
1279-80. This Court’s drawing of its retroactivity cutoff at Ring instead of Apprendi
represents the sort of capriciousness that is inconsistent with the Eighth Amendment.
C.
This Court’s retroactivity cutoff violates the Fourteenth
Amendment’s guarantee of equal protection and due process.
As an equal protection matter, the cutoff treats death-sentenced prisoners in
the same posture—on collateral review—differently without “some ground of
difference that rationally explains the different treatment.” Eisenstadt v. Baird, 405
23a
U.S. 438, 447 (1972). When two classes are created to receive different treatment
by a state actor like this Court, the question is whether there is a rational basis for
the different treatment. Id.; see also McLaughlin v. Florida, 379 U.S. 184, 191
(1964). The Fourteenth Amendment requires that distinctions in state criminal laws
that impinge upon fundamental rights be strictly scrutinized. See, e.g., Skinner v.
Oklahoma, 316 U.S. 535, 541 (1942). Capital defendants have a fundamental right
to a reliable determination of their sentences. See Lockett v. Ohio, 438 U.S. 586,
604 (1978). When a state draws a line between defendants who will receive the
benefit of the rules designed to enhance the quality of decision-making by a penaltyphase jury and those who will not, the state’s justification for that line must satisfy
strict scrutiny. Far from meeting strict scrutiny, this Court’s Hurst retroactivity
cutoff lacks even a rational connection to any legitimate state interest. See Dep’t of
Agric. v. Moreno, 413 U.S. 528, 533 (1973).
As a due process matter, denying Hurst retroactivity to “pre-Ring” defendants
like Mr. Suggs violates the Fourteenth Amendment because once a state requires
certain sentencing procedures, it creates Fourteenth Amendment life and liberty
interests in those procedures. See, e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985)
(due process interest in state-created right to direct appeal); Hicks, 447 U.S. at 346
(liberty interest in state-created sentencing procedures); Ford v. Wainwright, 477
U.S. 399, 427-31 (1986) (O’Connor, J., concurring) (liberty interest in meaningful
state competency proceedings); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,
288-89 (1998) (O’Connor, J., with Souter, Ginsburg, & Breyer, JJ., concurring) (life
interest in state-created right to capital clemency proceedings).
24a
Although the right to the particular procedure is established by state law, the
violation of the life and liberty interest it creates is governed by federal constitutional
law. See Hicks, 447 U.S. at 347; Ford, 477 U.S. at 399, 428-29; Evitts, 469 U.S. at
393 (state procedures employed “as ‘an integral part of the . . . system for finally
adjudicating the guilt or innocence of a defendant’” must comport with due process).
Defendants have “a substantial and legitimate expectation that [they] will be
deprived of [their] liberty only to the extent determined by the jury in the exercise
of its discretion . . . and that liberty interest is one that the Fourteenth Amendment
preserves against arbitrary deprivation by the State.” Hicks, 447 U.S. at 346. Courts
have found in a variety of contexts that state-created death penalty procedures vest
in a capital defendant life and liberty interests that are protected by due process. See
e.g., Ohio Adult Parole Auth., 523 U.S. at 272; Ford, 477 U.S. at 427-31. In Hicks,
the Supreme Court held that the trial court’s failure to instruct the jury that it had the
option to impose an alternative sentence violated the state-created liberty interest
(and federal due process) in having the jury select his sentence from the full range
of alternatives available under state law. 447 U.S. at 343.
IV.
Because the Hurst decisions announced substantive constitutional rules,
the Supremacy Clause of the United States Constitution requires state
courts to apply those rules retroactively to all cases on collateral review.
A.
The Supremacy Clause requires state courts to apply substantive
constitutional rules retroactively to all cases on collateral review.
In Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016), the United States
Supreme Court held that the Supremacy Clause of the Constitution requires state
courts to apply “substantive” constitutional rules retroactively as a matter of federal
25a
constitutional law, notwithstanding any separate state-law retroactivity analysis. In
Montgomery, a Louisiana state prisoner filed a claim in state court seeking
retroactive application of the rule announced in Miller v. Alabama, 567 U.S. 460
(2012) (holding that imposition of mandatory sentences of life without parole on
juveniles violates the Eighth Amendment). The state court denied the prisoner’s
claim on the ground that Miller was not retroactive as a matter of state retroactivity
law. Montgomery, 136 S. Ct. at 727. The United States Supreme Court reversed,
holding that because the Miller rule was substantive as a matter of federal law, the
state court was obligated to apply it retroactively. See id. at 732-34.
Montgomery clarified that the Supremacy Clause requires state courts to
apply substantive rules retroactively, notwithstanding state-law analysis.
Montgomery, 136 S. Ct. at 728-29 (“[W]hen a new substantive rule of constitutional
law controls the outcome of a case, the Constitution requires state collateral review
courts to give retroactive effect to that rule.”) (emphasis added). Thus, Montgomery
held, “[w]here state collateral review proceedings permit prisoners to challenge the
lawfulness of their confinement, States cannot refuse to give retroactive effect to a
substantive constitutional right that determines the outcome of that challenge.” Id.
at 731-32.
Importantly for purposes of Hurst retroactivity analysis, the Supreme Court
found the Miller rule substantive in Montgomery even though the rule had “a
procedural component.” Id. at 734. Miller did “not categorically bar a penalty for a
class of offenders or type of crime—as, for example, [the Court] did in Roper or
Graham.” Miller, 567 U.S. at 483. Instead, “it mandate[d] only that a sentence
26a
follow a certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.”
Id.
Despite Miller’s
procedural mandates, the Court in Montgomery warned against “conflat[ing] a
procedural requirement necessary to implement a substantive guarantee with a rule
that ‘regulate[s] only the manner of determining the defendant’s culpability.’”
Montgomery, 136 S. Ct. at 734 (quoting Schriro v. Summerlin, 542 U.S. 348, 353
(2004)). Instead, the Court explained, “[t]here are instances in which a substantive
change in the law must be attended by a procedure that enables a prisoner to show
that he falls within a category of persons whom the law may no longer punish,” id.
at 735, and that the necessary procedures do not “transform substantive rules into
procedural ones,” id. Miller “bar[red] life without parole . . . . For that reason, Miller
is no less substantive than are Roper and Graham.” Id. at 734.
B.
The Hurst decisions announced substantive rules that must be
applied retroactively to Mr. Suggs under the Supremacy Clause.
At least two substantive rules were established by Hurst v. Florida and Hurst
v. State. First, a Sixth Amendment rule was established requiring that a jury find as
fact beyond a reasonable doubt: (1) each aggravating circumstance; (2) that those
particular aggravating circumstances together are “sufficient” to justify imposition
of the death penalty; and (3) that those particular aggravating circumstances together
outweigh the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Such
findings are manifestly substantive. See Montgomery, 136 S. Ct. at 734 (holding
that the decision whether a juvenile is a person “whose crimes reflect the transient
immaturity of youth” is a substantive, not procedural, rule). As in Montgomery,
27a
these requirements amounted to an “instance[] in which a substantive change in the
law must be attended by a procedure that enables a prisoner to show that he falls
within a category of persons whom the law may no longer punish.” Id. at 735.
Second, an Eighth Amendment rule was established that requires those three
beyond-a-reasonable-doubt findings to be made unanimously by the jury. The
substantive nature of the unanimity rule is apparent from this Court’s explanation in
Hurst v. State that unanimity (1) is necessary to ensure compliance with the
constitutional requirement that the death penalty be applied narrowly to the worst
offenders, and (2) ensures that the sentencing determination “expresses the values
of the community as they currently relate to the imposition of the death penalty.”
202 So. 3d at 60-61. The function of the unanimity rule is to ensure that Florida’s
death-sentencing scheme complies with the Eighth Amendment and to “achieve the
important goal of bringing [Florida’s] capital sentencing laws into harmony with the
direction of the society reflected in [the majority of death penalty] states and with
federal law.” Id. As a matter of federal retroactivity law, the rule is therefore
substantive. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“[T]his
Court has determined whether a new rule is substantive or procedural by considering
the function of the rule”). This is true even though the rule’s subject concerns the
method by which a jury makes its decision. See Montgomery, 136 S. Ct. at 735
(noting that state’s ability to determine method of enforcing constitutional rule does
not convert rule from substantive to procedural).
The United States Supreme Court’s decision in Welch is illustrative of the
substantive nature of Hurst. In Welch, the Court addressed the retroactivity of the
28a
constitutional rule articulated in Johnson v. United States, 135 S. Ct. 2551, 2560
(2015). In Johnson, the Court held that a federal statute that allowed sentencing
enhancement was unconstitutional. Id. at 2556. Welch held that Johnson’s ruling
was substantive because it “affected the reach of the underlying statute rather than
the judicial procedures by which the statute is applied”—therefore it must be applied
retroactively.
Welch, 136 S. Ct. at 1265.
The Court emphasized that its
determination whether a constitutional rule is substantive or procedural “does not
depend on whether the underlying constitutional guarantee is characterized as
procedural or substantive,” but rather whether “the new rule itself has a procedural
function or a substantive function,” i.e., whether the new rule alters only the
procedures used to obtain the conviction, or alters instead the class of persons the
law punishes. Id. at 1266. In Welch, the Court pointed out that, “[a]fter Johnson,
the same person engaging in the same conduct is no longer subject to the Act and
faces at most 10 years in prison. The residual clause is invalid under Johnson, so it
can no longer mandate or authorize any sentence.” Id. Thus, “Johnson establishes,
in other words, that even the use of impeccable factfinding procedures could not
legitimate a sentence based on that clause.” Id. “It follows,” the Court held, “that
Johnson is a substantive decision.” Id. (internal quotation omitted).
The same reasoning applies in the Hurst context. The Sixth Amendment
requirement that each element of a Florida death sentence must be found beyond a
reasonable doubt, and the Eighth Amendment requirement of jury unanimity in factfinding, are substantive constitutional rules as a matter of federal law because they
place certain murders “beyond the State’s power to punish,” Welch, 136 S. Ct. at
29a
1265, with a sentence of death. Following the Hurst decisions, “[e]ven the use of
impeccable factfinding procedures could not legitimate a sentence based on” the
judge-sentencing scheme.
Id.
And in the context of a Welch analysis, the
“unanimous finding of aggravating factors and [of] the facts that are sufficient to
impose death, as well as the unanimous finding that they outweigh the mitigating
circumstances, all serve to help narrow the class of murderers subject to capital
punishment,” Hurst, 202 So. 3d at 60 (emphasis added), i.e., the new law by
necessity places certain individuals beyond the state’s power to impose a death
sentence. The decision in Welch makes clear that a substantive rule, rather than a
procedural rule, resulted from the Hurst decisions. See Welch, 136 S. Ct. at 126465 (a substantive rule “alters . . . the class of persons that the law punishes.”).
Hurst retroactivity is not undermined by Summerlin, 542 U.S. at 364, where
the United States Supreme Court held that Ring was not retroactive in a federal
habeas case. In Ring, the Arizona statute permitted a death sentence to be imposed
on a finding of fact that at least one aggravating factor existed. Summerlin did not
review a statute, like Florida’s, that required the jury not only to conduct the factfinding regarding the aggravators, but also as to whether the aggravators were
sufficient to impose death and whether the death penalty was an appropriate
sentence. Summerlin acknowledged that if the Court itself “[made] a certain fact
essential to the death penalty . . . [the change] would be substantive.” 542 U.S. at
354. Such a change occurred in Hurst where, for the first time, the Court found it
unconstitutional for a judge alone to find that “sufficient aggravating factors exist
30a
and [t]hat there are insufficient mitigating circumstances to outweigh the
aggravating circumstances.” 136 S. Ct. at 622 (internal citation omitted).
Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard in addition to the jury trial right, and the United States Supreme Court
has always regarded proof-beyond-a-reasonable-doubt decisions as substantive.
See, e.g., Ivan V. v. City of New York, 407 U.S. 203, 205 (1972) (explaining that
“the major purpose of the constitutional standard of proof beyond a reasonable doubt
announced in [In re Winship, 397 U.S. 358 (1970)] was to overcome an aspect of a
criminal trial that substantially impairs the truth-finding function, and Winship is
thus to be given complete retroactive effect.”); Powell v. Delaware, 153 A.3d 69
(Del. 2016) (holding Hurst retroactive under Delaware’s state Teague-like
retroactivity doctrine and distinguishing Summerlin on the ground that Summerlin
“only addressed the misallocation of fact-finding responsibility (judge versus jury)
and not . . . the applicable burden of proof.”).
C.
This Court has an obligation to address Mr. Suggs’ federal
retroactivity arguments.
Because this Court is bound by the federal constitution, it has the obligation
to address Mr. Suggs’ federal retroactivity arguments. See Testa v. Katt, 330 U.S.
386, 392-93 (1947). The federal constitutional issues were raised to this Court in
Hitchcock, but this Court ignored them. Dismissing this appeal on the basis of
Hitchcock would compound that error.
31a
CONCLUSION
This Court should hold that Florida state law and federal law require that Hurst
v. Florida and Hurst v. State apply retroactively to Mr. Suggs, vacate Mr. Suggs’
death sentence, and remand to the circuit court for a new penalty phase or imposition
of a life sentence.
Respectfully submitted,
/s/ Dawn B. Macready
Dawn B. Macready
Assistant CCRC-North
Florida Bar No. 0542611
1004 DeSoto Park Drive
Tallahassee, Florida 32301
(850) 487-0922
Dawn.Macready@ccrc-north.org
Stacy Biggart
Assistant CCRC-North
Florida Bar No. 89388
Stacy.Biggart@ccrc-north.org
COUNSEL FOR MR. SUGGS
CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2017, the foregoing was delivered via
electronic service to all counsel of record.
/s/ Dawn B. Macready
Dawn B. Macready
32a
EXHIBIT 5
33a
Filing # 63267703 E-Filed 10/24/2017 04:29:41 PM
IN THE SUPREME COURT OF FLORIDA
ERNEST D. SUGGS,
Appellant/Petitioner,
CASE NOS. SC17-1225 & SC16-1066
L.T. NO. 1997-CF-009232
DEATH PENALTY CASE
v.
RECEIVED, 10/24/2017 04:33:26 PM, Clerk, Supreme Court
STATE OF FLORIDA and
JULIE L. JONES, ETC.,
Appellee/Respondent.
____________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT,
IN AND FOR WALTON COUNTY, FLORIDA
ANSWER BRIEF OF APPELLEE/RESPONDENT
PAMELA JO BONDI
ATTORNEY GENERAL
LISA A. HOPKINS
ASSISTANT ATTORNEY GENERAL
Florida Bar No. 99459
The Capitol, PL-01
Tallahassee, Florida 32311
Telephone: (850) 414-3300
Facsimile: (850) 414-0997
Lisa.Hopkins@myfloridalegal.com
Counsel for Appellee/Respondent
34a
TABLE OF CONTENTS
TABLE OF CONTENTS............................................. ii
TABLE OF AUTHORITIES......................................... iii
STATEMENT OF THE CASE AND FACTS................................ 1
OBJECTION TO ORAL ARGUMENT..................................... 2
SUMMARY OF THE ARGUMENT........................................ 2
ARGUMENT....................................................... 3
CONCLUSION.................................................... 12
CERTIFICATE OF SERVICE........................................ 13
CERTIFICATE OF FONT COMPLIANCE................................ 13
35a
TABLE OF AUTHORITIES
Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000).................... 8
Archer v. Florida, 519 U.S. 876 (1996)......................... 9
Archer v. Jones, 2017 WL 1034409 (Fla. Mar. 17, 2017).......... 9
Asay v. Florida, 502 U.S. 895 (1991)........................... 9
Asay v. State, 224 So. 3d 695 (Fla. Aug. 14, 2017)............ 10
Asay v. State, 210 So. 3d 1 (Fla. 2016)..................... 4, 5
Basse v. State, 740 So. 2d 518 (Fla. 1999)..................... 3
Bogle v. Florida, 516 U.S. 978 (1995).......................... 9
Bogle v. State, 213 So. 3d 833 (Fla. 2017)..................... 9
Cherry v. Florida, 494 U.S. 1090 (1990)........................ 9
Cherry v. Jones, 2017 WL 1033693 (Fla. Mar. 17, 2017).......... 9
Danforth v. Minnesota, 522 U.S. 264 (2008)..................... 5
Davis v. Florida, 524 U.S. 930 (1998).......................... 9
Davis v. State, 2017 WL 656307 (Fla. Feb. 17, 2017)............ 9
Dobbert v. Florida, 432 U.S. 282 (1977)........................ 7
Evitts v. Lucey, 469 U.S. 387 (1985)........................... 4
Finney v. State, 660 So. 2d 674 (Fla. 1995).................... 5
Floyd v. State, 497 So. 2d 1211 (Fla. 1986).................... 5
Gaskin v. Florida, 510 U.S. 925 (1993)......................... 9
Gaskin v. State, 218 So. 3d 399 (Fla. Jan. 19, 2017)........... 9
Geralds v. Florida, 519 U.S. 891 (1996)........................ 9
Geralds v. Jones, 2017 WL 944236 (Fla. Mar. 10, 2017).......... 9
Griffith v. Kentucky, 479 U.S. 314 (1987)...................... 8
Hamilton v. Florida, 524 U.S. 956 (1998)....................... 9
Hamilton v. Jones, 2017 WL 836807 (Fla. Mar. 3, 2017).......... 9
Hartley v. Florida, 522 U.S. 825 (1997)........................ 9
Hartley v. Jones, 2017 WL 944232 (Fla. Mar. 10, 2017).......... 9
Henry v. State, 937 So. 2d 563 (Fla. 2006)..................... 3
Hitchcock v. State, 2017 WL 3431500 (Fla. Aug. 10, 2017) 2, 9, 10
Hitchcock v. State, 531 U.S. 1040 (2000)....................... 9
Hurst v. State, 202 So. 3d 40 (Fla. 2016)...................... 4
Ivan V. v. City of New York, 407 U.S. 203 (1972)............... 5
Johnson v. State, 904 So. 2d 400 (Fla. 2005)................... 5
Jones v. Florida, 515 U.S. 1147 (1995)......................... 9
Jones v. Jones, 2017 WL 1034410 (Fla. Mar. 17, 2017)........... 9
Jones v. State, 2017 WL 4296370 (Fla. Sept. 28, 2017).......... 9
Lambrix v. Florida, 2017 WL 4456332 (Oct. 5, 2017)............. 7
36a
Lambrix v. Sec’y, Fla. Dep’t of Corr., 2017 WL 4416205 (11th
Cir. Oct. 5, 2017) ........................................... 7
Lambrix v. State, 2017 WL 4320637 (Fla. Sept. 29, 2017)....... 10
Lambrix v. State, 217 So. 3d 977 (Fla. Mar. 9, 2017)........... 9
Lukehart v. Florida, 533 U.S. 934 (2001)....................... 9
Lukehart v. Jones, 2017 WL 1033691 (Fla. Mar. 17, 2017)........ 9
Marshall v. Florida, 508 U.S. 915 (1993)....................... 9
Marshall v. Jones, 2017 WL 1739246 (Fla. May 4, 2017).......... 9
Oats v. Florida, 474 U.S. 865 (1985)........................... 9
Oats v. Jones, 220 So. 3d 1127 (Fla. 2017)..................... 9
Pennsylvania v. Finley, 481 U.S. 551 (1987).................... 4
Penry v. Lynaugh, 492 U.S. 302 (1989).......................... 7
Powell v. Delaware, 153 A.3d 69 (Del. 2016)................. 5, 6
Rauf v. State, 145 A.3d 430 (Del. 2016)........................ 6
Ring v. Arizona, 536 U.S. 584 (2002)........................... 4
Rodriguez v. Florida, 510 U.S. 830 (1993)...................... 9
Rodriguez v. State, 219 So. 3d 751 (Fla. 2017)................. 9
Schriro v. Summerlin, 542 U.S. 348 (2004)...................... 6
Smith v. State, 598 So. 2d 1063 (Fla. 1992).................... 8
Stein v. Florida, 513 U.S. 834 (1994).......................... 9
Stein v. Jones, 2017 WL 836806 (Fla. Mar. 3, 2017)............. 9
Suggs v. Buss, 131 S.Ct. 1809 (2011)........................... 1
Suggs v. Florida, 514 U.S. 1083 (1995)...................... 1, 9
Suggs v. Jones, 2017 WL 1033680 (Fla. Mar. 17, 2017)........... 9
Suggs v. Jones, No. SC16-1066, 2017 WL 1033680 (Fla. Mar. 17,
2017) ....................................................... 10
Suggs v. McNeil, 609 F.3d 1218 (11th Cir. 2010)................ 1
Suggs v. State, 644 So. 2d 64 (Fla. 1994)...................... 1
Suggs v. State, 923 So. 2d 419 (Fla. 2006)..................... 1
Teague v. Lane, 489 U.S. 288 (1989)............................ 5
United States v. Battle, 163 F.3d 1 (11th Cir. 1998)........... 3
Wainwright v. Florida, 523 U.S. 1127 (1998).................... 9
Wainwright v. State, 2017 WL 394509 (Fla. Jan. 30, 2017)....... 9
Willacy v. Florida, 522 U.S. 970 (1997)........................ 9
Willacy v. Jones, 2017 WL 1033679 (Fla. Mar. 17, 2017)......... 9
Witt v. State, 387 So. 2d 922 (Fla. 1980)...................... 5
Zack v. Florida, 531 U.S. 858 (2000)........................... 9
Zack v. State, 2017 WL 2590703 (Fla. June 15, 2017)............ 9
Zakrzewski v. Florida, 525 U.S. 1126 (1999).................... 9
Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017)............... 9
Zeigler v. State, 580 So. 2d 127 (Fla. 1991)................... 5
37a
Other Authorities
Fla. R. Crim. P. 3.851(d)(1)(B)................................ 1
38a
STATEMENT OF THE CASE AND FACTS
Appellant/Petitioner, Ernest Suggs, was convicted of first
degree murder, one count of armed burglary, and one count of
kidnapping. Suggs v. State, 644 So. 2d 64 (Fla. 1994). The judgment
and sentence became final upon denial of certiorari by the United
States Supreme Court on April 24, 1995.
Suggs v. Florida, 514
U.S. 1083 (1995); Fla. R. Crim. P. 3.851(d)(1)(B) (A judgment and
sentence become final “on the disposition of the petition for writ
of certiorari by the United States Supreme Court, if filed.”).
This
Court
affirmed
the
denial
of
Appellant/Petitioner’s
postconviction motion and denied a previous writ of habeas corpus.
Suggs v. State, 923 So. 2d 419 (Fla. 2006).
Appellant/Petitioner
sought a writ of habeas corpus in federal court, which was denied.
The Eleventh Circuit Court of Appeals affirmed the denial of
Appellant/Petitioner’s writ of habeas corpus.
Suggs v. McNeil,
609 F.3d 1218 (11th Cir. 2010), cert. denied, Suggs v. Buss, 131
S.Ct. 1809 (2011).
On June 15, 2016, Appellant/Petitioner filed with this Court
a petition for writ of habeas corpus.
On March 17, 2017, the
petition was denied.1 After a motion for rehearing was filed, this
In the order, this Court found that Suggs is not entitled to
relief pursuant to the holding in Asay v. State, that Hurst v.
Florida does not apply retroactively to capital defendants whose
sentences were final before Ring was decided.
1
39a
Court stayed the proceedings pending the disposition of Hitchcock.
On August 10, 2017, this Court affirmed the conviction and sentence
in Hitchcock in accordance with this Court’s decision in Asay.
Hitchcock v. State, No. SC17-445, 2017 WL 3431500, *2 (Fla. Aug.
10, 2017); Asay v. State, 210 So.3d 1 (Fla. 2016).
On September
27, 2017, this Court issued an order for Appellant/Petitioner to
show cause as to “why the habeas corpus should not be denied in
light of this Court’s decision in Hitchcock v. State, SC17-455.”
On October 17, 2017, Appellant/Petitioner filed his “Response to
September 27, 2017 Order to Show Cause” (Response).
This is the
Appellee/Respondent’s reply to Appellant/Petitioner’s Response.
OBJECTION TO ORAL ARGUMENT
Appellee/Respondent
objects
to
Appellant/Petitioner’s
request for oral argument. In the briefing schedule, this Court
ordered the parties to respond to a limited issue that has been
decided by this Court in other cases. As such, oral arguments would
not serve any purpose other than to delay the proceedings.
SUMMARY OF THE ARGUMENT
The
lower
court
Appellant/Petitioner’s
properly
successive
motion
summarily
for
denied
postconviction
relief. Appellant/Petitioner has failed to show cause as to why
his case should be excluded from this Court’s precedent in Asay as
reaffirmed by Hitchcock.
Because Appellant/Petitioner’s judgment
40a
and sentence were final prior to the decision in Ring, Hurst is
not retroactive to him.
ARGUMENT
A. Page Limitation
Appellant/Petitioner
devotes
approximately
half
of
his
pleading to the meritless argument that it is unconstitutional for
this Court to impose a 20-page limitation on his response. However,
as this Court noted in Henry v. State, 937 So. 2d 563, 575-76 (Fla.
2006) (quoting Basse v. State, 740 So. 2d 518, 519 (Fla. 1999)),
the placement of reasonable page limitations is necessary to
improve the ability of the court to issue rulings in a more timely
and efficient fashion. As this Court stated, the placement of such
reasonable
page
limitations
requires
counsel
to
“provide
a
distinct and succinct focus” to their pleadings in an effort to
sharpen and simplify their arguments in a way that makes their
case stronger. Id. at 576 (quoting United States v. Battle, 163
F.3d 1 (11th Cir. 1998)). Certainly, this Court’s placement of a
20-page limit to a response is not unreasonable given the narrow
issue presented in this case.2
Furthermore, contrary to Appellant/Petitioner’s assertions,
there is no federal or state constitutional violation in this
Court’s procedure in placing a reasonable page limitation on the
Appellant has further been granted the opportunity to file a
10-page reply to the State’s pleading.
2
41a
pleadings in this case. Here, Appellant/Petitioner is represented
by appointed counsel in the appeal from a successive postconviction
motion and counsel has been provided a full and complete appellate
record. Compare Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987)
(finding
that
there
is
no
federal
constitutional
right
to
postconviction relief, or to the appointment of an attorney for
seeking that avenue of relief); Evitts v. Lucey, 469 U.S. 387, 393
(1985) (noting that an indigent criminal appellant is entitled to
effective counsel for his first appeal only as a matter of right
and must be provided with a transcript of the trial proceedings)
(emphasis added).
Additionally,
Appellant/Petitioner,
in
his
petition
for
habeas corpus, was able to fully brief his argument as to why he
is entitled to relief under Hurst.
Simply put, Appellant/Petitioner’s argument that this Court’s
procedure violates federal or state constitutional provisions is
without merit and devoid of any supporting caselaw.
B. Hitchcock/Hurst Claims
In
Asay,
this
Court
held
that
Hurst
v.
State
is
not
retroactive to any case in which the death sentence was final prior
to the June 24, 2002, decision in Ring.
Asay v. State, 210 So. 3d
1, 22 (Fla. 2016); Hurst v. State, 202 So.3d 40 (Fla. 2016); Ring
v. Arizona, 536 U.S. 584 (2002).
The judgment in Asay became final
42a
October 7, 1991, and thus Asay was not eligible for any relief
under Hurst.
In
Asay, 210 So. 3d at 8.
Asay,
this
Court
discussed
applying retroactivity to Hurst.
the
appropriate
test
for
Asay, 210 So. 3d at 15-16.
This
Court applied the Witt analysis for retroactivity under state law,
“which provides more expansive retroactivity standards than those
adopted in Teague,” which enumerates the federal retroactivity
standards.
Id. (emphasis in original), quoting Johnson v. State,
904 So. 2d 400, 409 (Fla. 2005); Witt v. State, 387 So. 2d 922
(Fla. 1980); Teague v. Lane, 489 U.S. 288 (1989); see also Danforth
v. Minnesota, 522 U.S. 264, 280-81 (2008) (allowing states to adopt
a retroactivity test that is broader than Teague).
Petitioner relies upon Ivan V. and Powell for the premise
that Hurst should be retroactive under Teague as a substantive
change.
(Response at 19); Ivan V. v. City of New York, 407 U.S.
203, 205 (1972); Powell v. Delaware, 153 A.3d 69 (Del. 2016).
Petitioner
argues
that
Hurst
reasonable-doubt standard.”
“addressed
the
proof-beyond-a-
(Response at 19).
However, the
standard of proof for proving aggravating factors in Florida has
been beyond a reasonable doubt, long before Hurst was decided.
See Floyd v. State, 497 So. 2d 1211, 1214-15 (Fla. 1986); Zeigler
v. State, 580 So. 2d 127, 129 (Fla. 1991); Finney v. State, 660
So. 2d 674, 680 (Fla. 1995).
The Delaware Court in Powell agreed:
“neither Ring nor Hurst involved a Due Process Clause violation
43a
caused by the unconstitutional use of a lower burden of proof.”
Powell, 153 A.3d at 74.
The Delaware Supreme Court used this fact
to distinguish Delaware’s “watershed ruling” in Rauf which was the
basis for Delaware to find that retroactivity applied to Powell
under Teague, from Ring and Hurst.
Powell, 153 A.3d at 74; Rauf
v. State, 145 A.3d 430 (Del. 2016).
Thus, Powell applies to
Delaware cases and distinguishes Hurst and Ring under Delaware
law.
Further,
despite
Appellant/Petitioner’s
claim
that
Hurst
created a substantive change requiring federal retroactivity, in
Schriro, the Supreme Court determined that Ring was a procedural
rule and did not create a substantive constitutional change in the
law because it only “altered the range of permissible methods for
determining whether a defendant’s conduct is punishable by death,
requiring that a jury rather than a judge find the essential facts
bearing on punishment.”
(2004).
Schriro v. Summerlin, 542 U.S. 348, 353
Ring did not alter the “range of conduct or the class of
persons that the law punishes.”
Id.
Thus, Ring “announced a new
procedural rule that does not apply retroactively to cases already
final on direct review.”
Id. at 358.
Since the Supreme Court
held that Ring did not create a substantive constitutional rule
and
is
not
retroactive,
Hurst
is
also
not
a
substantive
constitutional rule, nor is it retroactive under federal law.
44a
The Eleventh Circuit has rejected the argument that Hurst is
retroactive under federal law, stating: “[t]he Supreme Court has
held that Ring does not apply retroactively to cases on collateral
review.
See Schriro, 542 U.S. at 358[ ](holding that Ring does
not apply retroactively under federal law to death-penalty cases
already final on direct review.).”
Lambrix v. Sec’y, Fla. Dep’t
of Corr., No. 17-14413, 2017 WL 4416205, *8 (11th Cir. Oct. 5,
2017), cert. denied, Lambrix v. Florida, Nos. 17-6290, 17A380,
2017 WL 4456332 (Oct. 5, 2017).
Further, the Eleventh Circuit
held that this Court’s ruling, that Hurst did not retroactively
apply to Lambrix, whose judgment was final in 1986, “is fully in
accord
with
Schriro.”
the
U.S.
Supreme
Court’s
precedent
Lambrix, 2017 WL 4416205 at *8.
in
Ring
and
The Eleventh Circuit
also rejected the statutory retroactivity argument stating
jurists of reason would not find this position
debatable: the Florida court’s rejection of Lambrix’s
constitutional-statutory claim was not contrary to, or
an unreasonable application of, the holding of a Supreme
Court decision.
Id. at *9; see also Dobbert v. Florida, 432 U.S. 282, 301 (1977).
Additionally, with retroactivity, there is usually a cutoff
date to provide for finality in appellate processing.
Penry v.
Lynaugh, 492 U.S. 302, 314 (1989) (holding finality concerns in
retroactivity are applicable in the capital context). In Griffith,
the Supreme Court held “that a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or
45a
federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear
break’ with the past.”
Griffith v. Kentucky, 479 U.S. 314, 328
(1987); see also Smith v. State, 598 So. 2d 1063, 1065 (Fla. 1992).
Under this “pipeline” concept, only those still pending direct
review would receive the benefit of relief from Hurst error.
The
fact that this Court has drawn the line at the decision date in
Ring
instead
appellants.
of
the
decision
date
in
Hurst,
benefits
more
Thus, this Court’s retroactivity cutoff does not
violate the Fourteenth Amendment’s guarantee of equal protection
and due process.
In Asay, this Court discussed Apprendi’s role in developing
the Court’s decisions in Ring and Hurst.
19.
Asay, 210 So. 3d at 11-
However, “the Supreme Court distinguished capital cases from
its holding in Apprendi.”
Id. at 19; citing Apprendi v. New
Jersey, 530 U.S. 466, 496-97 (2000) (“this Court has previously
considered and rejected the argument that the principles guiding
our decision today render invalid state capital sentencing schemes
. . .”).
After Asay, this Court continuously adhered to using the Ring
decision date as the cutoff point for retroactivity.
Thus far,
this Court has chosen not to extend Hurst v. State to 23 cases,
including Asay, based solely on the fact that the judgments were
46a
finalized prior to the decision in Ring.3
Further, this Court has
specifically
Hurst
addressed
whether
Appellant/Petitioner.
On
March
Appellant/Petitioner’s
writ
of
17,
2017,
habeas
applies
this
corpus
Court
pursuant
to
denied
to
the
3
See Asay, 210 So. 3d at 8, 22 (sentence final in 1991; see Asay v.
Florida, 502 U.S. 895 (1991)); Jones v. State, No. SC15-1549, 2017 WL
4296370, *2 (Fla. Sept. 28, 2017); Hitchcock v. State, 2017 WL 3431500
)sentence final in 2000; see Hitchcock v. State, 531 U.S. 1040 (2000));
Zack v. State, Nos. SC15-1756, SC16-1090, 2017 WL 2590703, *5 (Fla. June
15, 2017)(sentence final in 2000; see Zack v. Florida, 531 U.S. 858
(2000)); Zakrzewski v. Jones, 221 So. 3d 1159, 1159 (Fla. 2017)(sentence
final in 1999; see Zakrzewski v. Florida, 525 U.S. 1126 (1999)); Oats
v. Jones, 220 So. 3d 1127, 1129 (Fla. 2017)(sentence final in 1985; see
Oats v. Florida, 474 U.S. 865 (1985)); Marshall v. Jones, No. SC16-779,
2017 WL 1739246 (Fla. May 4, 2017)(sentence final in 1993; see Marshall
v. Florida, 508 U.S. 915 (1993)); Rodriguez v. State, 219 So. 3d 751,
760 (Fla. 2017)(sentence final in 1993; see Rodriguez v. Florida, 510
U.S. 830 (1993)); Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla.
Mar. 17, 2017)(sentence final in 1997; see Willacy v. Florida, 522 U.S.
970 (1997)); Suggs v. Jones, No. SC16-1066, 2017 WL 1033680, *1 (Fla.
Mar. 17, 2017)(sentence final in 1995; see Suggs v. Florida, 514 U.S.
1083 (1995)); Lukehart v. Jones, No. SC16-1225, 2017 WL 1033691, *1 (Fla.
Mar. 17, 2017)(sentence final in 2001; see Lukehart v. Florida, 533 U.S.
934 (2001)); Cherry v. Jones, No. SC16-694, 2017 WL 1033693, *1 (Fla.
Mar. 17, 2017)(sentence final in 1990; see Cherry v. Florida, 494 U.S.
1090 (1990)); Archer v. Jones, No. SC16-2111, 2017 WL 1034409, *1 (Fla.
Mar. 17, 2017)(sentence final in 1996; see Archer v. Florida, 519 U.S.
876 (1996)); Jones v. Jones, No. SC16-607, 2017 WL 1034410 (Fla. Mar.
17, 2017)(sentence final in 1995; see Jones v. Florida, 515 U.S. 1147
(1995)); Hartley v. Jones, No. SC16-1359, 2017 WL 944232, *1 (Fla. Mar.
10, 2017)(sentence final in 1997; see Hartley v. Florida, 522 U.S. 825
(1997)); Geralds v. Jones, No. SC16-659, 2017 WL 944236, *1 (Fla. Mar.
10, 2017) (sentence final in 1996; see Geralds v. Florida, 519 U.S. 891
(1996)); Lambrix v. State, 217 So. 3d 977, 989 (Fla. Mar. 9,
2017)(sentence final in 1986); Stein v. Jones, No. SC16-621, 2017 WL
836806 (Fla. Mar. 3, 2017)(sentence final in 1994; see Stein v. Florida,
513 U.S. 834 (1994)); Hamilton v. Jones, No. SC16-984, 2017 WL 836807
(Fla. Mar. 3, 2017)(sentence final in 1998; see Hamilton v. Florida, 524
U.S. 956 (1998)); Davis v. State, No. SC16-264, 2017 WL 656307 (Fla.
Feb. 17, 2017)(sentence final in 1998; see Davis v. Florida, 524 U.S.
930 (1998)); Bogle v. State, 213 So. 3d 833, 855 (Fla. 2017)(sentence
final in 1995; see Bogle v. Florida, 516 U.S. 978 (1995)); Wainwright
v. State, No. SC15-2280, 2017 WL 394509 (Fla. Jan. 30, 2017)(sentence
final in 1998; see Wainwright v. Florida, 523 U.S. 1127 (1998)); Gaskin
v. State, 218 So. 3d 399, 400 (Fla. 2017)(sentence final in 1993; see
Gaskin v. Florida, 510 U.S. 925 (1993)).
47a
holding in Asay, 210 So. 3d 1, “that Hurst v. Florida does not
apply retroactively to capital defendants whose sentences were
final when Ring v. Arizona, 536 U.S. 584 (2002), was decided.”
Suggs v. Jones, No. SC16-1066, 2017 WL 1033680 (Fla. Mar. 17,
2017).
On August 10, 2017, in Hitchcock, this Court reaffirmed the
decision in Asay stating
[a]lthough Hitchcock references various constitutional
provisions as a basis for arguments that Hurst v.
State should entitle him to a new sentencing proceeding,
these are nothing more than arguments that Hurst v.
State should be applied retroactively to his sentence,
which became final prior to Ring. As such, these
arguments
were
rejected
when
we
decided Asay.
Accordingly, we affirm the circuit court's order
summarily denying Hitchcock's successive postconviction
motion pursuant to Asay.
Hitchcock, 2017 WL 3431500 at *2; see also Asay v. State, 224 So.
3d 695, 703 (Fla. 2017) (rejecting the claim that Chapter 2017-1,
Laws of Florida, “creates a substantive right to a life sentence
unless
a
jury
unanimously
recommends
otherwise”);
Lambrix
v.
State, No. SC17-1687, 2017 WL 4320637, *1 (Fla. Sept. 29, 2017)
(rejecting arguments based on the Eighth Amendment, denial of due
process and equal protection, and a substantive right based on new
legislation).
Here,
just
as
in
Hitchcock,
Appellant/Petitioner
raises
various constitutional provisions to argue that Hurst v. State
should be retroactively applied to him.
However, just as in Asay,
48a
as
reaffirmed
by
Hitchcock,
Hurst
retroactively to Appellant/Petitioner.
v.
State
does
not
apply
This case became final on
November 13, 2001, which is prior to the June 24, 2002, decision
in Ring.
As such, Hurst v. State is not retroactive to this case.
Thus, this Petition should be denied.
Appellant/Petitioner has demonstrated no cause that this
Court should re-review his case. This Court’s rulings in Asay and
Hitchcock
apply
to
Appellant/Petitioner.
Because
Appellant/
Petitioner’s judgment and sentence were final prior to the decision
in Ring, Hurst is not retroactive to him.
49a
CONCLUSION
In conclusion, as a matter of law, Appellant/Petitioner is
not entitled to Hurst relief, and Appellee/Respondent respectfully
requests
that
this
Honorable
Court
affirm
the
postconviction
court’s order denying Appellant/Petitioner relief under Hurst.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Lisa A. Hopkins
Assistant Attorney General
Florida Bar No. 99459
Office of the Attorney General
PL-01, The Capitol
Tallahassee, Florida 32399
Telephone: (850)414-3336
Facsimile: (850)414-0997
capapp@myfloridalegal.com [and]
lisa.hopkins@myfloridalegal.com
COUNSEL FOR APPELLEE/RESPONDENT
50a
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 24th day of October, 2017, I
electronically filed the foregoing with the Clerk of the Court by
using the Florida Courts E-Portal Filing System which will send a
notice of electronic filing to the following: Dawn Macready,
Dawn.Macready@ccrc-north.org, and Stacy Biggart, Stacy.Biggart@ccrc-north.org, counsel for Appellant/Petitioner.
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the size and style of the type used in
this brief is 12-point Courier New, in compliance with Fla. R.
App. P. 9.210(a)(2).
/s/ Lisa A. Hopkins
COUNSEL FOR
APPELLEE/RESPONDENT
51a
EXHIBIT 6
52a
Filing # 64069725 E-Filed 11/12/2017 11:44:22 AM
IN THE SUPREME COURT OF FLORIDA
ERNEST D. SUGGS,
Appellant/Petitioner,
CASE NOS.: SC17-1225;
SC16-1066
v.
RECEIVED, 11/12/2017 11:48:29 AM, Clerk, Supreme Court
STATE OF FLORIDA and
JULIE L. JONES, ETC.,
Appellee/Respondent.
______________________________/
APPELLANT’S REPLY1
I.
The State is incorrect in asserting that Hitchcock addressed the federal
retroactivity arguments Mr. Suggs raises in this proceeding.
The State is incorrect that “just as in Asay, as reaffirmed by Hitchcock, Hurst
v. State does not apply retroactively to Appellant/Petitioner.” State’s Resp. at 10-11.
This Court’s decision in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla.
Aug. 10, 2017), did not explicitly address or reject any of the federal retroactivity
arguments Mr. Suggs raised in his show-cause response. See Suggs Resp. at 6-19.
This Court’s opinion in Hitchcock relied exclusively on the reasoning in Asay
v. State, 210 So. 3d 1 (Fla. 2016). As the State acknowledges, the Court’s decision
in Asay rested entirely on the state retroactivity law articulated in Witt v. State, 387
So. 2d 922 (Fla. 1980). See State’s Resp. at 5 (“In Asay . . . . [t]his Court applied
the Witt analysis for retroactivity under state law”); see also Asay, 210 So. 3d at 16
(“To apply a newly announced rule of law to a case that is already final at the time
of the announcement, this Court must conduct a retroactivity analysis pursuant to
1
Mr. Suggs renews his requests that the Court permit untruncated briefing and oral
argument.
53a
the dictates of Witt.”).2 Asay did not address whether federal law required the Hurst
decisions to be applied retroactively, and certainly did not address the federal
retroactivity arguments raised in Mr. Suggs’s response to the order to show cause in
this proceeding. Namely, Asay did not address whether a retroactivity “cutoff”
drawn at Ring violates the Eighth Amendment’s prohibition against arbitrary and
capricious imposition of the death penalty or the Fourteenth Amendment’s Equal
Protection and Due Process Clauses. Nor did Asay address whether the Hurst
decisions are “substantive” within the meaning of federal law, such that the
Supremacy Clause of the Constitution requires state courts to apply the decisions
retroactively in light of Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
Hitchcock, in relying totally on Asay, also did not explicitly address or reject
Mr. Suggs’s federal retroactivity arguments. See Hitchcock, 2017 WL 3431500, at
*1 (“We affirm because we agree with the circuit court that our decision in Asay
forecloses relief.”); id. at *2 (“Accordingly, we affirm the circuit court’s order
summarily denying Hitchcock’s successive postconviction motion pursuant to
Asay.”). The State’s response relies upon the conclusory sentence in Hitchcock that
reads: “Although Hitchcock references various constitutional provisions as a basis
for arguments that Hurst v. State should entitle him to a new sentencing proceeding,
these are nothing more than arguments that Hurst v. State should be applied
retroactively to his sentence, which became final prior to Ring.” State’s Resp. at 10
(quoting Hitchcock, 2017 WL 3431500, at *2) (emphasis added). But the Hitchcock
2
As this Court has repeatedly emphasized, Witt addresses retroactivity as a matter
of state law, which is separate and distinct from federal retroactivity analysis. See,
e.g., Falcon v. State, 162 So. 3d 954, 955-56 (Fla. 2015).
54a
Court’s reference to “constitutional provisions” cannot be reasonably read to address
Mr. Suggs’s federal retroactivity arguments, as the very next sentence in Hitchcock
reads: “As such, these arguments were rejected when we decided Asay.”).
Hitchcock, 2017 WL 3431500, at *2. As explained above, Asay rested its analysis
entirely on state retroactivity law and the Florida Constitution.
During the nearly eight months between this Court’s decisions in Asay and
Hitchcock, many Hurst defendants have raised federal retroactivity arguments in this
Court and the circuit courts, explaining that Asay did not resolve those matters in its
exclusively state-law analysis and imploring that federal law be addressed. Those
defendants, appellants, and petitioners, as Mr. Suggs does here, advanced federal
retroactivity arguments under the Eighth and Fourteenth Amendments, as well as the
Supremacy Clause and Montgomery. If this Court had intended to put those
arguments to rest in Hitchcock, it could have done so. But any fair reading of
Hitchcock leads to the conclusion that those issues remain unresolved in light of the
Court’s wholesale reliance on Asay. Indeed, Hitchcock neither mentions the Eighth
Amendment’s prohibition against arbitrary and capricious imposition of the death
penalty, nor the Fourteenth Amendment’s Equal Protection and Due Process
Clauses. Nor does Hitchcock cite Montgomery or otherwise explain why the
Supremacy Clause does not require the substantive rules announced in the Hurst
decisions to be retroactively applied by state courts.
To the extent the State suggests that Mr. Suggs’s federal arguments have been
addressed in other cases, those decisions are not applicable here. To wit, the
Eleventh Circuit’s decision in Lambrix v. Sec’y, No. 17-14413, 2017 WL 4416205
55a
(11th Cir. Oct. 5, 2017), is not precedential in this Court and was decided in the
context of the current federal habeas statute, which dramatically restricts federal
review of state-court decisions.
More importantly, Lambrix dealt with an
idiosyncratic issue—the “retroactivity” of Florida’s new capital sentencing statute—
and did not squarely address the retroactivity of the constitutional rules arising from
the Hurst decisions. Similar idiosyncratic presentations also render inapplicable to
Mr. Suggs this Court’s active-death-warrant decisions in Asay v. State, 224 So. 3d
695 (Fla. 2017), Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla. Sep. 29,
2017), and Hannon v. State, No. SC17-1837, 2017 WL 4944899 (Fla. Nov. 1, 2017).
II.
The State’s cursory arguments concerning Hurst federal retroactivity are
not persuasive.
The State fails to engage substantively in Mr. Suggs’s argument that a
retroactivity cutoff at Ring violates the Eighth Amendment’s prohibition against
arbitrary and capricious imposition of the death penalty. See Suggs Resp. at 8-11.
The State has therefore abandoned any arguments on this issue. Cf. Hoskins v. State,
75 So. 3d 250, 257 (Fla. 2011); Hall v. State, 823 So. 2d 757, 763 (Fla. 2002).
The State’s failure to address the important Eighth Amendment problems with
a Ring-based retroactivity cutoff is telling. As Mr. Suggs explained, a Ring cutoff
injects into Florida’s death penalty jurisprudence a level of arbitrariness and
capriciousness—and also denial of equal protection and due process of law—that is
not present in typical circumstances where retroactivity is withheld based on widelyrecognized pragmatic necessity for courts to evolve constitutional protections
prospectively without undue cost to the finality of preexisting judgments.
56a
A Hurst retroactivity cutoff at Ring inaugurates a degree of capriciousness
that far exceeds the level justified by “normal” jurisprudence. To see why this is so,
one need only consider how Florida’s pre-Ring inmates do and do not differ from
their post-Ring peers. The two groups were both sentenced under a procedure that
allowed death sentences to be predicated upon factual findings not tested by a jury
trial. But inmates whose death sentences became final before Ring have been on
death row longer than their post-Ring counterparts and have demonstrated over a
longer time that they are capable of adjusting to that environment and live without
endangering any valid interest of the State. Pre-Ring inmates also have undergone
the prolonged suffering chronicled by Justice Breyer, dissenting from the denial of
certiorari in Sireci v. Florida, 137 S. Ct. 470 (2016), longer than post-Ring inmates.
Pre-Ring inmates also are more likely than their post-Ring counterparts to
have been sent to death row under standards that would not produce a capital
sentence—or even a capital prosecution—under the conventions of decency
prevailing today. In the generation since Ring, prosecutors and juries have been
increasingly unlikely to seek and impose death sentences. A significant number of
cases which terminated in a death verdict before Ring are cases where a death
sentence would not be imposed, or even pursued, in the modern era. And pre-Ring
inmates are more likely to have received death sentences in trials involving
problematic factfinding: the past two decades have witnessed a broad-spectrum
recognition of the unreliability of numerous kinds of evidence—flawed forensicscience theories and practices, hazardous eyewitness identification testimony, and
so forth—that was accepted without question in pre-Ring capital trials. Doubts that
57a
would cause today’s prosecutors, juries, and judges to hesitate to seek or impose a
death sentence were unrecognized in the pre-Ring era. Evidence that led to confident
convictions and unhesitating death sentences decades ago would have substantially
less persuasive power to prosecutors, juries, and judges today.
Taken together, these considerations highlight that a Ring-based retroactivity
cutoff involves a level of caprice that exceeds that tolerated by standard-fare
retroactivity rules. A Ring cutoff’s denial of relief in precisely the class of cases in
which relief makes the most sense is irremediably perverse and inconsistent with the
Eighth and Fourteenth Amendments.
The cursory federal retroactivity arguments the State does advance can be
dispensed with briefly. First, the State’s reliance on Griffith v. Kentucky, 479 U.S.
314, 328 (1987), see State’s Resp. at 8, is misguided. Griffith not only dealt with
new procedural rules rather than substantive rules, but also rejected the “clear break”
exception in order to expand the class of defendants who would get relief, not to
narrow it. Id. at 326-27. Importantly, the stated reason for the Court’s decision was
to avoid treating similarly-situated individuals differently. Id. at 328. This supports
Mr. Suggs’s argument: a retroactivity cutoff that deprives some capital defendants
of their fundamental right to a reliable determination of their sentences—while
affording similarly-situated defendants the benefits of decision-making by a penaltyphase jury—violates the Fourteenth Amendment’s guarantee of equal protection.
The State also relies on Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for
the proposition that the United States Supreme Court’s ruling in that case—that Ring
is not retroactive in a federal habeas proceeding—means that Hurst is not retroactive
58a
in any proceeding. See State’s Resp. at 6. But as Mr. Suggs explained initially, see
Suggs Resp. at 18-19, the Arizona statute at issue in Ring and Summerlin did not
require fact-finding regarding the aggravators and their “sufficiency” to justify the
death penalty. Summerlin acknowledged that if the Court itself “[made] a certain
fact essential to the death penalty . . . [the change] would be substantive.” 542 U.S.
at 354. Such a change occurred in the Hurst decisions where, for the first time, the
United States Supreme Court and this Court found it unconstitutional for a judge
alone to make a finding of fact as to the “sufficiency” of the aggravation.
Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard. Although the State attempts to distinguish Ivan V. v. City of New
York, 407 U.S. 203 (1972), and Powell v. Delaware, 153 A.3d 69 (Del. 2016), see
State’s Resp. at 5-6, those attempts fall flat. Even assuming, as the State suggests,
that Florida’s scheme formerly incorporated the beyond-a-reasonable-doubt
standard, that standard was misapplied to findings of fact made by the trial judge,
not by the jury. The Hurst decisions held that the jury must make the beyond-areasonable-doubt findings that subject a defendant to a death sentence. Indeed, a
federal judge in Florida, citing Ivan, has already observed the distinction between
the holding of Summerlin and the retroactivity of Hurst because of the beyond-areasonable-doubt standard. See Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May
27, 2016) (contrasting Hurst to Ring and Summerlin, because the latter decisions
“did not address the requirement for proof beyond a reasonable doubt,” and “[t]he
Supreme Court has held a proof-beyond-a-reasonable-doubt decision retroactive”).
The State’s citation to Powell in arguing against the federal retroactivity of
59a
Hurst, see State’s Resp. at 5-6, is particularly odd considering that in Powell, the
Delaware Supreme Court applied a retroactivity test that mirrors the federal
retroactivity test articulated in Teague v. Lane, 489 U.S. 288 (1989), and held that
Hurst should be applied retroactively in Delaware. See Powell, 153 A.3d at 75-76.
If anything, Powell favors Mr. Suggs’s position.
Finally, the State mischaracterizes Mr. Suggs’s arguments under
Montgomery. Mr. Suggs correctly explained that Montgomery held that states are
bound by the Supremacy Clause to apply constitutional rules retroactively when
those rules are substantive within the meaning of federal law. See Suggs Resp. at
13-19; Montgomery, 136 S. Ct. at 728-29 (“[W]hen a new substantive rule of
constitutional law controls the outcome of a case, the Constitution requires state
collateral review courts to give retroactive effect to that rule.”). The Hurst decisions
announced substantive rules, and the Supremacy Clause requires this Court to apply
those rules retroactively.
III.
The State abandons any “harmless error” arguments.
The State abandons any argument that the Hurst error in Mr. Suggs’s case was
harmless by failing to even reference the harmless error doctrine in its response. See
Hoskins, 75 So. 3d at 257 (“An issue not raised in an initial brief is deemed
abandoned.”) (citing Hall, 823 So. 2d at 763 (Fla. 2002)) (quotation cleaned up). As
Mr. Suggs argued in his initial filing, the Hurst error is not harmless under this
Court’s precedent in light of the advisory jury’s non-unanimous recommendation.
60a
IV.
The State fails to rebut Mr. Suggs’s fundamental fairness argument
regarding his pre-Ring preservation of the issues addressed in Hurst.
The State’s response ignores Mr. Suggs’s assertion that this Court’s
“fundamental fairness” doctrine should entitle him to retroactive application of
Hurst. See Suggs Resp. at 6-8. Thus, the unrefuted record before this Court reflects
that, since well before Ring, Mr. Suggs consistently attempted to challenge his death
sentence based upon the rationale in Hurst. As Mr. Suggs argued in his initial filing,
this Court should apply the Hurst decision to him under the fundamental fairness
doctrine, notwithstanding the date that his sentence became final.
CONCLUSION
For the reasons above and in Mr. Suggs’s initial response to the Court’s order
to show cause, this Court should hold that federal law requires the Hurst decisions
to be applied retroactively and vacate Mr. Suggs’s death sentence.
Respectfully submitted,
/s/ Dawn B. Macready
Dawn B. Macready
Assistant CCRC-North
Florida Bar No. 0542611
1004 DeSoto Park Drive
Tallahassee, Florida 32301
(850) 487-0922
Dawn.Macready@ccrc-north.org
Stacy Biggart
Assistant CCRC-North
Florida Bar No. 89388
Stacy.Biggart@ccrc-north.org
COUNSEL FOR MR. SUGGS
61a
CERTIFICATE OF SERVICE
I hereby certify that on November 12, 2017, this reply brief was electronically
served via the e-portal to Assistant Attorney General Lisa A. Hopkins at
Lisa.Hopkins@myfloridalegal.com.
/s/ Dawn B. Macready
Dawn B. Macready
62a
EXHIBIT 7
63a
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EXHIBIT 8
73a
1.
Alston v. State, Nos. SC17-499, SC17-983, 2018 WL 494427 (Fla. Jan. 22, 2018)
2.
Bates v. State, 238 So. 3d 98 (Fla. 2018)
3.
Bradley v. Jones, 238 So. 3d 95 (Fla. 2018)
4.
Branch v. State, 234 So. 3d 548 (Fla. 2018)
5.
Jones v. State, 234 So. 3d 545 (Fla. 2018)
6.
Peterka v. State, 237 So. 3d 903 (Fla. 2018)
7.
Phillips v. State, 234 So. 3d 547 (Fla. 2018)
8.
Stephens v. State, 238 So. 3d 94 (Fla. 2018)
9.
Suggs v. State, 234 So. 3d 546 (Fla. 2018)
10.
Walls v. State, 238 So. 3d 96 (Fla. 2018)
11.
Atwater v. State, 234 So. 3d 550 (Fla. 2018)
12.
Beasley v. State, 234 So. 3d 553 (Fla. 2018)
13.
Burns v. State, 234 So. 3d 555 (Fla. 2018)
14.
Clark v. State, 238 So. 3d 99 (Fla. 2018)
15.
Cole v. State, 234 So. 3d 644 (Fla. 2018)
16.
Ford v. State, 237 So. 3d 904 (Fla. 2018)
17.
Puiatti v. State, 234 So. 3d 551 (Fla. 2018)
18.
Rhodes v. State, 234 So. 3d 554 (Fla. 2018)
19.
Willacy v. State, 238 So. 3d 100 (Fla. 2018)
20.
Windom v. State, 234 So. 3d 556 (Fla. 2018)
21.
Dillbeck v. State, 234 So. 3d 558 (Fla. 2018)
22.
Evans v. State, No. SC17-869, 2018 WL 524796 (Fla. 2018)
23.
Jackson v. State, 237 So. 3d 905 (Fla. 2018)
1
74a
24.
Kokal v. State, 237 So. 3d 907 (Fla. 2018)
25.
Lucas v. State, 234 So. 3d 647 (Fla. 2018)
26.
Marquard v. State, 234 So. 3d 560 (Fla. Jan. 24, 2018)
27.
Sweet v. State, 234 So. 3d 646 (Fla. 2018)
28.
Taylor v. State, 234 So. 3d 649 (Fla. 2018)
29.
Thomas v. State, 234 So. 3d 559 (Fla. 2018)
30.
Trease v. State, No. SC17-686, 2018 WL 1959603 (Fla. Apr. 26, 2018)
31.
Anderson v. State, 235 So. 3d 277 (Fla. 2018)
32.
Finney v. State, 235 So. 3d 279 (Fla. 2018)
33.
Hartley v. State, 237 So. 3d 908 (Fla. 2018)
34.
Jeffries v. State, 235 So. 3d 283 (Fla. 2018)
35.
Kelley v. State, 235 So. 3d 280 (Fla. 2018)
36.
Lightbourne v. State, 235 So. 3d 285 (Fla. 2018)
37.
Morris v. State, 236 So. 3d 324 (Fla. 2018)
38.
Stewart v. State, 235 So. 3d 798 (Fla. 2018)
39.
Trepal v. State, 235 So. 3d 281 (Fla. 2018)
40.
Trotter v. State, 235 So. 3d 284 (Fla. 2018)
41.
Bell v. State, 235 So. 3d 287 (Fla. 2018)
42.
Bowles v. State, 235 So. 3d 292 (Fla. 2018)
43.
Brown v. State, 235 So. 3d 289 (Fla. 2018)
44.
Davis v. State, 235 So. 3d 295 (Fla. 2018)
45.
Foster v. State, 235 So. 3d 290 (Fla. 2018)
46.
Foster v. State, 235 So. 3d 294 (Fla. 2018)
2
75a
47.
Fotopoulos v. State, 237 So. 3d 911 (Fla. 2018)
48.
Gamble v. State, 235 So. 3d 288 (Fla. 2018)
49.
Jennings v. State, 237 So. 3d 909 (Fla. 2018)
50.
Long v. State, 235 So. 3d 293 (Fla. 2018)
51.
Booker v. Jones, 235 So. 3d 298 (Fla. 2018)
52.
Davis v. Jones, 235 So. 3d 301 (Fla. 2018)
53.
Gudinas v. State, 235 So. 3d 303 (Fla. 2018)
54.
Lamarca v. State, 237 So. 3d 914 (Fla. 2018)
55.
Mendoza v. State, 235 So. 3d 302 (Fla. 2018)
56.
Occhicone v. State, 235 So. 3d 299 (Fla. 2018)
57.
Pace v. State, 237 So. 3d 912 (Fla. 2018)
58.
Rogers v. State, 235 So. 3d 306 (Fla. 2018)
59.
Sochor v. State, 235 So. 3d 304 (Fla. 2018)
60.
Whitfield v. State, 235 So. 3d 297 (Fla. 2018)
61.
Consalvo v. State, 235 So. 3d 307 (Fla. 2018)
62.
Gordon v. State, 235 So. 3d 311 (Fla. 2018)
63.
Krawczuk v. State, 237 So. 3d 915 (Fla. 2018)
64.
Miller v. Jones, 237 So. 3d 921 (Fla. 2018)
65.
Nelson v. State, 235 So. 3d 308 (Fla. 2018)
66.
Rodriguez v. State, 237 So. 3d 918 (Fla. 2018)
67.
Sireci v. State, 237 So. 3d 916 (Fla. 2018)
68.
Sliney v. State, 235 So. 3d 310 (Fla. 2018)
69.
Stein v. State, 237 So. 3d 919 (Fla. 2018)
3
76a
70.
Whitton v. State, 238 So. 3d 724 (Fla. 2018)
71.
Damren v. State, 236 So. 3d 230 (Fla. 2018)
72.
Derrick v. State, 236 So. 3d 231 (Fla. 2018)
73.
Griffin v. State, 236 So. 3d 237 (Fla. 2018)
74.
Hodges v. State, 236 So. 3d 241 (Fla. 2018)
75.
Johnson v. State, 236 So. 3d 232 (Fla. 2018)
76.
Lawrence v. State, 236 So. 3d 240 (Fla. 2018)
77.
Melton v. State, 236 So. 3d 234 (Fla. 2018)
78.
Morton v. State, 236 So. 3d 242 (Fla. 2018)
79.
Overton v. State, 236 So. 3d 238 (Fla. 2018)
80.
Pietri v. State, 236 So. 3d 235 (Fla. 2018)
4
77a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.