Petition for Writ of Certiorari — Sonny Ray Jeffries, Petitioner v. Florida

No.

Sun the Supreme Court of the United States

SONNY RAY JEFFRIES,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

PETITION FOR WRIT OF CERTIORARI

DEATH PENALTY CASE

MARIA C. PERINETTI

FLORIDA BAR NUMBER 0013837

COUNSEL OF RECORD

Lisa M. BoRT

FLORIDA BAR NUMBER 119074

LAW OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL - MIDDLE REGION

12973 N. TELECOM PARKWAY

TEMPLE TERRACE, FLORIDA 33637

PERINETTI@CCMR.STATE.FL.US

(813) 558-1600

CAPITAL CASE

QUESTION PRESENTED

Whether the Florida Supreme Court’s “retroactivity cutoff’ for Hurst v. Florida, 136

S.Ct. 616 (2016) can be applied to deny Mr. Jeffries Hurst relief on the ground that his sentence

did not become final at least one day after the 2002 decision in Ring v. Arizona, 536 U.S. 584

(2002), even though the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000) was the

basis for both Ring and Hurst.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page. Mr. Jeffries was the

Appellant below. The State of Florida was the Appellee below.

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TABLE OF CONTENTS

CONTENTS PAGE(S)

QUESTION PRESENTED 0.0... eeeecesencesececescersnecssceceanereeaeesenaceesaneceanersaaeesaeeeeeesaeeseateseneeeeaeeees 1

LIST OF PARTIES essssccsssscssssvssssssesssssssssssessssnsssnessscvaseseneseseinessseneseeesssasesiasesseeessuesetn ii

TABLE OF CONTENTS .eccsccsssssssssseesseesssesstssesessvsssvnssssssssnessnsevnetieesssetsseieesiesesieesnen ii

TABLE OF AUTHORITIES ..00....eecceeeceecesccesesceceseceseeecsesecseeeesscecesaceesceseseneesscecaeseeeeeaeeeeseeceneeensees v

PETITION FOR WRIT OF CERTIORARL ...oceeeceeecesceeeeecesseeceseneeceneecseeceaneescecesseeseeeeseeteneteesees 1

OPINIONS BELOW Qu. ec eeccceseeeceesceessccerescecesnecseeesssecessecesacecesacecssaesseecsaeeesaterseerseeeseatereeeeeasees 1

JURISDICTION wcescssssssscstsesssesssvnsseesesvnsseessenseeseseese seccssusesseesieessestsesteetaseseesieeeieeee 1

CONSTITUTIONAL PROVISIONS INVOLVED... cccccccecesccceeseeesneeseeeeseeesnecenseenseeesnecesneeeenees 1

STATEMENT OF THE CASE....0.....cccciceeeeeeeeeeeeeees Lancecessssscceceecersecesaceeererscsneeersessseeessesaseeerersesanaes 2

T. Umtroduction nn... cee eeeeceeescceeeeceeenecessscecenecsscecaeeesceeseaeeceaneeecseceeseeeesesesaeeeeeeeeseceeseeeseeeesneeeens 2

II. Factual and Procedural Background 0.0.2... ceeeceeeseeeenceceseceeeesecenececeaceesaeeesaeeeaeesueesenseeeneeeeee 2

A. Trial and Direct Appeal 0.0... eececsesteseesesseeeeesteseeeeseeseeneaneseensenenesneeneeneeneenssnsaseneeseaneey 2

B. POStcOnVvictiOn...........cccccccccceseseceeeeesseeeeeees bacceceeneceesssnacececsaesecesescessaeecenereeeeeeseseeerenseess 4

C. Motion Seeking Hurst Relief cccccccccccsscsssssssssssesssssssssssssssssussssssssssssssssstutssssssssesese 5

REASONS FOR GRANTING THE WRIT... ccccceeeescesseneeeeeeseeeeeeeeneceseeseeeseseeceeeeesseeneeeeseaeeeses 5

I. Petitioner’s death sentence violates Hurst, and the error is not “harmless” ...............0.0000 5

II. The Florida Supreme Court’s “retroactivity cutoff’ at Ring is unconstitutional and should

not be applied to Petitioner’s post-Apprendi death Sentence... ee eecceseeeeeeseeeneeteeeeneeeseres 7

A. The Florida Supreme Court’s Ring-based retroactivity cutoff is unconstitutional as

applied to post-Apprendi death sentences because Apprendi was the constitutional

basis for both Ring and Hurt ........escesccescceseeescessceresceesneceseeseessaecesecesesesseseeesseesseeneees 8

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TABLE OF CONTENTS

CONTENTS PAGE(S)

B. The Florida Supreme Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition of the death

C. The Florida Supreme Court’s retroactivity cutoff violates the Fourteenth

Amendment’s guarantee of equal protection and due process.........ccesceessesesteeteeteeees 13

III. 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 ...........secccessscceseceeseceneecenseeeseeeseeeceeeeeeseeeseeens 15

A. The Hurst decisions announced substantive rules that must be applied retroactively to

Petitioner under the Supremacy Clause ..........eeseesscseecsseeeeecececeeeceneeceecueceaeeeseenseeeees 16

CONCLUSION Qo. eeeccescceeeeseesseessessecsnevseeseesncsceesecscessecssseseeeseensesseesaeeasessessecseeaseasesserseeeneeseseeeees 19

APPENDICES IN SEPARATE VOLUME

Appendix A Florida Supreme Court Opinion denying appeal of Defendant’s Successive

Motion to Vacate Death Sentence, dated January 26, 2018.

Jeffries v. State, 235 So. 3d 283 (Fla. 2018).

Appendix B- Circuit Court of the Ninth Judicial Circuit Order Denying Defendant’s Successive

Motion to Vacate Death Sentence, dated March 28, 2017.

Appendix C Florida Supreme Court Opinion denying direct appeal from trial, dated August 23,

2001.

Jeffries v. State, 797 So. 2d 573 (Fla. 2001).

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TABLE OF AUTHORITIES

CASES PAGE(S)

Apprendi v. New Jersey, 530 U.S. 466 (2000) .......-. hesccecessseceeescececseeecsccecesecssceeeeenateteeeeneerens Passim

Bailey v, Jones, 225 So. 34-776 (Fla. 2017) ssesscssssssesssssssssssssssssssssssssssssivsessssassusastssssesee 7

Bates v. State, 3 So. 3d 1091 (Fla. 2009) .o...eccceecececeeecsssecssecesesecesseensceesseeesneecsneecesecesseeeesseeseeenes 12

Booker v. State, 773 So. 2d 1079 (Fla. 2000) 2......eeecesessecssceeeseceesseesneeesseeessneessseseesseeesseeenseeeseeenes 11

Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) .......ececcecceesesscescscesceesseeesneceeeseeceseseesseceseseeeereesnsenses 9

Bowles v. Florida, 536 U.S. 930 (2002) oo... eececssecesceeseseceseeseceecsseeseeseceseaecesevsceeceesseeeeeesseseeserseees 11

Bowles v. State, 235 So. 3d 292 (Fla. 2018) ...eseeesesseeseesessesseeesentensseeensensneeensenseneneeensenseey 11,12

Bradley v. State, 33 So. 3d 664 (Fla. 2010) ........... “sesceneceseescesseenecsseesceceesecesacesecseeeecseeceeteeseseneerass 12

Calloway v. State, 210 So. 3d 1160 (Fla. 2017) ooo. csecseceeesscesecsereeseseeseceaeeseeeseesaseaceeeeaes 12

Card v. Florida, 536 U.S. 963 (2002)......cceeeee besscceeecsaceceessaccecesceeessceseneessacersnsesceessereseesenstessess 11

Card v. Jones, 219 So. 3d 47 (Fla. 2017) ceccsccsscssssssssssssssssesssssssssssssssessssessessessssesssesssssssssesssssse 7,12

Card v. State, 803 So. 2d 613 (Fla. 2001)... cececesccecsessessesescsesscseesesensessesevseeeseesereaserseranerae 11

Dubose v. State, 210 So. 3d 641 (Fla. 2017)... eee veceseeseesseeeesaeescesseesaceaessaeesesaessecseseneeeeees 7

Eisenstadt v. Baird, 405 U.S. 438 (1972) occ ecesceeseceecsceescessesseceeeseeseseeeesnecseesaeenecsseeesessesseeaceeees 13

Evitts v. Lucey, 469 U.S. 387 (1985) ooo eeescesccsecesecnsecseceeceneeesecseeseeaesessesnersesesseneeeseesseeseseensenees 14

Faretta v. California, 422 U.S. 806 (1975) oo. ee cecccscesscreceerseceeesseeaecaceesesesecsesaeetesenteeaees ee 3

Ford v. Wainwright, 447 U.S. 399 (1986) oe eeeeesccceneeenecesceceeececeeseesneceneecsaeeeaeesseersceerseenseenserees 14

Furman v. Georgia, 408 U.S. 238 (1972)... eeccesceeessssneceseceneecseeesseeseesaeecacecseeeeseeeseeceeeeeseeeseeeseeaes 10

Gregg v. Georgia, 428 U.S. 153 (1976) coccceccessessessssessessssssssecsessesscssesssesacssssessessessesanssesecsneesesseesees 10

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CASES | PAGE(S)

Hall v. State, 201 So. 3d 628 (Fla. 2016)... cee ceeeecesesseeseeseesscesecenseeevsnesacseeeeaeeeeeseesseeeeeeseeseneees 11

Hernandez v. Jones, 217 So. 3d 1032 (Fla. 2017) .....cccccccccesscsesccssceesseeessseceeseecesseceseecessesessesessneeens 7

Hertz v. Jones, 218 So. 3d 428 (Fla. 2017) .cccccccecesccscsecseeecsenesecseseneeecseneesesessseseessensasescsseneeeeeees 7

Hicks v. Oklahoma, 447 U.S. 343 (1980) .....esceeescesseeceseeeesseesecseesseeseessecseceseeseeeressesaneesneats 14, 15

Hildwin v. Florida, 490 U.S. 638 (1989) uo... eceecssseesesesesesscesseeserscesseeseesaeessensesesensesesseeneeseseeaeeeeees 8

Hitchcock v. State, 226 So. 3d 216 (Fla. 2017)... eeceeeecscescesseeeeesceeeeeseeseeessesseeseeacenseenseresseeeees 2,5

Hurst v. Florida, 136 S.Ct. 616 (2016)... ceeeecssesecseessessccseeesceseesnesseesseeeseenecsneseeeerenseaesees Passim

Hurst v. State, 202 So. 3d 40 (Fla. 2016)... cece eccseceeceseenecneceeessesseesaevseesnesseeseeseveneeeees 6, 16, 17

In re Winship, 397 U.S. 358 (1970) ..o.ccecscccessceesssceessecessecsneccenscceseecnseceesseceseneceesseeeaeeesseeesnecnseeaeeees 18

Ivan V. v. City of New York, 407 U.S. 203 (1972) ..cccccccssesssesssesseeeessseesseeeessceseesseeeseesneesssesesesenees 18

Jeffries v. State, 797 So. 20 573 (Fla. 2001) .....eeeeecccesessscesseescesseesscenseeeseecssecesscenseeeeseeseenseees iv, 3,4

Jeffries v. State, 235 So. 3d 283 (Fla. 2018) oo. eeeeeeeees sessesseecesesensseceseseasseseseseseessscseees iv, 1,5

Johnson v. State, 904 So. 2d 400 (Fla. 2005) oo... eeeeeescesceereesecseceseesecenecseeseesaecaceseceaseaeenerseeaesaeeaes 9

Johnson v. State, 205 So. 3d 1285 (Fla. 2016) oo. cseeceesseseeeeceseeeeeeeeceseeseeesensceseeeserseesesseeseeeess 12

King v. Moore, 831 So. 2d 143 (Fla. 2002) oo... ce eeesescseeseevsecsseesesaceesceeecseeesessneeeasesesseesenseeseesees 9

Lockett v. Ohio, 438 U.S. 586 (1978) ...cceececesccseecsseesessecsecssesseeneesscsnesseesacereesseenevsaceeenersetseseeenees 13

Lugo v. State, 845 So. 2d 74 (Fla. 2003)... ecescccsssccssceeensceesnecesneesseeceesceecsseecesnecseeecesneessseessesaees 1]

McLaughlin v. Florida, 379 U.S. 184 (1964) ....ecccesccscssceesseeeseceseceesnececsacecssneeesseeesaeeeseeesseeeseensaes 13

McMillian v. State, 214 So. 3d 1274 (Fla. 2017) ccc ceccccssccessceeseeceseeeenseeecesseeeseeeeseceesseeereeseeesaeeens 7

Miller v. Alabama, 567 U.S. 460 (2012)... ee cceccccssesseeeensnecenseeeseecsceceesenscesseeenscecsececsaecsseeessensaes 15

Miller v. State, 926 So. 2d 1243 (Fla. 2006)... eee eeseecseeeeeceeceeceeceeessseeecessceseceesnsesesaseneearaeeaees 12

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TABLE OF AUTHORITIES

CASES PAGE(S)

Mills v. Moore, 786 So. 24.532 (Fla. 2001)... ceecccseeseeeseseceeceseesseeeesceeeseeesceesceecsssensesensseeessseeeaees 9

Montgomery v. Louisiana, 136 S. Ct. 718 (2016)... eeeccesscccessccsesseeecsceseseesecerseeessesenseeens 15, 16, 17

Mosley v. State, 209 So. 3d 1248 (Fla. 2016) oo. ecseecsecseeessceseescsenevsceeceeesseceeaeeseesersaeesrenees 7,9

Nixon v. State, 932 So. 2d 1009 (Fla. 2006)... ee cccecsseceseeecesseceecsaceseeeeessesaeesesesessersneeseeseenees 12

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) ....ccccccssccesessseessecesseeseseeseneeceseeens 14

Powell v. Delaware, 153 A.3d 69 (Del. 2016)... eee haceeeseceesseeesneceescessacessesceeeeeeeseseneeesneeess 18

Ring v. Arizona, 536 U.S. 584 (2002)... ceeecceececsneeeeseeeeeeesececessceenseeeesseceseeenaeeeessesesseenasenenes Passim

Schriro v. Summerlin, 542 U.S. 348 (2004) ....cceeeceessessnecescceeeeceecesseceseceeceeesaeeseseesnsaeenseeeeseeens 17, 18

Skinner v. Oklahoma, 316 U.S. 535 (1942) ..ceeccescccseesesencessseesscesseeseneesseesseeeceeesseeeseesaeeesteneeeneee 13

Spaziano v. Florida, 468 U.S. 447 (1984) oe eeeeeeeeeee —_ seveceesecseescesesseesseseenseseceeseeeteceneeaees 8

Spencer v. State, 615 So. 2d 688 (Fla. 1993) oie ecseeesecssecseceseeesesseeeecesesseesneeaeeeesaeseseeeeereceeeaees 4

US. Dept. of Agriculture , 413 U.S. 528 (1973)... eececcssccescceecesecesceseeserseesceseesaeeserseeesssaeeeneeaeens 13

Walton v. Arizona, 497 U.S. 639 (1990)... cceececescesssesseeesceeceesseceesecseneesseeeseceeseeeeeceseeeeeesensaeensees 8

Welch v. United States, 136 S. Ct. 1257 (2016)... ccccccccsssseceeensececeesscceessceceessececssesecsessesensssesens 18

Statutes

28 US.C. § 125 7a). eeeeeecsccseecsccesecencevsneesccsecsseeseesscesecacescenseecseesserseeeaeenecseeneeesecsecseessesseeseceaeensenees 1

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PETITION FOR WRIT OF CERTIORARI

Sonny Ray Jeffries respectfully petitions for a writ of certiorari to review the errors in

judgment of the Florida Supreme Court.

OPINIONS BELOW

The opinion of the Florida Supreme Court is reported at Jeffries v. State, 235 So. 3d 283

(Fla. 2018) and reproduced at Appendix A. The trial court’s unpublished order denying Mr.

Jeffries’ successive motion for postconviction relief is reproduced at Appendix B.

JURISDICTION

The opinion of the Florida Supreme Court was entered on January 26, 2018. Appendix A.

No motion for rehearing was filed. On April 13, 2018, Justice Thomas granted an extension of

time to file a petition for certiorari to June 25, 2018. This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides, in relevant part:

In all criminal prosecutions, the accused shall enjoy theright to a

speedy and public trial, by an impartial jury’....

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

The Fourteenth Amendment provides, in relevant part:

[Njor shall any state deprive any person of life, liberty, or

property, without due process of law....

STATEMENT OF THE CASE

I. Introduction

Petitioner’s death sentence was imposed after an eleven to one jury recommendation

pursuant to the capital sentencing scheme that was ruled unconstitutional in Hurst. Hurst v.

Florida, 136 8.Ct. 616 (2016). Petitioner’s sentence became “final” on January 7, 2002, after this

Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). Yet the Florida Supreme Court has

consistently denied the retroactive application of Hurst to defendants whose death sentences

were final when this Court decided Ring v. Arizona, 536 U.S. 584 (2002). See Hitchcock v. State,

226 So. 3d 216 (Fla. 2017). A core issue in this case is whether the Florida Supreme Court can

constitutionally apply its “retroactivity cutoff” to deny Petitioner Hurst relief on the ground that

his sentence did not become final at least one day after the 2002 decision in Ring, even though

the rule announced in Apprendi was the basis for both Ring and Hurst.

Il. Factual and Procedural Background

A. Trial and Direct Appeal

- Petitioner was indicted by the Grand Jury for the Ninth Judicial Circuit, Orange County

Florida, on October 18, 1993, for premeditated first-degree murder, armed robbery, and armed

burglary of Wilma Martin on August 20 or 21, 1993. The trial court committed Petitioner to the

Department of Health and Rehabilitative Services (HRS) on several occasions prior to his trial

because he was found incompetent to stand trial. During his commitment, HRS received an order

from the trial court to administer psychotropic drugs to the Petitioner involuntarily. It was not

until April 20 through 23, 1998, before Petitioner was tried by jury in Orange County, Florida.

On April 23, 1998, the jury found Petitioner guilty of first-degree murder and armed robbery as

charged and not guilty of armed burglary.

On July 13, 1998, the circuit court, sua sponte, set a hearing on Petitioner’s request to

appoint new counsel. On August 14, 1998, the circuit court conducted a hearing on Petitioner’s

motion to proceed pro se. During this hearing defense counsel presented the court with an

affidavit signed by Dr. Brad Fisher questioning the competency of Petitioner to waive counsel.

On August 28, 1998, the Court held a Faretta’ hearing and found Petitioner competent to waive

his right to counsel for the penalty phase hearing. The court appointed stand-by counsel.

Petitioner represented himself at the penalty phase hearing, which was held on September

8 through 9, 1998, with the assistance of stand-by counsel. After the presentation of all testimony

and evidence, Petitioner waived closing argument. The jury recommended that the court impose

death for the first-degree murder of Wilma Martin by a vote of eleven to one. After the jury’s

recommendation, the trial court adjudicated the Petitioner guilty on counts one and two of the

indictment and Petitioner requested that counsel be reappointed. On October 15, 1998, the trial

court denied Petitioner’s request to be designated as co-counsel and held the Spencer’ hearing.

Defense counsel represented Petitioner at the Spencer hearing. On January 22, 1999, the trial

court sentenced Petitioner to death for the first-degree murder of Wilma Martin and to life in

prison on count two, armed robbery.

In support of the death sentence, the trial court found the following two aggravators: (1)

that the murder was committed by a person engaged in the commission of a robbery and (2) the

murder was especially heinous, atrocious, and cruel (HAC). See Jeffries v. State, 797 So. 2d 573,

576 (Fla. 2001). The trial court found the following mitigators: (1) defendant’s capacity to

appreciate the criminality of his conduct was impaired; (2) codefendant Harry Thomas, who was

equally culpable, pled to second-degree murder and was sentenced to twenty years; (3) the

1 Faretta v. California, 422 U.S. 806 (1975).

defendant has a long history of emotional and mental problems; (4) the defendant has a long

history of drug and alcohol abuse; (5) the defendant has attempted suicide; and (6) the State

offered the defendant a plea of life in prison. See id. The Supreme Court of Florida denied all of

these grounds and affirmed Petitioner’s convictions and sentences. See Jd. Petitioner did not

seek certiorari before this Court.

B. Postconviction

On November 26, 2002, Petitioner was found temporarily incompetent to proceed. On

December 2, 2002, Petitioner filed an original Motion to Vacate Judgment and Sentence. No

evidentiary hearings on the postconviction motion were scheduled due to the extended

competency proceedings. The postconviction court conducted competency hearings in 2005, and

on December 15, 2005, issued an Order Finding Defendant Competent. On January 26, 2006,

Petitioner sought review of this non-final order. On January 24, 2007, the Florida Supreme Court

denied Petitioner’s motion for stay and dismissed his petition to review the order, without

prejudice to raise it on direct appeal. Petitioner subsequently filed an Amended Motion to Vacate

Judgment of Conviction and Sentence on February 17, 2006, which was dismissed on April 13,

2006 because it was not under oath; a Motion to Determine Competency on June 9, 2006, which

was denied on April 2, 2007; and another Amended Motion to Vacate Judgment of Conviction

and Sentence on June 9, 2009, which was dismissed on March 28, 2007 because it was not under

oath. On December 6, 2007, the postconviction court issued a Status Order, in which is stated

that “[t}]he record in the above-styled case is devoid of any new Rule 3.851 Motion signed by Mr.

Jeffries, or any other new pleading” and that “there are no legal matters or challenges currently

pending before the Court.” In July 2008, the postconviction court issued a written “Response” in

2 Snencer v. State, 615 So. 2d 688 (Fla. 1993).

response to postconviction counsel’s telephonic request for a Final Order that is able to be

appealed to the Florida Supreme Court. The court stated in its response that “[t]he December 6,

2007 Order was not intended to be a Final Order to dispose of a pending Motion or claim for

relief. It was entered for the sole purpose of clarifying that there were no such pending motions.

No relief was denied and accordingly, there was nothing to appeal.”

C. Motion Seeking Hurst Relief

On January 9, 2017, Petitioner filed a. Successive Motion to Vacate Death Sentence

pursuant to Florida Rule of Criminal Procedure 3.851 seeking Hurst relief. The circuit court

issued a Final Order Denying Defendant’s Successive Motion to Vacate Death Sentence on

March 28, 2017. Appendix B. A Notice of Appeal was timely filed on April 27, 2017. On June

20, 2017, the Florida Supreme Court issued an order directing the Appellant to “show cause on

or before Monday, October 16, 2017, why the trial court’s order should not be affirmed in light

of this Court’s decision in Hitchcock v. State, SC17-445.”

On appeal, the Florida Supreme Court affirmed the denial of Petitioner’s motion and

found that Hurst does not apply retroactively to his sentence of death, which became final in

January of 2002. See Jeffries, 235 So. 3d 283.

REASONS FOR GRANTING THE WRIT

I. Petitioner’s death sentence violates Hurst, and the error is not “harmless”.

Petitioner was sentenced to death pursuant to an unconstitutional Florida capital

sentencing scheme. In Hurst v. Florida, this 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. See 136 S. Ct. at 620-22. Those findings included:

(1) the aggravating factors that were proven beyond a reasonable doubt; (2) whether those

Nn

aggravators were “sufficient” to justify the death penalty; and (3) whether those aggravators

outweighed the mitigation. See id. Under Florida’s unconstitutional scheme, an “advisory” jury

rendered a generalized recommendation for life or death by a majority vote, without specifying

the factual basis for the recommendation, and then the sentencing judge alone, notwithstanding

the jury’s recommendation, conducted the fact-finding. See id at 622. In striking down that

scheme, the Court held that the jury, not the judge, must make the findings of fact required to

impose death. See id.

On remand, the Florida Supreme Court applied the holding of Hurst v. Florida, and

further held that the Eighth Amendment requires unanimous jury fact-finding as to each of the

required elements, and also a unanimous recommendation by the jury to impose the death

penalty. Hurst v. State, 202 So. 3d 40, 53-59 (Fla. 2016). The Florida Supreme Court also noted

that even if the jury unanimously finds that each of the required elements is satisfied, the jury is

not required to recommend the death penalty and the judge is not required to sentence the

defendant to death. See id. at 57-58.

Petitioner’s jury was never asked to make unanimous findings of fact as to any of the

required elements. Instead, after being instructed that its decision was advisory, and that the

ultimate responsibility for imposing a death sentence rested with the judge, the jury rendered a

non-unanimous, generalized recommendation that the judge sentence Petitioner to death. The

record does not reveal whether Petitioner’s jurors unanimously agreed that any particular

aggravating factor had been proven beyond a reasonable doubt, or unanimously agreed that the

aggravators were sufficient for death, or unanimously agreed that the aggravators outweighed

the mitigation. However, the record is clear that Petitioner’s jurors were not unanimous as to

whether the death penalty should even be recommended to the court.

Petitioner’s pre-Hurst jury recommended the death penalty by a vote of eleven to one.

Florida Supreme Court precedent makes clear that Hurst errors are not harmless where the

defendant’ s pre-Hurst jury recommended death by a non-unanimous vote. See Dubose v. State,

210 So. 3d 641, 657 (Fla. 2017) (“[I]n cases where the jury makes a non-unanimous

recommendation of death, the Hurst error is not harmless.”). The Florida Supreme Court has

declined to apply the harmless error doctrine in every case where the pre-Hurst jury’s

recommendation was not unanimous.*

Il. The Florida Supreme Court’s “retroactivity cutoff” at Ring is unconstitutional and

should not be applied to Petitioner’s post-Apprendi death sentence.

Beginning with Mosley v. State, 209 So. 3d 1248 (Fla. 2016), the Florida Supreme Court

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. However, the Florida

Supreme 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.

Petitioner’s death sentence became final on January 7, 2002, during the two-year period

between Apprendi and Ring. The Florida Supreme Court has never specifically addressed this

“Apprendi gap” in its state-law retroactivity precedent. The Ring-based retroactivity cutoff

violates the United States Constitution and should not be applied to deny Petitioner the same

Hurst relief being granted in scores of materially indistinguishable collateral cases, particularly

given that his sentence became final after Apprendi, which was the constitutional basis for both

Ring and Hurst. Denying Petitioner Hurst retroactivity because his death sentence became final

> See, e.g., Bailey v. Jones, 225 So. 3d 776, 777 (Fla. 2017) (11-1 jury vote); Hertz v. Jones, 218

So. 3d 428, 431-32 (Fla. 2017) (10-2 jury vote); Hernandez v. Jones, 217 So. 3d 1032, 1033 (Fla.

2017) (11-1 jury vote); Card v. Jones, 219 So. 3d 47, 48 (Fla. 2017) (11-1 jury vote); McMillian

v. State, 214 So. 3d 1274, 1289 (Fla. 2017) (10-2 jury vote).

before Ring in 2002, while affording retroactivity to similarly-situated defendants who were

sentenced (or resentenced) between June 24, 2002 and 2016, would violate 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. The Florida Supreme Court’s Ring-based retroactivity cutoff is unconstitutional

as applied to post-Apprendi death sentences because Apprendi was the

constitutional basis for both Ring and Hurst.

The Florida Supreme Court’s Ring-based retroactivity cutoff is unconstitutional as

applied to Petitioner’s post-Apprendi death sentence because the rule announced in Apprendi was

the constitutional basis for both Ring and Hurst. It was Apprendi, not Ring, which first explained

that the Sixth Amendment requires that any finding that increases a defendant’s maximum

sentence is an element of the offense that must be found by a jury beyond a reasonable doubt.

See Apprendi, 530 U.S. at 490. Indeed, as this Court stated in Hurst, Ring applied Apprendi’s

analysis to conclude that Mr. Ring’s death sentence violated the Sixth Amendment. See 136 S.

Ct. at 621. Just as Ring applied Apprendi’s principles to Arizona’s capital sentencing scheme,

Hurst applied Apprendi’s principles to Florida’s scheme.

In Hurst, this Court repeatedly stated that Florida’s scheme was incompatible with

“Apprendi’s rule,” of which Ring was an application. 136 S. Ct. at 621. In overruling its pre-

Apprendi precedent approving of Florida’s scheme - Spaziano v. Florida, 468 U.S. 447 (1984),

and Hildwin v. Florida, 490 U.S. 638 (1989) - Hurst stated that those decisions were

“irreconcilable with Apprendi,” and drew an analogy to Ring’s overruling of pre-Apprendi

precedent approving of Arizona’s scheme - Walton v. Arizona, 497 U.S. 639 (1990) - which also

could not “survive the reasoning of Apprendi.” Hurst, 136 S. Ct. at 623. Thus, both Ring and

Hurst make clear that their operative constitutional holdings derived directly from Apprendi.

The Florida Supreme Court has consistently understood that the Sixth Amendment rule

applied in Ring and Hurst derived from Apprendi. In Mosley, the Florida Supreme Court

observed that Ring was an application of Apprendi. See 209 So. 3d at 1279-80 (explaining that in

Ring the court “applied its reasoning from Apprendi.”). This was not a new observation; over

many years, the Florida Supreme Court acknowledged that Ring merely applied the Apprendi

rule, and that Ring broke no new ground of its own. See, e.g., Johnson v. State, 904 So. 2d 400,

405-06 (Fla. 2005) (explaining that “Ring was not a sudden or unforeseeable development in

constitutional law; rather, it was an evolutionary refinement in capital jurisprudence,” in that

“It]he Supreme Court merely applied the reasoning of another case, Apprendi.”) (internal

quotation omitted).

Notably, in the period between Apprendi and Ring, the Florida Supreme Court rejected

challenges to Florida’s capital sentencing scheme under Apprendi at least in part because this

Court upheld Florida’s death penalty against constitutional challenge notwithstanding Apprendi.

See, e.g., Mills v. Moore, 786 So. 2d 532, 536-37 (Fla. 2001). The Florida Supreme Court

rejected challenges to Florida’s death-sentencing scheme on the same basis after Apprendi as it

did after Ring because the U.S. Supreme Court had not overturned Florida’s capital sentencing

scheme. Compare Mills, 786 So. 2d 532 (holding that “[b]ecause Apprendi did not overrule

Walton, the basic scheme in Florida is not overruled either), with Bottoson v. Moore, 833 So. 2d

693 (Fla. 2002)* (holding that Ring did not apply because Florida’s scheme had previously been

upheld by the U.S. Supreme Court and citing Mills), and King v. Moore, 831 So. 2d 143 (Fla.

2002) (same).

‘ abrogated by Hurst, 136 S. Ct. 616.

In light of Apprendi’s fundamental importance to both Ring and Hurst, it would violate

the federal constitutional prohibition against the arbitrary and capricious imposition of the death

penalty, as well as the constitutional guarantees of equal protection and due process, to extend

Hurst retroactivity to fourteen years of post-Ring death sentences while denying Hurst

retroactivity to the small number of individuals like Petitioner whose death sentences were

finalized in the two years between Apprendi and Ring. Moreover, as discussed below, federal

law prohibits a retroactivity “cutoff at Ring, and requires that the Hurst decisions apply

retroactively to all cases on collateral review, including post-Apprendi cases.

B. The Florida Supreme Court’s retroactivity cutoff violates the Eighth and

Fourteenth Amendments’ prohibition against arbitrary and _ capricious

imposition of the death penalty.

The Florida Supreme Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition of the death penalty. The

death penalty cannot “be imposed under sentencing procedures that create[] a substantial risk

that it would be inflicted in an arbitrary or capricious manner.” Gregg v. Georgia, 428 US. 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 certain cases in an arbitrary

way that is comparable to being “struck by lightning.” Furman, 408 U.S. at 308.

Experience has already shown the arbitrary results inherent in the Florida Supreme:

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 the Florida Supreme Court has held Hurst retroactive based on its bright-line cutoff -

10

has at times depended on whether there were delays in transmitting the record on appeal to the

Florida Supreme 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 the Florida Supreme 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 this Court or sought an extension to file such a petition;

and how long a certiorari petition remained pending in this Court.

In one striking example, the Florida Supreme Court affirmed Gary Bowles’ and James

Card’s unrelated death sentences in separate opinions that were issued on the same day, October

11, 2001. See Bowles v. State, 804 So. 2d 1173 (Fla. 2001); Card v. State, 803 So. 2d 613, 617

(Fla. 2001). Both inmates petitioned for a writ of certiorari in this Court. Mr. Card’s sentence

became final four days after Ring was decided - on June 28, 2002 - when his certiorari petition

was denied. See Card v. Florida, 536 U.S. 963 (2002). However, Mr. Bowles’s sentence became

final seven days before Ring was decided - on June 17, 2002 - when his certiorari petition was

denied. See Bowles v. Florida, 536 U.S. 930 (2002). The Florida Supreme 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. However, Mr. Bowles, whose case was decided

on direct appeal on the same day as Mr. Card’s, falls on the other side of this Court’s current

> See, e.g., Lugo v. State, 845 So. 2d 74 (Fla. 2003) (two-year delay between the time defense

counsel filed a notice of appeal and the record on appeal being transmitted to the Florida

SupremeCourt, almost certainly resulting in the direct appeal being decided post-Ring).

° Compare Booker v. State, 773 So. 2d 1079 (Fla. 2000) (this Court’s opinion issued within one

year after all briefs had been submitted, before Ring), with Hall v. State, 201 So. 3d 628 (Fla.

2016) (opinion issued twenty-three months after the last brief submitted).

1]

retroactivity cutoff and, as such, the Florida Supreme Court held that Ring does not apply

retroactively to his sentence of death. See Bowles v. State, 235 So. 3d 292 (Fla. 2018).

Other arbitrary factors affecting whether a defendant receives Hurst relief under the

Florida Supreme Court’s date-of-Ring-based retroactivity approach include whether a

resentencing was granted because of an unrelated error. Under the Florida Supreme 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 (Fla. 2016) (granting Hurst relief to a defendant whose crime occurred in 1981, but

was granted relief on a third successive postconviction 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 postconviction 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 the Florida Supreme Court’s approach, a defendant who

was originally sentenced to death before Petitioner, but who was later resentenced to death after

Ring, would receive Hurst relief and Petitioner would not.

Moreover, under the Florida Supreme 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 Florida Supreme Court addressed the issue in postconviction 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).

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In the case at hand, Petitioner did not file a petition for writ of certiorari following his

direct appeal, and therefore his case became final on January 7, 2002, ninety days after his

motion for rehearing was denied by this Court. If Petitioner’s appellate counsel had filed a

petition for writ of certiorari in this Court, there is a substantial likelihood that his case would

have become final after June 24, 2002, and he would be eligible for Hurst relief under the

Florida Supreme Court’s current case law.

C. The Florida Supreme Court’s retroactivity cutoff violates the Fourteenth

Amendment’s guarantee of equal protection and due process.

The Florida Supreme Court’s retroactivity cutoff violates the Fourteenth Amendment’s

guarantee of equal protection and due process. As an equal protection matter, the cutoff treats

death-sentenced prisoners in the same posture—on collateral review—differently without “some

ground of difference that rationally explains the different treatment.” Eisenstadt v. Baird, 405

U.S. 438, 447 (1972). When two classes are created to receive different treatment by a state actor

like the Florida Supreme Court the question becomes “whether there is some ground of

difference that rationally explains the different treatment ... .” Jd; 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 must 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 those capital defendants who will receive the benefit of the rules

designed to enhance the quality of decision-making by a penalty-phase jury, and those who will

not, the State’s justification for that line must satisfy strict scrutiny. Far from meeting strict

scrutiny, the Florida Supreme Court’s Hurst retroactivity cutoff lacks even a rational connection

13

to any legitimate state interest. See U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 533

(1973). |

As a due process matter, denying the benefit of Florida’s new post-Hurst capital

sentencing statute to “pre-Ring” defendants like Petitioner 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 v. Oklahoma, 447 U.S. 343,

346 (1980) (liberty interest in state-created sentencing procedures); Ford v. Wainwright, 447

U.S. 399, 427-31 (1986) (O’Connor, J., concurring) (liberty interest in meaningful state

proceedings to adjudicate competency to be executed); Ohio Adult Parole Authority v. Woodard,

523 U.S. 272, 288-89 (1998) (O’Connor, J., with Souter, Ginsburg, & Breyer, JJ., concurring)

(life interest in state-created right to capital clemency proceedings).

Although the right to the particular procedure is established by state law, the violation of

the life and liberty interest it creates is governed by federal constitutional law. See Hicks, 447

U.S. at 347; Ford, 477 U.S. 399, 428-29 (O’Connor, J., concurring); Evitts, 469 U.S. at 393

(state procedures employed “as ‘an integral part of the . . . system for finally adjudicating the

299

guilt or innocence of a defendant’” must comport with due process). Instead, 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 347 (O’Connor, J., concurring). 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 Authority, 523 U.S. at 272; Ford, 477 US.

14

at 427-31 (O’Connor, J., concurring). In Hicks, this 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. 477 US. at 343.

Ill. 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.

This Court held in Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016), that the

Supremacy Clause of the Constitution requires state courts to apply “substantive” constitutional

rules retroactively as a matter of federal constitutional law, notwithstanding any separate statelaw retroactivity analysis. Jd. 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.” Jd. at 731-32.

Importantly, Montgomery found 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), substantive even though the Miller rule had “a procedural

component.” Id. at 734. The Montgomery Court explained that “[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,” Jd. at 735, and

that the necessary procedures do not “transform substantive rules into procedural ones,” Jd.

A. The Hurst decisions announced substantive rules that must be applied

retroactively to Petitioner under the Supremacy Clause.

The Hurst decisions announced substantive rules that must be applied retroactively to

Petitioner by the Florida Supreme Court under the Supremacy Clause. First, a Sixth Amendment

rule was established requiring that a jury find as fact: (1) each aggravating circumstance; (2) that

those aggravators together are “sufficient” to justify imposition of the death penalty; and (3) that

those aggravators together outweigh the mitigation in the case. See Hurst, 202 So. 3d at 53-59.

Each of those findings is required to be made by the jury beyond a reasonable doubt. Such

findings are manifestly substantive. See Montgomery, 136 S. Ct. at 734 (holding that the decision

whether a juvenile is a person “whose crimes reflect the transient immaturity of youth” is a

substantive, not procedural, rule). As in Montgomery, these requirements amounted to an

“Instance[] in which a substantive change in the law must be attended by a procedure that

enables a prisoner to show that he falls within a category of persons whom the law may no

longer punish.” Jd. at 735.

Second, an Eighth Amendment rule was established that requires those three beyond-areasonable-doubt findings to be made unanimously by the jury. The substantive nature of the

unanimity rule is apparent from the Florida Supreme 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.” Hurst, 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.”

16

Id. The rule is therefore substantive as a matter of federal retroactivity law. 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 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

fact-finding, are substantive constitutional rules as a matter of federal law because they place

certain murders “beyond the State’s power to punish,” with a sentence of death. Following the

Hurst decisions, “[e]ven the use of impeccable fact-finding procedures could not legitimate a

sentence based on” the judge-sentencing scheme. Welch, 136 S. Ct. at 1265. 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. Thus, a substantive rule, rather than a procedural rule, resulted from the Hurst

decisions. See Welch, 136 S. Ct. at 1264-65 (a substantive rule “alters...the class of persons that

the law punishes.”).

Hurst retroactivity is not undermined by Schriro v. Summerlin, 542 U.S. 348,364 (2004),

where this Court held that Ring was not retroactive in a federal habeas case. Summerlin did not

review a Statute, like Florida’s, that required the jury not only to conduct the fact-finding

regarding the aggravators, but also as to whether the aggravators were sufficient to impose death

17

and whether death was an appropriate sentence. Summerlin acknowledged that if the Court itself

“[made] a certain fact essential to the death penalty . . . [the change] would be substantive.” 542

U.S. at 354. Such a change occurred in Hurst where, for the first time, the Court found it

unconstitutional for a judge alone to find that “sufficient aggravating factors exist and [t]hat there

are insufficient mitigating circumstances to outweigh the aggravating circumstances.” 136 S. Ct.

at 622 (internal citation omitted).

Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonable-doubt standard

in addition to the jury trial right, and this Court has always regarded proof-beyond-a-reasonabledoubt 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 [Jn 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.”).

18

CONCLUSION

For all of these reasons, the Court should grant the petition for writ of certiorari and order

further briefing or vacate and remand this case to the Florida Supreme Court.

Respectfully submitted,

UNouwwe Buamekti

Maria C. Perinetti

Counsel of Record

Law Office of the Capital Collateral

Regional Counsel-Middle Region

12973 N. Telecom Parkway

Temple Terrace, FL 33637

perinetti@ccmr.state.fl.us

support@ccmr.state.fl.us

(813) 550-1600

Wb Bet-

Lisa M. Bort

Law Office of the Capital Collateral

Regional Counsel-Middle Region

12973 N. Telecom Parkway

Temple Terrace, FL 33637

bort@ccmr-.state.fl.-us

support@ccmr-.state.fl.us

(813) 550-1600

fol Ores

Dated

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