Petition for Writ of Certiorari — Stephen Todd Booker, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

Supreme Court briefJun 11, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

STEPHEN TODD BOOKER,

Petitioner,

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondents.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITIONER’S APPENDIX

______________________________________________________________

BILLY H. NOLAS

Counsel of Record

SEAN T. GUNN

KELSEY PEREGOY

Office of the Federal Public Defender

Northern District of Florida

Capital Habeas Unit

227 North Bronough St., Suite 4200

Tallahassee, Florida 32301

(850) 942-8818

billy_nolas@fd.org

sean_gunn@fd.org

kelsey_peregoy@fd.org

INDEX TO APPENDIX

Exhibit 1 — Florida Supreme Court Opinion Below (Jan. 30, 2018) ................ 1a

Exhibit 2 — Florida Supreme Court Order to Show Cause (Sep. 27, 2017) ..... 4a

Exhibit 3 — Booker/Petitioner’s Response to Order to Show Cause

(Oct. 11, 2017) ................................................................................. 5a

Exhibit 4 — Respondent/State’s Response to Order to Show Cause

(Oct. 24, 2017) ............................................................................... 28a

Exhibit 5 — Booker/Petitioner’s Reply in Support of Response to

Order to Show Cause (Nov. 2, 2017) ............................................ 45a

Exhibit 6 — Booker/Petitioner’s Motion for a Rehearing (Feb. 13, 2018) ....... 58a

Exhibit 7 — Florida Supreme Court Order Striking Rehearing Motion

(Feb. 22, 2018) ............................................................................... 64a

Exhibit 8 — Florida Death Penalty Appeals Decided in Light of Hurst ......... 65a

(Source: Death Penalty Information Center)

Exhibit 9 — List of Florida Supreme Court Opinions Summarily

Denying Relief in Light of Hitchcock (Jan.–Feb. 2018) ............. 74a

Supreme Court of Florida

____________

No. SC17-1205

____________

STEPHEN TODD BOOKER,

Petitioner,

vs.

JULIE L. JONES, etc.,

Respondent.

[January 30, 2018]

PER CURIAM.

Stephen Todd Booker petitions this Court for a writ of habeas corpus

seeking 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 has jurisdiction. See art. V, § 3(b)(9), Fla. Const.

This Court stayed Booker’s case pending the disposition of Hitchcock v.

State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017). After this

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Court decided Hitchcock, Booker responded to this Court’s order to show cause

arguing why Hitchcock should not be dispositive in this case.

After reviewing Booker’s response to the order to show cause, as well as the

State’s arguments in reply, we conclude that Booker is not entitled to relief.

Booker was sentenced to death following a jury’s recommendation for death by a

vote of eight to four. Booker v. State, 773 So. 2d 1079, 1086 (Fla. 2001).

Booker’s sentence of death became final in 2001. Booker v. Florida, 532 U.S.

1033 (2001). Thus, Hurst does not apply retroactively to Booker’s sentence. See

Hitchcock, 226 So. 3d at 217. Accordingly, we deny Booker’s petition.

The Court having carefully considered all arguments raised by Booker, 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.

Original Proceeding – Habeas Corpus, Alachua County,

Case No. 011977CF002332AXXXXX

-2-

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Ann Finnell of Finnell, McGuinness, Nezami & Andux, P.A., Jacksonville,

Florida; and Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal

Public Defender, Northern District of Florida, Tallahassee, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney

General, Tallahassee, Florida,

for Respondent

-3-

003a

Supreme Court of Florida

WEDNESDAY, SEPTEMBER 27, 2017

CASE NO.: SC17-1205

Lower Tribunal No(s).:

011977CF002332AXXXXX

STEPHEN TODD BOOKER

Petitioner(s)

vs.

JULIE L. JONES, ETC.

Respondent(s)

Petitioner shall show cause on or before Tuesday, October 17, 2017, why the

habeas corpus 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.

Respondent may file a reply on or before Wednesday, November 1, 2017, limited

to no more than 15 pages. Petitioner may file a reply to the 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:

LISA HOPKINS

BILLY H. NOLAS

ANN E. FINNELL

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Filing # 62699265 E-Filed 10/11/2017 02:42:31 PM

No. SC17-1205

IN THE

Supreme Court of Florida

___________________________________________________________

STEPHEN TODD BOOKER,

RECEIVED, 10/11/2017 02:43:29 PM, Clerk, Supreme Court

Petitioner,

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________

PETITIONER’S RESPONSE TO

SEPTEMBER 27, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar. No.: 0270040

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301

billy_nolas@fd.org

(850) 942-8818

Florida Bar No.: 00806821

Counsel for Petitioner

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TABLE OF CONTENTS

INTRODUCTION....................................................................................................1

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING .......................2

ARGUMENT ............................................................................................................2

Petitioner’s death sentence violates Hurst, and the error is not “harmless”......2

II.

This Court’s “retroactivity cutoff” at Ring is unconstitutional and

should not be applied to Petitioner’s post-Apprendi death sentence.................5

III.

This 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..........................................7

This Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition

of the death penalty...............................................................................9

This Court’s retroactivity cutoff violates the Fourteenth Amendment’s

guarantee of equal protection and due process.....................................13

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......................15

The Hurst decisions announced substantive rules that must be applied

retroactively to Petitioner under the Supremacy Clause......................16

This Court has an obligation to address Petitioner’s federal retroactivity

arguments............................................................................................20

CONCLUSION.......................................................................................................20

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INTRODUCTION

Petitioner’s death sentence was imposed pursuant to a sentencing scheme that

was ruled unconstitutional in Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.

State, 202 So. 3d 40 (Fla. 2016). His sentence became “final” in 2001, after the

United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000).

A core issue in this case is whether this Court should 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 v. Arizona, 536 U.S. 584 (2002),

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

This Court has already applied Hurst retroactively as a matter of state law in

dozens of collateral-review cases where the defendant’s sentence became final after

Ring. But the 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.

There are 22 Florida cases without penalty-phase waivers and with non-unanimous

jury recommendations that became “final” during the two-year period between

Apprendi and Ring. This Court has never specifically addressed this “Apprendi gap”

in any case, not even in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla.

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Aug. 10, 2017). Nor has the Court directly addressed the constitutionality of denying

Hurst retroactivity as a matter of federal law, in Hitchcock or any other case. 1

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

This case presents an important issue of first impression: whether federal law

requires this Court to extend Hurst retroactivity to death sentences that became final

after Apprendi but before Ring, rather than cabining Hurst relief to post-Ring death

sentences. Petitioner respectfully requests oral argument on this and related issues

pursuant to Fla. R. App. P. 9.320. Petitioner also requests that the Court permit full

review in this case in accord with the normal, untruncated habeas and briefing rules.

Depriving Petitioner 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).

ARGUMENT

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, the United States Supreme Court

held that Florida’s scheme violated the Sixth Amendment because it required the

Relief should not be denied here in light of Hitchcock. Petitioner notes that there

is a petition for a writ of certiorari pending in Hitchcock (No. 17-6180).

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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.

Those findings included: (1) the

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

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

aggravators outweighed the mitigation. 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. 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. Id.

On remand, this 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 at 53-59. The 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. 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

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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. But 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 8-4.

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. 2

To the extent any of the aggravators applied to Petitioner were based on prior

convictions, the judge’s finding of such aggravators does not render the Hurst error

harmless. Even if the jury would have found the same aggravators, Florida law does

See, e.g., Bailey v. Jones, No. SC17-433, 2017 WL 2874121, at *1 (Fla. July 6,

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).

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not authorize death sentences based on the mere existence of an aggravator. As

noted above, Florida law requires fact-finding as to both the existence of aggravators

and the “sufficiency” of the particular aggravators to warrant imposition of the death

penalty. There is no way to conclude whether the jury would have made the same

sufficiency determination as the judge. That is why this Court has consistently

rejected the idea that a judge’s finding of prior-conviction aggravators is relevant in

the harmless-error analysis of Hurst claims, and has granted Hurst relief despite the

presence of such aggravators. See, e.g., Franklin v. State, 209 So. 3d 1241, 1248

(Fla. 2016) (rejecting “the State’s contention that Franklin’s prior convictions for

other violent felonies insulate Franklin’s death sentence from Ring and Hurst”).3

II.

This 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), 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

Moreover, although this Court’s state-law precedent is sufficient to resolve any

harmless-error inquiry in this case, the United States Constitution would also

prohibit a denial of relief based on the harmless error doctrine because any attempt

to discern what a jury in a constitutional proceeding would have decided—based

solely on the pre-Hurst jury’s advisory recommendation—would violate the Sixth

and Eighth Amendments. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 328-29

(1985) (explaining that a jury’s belief about its role in death sentencing can

materially affect its decision-making); Sullivan v. Louisiana, 508 U.S. 275, 279-80

(1993) (foreclosing application of the harmless-error doctrine to deny relief based

on jury decisions not comporting with Sixth Amendment requirements).

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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.

Petitioner’s death sentence became final during the two-year period between

Apprendi and Ring. The Court has never specifically addressed this “Apprendi gap”

in its state-law retroactivity precedent, not even in Hitchcock v. State, No. SC17445, 2017 WL 3431500 (Fla. Aug. 10, 2017). Moreover, the Court has not addressed

the denial of Hurst retroactivity to post-Apprendi death sentences (or any pre-Ring

sentences) as a matter of federal law.

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-review 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 after Apprendi in 2001, while affording retroactivity to similarlysituated defendants who were sentenced (or resentenced) between 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.

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This 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

This 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 the United States Supreme 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, 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. 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

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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.

This Court has consistently understood that the Sixth Amendment rule applied

in Ring and Hurst derived from Apprendi. In Mosley, this 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, this 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 “[t]he Supreme Court merely applied

the reasoning of another case, Apprendi.”) (internal quotation omitted).

Notably, in the period between Apprendi and Ring, this Court rejected

challenges to Florida’s capital sentencing scheme under Apprendi not because the

Court did not yet believe Apprendi was applicable in the death penalty context, but

instead, because the United States Supreme Court had upheld Florida’s death penalty

against constitutional challenge notwithstanding Apprendi. See, e.g., Mills v. Moore,

786 So. 2d 532 (Fla. 2001). This Court rejected challenges to Florida’s deathsentencing scheme on the same basis after Apprendi as it did after Ring: the United

States Supreme Court had approved of Florida’s scheme. Compare Mills, 786 So.

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2d at 532 (holding that Apprendi did not apply because Florida’s scheme had been

upheld by the United States Supreme Court), 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 United States Supreme Court and citing Mills), and

King v. Moore, 831 So. 2d 143 (Fla. 2002) (same).

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 14 years of postRing 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.

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.

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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

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

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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 10-year delay before the trial). Under

this 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 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).4

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 Petitioner, 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

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

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This Court’s retroactivity cutoff violates the Fourteenth

Amendment’s guarantee of equal protection and due process

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 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 penalty-phase jury, and those who will not, the state’s

justification for that line must satisfy strict scrutiny. Far from meeting strict scrutiny,

defendants who properly presented and preserved the substance of the issue, even

before Ring arrived.”). Petitioner urges that the Court allow him to brief this aspect

of his case in an untruncated fashion.

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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 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, 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).

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

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preserves against arbitrary deprivation by the State.” Hicks, 447 U.S. at 347. 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. 477 U.S. at 343.

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

As Petitioner argued in the pending habeas petition filed in this Court on June

27, 2017, the United States Supreme 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 state-law retroactivity analysis.5 Id.

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

In light of this Court’s restriction on the length of this response, Petitioner provides

a summary of his arguments under Montgomery here, and incorporates by reference

the more expansive arguments included in his June 27, 2017 petition (attached).

021a

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, 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,” id. at 735, and that the

necessary procedures do not “transform substantive rules into procedural ones,” id.

The Hurst decisions announced substantive rules that must be

applied retroactively to Petitioner under the Supremacy Clause

The Hurst decisions announced substantive rules that this Court must apply

retroactively to Petitioner under the Supremacy Clause. 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 aggravators together are “sufficient”

to justify imposition of the death penalty; and (3) that those aggravators 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

022a

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.” 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. 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

023a

(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,” Welch, 136 S. Ct. at 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. 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 Summerlin, 542 U.S. at 364, where

the United States Supreme 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

024a

whether the aggravators were sufficient to impose death 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-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); Powell v. Delaware,

153 A.3d 69 (Del. 2016) (holding Hurst retroactive under Delaware’s state Teaguelike 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.”). 6

The recent ruling of an Eleventh Circuit panel in Lambrix v. Sec’y, No. 17-14413,

2017 WL 4416205 (11th Cir. Oct. 5, 2017), does not negate Petitioner’s arguments.

First, Lambrix was decided in the context of the current federal habeas statute, which

dramatically curtails review: “A state court’s decision rises to the level of an

unreasonable application of federal law only where the ruling is objectively

unreasonable, not merely wrong; even clear error will not suffice.” Id. at *8 (internal

quotation marks omitted). In contrast, this Court’s application of federal

constitutional protections is not circumscribed, as this Court noted in the Hurst

context in Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016) (“[W]e hold that the Supreme

025a

This Court has an obligation to address Petitioner’s federal

retroactivity arguments

Because this Court is bound by the federal constitution, it has the obligation

to address Petitioner’s federal retroactivity arguments. See Testa v. Katt, 330 U.S.

386, 392-93 (1947) (state courts must entertain federal claims in the absence of a

“valid excuse”); Martin v. Hunter’s Lessee, 14 U.S. 304, 340-42 (1816). Addressing

those claims meaningfully requires full briefing and oral argument. The federal

constitutional issues were raised in Hitchcock, but this Court ignored them.

Dismissing this appeal based on Hitchcock would compound that error.

CONCLUSION

This Court should hold that the Hurst decisions must be applied retroactively

to Petitioner’s post-Apprendi death sentence, vacate Petitioner’s death sentence, and

remand to the circuit court for a new penalty phase or imposition of a life sentence.

Court’s decision in Hurst v. Florida requires that all critical findings necessary

before the trial court may consider imposing a sentence of death must be found

unanimously by the jury . . . . We also hold . . . under the Eighth Amendment to the

United States Constitution, that in order for the trial court to impose a sentence of

death, the jury’s recommended sentence must be unanimous”). Second, Lambrix

dealt with an idiosyncratic issue—the “retroactivity” of Florida’s new capital

sentencing statute. Lambrix did not argue, as Petitioner does here, for the

retroactivity of the constitutional rules arising from the Hurst decisions. Third, the

Eleventh Circuit did not address the specific arguments about federal retroactivity

that are raised here. Fourth, almost needless to say, an Eleventh Circuit panel

decision has no precedential value in this forum.

026a

Respectfully submitted,

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar. No.: 0270040

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301

billy_nolas@fd.org

(850) 942-8818

Florida Bar No.: 00806821

Counsel for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on October 11, 2017, the foregoing was electronically

served via the e-portal to Assistant Attorney General Lisa Hopkins at

lisa.hopkins@myfloridalegal.com and capapp@myfloridalegal.com.

/s/ Billy H. Nolas

Billy H. Nolas

027a

Filing # 63268212 E-Filed 10/24/2017 04:33:04 PM

IN THE SUPREME COURT OF FLORIDA

STEPHEN TODD BOOKER,

Petitioner,

CASE NO. SC17-1205

L.T. NO. 1991-CF-008144

DEATH PENALTY CASE

RECEIVED, 10/24/2017 04:33:29 PM, Clerk, Supreme Court

STATE OF FLORIDA,

Respondent.

____________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE FOURTH JUDICIAL CIRCUIT,

IN AND FOR DUVAL COUNTY, FLORIDA

ANSWER BRIEF OF 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 Respondent

028a

TABLE OF CONTENTS

TABLE OF CONTENTS............................................. ii

TABLE OF AUTHORITIES......................................... iii

STATEMENT OF THE CASE AND FACTS................................ 1

OBJECTION TO ORAL ARGUMENT..................................... 3

SUMMARY OF THE ARGUMENT........................................ 4

ARGUMENT....................................................... 4

CONCLUSION.................................................... 11

CERTIFICATE OF SERVICE........................................ 12

CERTIFICATE OF FONT COMPLIANCE................................ 12

029a

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) ................................................................................ 8

Asay v. State, 224 So. 3d 695 (Fla. 2017) .................................................................. 10

Asay v. State, 210 So. 3d 1 (Fla. 2016) ..................................................................... 3, 4

Bogle v. Florida, 516 U.S. 978 (1995) .............................................................................. 9

Bogle v. State, 213 So. 3d 833 (Fla. 2017) .................................................................. 9

Booker v. Dugger, 922 F.2d 633 (11th Cir. 1991) ...................................................... 2

Booker v. Florida, 454 U.S. 957 (1981)............................................................................ 1

Booker v. Florida, 532 U.S. 1033 (2001) ......................................................................... 2

Booker v. State, 397 So. 2d 910 (Fla. 1981)................................................................ 1

Booker v. State, 520 So. 2d 246 (Fla. 1988)................................................................ 1

Booker v. State, 773 So. 2d 1079 (Fla. 2000) ......................................................... 1, 2

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

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) .................................................................... 7

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

Hitchcock v. Dugger, 481 U.S. 393 (1987) ....................................................................... 1

Hitchcock v. State, 531 U.S. 1040 (2000) ....................................................................... 8

Hitchcock v. State, No. SC17-445, 2017 WL 3431500, *2 (Fla. August 10,

2017) ...................................................................................................................................................... 3

Hitchcock v. State, SC17-445 ................................................................................................... 3

Hurst v. Florida, 136 S.Ct. 616 (2016)............................................................................ 3

iii

030a

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) ............................................................. 4

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) ........................................ 8

Lambrix v. Florida, 2017 WL 4456332 (Oct. 5, 2017) ............................................... 6

Lambrix v. Sec’y, Fla. Dep’t of Corr., 2017 WL 4416205 (11th Cir. Oct.

5, 2017) ........................................................................................................................................... 6, 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) ....................................................................... 8

Marshall v. Jones, 2017 WL 1739246 (Fla. May 4, 2017) ........................................ 8

Oats v. Florida, 474 U.S. 865 (1985) ................................................................................ 8

Oats v. Jones, 220 So. 3d 1127 (Fla. 2017) .................................................................. 8

Penry v. Lynaugh, 492 U.S. 302 (1989) .............................................................................. 7

Powell v. Delaware, 153 A.3d 69 (Del. 2016)................................................................ 5

Rauf v. State, 145 A.3d 430 (Del. 2016) ......................................................................... 5

Ring v. Arizona, 536 U.S. 584 (2002) ................................................................................ 4

Rodriguez v. Florida, 510 U.S. 830 (1993) .................................................................... 8

Rodriguez v. State, 219 So. 3d 751 (Fla. 2017) ........................................................ 8

Schriro v. Summerlin, 542 U.S. 348 (2004) .................................................................... 6

Smith v. State, 598 So. 2d 1063 (Fla. 1992)................................................................ 7

Stein v. Florida, 513 U.S. 834 (1994) .............................................................................. 9

Stein v. Jones, 2017 WL 836806 (Fla. Mar. 3, 2017) ............................................... 9

Suggs v. Florida, 514 U.S. 1083 (1995)............................................................................ 9

Suggs v. Jones, 2017 WL 1033680 (Fla. Mar. 17, 2017) .......................................... 9

Teague v. Lane, 489 U.S. 288 (1989) ................................................................................... 4

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) ......................................................................... 8

Willacy v. Jones, 2017 WL 1033679 (Fla. Mar. 17, 2017) ..................................... 8

Witt v. State, 387 So. 2d 922 (Fla. 1980) .................................................................... 4

Zack v. Florida, 531 U.S. 858 (2000) ................................................................................ 8

Zack v. State, 2017 WL 2590703 (Fla. June 15, 2017) ............................................ 8

Zakrzewski v. Florida, 525 U.S. 1126 (1999)................................................................ 8

Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017) .................................................... 8

Zeigler v. State, 580 So. 2d 127 (Fla. 1991) ............................................................. 5

031a

STATEMENT OF THE CASE AND FACTS

Petitioner, Stephen Todd Booker, was convicted of firstdegree murder, sexual battery, and burglary, and sentenced to

death. Booker v. State, 397 So. 2d 910 (Fla. 1981). After the

penalty phase the jury recommended death by a nine-to-three vote.

The trial court followed the jury’s recommendation, sentencing

Petitioner

death.

The

trial

court

found

mitigating

circumstances and three aggravating circumstances: 1) previously

convicted of a felony involving the use of threat of violence to

another; 2) committed the murder during the commission of a sexual

battery and burglary; and 3) heinous, atrocious, and cruel. See

Booker v. State, 773 So. 2d 1079, 1082 n.1 (Fla. 2000).

Petitioner’s judgment and sentence of death was affirmed on

appeal by the Florida Supreme Court. Booker, 397 So. 2d 910.

Petitioner filed a petition for writ of certiorari in the United

States Supreme Court which the Court denied. Booker v. Florida,

454 U.S. 957 (1981).

Subsequently, Petitioner filed numerous proceedings in state

and federal courts. In particular, Petitioner filed a petition for

writ of habeas corpus which the Florida Supreme Court found that

any error in light of the U.S. Supreme Court’s 1987 decision in

Hitchcock v. Dugger, 481 U.S. 393 (1987), was harmless. The Florida

Supreme Court upheld Petitioner’s sentence. Booker v. State, 520

So. 2d 246, 247-49 (Fla. 1988). However, the Eleventh Circuit found

032a

that the Hitchcock error was not harmless and the case was remanded

for resentencing. Booker v. Dugger, 922 F.2d 633, 634 (11th Cir.

1991).

A new penalty phase hearing was conducted in March 1998. The

jury voted eight-to-four for death. The trial court following the

jury’s recommendation, sentenced Petitioner to death. The trial

court

found

four

aggravating

circumstances:

committed

the

felony while he was under sentence of imprisonment; 2) previously

convicted of a violent felony; 3) committed the capital felony

while engaged in the commission of a sexual battery and burglary;

and 4) heinous, atrocious, and cruel. The trial court found two

statutory mitigators: 1) committed while under the influence of

extreme

mental

emotional

disturbances

and

capacity

appreciate the criminality of his conduct or to conform his conduct

to the requirements of the law was substantially impaired. The

trial court found nine nonstatutory mitigating circumstances.

Booker v. State, 773 So. 2d 1079, 1086 (Fla. 2000). Petitioner

filed a petition for writ of certiorari that was denied by the

United States Supreme Court on May 14, 2001. Booker v. Florida,

532 U.S. 1033 (2001).

Petitioner filed a motion for postconviction relief which was

denied by the trial court and affirmed by the Florida Supreme

Court. Booker v. State, 969 So. 2d 186 (Fla. 2007). On June 24,

2016, Petitioner represented by Billy Nolas, filed a successive

033a

motion raising a claim based on the United States Supreme Court’s

recent decision in Hurst v. Florida, 136 S.Ct. 616 (2016). The

trial

court

appointed

Attorney

Ann

Finnell

lead

capital

collateral counsel and the capital habeas unit of the public

defender’s office as co-counsel. Attorney Ann Finnell subsequently

adopted

the

successive

motion

filed

June

24,

2016.

The

successive motion was denied.

On June 27, 2017, Petitioner filed with this Court a petition

for habeas corpus. On July 18, 2017, this Court stayed the Petition

pending the disposition of Hitchcock. On August 10, 2017, this

Court

affirmed

the

conviction

and

sentence

Hitchcock

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

ordered the parties to show cause “why the habeas petition should

not be denied in light of the decision in Hitchcock v. State, SC17445.” On October 11, 2017, Petitioner filed his “Response to

September 27, 2017 Order to Show Cause.” (Response). This is

Respondent’s reply to Petitioner’s Response.

OBJECTION TO ORAL ARGUMENT

Respondent objects to 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

034a

cases. As such, oral arguments would not serve any purpose other

than to delay the proceedings.

SUMMARY OF THE ARGUMENT

The

lower

court

properly

summarily

denied

Petitioner’s

successive motion for postconviction relief. 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

Petitioner’s judgment and sentence were final prior to the decision

in Ring, Hurst is not retroactive to him.

ARGUMENT

Asay,

this

Court

held

that

Hurst

State

not

retroactive to any case in which the death sentence was final prior

to the June 24, 2002, decision in Ring.

Asay, 210 So. 3d at 22;

Hurst v. State, 202 So. 3d 40 (Fla. 2016); Ring v. Arizona, 536

U.S. 584 (2002).

The judgment in Asay became final October 7,

1991, and thus Asay was not eligible for any relief under Hurst.

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

035a

(Fla. 1980); Teague v. Lane, 489 U.S. 288 (1989); see also Danforth

v. Minnesota, 552 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

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.

036a

Further, despite 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

not

retroactive,

Hurst

also

not

substantive

constitutional rule, nor is it retroactive under federal law.

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 v. Summerlin, 542 U.S. 348, 358 (2004)

(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

037a

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 the U.S. Supreme Court’s precedent in

Ring and Schriro.”

Lambrix, 2017 WL 4416205 at *8.

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,

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

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

the

decision

date

Hurst,

benefits

038a

appellants.

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

. . .”).

Because Apprendi does not apply to capital cases, it

should not be used as the cutoff date for Hurst retroactivity.

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

finalized prior to the decision in Ring.1

Further, this Court

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, 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 (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

039a

declined to retroactively apply Hurst to Lukehart because his

sentence became final prior to Ring.

Lukehart v. Jones, No. SC16-

1255, 2017 WL 1033691, *1 (Fla. Mar. 17, 2017).

Lukehart became

final June 25, 2001, after the June 26, 2000, decision in Apprendi,

but before Ring.

Lukehart v. Florida, 533 U.S. 934 (2001).

Thus,

despite Petitioner’s claim that this Court has never specifically

addressed this “Apprendi gap,” this Court has addressed the issue

and declined to extend retroactivity to post-Apprendi/pre-Ring

cases.

(Response at 1).

(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 (Mar. 17,

2017)(sentence final 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)).

040a

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

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

jury

unanimously

recommends

otherwise”);

Lambrix

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

Hitchcock,

Petitioner

raises

various

constitutional provisions to argue that Hurst v. State should be

retroactively applied to him.

reaffirmed

Hitchcock,

retroactively to Petitioner.

However, just as in Asay, as

Hurst

State

does

not

apply

This case became final on May 14,

2001, which is prior to the June 24, 2002, decision in Ring.

such, Hurst v. State is not retroactive to this case.

Thus, this

Petition should be denied.

041a

Petitioner has demonstrated no cause that this Court should

review his case.

This Court’s rulings in Asay and Hitchcock apply

to Petitioner.

Because Petitioner’s judgment and sentence were

final prior to the decision in Ring, Hurst is not retroactive to

him.

042a

CONCLUSION

In conclusion, as a matter of law, Petitioner is not entitled

to Hurst relief, and Respondent respectfully requests that this

Honorable Court affirm the postconviction court’s order denying

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 RESPONDENT

043a

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: Billy Nolas, counsel

for

Petitioner,

billy_nolas@fd.org

and

Ann

Finnell

afinnell@fmnlawyers.com.

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 RESPONDENT

044a

Filing # 64045449 E-Filed 11/10/2017 12:39:05 PM

No. SC17-1205

IN THE

Supreme Court of Florida

___________________________________________________________

STEPHEN TODD BOOKER,

RECEIVED, 11/10/2017 12:43:26 PM, Clerk, Supreme Court

Petitioner,

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________

PETITIONER’S REPLY IN SUPPORT OF RESPONSE TO

SEPTEMBER 27, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar. No.: 0270040

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301

billy_nolas@fd.org

(850) 942-8818

Florida Bar No.: 00806821

Counsel for Petitioner

045a

TABLE OF CONTENTS

RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT...........1

ARGUMENT...........................................................................................................1

The State is incorrect in suggesting that Hitchcock and prior cases

addressed federal retroactivity in the Hurst context.........................................1

II.

The State’s argument regarding the constitutionality of denying Hurst

retroactivity to post-Apprendi death sentences is meritless..............................5

III.

The State’s cursory response to Mr. Booker’s more general federal

retroactivity arguments regarding the Ring cutoff should also be

rejected............................................................................................................6

IV.

The State abandons any “harmless error” arguments.....................................10

CONCLUSION......................................................................................................10

046a

RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT

Mr. Booker renews his requests that the Court permit untruncated briefing.

ARGUMENT

The State is incorrect in suggesting that Hitchcock and prior cases

addressed federal retroactivity in the Hurst context

The State is incorrect in suggesting that Hitchcock v. State, No. SC17-445,

2017 WL 3431500 (Fla. Aug. 10, 2017), and prior cases addressed whether federal

constitutional law requires Hurst to be applied retroactively to the small number of

Florida death sentences, including Mr. Booker’s, that became “final” on direct

appeal during the two-year period between the decisions in Apprendi v. New Jersey,

530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). See State’s Resp.

at 6-9. In fact, Hitchcock did not specifically address the “Apprendi gap” or any of

Mr. Booker’s federal retroactivity arguments at all. See Booker’s Resp. at 5-20.

This Court’s opinion in Hitchcock did not even state that Mr. Hitchcock’s

death sentence became final between Apprendi and Ring, let alone specifically

address the current federal constitutional arguments. Hitchcock did not address

whether the federal Constitution permits a retroactivity “cutoff” that affords Hurst

relief to defendants sentenced after the 2002 decision in Ring while denying Hurst

relief to defendants sentenced before Ring but after the 2000 decision in Apprendi.

Instead, Hitchcock relied exclusively on the Court’s state-law reasoning in Asay v.

State, 210 So. 3d 1 (Fla. 2016), which did not involve a post-Apprendi sentence. As

047a

the State acknowledges, the reasoning in Asay rested entirely on the state

retroactivity law first articulated in Witt v. State, 387 So. 2d 922 (Fla. 1980). See

State’s Resp. at 4 (“In Asay . . . [t]his Court applied the Witt analysis for retroactivity

under state law.”). Asay’s exclusive reliance on state law is evident from the Asay

opinion itself. See 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 the dictates of Witt.”).

Asay did not address whether federal law required the Hurst decisions to be

applied retroactively in post-Apprendi death sentences like Mr. Booker’s, and did

not address the federal retroactivity arguments raised in Mr. Booker’s response to

the order to show cause. Namely, Asay did not address whether it would violate the

Eighth and Fourteenth Amendments to draw a Hurst retroactivity “cutoff” at Ring,

rather than Apprendi, in light of the fact that Apprendi was the constitutional basis

for both Ring and Hurst. Neither did Asay address more generally 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 under Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

048a

Hitchcock, in relying totally on Asay, also did not address Mr. Booker’s “postApprendi” and other 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 attempts to highlight 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

(citing Hitchcock, 2017 WL 3431500, at *2) (emphasis added). But the Hitchcock

Court’s reference to “constitutional provisions” cannot be read to address Mr.

Booker’s federal arguments, as the very next sentence reads: “As such, these

arguments were rejected when we decided Asay.” Hitchcock, 2017 WL 3431500, at

*2. As explained above, Asay was premised entirely on state retroactivity law.

During the nearly eight months between this Court’s decisions in Asay and

Hitchcock, numerous Hurst defendants, including those sentenced between

Apprendi and Ring, raised federal retroactivity arguments in this Court and the

circuit courts, explaining that Asay had not resolved those federal matters in its

exclusively-state-law analysis, and imploring the courts to explicitly address federal

049a

law. Those defendants, as Mr. Booker did here, made federal arguments under the

Eighth and Fourteenth Amendments and Montgomery. If this Court had intended to

put those arguments to rest in Hitchcock—including whether a retroactivity cutoff

at Ring is unconstitutional as applied to post-Apprendi defendants—it could have

done so, but the Hitchcock Court declined to do so. Hitchcock does not even mention

the small number of death sentences that became final between Apprendi and Ring,

the Eighth Amendment’s prohibition against arbitrary and capriciousness, or the

Fourteenth Amendment’s Equal Protection and Due Process Clauses. Nor does

Hitchcock cite Montgomery or address whether the Hurst rules are “substantive.”

These matters all remain open questions that this Court should address.

To the extent the State suggests that Mr. Booker’s federal arguments have

been addressed in other cases, those decisions did not involve post-Apprendi death

sentences and, in any event, are not applicable here. For instance, the Eleventh

Circuit’s decision in Lambrix v. Sec’y, No. 17-14413, 2017 WL 4416205 (11th Cir.

Oct. 5, 2017), does not deal with a post-Apprendi case, is not precedential in this

Court, and was decided in the context of the federal habeas statute. Moreover,

Lambrix dealt primarily with an idiosyncratic issue—the “retroactivity” of Florida’s

new capital sentencing statute—and did not focus squarely on the retroactivity of the

constitutional rules arising from the Hurst decisions.

Similar idiosyncratic

presentations and “pre-Apprendi” postures also render inapplicable to Mr. Booker

050a

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). There

are real, unresolved issues here. Mr. Booker urges this Court to address them.

II.

The State’s argument regarding the constitutionality of denying Hurst

retroactivity to post-Apprendi sentences is meritless

The State makes only passing reference to Mr. Booker’s arguments regarding

the federal constitutionality of drawing a Hurst retroactivity cutoff at Ring, given

that Apprendi is the constitutional basis for both Ring and Hurst. See Booker’s Resp.

at 7-9; State’s Resp. at 8-9. The State acknowledges that Mr. Booker’s death

sentence became final on May 14, 2001, see State’s Resp. at 2, after Apprendi, and

also recognizes “Apprendi’s role in developing the Court’s decisions in Ring and

Hurst,” id. at 8.

But confronted with Mr. Booker’s argument that a Hurst

retroactivity cutoff, if there must be a cutoff, should be drawn at Apprendi, not Ring,

the State offers on the superficial assertion: “Apprendi does not apply to capital

cases.” Id.

The State’s superficial assertion is meritless. As Mr. Booker explained, a

Ring-based cutoff cannot be squared with federal constitutional requirements,

particularly in cases with post-Apprendi sentences. The State’s contention that

“Apprendi does not apply to capital cases” is belied by the Ring and Hurst decisions.

Indeed, as the United States Supreme Court stated in Hurst, Ring applied Apprendi’s

051a

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

See 136 S. Ct. at 621. In Hurst, 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. Both Ring and Hurst make clear that their operative constitutional

holdings derived directly from Apprendi. And this Court in Mosley v. State recently

reaffirmed that Ring was an application of Apprendi. See 209 So. 3d 1248, 1279-80

(Fla. 2016) (stating that in Ring the Court “applied its reasoning from Apprendi”).

There are only 22 prisoners in Florida in a non-waiver, non-unanimous jury,

post-Apprendi posture. In light of Apprendi’s fundamental importance to Ring and

Hurst, it would violate the federal constitutional prohibition against arbitrary and

capricious death sentencing, and the guarantees of equal protection and due process,

to extend Hurst retroactivity to 14 years of post-Ring death sentences while denying

retroactivity to the small number of non-unanimous-recommendation sentences, like

Mr. Booker’s, that were finalized in the two years between Apprendi and Ring.

III.

The State’s cursory response to Mr. Booker’s more general federal

retroactivity arguments regarding the Ring cutoff should also be rejected

The State fails to substantively engage most of Mr. Booker’s more general

federal retroactivity arguments regarding the Ring cutoff. The State does not even

mention or address Mr. Booker’s argument that a retroactivity cutoff at Ring violates

the Eighth Amendment’s prohibition against arbitrary and capricious imposition of

the death penalty. See Booker’s Resp. at 9-12. The State also does not cite

052a

Montgomery, let alone address Mr. Booker’s argument that because the Hurst

decisions are substantive, the Supremacy Clause of the Constitution requires state

courts to apply them retroactively. See id. at 15-19. The State has therefore

abandoned any arguments on those issues. Cf. Hoskins v. State, 75 So. 3d 250, 257

(Fla. 2011) (“[A]n issue not raised in an initial brief is deemed abandoned”).

The State offers only a cursory response to Mr. Booker’s arguments under the

Fourteenth Amendment. According to the State, a Ring-based cutoff does not violate

the Equal Protection and Due Process Clauses any more than a traditional rule that

provides for only prospective application of new constitutional rules. See State’s

Resp. at 7-8. The State assumes that “partial” retroactivity is constitutional because

it “benefits more appellants,” no matter where the line is drawn. Id. Notably,

however, the State fails to provide an example of any previous constitutional ruling

that has been given only “partial” retroactive effect, and does not engage in any

specific due process or equal protection analysis.

The State’s failure to address Mr. Booker’s Eighth Amendment arguments

and cursory treatment of his Fourteenth Amendment arguments is telling. A Ring

cutoff injects into Florida’s death penalty jurisprudence a level of arbitrariness and

capriciousness, as well as a denial of equal protection and due process, that is not

present in typical circumstances where retroactivity is withheld based on the

pragmatic necessity to evolve constitutional protections prospectively without undue

053a

cost to the finality of preexisting judgments.

A retroactivity cutoff at Ring

inaugurates a kind and degree of capriciousness that far exceeds the level justified

by normal non-retroactivity jurisprudence. Indeed, a Ring-based cutoff precludes

relief in precisely the class of cases in which relief makes the most sense.

For instance, inmates whose death sentences became final before Ring have

been on death row longer than their post-Ring counterparts. They have demonstrated

over a longer time that they are capable of adjusting to that environment and

continuing to live without endangering any valid interest of the State. Pre-Ring

inmates are more likely to have been given death sentences 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 was decided,

prosecutors and juries have been increasingly unlikely to seek and impose death

sentences. 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 recognition of the unreliability of numerous kinds of evidence—flawed

forensic-science theories and practices, hazardous eyewitness identification

testimony, and so forth—that was accepted without question in pre-Ring capital

trials. Doubts that would cause today’s prosecutors, juries, and judges to hesitate

to seek or impose death were unrecognized in the pre-Ring era. Taken together,

054a

these considerations highlight that a Ring-based retroactivity cutoff involves a level

of caprice that runs beyond that tolerated by typical retroactivity rules.

The State’s remaining arguments can be dispensed with briefly. The State

cites Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for the proposition that the

Supreme Court’s ruling that Ring is not retroactive in a federal habeas proceeding

means that Hurst is not retroactive in any proceeding. See State’s Resp. at 6-7. But

as Mr. Booker explained in his earlier response, see Booker’s Resp. at 18-19, the

Arizona statute at issue in Ring and Summerlin did not require, as Florida’s statute

did, factfinding regarding both the aggravators and their “sufficiency” for 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 with the Hurst decisions. They recognized for the first

time that it is unconstitutional for a judge alone to make a finding of fact concerning

the “sufficiency” of the aggravation.

Moreover, unlike Ring, Hurst was grounded on the beyond-a-reasonabledoubt standard. The State unpersuasively attempts to distinguish Ivan V. v. City of

New York, 407 U.S. 203 (1972). See State’s Resp. at 5. Even assuming, as the State

suggests, that Florida’s scheme formerly incorporated the beyond-a-reasonabledoubt standard, the standard was misapplied to factfinding by the trial judge, not

findings made by the jury. The Hurst decisions held that the jury must make the

055a

beyond-a-reasonable-doubt findings that subject a defendant to a death sentence.

Indeed, a federal judge in Florida, citing Ivan, has already observed the distinction

between Summerlin and Hurst because of the beyond-a-reasonable-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, see State’s Resp. at 5, is particularly odd

considering that the Delaware Supreme Court in Powell applied a retroactivity test

that mirrors the federal retroactivity test and held that Hurst should be applied

retroactively in Delaware. See and Powell v. Delaware, 153 A.3d 69, 75-76 (Del.

2016). If anything, Powell supports Mr. Booker’s arguments.

IV.

The State abandons any “harmless error” arguments

The State abandons any argument that the Hurst error in Mr. Booker’s case

was harmless by failing to reference harmless error in her response. See Hoskins,

75 So. 3d at 257. The Hurst error in this case is not harmless in light of the advisory

jury’s non-unanimous recommendation to impose the death penalty.

CONCLUSION

The Court should hold that federal law requires the Hurst decisions to be

applied retroactively to Mr. Booker’s post-Apprendi death sentence and grant relief.

056a

Respectfully submitted,

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar No.: 270040

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

CERTIFICATE OF SERVICE

I certify that on November 13, 2017, the foregoing was served via the e-portal

to Assistant Attorney General Lisa Hopkins at capapp@myfloridalegal.com and

lisa.hopkins@myfloridalegal.com, and Ann Finnell at afinnell@fmnlawyers.com.

/s/ Billy H. Nolas

Billy H. Nolas

057a

Filing # 67916411 E-Filed 02/13/2018 04:07:38 PM

IN THE SUPREME COURT OF FLORIDA

STEPHEN TODD BOOKER,

Petitioner,

Case No. SC17-1205

Respondent.

________________________________/

MOTION FOR REHEARING AND CLARIFICATION

Petitioner, Stephen Todd Booker, pursuant to Fla. R. App. P. 9.330,

respectfully moves for rehearing and clarification of this Court’s January 30, 2018,

RECEIVED, 02/13/2018 04:08:30 PM, Clerk, Supreme Court

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF

CORRECTIONS,

opinion denying relief under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.

State, 202 So. 3d 40 (Fla. 2016). See Booker v. Jones, SC17-1205, 2018 WL615082,

*1 (Fla. Jan. 30, 2018). Rehearing is appropriate for an important reason that does

not simply constitute “reargument.”

We respectfully submit that the Court’s decision is inconsistent with the

fundamental principle, especially apt in capital cases, requiring individualized

decisions in the context of the particular circumstances of each case. As a result, the

Court overlooked the context of this case: where Hurst should be applied

retroactively because Petitioner’s case became “final” after Apprendi v. New Jersey,

530 U.S. 466 (2000). Apprendi is the decision upon which both Ring v. Arizona, 536

058a

U.S. 584 (2002), and Hurst v. Florida, 136 S. Ct. 616 (2016), were founded. In the

past, this Court recognized that the constitutional error at issue in Hurst was

identified by Apprendi, not just by Ring, so that if there is to be a retroactivity cutoff, that line should be drawn at Apprendi, not at Ring. This Court’s current decision

fails to address this crucial distinction between a post-Apprendi case, such as this

Hurst just as there is no Ring.

one, and the general group of pre-Ring cases. After all, without Apprendi there is no

Rehearing and clarification are appropriate because of this significant

consideration with which the Court’s decision did not grapple. Further, this Court

should grant oral argument and full, untruncated briefing to address the unique

circumstances of a post-Apprendi case situation such as the instant.

This Court’s opinion did not grapple with the difference between cases

that became “final” after Apprendi and those that became “final” before

Apprendi.

This Court’s Ring-based retroactivity cutoff is simply not reasonable as

applied to Mr. Booker’s death sentence, which became final after Apprendi, because

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

It was Apprendi, not Ring, which first articulated the principle that the Sixth

Amendment requires any finding that increases a defendant’s maximum sentence to

be understood as an element of the offense that must be found by a jury beyond a

reasonable doubt. See Apprendi, 530 U.S. at 490. In the Hurst decision itself, the

059a

United States Supreme Court explained that Ring applied Apprendi’s analysis in

finding Arizona’s capital sentencing scheme unconstitutional. See Hurst, 136 S. Ct.

at 621. The foundation of Ring is Apprendi, and if there is to be a bright line for

retroactivity in these cases, the line should be drawn at Apprendi, not at Ring. To

draw a line at Ring instead of Apprendi is to fundamentally misunderstand the

relationship between the two cases.

In fact, this Court previously recognized that the “jury sentencing” idea

originated with Apprendi. In those days, the Court denied relief to petitioners relying

on Apprendi because the United States Supreme Court had not held that Apprendi

applied to capital sentencing schemes such as Florida’s. See, e.g., Mills v. Moore,

786 So. 2d 532, 537 (Fla. 2001) (“No court has extended Apprendi to capital

sentencing schemes . . .”). In the current era, this Court has not addressed the

argument that post-Apprendi cases are in a different posture than other pre-Ring

cases. Neither Hitchcock nor any other current case has acknowledged that the

Apprendi argument even exists.

There are only 22 Florida cases, including Mr. Booker’s, without penalty-

phase waivers and with non-unanimous jury recommendations that became “final”

after Apprendi but before Ring. These individuals were sentenced under the same

infirm system as individuals who have been granted Hurst relief. The partial

retroactivity approach that this Court has now fashioned is unusual in American

060a

jurisprudence. But even within that unusual setting, the distinct issue involved in the

post-Apprendi cases remains hanging in the wind. The Court should grant rehearing

and address the issue.

II.

This Court should grant rehearing to clarify its position on the

constitutional questions raised.

A wave of certiorari petitions, approximately 100, challenging this Court’s

Hurst retroactivity framework is set to flood the United States Supreme Court’s

docket in the coming months. In 2017, this Court entered stays, followed by orders

to show cause, in over 100 appeals and state habeas proceedings, including Mr.

Booker’s. In January 2018, this Court embarked on the mass-denial of relief through

summary opinions that cited Hitchcock v. State, 226 So. 3d 216 (Fla. 2017). The

petitions for certiorari in these cases likely will challenge the constitutionality of this

Court’s Ring-based retroactivity cutoff.

Before all these cases proceed to certiorari, this Court should grant rehearing

and address the post-Apprendi issue applicable in the few cases, like Mr. Booker’s,

that fall into the post-Apprendi/re-Ring gap. The post-Apprendi cases should not be

lumped in with the rest.

III.

The Court should permit full briefing and oral argument.

Mr. Booker respectfully requests oral argument on this post-Apprendi issue

pursuant to Fla. R. App. P. 9.320. Mr. Booker also requests that the Court permit

061a

briefing of the issue. It would be very appropriate for the Court to allow briefing and

oral argument.

IV.

Conclusion

This Court should grant rehearing and clarification. Hurst should be applied

retroactively to this post-Apprendi death sentence.

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar No.: 270040

Respectfully submitted,

062a

CERTIFICATE OF SERVICE

I certify that on February 13, 2018, the foregoing was served via the e-portal

to Assistant Attorney General Lisa Hopkins of the Office of the Attorney General at

capapp@myfloridalegal.com and lisa.hohpkins@myfloridalegal.com, and Ann

Finnell at afinnell@fmnlawyers.com.

/s/ Billy H. Nolas

Billy H. Nolas

063a

Supreme Court of Florida

THURSDAY, FEBRUARY 22, 2018

CASE NO.: SC17-1205

Lower Tribunal No(s).:

011977CF002332AXXXXX

STEPHEN TODD BOOKER

Petitioner(s)

vs.

JULIE L. JONES, ETC.

Respondent(s)

Petitioner’s Motion for Rehearing is hereby stricken.

A True Copy

Test:

Served:

BILLY H. NOLAS

LISA HOPKINS

ANN E. FINNELL

HON. WILLIAM ELBRIDGE DAVIS, JUDGE

ROBERT ELLIOTT FOLSOM

HON. J.K. "JESS" IRBY, CLERK

064a

5/21/2018

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EXECUTION DATABASE

STATE-BY-STATE

Florida Death-Penalty Appeals Decided in Light of Hurst

Last updated: May 15, 2018

Total number of prisoners whose cases have been reviewed by Florida Supreme Court (or, if relief is granted, by a Circuit Court) in light of Hurst: 259

Number of prisoners who have obtained relief under Hurst: 128 (49.42%)

Number of prisoners who have been denied relief under Hurst: 131 (50.58%)

The Florida Supreme Court has declared that it will apply its decisions in Hurst v. State and Asay v. State—which held that non-unanimous jury recommendations

of death violate the Florida state constitution and the Sixth Amendment of the U.S. Constitution—to new death penalty cases and to older cases in which the

direct appeal process was final on or before the U.S. Supreme Court decided Ring v. Arizona in June 2002.

Prisoner Name

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Abdool, Dane

Orange

Allred, Andrew

Seminole

WAIVED JURY

Alston, Pressley Bernard

Duval

Altersberger, Joshua Lee

Highlands

Anderson, Charles L.

Broward

Anderson, Richard

Jury Vote(s)

Date of Court

Order

4/6/17

11/16/17

9-3

1/22/18

9-3

4/27/17

8-4

3/9/17

Hillsborough

11-1

1/26/18

Archer, Robin Lee

Escambia

7-5

3/17/17

Armstrong, Lancelot

Uriley

Broward

9-3

1/19/17

Asay, Marc

Duval

9-3, 9-3

N (EXECUTED)

12/22/16

Atwater, Jeffrey Lee

Pinellas

11-1

1/23/18

Ault, Howard Steven

Broward

9-3, 10-2

3/9/17

Bailey, Robert J.

Bay

11-1

7/6/17

Baker, Cornelius

Flagler

9-3

3/23/17

Banks, Donald

Duval

10-2

4/20/17

Bargo, Michael Shane

Marion

10-2

6/29/17

Barnhill, Arthur

Seminole

9-3

2/20/17

Barwick, Darryl Brian

Bay

12-0

2/28/18

Bates, Kayle Barrington

Bay

9-3

1/22/18

Beasley, Curtis W.

Polk

10-2

1/23/18

Belcher, James

Duval

9-3

11/2/17

Bell, Michael

Duval

12-0, 12-0

1/29/18

Bevel, Thomas

Duval

8-4, 12-0

6/15/17

Booker, Stephen Todd

Duval

8-4

1/30/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

10-2

Death Sentence

Reversed?

065a

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Bowles, Gary Ray

Duval

12-0

1/29/18

Braddy, Harrel

Miami-Dade

11-1

6/15/17

Bradley, Brandon Lee

Brevard

10-2

3/30/17

Bradley, Donald

Clay

10-2

1/22/18

Branch, Eric Scott

Escambia

10-2

N (EXECUTED)

1/22/18

Brookins, Elijah

Gadsden

10-2

4/20/17

Brooks, Lamar

Okaloosa

9-3, 11-1

3/10/17

Brown, Paul Alfred

Hillsborough

7-5

1/29/18

Brown, Paul Anthony

Volusia

12-0

2/28/18

Burns, Daniel Jr.

Manatee

12-0

1/23/18

Buzia, John

Seminole

8-4

4/6/17

Byrd, Milford Wade

Hillsborough

Unknown

2/28/18

Calloway, Tavares David

Miami-Dade

7-5, 7-5, 7-5,

7-5, 7-5

1/26/17

Campbell, John

Citrus

8-4

8/30/17

Card, James

Bay

11-1

5/4/17

Carr, Emilia

Marion

7-5

2/7/17

Carter, Pinkney

Duval

9-3, 8-4

10/4//17

Caylor, Matthew

Bay

8-4

5/18/17

Clark, Ronald Wayne Jr.

Duval

11-1

1/23/18

Cole, Loran

Marion

12-0

1/23/18

Cole, Tiffany Ann

Duval

9-3, 9-3

6/29/17

Conde, Rory

Miami-Dade

9-3

8/31/17

Consalvo, Robert

Broward

11-1

1/31/18

Cox, Allen

Lake

10-2

7/23/17

Cozzie, Steven Anthony

Walton

12-0

5/11/17

Crain, Willie Seth

Hillsborough

12-0

4/5/18

Damren, Floyd William

Clay

12-0

2/2/18

Darling, Dolan a/k/a

Sean Smith

Orange

11-1

3/29/17

Davis, Adam W.

Hillsborough

7-5

5/2/17

Davis, Barry T.

Walton

9-3, 10-2

5/11/17

Davis, Jr., Leon

Polk

12-0, 12-0, 8-4

11/10/16

Davis, Jr., Leon

Polk

WAIVED JURY

11/10/16

Davis, Mark Allen

Pinellas

8-4

1/29/18

Davis, Toney D.

Duval

11-1

2/17/17

Dennis, Labrant

Miami-Dade

11-1, 11-1

7/7/17

Deparvine, Williams

James

Hillsborough

8-4, 8-4

4/6/17

Derrick, Samuel Jason

Pasco

7-5

2/2/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Dessaure, Kenneth

Pinellas

WAIVED JURY

Deviney, Randall

Duval

Diaz, Joel

Lee

Dillbeck, Donald David

Leon

Doorbal, Noel

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

11/16/17

8-4

3/23/17

9-3

6/15/17

8-4

1/24/18

Miami-Dade

8-4, 8-4

9/20/17

Doty, Wayne

Bradford

10-2

8/7/17

Douglas, Luther

Duval

11-1

6/29/17

Dubose, Rasheem

Duval

8-4

2/9/17

Durousseau, Paul

Duval

10-2

1/31/17

Eaglin, Dwight

Charlotte

8-4, 8-4

4/3/17

England, Richard

Volusia

8-4

5/22/17

Evans, Paul H.

Indian River

9-3

3/20/17

Evans, Steven Maurice

Orange

11-1

1/24/18

Evans, Wydell Jody

Brevard

10-2

Finney, Charles

Hillsborough

9-3

1/26/18

Floyd, Maurice Lamar

Putnam

11-1

5/17/17

Ford, James D.

Charlotte

11-1, 11-1

1/23/18

Foster, Charles

Bay

8-4

1/29/18

Foster, Kevin Don

Lee

9-3

1/29/18

Fotopoulos,

Konstantinos

Volusia

8-4, 8-4

1/29/18

Frances, David

Orange

9-3, 10-2

3/29/17

Franklin, Richard P.

Columbia

9-3

11/23/16

Gamble, Guy R.

Lake

10-2

1/29/18

Gaskin, Louis

Flagler

8-4, 8-4

2/28/18

Geralds, Mark Allen

Bay

12-0

2/28/18

Glover, Dennis T.

Duval

10-2

9/14/17

Gonzalez, Leonard

Escambia

10-2

5/23/17

Gonzalez, Ricardo

Miami-Dade

8-4

3/23/18

Gordon, Robert R.

Pinellas

9-3

1/31/18

Gregory, William

Volusia

7-5, 7-5

8/31/17

Griffin, Michael Allen

Miami-Dade

10-2

2/2/18

Grim, Norman

Santa Rosa

12-0

3/29/18

Guardado, Jesse

Walton

12-0

5/11/17

Gudinas, Thomas Lee

Collier

10-2

1/30/18

Guzman, James

Volusia

11-1

2/22/18

Guzman, Victor

Miami-Dade

7-5

4/6/17

Hall, Donte Jermaine

Lake

8-4

6/15/17

Hall, Enoch D.

Volusia

12-0

2/9/17

Hamilton, Richard

Hamilton

10-2

2/18/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Hampton, John

Pinellas

9-3

5/4/17

Hannon, Patrick

Hillsborough

12-0

N (EXECUTED)

11/1/17

Hartley, Kenneth

Duval

9-3

1/26/18

Hayward, Steven

St. Lucie

8-4

3/24/17

Heath, Ronald Palmer

Alachua

10-2

2/28/18

Hernandez, Michael

Santa Rosa

11-1

5/11/17

Hernandez-Alberto,

Pedro

Hillsborough

10-2, 10-2

5/9/17

Hertz, Gerry

Wakulla

10-2, 10-2

5/18/17

Heyne, Justin

Brevard

10-2, 8-4

4/6/17

Hitchcock, James

Orange

10-2

8/10/17

Hobart, Robert

Santa Rosa

7-5

2/21/18

Hodges, George

Michael

Hillsborough

10-2

2/2/18

Hodges, Willie James

Escambia

10-2

3/16/17

Hojan, Gerhard

Broward

9-3, 9-3

1/31/17

Huggins, John

Orange

9-3

5/23/17

Hunter, Jerone

Volusia

10-2, 10-2, 93, 9-3

6/16/17

Hurst, Timothy

Escambia

7-5

10/14/16

Hutchinson, Jeffrey

Okaloosa

WAIVED JURY

WAIVED

JURY

3/15/18

Israel, Connie Ray

Duval

7-5

3/21/17

Jackson, Etheria Verdell

Duval

7-5

1/24/18

Jackson, Kenneth R.

Hillsborough

11-1

3/23/17

Jackson, Michael James

Duval

8-4, 8-4

6/9/17

Jackson, Ray

Volusia

9-3

4/24/17

Jeffries, Kevin G.

Bay

10-2

7/13/17

Jeffries, Sonny Ray

Orange

11-1

1/26/18

Jennings, Brandy Bain

Collier

10-2, 10-2, 102

1/29/18

Johnson, Emanuel

Sarasota

8-4, 10-2

2/2/18

Johnson, Paul Beasley

Polk

11-1, 11-1, 111

12/1/16

Johnson, Richard Allen

St. Lucie

11-1

3/24/17

Johnson, Ronnie

Miami-Dade

7-5, 9-3

3/27/18

Johnston, Ray

Hillsborough

11-1

7/21/17

Johnston, Ray

Hillsborough

12-0

7/21/17

Jones, Henry Lee

Brevard

12-0

3/2/17

Jones, Marvin Burnett

Duval

9-3

1/22/18

Jones, Victor

Miami-Dade

Y/N

10-2, 12-0

9/28/17

Jordan, Joseph

Volusia

10-2

8/22/17

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Kaczmar, III, Leo L.

Clay

12-0

1/31/17

Kelley, William H.

Highlands

8-3 [not a typo] N

1/26/18

King, Cecil

Duval

8-4

7/12/17

King, Michael L.

Sarasota

12-0

1/26/17

Kirkman, Vahtiece

Brevard

10-2

1/11/18

Knight, Richard

Broward

12-0, 12-0

1/31/17

Kocaker, Genghis

Pinellas

11-1

10/6/17

Kokal, Gregory Alan

Duval

12-0

1/24/18

Kopsho, William M.

Marion

10-2

1/19/17

Krawczuk, Anton

Duval

12-0

1/31/18

Lamarca, Anthony

Pinellas

11-1

1/30/18

Lambrix, Cary Michael

Glades

8-4, 10-2

N (EXECUTED)

9/29/17

Lawrence, Gary

Santa Rosa

9-3

2/2/18

Lebron, Joel

Osceola

7-5

4/20/17

Lightbourne, Ian

Marion

Unrecorded

1/26/18

Long, Robert Joe

Hillsborough

12-0

1/29/18

Lucas, Harold Gene

Lee

11-1

1/24/18

Marquard, John

St. Johns

12-0

1/24/18

Martin, David

Clay

9-3

7/13/17

Matthews, Douglas

Volusia

10-2

12/5/17

McCoy, Richard (aka

Jamil Rashid)

Duval

7-5

9/6/17

McCoy, Thomas

Walton

11-1

11/8/17

McGirth, Renaldo Devon

Marion

11-1

1/26/17

McKenzie, Norman

Blake

St. Johns

10-2, 10-2

6/19/17

McLean, Derrick

Orange

9-3

4/24/17

McMillian, Justin

Duval

10-2

4/13/17

Melton, Antonio Lebaron

Escambia

8-4

2/2/18

Mendoza, Marbel

Miami-Dade

7-5

1/30/18

Merck, Jr., Troy

Pinellas

9-3

5/5/17

Middleton, Dale

Okeechobee

12-0

3/9/17

Miller, David Jr.

Duval

7-5

1/31/18

Miller, Lionel Michael

Orange

11-1

5/8/17

Morton, Alvin

Pasco

11-1, 11-1

2/2/18

Morris, Dontae

Hillsborough

12-0, 12-0

4/27/17

Morris, Dontae

Hillsborough

10-2

1/11/18

Morris, Robert D.

Polk

8-4

1/26/18

Mosley, John F.

Duval

8-4

12/22/16

Mullens, Khadafy

Pinellas

WAIVED JURY

6/16/16

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

069a

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Murray, Gerald Delane

Duval

11-1

4/4/17

Nelson, Joshua D.

Lee

12-0

1/31/18

Nelson, Micah

Polk

9-3

3/8/17

Newberry, Rodney

Duval

8-4

4/6/17

Oats, Jr. Sonny Boy

Marion

UNKNOWN

5/25/17

Occhicone, Dominick A.

Pasco

7-5

1/30/18

Okafor, Bessman

Orange

11-1

6/8/17

Oliver, Terence Tabius

Brevard

12-0, 12-0

4/6/17

Orme, Roderick

Bay

11-1

3/30/17

Overton, Thomas M.

Monroe

8-4, 9-3

2/2/18

Pace, Bruce Douglas

Santa Rosa

7-5

1/30/18

Pagan, Alex

Broward

7-5, 7-5

2/1/18

Parker, J.B.

Martin

11-1

4/20/17

Partin, Phillup Alan

Pasco

9-3

3/27/17

Pasha, Khalid

Hillsborough

11-1, 11-1

5/11/17

Peterka, Daniel Jon

Okaloosa

8-4

1/22/18

Peterson, Robert Earl

Duval

7-5

7/6/17

Pham, Tai

Seminole

10-2

3/22/17

Phillips, Galante

Duval

7-5

4/20/17

Phillips, Harry Franklin

Miami-Dade

7-5

1/22/18

Philmore, Lenard James

Martin

12-0

1/25/18

Pietri, Norberto

Palm Beach

8-4

2/2/18

Poole, Mark

Polk

11-1

3/31/17

Pope, Thomas Dewey

Broward

9-3

2/28/18

Puiatti, Carl

Pasco

11-1

1/23/18

Quince, Kenneth Darcell

Volusia

WAIVED JURY

1/18/18

Raleigh, Bobby Allen

Volusia

12-0, 12-0

2/28/18

Reaves, William

Indian River

10-2

5/2/18

Reynolds, Michael

Seminole

12-0, 12-0

4/5/18

Rhodes, Richard Wallace Pinellas

10-2

1/23/18

Rigterink, Thomas

William

Polk

7-5, 7-5

4/6/17

Rimmer, Robert

Broward

9-3, 9-3

6/29/17

Robards, Richard

Pinellas

7-5, 7-5

4/6/17

Rodgers, Jeremiah

Santa Rosa

WAIVED JURY

2/8/18

Rodgers, Theodore

Orange

8-4

4/3/17

Rogers, Glen Edward

Hillsborough

12-0

1/30/18

Rodriguez, Manuel

Antonio

Miami-Dade

12-0, 12-0, 120

1/31/18

San Martin, Pablo

Miami-Dade

9-3

2/28/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Schoenwetter, Randy

Brevard

10-2, 9-3

4/7/17

Seibert, Michael

Broward

9-3

6/22/17

Serrano, Nelson

Polk

9-3, 9-3, 9-3,

9-3

5/11/17

Sexton, John

Pasco

10-2

6/29/17

Silvia, William

Seminole

11-1

2/20/17

Simmons, Eric Lee

Lake

8-4

12/22/16

Sireci, Henry Perry

Orange

11-1

1/31/18

Sliney, Jack R.

Charlotte

7-5

1/31/18

Smith, Corey

Miami-Dade

9-3, 10-2

3/16/17

Smith, Joseph

Sarasota

10-2

7/13/17

Smith, Stephen V.

Charlotte

9-3

4/21/17

Smithers, Samuel

Hillsborough

12-0, 12-0

3/29/18

Snelgrove, David B.

Flagler

8-4, 8-4

5/11/17

Sochor, Dennis

Broward

10-2

1/30/18

Stein, Steven Edward

Duval

10-2

1/31/18

Stephens, Jason

Demetrius

Duval

9-3

1/22/18

Stewart, Kenneth Allen

Hillsborough

10-2

4/25/17

Stewart, Kenneth Allen

Hillsborough

10-2

1/26/18

Sweet, William Earl

Duval

10-2

1/24/18

Suggs, Ernest

Walton

7-5

3/17/17

Tanzi, Michael

Monroe

12-0

4/5/18

Taylor, John Calvin

Clay

10-2

10/12/17

Taylor, Perry

Hillsborough

8-4

5/3/18

Taylor, Steven Richard

Duval

10-2

1/24/18

Taylor, William Kenneth

Hillsborough

12-0

4/5/18

Thomas, William

Gregory

Duval

11-1

1/24/18

Trease, Robert J.

Sarasota

11-1

1/24/18

Trepal, George

Polk

9-3

1/26/18

Trotter, Melvin

Manatee

11-1

1/26/18

Troy, John

Sarasota

11-1

6/13/17

Truehill, Quentin

St. Johns

12-0

2/23/17

Tundidor, Randy W.

Broward

12-0

4/27/17

Turner, James Daniel

St. Johns

10-2

6/19/17

Twilegar, Mark

Lee

WAIVED JURY

11/2/17

Victorino, Troy

Volusia

10-2, 10-2, 93, 7-5

6/14/17

Wade, Alan L.

Duval

11-1, 11-1

5/1/17

Walls, Frank

Okaloosa

12-0

1/22/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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5/21/2018

Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Wheeler, Jason

Lake

10-2

5/23/17

White, Dwayne

Seminole

8-4

3/30/17

Whitfield, Ernest

Sarasota

7-5

1/30/18

White, William Melvin

Orange

10-2

4/20/17

Whitton, Gary Richard

Walton

12-0

1/31/18

Willacy, Chadwick

Brevard

11-1

1/23/18

Williams, Donald Otis

Lake

9-3

1/19/17

Williams , Ronnie Keith

Broward

10-2

6/29/17

Windom, Curtis

Orange

12-0, 12-0, 120

1/23/18

Wood, Zachary Taylor

Washington

12-0

Y**

1/31/17

Woodel, Thomas

Polk

7-5

8/18/17

Zack, Michael Duane

Escambia

11-1

6/15/17

Zakrzewski, Edward

Okaloosa

7-5, 7-5, 6-6

5/25/17

Zommer, Todd

Osceola

10-2

4/13/17

* The Florida Supreme Court granted relief under Hurst on Bevel's non-unanimous death sentence, but granted relief based on ineffective assistance of counsel

on Bevel's unanimous death sentence.

** The Florida Supreme Court noted that Wood's sentence would not have been harmless under Hurst because it struck two of the three aggravating

circumstances found by the trial court; however, the court vacated the death sentence and imposed a life sentence under its statutory review for proportionality.

Not counted in total.

For more background on the Florida legislative and court actions related to the jury unanimity issue, see Hurst v. Florida Background.

To check on the status of cases involving Florida death-row prisoners with non-unanimous jury recommendations for death whose sentences became final after

the U.S. Supreme Court's June 2002 decision in Ring v. Arizona, see this chart.

Hannah Gorman, with the Florida Center for Capital Representation at Florida International University, created the pie chart below (November 16, 2017)

based on her analysis of Florida death sentences that have been or will be overturned based on Hurst, as well as sentences that have been or will be

affirmed because they either (A) became final before Ring (i.e., based on the date of their appeal) or (B) were presumed harmless based on a

unanimous jury verdict or the defendant's waiver of a jury sentence. This chart includes prisoners who have had their death sentences affirmed by

Circuit Courts. According to this information, there are a total of 377 prisoners who were sentenced under the unconstitutional sentencing scheme,

but only 42% (157) of Florida death-row prisoners who were sentenced under that scheme will be entitled to relief.

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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8/9

5/21/2018

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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1. Bates v. State, 238 So. 3d 98 (Fla. 2018)

2. Bradley v. Jones, 238 So. 3d 95 (Fla. 2018)

3. Branch v. State, 234 So. 3d 548 (Fla. 2018)

4. Jones v. State, 234 So. 3d 545 (Fla. 2018)

5. Peterka v. State, 237 So. 3d 903 (Fla. 2018)

6. Phillips v. State, 234 So. 3d 547 (Fla. 2018)

7. Stephens v. State, 238 So. 3d 94 (Fla. 2018)

8. Suggs v. State, 234 So. 3d 546 (Fla. 2018)

9. Walls v. State, 238 So. 3d 96 (Fla. 2018)

10. Atwater v. State, 234 So. 3d 550 (Fla. 2018)

11. Beasley v. State, 234 So. 3d 553 (Fla. 2018)

12. Burns v. State, 234 So. 3d 555 (Fla. 2018)

13. Clark v. State, 238 So. 3d 99 (Fla. 2018)

14. Cole v. State, 234 So. 3d 644 (Fla. 2018)

15. Ford v. State, 237 So. 3d 904 (Fla. 2018)

16. Puiatti v. State, 234 So. 3d 551 (Fla. 2018)

17. Rhodes v. State, 234 So. 3d 554 (Fla. 2018)

18. Willacy v. State, 238 So. 3d 100 (Fla. 2018)

19. Windom v. State, 234 So. 3d 556 (Fla. 2018)

20. Dillbeck v. State, 234 So. 3d 558 (Fla. 2018)

21. Evans v. State, No. SC17-869, 2018 WL 524796 (Fla. 2018)

22. Jackson v. State, 237 So. 3d 905 (Fla. 2018)

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23. Kokal v. State, 237 So. 3d 907 (Fla. 2018)

24. Lucas v. State, 234 So. 3d 647 (Fla. 2018)

25. Marquard v. State, 234 So. 3d 560 (Fla. Jan. 24, 2018)

26. Sweet v. State, 234 So. 3d 646 (Fla. 2018)

27. Taylor v. State, 234 So. 3d 649 (Fla. 2018)

28. Thomas v. State, 234 So. 3d 559 (Fla. 2018)

29. Trease v. State, No. SC17-686, 2018 WL 1959603 (Fla. Apr. 26, 2018)

30. Anderson v. State, 235 So. 3d 277 (Fla. 2018)

31. Finney v. State, 235 So. 3d 279 (Fla. 2018)

32. Hartley v. State, 237 So. 3d 908 (Fla. 2018)

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

34. Kelley v. State, 235 So. 3d 280 (Fla. 2018)

35. Lightbourne v. State, 235 So. 3d 285 (Fla. 2018)

36. Morris v. State, 236 So. 3d 324 (Fla. 2018)

37. Stewart v. State, 235 So. 3d 798 (Fla. 2018)

38. Trepal v. State, 235 So. 3d 281 (Fla. 2018)

39. Trotter v. State, 235 So. 3d 284 (Fla. 2018)

40. Bell v. State, 235 So. 3d 287 (Fla. 2018)

41. Bowles v. State, 235 So. 3d 292 (Fla. 2018)

42. Brown v. State, 235 So. 3d 289 (Fla. 2018)

43. Davis v. State, 235 So. 3d 295 (Fla. 2018)

44. Foster v. State, 235 So. 3d 290 (Fla. 2018)

45. Foster v. State, 235 So. 3d 294 (Fla. 2018)

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46. Fotopoulos v. State, 237 So. 3d 911 (Fla. 2018)

47. Gamble v. State, 235 So. 3d 288 (Fla. 2018)

48. Jennings v. State, 237 So. 3d 909 (Fla. 2018)

49. Long v. State, 235 So. 3d 293 (Fla. 2018)

50. Booker v. Jones, 235 So. 3d 298 (Fla. 2018)

51. Davis v. Jones, 235 So. 3d 301 (Fla. 2018)

52. Gudinas v. State, 235 So. 3d 303 (Fla. 2018)

53. Lamarca v. State, 237 So. 3d 914 (Fla. 2018)

54. Mendoza v. State, 235 So. 3d 302 (Fla. 2018)

55. Occhicone v. State, 235 So. 3d 299 (Fla. 2018)

56. Pace v. State, 237 So. 3d 912 (Fla. 2018)

57. Rogers v. State, 235 So. 3d 306 (Fla. 2018)

58. Sochor v. State, 235 So. 3d 304 (Fla. 2018)

59. Whitfield v. State, 235 So. 3d 297 (Fla. 2018)

60. Consalvo v. State, 235 So. 3d 307 (Fla. 2018)

61. Gordon v. State, 235 So. 3d 311 (Fla. 2018)

62. Krawczuk v. State, 237 So. 3d 915 (Fla. 2018)

63. Miller v. Jones, 237 So. 3d 921 (Fla. 2018)

64. Nelson v. State, 235 So. 3d 308 (Fla. 2018)

65. Rodriguez v. State, 237 So. 3d 918 (Fla. 2018)

66. Sireci v. State, 237 So. 3d 916 (Fla. 2018)

67. Sliney v. State, 235 So. 3d 310 (Fla. 2018)

68. Stein v. State, 237 So. 3d 919 (Fla. 2018)

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69. Whitton v. State, 238 So. 3d 724 (Fla. 2018)

70. Damren v. State, 236 So. 3d 230 (Fla. 2018)

71. Derrick v. State, 236 So. 3d 231 (Fla. 2018)

72. Griffin v. State, 236 So. 3d 237 (Fla. 2018)

73. Hodges v. State, 236 So. 3d 241 (Fla. 2018)

74. Johnson v. State, 236 So. 3d 232 (Fla. 2018)

75. Lawrence v. State, 236 So. 3d 240 (Fla. 2018)

76. Melton v. State, 236 So. 3d 234 (Fla. 2018)

77. Morton v. State, 236 So. 3d 242 (Fla. 2018)

78. Overton v. State, 236 So. 3d 238 (Fla. 2018)

79. Pietri v. State, 236 So. 3d 235 (Fla. 2018)

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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.