Petition for Writ of Certiorari — Donald Bradley, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

Supreme Court briefMay 29, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

DONALD BRADLEY,

Petitioner,

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITIONER’S APPENDIX

______________________________________________________________

THIS IS A CAPITAL CASE

ROBERT BERRY

Capital Collateral Regional Counsel

North Region

1004 DeSoto Park Drive

Tallahassee, FL 32301

(850) 487-0922

robert.berry@ccrc-north.org

BILLY H. NOLAS

Counsel of Record

SEAN T. GUNN

SHEHNOOR K. GREWAL

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

EXHIBIT 1

001a

Supreme Court of Florida

____________

No. SC17-1219

____________

DONALD BRADLEY,

Petitioner,

vs.

JULIE L. JONES, etc.,

Respondent.

[January 22, 2018]

PER CURIAM.

Donald Bradley 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 Bradley’s case pending the disposition of Hitchcock v.

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

Hitchcock, Bradley responded to this Court’s order to show cause arguing why

Hitchcock should not be dispositive in this case.

002a

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

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

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

vote of ten to two. Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001). Bradley’s

sentence of death became final in 2001. Bradley v. Florida, 534 U.S. 1048 (2001).

Thus, Hurst does not apply retroactively to Bradley’s sentence. See Hitchcock,

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

The Court having carefully considered all arguments raised by Bradley, we

caution that any rehearing motion containing reargument will be stricken. It is so

ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock

v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now

final. However, I continue to adhere to the views expressed in my dissenting

opinion in Hitchcock.

An Original Proceeding – Habeas Corpus, Clay County, Case No.

101996CF001277XXAXMX

Robert Friedman, Capital Collateral Regional Counsel and Robert R. Berry,

Assistant Capital Collateral Regional Counsel, Tallahassee, Florida; and Billy H.

-2-

003a

Nolas, Chief, Capital Habeas Unit, Northern District of Florida, Tallahassee,

Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, and Jennifer Ann Donahue, Assistant

Attorney General, Tallahassee, Florida,

for Respondent

-3-

004a

EXHIBIT 2

005a

Filing # 58430374 E-Filed 06/29/2017 11:52:31 AM

No. SC17-___

IN THE

Supreme Court of Florida

___________________________________________________________

DONALD LEE BRADLEY,

RECEIVED, 06/29/2017 11:53:26 AM, Clerk, Supreme Court

Petitioner,

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________

PETITION FOR WRIT OF HABEAS CORPUS

_____________________________________________________________

Robert R. Berry

Assistant Collateral Regional

Counsel-North

175 Salem Court

Tallahassee, FL 32301

robert_berry@ccrc-north.org

(850) 942-8818

Florida Bar No. 714216

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

Counsel for Petitioner

006a

TABLE OF CONTENTS

TABLE OF CITATIONS ........................................................................................ii

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

JURISDICTION.......................................................................................................2

REQUEST FOR ORAL ARGUMENT ...................................................................2

REQUEST FOR NO HITCHCOCK STAY.............................................................2

BACKGROUND .....................................................................................................2

ARGUMENT ...........................................................................................................5

I. Petitioner’s death sentence violates Hurst v. Florida and Hurst v. State ..........5

II. The Hurst decisions should apply retroactively to Petitioner under Florida’s

Witt retroactivity doctrine because his sentence became final after Apprendi

was decided .......................................................................................................7

A. If Florida is to maintain a bright-line retroactivity rule for Hurst claims,

the line should be drawn at Apprendi rather than Ring because both Ring

and Hurst were extensions of Apprendi......................................................9

B. Extending Hurst retroactivity to the small number of Florida death

sentences that became final after Apprendi and before Ring is supported

by the three Witt factors ..............................................................................12

III. The Hurst decisions should be applied retroactively to Petitioner under

federal law .........................................................................................................19

IV. The Hurst error in Petitioner’s case is not harmless under this Court’s

decisions in light of the non-unanimous jury recommendation .......................28

CONCLUSION ........................................................................................................33

007a

TABLE OF CITATIONS

CASES

Anderson v. State, No. SC12-1252, SC14-881, 2017 WL 930924

(Fla. Mar. 9, 2017) .................................................................................... 30

Apprendi v. New Jersey, 530 U.S. 466 (2000).......................................... passim

Armstrong v. State, 211 So. 3d 864 (Fla. 2017)........................................ 29, 33

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

Atkins v. Virginia, 536 U.S. 304 (2002).................................................... 6

Ault v. State, 213 So. 3d 670 (Fla. 2017) ................................................. 29

Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) ........................................ 11

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

Bowles v. State, 804 So. 2d 1173 (Fla. 2001) ........................................... 11

Braddy v. State, No. SC15-404, 2017 WL 2590802

(Fla. June 15, 2017)................................................................................... 29

Brooks v. Jones, No. SC16-532, 2017 WL 944235

(Fla. Mar. 10, 2017) .................................................................................. 29

Caldwell v. Mississippi, 472 U.S. 320 (1985) .......................................... 31

Calloway v. State, 210 So. 3d 1160 (Fla. 2017) ....................................... 28, 30, 33

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

Card v. Jones, SC17-453, 2017 WL 1743835 (Fla. May 4, 2017)........... 11, 28, 29

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

Caylor v. State, Nos. SC15-1823, SC16-399, 2017 WL 2210386

(Fla. May 18, 2017)................................................................................... 30

Durousseau v. State, No. SC15-1276, 2017 WL 411331

(Fla. Jan. 31, 2017).................................................................................... 29, 33

Eisenstadt v. Baird, 405 U.S. 438 (1972) ................................................. 26

Falcon v. State, 162 So. 3d 954 (Fla. 2015) ............................................. 8

Franklin v. State, 209 So. 3d 1241 (Fla. 2016)......................................... 29, 32, 33

008a

Furman v. Georgia, 408 U.S. 238 (1972)................................................. 27

Gregg v. Georgia, 428 U.S. 153 (1976) ................................................... 27

Hall v. State, No. SC14-2225, 2017 WL 2590704

(Fla. June 15, 2017)................................................................................... 30

Hernandez v. Jones, SC17-440, 2017 WL 1954985

(Fla. May 11, 2017)................................................................................... 29

Hertz v. Jones, No. SC17-456, 2017 WL 2210402

(Fla. May 18, 2017)................................................................................... 29

Hildwin v. Florida, 490 U.S. 638 (1989) .................................................. 9, 15

Hodges v. State, 213 So. 3d 863 (Fla. 2017) ............................................ 29

Hojan v. State, 212 So. 3d 982 (Fla. 2017)............................................... 29

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

Hurst v. State, 202 So. 3d 40 (Fla. 2016).................................................. passim

Ivan V. v. City of New York, 407 U.S. 203 (1972) .................................... 22

Johnson v. State, 904 So. 2d 400 (Fla. 2005) ........................................... passim

Johnson v. State, 205 So. 3d 1285 (Fla. 2016) ......................................... 28, 29

Johnson v. United States, 135 S. Ct. 2551 (2015) .................................... 23

Jones v. State, 212 So. 3d 321 (Fla. 2017) ............................................... 6

King v. Moore, 831 So. 2d 143 (Fla. 2002) .............................................. 11

Kopsho v. State, 209 So. 3d 568 (Fla. 2017) ............................................ 29

Linkletter v. Walker, 381 U.S. 618 (1965) ................................................ 8

McGirth v. State, 209 So. 3d 1146 (Fla. 2017) ......................................... 29, 33

McLaughlin v. Florida, 379 U.S. 184 (1964) ........................................... 26

McKoy v. North Carolina, 494 U.S. 433 (1990) .................................... 32

Miller v. Alabama, 567 U.S. 460 (2012) .................................................. 20

Mills v. Maryland, 486 U.S. 367 (1988) ................................................... 32

Mills v. Moore, 786 So. 2d 532 (Fla. 2001) .............................................. 10, 11, 16

Monlyn v. State, 894 So. 2d 832, 841 (Fla. 2004) ................................... 17

iii

009a

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) .................................... passim

Mosley v. State, 209 So. 3d 1248 (Fla. 2016) ........................................... passim

Powell v. Delaware, 153 A.3d 69 (Del. 2016) ......................................... 23

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

Schriro v. Summerlin, 542 U.S. 348 (2004).............................................. 22

Simmons v. State, 207 So. 3d 860 (Fla. 2016) .......................................... 30, 33

Skinner v. Oklahoma, 316 U.S. 535 (1942) .............................................. 26

Smith v. State, 213 So. 3d. 722 (Fla. 2017)............................................... 29

Spaziano v. Florida, 468 U.S. 447 (1984) ................................................ 9

Stovall v. Denno, 388 U.S. 293 (1967) ..................................................... passim

Teague v. Lane, 489 U.S. 288 (1989) ....................................................... 22

Walton v. Arizona, 497 U.S. 639 (1990) ................................................... 9

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

Williams v. State, 209 So. 3d 543 (Fla. 2017) .......................................... 29, 33

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

CONSTITUTIONAL PROVISIONS

Article I, § 13, Fla. Const. ......................................................................... 2

Article V, § 3(b)(9), Fla. Const. ................................................................ 2

RULES

Fla. R. Crim. P. 3.851(d) ........................................................................... 4

Fla. R. App. P. 9.030 ................................................................................ 2

Fla. R. App. P. 9.100 ................................................................................. 2

010a

INTRODUCTION

Petitioner Donald Lee Bradley’s death sentence became final after the United

States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

His petition asks the Court to review his death sentence in light of Hurst v. Florida,

136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). Those decisions

should be applied to this post-Apprendi case under this Court’s retroactivity

standards as well as under the standards of federal retroactivity law.

Although this Court has already made clear that the Hurst decisions apply

retroactively to death sentences that became final after the 2002 decision in Ring v.

Arizona, 536 U.S. 584 (2002), the Court has not yet provided an opinion specifically

discussing Hurst retroactivity for the small number of death sentences that became

final during the two-year period between Apprendi and Ring. The same Hurst

retroactivity analysis that this Court has extended to all post-Ring death sentences

should extend to post-Apprendi death sentences, including Petitioner’s, because

Apprendi is the constitutional basis for Ring and for the Hurst decisions.

There are 22 cases in this post-Apprendi category with a split jury vote and no

predicate waiver. Here, the Hurst error is not harmless since the advisory jury

recommended a death sentence by a vote of 10 to 2. Petitioner requests that this

Court grant a writ of habeas corpus under the Hurst decisions, vacate his death

sentence, and remand for a new penalty phase.

011a

JURISDICTION

This Court has original jurisdiction to grant Petitioner a writ of habeas corpus

under Article I, Section 13, and Article V, Section 3(b)(9), of the Florida

Constitution. This proceeding is also authorized by Florida Rule of Appellate

Procedure 9.030(a)(3). This petition complies with Rule 9.100(a) requirements.

REQUEST FOR ORAL ARGUMENT

This petition presents important retroactivity arguments based on the “postApprendi” posture of this case. Petitioner respectfully requests oral argument.

REQUEST THAT THIS HABEAS CORPUS ACTION NOT

BE STAYED PENDING THE DECISION IN HITCHCOCK

The Apprendi retroactivity arguments presented by this habeas corpus petition

are not briefed in the pending appeal in Hitchcock, No. SC17-445. Petitioner urges

the Court to independently evaluate this post-Apprendi petition, address the

important issues concerning post-Apprendi retroactivity it raises, and not stay these

habeas proceedings pending the decision in Hitchcock.

BACKGROUND

In 1998, Petitioner was convicted of murder in the Circuit Court of the Fourth

Judicial Circuit, in and for Clay County. See Bradley v. State, 787 So. 2d 732, 736

(Fla. 2001). The jury returned a generalized advisory recommendation to impose

the death penalty by a vote of 10 to 2.

012a

The court, not the jury, then made the critical findings of fact required to

impose a sentence of death under Florida law. The court, not the jury, specifically

found that the following aggravating factors had been proven beyond a reasonable

doubt: (1) the offense was heinous, atrocious, or cruel; (2) the offense was committed

in a cold, calculated, and premeditated manner; (3) the offense was committed for

pecuniary gain; and (4) the offense was committed while engaged in the commission

of a burglary. See Bradley v. State, 33 So. 3d 664, 670 n.4 (Fla. 2010). The court,

not the jury, found beyond a reasonable doubt that those aggravating factors were

“sufficient” to impose the death penalty, and that the aggravators were not

outweighed by the mitigation.1 Based upon the court’s own fact-finding, the court

sentenced Petitioner to death. See Bradley, 787 So. 2d at 738.

During the pendency of Petitioner’s direct appeal, the United States Supreme

Court decided Apprendi on June 26, 2000, but this Court thereafter affirmed

Petitioner’s death sentence on March 1, 2001. See id. at 734. Petitioner’s sentence

became “final” on November 26, 2001, when the United States Supreme Court

The mitigation the trial court found included: (1) Petitioner had no significant

history of prior criminal activity; (2) Petitioner’s age at the time of the crime; (3)

Petitioner overcame a chaotic childhood and dysfunctional family life to make real

achievements in his own life, including establishing loving relationships in his

family and reestablishing a relationship with his father; (4) Petitioner had been a

good provider and father for his present wife and his children; (5) Petitioner loved

his family and was loved by them; (6) Petitioner maintained a good employment

record; (7) Petitioner was helpful to other people inside and outside his family; and

(8) Petitioner showed sincere religious faith. See id.

013a

denied his petition for a writ of certiorari. Bradley v. Florida, 534 U.S. 1048 (2001);

see also Fla. R. Crim. P. 3.851(d)(1)(B) (providing that a Florida conviction and

sentence becomes final on direct appeal upon the United States Supreme Court’s

disposition of a petition for a writ of certiorari). Seven months later, the United

States Supreme Court decided Ring.

This Court subsequently affirmed the denial of Petitioner’s initial Florida Rule

of Criminal Procedure 3.851 motion for post-conviction relief and denied his

accompanying petition for a writ of habeas corpus. Bradley, 33 So. 3d at 667.

Petitioner’s Rule 3.851 motion argued, among other things, that Florida’s capital

sentencing scheme was unconstitutional under Apprendi and Ring. Id. at 670 n.6.

Petitioner sought a federal writ of habeas corpus under 28 U.S.C. § 2254,

which was denied by the United States District Court for the Middle District of

Florida in 2014. Bradley v. Sec’y, Fla. Dep’t. of Corr., No. 3:10-cv-1078, ECF No.

15 (M.D. Fla. Mar. 12, 2014). The United States Court of Appeals for the Eleventh

Circuit denied a certificate of appealability. Bradley v. Sec’y, Fla. Dep’t. of Corr.,

No. 14-11630 (11th Cir. Sept. 12, 2014).

014a

ARGUMENT

Petitioner’s death sentence violates Hurst v. Florida and Hurst v. State

Petitioner’s death sentence violates Hurst v. Florida and Hurst v. State. In

Hurst v. Florida, the United States Supreme Court held that Florida’s capital

sentencing scheme violated the Sixth Amendment because it required the judge, not

the jury, to make the findings of fact necessary 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. Florida’s unconstitutional scheme, however, had an

advisory jury to render a generalized recommendation for life or death by a majority

vote, without specifying the factual basis for the recommendation, and then

empowered the sentencing judge alone, notwithstanding the jury’s recommendation,

to conduct the required fact-finding. Id. at 622. The Court held that the jury, not the

judge, must make the findings of fact required to impose the death penalty. Id.

In Hurst v. State, this Court explained that the Eighth Amendment also

requires unanimous jury fact-finding as to (1) which aggravating factors were

proven, (2) whether those aggravators were “sufficient” to impose the death penalty,

015a

and (3) whether those aggravators outweighed the mitigation. 202 So. 3d at 53-59. 2

Each of those determinations are “elements” that must be found by a jury

unanimously and beyond a reasonable doubt. Id. at 57; see also Jones v. State, 212

So. 3d 321, 344 (Fla. 2017). In addition to rendering unanimous findings on each

of those elements, this Court explained that the jury must unanimously recommend

the death penalty before a death sentence may be imposed. Hurst, 202 So. 3d at 57

(“[B]efore the trial judge may consider imposing a sentence of death, the jury in a

capital case must unanimously and expressly find all the aggravating factors that

were proven beyond a reasonable doubt, unanimously find that the aggravating

factors are sufficient to impose death, unanimously find that the aggravating factors

outweigh the mitigating circumstances, and unanimously recommend a sentence of

death.”). The Court cautioned that, even if the jury unanimously found that each of

the elements required to impose the death penalty was satisfied, the jury was not

required to recommend the death penalty. Id. at 57-58 (“We equally emphasize that

. . . we do not intend to diminish or impair the jury’s right to recommend a sentence

of life even if it finds the aggravating factors were proven, were sufficient to impose

death, and that they outweigh the mitigating circumstances.”).

This unanimity holding was consistent with the constitutional “evolving standards

of decency,” Atkins v. Virginia, 536 U.S. 304, 312 (2002), which have led to a

national consensus that death may be imposed only upon unanimous jury verdicts.

016a

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

elements required to impose a death sentence under Florida law. Instead, after being

instructed that its verdict was advisory, and that the ultimate responsibility for

imposing a death sentence rested with the judge, Petitioner’s jury rendered a nonunanimous, generalized advisory recommendation to impose the death penalty. The

record does not reveal whether the jurors unanimously agreed that any particular

aggravating factor was proven beyond a reasonable doubt, or unanimously agreed

that those aggravators were sufficient to impose the death penalty, or unanimously

agreed that those aggravators outweighed the mitigation. However, the record is

clear that Petitioner’s jurors were not unanimous as to whether the death penalty

should even be recommended to the court.

Accordingly, Petitioner’s death sentence violates the Sixth and Eighth

Amendments.

II.

The Hurst decisions should apply retroactively to Petitioner under

Florida’s Witt retroactivity doctrine because his sentence became final

after Apprendi was decided

The Hurst decisions should apply retroactively to Petitioner under the Florida

retroactivity doctrine established in Witt v. State, 387 So. 2d 922 (Fla. 1980), and

this Court’s post-Hurst retroactivity decisions. Petitioner’s death sentence became

final on November 26, 2001, after Apprendi was decided.

017a

Under Witt, this Court applies changes in the law retroactively where those

changes (1) emanate from either this Court or the United States Supreme Court; (2)

are constitutional in nature; and (3) constitute developments of fundamental

significance. Falcon v. State, 162 So. 3d 954, 960 (Fla. 2015). For purposes of the

third Witt prong, this Court decides whether developments in the law are of

“fundamental significance” by analyzing three factors—purpose, reliance, and

administration of justice—which Witt borrowed from the decisions in Stovall v.

Denno, 388 U.S. 293 (1967), and Linkletter v. Walker, 381 U.S. 618 (1965). See

Falcon, 162 So. 3d at 961.

This Court has already made clear that under a Witt analysis the Hurst

decisions apply retroactively to all death sentences that became final after the 2002

decision in Ring. See. e.g., Mosley v. State, 209 So. 3d 1248 (Fla. 2016). But the

Court has not yet squarely addressed Hurst retroactivity with respect to the small

number of death sentences that became final during the two-year gap between

Apprendi and Ring. This petition provides the Court with the opportunity to close

the Apprendi gap by holding that the same Hurst retroactivity this Court has

extended to post-Ring sentences should also extend to post-Apprendi sentences.

Apprendi is the indispensable constitutional foundation for Ring and for the Hurst

decisions, and extending Hurst retroactivity to post-Apprendi sentences satisfies all

three prongs of a Witt analysis.

018a

If Florida is to maintain a bright-line retroactivity rule for Hurst

claims, the line should be drawn at Apprendi rather than Ring

because both Ring and Hurst were extensions of Apprendi

If there is to be a bright-line retroactivity rule for Hurst claims, that line should

be drawn at Apprendi, not Ring: Ring and Hurst both are merely extensions of the

rule originally announced in Apprendi. 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, the Ring Court applied Apprendi’s

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

136 S. Ct. at 621. Then, just as Ring applied Apprendi’s principles to Arizona’s

capital sentencing scheme, Hurst v. Florida applied Apprendi’s principles to

Florida’s capital sentencing scheme.

In Hurst, the Supreme Court repeatedly stated that Florida’s scheme was

incompatible with “Apprendi’s rule,” of which Ring was merely 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)—the Hurst Court stated that those decisions were “irreconcilable

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

precedent approving of Arizona’s scheme—Walton v. Arizona, 497 U.S. 639

019a

(1990)—which also could not “survive the reasoning of Apprendi.” Hurst, 136 S.

Ct. at 623. Thus, both Ring and Hurst make clear that their operative constitutional

holding derived directly from Apprendi.

This Court has also consistently understood that the Sixth Amendment rule

applied in Ring and Hurst derived directly from Apprendi. Even in Mosley v. State,

this Court observed that Ring was an application of Apprendi. See 209 So. 3d at

1279-80 (explaining that in Ring the Supreme Court “applied its reasoning from

Apprendi.”). And 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. For example, in Johnson v. State, 904 So. 2d 400, 405-06

(Fla. 2005), the Court explained: “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.”

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).

020a

This Court rejected challenges to Florida’s death-sentencing scheme on the

same basis after Apprendi as it did after Ring: that the United States Supreme Court

had approved of Florida’s scheme. Compare Mills, 786 So. 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 be arbitrary and fundamentally unfair to extend Hurst retroactivity

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

the small number of individuals like Petitioner whose death sentences were finalized

in the two years between Apprendi and Ring.3

The arbitrariness is particularly stark when we compare individual cases. For

example, during the period between Apprendi and Ring, this Court affirmed Gary

Bowles’ and James Card’s unrelated death sentences in separate opinions that were

issued on the same day, October 11, 2001. See Bowles v. State, 804 So. 2d 1173

(Fla. 2001); Card v. State, 803 So. 2d 613, 617 (Fla. 2001). Both inmates petitioned

for a writ of certiorari in 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). However, Mr.

Bowles’s sentence 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, finding that Hurst was

retroactive because his sentence became final after Ring. See Card v. Jones, SC17453, 2017 WL 1743835 (Fla. May 4, 2017). However, Mr. Bowles, whose case was

decided on direct appeal on the same day, might not obtain review under Hurst

notwithstanding the post-Apprendi posture of his case.

021a

Extending Hurst retroactivity to the small number of Florida death

sentences that became final after Apprendi and before Ring is

supported by the three Witt factors

For the very same reasons this Court described in Mosley v. State with respect

to post-Ring death sentences, extending Hurst retroactivity to the small number of

Florida death sentences that became final after Apprendi is also proper under the

Witt doctrine. As noted above, retroactivity under Witt requires analysis of three

prongs, all of which are satisfied with respect to post-Apprendi death sentences.

In both Mosley and Asay v. State, 210 So. 3d 1 (Fla. 2016), this Court observed

that there is no dispute that Hurst claims satisfy the first two Witt retroactivity prongs

because they (1) arise from decisions of this Court and the United States Supreme

Court, and (2) are constitutional in nature. However, with respect to the third Witt

prong—whether the Hurst decisions are of “fundamental significance,” as measured

by the three Stovall/Linkletter factors (purpose, reliance, and administration of

justice)—Mosley and Asay held that retroactivity analysis depends on the date an

individual’s death sentence became final on direct appeal. In Mosley, the Court

analyzed the third Witt prong in light of a death sentence that became final after both

Apprendi and Ring, and concluded that the Hurst decisions applied retroactively. In

Asay, the Court analyzed the third Witt prong in light of a death sentence that became

final before both Apprendi and Ring, and concluded that Hurst v. Florida did not

apply retroactively.

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This Court has not yet published an opinion specifically analyzing the third

Witt prong in the context of a death sentence, like Petitioner’s, that became final

between Apprendi and Ring. As applied to Petitioner’s post-Apprendi sentence, the

Hurst decisions are of “fundamental significance” within the meaning of the third

Witt prong and the three Stovall/Linkletter factors. All three Stovall/Linkletter

factors favor retroactivity.

Purpose of new rule

As applied to Petitioner’s post-Apprendi death sentence, the first

Stovall/Linkletter factor—the purpose of Hurst v. Florida and Hurst v. State—

weighs at least “in favor” of retroactivity, if not “heavily in favor.” In Asay, which

analyzed only Hurst v. Florida, this Court stated that the purpose of the United States

Supreme Court’s Sixth Amendment decision “is to ensure that a criminal

defendant’s right to a jury is not eroded and encroached upon by sentencing schemes

that permit a higher penalty to be imposed based on findings of fact that were not

made by the jury.” Asay, 210 So. 3d at 17. In Mosley, where this Court considered

both Hurst v. Florida and the decision on remand in Hurst v. State, the Court added

that the purpose of Hurst v. State was to enshrine Florida’s “longstanding history

requiring unanimous jury verdicts as to the elements of a crime” into the state’s

capital sentencing scheme. Mosley, 209 So. 3d at 1278. With those principles in

mind, the Asay Court ruled in the context of a death sentence that became final nearly

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a decade before both Ring and Apprendi that the purpose of Hurst v. Florida weighs

“in favor” of retroactive application. Asay, 210 So. 3d at 18. In Mosley, in the

context of a death sentence that became final after Ring, this Court concluded that

the combined purpose of Hurst v. Florida and Hurst v. State weighed “heavily in

favor” of retroactive application. Mosley, 209 So. 3d at 1248.

Here, under the reasoning of both Mosley and Asay, Petitioner’s postApprendi death sentence weighs at least in favor of retroactive application, if not

heavily in favor, given the closeness of his sentence’s finality to the date Ring was

decided. As this Court emphasized in Asay, the right to a trial by jury is a

fundamental feature of the United States and Florida Constitutions and its protection

must be among the highest priorities of the courts, particularly in capital cases. See

Asay, 210 So. 3d at 18 (“[I]n death cases, this Court has taken care to ensure all

necessary constitutional protections are in place before one forfeits his or her life”).

Or as the Court further noted in Mosley, there is a “critical importance of a

unanimous jury verdict within Florida’s independent constitutional right to a trial by

jury.” Mosley, 209 So. 3d at 1278. Given those critical features of the Hurst

decisions, this Court should find that Petitioner’s post-Apprendi sentence satisfies

the “purpose” factor.

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Extent of reliance on old rule

As applied to Petitioner’s post-Apprendi death sentence, the second

Stovall/Linkletter factor—the extent of reliance on Florida’s unconstitutional preHurst scheme—also weighs in favor of applying those decisions retroactively. This

factor focuses on reliance on the idea that Apprendi did not apply to Florida’s capital

sentencing scheme. After Apprendi, Florida could no longer rely on the soundness

of pre-Apprendi law, namely Spaziano and Hildwin, as that law was “irreconcilable

with Apprendi.” Hurst, 136 S. Ct. at 623. As this Court explained in Mosley, the

question is not whether Florida relied upon pre-Apprendi in good faith, but how

Hurst and its antecedents changed the calculus of the constitutionality of Florida’s

capital sentencing scheme. See Mosley, 209 So. 3d at 1280. Thus, because Apprendi

changed the calculus of Florida’s capital scheme, this factor weighs in favor of

applying retroactivity to post-Apprendi petitioners.

This Court concluded in Asay that reliance on the old rule weighed against

retroactivity for a pre-Apprendi and pre-Ring petitioner because Florida had relied

on the old rule for decades and 400 death row inmates had been sentenced under that

rule. Asay, 210 So. 3d at 20. The Court reasoned that as of 1991 (a decade before

Apprendi) “this Court and the State of Florida had every reason to believe that its

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capital sentencing scheme was constitutionally sound.” Asay, 210 So. 3d at 19. 4 But

the same is not true after Apprendi.

The reliance factor therefore applies in a substantially different way for a

prisoner whose sentence became final after Apprendi. Indeed, in his Apprendi

concurrence, Justice Thomas plainly informed everyone that schemes like Florida’s

were on constitutionally uncertain ground and that the Supreme Court would be

directly addressing those death penalty schemes in another case. See Apprendi, 530

U.S. at 523 (Thomas, J., concurring). From the day the opinion in Apprendi was

issued, America’s few judge-sentencing capital schemes (such as Florida’s) were on

a collision course with the Sixth Amendment.

Indeed, this Court’s own decisions shifted after Apprendi, highlighting that

the reliance factor favors retroactive application of the Hurst decisions to Petitioner.

To be sure, it was after Apprendi that Justices of this Court recognized the shift and

began acting on the basis of that recognition. For example, this Court began

monitoring post-Apprendi appeals of death row inmates in other states. See Mills,

786 So. 2d at 537 (describing a Delaware petitioner’s unsuccessful attempt to bring

an Apprendi claim). And even more: in Mills, this Court rejected the application of

Perhaps because of its context (review of a death sentence finalized in 1991), Asay

did not discuss Mills v. Moore, the case where this Court, pre-Ring, considered the

constitutionality of Florida’s scheme on the basis of a challenge made under

Apprendi.

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Apprendi because it was not the job of the Florida Supreme Court to anticipate future

United States Supreme Court action. Id. at 537. Instead of citing a single Florida

case, this Court said it didn’t have the “authority” to overrule the United States

Supreme Court’s decision in Walton, which was not a Florida case. Id. Thus, during

this post-Apprendi period, Florida was not operating on the same ground on which

Florida operated before Apprendi was decided. And this Court explicitly recognized

this difference in Johnson when it noted that Ring was “not a sudden or

unforeseeable development,” but rather a “refinement” of Apprendi. 904 So. 2d at

405 (quoting Monlyn v. State, 894 So. 2d 832, 841 (Fla. 2004) (Pariente, C.J.,

specially concurring)).

Apprendi changed the calculus of the constitutionality of Florida’s capital

sentencing scheme, and the reliance factor weighs in favor of extending retroactivity

to Petitioner, whose case became final after Apprendi. While the Court accurately

noted in Mosley that Florida’s prior capital sentencing scheme has been

unconstitutional since Ring, it is equally true that Florida’s scheme has been

unconstitutional since Apprendi. And it is worth repeating here that both Ring and

Hurst were applications of the Sixth Amendment rule originally announced in

Apprendi. It was Apprendi that 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 530 U.S. at

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490. The Hurst Court acknowledged that the Ring Court had applied Apprendi’s

analysis to conclude that the petitioner’s death sentence violated the Sixth

Amendment. 136 S. Ct. at 621. Hurst repeatedly stated that Florida’s scheme was

incompatible with “Apprendi’s rule,” of which Ring was an application. 136 S. Ct.

at 621. And this Court most recently acknowledged in Mosley itself that Ring was

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

Supreme Court “applied its reasoning from Apprendi.”).

Effect on administration of justice

As applied to Petitioner’s post-Apprendi death sentence, the third

Stovall/Linkletter factor— the effect on the administration of justice—also favors

applying those decisions retroactively. Under Asay, this factor will not weigh

against retroactivity unless applying the Hurst decisions retroactively could “destroy

the stability of the law, render punishments uncertain and therefore ineffectual, and

burden the judicial machinery of our state, fiscally and intellectually, beyond any

tolerable limit.” Asay, 210 So. 3d at 20 (quoting Witt, 387 So. 2d at 929–30). In

Mosley, the Court held that categorically applying the Hurst decisions retroactively

to all post-Ring defendants, of which there are approximately 175, would not grind

this state’s judiciary to a halt. See Mosley, 209 So. 3d at 1281-83.

Because this Court has already ruled that the third Stovall/Linkletter factor

weighs in favor of applying Hurst retroactively to all post-Ring death sentences, the

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question is whether also applying Hurst retroactively to death sentences that became

final in the two-year period between Apprendi and Ring would tip the balance to

“burden the judicial machinery of our state, fiscally and intellectually, beyond any

tolerable limit.” Asay, 210 So. 3d at 20 (quoting Witt, 387 So. 2d at 929–30).

There are only 22 cases in this post-Apprendi category with a split jury vote

and no predicate waiver (the total number of cases, including unanimous jury-vote

cases and waiver cases, is 30). This is not an unworkable number of prisoners but,

instead, a small, definite group. Petitioner urges that this Court apply its post-Hurst

jurisprudence to his post-Apprendi case and vacate his unconstitutional death

sentence.

III.

The Hurst decisions should be applied retroactively to Petitioner under

federal law

Even if the Hurst decisions did not apply retroactively to Petitioner’s “post-

Apprendi” death sentence under Florida’s Witt retroactivity analysis, the United

States Constitution requires this Court to apply Hurst retroactively in this case.

While Florida may maintain its own state retroactivity doctrines, the United States

Constitution sets a retroactivity “floor” to which all state retroactivity determinations

must adhere. Under federal principles, Hurst v. Florida and Hurst v. State should

be applied retroactively to Petitioner and other similarly situated prisoners without

regard to when their death sentences became final on direct appeal. The concept of

“partial retroactivity,” whereby a constitutional rule is applied retroactively to some

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cases on collateral review but not others, cannot be squared with the Eighth and

Fourteenth Amendments.

The Supremacy Clause of the United States Constitution requires state postconviction courts to apply “substantive” constitutional rules retroactively. See

Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016) (“Where state collateral

review proceedings permit prisoners to challenge the lawfulness of their

confinement, States cannot refuse to give retroactive effect to a substantive

constitutional right that determines the outcome of that challenge.”). This federal

constitutional requirement applies even where a state supreme court has a separate

retroactivity doctrine. See id. That was the issue before the United States Supreme

Court in Montgomery, wherein a Louisiana defendant brought a state postconviction proceeding seeking retroactive application of Miller v. Alabama, 567

U.S. 460 (2012) (holding that imposition of mandatory sentences of life without

parole on juveniles violates the Eighth Amendment). The Louisiana Supreme Court

denied Miller relief on state retroactivity grounds. Montgomery, 136 S. Ct. at 727.

The United States Supreme Court reversed, holding that because the Miller

constitutional rule was substantive, the state court was obligated to apply it

retroactively. See id. at 732-34.

Florida’s state courts are required to apply Hurst retroactively to all deathsentenced prisoners because the Hurst decisions established substantive rules within

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the meaning of federal law. First, a Sixth Amendment rule was established requiring

that a jury find as fact: (1) each aggravating circumstance; (2) that those particular

aggravating circumstances together are “sufficient” to justify imposition of the death

penalty; and (3) that those particular aggravating circumstances together outweigh

the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Each of those findings

is required to be made by the jury beyond a reasonable doubt. Such findings are

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

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

youth” is a substantive, not procedural, rule).

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.”

Hurst v. State, 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]

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states and with federal law.” Id. As a matter of federal retroactivity law, the rule is

therefore substantive. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016)

(“[T]his Court has determined whether a new rule is substantive or procedural by

considering the function of the rule”). This is true even though the rule’s subject

concerns the method by which a jury makes its decision. See Montgomery, 136 S.

Ct. at 735 (noting that state’s ability to determine method of enforcing constitutional

rule does not convert rule from substantive to procedural).

The logic supporting Hurst retroactivity is not undermined by Schriro v.

Summerlin, 542 U.S. 348, 364 (2004), where the United States Supreme Court held

that Ring was not retroactive in the federal habeas context under the federal

retroactivity test articulated in Teague v. Lane, 489 U.S. 288 (1989). Summerlin did

not review a statute, like Florida’s, that required the jury not only to conduct the factfinding regarding the aggravators, but also the fact-finding as to whether the

aggravators were sufficient to impose death. And with Hurst, unlike in Summerlin,

there is an Eighth Amendment unanimity rule at issue in addition to the Sixth

Amendment’s jury-trial guarantee. See Summerlin, 542 U.S. at 353.

Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard in addition to the jury trial right, and the Supreme Court has always

regarded such decisions as substantive. See, e.g., Ivan V. v. City of New York, 407

U.S. 203, 205 (1972) (explaining that “the major purpose of the constitutional

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standard of proof beyond a reasonable doubt announced in [In re Winship, 397 U.S.

358 (1970)] was to overcome an aspect of a criminal trial that substantially impairs

the truth-finding function, and Winship is thus to be given complete retroactive

effect.”); Powell v. Delaware, 153 A.3d 69 (Del. 2016) (holding Hurst retroactive

under Delaware’s state Teague-like retroactivity doctrine and distinguishing

Summerlin on the ground that Summerlin “only addressed the misallocation of factfinding responsibility (judge versus jury) and not . . . the applicable burden of

proof.”). Indeed, federal judges in Florida have already recognized the impact of the

beyond-a-reasonable-doubt standard on the federal retroactivity of Hurst. See, e.g.,

Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May 27, 2016) (explaining that

Hurst may be retroactive as a matter of federal law because “[t]he Supreme Court

has held a proof-beyond-a-reasonable-doubt decision retroactive.”) (citing Ivan V.).

The United States Supreme Court’s decision in Welch is illustrative of the

substantive nature of Hurst. In Welch, the Court addressed the retroactivity of the

constitutional rule articulated in Johnson v. United States, 135 S. Ct. 2551, 2560

(2015). In Johnson, the Court held that a federal statute that allowed sentencing

enhancement was unconstitutional. Id. at 2556. In Welch, the Court held that

Johnson’s ruling was substantive because it “affected the reach of the underlying

statute rather than the judicial procedures by which the statute is applied”—therefore

it must be applied retroactively. Welch, 136 S. Ct. at 1265. The Court emphasized

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that its determination whether a constitutional rule is substantive or procedural “does

not depend on whether the underlying constitutional guarantee is characterized as

procedural or substantive,” but rather whether “the new rule itself has a procedural

function or a substantive function—that is whether it alters only the procedures used

to obtain the conviction, or alters instead the range of conduct or class of persons

that the law punishes.” Id. at 1266. In Welch, the Court pointed out that, “[a]fter

Johnson, the same person engaging in the same conduct is no longer subject to the

Act and faces at most 10 years in prison. The residual clause is invalid under

Johnson, so it can no longer mandate or authorize any sentence.” Id. Thus, “Johnson

establishes, in other words, that even the use of impeccable factfinding procedures

could not legitimate a sentence based on that clause.” Id. “It follows,” the Court

held, “that Johnson is a substantive decision.” Id. (internal quotation omitted).

The same reasoning applies in the Hurst context. The Sixth Amendment

requirement that each element of a Florida death sentence must be found beyond a

reasonable doubt, and the Eighth Amendment requirement of jury unanimity in factfinding, are substantive constitutional rulings within the meaning 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. And in the context of a Welch analysis, the

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“unanimous finding of aggravating factors and [of] the facts that are sufficient to

impose death, as well as the unanimous finding that they outweigh the mitigating

circumstances, all serve to help narrow the class of murderers subject to capital

punishment,” Hurst, 202 So. 3d at 60 (emphasis added), i.e., the new law by

necessity places certain individuals beyond the state’s power to impose a death

sentence. The decision in Welch makes clear that a substantive rule, rather than a

procedural rule, resulted from the Hurst decisions. See Welch, 136 S. Ct. at 126465 (a substantive rule “alters . . . the class of persons that the law punishes.”).

The concept of “partial retroactivity” is inconsistent with federal law, which

traditionally accepts only a binary approach to retroactivity analysis. In contrast, a

framework that allows state courts to select which capital cases on collateral review

can receive the retroactive benefit of a constitutional rule of law and which will not,

based on the sentence’s temporal relation to some precedent that came before the

constitutional rule was announced, violates the United States Constitution. Under

federal law, there is no such thing as partial retroactivity. If a state court decides

that a constitutional rule is retroactive to some cases on collateral review, it cannot

deny retroactivity to other cases based solely on the date the death sentence became

final on direct appeal relative to some prior precedent.

Here, for purposes of federal law, Petitioner’s right to Hurst retroactivity

should not be impacted by the date his death sentence became final relative to Ring

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or any other antecedent case. After all, partial retroactivity leads to arbitrary and

impermissible results. For instance, if a retroactivity “line” is drawn at Ring, it

would result in the denial of Hurst relief to individuals like Petitioner whose death

sentences became final on direct appeal shortly before Ring, while at the same time

granting Hurst retroactivity to other individuals who arrived on death row years, or

perhaps decades, earlier but were granted new penalty phases and then resentenced

to death after Ring. Failure to extend Hurst retroactivity to pre-Ring as well as postRing prisoners would violate the Eighth Amendment’s requirement of culpabilityrelated decision-making in capital cases, and the Fourteenth Amendment’s

requirement that distinctions in state criminal laws that impinge upon fundamental

rights must be strictly scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535,

541 (1942); McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Eisenstadt v. Baird,

405 U.S. 438, 447 (1972).

In addition, making Hurst only partially retroactive to post-Ring sentences

would unfairly deny Hurst access to defendants, like Petitioner, who were sentenced

between the decisions in Apprendi and Ring. The fundamental unfairness of that

result is stark given that the Supreme Court made clear in Ring that its decision

flowed directly from Apprendi, and that it was Apprendi that required the Court to

overrule its previous decision in Walton upholding Arizona’s capital sentencing

scheme. See Ring, 536 U.S. at 588-89. As for Florida, in Hurst, the Supreme Court

036a

repeatedly stated that Florida’s scheme was incompatible with “Apprendi’s rule,” of

which Ring was an application. 136 S. Ct. at 621.

In the final analysis, the idea of partial retroactivity violates the Eighth and

Fourteenth Amendment prohibition against arbitrariness in imposing death

sentences. The death penalty does not hold up when imposed under “sentencing

procedures that create[] a substantial risk that it would be inflicted in an arbitrary or

capricious manner.” Gregg v. Georgia, 428 U.S. 153, 188 (1976); see also Furman

v. Georgia, 408 U.S. 238, 310 (1972) (“the 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). Partial retroactivity smacks of such unconstitutional arbitrariness. For

instance, the date of finality relative to Ring might depend on whether direct appeal

counsel sought extensions of time to file a brief; whether a case overlapped with the

Court’s summer recess; how long the assigned Florida Supreme Court Justice took

to draft the opinion; whether an extension was sought for a rehearing motion and

whether such a motion was filed; whether there was a scrivener’s error so that the

Court had to issue a corrected opinion; whether appellate counsel chose to file a

petition for a writ of certiorari or first, sought an extension for such a petition, or

how long that petition remained pending in the United States Supreme Court; and so

on. The itemization of factors can go on and on and all of them—from the

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perspective of whether a death sentence should be carried out in an individual case—

are arbitrary and capricious.

And there are other arbitrary factors affecting whether a defendant might get

Hurst relief under a partial retroactivity approach, such as whether a resentencing

was held or other intervening factors. In Florida today, even “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, 205 So. 3d at 1285 (granting Hurst relief

to a defendant whose crime occurred in 1981 but was granted relief on a third

successive post-conviction motion in 2010, years after the Ring decision); Card,

2017 WL 1743835, at *1 (granting Hurst relief to a defendant whose crime occurred

in 1981 but was granted relief on a second successive post-conviction motion in

2002—just four days after Ring was decided); cf. Calloway v. State, 210 So. 3d 1160

(Fla. 2017) (granting Hurst relief in a case where the crime occurred in the late

1990s, but interlocutory appeals resulted in a ten-year delay before the trial).

The determination about the validity of a death sentence should not turn on

such “arbitrary and capricious” factors. This Court should reject the idea of partial

retroactivity under principles of federal law.

IV.

The Hurst error in Petitioner’s case is not harmless under this Court’s

decisions in light of the non-unanimous jury recommendation

The Hurst error in Petitioner’s case is not harmless beyond a reasonable doubt

under this Court’s decisions because his advisory jury recommended the death

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penalty by a non-unanimous vote of 10-2. As the Court held in Dubose v. State, “in

cases where the jury makes a non-unanimous recommendation of death, the Hurst

error is not harmless,” regardless of the applicable aggravating and mitigating

circumstances. 210 So. 3d 641, 657 (Fla. 2017).

The Court has never found a Hurst error harmless in a case where the jury

vote was not unanimous, and has now granted relief in dozens of non-unanimousrecommendation cases. See, e.g. Johnson v. State, 205 So. 3d 1285, 1290-91 (Fla.

2016) (11-1 jury vote); McGirth, 209 So. 3d. at 1163-65 (11-1 jury vote); Hernandez

v. Jones, SC17-440, No. 2017 WL 1954985, at *1 (11-1 jury vote); Card, 2017 WL

1743835, at *1 (11-1 jury vote); Braddy v. State, No. SC15-404, 2017 WL 2590802,

at *1 (Fla. June 15, 2017) (11-1 jury vote); Brooks v. Jones, No. SC16-532, 2017

WL 944235, at *1 (11-1 and 9-3 jury votes); Durousseau v. State, No. SC15-1276,

2017 WL 411331, at *5-6 (Fla. Jan. 31, 2017) (10-2 jury vote); Kopsho v. State, 209

So. 3d 568, 570 (Fla. 2017) (10-2 jury vote); Hodges v. State, 213 So. 3d 863, 881

(Fla. 2017) (10-2 jury vote); Hertz v. State, No. SC17-456, 2017 WL 2210402 at *3

(10-2 jury vote); Smith v. State, 213 So. 3d 722, 744 (Fla. 2017) (10-2 and 9-3 jury

votes); Ault v. State, 213 So. 3d 670, 679 (Fla. 2017) (10-2 and 9-3 jury votes);

Franklin v. State, 209 So. 3d 1241, 1248 (Fla. 2016) (9-3 jury vote); Hojan v. State,

212 So. 3d 982, 1000 (Fla. 2017) (9-3 jury vote); Armstrong v. State, 211 So. 3d

864, 865 (Fla. 2017) (9-3 jury vote); Williams v. State, 209 So. 3d 543, 565-67 (Fla.

039a

2017) (9-3 jury vote); Simmons v. State, 207 So. 3d 860 (Fla. 2016) (8-4 jury vote);

Mosley, 209 So. 3d. at 1283 (8-4 jury vote); Dubose, 210 So. 3d. at 657 (8-4 jury

vote); Anderson v. State, No. SC12-1252, SC14-881, 2017 WL 930924, at *12 (Fla.

Mar. 9, 2017) (8-4 jury vote); Caylor v. State, Nos. SC15-1823, SC16-399, 2017

WL 2210386, at *7 (8-4 jury vote); Hall v. State, No. SC14-2225, 2017 WL

2590704, at *1 (Fla. June 15, 2017) (8-4 jury vote); Calloway, 210 So. 3d at 1200

(7-5 jury vote); Hurst v. State, 202 So. 3d. at 69 (7-5 jury vote).

The Dubose holding that Hurst errors cannot be harmless in non-unanimous

recommendation cases is a logical extension of this Court’s analysis in Hurst v.

State. Under Hurst v. State, this Court emphasized that Florida’s courts may not

speculate that, absent the Hurst error, the jury would have unanimously found

beyond a reasonable doubt that (1) the aggravating factors were proven, (2) the

aggravators were sufficient to impose the death penalty, and (3) the aggravators were

not outweighed by the mitigation. As this Court cautioned, engaging in such

speculation “would be contrary to our clear precedent governing harmless error

review.” Hurst v. State, 202 So. 3d at 69; see also Mosley, 209 So. 3d. at 1284. The

reasoning the Court applied in Hurst v. State applies here.

Because there was no interrogatory verdict, we cannot determine what

aggravators, if any, the jury unanimously found proven beyond a

reasonable doubt. We cannot determine how many jurors may have

found the aggravation sufficient for death. We cannot determine if the

jury unanimously concluded that there were sufficient aggravating

factors to outweigh the mitigating circumstances.

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Hurst, 202 So. 3d at 68.

Even if precedent allowed courts to find Hurst errors harmless in cases with

non-unanimous jury recommendations, the State still could not show that the Hurst

error in Petitioner’s case was harmless beyond a reasonable doubt.

First, there is no reason to believe that a juror who voted to recommend a life

sentence would vote to impose the death penalty in a hypothetical post-Hurst

proceeding. On the contrary, it is more likely that fewer jurors would have made the

required fact-finding to impose the death penalty had they known their verdict was

binding because jurors evaluate evidence in a different way when they know they

are required to conduct the fact-finding instead of simply providing a

recommendation to a judge who will make the actual decision. See Caldwell v.

Mississippi, 472 U.S. 320, 328-29 (1985) (recognizing significant negative impact

of a jury’s belief that ultimate responsibility for determining whether defendant will

be sentenced to death lies elsewhere); see also id. at 341 (explaining that the Court

“has always premised its capital punishment decisions on the assumption that a

capital sentencing jury [should] recognize[] the gravity of its task and proceed[] with

the appropriate awareness of its truly awesome responsibility.”).

Second, mitigation is an important consideration in assessing harmless error.

See Hurst, 202 So. 3d at 68-69 (“[W]e cannot find beyond a reasonable doubt that

no rational jury, as trier of fact, would determine that the mitigation was ‘sufficiently

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substantial’ to call for a life sentence.”).

The trial judge found mitigating

circumstances. It cannot be convincingly demonstrated that jurors would find this

mitigating evidence insignificant in a post-Hurst sentencing decision.

Third, if Petitioner’s counsel’s thinking had not been influenced by an

unconstitutional statute, Petitioner and counsel could have pursued a different

approach than the one taken in the advisory jury/judge-sentencing-scheme, including

a different approach to jury selection, broader challenges to aggravation, and a

broader presentation of mitigation. As such, it cannot be concluded that a jury

unanimously would find the same specific aggravators as the judge or unanimously

reject mitigators in a post-Hurst constitutional proceeding. Cf. Mills v. Maryland,

486 U.S. 367, 375-84 (1988); McKoy v. North Carolina, 494 U.S. 433, 444 (1990)

(both holding in the mitigation context that the Eighth Amendment is violated when

there is uncertainty about the jury’s vote relative to mitigating evidence).

Fourth, to the extent the State may argue that the Hurst error is rendered

harmless by the fact that the aggravators applied to Petitioner included aggravators

based on contemporaneous and/or prior felony convictions, this Court has rejected

the idea that a judge’s finding of such aggravators is relevant in harmless-error

analysis of Hurst claims, and has granted Hurst relief despite the presence of such

aggravators.

See, e.g., Franklin, 209 So. 3d. at 1248 (rejecting “the State’s

contention that Franklin’s prior convictions for other violent felonies insulate

042a

Franklin’s death sentence from Ring and Hurst v. Florida.”); McGirth, 209 So. 3d.

at 1150 (contemporaneous felony); Mosley, 209 So. 3d. at 1256 (contemporaneous

felony); Armstrong, 211 So. 3d. 864-65 (prior violent felony); Calloway, 210 So. 3d.

at 1176 (prior violent felony); Durousseau, 2017 WL 411331, at *6 (prior violent

felony); Simmons, 207 So. 3d at 861 (prior violent felony); Williams, 209 So. 3d. at

554 (prior violent and contemporaneous felonies). The same reasoning applies here.

Accordingly, the Hurst errors were not harmless based on the jury’s nonunanimous recommendation and the other factors described above, and a resentencing is appropriate. If there is any doubt as to whether the Hurst errors in

Petitioner’s case were harmless, such doubts should be resolved after a remand for

an evidentiary proceeding, at which Petitioner can develop evidence regarding the

impact of the errors on defense counsel’s overall strategy, challenges to the

aggravation, and presentation of mitigation.

CONCLUSION

For the foregoing reasons, Petitioner requests that this Court grant a writ of

habeas corpus, vacate his death sentence, and remand for a new penalty phase.

043a

Respectfully submitted,

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

Robert R. Berry

Assistant Collateral Regional

Counsel-North

175 Salem Court

Tallahassee, FL 32301

robert.berry@ccrc-north.org

(850) 487-0927

Florida Bar No. 714216

CERTIFICATE OF SERVICE

I hereby certify that on June 29, 2017, the foregoing was served via the eportal

the

Assistant

Attorney

General

Charmaine

Millsaps

charmaine.millsaps@myfloridalegal.com and capapp@myfloridalegal.com, and

Assistant Collateral Regional Counsel Robert Berry at robert.berry@ccrc-north.org.

/s/ Billy H. Nolas

Billy H. Nolas

CERTIFICATE OF COMPLIANCE

I hereby certify that this computer-generated petition for a writ of habeas

corpus is in compliance with the font requirements of Florida Rule of Appellate

Procedure 9.100(I).

/s/ Billy H. Nolas

Billy H. Nolas

044a

EXHIBIT 3

045a

Supreme Court of Florida

WEDNESDAY, SEPTEMBER 27, 2017

CASE NO.: SC17-1219

Lower Tribunal No(s).:

101996CF001277XXAXMX

DONALD BRADLEY

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:

ROBERT R. BERRY

BILLY H. NOLAS

JENNIFER ANN DONAHUE

046a

EXHIBIT 4

047a

Filing # 62646895 E-Filed 10/10/2017 03:44:51 PM

No. SC17-1219

IN THE

Supreme Court of Florida

___________________________________________________________

DONALD BRADLEY,

RECEIVED, 10/10/2017 03:48:26 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

_____________________________________________________

Robert R. Berry

Assistant Collateral Regional

Counsel—North

175 Salem Court

Tallahassee, FL 32301

robert_berry@ccrc-north.org

(850) 487-0922

Fla. Bar No. 714216

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough St., Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Fla. Bar No. 806821

Counsel for Petitioner

048a

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

049a

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.

050a

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).

051a

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

052a

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 102. 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).

053a

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).

054a

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.

055a

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

056a

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.

057a

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

058a

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.

059a

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

060a

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). 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

061a

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.

062a

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

063a

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

29, 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 29, 2017 petition (attached).

064a

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

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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

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(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

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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

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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.

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Respectfully submitted,

Robert R. Berry

Assistant Collateral Regional

Counsel—North

175 Salem Court

Tallahassee, FL 32301

robert_berry@ccrc-north.org

(850) 487-0922

Fla. Bar No. 714216

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough St., Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Fla. Bar No. 806821

Counsel for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on October 10, 2017, the foregoing was electronically

served via the e-portal to Assistant Attorney General Jennifer A. Donahue at

jennifer.donahue@myfloridalegal.com and capapp@myfloridalegal.com.

/s/ Billy H. Nolas

Billy H. Nolas

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ATTACHMENT

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Filing # 58430374 E-Filed 06/29/2017 11:52:31 AM

No. SC17-___

IN THE

Supreme Court of Florida

___________________________________________________________

DONALD LEE BRADLEY,

RECEIVED, 06/29/2017 11:53:26 AM, Clerk, Supreme Court

Petitioner,

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________

PETITION FOR WRIT OF HABEAS CORPUS

_____________________________________________________________

Robert R. Berry

Assistant Collateral Regional

Counsel-North

175 Salem Court

Tallahassee, FL 32301

robert_berry@ccrc-north.org

(850) 942-8818

Florida Bar No. 714216

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

Counsel for Petitioner

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