Petition for Writ of Certiorari — Charles Kenneth Foster, Petitioner v. Florida

Supreme Court briefJun 8, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

CHARLES KENNETH FOSTER,

Petitioner,

STATE OF FLORIDA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITIONER’S APPENDIX

______________________________________________________________

THIS IS A CAPITAL CASE

JULIE A. MORLEY

MARGARET S. RUSSELL

Capital Collateral Regional Counsel

Middle Region

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

(813) 558-1600

morley@ccmr.state.fl.us

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

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Supreme Court of Florida

____________

No. SC17-1383

____________

CHARLES KENNETH FOSTER,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[January 29, 2018]

PER CURIAM.

We have for review Charles Kenneth Foster’s appeal of the circuit court’s

order denying Foster’s motion filed pursuant to Florida Rule of Criminal Procedure

3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Foster’s motion sought relief pursuant to the United States Supreme Court’s

decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on remand in

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161

(2017). This Court stayed Foster’s appeal pending the disposition of Hitchcock v.

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

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

arguing why Hitchcock should not be dispositive in this case.

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

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

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

eight to four. Foster v. State, 654 So. 2d 112, 113 (Fla. 1995). Foster’s sentence

of death became final in 1995. Foster v. Florida, 516 U.S. 920 (1995). Thus,

Hurst does not apply retroactively to Foster’s sentence of death. See Hitchcock,

226 So. 3d at 217. Accordingly, we affirm the denial of Foster’s motion.

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

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

ordered.

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

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

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

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

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

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

opinion in Hitchcock.

An Appeal from the Circuit Court in and for Bay County,

Harry Hentz McClellan, Judge - Case No. 031975CF000486XXAXMX

-2-

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James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Mark S. Gruber,

Julie A. Morley, and Margaret S. Russell, Assistant Capital Collateral Regional

Counsel, Middle Region, Temple Terrace, Florida; and Billy H. Nolas, Chief,

Capital Habeas Unit, Office of the Federal Public Defender, Northern District of

Florida, Tallahassee, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant

Attorney General, Tallahassee, Florida,

for Appellee

-3-

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EXHIBIT 2

005a

Supreme Court of Florida

MONDAY, SEPTEMBER 25, 2017

CASE NO.: SC17-1383

Lower Tribunal No(s).:

031975CF000486XXAXMX

CHARLES KENNETH FOSTER

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant shall show cause on or before Monday, October 16, 2017, why the

trial court’s order should not be affirmed in light of this Court's decision Hitchcock

v. State, SC17-445. The response shall be limited to no more than 20 pages.

Appellee may file a reply on or before Thursday, October 26, 2017, limited to no

more than 15 pages. Appellant may file a reply to the Respondent’s reply on or

before Monday, November 6, 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:

JULIE A. MORLEY

MARGARET S. RUSSELL

CHARMAINE M. MILLSAPS

MARK S. GRUBER

BILLY H. NOLAS

006a

EXHIBIT 3

007a

008a

009a

010a

EXHIBIT 4

011a

Filing # 62674385 E-Filed 10/11/2017 10:32:41 AM

No. SC17-1383

IN THE

Supreme Court of Florida

___________________________________________________________

CHARLES KENNETH FOSTER,

RECEIVED, 10/11/2017 10:33:32 AM, Clerk, Supreme Court

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S RESPONSE TO

SEPTEMBER 25, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Mark S. Gruber

Assistant CCRC

Fla. Bar No. 033054

Julie Morley

Assistant CCRC

Fla. Bar No. 0085158

Margaret Russell

Assistant CCRC

Fla. Bar No. 72720

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 Appellant

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TABLE OF CONTENTS

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

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

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

Appellant’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 Appellant...................................................................5

III.

This Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition

of the death penalty...............................................................................6

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

guarantee of equal protection and due process.....................................10

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......................12

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral review........12

The Hurst decisions announced substantive rules that must be applied

retroactively to Appellant under the Supremacy Clause......................14

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

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

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

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INTRODUCTION

Appellant’s death sentence was imposed pursuant to a capital sentencing

scheme that was ruled unconstitutional by the United States Supreme Court in Hurst

v. Florida, 136 S. Ct. 616 (2016), and this Court in Hurst v. State, 202 So. 3d 40

(Fla. 2016). The issue in this case is whether this Court will continue to apply its

unconstitutional “retroactivity cutoff” to deny Appellant 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).

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.

The Ring-based cutoff is unconstitutional and should not be applied to Appellant.

Denying Appellant Hurst relief because his sentence became final in 1995, rather

than some date between 2002 and 2016, would violate the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution. Appellant is entitled to

Hurst retroactivity as a matter of federal law. 1

Relief should not be denied here in light of Hitchcock v. State, No. SC17-445, 2017

WL 3431500 (Fla. Aug. 10, 2017). Appellant notes that there is a petition for a writ

of certiorari pending in Hitchcock (No. 17-6180).

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REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

This appeal presents an important issue of first impression: whether federal

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

final before Ring, rather than cabining Hurst relief to post-Ring death sentences.

Appellant respectfully requests oral argument on this and related issues pursuant to

Fla. R. App. P. 9.320. Appellant also requests that the Court permit full briefing in

this case in accord with the normal, untruncated rules of appellate practice.

Depriving Appellant the opportunity for full briefing in this case would

constitute an arbitrary deprivation of the vested state right to a mandatory plenary

appeal in capital cases. See Doty v. State, 170 So. 3d 731, 733 (Fla. 2015) (“[T]his

Court has a mandatory obligation to review all death penalty cases to ensure that the

death sentence is imposed in accordance with constitutional and statutory

directives.”); see also Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Hicks

v. Oklahoma, 447 U.S. 343 (1980).

ARGUMENT

Appellant’s death sentence violates Hurst, and the error is not “harmless”

Appellant was sentenced to death pursuant to an unconstitutional Florida

capital sentencing scheme. In Hurst v. Florida, the United States Supreme Court

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

judge, not the jury, to make the findings of fact required to impose the death penalty

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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.

Appellant’s jury was never asked to make unanimous findings of fact as to

any of the required elements. Instead, after being instructed that its decision was

advisory, and that the ultimate responsibility for imposing a death sentence rested

with the judge, the jury rendered a non-unanimous, generalized recommendation

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that the judge sentence Appellant to death. The record does not reveal whether

Appellant’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 Appellant’s jurors were not unanimous

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

Appellant’s pre-Hurst jury recommended the death penalty by a vote of 8-4.

This Court’s precedent makes clear that Hurst errors are not harmless where the

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

v. State, 210 So. 3d 641, 657 (Fla. 2017) (“[I]n cases where the jury makes a nonunanimous recommendation of death, the Hurst error is not harmless.”). This Court

has declined to apply the harmless error doctrine in every case where the pre-Hurst

jury’s recommendation was not unanimous. 2

To the extent any of the aggravators applied to Appellant 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

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

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

2017) (11-1 jury vote); Hertz v. Jones, 218 So. 3d 428, 431-32 (Fla. 2017) (10-2 jury

vote); Hernandez v. Jones, 217 So. 3d 1032, 1033 (Fla. 2017) (11-1 jury vote); Card

v. Jones, 219 So. 3d 47, 48 (Fla. 2017) (11-1 jury vote); McMillian v. State, 214 So.

3d 1274, 1289 (Fla. 2017) (10-2 jury vote).

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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 Appellant

Beginning with Mosley v. State, 209 So. 3d 1248 (Fla. 2016), this Court has

applied Hurst retroactively as a matter of state law and granted relief in dozens of

collateral-review cases where the defendant’s sentence became final after Ring. But

the Court has created a state-law cutoff at the date Ring was decided—June 24,

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

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

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

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

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

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

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

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

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

on jury decisions not comporting with Sixth Amendment requirements).

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2002—to deny relief in dozens of other collateral-review cases. The Court recently

reaffirmed its retroactivity cutoff in Hitchcock v. State, No. SC17-445, 2017 WL

3431500 (Fla. Aug. 10, 2017). The Court has not addressed in any case whether this

retroactivity cutoff at Ring is constitutional as a matter of federal law.

The Ring-based retroactivity cutoff violates the United States Constitution and

should not be applied to deny Appellant the same Hurst relief being granted in scores

of materially indistinguishable collateral-review cases. Denying Appellant Hurst

retroactivity because his death sentence became final in 1995, while affording

retroactivity to similarly-situated defendants who were sentenced (or resentenced)

between 2002 and 2016, would violate the 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.

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

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

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tolerate the infliction of a sentence of death under legal systems that permit this

unique penalty to be so wantonly and so freakishly imposed.”) (Stewart, J.,

concurring). In other words, the death penalty cannot be imposed in a way that is

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

Experience has already shown the arbitrary results inherent in this Court’s

application of the Ring-based retroactivity cutoff. The date of a particular death

sentence’s finality on direct appeal in relation to the June 24, 2002 decision in

Ring—and thus whether this Court has held Hurst retroactive based on its brightline cutoff—has at times depended on whether there were delays in transmitting the

record on appeal to this Court for the direct appeal; whether direct appeal counsel

sought extensions of time to file a brief; whether a case overlapped with this Court’s

summer recess; how long the assigned Justice of this Court took to submit the

opinion for release; whether an extension was sought for a rehearing motion and

whether such a motion was filed; whether there was a scrivener’s error necessitating

issuance of a corrected opinion; whether counsel chose to file a petition for a writ of

certiorari in the United States Supreme Court or sought an extension to file such a

petition; and how long a certiorari petition remained pending in the Supreme Court.

In one striking example, this Court affirmed Gary Bowles’s and James Card’s

unrelated death sentences in separate opinions that were issued on the same day,

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

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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

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

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

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

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

this Court’s approach, a defendant who was originally sentenced to death before

Appellant, but who was later resentenced to death after Ring, would receive Hurst

relief and Appellant would not.

Moreover, under the Court’s current rule, some litigants whose Ring claims

were wrongly rejected on the merits during the 2002-2016 period will be denied the

benefit of Hurst because the Court addressed the issue in a post-conviction rather

than a direct appeal posture. See. e.g., Miller v. State, 926 So. 2d 1243, 1259 (Fla.

2006); Nixon v. State, 932 So. 2d 1009, 1024 (Fla. 2006); Bates v. State, 3 So. 3d

1091, 1106 n.14 (Fla. 2009); Bradley v. State, 33 So. 3d 664, 670 n.6 (Fla. 2010).4

Even if this Court were to maintain its unconstitutional retroactivity “cutoff” at

Ring, individuals who preserved the substance of the Hurst decisions before Hurst,

such as Appellant, 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

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

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

of his case in an untruncated fashion.

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Making Hurst retroactive to only post-Ring sentences also unfairly denies

Hurst access to defendants who were sentenced between Apprendi v. New Jersey,

530 U.S. 466 (2000), and Ring. The fundamental unfairness of that result is stark

given that the Supreme Court made clear in Ring that its decision flowed directly

from Apprendi. See Ring, 536 U.S. at 588-89. And in Hurst v. Florida, the Court

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

which Ring was an application.

136 S. Ct. at 621.

This Court itself has

acknowledged that Ring was an application of Apprendi. See Mosley, 209 So. 3d at

1279-80. This Court’s drawing of its retroactivity cutoff at Ring instead of Apprendi

represents the sort of capriciousness that is inconsistent with the Eighth Amendment.

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

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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,

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 Appellant 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

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law. See Hicks, 447 U.S. at 347; Ford, 477 U.S. at 399, 428-29; Evitts, 469 U.S. at

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

adjudicating the guilt or innocence of a defendant’” must comport with due process).

Defendants have “a substantial and legitimate expectation that [they] will be

deprived of [their] liberty only to the extent determined by the jury in the exercise

of its discretion . . . and that liberty interest is one that the Fourteenth Amendment

preserves against arbitrary deprivation by the State.” Hicks, 447 U.S. at 346. Courts

have found in a variety of contexts that state-created death penalty procedures vest

in a capital defendant life and liberty interests that are protected by due process. See.

e.g., Ohio Adult Parole Auth., 523 U.S. at 272; Ford, 477 U.S. at 427-31. In Hicks,

the Supreme Court held that the trial court’s failure to instruct the jury that it had the

option to impose an alternative sentence violated the state-created liberty interest

(and federal due process) in having the jury select his sentence from the full range

of alternatives available under state law. 447 U.S. at 343.

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

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral review

In Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016), the United States

Supreme Court held that the Supremacy Clause of the Constitution requires state

courts to apply “substantive” constitutional rules retroactively as a matter of federal

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constitutional law, notwithstanding any separate state-law retroactivity analysis. In

Montgomery, a Louisiana state prisoner filed a claim in state court seeking

retroactive application of the rule announced in Miller v. Alabama, 567 U.S. 460

(2012) (holding that imposition of mandatory sentences of life without parole on

juveniles violates the Eighth Amendment). The state court denied the prisoner’s

claim on the ground that Miller was not retroactive as a matter of state retroactivity

law. Montgomery, 136 S. Ct. at 727. The United States Supreme Court reversed,

holding that because the Miller rule was substantive as a matter of federal law, the

state court was obligated to apply it retroactively. See id. at 732-34.

Montgomery clarified that the Supremacy Clause requires state courts to apply

substantive rules retroactively, notwithstanding state-law analysis. Montgomery,

136 S. Ct. at 728-29 (“[W]hen a new substantive rule of constitutional law controls

the outcome of a case, the Constitution requires state collateral review courts to give

retroactive effect to that rule.”) (emphasis added). Thus, Montgomery held, “[w]here

state collateral review proceedings permit prisoners to challenge the lawfulness of

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

constitutional right that determines the outcome of that challenge.” Id. at 731-32.

Importantly for purposes of Hurst retroactivity analysis, the Supreme Court

found the Miller rule substantive in Montgomery even though the rule had “a

procedural component.” Id. at 734. Miller did “not categorically bar a penalty for a

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class of offenders or type of crime—as, for example, [the Court] did in Roper or

Graham.” Miller, 567 U.S. at 483. Instead, “it mandate[d] only that a sentence

follow a certain process—considering an offender’s youth and attendant

characteristics—before imposing a particular penalty.”

Id.

Despite Miller’s

procedural mandates, the Court in Montgomery warned against “conflat[ing] a

procedural requirement necessary to implement a substantive guarantee with a rule

that ‘regulate[s] only the manner of determining the defendant’s culpability.’”

Montgomery, 136 S. Ct. at 734 (quoting Schriro v. Summerlin, 542 U.S. 348, 353

(2004)). Instead, the Court explained, “[t]here are instances in which a substantive

change in the law must be attended by a procedure that enables a prisoner to show

that he falls within a category of persons whom the law may no longer punish,” id.

at 735, and that the necessary procedures do not “transform substantive rules into

procedural ones,” id. Miller “bar[red] life without parole . . . . For that reason, Miller

is no less substantive than are Roper and Graham.” Id. at 734.

The Hurst decisions announced substantive rules that must be

applied retroactively to Appellant under the Supremacy Clause

The Hurst decisions announced substantive rules that this Court must apply

retroactively to Appellant under the Supremacy Clause. At least two substantive

rules were established by Hurst v. Florida and Hurst v. State. First, a Sixth

Amendment rule was established requiring that a jury find as fact beyond a

reasonable doubt: (1) each aggravating circumstance; (2) that those particular

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

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

the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Such findings are

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

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

youth” is a substantive, not procedural, rule). As in Montgomery, 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

028a

federal law.” Id. As a matter of federal retroactivity law, the rule is therefore

substantive. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“[T]his Court

has determined whether a new rule is substantive or procedural by considering the

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

method by which a jury makes its decision. See Montgomery, 136 S. Ct. at 735

(noting that state’s ability to determine method of enforcing constitutional rule does

not convert rule from substantive to procedural).

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

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

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

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

enhancement was unconstitutional. Id. at 2556. Welch held that Johnson’s ruling

was substantive because it “affected the reach of the underlying statute rather than

the judicial procedures by which the statute is applied”—therefore it must be applied

retroactively.

Welch, 136 S. Ct. at 1265.

The Court emphasized that its

determination whether a constitutional rule is substantive or procedural “does not

depend on whether the underlying constitutional guarantee is characterized as

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

function or a substantive function,” i.e., whether the new rule alters only the

procedures used to obtain the conviction, or alters instead the class of persons the

029a

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

the same person engaging in the same conduct is no longer subject to the Act and

faces at most 10 years in prison. The residual clause is invalid under Johnson, so it

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

in other words, that even the use of impeccable factfinding procedures could not

legitimate a sentence based on that clause.” Id. “It follows,” the Court held, “that

Johnson is a substantive decision.” Id. (internal quotation omitted).

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

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

reasonable doubt, and the Eighth Amendment requirement of jury unanimity in factfinding, are substantive constitutional rules as a matter of federal law because they

place certain murders “beyond the State’s power to punish,” Welch, 136 S. Ct. at

1265, with a sentence of death. Following the Hurst decisions, “[e]ven the use of

impeccable factfinding procedures could not legitimate a sentence based on” the

judge-sentencing scheme.

Id.

And in the context of a Welch analysis, the

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

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

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

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

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

030a

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

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

Hurst retroactivity is not undermined by Summerlin, 542 U.S. at 364, where

the United States Supreme Court held that Ring was not retroactive in a federal

habeas case. In Ring, the Arizona statute permitted a death sentence to be imposed

on a finding of fact that at least one aggravating factor existed. Summerlin did not

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

sufficient to impose death and whether the death penalty was an appropriate

sentence. Summerlin acknowledged that if the Court itself “[made] a certain fact

essential to the death penalty . . . [the change] would be substantive.” 542 U.S. at

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

unconstitutional for a judge alone to find that “sufficient aggravating factors exist

and [t]hat there are insufficient mitigating circumstances to outweigh the

aggravating circumstances.” 136 S. Ct. at 622 (internal citation omitted).

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

has always regarded proof-beyond-a-reasonable-doubt decisions as substantive.

See, e.g., Ivan V. v. City of New York, 407 U.S. 203, 205 (1972) (explaining that “the

031a

major purpose of the constitutional standard of proof beyond a reasonable doubt

announced in [In re Winship, 397 U.S. 358 (1970)] was to overcome an aspect of a

criminal trial that substantially impairs the truth-finding function, and Winship is

thus to be given complete retroactive effect.”); Powell v. Delaware, 153 A.3d 69

(Del. 2016) (holding Hurst retroactive under Delaware’s state Teague-like

retroactivity doctrine and distinguishing Summerlin on the ground that Summerlin

“only addressed the misallocation of fact-finding responsibility (judge versus jury)

and not . . . the applicable burden of proof.”). 5

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 Appellant’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

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 Appellant 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.

032a

This Court has an obligation to address Appellant’s federal

retroactivity arguments

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

to address Appellant’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 in the present context requires full

briefing and oral argument. The federal constitutional issues were raised to this

Court in Hitchcock, but this Court ignored them. Dismissing this appeal on the basis

of Hitchcock would compound that error.

CONCLUSION

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

applied retroactively to Appellant, vacate Appellant’s death sentence, and remand to

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

033a

Respectfully submitted,

Mark S. Gruber

Assistant CCRC

Fla. Bar No. 033054

Julie Morley

Assistant CCRC

Fla. Bar No. 0085158

Margaret Russell

Assistant CCRC

Fla. Bar No. 72720

/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 Appellant

CERTIFICATE OF SERVICE

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

served via the e-portal to Assistant Attorney General Charmaine Millsaps at

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

/s/ Billy H. Nolas

Billy H. Nolas

034a

EXHIBIT 5

035a

Filing # 63396312 E-Filed 10/26/2017 06:17:37 PM

In the Supreme Court of Florida

CHARLES KENNETH FOSTER,

Appellant,

RECEIVED, 10/26/2017 06:18:29 PM, Clerk, Supreme Court

CASE NO.: SC17 1383

CAPITAL CASE

STATE OF FLORIDA,

Appellee.

STATE’S REPLY TO ORDER TO SHOW CAUSE

On September 25, 2017, this Court issued an order to Appellant to show

cause “why the trial court's order should not be affirmed in light of this Court's

decision Hitchcock v. State, SC17 445.” Under this Court’s decisions in Asay v.

State, 210 So.3d 1 (Fla. 2016), and Hitchcock v. State, 42 Fla. L. Weekly S753,

2017 WL 3431500 (Fla. Aug. 10, 2017), Foster is not entitled to any Hurst relief

because his sentence became final before Ring v. Arizona, 536 U.S. 584 (2002),

was decided. This Court has repeatedly rejected the same constitutional attacks

opposing counsel presents in the response. In sum, Asay and Hitchcock control.

This Court should once again follow its well established precedent and affirm the

trial court’s summary denial of the successive postconviction motion.

036a

Procedural history of the Hurst claim

On October 10, 1995, Foster’s death sentence became final when the United

States Supreme Court denied the petition from the direct appeal of the new

sentencing order. Foster v. Florida, 516 U.S. 920 (1995).

On April 3, 2017, Foster, represented by the Capital Habeas Unit (CHU) of

the federal Public Defender’s Office, filed a successive 3.851 motion raising a claim

under Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst v. Florida), and Hurst v. State,

202 So.3d 40 (Fla. 2016) (Hurst II). On April 6, 2017, the State, citing Asay v.

State, 210 So.3d 1 (Fla. 2016), asserted that Hurst II did not apply to Foster

because his sentence was final years before Ring was decided.1

On April 12,

2017, the trial court summarily denied the successive postconviction motion

concluding that Hurst did not apply retroactively to Foster citing Asay.

Foster then appealed the denial of his successive postconviction motion to

this Court. Foster v. State, SC17 1383. On September 25, 2017, this Court issued

an order to show cause why Hitchcock does not control. On October 11, 2017,

The State simultaneously filed a motion to appoint new state

postconviction counsel in the trial court because Mary Catherine Bonner, who was

removed from the registry list, had been Foster’s counsel. In Re Mary Catherine

Bonner, AOSC16 100 (Fla. Nov. 8, 2016); Thomas v. McDonough, 452 F. Supp.2d

1203, 1206 (M.D. Fla. 2006) (noting Bonner missed the federal habeas deadline

in two capital cases without a “good reason or explanation” for the failure to file

on time). Ms. Bonner did not file a motion to withdraw in Foster’s case even

though she promised to withdraw from all her capital cases as part of the

settlement of this Court’s inquiry. On April 24, 2017, the trial court appointed

CCRC Middle as new state postconviction counsel.

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Foster filed his response. This is the State’s reply to the response to the order to

show cause.

Merits

Under this Court’s well established controlling precedent, Hurst is not

retroactively applicable to Foster because his death sentence became final in

1995. Foster v. Florida, 516 U.S. 920 (1995).

In Asay v. State, 210 So.3d 1, 11 22 (Fla. 2016), cert. denied, Asay v. Florida,

2017 WL 1807588 (Aug. 24, 2017), this Court held that any capital defendant

whose death sentence was final before Ring v. Arizona, 536 U.S. 584 (2002), was

decided in 2002 was not entitled to Hurst relief. This Court performed a full

retroactivity analysis using the state test of Witt v. State, 387 So.2d 922 (Fla.

1980). Asay, 210 So.3d at 15 22.

This Court reaffirmed its holding in Asay in Hitchcock v. State, 42 Fla. L.

Weekly S753, 2017 WL 3431500 (Fla. Aug. 10, 2017). This Court in Hitchcock

rejected several constitutional challenges to its non retroactivity rule reaffirming

its prior holding in Asay. Opposing counsel in his response to the order to show

cause makes many of the same Eighth Amendment, equal protection, and due

process arguments that this Court explicitly rejected in Hitchcock, Asay VI, and

Lambrix. Hitchcock, 2017 WL 3431500 at *2; Asay v. Jones, 2017 WL 3472836,

*6 (Fla. Aug. 14, 2017) (Asay VI) (denying an Eighth Amendment challenge to the

holding in Asay); Lambrix v. State, 2017 WL 4320637, *1 *2 (Fla. Sept. 29, 2017)

-3038a

(denying Eighth Amendment, due process, and equal protection challenges to the

holding in Asay citing Hitchcock and Asay VI). This Court should again reject

these various constitutional challenges for the same reasons.2

Moreover, this Court has explicitly followed Asay in a number of capital

cases which are now final.3

This Court recently affirmed that holding yet again

in several cases including in two active death warrant cases. Jones v. State, 2017

WL 4296370, *2 (Fla. Sept. 28, 2017) (denying Hurst relief citing Asay); Asay v.

State, 2017 WL 3472836 (Fla. Aug. 14, 2017) (Asay VI) (same in active warrant);

Lambrix v. State, 2017 WL 4320637 (Fla. Sept. 29, 2017) (same in active warrant).

So, since December of 2016 and as recently as September of 2017, this Court has

consistently followed Asay. This Court has repeatedly held in numerous capital

cases including active warrant cases that Hurst does not apply retroactively to

defendants like Foster. Asay is firmly established precedent. Asay and Hitchcock

control.

The Eleventh Circuit has also rejected equal protection, due process, and

Eighth Amendment challenges to this Court’s non retroactivity rule established

in Asay recently in Lambrix v. Sec’y, Fla. Dep’t of Corr.,

F.3d , 2017 WL

4416205 (11th Cir. Oct. 5, 2017), cert. denied, Lambrix v. Jones, 2017 WL

4456332 (Oct. 5, 2017).

Bogle v. State, 213 So.3d 833, 855 (Fla. 2017) (denying Hurst relief citing

Asay); Lambrix v. State, 217 So.3d 977, 989 (Fla. March 9, 2017), rehearing

denied, SC16 56, 2017 WL 1927739 (Fla. May 10, 2017) (denying Hurst relief

citing Asay); Lukehart v. Jones, 2017 WL 1033691 (Fla. March 17, 2017) (denying

Hurst relief citing Asay); Oats v. Jones, 2017 WL 2291288 (Fla. May 25, 2017)

(denying Hurst relief citing Asay); Rodriguez v. State, 219 So.3d 751, 760 (Fla.

April 20, 2017), rehearing denied, SC15 1795, 2017 WL 2598492 (Fla. June 15,

2017) (denying Hurst relief citing Asay).

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Fundamental fairness, the Eighth Amendment, and equal protection

Opposing counsel insisted that the cut off date of 2002 created in Asay is

arbitrary in violation of due process, the Eighth Amendment, and equal protection.

This Court has rejected those same arguments in Asay VI and Lambrix. Asay,

2017 WL 3472836 at *6 (Asay VI); Lambrix, 2017 WL 4320637at *1 *2 (Fla. Sept.

29, 2017) (denying Eighth Amendment, due process, and equal protection

challenges to the holding in Asay citing Hitchcock and Asay VI). Indeed, many of

these same arguments were made by the dissenters in Asay itself but rejected by

the majority.4 The majority in Asay drew the cut off in full awareness of these

constitutional challenges.

As to fundamental fairness, due process does not require courts abandon

all retroactivity analysis and apply all new rules to all cases. Such an argument

negates all finality in the criminal law and it is finality that is the overriding

concern in any retroactivity analysis including in capital cases. Penry v. Lynaugh,

Asay, 210 So.3d at 31 (Lewis, J., concurring) (“Florida will treat similarly

situated defendants differently here, the difference between life and death for

potentially the simple reason of one defendant's docket delay” and characterizing

the majority’s cut off date based on Ring as being “arbitrary”); Asay, 210 So.3d at

35 35 (Pariente, J., dissenting) (stating that Hurst II is that “rare situation in

which finality yields to fundamental fairness” and that the majority’s rule results

in “arbitrariness as to who receives relief depending on when the defendant was

sentenced or, in some cases, resentenced” and taking the view that to “avoid such

arbitrariness and to ensure uniformity and fundamental fairness in Florida's

capital sentencing,” “Hurst should be applied retroactively to all death sentences”);

Asay, 210 So.3d at 37 (Perry, J., dissenting) (“the line drawn by the majority is

arbitrary and cannot withstand scrutiny under the Eighth Amendment because

it creates an arbitrary application of law to two groups of similarly situated

persons”); see also Gaskin v. State, 218 So.3d 399, 401 (Fla. 2017) (Pariente, J.,

dissenting) (stating that “fundamental fairness” requires us “to hold Hurst fully

retroactive to all death sentences”).

-5040a

492 U.S. 302 (1989). As the Penry Court observed, the overriding concern of

finality that underlies retroactivity is just as “applicable in the capital sentencing

context.” Id. at 314.

Furthermore, both federal and state courts have retroactivity doctrines that

depend on dates. For example, a cut off date is part of the pipeline doctrine first

established in Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The Griffith Court

created the pipeline concept by holding that all new developments in the criminal

law must be applied retrospectively to all cases, state or federal, that are pending

on direct review. See also Smith v. State, 598 So.2d 1063, 1065 (Fla. 1992)

(discussing the history of the pipeline concept and Griffith). Griffith depends on

the date of finality of the direct appeal. The current federal test for retroactivity,

Teague v. Lane, 489 U.S. 288 (1989), also depends on a date. If a case is final on

direct review, the defendant will not receive benefit of the new rule unless one of

the exceptions to Teague applies. The date of finality is the critical date based

toogle under Teague.

Inherent in the concept of non retroactivity is that some cases will get the

benefit of a new development, while other cases will not, depending on a date.

Drawing a line between newer cases that will receive benefit of a new development

in the law and older final cases that will not receive benefit of the new

development is part and parcel of the landscape of retroactivity analysis. It is

simply part of the retroactivity paradigm that some cases will be treated differently

than other cases based on the age of the case. Neither Asay nor Griffith nor

-6041a

Teague violates due process. Retroactivity analysis itself is not fundamentally

unfair in violation of due process.

As to Equal Protection, it is doubtful that Equal Protection analysis even

applies to judicial decisions, such as Asay, as opposed to statutes. Bouie v. City

of Columbia, 378 U.S. 347 (1964) (using due process, not equal protection, when

a judicial decision is at issue). But even assuming it does, such an argument

makes little jurisprudential sense. A cut off date does not create a protected class

and there is no fundamental right involved.

The date of the finality of a

defendant’s sentence is not an immutable characteristic requiring application of

strict scrutiny or intermediate scrutiny. The only possible standard of review

under equal protection principles, would be rational basis review. And the cut off

date of Ring established by this Court in Asay more than satisfies rational basis

review. Again, all retroactivity analysis depends on cut off dates. According to

opposing counsel’s logic, all retroactivity tests violate equal protection. The Equal

Protection Clause does not mandate that every major change in the law be applied

retroactively, which would be the necessary outcome of adopting this view.

Neither Griffith nor Teague nor Asay violates equal protection.

In sum, Asay V, Hitchcock, Asay VI, and Lambrix control.

Federal retroactivity of Hurst

While opposing counsel insists that Hurst is retroactive under federal law,

it is not. The United States Supreme Court has held that Ring was not retroactive

-7042a

in Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (using the federal test for

retroactivity of Teague v. Lane, 489 U.S. 288 (1989)). If a case is not retroactive

under the broader state test for retroactivity of Witt v. State, 387 So.2d 922 (Fla.

1980), which this Court used in Asay, it is certainly not retroactive under the

narrower federal test for retroactivity of Teague. See Asay, 210 So.3d at 15

(describing Witt as “more expansive” than Teague citing Johnson v. State, 904

So.2d 400, 409 (Fla. 2005)).

The Eleventh Circuit recently held that Hurst is not retroactive under federal

law. Lambrix v. Sec'y, Fla. Dep't of Corr., 851 F.3d 1158, 1165, n.2 (11th Cir. 2017)

(“under federal law Hurst, like Ring, is not retroactively applicable on collateral

review” citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004)), cert. denied,

Lambrix v. Jones, 17 5153, 2017 WL 3008927 (Oct. 2, 2017); Lambrix v. Sec’y, Fla.

Dep’t of Corr.,

F.3d

, 2017 WL 4416205, *8 (11th Cir. Oct. 5, 2017)

(concluding this Court’s holding in Asay to be “fully in accord with the U.S.

Supreme Court's precedent in Ring and Schriro”), cert. denied, Lambrix v. Jones,

2017 WL 4456332 (Oct. 5, 2017). The Eleventh Circuit has previously held that

Ring was not retroactive under Teague. Turner v. Crosby, 339 F.3d 1247, 1282 86

(11th Cir. 2003) (performing a full Teague analysis of Ring). The Eleventh Circuit’s

decision in Lambrix is definitive precedent that Hurst is not retroactive in federal

court under the federal retroactivity test of Teague. Hurst II is not retroactive

under federal law.

-8043a

Furthermore, the Supremacy Clause does not require states to adopt

Teague. States are free to adopt their own broader retroactivity tests. Danforth

v. Minnesota, 552 U.S. 264, 280 (2008); Montgomery v. Louisiana, 136 S.Ct. 718,

728 29 (2016) (explaining that, under Danforth, states are free to have broader,

but not narrower, retroactivity tests if a new substantive rule of constitutional law

is involved).

The United States Supreme Court in Montgomery did not overrule

Summerlin. Indeed, the Montgomery Court relied upon Summerlin at a couple of

points in its discussion. Id., 136 S.Ct. at 723, 728. The United States Supreme

Court in Montgomery explained that the federal constitution requires that new

substantive rules be applied retroactively. Montgomery, 136 S.Ct. at 728. The

Montgomery Court then defined substantive as “rules forbidding criminal

punishment of certain primary conduct,” as well as “rules prohibiting a certain

category of punishment for a class of defendants because of their status or

offense.” Id. The United States Supreme Court in Summerlin, a retroactivity case,

defined substantive as a new rule that places “particular conduct or persons”

“beyond the State's power to punish.” Summerlin, 542 U.S. at 352.

Opposing counsel insists that Hurst II is retroactive under federal law

because, he claims, the right to a jury trial is a substantive right. But, according

to the United States Supreme Court, the right to a jury trial is a procedural right,

not a substantive right. The United States Supreme Court specifically observed

in a retroactivity case that “Ring's holding is properly classified as procedural”

-9044a

because the Sixth Amendment's jury trial guarantee “has nothing to do with the

range of conduct a State may criminalize.” Summerlin, 542 U.S. at 353. The

Summerlin Court explained that rules that allocate decisionmaking authority

between the judge and the jury “are prototypical procedural rules.” Id.

The

Supreme Court noted that they had classified the right to a jury trial as

procedural “in numerous other contexts.” Id. at 353 54 (citing numerous cases).

While the opposing counsel may view the right to a jury trial as substantive, the

United States Supreme Court has repeatedly classified it as procedural and in very

similar situations. So, Hurst is not substantive under Montgomery.

Montgomery does not apply at all. And the state test for retroactivity of Witt

does not employ the substantive/procedural distinction as a factor. Opposing

counsel is really mixing and matching parts of the federal test for retroactivity

with the state test for retroactivity. He is tangling Teague with Witt. But the

United States Supreme Court in Danforth held that states are not required to

adopt the federal test for retroactivity. And, under the state test of Witt, this Court

has already granted more capital defendants Hurst relief than they would have

received under the federal test of Teague.

Opposing counsel’s reliance on Welch v. United States, 136 S.Ct. 1257

(2016), is even more misplaced. Welch concerned the retroactivity of a statutory

interpretation case, not the Sixth Amendment right to a jury trial. Welch involved

a federal criminal statute, not the federal constitution. And Welch certainly did

not overrule Summerlin or DeStefano.

-10045a

And Ivan V. v. City of New York, 407 U.S. 203 (1972), is irrelevant to any

retroactivity analysis in Florida. If a rule of law it not new, there is no retroactivity

analysis required. Butler v. McKellar, 494 U.S. 407, 412 (1990) (defining a “new

rule” for purpose of retroactivity as one that “breaks new ground or imposes a new

obligation,” such as a decision that explicitly overrules an earlier holding).

Florida’s standard of proof for aggravating circumstances is not new. Florida law

has required that the State prove aggravators at the beyond a reasonable doubt

standard of proof for over three decades.5

Nor did Hurst truly involve the

standard of proof. The issue in Hurst v. Florida was who decides

versus the jury

not the standard of proof.

the judge

Nor is the new unanimity

requirement established by this Court in Hurst II the equivalent of a standard of

proof. They are two very different concepts. The “retroactivity” of the beyond a

reasonable doubt standard of proof is a non issue in this case and all other

Florida capital cases as well.

Opposing counsel misreads Powell v. Delaware, 153 A.3d 69 (Del. 2016).

The Delaware Supreme Court in Powell distinguished Florida law as announced

by this Court in Hurst II from Delaware law as announced in Rauf v. State, 145

A.3d 430 (Del. 2016), pointing out that Florida law did not involve a change in the

Williams v. State, 37 So.3d 187, 194 95 (Fla. 2010) (stating that the State

has the burden to prove beyond a reasonable doubt each and every aggravating

circumstance); Aguirre Jarquin v. State, 9 So.3d 593, 607 (Fla. 2009) (explaining

that the State must prove the existence of an aggravator beyond a reasonable

doubt citing Parker v. State, 873 So.2d 270, 286 (Fla. 2004)); Cf. Floyd v. State,

497 So.2d 1211, 1214 (Fla. 1986) (striking an aggravator that was not proven

“beyond a reasonable doubt”).

-11046a

standard of proof. Powell, 153 A.3d at 73 74 (stating that “unlike Rauf,” Hurst II

did not involve “a lower burden of proof”). Nor would the United States Supreme

Court agree with the Delaware Supreme Court about a standard of proof applying

to weighing, much less that Teague or Ivan V. mandates retroactive application of

any such new standard.6

While the Delaware Supreme Court is free to apply its

Rauf decision retroactively under state law under Danforth, the United States

Supreme Court would never agree that federal constitutional law mandates that

Rauf be applied retroactively. Such an argument is directly contrary to Danforth

itself. Powell, a state case involving a change in Delaware law, certainly does not

establish that federal constitutional law mandates the retroactivity of Hurst II,

especially not in the face of United States Supreme Court precedent and Eleventh

Circuit precedent to the contrary. Hurst II simply is not retroactive under federal

law.

Accordingly, this Court should affirm the trial court’s denial of the

successive postconviction motion.

Kansas v. Carr, 136 S.Ct. 633, 642 (2016) (expressing doubt whether it

is even possible to apply a standard of proof to either mitigation or weighing and

opining that weighing is “mostly a question of mercy,” not a fact); Kansas v. Marsh,

548 U.S. 163, 175 (2006) (holding that a death penalty statute may place the

burden on the defendant to prove that mitigating circumstances outweigh

aggravating circumstances because no particular “method for balancing mitigating

and aggravating factors in a capital sentencing proceeding is constitutionally

required”); Kansas v. Marsh, 548 U.S. 163, 187, n.2 (2006) (Scalia, J., concurring)

(observing that the federal Constitution does not require a reasonable doubt

standard as to the weighing process). Because the United States Supreme Court

does not even view weighing as a fact that is subject to any standard of proof, the

High Court would never reach the issue of retroactivity under Ivan V.

-12047a

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/ Charmaine M. Millsaps

CHARMAINE M. MILLSAPS

SENIOR ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0989134

OFFICE OF THE ATTORNEY GENERAL

THE CAPITOL, PL 01

TALLAHASSEE, FL 32399 1050

(850) 414 3300

primary email: capapp@myfloridalegal.com

secondary email:

charmaine.millsaps@myfloridalegal.com

COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing STATE’S

REPLY TO ORDER TO SHOW CAUSE has been furnished by electronic mail via

e portal to Assistant Capital Collateral Counsel Mark. S. Gruber; Office of Capital

Collateral Regional Counsel, Middle, 12973 N. Telecom Parkway, Temple Terrace,

FL, 33637; phone: (813) 558 1600 ext. 617; email: gruber@ccmr.state.fl.us; and

Billy H. Nolas, Chief, Capital Habeas Unit, Federal Public Defender, Northern

District of Florida, 227 N. Bronough St., Ste. 4200, Tallahassee, FL 32301 1300,

phone: (850) 942 8818, email: billy nolas@fd.org this

26th

day of October,

2017.

/s/ Charmaine M. Millsaps

Charmaine M. Millsaps

Attorney for the State

-13048a

EXHIBIT 6

049a

Filing # 63604953 E-Filed 11/01/2017 01:18:13 PM

No. SC17-1383

IN THE

Supreme Court of Florida

___________________________________________________________

CHARLES KENNETH FOSTER,

RECEIVED, 11/01/2017 01:18:26 PM, Clerk, Supreme Court

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S REPLY IN SUPPORT OF

RESPONSE TO SEPTEMBER 25, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Mark S. Gruber, Assistant CCRC

Florida Bar No. 033054

Julie Morley , Assistant CCRC

Florida Bar No. 0085158

Margaret Russell, Assistant CCRC

Florida Bar No. 72720

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

Florida Bar No. 806821

Capital Collateral Regional Counsel,

Middle Region

12973 N. Telecom Parkway

Temple Terrace, FL 33637

(830) 558-1600

Counsel for Appellant

050a

TABLE OF CONTENTS

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

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

The State is incorrect in asserting that Hitchcock addressed the federal

retroactivity arguments Appellant raises in this proceeding ........................... 1

II.

The State’s cursory arguments concerning Hurst retroactivity are not

persuasive.........................................................................................................4

III.

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

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

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RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT

Petitioner renews his requests that the Court permit untruncated briefing.

ARGUMENT

The State is incorrect in asserting that Hitchcock addressed the federal

retroactivity arguments Appellant raises in this proceeding

The State is incorrect that Appellant “makes many of the same Eighth

Amendment, equal protection, and due process arguments explicitly rejected by this

Court in Hitchcock, Asay IV, and Lambrix.” State’s Resp. at 3. This Court’s decision

in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10, 2017), did

not explicitly address or reject any of the federal retroactivity arguments Appellant

raised in response to the order to show cause. See Appellant’s Resp. at 5-20.

This Court’s opinion in Hitchcock relied exclusively on the reasoning in Asay

v. State, 210 So. 3d 1 (Fla. 2016). As the State acknowledges, the Court’s decision

in Asay rested entirely on the state retroactivity law articulated in Witt v. State, 387

So. 2d 922 (Fla. 1980). See State’s Resp. at 3 (“In Asay . . . . [t]his Court performed

a full retroactivity analysis using the state test of Witt”); see also Asay, 210 So. 3d

at 16 (“To apply a newly announced rule of law to a case that is already final at the

time of the announcement, this Court must conduct a retroactivity analysis pursuant

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to the dictates of Witt.”). 1 Asay did not address whether federal law required the

Hurst decisions to be applied retroactively, and certainly did not address the federal

retroactivity arguments raised in Appellant’s response to the order to show cause in

this proceeding. Namely, Asay did not address whether a retroactivity “cutoff”

drawn at Ring violates the Eighth Amendment’s prohibition against arbitrary and

capricious imposition of the death penalty or the Fourteenth Amendment’s Equal

Protection and Due Process Clauses. Nor did Asay address whether the Hurst

decisions are “substantive” within the meaning of federal law, such that the

Supremacy Clause of the Constitution requires state courts to apply the decisions

retroactively in light of Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Hitchcock, in relying totally on Asay, also did not explicitly address or reject

Appellant’s federal retroactivity arguments. See Hitchcock, 2017 WL 3431500, at

*1 (“We affirm because we agree with the circuit court that our decision in Asay

forecloses relief.”); id. at *2 (“Accordingly, we affirm the circuit court’s order

summarily denying Hitchcock’s successive postconviction motion pursuant to

Asay.”). The State’s response here attempts to highlight the conclusory sentence in

Hitchcock that reads: “Although Hitchcock references various constitutional

provisions as a basis for arguments that Hurst v. State should entitle him to a new

As this Court has repeatedly emphasized, Witt addresses retroactivity as a matter

of state law, which is separate and distinct from federal retroactivity analysis. See,

e.g., Falcon v. State, 162 So. 3d 954, 955-56 (Fla. 2015).

053a

sentencing proceeding, these are nothing more than arguments that Hurst v. State

should be applied retroactively to his sentence, which became final prior to Ring.”

State’s Resp. at 4 (citing Hitchcock, 2017 WL 3431500, at *2) (emphasis added).

But the Hitchcock Court’s reference to “constitutional provisions” cannot be

reasonably read to address Appellant’s federal retroactivity arguments, as the very

next sentence in Hitchcock reads: “As such, these arguments were rejected when we

decided Asay.”). Hitchcock, 2017 WL 3431500, at *2. As explained above, Asay

rested its analysis entirely on state retroactivity law and the Florida Constitution.

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

Hitchcock, many Hurst defendants have raised federal retroactivity arguments in this

Court and the circuit courts, explaining that Asay did not resolve those matters in its

exclusively state-law analysis and imploring that federal law be addressed. Those

defendants, appellants, and petitioners, as Appellant does here, advanced federal

retroactivity arguments under the Eighth and Fourteenth Amendments, as well as the

Supremacy Clause and Montgomery. If this Court had intended to put those

arguments to rest in Hitchcock, it could have done so. But any fair reading of

Hitchcock leads to the conclusion that those issues remain unresolved in light of the

Court’s wholesale reliance on Asay. Indeed, Hitchcock neither mentions the Eighth

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

penalty, nor the Fourteenth Amendment’s Equal Protection and Due Process

054a

Clauses. Nor does Hitchcock cite Montgomery or otherwise explain why the

Supremacy Clause does not require the substantive rules announced in the Hurst

decisions to be retroactively applied by state courts. The State’s response to the

order to show cause in this case does not contend otherwise.

To the extent the State suggests that Appellant’s federal arguments have been

addressed in other cases, those decisions are not applicable here. As Appellant noted

in his initial response to the order to show cause, the Eleventh Circuit’s decision in

Lambrix v. Sec’y, No. 17-14413, 2017 WL 4416205 (11th Cir. Oct. 5, 2017), is not

precedential in this Court and was decided in the context of the current federal

habeas statute, which dramatically restricts federal review of state-court decisions.

This Court’s application of federal constitutional protections, on the other hand, is

not circumscribed. More importantly, Lambrix dealt with an idiosyncratic issue—

the “retroactivity” of Florida’s new capital sentencing statute—and did not squarely

address the retroactivity of the constitutional rules arising from the Hurst decisions.

Similar idiosyncratic presentations also render inapplicable to Appellant this Court’s

recent active-death-warrant decisions in Asay v. State, 224 So. 3d 695 (Fla. 2017),

and Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla. Sep. 29, 2017).

II.

The State’s cursory arguments concerning Hurst retroactivity are not

persuasive

The State fails to engage substantively in Appellant’s argument that a

retroactivity cutoff at Ring violates the Eighth Amendment’s prohibition against

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arbitrary and capricious imposition of the death penalty. See Appellant’s Resp. at 610. The State has therefore abandoned any arguments on this issue. Cf. Hoskins v.

State, 75 So. 3d 250, 257 (Fla. 2011); Hall v. State, 823 So. 2d 757, 763 (Fla. 2002).

The State’s failure to address the important Eighth Amendment problems with

a Ring-based retroactivity cutoff is telling. As Appellant explained, a Ring cutoff

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

capriciousness—and also denial of equal protection and due process of law—that is

not present in typical circumstances where retroactivity is withheld based on widelyrecognized pragmatic necessity for courts to evolve constitutional protections

prospectively without undue cost to the finality of preexisting judgments.

A Hurst retroactivity cutoff at Ring inaugurates a degree of capriciousness

that far exceeds the level justified by “normal” jurisprudence. To see why this is so,

one need only consider how Florida’s pre-Ring inmates do and do not differ from

their post-Ring peers. The two groups were both sentenced under a procedure that

allowed death sentences to be predicated upon factual findings not tested by a jury

trial. But inmates whose death sentences became final before Ring have been on

death row longer than their post-Ring counterparts and have demonstrated over a

longer time that they are capable of adjusting to that environment and continuing to

live without endangering any valid interest of the State. Pre-Ring inmates also have

undergone the prolonged suffering chronicled by Justice Breyer, dissenting from the

056a

denial of certiorari in Sireci v. Florida, 137 S. Ct. 470 (2016), longer than their postRing counterparts.

Pre-Ring inmates also are more likely than their post-Ring counterparts to

have been sent to death row under standards that would not produce a capital

sentence—or even a capital prosecution—under the conventions of decency

prevailing today. In the generation since Ring, prosecutors and juries have been

increasingly unlikely to seek and impose death sentences. A significant number of

cases which terminated in a death verdict before Ring are cases where a death

sentence would not be imposed, or even pursued, in the modern era. And pre-Ring

inmates are more likely to have received death sentences in trials involving

problematic factfinding: the past two decades have witnessed a broad-spectrum

recognition of the unreliability of numerous kinds of evidence—flawed forensicscience theories and practices, hazardous eyewitness identification testimony, and

so forth—that was accepted without question in pre-Ring capital trials. Doubts that

would cause today’s prosecutors, juries, and judges to hesitate to seek or impose a

death sentence were unrecognized in the pre-Ring era. Evidence that led to confident

convictions and unhesitating death sentences decades ago would have substantially

less convincing power to prosecutors, juries, and judges today.

Taken together, these considerations highlight that a Ring-based retroactivity

cutoff involves a level of caprice that exceeds that tolerated by standard-fare

057a

retroactivity rules. A Ring cutoff’s denial of relief in precisely the class of cases in

which relief makes the most sense is irremediably perverse and inconsistent with the

Eighth and Fourteenth Amendments.

The cursory federal retroactivity arguments the State does advance can be

dispensed with briefly. The State asserts, without any authority, that “[t]he only

possible standard of review under equal protection principles would be rational basis

review.” State’s Resp. at 7. This ignores Skinner v. Oklahoma, 316 U.S. 535, 541

(1942), where the Court states that a law “which involves one of the basic rights of

man” is subject to strict scrutiny. The State further claims that Appellant believes

“all retroactivity tests violate equal protections.” State’s Resp. at 7 (emphasis

added). At issue here is a retroactivity test that implicates Appellant’s fundamental

rights. A retroactivity cutoff that deprives some capital defendants of their

fundamental right to a reliable determination of their sentences—while affording

similarly-situated defendants the benefits of decision-making by a penalty-phase

jury—violates the Fourteenth Amendment’s guarantee of equal protection.2

The State also relies on Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for

the proposition that the United States Supreme Court’s ruling in that case—that Ring

The State contends, “it is doubtful that Equal Protection analysis even applies to

judicial decisions,” citing Bouie v. City of Columbia, 378 U.S. 347 (1964). However,

the Court in Bouie did not limit application of equal protections analyses to statutes.

Id. (“We do not reach the question presented under the Equal Protection Clause, for

we find merit . . . under the Due Process Clause.”).

058a

is not retroactive in a federal habeas proceeding—means that Hurst is also not

retroactive in any proceeding. See State’s Resp. at 8. But as Appellant explained

initially, see Appellant’s Resp. at 18, the Arizona statute at issue in Ring and

Summerlin did not require fact-finding regarding the aggravators and their

“sufficiency” to justify the death penalty. That difference is critical for federal

retroactivity. Indeed, Summerlin acknowledged that if the Court itself “[made] a

certain fact essential to the death penalty . . . [the change] would be substantive.”

542 U.S. at 354. Such a change occurred in the Hurst decisions where, for the first

time, the United States Supreme Court and this Court found it unconstitutional for a

judge alone to make a finding of fact as to the “sufficiency” of the aggravation.

Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard. Although the State attempts to distinguish Ivan V. v. City of New

York, 407 U.S. 203 (1972), and Powell v. Delaware, 153 A.3d 69 (Del. 2016), see

State’s Resp. at 11-12, those attempts fall flat. Even assuming, as the State suggests,

that Florida’s scheme formerly incorporated the beyond-a-reasonable-doubt

standard, that standard was misapplied to findings of fact made by the trial judge,

not by the jury. The Hurst decisions held that the jury must make the beyond-areasonable-doubt findings that subject a defendant to a death sentence. Indeed, a

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

the holding of Summerlin and the retroactivity of Hurst because of the beyond-a-

059a

reasonable-doubt standard. See Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May

27, 2016) (contrasting Hurst to Ring and Summerlin, because the latter decisions

“did not address the requirement for proof beyond a reasonable doubt,” and “[t]he

Supreme Court has held a proof-beyond-a-reasonable-doubt decision retroactive”).

The State’s citation to Powell in arguing against the federal retroactivity of

Hurst, see State’s Resp. at 11-12, is particularly odd considering that in Powell, the

Delaware Supreme Court applied a retroactivity test that mirrors the federal

retroactivity test articulated in Teague v. Lane, 489 U.S. 288 (1989), and held that

Hurst should be applied retroactively in Delaware. See Powell, 153 A.3d at 75-76.

If anything, Powell favors Appellant’s position.

Finally, the State mischaracterizes Appellant’s arguments under Montgomery.

Appellant correctly explained that Montgomery held that states are bound by the

Supremacy Clause to apply constitutional rules retroactively when those rules are

substantive within the meaning of federal law. See Appellant’s Resp. at 12-19;

Montgomery, 136 S. Ct. at 728-29 (“[W]hen a new substantive rule of constitutional

law controls the outcome of a case, the Constitution requires state collateral review

courts to give retroactive effect to that rule.”). The Hurst decisions announced

substantive rules, and the Supremacy Clause requires this Court to apply those rules

retroactively.

060a

III.

The State abandons any “harmless error” arguments

The State abandons any argument that the Hurst error in Appellant’s case was

harmless by failing to even reference the harmless error doctrine in its response. See

Hoskins, 75 So. 3d at 257 (“An issue not raised in an initial brief is deemed

abandoned.”) (citing Hall, 823 So. 2d at 763 (Fla. 2002)) (quotation cleaned up). As

Appellant argued in his initial filing, the Hurst error is not harmless under this

Court’s precedent in light of the advisory jury’s non-unanimous recommendation.

CONCLUSION

For the reasons above and in Appellant’s initial response to the Court’s order

to show cause, this Court should hold that federal law requires the Hurst decisions

to be applied retroactively and vacate Appellant’s death sentence.

061a

Respectfully submitted,

Mark S. Gruber, Assistant CCRC

Florida Bar No. 033054

Julie Morley , Assistant CCRC

Florida Bar No. 0085158

Margaret Russell, Assistant CCRC

Florida Bar No. 72720

/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

Florida Bar No. 806821

Capital Collateral Regional Counsel,

Middle Region

12973 N. Telecom Parkway

Temple Terrace, FL 33637

(830) 558-1600

CERTIFICATE OF SERVICE

I hereby certify that on November 1, 2017, this reply brief was electronically

served via the e-portal to Assistant Attorney General Charmaine M. Millsaps at

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

/s/ Billy H. Nolas

Billy H. Nolas

062a

EXHIBIT 7

063a

EXHIBIT 8

073a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

074a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

075a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

076a

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

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

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

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

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

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

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

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

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

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

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

077a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.