Opposition Brief — Kenneth Darcell Quince, Petitioner v. Florida
Supreme Court briefJul 16, 2018
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CASE NO. 17-9401
IN THE SUPREME COURT OF THE UNITED STATES
KENNETH DARCELL QUINCE,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
______________________________________________________
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF
CERTIORARI TO THE FLORIDA SUPREME COURT
________________________________________________________
PAMELA JO BONDI
ATTORNEY GENERAL
Tallahassee, Florida
DORIS MEACHAM*
Assistant Attorney General
Florida Bar No. 63265
*Counsel of Record
Office of the Attorney General
444 Seabreeze Blvd., Suite 500
Daytona Beach, Florida 32118
Telephone: (386) 239-4990
Facsimile: (385) 226-0457
capapp@myfloridalegal.com [and]
doris.meacham@myfloridalegal.com
COUNSEL FOR RESPONDENT
QUESTIONS PRESENTED FOR REVIEW
[Capital Case]
Certiorari review should be denied because (1) the Florida Supreme
Court’s ruling on the retroactivity of Hurst v. Florida and Hurst v.
State, which relied on state law to provide that the Hurst cases are not
retroactive to defendants whose death sentences were final when this
Court decided Ring v. Arizona, does not violate Due Process or the
Sixth Amendment; (2) the Florida Supreme Court’s failure to give full
retroactive effect to the Hurst decisions does not violate Equal
Protection or the Eighth Amendment; (3) the Florida Supreme Court’s
ruling that a valid waiver of a penalty phase jury is also an effective
waiver of any right to relief under Hurst v. State does not violate the
Fifth, Sixth, Eighth, or the Fourteenth Amendments, and (4) the
Florida Supreme Court’s decision does not conflict with any decision
of this Court or involve an important, unsettled question of federal
law.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF CITATIONS ........................................................................................ iv
CITATION TO OPINION BELOW..........................................................................1
STATEMENT OF JURISDICTION..........................................................................1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................1
STATEMENT OF THE CASE ..................................................................................1
REASONS FOR DENYING THE WRIT .................................................................5
Certiorari review should be denied because (1) the Florida Supreme
Court’s ruling on the retroactivity of Hurst v. Florida and Hurst v.
State, which relied on state law to provide that the Hurst cases are not
retroactive to defendants whose death sentences were final when this
Court decided Ring v. Arizona, does not violate Due Process or the
Sixth Amendment; (2) the Florida Supreme Court’s failure to give full
retroactive effect to the Hurst decisions does not violate Equal
Protection or the Eighth Amendment; (3) the Florida Supreme Court’s
ruling that a valid waiver of a penalty phase jury is also an effective
waiver of any right to relief under Hurst v. State does not violate the
Fifth, Sixth, Eighth, or the Fourteenth Amendments, and (4) the
Florida Supreme Court’s decision does not conflict with any decision
of this Court .....................................................................................................5
I. The Florida Court’s Ruling on Retroactivity Does Not Violate Due
Process or the Sixth Amendment Right to a Jury Trial.........................7
II. The Florida Supreme Court’s failure to give full retroactive effect
to the Hurst decisions does not violate the Eighth or Fourteenth
Amendment. ........................................................................................18
ii
III. The Florida Supreme Court’s ruling that a valid waiver of a
penalty phase jury is also an effective waiver of any right to relief
under Hurst v. State does not violate the Fifth, Sixth, Eighth, or the
Fourteenth Amendments. ....................................................................27
CONCLUSION ........................................................................................................34
CERTIFICATE OF SERVICE ................................................................................35
iii
TABLE OF CITATIONS
Federal Cases
Atkins v. Virginia,
536 U.S. 304 (2002) ................................................................................................4
Blakely v. Washington,
542 U.S. 296 (2004) ................................................................................. 11, 29, 33
Brady v. United States,
397 U.S. 742 (1970) ....................................................................................... 30, 31
Braxton v. United States,
500 U.S. 344 (1991) ..................................................................................... 7, 8, 17
Butler v. McKellar,
494 U.S. 407 (1990) ..............................................................................................19
Cardinale v. Louisiana,
394 U.S. 437 (1969) ..............................................................................................25
Crawford v. Washington,
541 U.S. 36 (2004) ................................................................................................19
Danforth v. Minnesota,
552 U.S. 264 (2008) ..............................................................................................18
DeStefano v. Woods,
392 U.S. 631 (1968) ....................................................................................... 11, 15
Dorsey v. United States,
567 U.S. 260 (2012) ..............................................................................................20
Dugger v. Adams,
489 U.S. 401 (1989) ..............................................................................................12
Duncan v. Louisiana,
391 U.S. 145 (1968) ....................................................................................... 11, 15
Engquist v. Oregon Dep’t of Agric.,
553 U.S. 591 (2008) ..............................................................................................23
Florida v. Powell,
559 U.S. 50 (2010) ................................................................................................26
Fox Film Corp. v. Muller,
296 U.S. 207 (1935) ..............................................................................................25
iv
Griffith v. Kentucky,
479 U.S. 314 (1987) ....................................................................................... 19, 20
Halbert v. Michigan,
545 U.S. 605 (2005) ....................................................................................... 28, 29
Harris v. Alabama,
513 U.S. 504 (1995) ..............................................................................................13
Hurst v. Florida,
136 S.Ct. 616 (2016) ..................................................................................... passim
Iowa v. Tovar,
541 U.S. 77 (2004) ................................................................................................32
Jones v. United States,
527 U.S. 373 (1999) ..............................................................................................21
Kansas v. Carr,
136 S. Ct. 633 (2016) ............................................................................................13
Lambrix v. Sec'y, Fla. Dept. of Corr.,
851 F.3d 1158 (11th Cir. 2017) ............................................................................21
Lambrix v. Sec’y, Fla. Dept. of Corr.,
872 F.3d 1170 (11th Cir. 2017) ............................................................................23
McCleskey v. Kemp,
481 U.S. 279 (1987) ..............................................................................................24
McCoy v. United States,
266 F.3d 1245 (11th Cir. 2001) ............................................................................11
McMann v. Richardson,
397 U.S. 759 (1970) ....................................................................................... 31, 32
Michigan v. Long,
463 U.S. 1032 (1983) ............................................................................................25
Miller v. Alabama,
567 U.S. 460 (2012) ..........................................................................................9, 10
Montgomery v. Louisiana,
136 S. Ct. 718 (2016) ........................................................................................9, 10
Nordlinger v. Hahn,
505 U.S. 1 (1992) ..................................................................................................23
Penry v. Lynaugh,
492 U.S. 302 (1989) ..............................................................................................19
v
Proffitt v. Florida,
428 U.S. 242 (1976) ..............................................................................................15
Quince v. Florida,
459 U.S. 895 (1982) ................................................................................................3
Ring v. Arizona,
536 U.S. 584 (2002) ..........................................................................................8, 11
Rockford Life Insurance Co. v. Illinois Dept. of Revenue,
482 U.S. 182 (1987) ..............................................................................................34
Saffle v. Parks,
494 U.S. 484 (1990) ..............................................................................................19
Schriro v. Summerlin,
542 U.S. 384 (2004) ................................................................................. 10, 16, 21
Shepard v. United States,
544 U.S. 13 (2005) ................................................................................................29
Singer v. United States,
380 U.S. 24 (1965) ................................................................................................15
Street v. New York,
394 U.S. 576 (1969) ..............................................................................................26
Teague v. Lane,
489 U.S. 288 (1989) ........................................................................... 11, 18, 19, 20
United States v. Abney,
812 F.3d 1079 (D.C. Cir. 2016) ............................................................................20
United States v. Booker,
543 U.S. 220 (2005) ..............................................................................................11
United States v. Mezzanatto,
513 U.S. 196 (1995) ..............................................................................................33
United States v. Purkey,
428 F.3d 738 (8th Cir. 2005) ................................................................................14
United States v. Ruiz,
536 U.S. 622 (2002) ..............................................................................................31
United States v. Sampson,
486 F.3d 13 (1st Cir. 2007) ...................................................................................14
Varela v. United States,
400 F.3d 864 (11th Cir. 2005) ..............................................................................11
vi
Waldrop v. Comm’r, Alabama Dept. of Corr.,
2017 WL 4271115 (11th Cir. Sept. 26, 2017) ......................................................14
Whorton v. Bockting,
549 U.S. 406 (2007) ..............................................................................................19
Ybarra v. Filson,
869 F.3d 1016 (9th Cir. 2017) ..............................................................................21
State Cases
Asay v. State,
210 So. 3d 1 (Fla. 2016) ............................................................................... passim
Branch v. State,
234 So. 3d 548 (Fla. 2018) ............................................................................ 25, 26
Brant v. State,
197 So. 3d 1051 (Fla. 2016) .............................................................................5, 25
Cole v. State,
234 So. 3d 644 (Fla. 2018) ...................................................................................26
Covington v. State,
228 So. 3d 49 (Fla. 2017) .......................................................................................5
Davis v. State,
207 So. 3d 177 (Fla. 2016) ...............................................................................5, 25
Hannon v. State,
228 So. 3d 505 (Fla. 2017) ............................................................................ 25, 26
Hitchcock v. State,
226 So. 3d 216 (Fla. 2017) ........................................................................ 5, 25, 26
Hughes v. State,
901 So. 2d 837 (Fla. 2005) ...................................................................................16
Hurst v. State,
202 So. 3d 40 (2016)..................................................................................... passim
Johnson v. State,
904 So. 2d 400 (Fla. 2005) ...................................................................................16
Jones v. State,
234 So. 3d 545 (Fla. 2018) ...................................................................................26
Kaczmar v. State,
228 So. 3d 1 (Fla. 2017) .......................................................................................26
vii
Knight v. State,
211 So. 3d 1 (Fla. 2016) .........................................................................................5
Lambrix v. State,
227 So. 3d 112 (Fla. 2017) ........................................................................ 5, 25, 26
McGirth v. State,
209 So. 3d 1146 (Fla. 2017) .................................................................................13
Mosley v. State,
209 So. 3d 1248 (Fla. 2016) ...................................................................................8
Mullens v. State,
197 So. 3d 16 (Fla. 2016) ............................................................................. passim
Quince v. State,
116 So. 3d 1262 (Fla. 2012) ...................................................................................3
Quince v. State,
233 So. 3d 1017 (Fla. 2018) .......................................................................... 1, 5, 6
Quince v. State,
241 So. 3d 58 (Fla. 2018) .......................................................................................4
Quince v. State,
414 So. 2d 185, (Fla. 1982) ................................................................................2, 3
Quince v. State,
477 So. 2d 535 (Fla. 1985) .....................................................................................3
Quince v. State,
592 So. 2d 669 (Fla. 1992) .....................................................................................3
Quince v. State,
732 So. 2d 1059 (Fla. 1999) ...................................................................................3
Rhoades v. State,
233 P. 3d 61 (2010)...............................................................................................16
Robertson v. State,
No. SC16-1297, 2016 WL 7043020 n.1 (Fla. Dec. 1, 2016)..................................5
Rodgers v. State,
242 So. 3d 276 (Fla. 2018) ...................................................................................32
State v. Gales,
658 N.W.2d 604 (Neb. 2003) ...............................................................................14
State v. Johnson,
122 So. 3d 856 (Fla. 2013) ...................................................................................11
viii
State v. Mason,
2018 WL 1872180 (Ohio, Apr. 18, 2018) ............................................................14
State v. Towery,
64 P. 3d 828 (2003)...............................................................................................17
Twilegar v. State,
228 So. 3d 550 (Fla. 2017) ...................................................................................27
Witt v. State,
387 So. 2d 922 (Fla. 1980) ............................................................................ 17, 18
Wright v. State,
213 So. 3d 881 (Fla. 2016) ...................................................................................25
Zack v. State,
228 So. 3d 41 (Fla. 2017) .....................................................................................26
Federal Statutes
18 U.S.C. § 1201 (a) ................................................................................................30
28 U.S.C. § 1257 (a) ..................................................................................................1
State Statutes
Florida State Statute § 921.137 (2003) .....................................................................4
Florida State Statute § 921.141 (2) (2017) ..............................................................12
Florida State Statute § 921.141 (2) (c) (1980) ........................................................29
Federal Rules
U.S. Sup. Ct. R. 10 .......................................................................................... 6, 7, 34
ix
CITATION TO OPINION BELOW
The decision of the Florida Supreme Court is reported at Quince v. State,
233 So. 3d 1017 (Fla. 2018). (Pet. App. A).
STATEMENT OF JURISDICTION
The judgment of the Florida Supreme Court was entered on January 18,
2018. This Court’s jurisdiction to review the final judgment of the Florida Supreme
Court is authorized by 28 U.S.C. § 1257 (a). However, because the Florida
Supreme Court’s decision in this case is based on adequate and independent state
grounds, this Court should decline to exercise jurisdiction as no federal question is
raised. Sup. Ct. R. 14(g) (i).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Respondent accepts Petitioner's statement regarding the applicable
constitutional and statutory provisions involved.
STATEMENT OF THE CASE
In December 1979, the body of an eighty-two-year-old woman dressed in a
bloodstained nightgown was found lying on the floor of her bedroom. She had
bruises on her forearm and under her ear, a small abrasion on her pelvis, and
lacerations on her head, which were severe enough to cause death. She was
sexually assaulted while alive, but the medical examiner could not determine
1
whether the victim was conscious or unconscious during the battery. Strangulation
was the cause of death. Quince v. State, 414 So. 2d 185, 186, (Fla. 1982).
Based upon a fingerprint identification, Quince was arrested. Although he
initially denied knowledge of the incident, he later confessed to the burglary. He
also admitted to stepping on the victim's stomach before leaving her house. A
month later, when faced with laboratory test results, he admitted that he sexually
assaulted the deceased. The grand jury returned an indictment charging the Quince
with first-degree murder, burglary, and sexual battery. Id. at 186. The sexual
battery was later dismissed because it was the underlying felony of the felony
murder offense. Id. at 186, n.1. After plea negotiations, Quince waived the right to
a sentencing jury. Id. Immediately preceding the plea colloquy, the trial court
spoke with Quince regarding the ramifications of Quince’s decision to waive his
right to a sentencing jury. (Pet. App. D). During the plea colloquy, the trial court
again inquired of Quince as to whether he understood that he had the right to have
a jury render a recommendation as to the appropriate sentence, and whether Quince
fully understood that he was agreeing to waive his right to a sentencing jury. (Pet
App. D, P. 8-9). Quince advised that he understood the nature of the right that he
was giving up, that he was not forced or coerced into waiving a sentencing jury,
and was aware that the State would advocate that he be sentenced to death. (Pet.
2
App. D, P. 9). Quince also advised the court that he was not mentally or
emotionally disabled. (Pet. App. D, P. 11).
After hearing and weighing evidence, the trial court found the existence of
three aggravating circumstances: 1) the murder was committed during the
commission of a sexual battery; 2) the murder was committed for pecuniary gain,
and 3) the murder was heinous, atrocious and cruel. Id. The only mitigating
circumstance found by the trial court dealt with Quince’s inability to appreciate the
criminality of his conduct, but due to conflicting evidence, the trial court assigned
little weight to the mitigating circumstance. Id. The trial judge sentenced Quince
to death. Id.
On appeal, the Florida Supreme Court affirmed Quince’s death sentence. Id.
at 189. Quince’s sentence became final on October 4, 1982, when this Court
denied Quince’s petition for a writ of certiorari. Quince v. Florida, 459 U.S. 895
(1982).
Quince continued to seek relief from his conviction and sentence through
postconviction litigation. Quince v. State, 477 So. 2d 535 (Fla. 1985) (affirming
denial of postconviction relief); Quince v. State, 592 So. 2d 669 (Fla. 1992)
(remanding for evidentiary hearing on claim alleging trial counsel conflict of
interest); Quince v. State, 732 So. 2d 1059, 1060 (Fla. 1999) (affirming denial of
conflict of interest claim following remand); Quince v. State, 116 So. 3d 1262
3
(Fla. 2012) (table), cert. denied, 134 S. Ct. 2695 (2014) (affirming denial of
Quince’s intellectual disability claim under Atkins v. Virginia, 536 U.S. 304
(2002), and section 921.137, Florida Statutes (2003); and Quince v. State, 241 So.
3d 58 (Fla. 2018) (affirming denial of Quince’s renewed motion for determination
of intellectual ability as a bar to execution).
On January 9, 2017, Quince filed a successive postconviction motion in
which he sought relief pursuant to Hurst v. Florida, 136 S.Ct. 616 (2016), as
interpreted in Hurst v. State, 202 So. 3d 40 (2016), cert. denied, 137 S.Ct. 2161
(2017). After the postconviction court denied relief, (Pet. App. C), the Florida
Supreme Court ordered the parties to files briefs addressing why the lower court’s
order should not be affirmed based on the court’s precedent in Mullens v. State,
197 So. 3d 16 (Fla. 2016), cert. denied 137 S.Ct. 672 (2017). (Pet. App. B).
In Mullens, the Florida Supreme Court concluded:
“… Mullens knowingly, intelligently, and voluntarily pleaded guilty
to the charged offenses. Additionally, Mullens is not entitled to relief
on any of the errors that he alleges. We also determine that Mullens is
not entitled to relief pursuant to Hurst.”
Mullens v. State, 197 So. 3d 16, 40 (Fla. 2016), reh'g denied, 2016 WL 4377112
(Fla. Aug. 9, 2016), and cert. denied sub nom., Mullens v. Florida, 137 S. Ct. 672
(2017).
The Florida Supreme Court ultimately affirmed the lower court’s denial of
4
relief, finding:
In Mullens, we held that a defendant “cannot subvert the right to jury
factfinding by waiving that right and then suggesting that a
subsequent development in the law has fundamentally undermined his
sentence.” 197 So. 3d at 40. We have since consistently relied on
Mullens to deny Hurst relief to defendants who waived a penalty
phase jury. E.g., Covington v. State, 228 So. 3d 49, 69 (Fla. 2017);
Knight v. State, 211 So. 3d 1, 5 n.2 (Fla. 2016); Robertson v. State,
No. SC16-1297, 2016 WL 7043020, at *1 n.1 (Fla. Dec. 1, 2016)
(unpublished); Davis v. State, 207 So. 3d 177, 212 (Fla. 2016), cert.
denied, ––– U.S. ––––, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017);
Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016). Quince made a
valid waiver of his right to a penalty phase jury, and his arguments
here do not compel a departure from our precedent. Accordingly,
because Quince waived his right to a penalty phase jury, he is not
entitled to Hurst relief.
Moreover, because Quince's sentence became final nearly twenty
years before Ring was decided, his Hurst claim is also foreclosed by
our decision in Asay. See Hitchcock v. State, 226 So. 3d 216, 217
(Fla.), cert. denied, ––– U.S. ––––, 138 S.Ct. 513, 199 L.Ed.2d 396
(2017); Asay, 210 So. 3d at 22; see also Lambrix v. State, 227 So. 3d
112, 113 (Fla.) (rejecting argument that the Eighth Amendment, equal
protection, and due process require that Hurst be applied retroactively
to defendant whose sentences were final prior to Ring), cert. denied,–
–– U.S. ––––, 138 S.Ct. 312, 199 L.Ed.2d 202 (2017). We therefore
affirm the trial court's order denying Quince's successive motion for
postconviction relief.
Quince v. State, 233 So. 3d 1017, 1018 (Fla. 2018). (Pet. App. A).
Quince now seeks certiorari review of the Florida Supreme Court’s decision.
REASONS FOR DENYING THE WRIT
Certiorari review should be denied because (1) the Florida
Supreme Court’s ruling on the retroactivity of Hurst v. Florida
and Hurst v. State, which relied on state law to provide that the
Hurst cases are not retroactive to defendants whose death
5
sentences were final when this Court decided Ring v. Arizona, does
not violate Due Process or the Sixth Amendment; (2) the Florida
Supreme Court’s failure to give full retroactive effect to the Hurst
decisions does not violate Equal Protection or the Eighth
Amendment; (3) the Florida Supreme Court’s ruling that a valid
waiver of a penalty phase jury is also an effective waiver of any
right to relief under Hurst v. State does not violate the Fifth,
Sixth, Eighth, or the Fourteenth Amendments, and (4) the Florida
Supreme Court’s decision does not conflict with any decision of
this Court or involve an important, unsettled question of federal
law.
Quince requests this Court review the Florida Supreme Court’s decision
affirming the denial of his successive postconviction motion, arguing that the state
court’s holding with respect to retroactivity violates the Sixth and Fourteenth
Amendments. The Petition further alleges that the Florida Supreme Court’s refusal
to retroactively apply Hurst to pre-Ring cases is in violation of the Eighth
Amendment’s prohibition against arbitrary and capricious imposition of the death
penalty and the Fourteenth Amendment’s guarantee of equal protection. Finally,
Quince asserts that he is entitled to relief under Hurst, despite voluntarily waiving
his right to a jury sentencing recommendation.
As argued infra, nothing about the process employed by the Florida
Supreme Court was inconsistent with the Constitution. Quince does not provide
any "compelling" reason for this Court to review his case. U.S. Sup. Ct. R. 10.
Indeed, Quince cannot cite to any decision from this or any appellate court that
conflicts with the Florida Supreme Court's decision in Quince v. State, 233 So. 3d
6
1017, 1018 (Fla. 2018), in which the court determined that Quince was not entitled
to relief under Hurst v. State because (1) his valid waiver of a penalty phase jury
also served as an effective waiver of any right to relief under Hurst v. State, and (2)
under Florida Law Hurst was not retroactive to his death sentence which became
final nearly twenty years before Ring was decided. The petition for writ of
certiorari should be denied.
I. The Florida Court’s Ruling on Retroactivity Does Not Violate Due Process
or the Sixth Amendment Right to a Jury Trial.
Quince requests this Court review the Florida Supreme Court’s decision
affirming the denial of his successive postconviction motion, arguing that the state
court’s holding with respect to retroactivity violates his Due Process and Sixth
Amendment right to a jury trial. The primary purpose for which this Court uses its
certiorari jurisdiction is to resolve conflicts among the United States courts of
appeal and state courts “concerning the meaning and provisions of federal law.”
Braxton v. United States, 500 U.S. 344, 348 (1991). Rule 10 of the Rules of the
Supreme Court of the United States identifies the relevant considerations in
determining the propriety of certiorari review. Noting review is only granted for
“compelling reasons,” the Rule indicates consideration of a decision by a state
court of last resort should involve an unresolved question of federal law or a
conflict among higher courts. As will be shown, nothing about the Florida
7
Supreme Court’s retroactivity decision is inconsistent with the United States
Constitution. There is no federal constitutional question here and no reason for this
Court to grant review. See Braxton, Id.
In Hurst v. Florida, 136 S. Ct. 616 (2016), this Court disallowed Florida’s
procedure permitting trial judges (as opposed to juries) to make the finding of an
aggravating circumstance that renders the defendant eligible for a death sentence.
In response, Florida adopted new procedural requirements that, among other
things, mandated that all factual findings necessary to impose death be found by a
unanimous jury. However, Florida was not required to grant retroactive application
of Hurst v. Florida to all death sentenced murderers regardless of the date their
convictions and sentences became final.
Under the Florida Supreme Court controlling precedent of Asay v. State, 210
So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017), the court ruled that, as a
matter of state law, Hurst v. State is not retroactive to any case in which the death
sentence was final prior to the June 24, 2002, decision in Ring v. Arizona, 536 U.S.
584 (2002). See also Mosley v. State, 209 So. 3d 1248, 1272-73 (Fla. 2016)
(holding that, as a matter of state law, Hurst v. State does apply retroactively to
defendants whose sentences were not yet final when this Court issued Ring).
Quince's sentence became final nearly twenty years before Ring was decided. That
alone denies him any Hurst relief. Moreover, the Florida Supreme Court
8
subsequently held that the new procedure did not apply to all capital cases;
specifically, it excluded them from applying to any capital defendant who, like
Quince, waived his penalty phase jury. Mullens v. State, 197 So. 3d 16, 38-40 (Fla.
2016). For these two reasons, Quince foregoes any entitlement to a Hurst claim.
Despite the Florida Supreme Court’s clear mandate, Quince suggests that the
Florida court created a new substantive rule in Hurst v. State which must, pursuant
to Montgomery v. Louisiana, 136 S. Ct. 718 (2016), be applied retroactively to all
cases in which alleged Hurst error occurred. Quince’s reliance on Montgomery for
this proposition is misplaced. In Montgomery, Louisiana ruled that this Court’s
decision in Miller v. Alabama, 567 U.S. 460 (2012), which held that a juvenile
could not be sentenced to mandatory life in prison without the possibility of parole,
did not apply retroactively. Montgomery, 136 S. Ct. at 727. This Court reversed
Louisiana’s holding because Miller “announced a substantive rule of constitutional
law.” Id. at 734. This Court reasoned that the rule was substantive, because it
placed a punishment beyond the State's power to impose. Rephrased, Miller
prevented the State from imposing a mandatory life sentence on juveniles. Id. The
distinction between substantive rules and procedural rules is critical, because
substantive rules apply retroactively regardless of when a conviction became final,
while procedural rules do not. Id. at 729. Therefore, because Miller was a
9
substantive rule, Miller applied retroactively regardless as to when a defendant’s
conviction became final. Id.
The new rule announced in Hurst v. Florida, and expanded in Hurst v. State,
allocated the authority regarding capital sentencing decisions from the judge to the
jury. Unlike the ruling in Montgomery, the rulings in Hurst v. Florida and Hurst v.
State were procedural, not substantive. See Montgomery, 136 S. Ct. at 730
(“Procedural rules . . . are designed to enhance the accuracy of a conviction or
sentence by regulating ‘the manner of determining the defendant’s culpability.’”)
(emphasis in original; quoting Schriro, 542 U.S. at 353). See also Schriro, 542
U.S. 348, 352 (2004) (“Ring announced a new procedural rule that does not apply
retroactively to cases already final on direct review.”). In Hurst the same class of
defendants committing the same range of conduct face the same punishment.
Further, unlike the now unavailable penalty in Miller, the death penalty can still be
imposed under the law after Hurst. Instead, Hurst, like Ring, merely “altered the
range of permissible methods for determining whether a defendant’s conduct is
punishable by death, requiring that a jury rather than a judge find the essential facts
bearing on punishment.” Summerlin, 542 U.S. at 353.
Moreover, the decision in Hurst v. Florida is based on an entire line of
jurisprudence which courts have almost universally held to not have retroactive
application. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (holding that Ring
10
was not retroactive); DeStefano v. Woods, 392 U.S. 631 (1968) (per curiam)
(holding the Court’s decision in Duncan v. Louisiana, 391 U.S. 145 (1968) which
guaranteed the right to a jury trial to the States was not retroactive); Varela v.
United States, 400 F.3d 864, 866–67 (11th Cir. 2005) (explaining that Supreme
Court decisions, such as Ring v. Arizona, 536 U.S. 584 (2002), Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220
(2005) applying Apprendi’s “prototypical procedural rule” in various contexts are
not retroactive); McCoy v. United States, 266 F.3d 1245, 1255, 1259 (11th Cir.
2001) (holding Apprendi v. New Jersey, 530 U.S. (2000) not retroactive under
Teague v. Lane, 489 U.S. 288 (1989), and acknowledging that every federal circuit
to consider the issue reached the same conclusion); State v. Johnson, 122 So. 3d
856, 865-66 (Fla. 2013) (holding Blakely not retroactive in Florida). Thus, the new
constitutional rules enunciated in Hurst are procedural in nature only, and therefore
not subject to retroactive application under federal law. Quince’s arguments do not
identify any federal or state court conflict, and instead amount to his general
disagreement with how Florida has elected to apply its own death penalty laws.
To the extent Quince’s petition suggests Hurst v. Florida now requires jury
sentencing under federal law, no such holding exists. See Ring, 536 U.S. at 612
(Scalia, J., concurring) (“[T]oday’s judgment has nothing to do with jury
sentencing. What today’s decision says is that the jury must find the existence of
11
the fact that an aggravating factor existed.”) (emphasis in original). A Florida
jury’s decision regarding a death sentence was, and still remains, an advisory
recommendation. See Dugger v. Adams, 489 U.S. 401 (1989). See also §
921.141(2)(c), Fla. Stat. (2017) (providing that “[i]f a unanimous jury determines
that the defendant should be sentenced to death, the jury’s recommendation to the
court shall be a sentence of death”) (emphasis added). No case from this Court has
mandated jury sentencing in a capital case, and such a holding would require
reading a mandate into the Constitution that is simply not there. There was no
Sixth Amendment error in this case. In addition, the Florida Supreme Court has
correctly held that Hurst does not apply to capital defendants like Quince who
knowingly and validly waived the right to a penalty phase jury. Therefore, Quince
fails to present a constitutional question which would warrant certiorari review.
The Florida Supreme Court’s holding in Hurst v. State followed this Court’s
ruling in Hurst v. Florida in requiring that aggravating circumstances be found by
a jury beyond a reasonable doubt before a death sentence may be imposed. The
Florida court then expanded this Court’s ruling, requiring in addition that “before
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
12
the mitigating circumstances, and unanimously recommend a sentence of death.”
Hurst v. State, 202 So. 3d at 57. Hurst v. Florida did not address the process of
weighing the aggravating and mitigating circumstances or suggest that the jury
must conduct the weighing process to satisfy the Sixth Amendment. In Kansas v.
Carr, 136 S. Ct. 633 (2016), decided eight days after this Court issued Hurst v.
Florida, this Court emphasized:
Whether mitigation exists, however, is largely a judgment call (or
perhaps a value call); what one jury might consider mitigating another
might not. And of course, the ultimate question whether mitigating
circumstances outweigh aggravating circumstances is mostly a
question of mercy—the quality of which, as we know, is not strained.
It would mean nothing, we think, to tell the jury that defendants must
deserve mercy beyond a reasonable doubt, or must more-likely-thannot deserve it. . . . In the last analysis, jurors will accord mercy if they
deem it appropriate, and withhold mercy if they do not, which is what
our case law is designed to achieve.
Carr, 136 S. Ct. at 642.
The findings required by the Florida Supreme Court following remand in
Hurst v. State involving the weighing and selection of a defendant’s sentence are
not required by the Sixth Amendment. See, e.g., McGirth v. State, 209 So. 3d 1146,
1164 (Fla. 2017). Rather, Hurst v. Florida was a Sixth Amendment case which
applied Ring to Florida’s sentencing scheme, reiterating that a jury, not a judge,
must find the existence of an aggravating factor to make a defendant eligible for
the death penalty. Hurst v. Florida, 136 S. Ct. at 624; Harris v. Alabama, 513 U.S.
504, 515 (1995) (holding that the Constitution does not prohibit the trial judge
13
from “impos[ing] a capital sentence”). Lower courts have almost uniformly held
that a judge may perform the “weighing” of factors to arrive at an appropriate
sentence without violating the Sixth Amendment.1 The trial court in this instance
found the existence of three aggravating circumstances: 1) the murder was
committed during the commission of a sexual battery; 2) the murder was
committed for pecuniary gain and 3) the murder was heinous, atrocious and cruel.
The only mitigating circumstance found by the trial court dealt with Quince’s
inability to appreciate the criminality of his conduct, but due to conflicting
evidence, the trial court assigned little weight to the mitigating circumstance.
1
State v. Mason, 2018 WL 1872180, *5-6 (Ohio, Apr. 18, 2018) (“Nearly every
court that has considered the issue has held that the Sixth Amendment is applicable
to only the fact-bound eligibility decision concerning an offender’s guilt of the
principle offense and any aggravating circumstances” and that “weighing is not a
factfinding process subject to the Sixth Amendment.”) (string citation omitted);
United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007) (“As other courts have
recognized, the requisite weighing constitutes a process, not a fact to be found.”);
United States v. Purkey, 428 F.3d 738, 750 (8th Cir. 2005) (characterizing the
weighing process as “the lens through which the jury must focus the facts that it
has found” to reach its individualized determination); Waldrop v. Comm’r,
Alabama Dept. of Corr., 2017 WL 4271115, *20 (11th Cir. Sept. 26, 2017)
(unpublished) (rejecting Hurst claim and explaining “Alabama requires the
existence of only one aggravating circumstance in order for a defendant to be
death-eligible, and in Mr. Waldrop’s case the jury found the existence of a
qualifying aggravator beyond a reasonable doubt when it returned its guilty
verdict.”) (citation omitted); State v. Gales, 658 N.W.2d 604, 628-29 (Neb. 2003)
(“[W]e do not read either Apprendi or Ring to require that the determination of
mitigating circumstances, the balancing function, or proportionality review to be
undertaken by a jury”).
14
Quince now seeks to benefit from Hurst although he previously abandoned
his right to have a jury take part in the penalty phase. Quince should not be
permitted to recapture a right that he knowingly waived. There is nothing
inherently unreliable about judicial factual determinations. A significant part of the
jury's responsibility is to ensure the fairness of the resulting process, rather than
reliability of the verdict. See Duncan v. Louisiana, 391 U.S. 145, 155-156 (1968);
Singer v. United States, 380 U.S. 24, 35 (1965). Significantly, even after this Court
applied the Sixth Amendment right to jury trial to the states, the right was not
granted retroactively as there was no question that the respective outcomes in
criminal cases tried before the court were reliable. Destefano v. Woods, 392 U.S.
631 (1968). Indeed, if consistency is the goal on capital sentencing, this Court has
indicated that judicial sentencing may yield more consistent results, perhaps
because of judges' greater experience with analogous cases. Proffitt v. Florida, 428
U.S. 242, 252 (1976). It is not a foregone conclusion, therefore, that a defendant's
sentence is less reliable merely because the sentencing procedure in effect at the
time permitted the trial judge to make the sentencing decision.
The Constitution provides a right to trial by jury, not to sentencing by jury.
Quince’s death sentence is neither unfair nor unreliable because the judge imposed
the sentence in accordance with the law existing at the time of his trial. Quince
cannot establish that his sentencing procedure was less accurate than future
15
sentencing procedures employing the new standards announced in Hurst v. State,
202 So. 3d 40 (Fla. 2016). See Hughes v. State, 901 So. 2d 837, 844 (Fla. 2005)
(holding that Apprendi is not retroactive and noting that “neither the accuracy of
convictions nor of sentences imposed and final before Apprendi issued is seriously
impugned”; Rhoades v. State, 233 P. 3d 61, 70-71 (2010) (holding that Ring is not
retroactive after conducting its own independent Teague analysis and observing, as
this Court did in Summerlin, that there is debate as to whether juries or judges are
the better fact-finders and that it could not say “confidently” that judicial
factfinding “seriously diminishes accuracy.”) Just like Ring did not enhance the
fairness or efficiency of death penalty procedures, neither does Hurst. Johnson v.
State, 904 So. 2d 400, 409 (Fla. 2005). As this Court has explained, “for every
argument why juries are more accurate factfinders, there is another why they are
less accurate.” Schriro v. Summerlin, 542 U.S. 348, 356 (2004). Thus, because the
accuracy of Quince’s death sentence is not at issue, fairness does not demand
retroactive application of Hurst.
Finally, Quince maintains that fairness and uniformity require that Hurst be
retroactively applied to all cases. Contrary to his argument, fairness does not
provide a mechanism for vacating his death sentence. The fact that some capital
defendants who did not waive jury penalty phase sentencing have benefited from
Hurst is not relevant when Quince chose to waive a right that belongs to each
16
capital defendant, even after being told that he could not appeal the issue. What
fairness calls for, is that the victim’s family not be forced to endure another penalty
phase proceeding simply because Quince has had a change of heart. State v.
Towery, 64 P. 3d 828, 835-36 (2003) (“[c]onducting new sentencing hearings,
many requiring witnesses no longer available, would impose a substantial and
unjustified burden on Arizona’s administration of justice” and would be inconstant
with the Court’s duty to protect victims’ rights under the Arizona Constitution).
Thus, Quince’s fairness argument rings hollow against the interests of the State,
which prosecuted him in good faith under the law existing at the time of his trial,
the concept of finality, and the interests of the victims’ family members.
As this Court has observed, a principal purpose for certiorari jurisdiction "is
to resolve conflicts among the United States courts of appeals and state courts
concerning the meaning of provisions of federal law." Braxton v. United States,
500 U.S. 344,347 (1991); see also Sup. Ct. R. 10 (b) (listing conflict among state
supreme courts as a consideration in the decision to grant review). The Florida
Supreme Court’s determination of the retroactive application of Hurst under Witt v.
State, 387 So. 2d 922 (Fla. 1980), is based on an independent state ground and is
not violative of federal law or this Court’s precedent. Hurst did not announce a
substantive change in the law and is not retroactive under federal law. Nothing in
the petition justifies the exercise of this Court’s certiorari jurisdiction.
17
II. The Florida Supreme Court’s failure to give full retroactive effect to the
Hurst decisions does not violate the Eighth or Fourteenth Amendment.
Quince argues that the Florida Supreme Court’s partial retroactive
application of Hurst v. Florida as interpreted in Hurst v. State violates the Eighth
Amendment and the Equal Protection Clause of the Fourteenth Amendment. This
Court has held that, in general, a state court’s retroactivity determinations are a
matter of state law, not federal constitutional law. Danforth v. Minnesota, 552 U.S.
264 (2008). State courts may fashion their own retroactivity tests, including partial
retroactivity tests. Florida’s partial retroactive application of Hurst v. State is not
constitutionally unsound and does not otherwise present a matter that merits the
exercise of this Court’s certiorari jurisdiction.
The state retroactivity doctrine employed by the Florida Supreme Court did
not violate federal retroactivity standards. The court’s expansion of Hurst v.
Florida in Hurst v. State is applicable only to defendants in Florida, and,
consequently, subject to retroactivity analysis under state law as set forth in Witt v.
State, 387 So. 2d 922 (Fla.), cert. denied, 449 U.S. 1067 (1980). See Asay, 210 So.
3d at 15 (noting that Florida’s Witt analysis for retroactivity provides “more
expansive retroactivity standards” than the federal standards articulated in Teague
v. Lane, 489 U.S. 288 (1989) (emphasis in original; citation omitted).
18
New rules of law such as the rule announced in Hurst v. Florida do not
usually apply to cases that are final. See Whorton v. Bockting, 549 U.S. 406, 416
(2007) (explaining the normal rule of nonretroactivity and holding the decision in
Crawford v. Washington, 541 U.S. 36 (2004), was not retroactive). When a
constitutional rule is announced, its requirements apply to defendants whose
convictions or sentences are pending on direct review or not otherwise final.
Griffith v. Kentucky, 479 U.S. 314, 323 (1987). However, once a criminal
conviction has been upheld on appeal, the application of a new rule of
constitutional criminal procedure is limited. This Court has held that new rules of
criminal procedure will apply retroactively only if they fit within one of two
narrow exceptions. Those exceptions are: (1) a substantive rule that "places certain
kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe or if it prohibits a certain category of punishment for
a class of defendants because of their status or offense"; and (2) a procedural rule
which constitutes a watershed rule of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding. Teague v. Lane, 489
U.S. 288, 310-13 (1989); Penry v. Lynaugh, 492 U.S. 302 (1989) (abrogated on
other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Butler v. McKellar, 494
U.S. 407 (1990); Saffle v. Parks, 494 U.S. 484 (1990)). Moreover, certain matters
are not retroactive at all.
19
In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), this Court held “that a
new rule for the conduct of criminal prosecutions is to be applied retroactively to
all cases, state or federal, pending direct review or not yet final, with no exception
for cases in which the new rule constitutes a ‘clear break’ with the past.” Under
this “pipeline” concept, only those cases still pending direct review or not yet final
would receive the benefit from alleged Hurst error. Retroactivity under Griffith
depends on the date of the finality of the direct appeal. Under Teague, if a case is
final on direct review, the defendant will not receive the benefit of the new rule
unless one of the narrow exceptions announced in Teague applies. Again, finality
is the critical date-based test under Teague.
What is more, if partial retroactivity violated the United States Constitution
or this Court’s retroactivity jurisprudence, this Court would not have given partial
retroactive effect to a change in the penal law in Dorsey v. United States, 567 U.S.
260 (2012). In Dorsey, this Court held that the Fair Sentencing Act was partially
retroactive in that it would apply to those offenders who committed applicable
offenses prior to the effective date of the act, but who were sentenced after that
date. Id. at 273. See United States v. Abney, 812 F.3d 1079, 1097-98 (D.C. Cir.
2016) (noting that prior to the decision in Dorsey, this Court had not held a change
in a criminal penalty to be partially retroactive).
20
Contrary to Quince’s assertions, there is nothing about Florida’s decision
providing partial retroactivity to Hurst v. Florida and Hurst v. State that is contrary
to this Court’s retroactivity jurisprudence. This Court has held that “Ring
announced a new procedural rule that does not apply retroactively to cases
already final on direct review.” Schriro v. Summerlin, 542 U.S. 384, 352 (2004)
(emphasis added). Since this Court has expressly found that Ring was not
retroactive, Hurst v. Florida, which applied Ring to invalidate Florida's statute, is
also not retroactive. Thus, Ring and Hurst announced a procedural change, not a
substantive one. There is no conflict among federal courts on this issue. See
Lambrix v. Sec'y, Fla. Dept. of Corr., 851 F.3d 1158, 1165, n.2 (11th Cir. 2017)
(Lambrix V) ("under federal law Hurst, like Ring, is not retroactively applicable on
collateral review"), cert. denied, Lambrix v. Jones, 138 S.Ct. 217 (2017) (No. 175153); Ybarra v. Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017) (denying
permission to file a successive habeas petition raising a Hurst v. Florida claim
concluding that Hurst v. Florida did not apply retroactively).
Quince additionally claims that he should receive Hurst relief in the name of
fundamental fairness and due process. A violation of the Eighth Amendment as it
relates to death sentencing schemes requires a showing of arbitrariness or
capriciousness in the sentencing process. Jones v. United States, 527 U.S. 373, 381
(1999). Here, however, there is nothing in the Florida Supreme Court’s decision
21
that shows an arbitrariness or capriciousness in violation of the Eighth Amendment
in fashioning its retroactivity decision. In Hurst v. State, the Florida Supreme Court
explained that the “requirement that a jury must unanimously recommend death in
order to make a death sentence possible serves that narrowing function required by
the Eighth Amendment even more significantly, and expresses the values of the
community as they currently relate to imposition of death as a penalty.” Hurst, 202
So. 3d at 60. Again, this is an alteration in the procedure necessary to obtain a
death sentence. Neither the range of conduct nor the class of persons has been
altered. Florida’s death penalty sentencing scheme still applies to the same persons
engaging in the same conduct.
Ultimately, what Quince appears to suggest is that any new development in
the law should be applied to all cases. However, that is untenable. Inherent in the
concept of non-retroactivity is that some defendants will get the benefit of a new
development, while other defendants will not, depending on a date. Drawing a line
between newer cases that will receive a benefit and older, final cases that will not
receive a benefit is part of the landscape of retroactivity analysis. If it were not this
way, cases would never be resolved. With every new development in the law,
capital defendants would get a new trial or a new penalty phase. Given that
litigation in capital cases can span decades, there would never be finality. This is
22
not arbitrary and capricious in violation of the Eighth Amendment; it is simply a
fact inherent in any retroactivity analysis.
Quince’s Equal Protection argument is equally unconvincing. It is based on
the fatally flawed contention that the Florida Supreme Court’s ruling discriminates
between similarly situated individuals. The law is well-settled that the Equal
Protection Clause prohibits disparity of treatment by a State between classes of
individuals whose situations are debatably the same. Engquist v. Oregon Dep’t of
Agric., 553 U.S. 591, 601 (2008). “Of course, most laws differentiate in some
fashion between classes of persons.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
Thus, “[t]he Equal Protection Clause does not forbid classifications. It simply
keeps governmental decisionmakers from treating differently persons who are in
all relevant respects alike.” Id.
However, Quince is not similarly situated with the defendants who are
entitled to Hurst relief, because those defendants were sentenced to death under an
unconstitutional sentencing scheme. At the time Quince’s sentence became final, a
defendant could, consistent with the Sixth Amendment, be sentenced to death
based on a judge’s factfinding alone. Hence, contrary to his proclamation, he is not
similarly situated with “post-Ring” defendants, and thus his Equal Protection claim
must fail. See also Lambrix v. Sec’y, Fla. Dept. of Corr., 872 F.3d 1170 (11th Cir.
2017) (rejecting Lambrix’s argument that this Court’s retroactivity decisions
23
violate the Equal Protection Clause, because Lambrix, whose death sentence was
final prior to Ring, was not similarly situated with the defendants who are entitled
to Hurst relief.) What’s more, unlike “post-Ring” defendants, Quince waived his
right to a penalty phase jury, precluding any Hurst relief.
Moreover, a criminal defendant challenging the State’s application of capital
punishment must show intentional discrimination to prove an equal protection
violation. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). A “`[d]iscriminatory
purpose’ . . . implies more than intent as violation or intent as awareness of
consequences. It implies that the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Id. at 298. Clearly, Quince has failed
to demonstrate how he himself is being treated differently from similarly situated
defendants. See Asay, 210 So. 3d at 28 (“Asay does not demonstrate how he was
treated differently from similarly situated defendants.”)
The Florida court’s partial retroactivity ruling was based on the date of the
Ring decision, not based on a purposeful intent to deprive pre-Ring death sentenced
defendants in general, and Quince in particular, relief under Hurst v. State. The
Florida Supreme Court has been entirely consistent in denying Hurst relief to those
defendants whose convictions and sentences were final when Ring was issued in
2002. Since Asay, the Florida Supreme Court has continued to apply Hurst
24
retroactively to all post-Ring cases and declined to apply Hurst retroactively to all
pre-Ring cases. See, Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S.
Ct. 1164 (2018); Hannon v. State, 228 So. 3d 505 (Fla.), cert. denied, 138 S.Ct.
441 (2017); Lambrix v. State, 227 So. 3d 112 (Fla.), cert. denied, 138 S.Ct. 312
(2017); Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S.Ct. 513
(2017).
Irrespective of retroactivity, Quince’s waiver of the right to a jury penalty
phase proceeding presents a bar to Hurst relief. Following Mullens, the Florida
Supreme Court has repeatedly denied Hurst relief in cases involving the waiver of
the penalty phase jury, even to those defendants whose death sentences arose
after Ring. See Brant v. State, 197 So. 3d 1051 (Fla. 2016); Davis v. State, 207 So.
3d 177 Fla. 2016); Wright v. State, 213 So. 3d 881 (Fla. 2016); Knight v. State, 211
So. 3d (Fla. 2016).
This Court has repeatedly recognized that where a state court judgment rests
on non-federal grounds, where the non-federal grounds are an adequate basis for
the ruling independent of the federal grounds, “our jurisdiction fails.” Fox Film
Corp. v. Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038
(1983). See also, Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming
that this Court has no jurisdiction to review a state court decision on certiorari
review unless a federal question was raised and decided in the state court below);
25
Street v. New York, 394 U.S. 576, 581-82 (1969) (same). If a state court’s decision
is based on separate state law, this Court “of course, will not undertake to review
the decision.” Florida v. Powell, 559 U.S. 50, 57 (2010).
Florida’s retroactivity analysis is a matter of state law. This fact alone
militates against the grant of certiorari in this case. It should also be noted that this
Court has repeatedly denied certiorari to review the Florida Supreme Court’s
retroactivity decisions following the issuance of Hurst v. State. See, e.g., Jones v.
State, 234 So. 3d 545 (Fla.), cert. denied, 2018 WL 1993786 (U.S. June 25, 2018);
Cole v. State, 234 So. 3d 644 (Fla.), cert. denied, 2018 WL 1876873 (U.S. June 18,
2018); Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S.Ct. 1164 (2018);
Zack v. State, 228 So. 3d 41 (Fla. 2017); cert. denied, 2018 WL 1367892 (U.S.
June 18, 2018); Kaczmar v. State, 228 So. 3d 1 (Fla. 2017), cert. denied, 138 S.Ct.
1973 (2018); Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S.Ct. 41
(2017); Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S.Ct. 513
(2017); Lambrix v. State, 227 So. 3d 112 (Fla.), cert. denied, 138 S.Ct. 312 (2017);
Hannon v. State, 228 So. 3d 505 (Fla.), cert. denied, 138 S.Ct. 441 (2017).
There is no conflict between the Florida Supreme Court’s decision and this
Court’s Sixth, Eighth or Fourteenth Amendment jurisprudence. Nor is there any
conflict between the Florida Supreme Court’s decision and that of any other
26
federal appellate or state supreme court. Finally, there is no underlying
constitutional error under the facts of this case. Certiorari review should be denied.
III. The Florida Supreme Court’s ruling that a valid waiver of a penalty phase
jury is also an effective waiver of any right to relief under Hurst v. State does
not violate the Fifth, Sixth, Eighth, or the Fourteenth Amendments.
No conflict or unsettled question of federal law is presented in Quince’s
petition. Instead, he seeks certiorari review of the Florida Supreme Court’s factbased determination regarding the validity of his knowing and voluntary waiver of
a penalty phase jury. He asserts that his waiver was invalid because Florida has
made procedural changes that did not exist at the time of his waiver. Specifically,
Quince argues that his waiver was not knowing, voluntary, and intelligent because
at the time of his waiver, the Sixth Amendment right to unanimous jury factfinding
on aggravating circumstances did not exist in Florida and therefore he cannot have
waived such “nonexistent” right. The Florida Supreme Court has determined,
however, that the changes in question do not apply to a defendant who waived his
right to jury fact-finding, a determination that does not rise to the level of a federal
constitutional violation.
Despite his argument to the contrary, the Florida Supreme Court found
Quince knowingly, voluntarily, and intelligently waived a penalty phase jury and
Florida’s own precedent precluded a grant of relief. Twilegar v. State, 228 So. 3d
550 (Fla. 2017). See also Mullens v. State, 197 So. 3d 16, 38-40 (Fla. 2016), cert.
27
denied, 137 S.Ct. 672 (2017). Quince cites to Halbert v. Michigan, 545 U.S. 605
(2005) in support of his proposition that at the time he waived the penalty phase
jury, he had no recognized Sixth Amendment right to binding jury findings that he
could elect to forego. The decision in Halbert is inapplicable to his case. Halbert
is distinguishable because it involved the prohibition of the appointment of counsel
to indigent defendants who pleaded guilty or no contendere. This Court noted that
when Halbert entered his plea, he had no recognized right to appointed counsel that
he could elect to forgo. Id. at 623. The waiver in Halbert was an implicit waiver of
appellate counsel that flowed from his plea rather than an explicit waiver to have a
jury participate in sentencing as is the case with Quince, who emphatically did not
want a jury penalty phase. Furthermore, Halbert was not informed that his plea
would result in a complete denial of appointed appellate counsel whereas Quince
was told by the trial court that his waiver would prevent him from appealing the
issue. Quince was fully aware of what he was doing when he knowingly waived
the right to have a jury take part in any of the sentencing procedure. The Hurst
decision does not change the fact that Quince did not want a jury present for the
penalty phase.
Moreover, as the dissent in Halbert points out, this Court’s cryptic statement
implying that rights that are “not recognized” cannot be waived “cannot possibly
mean that only rights that have been explicitly and uniformly recognized by statute
28
or case law may be waived.” Halbert, 545 U.S. at 640 (Thomas, J. dissenting).
Instead, defendants can and do waive rights whose existence is unsettled. Id.
Quince’s argument is premised on the notion that the “right” announced in
Hurst is one that did not previously exist, as in Halbert. However, that is not the
case, because Quince always possessed the right to have a jury render an advisory
recommendation as to what the appropriate sentence should be in his case. See §
921.141(2), Fla. Stat. (1980) (requiring the jury to render an advisory sentence
based upon whether sufficient aggravating circumstances exist to justify imposition
of the death penalty). Thus, the right announced in Hurst was not a new right that
did not previously exist. Instead, Hurst reflected a mere change in procedure, and
held that a defendant could not be sentenced to death based upon a judge’s
factfinding alone. See Hurst, 136 S.Ct. at 624 (holding Florida’s death sentencing
scheme unconstitutional, because it allowed the judge alone to find the existence of
an aggravating circumstance).
The right to jury fact-finding is waivable. Blakely v. Washington, 542 U.S.
296, 309 (2004). A defendant who waives a jury trial has waived his Sixth
Amendment right to a jury trial, which is the basis for Hurst v. Florida and Hurst v
State in the first place. Cf. Shepard v. United States, 544 U.S. 13, 16 (2005) (noting
that sentencing a defendant based on facts that the defendant assented to during the
plea colloquy does not violate Apprendi). Quince waived all jury involvement—
29
constitutionally mandated or not—in determining his penalty. Even if for
arguments sake, it was believed that Quince acted only because he did not know he
was entitled to unanimity, this does not mandate a conclusion that his waiver was
invalid. Subsequent changes in the law do not render a prior waiver invalid. As this
Court has explained, a defendant who waives a proceeding or right does so under
the current law, and those waivers remain valid regardless of later developments in
the law. A defendant who voluntarily waives his Sixth Amendment right to jury
trial is bound by his choice, even where his decision was made in reliance on a
procedural rule later found to be unconstitutional. In Brady v. United States, 397
U.S. 742 (1970) the defendant was charged under a federal law (18 U.S.C. §
1201(a)) that authorized a death sentence if the jury recommended it. Because §
1201(a) gave the judge no authority to impose death in the absence of a jury’s
specific findings, it naturally encouraged defendants to waive jury trial, and Brady
did exactly that- he waived his Sixth Amendment right to a jury and entered a plea.
One year later, after this Court struck down § 1201(a) as unconstitutional, Brady
sought to withdraw his plea and argued that his waiver could not have been
voluntary under the circumstances. This Court disagreed—the record showed that
Brady might have had other, unrelated reasons for entering a waiver, and Brady’s
voluntary waiver of a constitutional right was consistent with the law in effect at
30
the time. Such a plea, “does not become vulnerable because later judicial decisions
indicate that the plea rested on a faulty premise.” Id. at 757.
Similarly, in McMann v. Richardson, 397 U.S. 759, 773-74 (1970), the
defendant argued that his plea was involuntary when a new decision regarding
coerced confessions was issued by this Court. This Court rejected the argument
that subsequent changes in the law rendered an earlier plea involuntary and
explained that when a defendant waives his right to a jury trial “he does so under
the law then existing.” Id. at 774. This Court observed that, regardless of whether a
defendant might have “pleaded differently” had the later decided cases been the
law at the time of the plea, “he is bound by his plea.” Id. This Court noted the
damage that would be wrought on the finality of pleas if courts permitted later
changes in the law to be a basis for claiming a plea was involuntary. Id. See also,
United States v. Ruiz, 536 U.S. 622, 630 (2002) (stating that “the Constitution, in
respect to a defendant’s awareness of relevant circumstances, does not require
complete knowledge of the relevant circumstances, but permits a court to accept a
guilty plea, with its accompanying waiver of various constitutional rights, despite
various forms of misapprehension under which a defendant might labor” including
a defendant’s failure “to anticipate a change in the law regarding relevant
punishments”).
31
The Halbert Court did not overrule Brady, Richardson, or Ruiz. Moreover,
the waiver logic of Halbert does not apply to this case. Halbert involved a totally
unknown right. The right to a jury at the penalty phase in Florida was not unknown
at the time of the waiver. There was no doubt that a capital defendant in 2001 was
entitled to a jury at the penalty phase under the explicit text of Florida’s death
penalty statute. While Hurst v. Florida and Hurst v. State expanded those rights,
the right to a jury existed prior to either decision. A defendant may not claim a
waiver is “unknowing” based on future changes in the law under the Florida
Supreme Court’s precedent. Mullens, 197 So. 3d at 16; Rodgers v. State, 242 So.
3d 276 (Fla. 2018) (holding that the Hurst decisions do not apply to defendants,
like Rodgers, who waive a penalty phase jury). This Court has rejected it as well.
McMann v. Richardson, 397 U.S. 759, 773-74 (1970).
Furthermore, voluntariness of the waiver is determined under the law and
knowledge that exists at the time. Criminal defendants can waive their
constitutional rights so long as they knowingly, intelligently, and voluntarily do so.
Iowa v. Tovar, 541 U.S. 77, 78 (2004). It is enough that an individual understands
the waived right “in general . . . even though the defendant may not know the
specific detailed consequences of invoking it.” Tovar, 541 U.S. at 92. To escape
the consequence of waiving one’s constitutional rights there must be affirmative
indications that, under the relevant circumstances, the waiver was unknowing or
32
involuntary. United States v. Mezzanatto, 513 U.S. 196, 209 (1995). In this case,
prior to the plea colloquy, the trial court spoke with Quince regarding the
ramifications of his decision to waive his right to a sentencing jury. During the plea
colloquy, the trial court again questioned Quince as to whether he understood that
he had the right to have a jury render a recommendation as to what sentence should
be imposed, and whether Quince fully understood that he was agreeing to waive
his right to a sentencing jury. Quince advised that he understood the nature of the
right that he was giving up, that he was not forced or coerced into waiving a
sentencing jury, and was aware that the State would advocate that he be sentenced
to death.
Quince’s waiver is a sufficient bar to Hurst relief, regardless of any future
changes in the law, under both the Florida Supreme Court and this Court’s
precedent. If this Court were to accept review, the resolution of the case would turn
upon whether the state court correctly interpreted the facts surrounding Quince’s
waiver. In other words, this case is strongly fact-based and does not implicate any
broad questions of constitutional law that have not already been resolved long ago.
See, e.g., Blakely v. Washington, 542 U.S. 296, 309 (2004) (Sixth Amendment
right to jury fact finding is waivable). Indeed, the question raised by Quince may
only be resolved by assessing the correctness of the trial court’s factual findings.
Accordingly, certiorari review is inappropriate here.
33
The waiver of the penalty phase jury remains valid in the wake of Hurst and
consequently, Quince’s waiver was not rendered involuntary due to the subsequent
decision in Hurst. Here, Quince waived the right to a sentencing jury and requested
that the trial judge decide the appropriate sentence in his case. Like the situation in
Mullens and Rodgers, Quince should not be able to subvert the right to jury
factfinding by knowingly waiving that right and then, over twenty years later,
complain that subsequent developments in the law have undermined his sentence.
Quince’s explicit waiver of a penalty phase jury is a waiver of his pre-trial Ring
(and, by extension, Hurst) claim.
Quince does not provide any compelling reason for this Court to review his
case. Sup. Ct. R. 10. Cases that do not divide the federal or state courts or that do
not present important, unsettled questions of federal law usually do not merit
certiorari review. Rockford Life Insurance Co. v. Illinois Dept. of Revenue, 482
U.S. 182, 184, n.3 (1987). No conflict or unsettled question of federal law is
presented in the instant petition. He challenges only the application of this Court’s
well-established principles to the Florida Supreme Court’s decision. As Quince
does not demonstrate any compelling reasons for this Court to exercise its
certiorari jurisdiction under Rule 10, this Court should deny the petition.
34
CONCLUSION
Based on the foregoing, Respondent respectfully requests that this Court
deny the petition for writ of certiorari.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
Tallahassee, Florida
s/ Doris Meacham
DORIS MEACHAM*
Assistant Attorney General
Florida Bar No. 63265
*Counsel of Record
Office of the Attorney General
444 Seabreeze Blvd., Suite 500
Daytona Beach, Florida 32118
Telephone: (386) 239-4990
Facsimile: (385) 226-0457
capapp@myfloridalegal.com [and]
doris.meacham@myfloridalegal.com
COUNSEL FOR RESPONDENT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 16th day of July, 2018, a true and correct
copy of the foregoing RESPONDENT’S BRIEF IN OPPOSITION has been
submitted using the Electronic Filing System. I further certify that a copy has been
sent by U.S. mail to: Maria Perinetti, Law Office of the Capital Collateral Regional
Counsel – Middle Region, 12973 N. Telecom Parkway, Temple Terrace, Florida
33637.
s/ Doris Meacham
COUNSEL FOR RESPONDENT
35
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.