Petition for Writ of Certiorari — Gary W. Sutton, Petitioner v. Tennessee

Supreme Court briefJun 14, 2018

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IN THE SUPREME COURT OF THE UNITED STATES

GARY WAYNE SUTTON,

Petitioner

STATE OF TENNESSEE,

Respondent

On Petition for Writ of Certiorari

To The Tennessee Supreme Court

PETITION FOR WRIT OF CERTIORARI

SUSANNE BALES

AsSISTANT FEDERAL COMMUNITY DEFENDER

Counsel of Record for Petitioner

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

800 S. GAY STREET, SUITE 2400

KNOXVILLE, TN 37929

PHONE: (865) 637-7979

FACSIMILE: (865) 637-7999

SUSANNE_BALES@FD.ORG

JUNE 14, 2018

CAPITAL CASE

QUESTION PRESENTED

In Hurst v. Florida, 136 S. Ct. 616 (2016), this Court held that the Sixth

Amendment mandates that every fact or determination necessary to support a

death sentence must be made by a jury. In Mr. Sutton's case, the trial court

instructed the jury that Mr. Sutton had prior violent felony convictions that would

support a statutory aggravating circumstance. This was the sole aggravating

circumstance in the case. Based on the trial court's instruction, the jury found it

applicable and imposed death. Sutton timely sought relief under Hurst, arguing the

trial court, not the jury, found the key parts of the aggravating circumstance. The

state court denied relief, characterizing the trial court's determination as a

permissible legal finding.

These facts give rise to this question: May a State restrict the Sixth

Amendment's application to only part of an aggravating circumstance?

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ i

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

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

PETITION FOR A WRIT OF CERTIORARI ............................................................... 1

OPINIONS BELOW ...................................................................................................... l

JURISDICTION ............................................................................................................ 1

RELEVANT CONSTITUTIONAL PROVISIONS ....................................................... 1

STATEMENT OF THE CASE ...................................................................................... 2

REASONS FOR GRANTING WRIT ............................................................................. 4

The Sixth Amendment cannot apply partially to an aggravating

circumstance ....................................................................................................... 4

The Holding in Hurst v. Florida ................................................. ............ .4

Hurst applies retroactively .................................................................... 10

CONCLUSION ............................................................................................................ 16

INDEX OF APPENDIX CONTENTS:

Appendix A: Blount County Circuit Court Order Denying Motion to Reopen

(Jun. 12, 2017) ............................................................................................. Appx. 1-17

Appendix B: Tennessee Court of Criminal Appeals Order Denying Permission to·

Appeal the Denial of the Motion to Reopen (Sept. 13, 2017)

.................................................................................................................... Appx. 18-21

Appendix C: Tennessee Supreme Court Order Denying Application for Permission

to Appeal the Denial of the Motion to Reopen (Jan. 18, 2018) .................... Appx. 22

TABLE OF AUTHORITIES

Cases

Addington v. Texas,

441 U.S. 418 (1979) ................................................................................................. 8

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ................................................................................................. 7

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................................................................... 14

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................................................................... 14

Hankerson v. North Carolina,

432 U.S. 233 (1977) ............................................................................................... 15

Hurst v. Florida,

136 S. Ct. 616 (2016) ..................................................................................... passim

Hurst v. State,

202 So. 3d 40 (Fla. 2016) ................................................................................ 11, 12

In re Winship,

397 U.S. 358 (1970) ........................................................................................... 8, 15

Ivan V. v. New York City,

407 U.S. 203 (1972) ............................................................................................... 15

Krieger v. United States,

842 F.3d 490 (7th Cir. 2016) ................................................................................. 11

Raufv. State,

145 A.3d 430 (Del. 2016) .......................................................................... 12, 13, 15

Ring v. Arizona,

536 U.S. 584 (2002) ....................................................................................... passim

Schriro v. Summerlin,

542 U.S. 348 (2004) ................................................................................... 10, 11, 14

State v. Dellinger,

79 S.W.3d 458 {Tenn. 2002) ........................................................ ;.......................... 3

State v. Sutton,

No. E1997-00196-CCA-R3-DD, 2001 WL 220186 (Tenn. Crim. App. Mar. 7, 2001)

································································································································ 2-3

111

Sutton v. Bell,

683 F. Supp. 2d 640 (E.D. Tenn. 2010) .................................................................. 3

Sutton v. Bell,

No. 3:06-cv-388, 2011WL1225891 (E.D. Tenn. 2011) .......................................... 3

Sutton v. Carpenter,

617 F. Appx. 434 (6th Cir. 2015) ............................................................................ 3

Sutton v. State,

No. E2004-02305-CCA-R3-PD, 2006 WL 1472542 (Tenn. Crim. App. May 30,

2006) ························································································································ 3

Whorton v. Bockting,

549 U.S. 406 (2007) .......................................................................................... 13-14

Statutes and Rules

28 U.S.C. § 1257 ...................................................................................................... 1

Del. Code Ann. tit. 11, § 4209 .......................................................................... 12-13

Fla. Stat. § 921.141 ................................................................................................. 5

Tenn. Code Ann. § 39-13-204 (1992) ...................................................................... 8

Tenn. Code Ann. § 40-30-101, et seq. . .................................................................... 3

Tenn. Sup. Ct. R. 28, § lO(B) .................................................................................. 1

Constitutional Provisions

Tenn. Const. art. I,§ 8 ............................................................................................... 7

Tenn. Const. art. I,§ 9 ............................................................................................... 7

Tenn. Const. art. I, § 16 ............................................................................................. 7

Tenn. Const. art. I, § 17 ............................................................................................. 7

Tenn. Const. art. XI, § 16 .......................................................................................... 7

U.S. Const. amend. VI ..................................................................................... passim

U.S. Const. amend. V ................................................................................................ 7

U.S. Const. amend. VIII ............................................................................................ 7

U.S. Const.· amend. XIV ......................................................................................... 1, 7

PETITION FOR A WRIT OF CERTIORARI

Petitioner Gary Wayne Sutton respectfully petitions this Court for a writ of

certiorari to review the opinion of the Tennessee Supreme Court.

OPINIONS BELOW

On January 6, 2017, Sutton moved to reopen his post-conviction proceedings

based upon Hurst v. Florida, 136 S. Ct. 616 (2016). The motion alleged that the trial

court violated Mr. Sutton's Sixth Amendment rights when it instructed the jury

that the prior violent felony aggravator existed.

On June 12, 2017, the trial court denied the motion to reopen. (Appendix A).

Sutton timely sought permission to appeal to the Tennessee Court of

Criminal Appeals pursuant to Tennessee Supreme Court Rule 28, § lO(B). On

September 13, 2017, the intermediate court denied the appeal. (Appendix B). On

January 18, 2018, the Tennessee Supreme Court denied review. (Appendix C). This

Court granted an extension of time within which to file a petition for writ of

certiorari on April 5, 2018. This petition is timely filed.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1257.

RELEVANT CONSTITUTIONAL PROVISIONS

The Fourteenth Amendment to the United States Constitution provides in

pertinent part, " ... nor shall any State deprive any person of life, liberty, or

property, without due process oflaw."

The Sixth Amendment to the United States Constitution provides, in

relevant part, "In all criminal prosecutions, the accused shall enjoy the right to ...

have the assistance of counsel for his defense."

STATEMENT OF THE CASE

Mr. Sutton pleaded not guilty to a one-count indictment charging first degree

murder and proceeded to a jury trial. After conviction, his case moved to the

sentencing phase. The single aggravating circumstance was that he had prior felony

convictions that involved violent conduct.

The trial court instructed the jury:

Tennessee law provides that no sentence of death shall be

imposed by a jury but upon a unanimous finding that the state has

proven beyond a reasonable doubt the existence of one (1) or more

aggravating circumstances, which shall be limited to the following:

The defendant was previously convicted of one (1) or more

felonies, other than the present charge, the statutory elements of which

involve the use of violence to the person. As to the defendant Gary

Wayne Sutton the State is relying on the crimes of aggravated assault

in Cobb County Georgia and first degree murder in Sevier County

Tennessee which are felonies involving the use or threat or violence to

the person.

(Sutton Trial Tech. Rec. Vol. 2 p. 245) (emphasis added).

The jury did not consider the conduct underlying the convictions. Id. Instead,

pursuant to the trial judge's instructions, the jury returned a verdict finding the

prior violent felony aggravating circumstance and imposed death.

On direct appeal, the Tennessee Court of Criminal Appeals and the

Tennessee Supreme Court affirmed Mr. Sutton's conviction and sentence. State v.

Sutton, No. E1997-00196-CCA-R3-DD, 2001WL220186 (Tenn. Crim. App. Mar. 7,

2001); State v. Dellinger, 79 S.W.3d 458 (Tenn. 2002), cert. denied, 537 U.S. 1090

(2002).

Pursuant to Tennessee Code Annotated § 40-30-101 et seq., Mr. Sutton filed a

Pro Se Petition for Post-Conviction Relief on March 3, 2003 (PC Tech. Rec. Vol. 1,

pp. 1-15), and thereafter amended his petition with the assistance of appointed

counsel on June 2, 2003 (PC Tech. Rec. Vol. 1, pp. 26-40) and March 31, 2004 (PC

Tech. Rec. Vol. 1, pp. 55-56). After holding an evidentiary hearing, the trial court

denied relief on September 1, 2004. (PC Tech. Rec. Vol. 1, pp. 103-13). The Court of

Criminal Appeals affirmed the judgment of the post-conviction trial court. Sutton v.

State, No. E2004-02305-CCA-R3-PD, 2006 WL 1472542 (Tenn. Crim. App. May 30,

2006).

The federal courts denied habeas corpus relief. Sutton v. Bell, 683 F. Supp. 2d

640 (E.D. Tenn. 2010); Sutton v. Bell, No. 3:06-cv-388, 2011WL1225891 (E.D.

Tenn. 2011); Sutton v. Carpenter, 617 Fed. Appx. 434 (6th Cir. 2015), cert. denied,

No. 15-918, 136 S. Ct. 1494 (Mar. 28, 2016).

On January 12, 2016, the United States Supreme Court issued its opinion in

Hurst v. Florida, holding that every finding necessary to support imposition of a

death sentence must be made by a jury ..

On January 6, 2017, Mr. Sutton filed a motion to reopen his petition for postconviction relief, alleging his death sentence is unconstitutional because the trial

court instructed the jury that the prior violent felony conviction aggravating

circumstance existed in Mr. Sutton's case.

On June 12, 2017, the trial court entered an order denying the motion to

reopen. (Appx. 1-17). The court concluded "the trial court's determination that Mr.

Sutton's prior offenses involved the use or threat of violence to the person was a

legal determination which did not violate Petitioner's rights under the Sixth

Amendment or Hurst." (Appx. 14).

On September 13, 2017, the Tennessee Court of Criminal Appeals denied

permission to appeal. (Appx. 18-21). The intermediate court affirmed the reasoning

that the determination of whether prior convictions were for violent offenses was a

legal determination that was permissible for the judge, not the jury, to make. (Appx

20-21).

The Tennessee Supreme Court denied review on January 18, 2018. (Appx.

Appx. 22).

REASONS FOR GRANTING WRIT

The Sixth Amendment cannot apply partially to an aggravating

circumstance.

A. The Holding in Hurst v. Florida.

On January 12, 2016, the United States Supreme Court issued its opinion in

Hurst v. Florida, 136 S. Ct. 616 (2016), holding that any determination which

authorizes the imposition of the death penalty must be made by a jury. Justice

Sotomayor began Hurst by recalling the fundamental precept of the Sixth

Amendment: "any fact that 'expose[s] the defendant to a greater punishment than

that authorized by the jury's guilty verdict' is an 'element' that must be submitted

to a jury." 136 S. Ct. at 621 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494

(2000)). This Court explained that in all criminal prosecutions, the Sixth

Amendment guarantees the right to an "impartial jury." Id. (quoting U.S Const.

amend. XI) (internal quotation marks omitted). The Court further explained, "This

right, in conjunction with the Due Process Clause, requires that each element of a

crime be proved to a jury beyond a reasonable doubt." Id. (citing Alleyne v. United

States, 570 U.S._, 133 S. Ct. 2151, 2156 (2013)). Any finding that subjects the

defendant to a greater punishment than what is permitted by the jury's guilty

verdict alone must be submitted to the jury. Id.

In light of these principles, this Court found Florida's death penalty statute

unconstitutional. Under the now defunct Florida statute, the jury rendered a

verdict, Fla. Stat.§ 921.141(2), but the death penalty could not be imposed until the

trial court, "after weighing the aggravating and mitigating circumstances,"

determines death was the appropriate sentence. Hurst, 136 S. Ct. at 620 (quoting

Fla. Stat. § 921.141(3)) (internal quotation marks omitted). This Court held that

placing the decision as to whether mitigating circumstances are outweighed by

aggravating circumstances in the hands of the judge violates the Sixth Amendment

requirement that the jury make the "necessary factual finding[s]" to support

imposition of the death sentence. Hurst, 136 S. Ct. at 622.

This Court recognized that it was reversing a line of its own precedent:

We now expressly overrule Spaziano and Hildwin in relevant

part.

Spaziano and Hildwin summarized earlier precedent to

conclude that "the Sixth Amendment does not require that the specific

findings authorizing the imposition of the sentence of death be made

by the jury." Hildwin, 490 U.S. [638, 640-41 (1989)]. Their conclusion

was wrong, and irreconcilable with Apprendi.

Time and subsequent cases have washed away the logic of

Spaziano and Hildwin. The decisions are overruled to the extent they

allow a sentencing judge to find an aggravating circumstance,

independent of a jury's factfinding, that is necessary for imposition of

the death penalty.

Hurst, 136 S. Ct. at 623-24 (emphasis added).

This Court rejected the State of Florida's argument that the jury necessarily

found the aggravating circumstance and thus the Constitution was satisfied. This

Court explained, "[t]he State fails to appreciate the central and singular role the

judge plays under Florida law." Hurst, 136 S. Ct. at 622. Where the "trial court

alone" made findings regarding the determinations necessary to impose death, the

trial court invaded the jury's province. Id. (emphasis in original).

If a feature or characteristic of the offense or of the defendant boosts the

possible punishment, that feature or characteristic is an "element" that must be

found by the jury. It falls within the ambit of the Sixth Amendment and must be

found by a jury beyond a reasonable doubt. Hurst, 136 S. Ct. at 621.

In Ring v. Arizona, the Supreme Court held that if an aggravating

circumstance renders a defendant subject to the death penalty, it is the '"functional

equivalent of an element of a greater offense' ... [and] the Sixth Amendment

requires that [it] be found by a jury." 536 U.S. 584, 609 (2002) (quoting Apprendi,

530 U.S. at 494, n. 12). While Ring

extended the Sixth Amendment to the finding. of

aggravating circumstances, it acknowledged the use of "hybrid" capital sentencing

schemes in which a jury renders a verdict but the judge makes the findings

necessary to impose the ultimate sentence. Ring, 536 U.S. 608 n.6.

Hurst makes clear that a hybrid sentencing system, where the judge makes

certain determinations necessary to impose the death penalty and the jury makes

other necessary determinations, is unconstitutional. Hurst recognized the error of

logic in holding that the Sixth Amendment applies to some findings that increase

the punishment but not to other sentence-enhancing findings. Hurst recognized

there is no rational way to conclude that the Sixth Amendment applies to certain

findings but not others. The Sixth Amendment cannot partially apply to an

aggravating circumstance.

In Sutton's case, the state court fragmented the protections afforded by the

Sixth Amendment when it held that the trial judge could determine the prior

convictions were based on violent conduct. 1

When the trial court instructed the jury the prior convictions involved

violence, the judge made a determination that the aggravating factor existed. This

determination exposed Sutton to a greater punishment than that authorized by a

guilty verdict and violated Sutton's Fifth, Sixth, Eighth, and Fourteenth

Amendment rights under the United States Constitution, and his rights under

Article I,§§ 8, 9, 16 and 17, and Article XI,§ 16 of the Tennessee Constitution.

Hurst, supra.

The rule of Almendarez-Torres v. United States, 523 U.S. 224 (1998), which held

that the fact of a prior conviction may be made by a judge is not implicated here

because the finding the judge made here was that the conduct supporting the

offenses involved the use or threat of violence. That finding is qualitatively different

from the finding of the fact of a conviction.

As Hurst makes clear, the Constitution requires that all findings necessary to

support imposition of the death penalty must be made by the jury. Hurst's holding

could not be more clear: prior case law "[is] overruled to the extent they allow a

sentencing judge to find an aggravating circumstance, independent of a jury's

factfinding, that is necessary for imposition of the death penalty" Hurst, 136 S. Ct.

at 624. Under the plain language of Hurst, the trial court violated Mr. Sutton's

Constitutional rights when it instructed the jury his prior convictions qualified as

violent felonies.

The state court's conclusion that the trial court made a legal finding does not

accurately reflect the statute Mr. Sutton was sentenced under. The statute in place

at the time of Mr. Sutton's crime proyides that if the jury determined the State had

proved beyond a reasonable doubt an aggravating circumstance and that it

outweighed the mitigating evidence beyond a reasonable doubt, the sentence "shall

be death." Tenn. Code Ann. § 39-13-204(g)(l)(A)(B) (1992) (emphasis added). The

legislature included the finding that the prior convictions are for crimes of violence

to be made by the jury. Further, the jury is to make this finding beyond a

reasonable doubt. Id. "[A] standard of proof represents an attempt to instruct the

factfinder concerning the degree of confidence our society thinks he should have in

the correctness of factual conclusions for a particular type of adjudication." In re

Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring); see also Addington v.

Texas, 441 U.S. 418, 423 (1979). Although the lower courts dismissed the Hurst

claim by characterizing the trial court's actions merely as a legal determination,

Tennessee's death penalty statute in effect, as well as Tennessee controlling law,

make it clear the trial court made fact findings necessary to support the

aggravating circumstance.

By couching the judge's finding as a permissible legal finding, the lower

courts failed to "appreciate the central and singular role the judge play[ed]." Hurst,

136 S. Ct. at 622. Once the trial court instructed the jury the prior convictions were

for violent felonies, there was nothing else for the jury to find. Just as in Hurst, the

trial court alone impermissibly found the aggravating circumstance existed. Id. The

judge did not instruct the jury on the meaning of the word "violence," which would

have been necessary for the jury to determine whether the aggravating

circumstance existed.

Further, in Hurst, the Supreme Court explained that any determination that

'"expose[s] the defendant to a greater punishment than that authorized by the jury's

guilty verdict' is an 'element' that must be submitted to a jury." Hurst, 136 S. Ct. at

621 (quoting Apprendi, 530 U.S. at 494). Here, the determination that Mr. Sutton

had prior violent felony convictions exposed him to a greater punishment than that

authorized by the jury's finding of guilt. Thus, the determination should have been

made by the jury.

Describing a finding as a "legal" determination does not shield it from the

Sixth Amendment. As Justice Scalia reasoned in his concurrence in Ring, "[A]ll

facts essential to imposition of the level of punishment that the defendant

receives-whether the statute calls them elements of the offense, sentencing factors,

or Mary Jane-must be found by the jury beyond a reasonable doubt." Ring, 536

U.S. at 610 (Scalia, J., concurring).

Sutton's death sentence is based on judicial findings in violation of the Sixth

Amendment. Relief is warranted.

B. Hurst applies retroactively.

The Hurst rule makes all necessary facts-including the fact that

aggravation outweighs mitigation-"essential to the death penalty" and thus

findings that must be made by a jury. Schriro v. Summerlin, 542 U.S. 348, 354

(2004). This rule does more than change procedures; it holds that these facts are

elements which must be found by a jury, and it therefore prevents a court from

imposing a sentence in excess of that authorized by a jury's findings. This is a

substantive holding. See id. ("A decision that modifies the elements of an offense is

normally substantive rather than procedural."). As a substantive change in the law

which puts matters outside the scope of the State's power, Hurst should apply

retroactively.

In Summerlin, the Court held that "this Court's making a certain fact

essential to the death penalty ... would be substantive." 542 U.S. at 354 (emphasis in

original). Explaining that the rule in Ring v. Arizona was procedural (and not

retroactive) the Court reasoned that, because the State had already made statutory

aggravators elements for federal constitutional purposes, the Ring rule did not

modify elements of an offense; it simply affirmed the allocation of decision-making

authority to thejury. 2 Id. The Hurst rule, on the other hand, newly includes the fact

that "there are insufficient mitigating circumstances to outweigh the aggravating

circumstances" among the predicates for imposing the death penalty. Hurst, 136 S.

Ct. at 621-22 (quoting Fla. Stat. 921.141(3)) (internal quotation marks omitted).

This portion of Hurst adds a consideration (or element) that must be determined by

the jury. See, e.g., Krieger u. United States, 842 F.3d 490, 499-500 (7th Cir. 2016)

(holding that Burrage v. United States, 571 U.S. 204, 134 S. Ct. 881 (2014),

announced a new substantive rule that is not principally about who decides a

question but rather what must be proved).

The Hurst rule newly defines the facts that increase a sentence to include the

death penalty as all facts necessary to impose a death sentence. Accordingly, all

such facts are elements that then must be found by a jury beyond a reasonable

doubt. Because it primarily directs what must be found, the Hurst rule is

substantive. See Summerlin, 542 U.S. at 354.

The principal nature of the Hurst rule is illustrated by the Florida Supreme

Court's decision on remand where it found that the procedural jury-sentencing rule

follows the primary Sixth Amendment determination of what constitutes elements.

Hurst v. State, 202 So. 3d 40, 53 (Fla. 2016). The state supreme court explicitly

rejected the State's argument that Hurst v. Florida "only requires that the jury

Ring held that, under Apprendi, a defendant is entitled to a jury determination of

aggravating factors. Ring, 536 U.S. at 608.

unanimously find the existence of one aggravating factor and nothing more." Hurst,

202 So. 3d at 53 n.7. The Court explained:

Hurst v. Florida made clear that the jury must find "each fact necessary

to impose a sentence of death," 136 S.Ct. at 619, "any fact that expose[s]

the defendant to a greater punishment," id. at 621, "the facts necessary

to sentence a defendant to death," id., "the facts behind" the

punishment, id., and "the critical findings necessary to impose the death

penalty," id. at 622 (emphasis added).

Id. Because Florida law required a finding that aggravating circumstances were

sufficient for a death sentence and that they outweighed mitigating circumstances

before a death sentence could be imposed, those determinations were elements

within the Sixth Amendment's scope. Id.

Also following Hurst, the Delaware Supreme Court found its State's death

penalty statute, where the judge made independent findings and weighed

aggravating and mitigating circumstances, unconstitutional. Raufv. State, 145 A.3d

430, 433-34 (Del. 2016). In Rauf, the state court overruled its prior decision, issued

following Ring v. Arizona, that the same statutory scheme was constitutional. Id. at

486 (Holland, J., concurring) (noting overruling of Brice v. State, 815 A.2d 314 (Del.

2003)).

Delaware's now-defunct capital punishment statute, Del. Code Ann. tit. 11, §

4209, provided that upon a conviction of first-degree murder, the jury unanimously

determined, beyond a reasonable doubt, the presence of an aggravating

circumstance.

Rauf, 145 A.3d at 433-34; id. at 457 (Strine, C.J.,

concurring). Once it

did so, however, the trial judge made additional factual findings authorizing a death

sentence. Id. The statute provided that "the Court ... shall impose a sentence of

death if the Court finds by a preponderance of the evidence ... that the aggravating

circumstances found by the Court to exist outweigh the mitigating circumstances

found by the Court to exist." Id. at 433 fn.3 (quoting Del. Code Ann. tit. 11, §

4209(d)(l) (internal quotation marks omitted). The Delaware Supreme Court

concluded that this determination was essential to the sentence and therefore must

be made by the jury beyond a reasonable doubt. Id. at 434; see also id. at 485, 48687 (Holland, J., concurring) ("[T]he weighing determination in Delaware's statutory

sentencing scheme is a factual finding necessary to impose a death sentence.").

Justice Holland's concurring opinion explained the broader rule in Hurst:

Although the United States Supreme Court holding in Hurst only

specifically invalidated a judicial determination of aggravating

circumstances, it also stated unequivocally that the jury trial right

recognized in Ring now applies to all factual findings necessary to

impose a death sentence under a state statute.

Rauf, 145 A.3d at 487.

Hurst dramatically changed capital sentencing law by including essential,

Constitutional safeguards which promote fundamental fairness and accuracy in

capital sentencing.

Hurst's unequivocal statement that the Sixth Amendment right to a jury

applies specifically to capital sentencing represents a sweeping and dramatic

change in the law. The Hurst rule, by mandating a jury finding of all facts necessary

to impose the death penalty, "alter[ed] our understanding of the bedrock procedural

elements essential to the fairness of a [capital sentencing] proceeding." See Whorton

v. Bockting, 549 U.S. 406, 421 (2007) (quoting Sawyer v. Smith, 497 U.S. 227, 242

(1990)) (internal quotation marks omitted). Indeed, the Court's earlier decision in

Ring v. Arizona "ha[d] nothing to do with jury sentencing." 536 U.S. at 612 (Scalia,

J., concurring). The decision in Hurst rendered a fundamental change in death

penalty jurisprudence.

Applying jury trial rights to capital sentencing necessarily increased fairness

and reliability. "[T]rial by jury in criminal cases is fundamental to the American

scheme of justice[.]" Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (holding the

Sixth Amendment right to trial by jury is guaranteed by the Fourteenth

Amendment to defendants tried in state courts). As initially conceived regarding a

determination of guilt, a critical function of a jury is to protect against arbitrary

rule by unanimously confirming every accusation leveled against a defendant. Id. at

151-52. Ajury is "necessary to protect against unfounded criminal charges ... and

against judges too responsive to the voice of higher authority." Id. at 156. A jury

functions, also, to afford the same protections with respect to legal penalties. 3

Apprendi, 530 U.S. at 482-85. But, before Hurst was decided, all facts essential to

imposition of the death penalty-including the ultimate life-or-death decision-were

not considered elements deserving of Sixth Amendment jury trial rights. The

determination that a jury must decide all necessary facts in capital cases,

The Court in Summerlin, 542 U.S. at 355-58, indicated that the requirement that

juries and not judges find aggravating factors is not predicated upon a superior

accur·acy of jury fact-finding, but is a result of the command of the Sixth

Amendment. The reasons for such a command, as explored in Duncan v. Louisiana,

supra, reveals that the judgment of a collective of peers as opposed to a single jurist

is viewed as more independent of outside influences, if not more "accurate."

implicates fundamental fairness and accuracy of capital proceedings by acting as a

buffer against arbitrary rule and improper influences. "If the right to a jury means

anything, it means the right to have a jury drawn from the community and acting

as a proxy for its diverse views and mores, rather than one judge, make the awful

decision whether the defendant should live or die." Rauf, 145 A.3d at 436 (Strine, J.,

concurring).

The jury trial right includes the reasonable doubt standard which also

promotes reliability. "[T]he reasonable-doubt standard is indispensable, for it

'impresses on the trier of fact the necessity of reaching a subjective state of certitude

of the facts in issue."' Hankerson v. North Carolina, 432 U.S. 233, 241 (1977)

(quoting In re Winship, 397 U.S. at 364). The reasonable doubt standard

"overcome[s] an aspect of the criminal trial that substantially impairs its truthfinding function," and increases the accuracy of verdicts. Ivan V. v. City of New

York, 407 U.S. 203, 204 (1972) (quoting Williams v. United States, 401 U.S. 646, 653

(1971)). The Hurst rule announced that all necessary findings are essential

elements of the death penalty which require jury findings beyond a reasonable

doubt and, therefore, the rule "reduce[s]" the "margin of error" in sentencing a

defendant to death. In re Winship, 397 U.S. at 364 (internal citation and quotation

marks omitted).

CONCLUSION

The state court ran afoul of the Sixth Amendment when it held that the

aggravating circumstance was a legal conclusion that a judge could make. There is

no such thing as a partial element. The aggravating circumstance was an element of

the offense that should have been found by a jury. For the foregoing reasons,

petitioner requests that this Court grant the petition for certiorari.

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