Opposition Brief — Steven Edward Stein, Petitioner v. Florida

Supreme Court briefJul 11, 2018

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NO. 17-9545

IN THE SUPREME COURT OF THE UNITED STATES

STEVEN EDWARD STEIN,

Petitioner,

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

PAMELA JO BONDI

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Jennifer A. Donahue

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

Capital Case

Question Presented

Whether this Court should grant certiorari review where the

retroactive application of Hurst v. Florida and Hurst v. State is based

on adequate independent state grounds and the issue presents no

conflict between the decisions of other state courts of last resort or

federal courts of appeal, does not conflict with this Court’s precedent,

and does not otherwise raise an important federal question.

Table of Contents

Question Presented ..........ccccccccccccsessecssccecesceeceasceusesussecsteccssssnsaaccaeseecsesceeauencsanaceueeceresecs 1

Table of Contents ...........cccccccccsssscecesesseescesesseeeceeceecesssnuseeesessnensaeceeceesecacaececseeseeesseeuausees i

Table of Citations ..............ccccccscccecesesscceeessnsneeeeseeescesanaeececeessaeeeceeseseeeeeeessseneseseseeneness ili

Opinion Below ...............c.ccccccccccccscccsceececeeecceeceeccecceceeenscceeuaecsssssesesseseerseccecceccaseessueeeneeeass 1

JULISCICCION 20.0... cceceeeeecceccceeceeceeeeseesssenneneeeeeeeeeeeeeeeeeeeeesagusssccaesuaqaneueeesesecenssceeeeeeeeeees 1

Statement of the Case and Facts..........ccccccccccesessesseeeeeceessceceeeecsennseeeecsesseseesessnseeseeeees 2

Reasons for Denying the WYit...............ccccccccccecseescsssesseececacccecceceeesceseecesesenseseecseenens 5

There is no Basis for Certiorari Review of the Florida Supreme Court’s

Denial of Retroactive Application of Hurst to Petitioner..........0......cccccceceeeeeeeees 5

Hurst is not Retroactive Under Federal Law Because it Invoked a

Procedural, Not a Substantive, Change ............cccccsscssecsessssneceecesssssaneessssaneeenees 16

Florida’s Amended Death Penalty Statute is Also Not Retroactive Nor

Does it Invalidate Any Prior Conviction... ccccesssssesssseeeessecsevevseessnenseees 18

Conclusion .0.......cccecccecceceeccccecececeeccecececcececsaveeneueceauccaueccucecscuscecsecenaucceaucceusececsaeeecnansnans 24

Table of Citations

Cases

Almendarez-Torres v. United States, 523 U.S. 224 (1998) .....ccccccccsccccessccceetsceeetteceenes 6

Apodaca v. Oregon, 406 U.S. 404 (1972) .o...ccccccccccsceccccssescessessecseseseseavesscensanesesesesens 22

Apprendi v. New Jersey, 530 U.S. 466 (2000)... ..eccccescccsccsccsscessecsescesscessecsasenuceneneass 12

Asay v. Florida, 188 S. Ct. 41 (2017) ...ccccccceccecceccccscesccescesccesseesececeseceeseceseensensessevaeeeasens 4

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

Atkins v. Virginia, 586 U.S. 304 (2002) .....cccccccccsscccssecscssecceeseesssscssccssccsecsesssesneveasease 14

Branch v. State, 234 So. 3d 548 (Fla. 2018) .......ceccccceccccccecencceeceecceceeseeeesenseecessasess 5, 10

Cole v. Florida, 2018 WL 1876873 (Sun. 18, 2018) .......ccccccscesesseseeesesseseeesesteneeecenencens 5

Cole v. State, 234 So. 3d 644 (Fla. 2018) ........cccecccccccccceccecceesccecsacesesecesusesucessuccareeesees 5

Dantorth v. Minnesota, 552 U.S. 264 (2008)... .eccccccesccsecccceeccececsseeessesecsesenseceesseetseeenes 8

Dobbert v. Florida, 482. U.S. 282 (1977) ....ccccccccccssccsecseccveaceceesecccescesesecevseceeseseseesecees 13

Eisenstadt v. Baird, 405 U.S. 438 (1972) ......ccccccccccccccccecceccecsecesescesecsessacesenssensusceseses 12

Finney v. State, 660 So. 2d 674 (Fla. 1995) ....cccecccecccececesseessccseesecsessecseeesseeseeeeneees 20

Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass‘n, Inc., 67 So. 3d 187 (Fla.

QOL) o.o.ecceeecececccecesecscsesessesesesssscaesnesescanenssenecueseseaesesseecasaeaeaeeneaaneaeeteeeeaeeneneesaceteneatees 18

Florida v. Hurst, 187 S. Ct. 2161 (2017) .o.cececccccccccccccccesescccsscceesseceececeeteceetecsetsesseaeeess 4

Floyd v. State, 497 So. 2d 1211 (Fla. 1986)... sececesesseesseseesesessesneeneaneseseeneenenseaens 20

Furman v. Georgia, 408 U.S. 238 (1972) .......ceccescccesccccecsccecsececessccceseeetueeesseeeseeers 13, 15

Hannon v. Florida, 138 S. Ct. 441 (2017) ..ccccccecccsccssscscccseececceseeccecevensesereeeeeeeacees 5, 10

Hannon v. State, 228 So. 3d 505 (Fla. 2017) .......ccccecccsssccsecceeeceecececeeeecesseeseeeesaeens 5, 10

Harris v. Alabama, 513 U.S. 504 (1995) occ. ceccecccceseccceesceceensccecsccecsseeesaceeescecseneesaneeses 14

Hitchcock v. Florida, 188 S. Ct. 513 (2017) ......ccccccccccccsssccccecscessccesssccesseesseceesseccees 5, 10

Hitchcock v. State, 226 So. 3d 216 (Fla. 2017) ...sceecsssecssscssecseesseeseseesneesneeesneseneeesees 5, 10

Hurst v. Florida, 136 S. Ct. 616 (2016) .o....cceccccccscccccsssccseeccescccesssscecsssseceesscssesscauessenseees 4

Hurst v. State, 202 So. 3d 40 (Fla. 2016) .......cccccccccccccccccccccescceesscesseeeesseeees 4, 15, 21, 22

In re Coley, 871 F.3d 455 (6th Cir. 2017) occ cccecccccesccsccescceescceseecessececseacensesseeeneeare 16

In re Jones, 847 F.3d 1293 (Oth Cir. 2017) .....ccccccccccccccccsccesesssceesscccesccsscsecssseesssecesses 16

In re Winship, 397 U.S. 858 (1970) .......ccceccecceccecceccesceeessessscsssssscusccnseaseaevaesaneaesanseacees 22

Jackson v. State, 218 So. 3d 754 (Fla. 2017)... .eccccccccccececceeeccceesceeescesesscesseeesscecesueens 6

Jenkins v. Hutton, 187 S. Ct. 1769 (2017) cccccccsccsccsscsscsececssscssssecessescersesecasesssetaceeteeee 6

Johnson v. Louisiana, 406 U.S. 356 (1972) .....ccccccccccescscccsecesecccsecsscccecsacsecessucesensenecens 22

Johnson v. New Jersey, 384 U.S. 719 (1966) ...c.eccccccccccscssesescesscessessesssesseseeveneesasess 8

Johnson v. State, 904 So. 2d 400 (Fla. 2005) .........cccccccccsscccsecsseccareceeseceeteceessecesseeesauers 9

Jones v. Florida, 2018 WL 1993786 (Jun. 25, 2018)... ..cccecccseccseccceeescceeeseeenceesereceessers 6

Jones v. State, 234 So. 3d 545 (Fla. 2018) ....c...ccccccccccscccecesecccccecensecessessccesssecessseeeeeeaes 5

Kansas v. Carr, 136 S. Ct. 633 (2016) oo... cecccceccccsscsscesscccececsececeneeeseceeneeceeesaeeeeees 6, 22

Kansas v. Marsh, 548 U.S. 163 (2006) 0.0... .scseessssssseeesseeeseseneeeseeeeeseaeseseenenseeeeeeeeees 21

Lambrix v. Florida, 188 S. Ct. 812 (2017) ooo. .eccccccccccccesscccecececsceeecsececesstececsstseeeeeans 5, 10

Lambrix v. Jones, 138 S. Ct. 312 (2017)... eecscccecscssseeseseseceneseneaeeeaeseeeenseseeeeeneaeaceeeeees 7

Lambrix v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1170 (11th Cir. 2017)......... 7,9, 16, 19

Lambrix v. State, 227 So. 3d 112 (Fla. 2017) ....cccccccecscecesccceecssceeseccecssecssseessseessees 5, 10

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

Michigan v. Long, 463 U.S. 1082 (1988) ......cccececcecceccccscssccessccsscscevsevsevsessessesneesaceaees 7

Miles v. United States, 103 U.S. 304 (1880) ........ccccccccccccccececsccceseccecessececcssecsecsenseeess 20

Miller v. Alabama, 567 U.S. 460 (2012) .....eecscecseeseeseteeeeeseetseseseseseseseseseseeeeneseneenes 17

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) .....ccccc cee ceeceecceesteceeseeneeseeeneees 16, 17

Mosley v. State, 209 So. 3d 1248 (Fla. 2016) .......ccccccccccccesccccccsccseseesesseesscesuecens 4, 8,9

Parker v. Dugger, 498 U.S. 308 (1991) ......ccecescceceseccececececececeaceesessecsecseesacensesaeesaueass 20

Penry v. Lynaugh, 492 U.S. 302 (1989) ooo. ceceececeeseescesscceeeccarceeeceeeeeensesseees 11,17

Pulley v. Harris, 465 U.S. 44 (1984) ...ccccceccccccccsscccseccsssessessevsasseessesseseesauersereeaeees 15

Ring v. Arizona, 536 U.S. 584 (2002) .....cecceccccccccsccccescececcecsscceceesacececsaueesentuecsecsuens 4,14

Roper v. Simmons, 543 U.S. 551 (2005) ....cccccccsesscsscssesseecesesesseescescescseseesseeesees 14, 21

Royster Guano Co. v. Virginia, 253 U.S. 412 (1920)... ceccscescesscecesseseecscversenseeeres 12

Schriro v. Summerlin, 542 U.S. 348 (2004) .....0ccecceeesessceseesesecceesssseesecevsceaseetes passim

State v. Mason, 2018 WL 1872180 (Ohio Apr. 18, 2018)......0...ccecceceeeeeeeeeeeeeeseeeeees 6

Stein v. Florida, 513 U.S. 834 (1994) .0....ececececsceceesceseseeeeneceeseneaeeeeeeeseneevsetereeseeaees 1,3

Stein v. State, 237 So. 8d 919 (Fla. 2018) oo... ccccccccccccsccccceccccececceceseeuscesesececeseees 1, 4,5

Stein v. State, 632 So. 2d 1361 (Fla. 1994) ooo... ceeeeceseseeeeeeeeeeeeeeeereneerseeseeeneees 1, 2,3

Stein v. State, 995 So. 2d 329 (Fla. 2008) 0... ceeccccsssccceecessccsscesecseescessesvesevacecenes 1,3

Stovall v. Denno, 388 U.S. 293 (1967) ......ccccccceccccescccessccenscceeccccecsseeeseesersececsecesecensaseees 8

Tuilaepa v. California, 512 U.S. 967 (1994) es eeesseseeseceseesesereeeeeseeseeeeteneeeeeeneeeseeess 21

United States v. Sampson, 486 F.3d 13 (1st Cir. 2007).......ccccccccssccscesesscessesseseeeseeasees 7

Witt v. State, 387 So. 2d 922 (Fla. 1980)... cscescceesesseseeseseeeesesesecereeseseeeeeeneaceneaenees 8

Ybarra v. Filson, 869 F.3d 1016 (Oth Cir, 2017)... sessseseeceesesseneeeseneareeeeeteeees 16

Zeigler v. State, 580 So. 2d 127 (Fla. 1991) oo... cece cece cee cecceeseeeseeseesceseeseeeeees 20

Other Authorities

28 U.S.C. § L257 eee eeecceesnceeesaceceneecenneesaeeenaeeseaeeseaecenseeesaeeesesaeessaseecaueeessssaseeesesneeees 1

Death Penalty Information Center, Florida Death-Penalty Appeals Decided in Light

of Hurst, available at https://deathpenaltyinfo.org/node/6790 ............ccccccsceeeseeeeees 12

Fla. R. Crim, P. 8.851. eccccccccessceesseneeeseneeeccseeeeceaaeeseceeeeeessaneeeseseeeeeesseaeesssaeeeeeessaas 3

Fla. Stat. § 920.141 ooo cc ceccecesceeeeneeeesenneesesaeeeeseeeeesceeeseessneeeesseeeeeesseneeesnnees 20, 21

Sup. Ct. R. LO... ceccccccccccccccessesesecssssneeeeeeceeesecsenssnneeeesesceceuseceuseasesesecssceageeaseceeeeseeeeesess 2

Sup. Ct. R. LA ccccssscesscssssssssssssssnessssesscesecsecsccsevscceeuecccccceuseceseusacssessssueseesecesecs 2

IN THE SUPREME COURT OF THE UNITED STATES

NO. 17-9545

STEVEN .EDWARD STEIN,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

Opinion Below

The decision of the Florida Supreme Court appears as Stein v. State, 237 So.

3d 919 (Fla. 2018). The Florida Supreme Court’s direct appeal decision appears as

Stein v. State, 632 So. 2d 1361 (Fla. 1994), cert. denied, Stein v. Florida, 513 U.S.

834 (1994). The Florida Supreme Court’s post-conviction decision appears as Stein

v. State, 995 So. 2d 329 (Fla. 2008).

Jurisdiction

This Court’s jurisdiction to review the final judgment of the Florida Supreme

Court is authorized by 28 U.S.C. § 1257. 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)@. Additionally, the Florida Supreme Court’s decision does not

implicate an important or unsettled question of federal law, does not conflict with

another state court of last resort or a United States court of appeals, and does not

conflict with relevant decisions of this Court. Sup. Ct. R. 10. No compelling reasons

exist in this case and this Petition for a writ of certiorari should be denied. Sup. Ct.

R. 10.

Statement of the Case and Facts

Petitioner, Steven Stein, was convicted of “two counts of first-degree murder

and one count of armed robbery, his sentences of death for each of the murder

convictions” by a jury recommendation of ten to two. Stein, 632 So. 2d at 1363-64.

Stein, Marc Christmas, and Kyle White were roommates. Stein was

employed as a cook at a Lem Turner Road Pizza Hut in Jacksonville,

Florida. Christmas was unemployed, but was a previous employee of

an Edgewood Avenue Pizza Hut in Jacksonville, Florida. White

testified that, about a week before the murders, Stein and Christmas

had a conversation about how to rob a Pizza Hut restaurant. During

the conversation, Stein mentioned the Pizza Hut on Edgewood Avenue,

and both Stein and Christmas stated that there could be no witnesses

to the robbery. On the day of the murders, Christmas, Stein, Stein's

girlfriend, and White were home together. About 9:30 p.m. Stein and

Christmas left, taking with them Stein's .22 caliber rifle. They stated

that they were going to see Christmas' father about selling him the

rifle. They returned home around 11:30 to 11:45 p.m.

The next morning, Dennis Saunders and Bobby Hood were found shot

to death at the Edgewood Avenue Pizza Hut and the sum of $980 was

missing from the restaurant. The victims were shift supervisors of the

restaurant and their bodies were found in the men's restroom. Bullet

fragments and cartridge casings were recovered from the restroom

area. Hood had suffered five gunshot wounds—four to the head and

one to the chest. The medical examiner testified that the shots had

been fired from four to six inches away and that Hood was sitting at

the time he was shot. Saunders had suffered four gunshot wounds—

one through the neck, one in the right shoulder, one in the chest, and

one in the right thigh. The medical examiner testified that Saunders

was sitting on the floor at the time the shots began and, given the

position of the bullet wounds, that he was moving around during the

shooting.

Id. at 13638.

The trial judge sentenced him to death for the murders and to life

imprisonment for the armed robbery. In doing so, the trial judge found

five aggravating circumstances: 1) previous conviction for a violent

felony based on the contemporaneous murders of the two victims; (2)

the homicides occurred during the commission of a robbery; (3) the

homicides were committed to avoid arrest; (4) the homicides were

heinous, atrocious, or cruel; and (5) the homicides were cold,

calculated, and premeditated. Additionally, the trial judge found one

statutory mitigating factor—no significant history of prior criminal

activity.

Id. at 1364. On direct appeal, the Florida Supreme Court affirmed the convictions

and sentences. /d. at 1367.

After the Florida Supreme Court denied his claims on direct appeal,

Petitioner filed a petition for a writ of certiorari to this Court, which was denied in

1994. Stein, 513 U.S. at 834. Under Florida law, Petitioner’s judgment and

sentence became final upon this Court’s disposition of the petition for a writ of

certiorari, which occurred in 1994. Fla. R. Crim. P. 3.851(d)(1)(B).

The circuit court denied Petitioner’s post-conviction motion and he appealed.

Stein, 995 So. 2d at 331. The Florida Supreme Court affirmed the post-conviction

court’s denial of Petitioner’s claims. /d. at 342.

In Hurst vy. Florida, this Court held that Florida’s capital sentencing scheme

was unconstitutional pursuant to Aing’s determination that the Sixth Amendment

requires a jury to find the existence of an aggravating circumstance which qualifies

a defendant for a sentence of death. Hurst v. Florida, 136 S. Ct. 616 (2016). On

remand in Hurst v. State, the Florida Supreme Court held that in capital cases, the

jury must unanimously and expressly find that the aggravating factors were proven

beyond a reasonable doubt, unanimously find that the aggravating factors are

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

the mitigating circumstances, and unanimously recommend a sentence of death.

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

2161 (2017).

In Mosley, the Florida Supreme Court held that Hurst applies retroactively

to cases which became final after the decision was issued in Ring on June 24, 2002.

Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016); Ring v. Arizona, 536 U.S. 584

(2002). On the same day in Asay, the Florida Supreme Court held that Hurst does

not apply retroactively to cases which became final prior to Ring. Asay v. State, 210

So. 3d 1, 22 (Fla. 2016), cert. denied, Asay v. Florida, 138 S. Ct. 41 (2017).

Shortly after the Hurst decisions, Petitioner raised a claim asserting that he

should be entitled to relief pursuant to Hurst. Since Petitioner’s case became final

in 1994, the Florida Supreme Court denied Petitioner’s claim that Hurst should

apply retroactively to him. Stein, 237 So. 3d at 920. Petitioner then filed this

Petition for a writ of certiorari from the Florida Supreme Court’s decision. This is

the State’s brief in opposition.

Reasons for Denying the Writ

There is no Basis for Certiorari Review of the Florida Supreme

Court’s Denial of Retroactive Application of Hurst to Petitioner.

Petitioner seeks certiorari review of the Florida Supreme Court’s decision

holding that Hurst is not retroactive to Petitioner because his case became final

pre-fing in 1994. Stein, 237 So. 3d at 920. The Petition alleges that the Florida

Supreme Court’s refusal to retroactively apply Hurst to pre- Ring cases is in

violation of the Fifth Amendment’s guarantee of fundamental fairness, the Eighth

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

penalty, and the Fourteenth Amendment’s guarantee of equal protection. (Petition

at 15-18). However, the Florida Supreme Court’s retroactive application of Hurst to

only post- Ring cases does not violate the Fifth, Eighth, or Fourteenth Amendment.

Further, the Florida Supreme Court’s denial of retroactive application to Petitioner

is based on adequate and independent state grounds, is not in conflict with any

other state court of last review, and is not in conflict with any federal appellate

court. This decision is also not in conflict with this Court’s jurisprudence on

retroactivity. Thus, Petitioner’s request for certiorari review should be denied.

Aside from the question of retroactivity, certiorari would be inappropriate

1 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., Hitchcock v. State, 226 So. 3d 216 (Fla.

2017), cert. denied, Hitchcock v. Florida, 138 8. Ct. 518 (2017); Lambrix v. State, 227 So. 3d 112, 113

(Fla. 2017), cert. denied, Lambrix v. Florida, 138 S. Ct. 312 (2017); Hannon v. State, 228 So. 3d 505,

513 (Fla. 2017), cert. denied, Hannon v. Florida, 138 S. Ct. 441 (2017); Branch v. State, 234 So. 3d

548, 549 (Fla. 2018), cert. denied, Branch v. Florida, 138 S. Ct. 1164 (2018); Cole v. State, 234 So. 3d

644, 645 (Fla. 2018), cert. denied, Cole v. Florida, no. 17-8540, 2018 WL 1876873 (Jun. 18, 2018);

Jones v. State, 234 So. 3d 545 (Fla. 2018), cert. denied, Jones v. Florida, no. 17-8652, 2018 WL

because there is no underlying federal constitutional error. 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. Petitioner became eligible for a death sentence by virtue of his guilt

phase conviction for contemporaneous felonies of armed robbery and the

contemporaneous murders. Stein, 632 So. 2d at 1363; see also Jackson v. State,

213 So. 3d 754, 787 (Fla. 2017), citing Almendarez-Torres v. United States, 523 U.S.

224 (1998). The unanimous verdict by Petitioner’s jury establishing his guilt of this

contemporaneous crime, an aggravator under well-established Florida law, was

clearly sufficient to meet the Sixth Amendment’s fact-finding requirement. See

Jenkins v. Hutton, 187 S. Ct. 1769, 1772 (2017) (noting that the jury’s findings that

defendant engaged in a course of conduct designed to kill multiple people and that

he committed kidnapping in the course of aggravated murder rendered him eligible

for the death penalty); Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (rejecting a claim

that the constitution requires a burden of proof on whether or not mitigating

circumstances outweigh aggravating circumstances, noting that such a question is

“mostly a question of mercy”). See also 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

1993786 (Jun. 25, 2018).

circumstances” and that “weighing is not a factfinding process subject to the Sixth

Amendment.”); 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.”). Thus, there was no Hurst v. Florida error in Petitioner’s case.

Additionally, Hurst is not retroactive under federal law. “Aing announced a

new procedural rule that does not apply retroactively to cases already final on direct

review.” Schriro v. Summerlin, 542 U.S. 348, 358 (2004). Since Hurst is an

extension of ing, it is also not retroactive under federal law. Hurst, 136 S. Ct. at

662 (“As with Ring, a judge increased Hurst’s authorized punishment based on her

own factfinding. In light of Aing, we hold that Hurst’s sentence violates the Sixth

Amendment.”); see also Lambrix v. Sec’y, Fla. Dept of Corr., 872 F.3d 1170, 1182-

83 (11th Cir. 2017), cert. denied, Lambrix v. Jones, 138 S. Ct. 312 (2017) (“No U.S.

Supreme Court decision holds that its Hurst decision is retroactively applicable.”).

This Court does not review state court decisions that are based on adequate and

independent state grounds. See Michigan v. Long, 463 U.S. 1032, 1040 (1983)

(“Respect for the independence of state courts, as well as avoidance of rendering

advisory opinions, have been the cornerstones of this Court's refusal to decide cases

where there is an adequate and independent state ground.”). Since Hurst is not

retroactive under federal law, the retroactive application of Hurst is solely based on

a state test for retroactivity. Because the retroactive application of Hurst is based

on adequate and independent state grounds, certiorari review should be denied.

The Florida Supreme Court first analyzed the retroactive application of

Hurst in Mosley and Asay. Mosley, 209 So. 3d at 1276-83; Asay, 210 So. 3d at 15-

22. In Mosley, the Florida Supreme Court held that Hurst is retroactive to cases

which became final after the June 24, 2002, decision in Ring. Mosley, 209 So. 3d at

1283. In determining whether Hurst should be retroactively applied to Mosley, the

Florida Supreme Court conducted a Witt analysis, the state based test for

retroactivity. Witt v. State, 387 So. 2d 922, 926 (Fla. 1980) (determining whether a

new rule should be applied retroactively by analyzing the purpose of the new rule,

extent of reliance on the old rule, and the effect of retroactive application on the

administration of justice) (citing Stovall v. Denno, 388 U.S. 298, 297 (1967);

Linkletter v. Walker, 381 U.S. 618 (1965)). Since “finality of state convictions is a

state interest, not a federal one,” states are permitted to implement standards for

retroactivity that grant “relief to a broader class of individuals than is required by

Teague,” which provides the federal test for retroactivity. Dantorth v. Minnesota,

552 U.S. 264, 280-81 (2008) (emphasis in original); Teague v. Lane, 489 U.S. 288

(1989); see also Johnson v. New Jersey, 384 U.S. 719, 733 (1966) (“Of course, States

are still entirely free to effectuate under their own law stricter standards than we

have laid down and to apply those standards in a boarder range of cases than is

required by this [Court].”). As Ring, and by extension Hurst, has been held not to

be retroactive under federal law, Florida has implemented a test which provides

relief to a broader class of individuals in applying Witt instead of Teague for

determining the retroactivity of Hurst. See Schriro, 542 U.S. at 258 (holding that

“Ring announced a new procedural rule that does not apply retroactively to cases

already final on direct review”); Lambrix, 872 F.3d 1170, 1182-83 (noting that “[nlo

U.S. Supreme Court decision holds that its Hurst decision is retroactively

applicable”).

The Florida Supreme Court determined that all three Witt factors weighed in

favor of retroactive application of Hurst to cases which became final post- Ring.

Mosley, 209 So. 3d at 1276-83. The Court concluded that “defendants who were

sentenced to death based on a statute that was actually rendered unconstitutional

by Ring should not be penalized for the United States Supreme Court’s delay in

explicitly making this determination.”? /d. at 1283. Thus, the Florida Supreme

Court held Hurst to be retroactive to Mosley, whose case became final in 2009,

which is post-Ring. Id.

Conversely, applying the Witt analysis in Asay, the Florida Supreme Court

held that Hurst is not retroactive to any case in which the death sentence was final

pre-fing. Mosley, 209 So. 3d at 1283. The Court specifically noted that Witt

“provides more expansive retroactivity standards than those adoped in Teague.”

Asay, 210 So. 3d at 15 (emphasis in original), guoting Johnson v. State, 904 So. 2d

400, 409 (Fla. 2005). However, the Court determined that prongs two and three of

the Witt test, reliance on the old rule and effect on the administration of justice,

weighed heavily against the retroactive application of Hurst to pre-Ring cases.

2 Under this rationale, it would not make sense to only grant relief to those who continued to raise

ting in the 14 years between Aing and Hurst as this would encourage the filing of frivolous claims in

the hope that subsequent vindication could provide a basis of relief for a future change in the law.

Nor should a defendant who failed to raise a claim that appeared to be well settled against him/her

Asay, 210 So. 2d at 20-22. As related to the reliance on the old rule, the Court

noted “the State of Florida in prosecuting these crimes, and the families of the

victims, had extensively relied on the constitutionality of Florida's death penalty

scheme based on the decisions of the United States Supreme Court. This factor

weighs heavily against retroactive application of Hurst v. Florida to this pre- Ring

case.” Jd. at 20. As related to the effect on the administration of justice, the Court

noted that resentencing is expensive and time consuming and that the interests of

finality weighed heavily against retroactive application. Jd. at 21-22. Thus, the

Florida Supreme Court held that Hurst was not retroactive to Asay since the

judgment and sentence became final in 1991, pre-Ring. Id. at 8, 20.

Since Asay, the Florida Supreme Court has continued to apply Hurst

retroactively to all post- Ring cases and declined to apply Hurst retroactively to all

pre Ring cases. See, e.g., Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert.

denied, Hitchcock v. Florida, 138 S. Ct. 513 (2017); Lambrix v. State, 227 So. 3d

112, 113 (Fla. 2017), cert. denied, Lambrix v. Florida, 138 S. Ct. 312 (2017); Hannon

v. State, 228 So. 3d 505, 513 (Fla. 2017), cert. denied, Hannon v. Florida, 138 S. Ct.

441 (2017); Branch v. State, 234 So. 3d 548, 549 (Fla. 2018), cert. denied, Branch v.

Florida, 138 S. Ct. 1164 (2018). This distinction between cases which were final

pre- fing versus cases which were final post: Ring is neither arbitrary nor capricious.

In the traditional sense, new rules are applied retroactively only to cases

be punished for not raising what he/she believed to be a frivolous claim.

which are not yet final. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) “a new

rule for the conduct of criminal prosecutions is to be applied retroactively to all

cases, state or federal, pending on direct review or not yet final, with no exception

for cases in which the new rule constitutes a ‘clear break’ with the past”); Smith v.

State, 598 So. 2d 1068, 1066 (Fla. 1992) (applying Griffith to Florida defendants);

Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (holding finality concerns in

retroactivity are applicable in the capital context). Under this “pipeline” concept,

Hurst would only apply to the cases which were not yet final on the date of the

decision in Hurst. This type of traditional retroactivity can depend on a score of

random factors having nothing to do with the offender or the offense, such as trial

scheduling, docketing on appeal, etc. Even under the “pipeline” concept, cases

whose direct appeal was decided on the same day might have their judgment and

sentence become final on either side of the line for retroactivity. Additionally,

under the “pipeline” concept, “old” cases where the judgment and/or sentence has

been overturned will receive the benefit of new law as they are no longer final. Yet,

this Court recognizes this type of traditional retroactivity as proper and not

violative of the Eighth or Fourteenth Amendment.

The only difference between this more traditional type of retroactivity and

the retroactivity implemented by the Florida Supreme Court is that it stems from

the date of the decision in Aing rather than from the date of the decision in Hurst.

In moving the line of retroactive application back to Ring,’ the Florida Supreme

Court reasoned that since Florida’s death penalty sentencing scheme should have

been recognized as unconstitutional upon the issuance of the decision in Ring,

defendants should not be penalized for time that it took for this determination to be

made official in Hurst. Certainly, the Florida Supreme Court has demonstrated

“some ground of difference that rationally explains the different treatment” between

pre-Ring and post-Ring cases. Eisenstadt v. Baird, 405 U.S. 488, 447 (1972); see

also Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (To satisfy the

requirements of the Fourteenth Amendment, “classification must be reasonable, not

arbitrary, and must rest upon some ground of difference having a fair and

substantial relation to the object of the legislation, so that all persons similarly

circumstanced shall be treated alike.”). Unquestionably, extending relief to more

individuals, defendants who would not receive the benefit of a new rule because

their cases were already final when Hurst was decided, does not violate the Eighth

or Fourteenth Amendment. Thus, just like the more traditional application of

retroactivity, the Ring based cutoff for the retroactive application of Hurst is not in

violation of the Eighth or Fourteenth Amendment.

Petitioner argues that the Florida Supreme Court is being unfair in

3 Though Apprendi served as a precursor to Hing, this Court distinguished capital cases from its

holding in Apprendi and thus Hing is the appropriate demarcation for retroactive application to

capital cases. Asay, 210 So. 3d at 19; Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).

4 Approximately 150 defendants whose convictions became final post-Ring are being re-sentenced

pursuant to Hurst. Death Penalty Information Center, Florida Death-Penalty Appeals Decided in

Light of Hurst, available at https://deathpenaltyinfo.org/node/6790 (last visited Jun. 29, 2018).

selectively applying Hurst to “similarly situated” defendants, namely those who

“were free of the shackles of finality.” (Petition at 16). However, in the wake of

Furman, similar Equal Protection claims were rejected. See Lambrix, 872 F.3d at

1183; Dobbert v. Florida, 432 U.S. 282, 301 (1977); Furman v. Georgia, 408 U.S.

238 (1972). These claims were based on the two-category division of pre- Furman

cases; those who were subject to the new statute because they had not yet been

tried and those whose cases were commuted because they were already final.

Dobbert, 432 U.S. at 288, 301. This Court held that defendants who had yet to be

tried and sentenced were “not similarly situated to those whose sentences were

commuted. He was neither tried nor sentenced prior to Furman, as were they... .”

fd. at 301. Just as with the categorization of cases after Furman, post- Hurst,

“Florida obviously had to draw the line at some point.” Jd As such, Petitioner is

not similarly situated to those who are receiving a new sentencing phase pursuant

to Hurst as his judgment was final pre- Ring.

Petitioner argues that the Florida Supreme Court’s imposition of the

unanimity requirement in Hurst v. State causes all non-unanimous verdicts to be

violative of the Eighth Amendment and that “evolving standards of decency” and

“enhanced reliability and confidence in the result” necessitate unanimous

recommendations in all death penalty cases. (Petition at 18-19, 21). However, the

Florida Supreme Court’s imposition of the unanimity requirements in Hurst v.

State is purely a matter of state law, is not a substantive change, and did not cause

death sentences imposed pre- fing to be in violation of the Eighth Amendment.

To the extent Petitioner suggests that jury sentencing is now required under

federal law, this is not the case. See Ring, 536 U.S. at 612 (Scalia, J., concurring)

(“[Tloday’s judgment has nothing to do with jury sentencing. What today’s decision

says is that the jury must find the existence of the fact that an aggravating factor

existed.”) (emphasis in original); Harris v. Alabama, 513 U.S. 504, 515 (1995)

(holding that the Constitution does not prohibit the trial judge from “imposling] a

capital sentence”). 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. The Constitution provides a right to trial by

jury, not to sentencing by jury.

The Eighth Amendment requires capital punishment to be limited “to those

who commit a ‘narrow category of the most serious crimes’ and whose extreme

299

culpability makes them ‘the most deserving of execution.” Foper v. Simmons, 543

U.S. 551, 568 (2005), quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002). As such,

the death penalty is limited to a specific category of crimes and “States must give

narrow and precise definition to the aggravating factors that can result in a capital

sentence.” oper, 543 U.S. at 568. In finding Florida’s death penalty

unconstitutional, this Court did not invalidate Florida’s statutory scheme based on

Eighth Amendment narrowing concerns. Implicit in the holding of Hurst v. Florida

was that Florida’s statutory scheme sufficiently narrowed and was in compliance

with the Eighth Amendment.

However, many states also add protections that go above and beyond the

requirements of the Eighth Amendment. Often times, these additional state based

requirements are forward looking in anticipation of evolving standards of decency to

ensure that their capital sentencing schemes will remain constitutionally valid in

the future. These additional protections are based on adequate and independent

state grounds. For example, in the wake of Furman, many states in redrafting their

capital sentencing statutes added a statutory requirement to review whether a

capital “sentence is disproportionate to that imposed in similar cases” to “avoid

arbitrary and inconsistent results.” Pulley v. Harris, 465 U.S. 37, 44 (1984);

Furman v. Georgia, 408 U.S. 238 (1972). As this Court noted, “[p]roportionality

review was considered to be an additional safeguard against arbitrarily imposed

death sentences, but we certainly did not hold that comparative review was

constitutionally required.” Pulley, 465 U.S. at 50.

Like with the addition of proportionality review, the Florida Supreme Court’s

Hurst v. State requirement of unanimous jury findings and recommendations

during capital sentencing procedures is an additional safeguard that is beyond the

requirements of the Eighth Amendment. Hurst, 202 So. 3d at 61 (“Florida’s capital

sentencing law will comport with these Eighth Amendment principles in order to

more surely protect the rights of defendants guaranteed by the Florida and United

States Constitutions.”) (emphasis added). Because these are additional safeguards

that are premised on the principles of but not necessitated by the Eighth

Amendment, they are state requirements and thus based on adequate and

independent state grounds. Jd. at 62 (noting that the unanimity requirements are

forward looking and will “dispel most, if not all, doubts about the future validity

and long-term viability of the death penalty in Florida”).

The Florida Supreme Court’s determination of the retroactive application of

Hurst under Witt is based on adequate and independent state grounds and is not

violative of federal law or this Court’s precedent. Thus, certiorari review should be

denied.

Hurst is not Retroactive Under Federal Law Because it Invoked a

Procedural, Not a Substantive, Change.

Petitioner also argues that Hurst provided a substantive change in the law

and thus should be afforded full retroactive application under federal law pursuant

to Montgomery. (Petition at 27); Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

However, Hurst, like Ring, was a procedural change, not substantive one. See

Summerlin, 542 U.S. at 358 (“Ring announced a new procedural rule that does not

apply retroactively to cases already final on direct review.”). Like Ring, Hurst is not

retroactive under federal law. See Lambrix, 872 F.3d at 1182 (“No U.S. Supreme

Court decision holds that its Hurst decision is retroactively applicable.”); see also

Ybarra v. Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017) (holding that “Hurst does

not apply retroactively to cases on collateral review”); In re Coley, 871 F.3d 455, 457

(6th Cir. 2017) (noting that this Court had not made Hurst retroactive to cases on

collateral review); In re Jones, 847 F.3d 1293, 1295 (10th Cir. 2017) (‘the Supreme

Court has not held that Hurst announced a substantive rule”).

In support of his argument that Hurst was a substantive rather than a

procedural change, Petitioner analogizes Hurst to Montgomery. (Petition at 27);

Miller v. Alabama, 567 U.S. 460 (2012). In Montgomery this Court found the

change was substantive because “it rendered life without parole an unconstitutional

penalty for ‘a class of defendants because of their status’ — that is juvenile

”

offenders .. .” and retroactive because “the vast majority of juvenile offenders —

33993

“faces a punishment that the law cannot impose upon him.” Montgomery, 136 S.

Ct. at 734, quoting Penry, 492 U.S. at 330; Summerlin, 542 U.S. at 352. However,

unlike in Montgomery, the Court in Hurst did not “conflatel] a procedural

requirement necessary to implement a substantive guarantee with a rule that

‘regulatels] only the manner of determining the defendant’s culpability.”

Montgomery, 136 S. Ct. at 734-35, quoting Summerlin, 542 U.S. at 353 (emphasis

in original). Thus, Hurst is distinguishable from Montgomery.

Unlike the change in Montgomery, Hurst is procedural. In Hurst the same

class of defendants committing the same range of conduct face the same

punishment. Further, unlike the now unavailable penalty in Montgomery, 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.

Thus, Hurst is a procedural change and not retroactive under federal law.

The Florida Supreme Court’s determination of the retroactive application of

Hurst under Witt is based on adequate and independent state grounds 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. Thus, there

is no violation of federal law and certiorari review should be denied.

Florida’s Amended Death Penalty Statute is Also Not Retroactive

Nor Does it Invalidate Any Prior Conviction.

Florida’s death penalty statute, Fla. Stat. § 921.141, was amended after, and

in comport with, the decisions in Aurst v. Florida and Hurst v. State. Neither

Hurst nor the new statute create a new crime with new elements. The same

conduct remains prohibited. Only the process by which the sentence is determined

has been altered. No substantive change has occurred which makes Hurst

retroactive under federal law. Thus, there is no basis for which certiorari review

should be granted. Thus, this Petition should be denied.

In general, there is a presumption against retroactive application of statutes

absent an express statement of legislative intent. Fla. Ins. Guar. Ass‘n, Inc. v.

Devon Neighborhood Ass‘n, Inc., 67 So. 3d 187, 195 (Fla. 2011). There is no express

statement that the legislature intended that chapter 2017-1 be applied

retroactively, and thus this presumption cannot be rebutted. See also Senate Bill

Analysis and Fiscal Impact Statement, SB 280, Feb. 21, 2017, at 6-7 (noting that

this Court’s retroactive application to post-ARing decisions will “significantly

increase both the workload and associated costs of public defender offices for several

years to come”), Further,

no U.S. Supreme Court decision holds that the failure of a state

legislature to make revisions in a capital sentencing statute

retroactively applicable to all of those who have been sentenced to

death before the effective date of the new statute violates the Equal

Protection Clause, the Due Process Clause, or the Eighth Amendment.

Lambrix, 872 F.3d at 1183.

Since the legislature did not express an intent for the statute to be

retroactive, it is not retroactive to cases which were final prior to enactment of the

new statute. Petitioner’s judgment became final in 1994 and he has not received a

new guilt or penalty phase since that time. Thus, the 2017 enactment of changes to

the capital sentencing statute would not be applicable to Petitioner's case unless

Petitioner were to receive a new guilt and/or penalty phase.

The changes to Florida’s death penalty statute were made in the aftermath of

Hurst and implement the changes from Hurst. The changes include requiring a

unanimous jury vote for a recommendation of death instead of a majority vote,

requiring specific findings from the jury regarding the existence and sufficiency of

the aggravation and the weighing of aggravation against mitigation, and

disallowing judicial override of a jury’s recommendation of life. As discussed above,

these are procedural changes not substantive ones.

These changes to the sentencing procedure did not create a new offense as

Petitioner argues. (Petition at 29-30). The class of persons who are death eligible

and the range of conduct which causes those defendants to be death eligible did not

change. The aggravating factors necessary to qualify a defendant as eligible for the

death penalty were not changed. In fact, the specific aggravators used in

Petitioner’s case had been in place since at least 1987. The only changes made were

the requirement of specific jury findings of unanimity for the existence and

sufficiency of the aggravating factors and that they outweigh mitigation, and for a

death recommendation.

Petitioner also argues that two of the elements identified in Hurst v. State

were not found proven beyond a reasonable doubt in his case, “sufficiency of the

aggravators and whether they outweigh the mitigators.” (Petition at 31). However,

the only requirements of proof beyond a reasonable doubt are the elements for a

finding of guilt for first-degree murder and that the aggravating factors were

proven. Fla. Stat. § 921.141(2)(a) (2017) (“the jury shall deliberate and determine if

the state has proven, beyond a reasonable doubt, the existence of at least one

aggravating factor ...”). The standard of proof for guilt has long been proof beyond

a reasonable doubt, and certainly was at Petitioner’s trial. See Miles v. United

States, 103 U.S. 304, 312 (1880). Similarly, the standard of proof for proving

aggravating factors was beyond a reasonable doubt at Petitioner's trial. See Floyd

v. State, 497 So. 2d 1211, 1214-15 (Fla. 1986); Zeigler v. State, 580 So. 2d 127, 129

(Fla. 1991); Finney v. State, 660 So. 2d 674, 680 (Fla. 1995). Thus, all elements

which required findings beyond a reasonable doubt were in fact found beyond a

reasonable doubt at Petitioner’s trial.

Similarly, the requirement that aggravators be sufficient and outweigh

mitigation has long been a requirement of Florida law. “The death penalty may be

imposed only where sufficient aggravating circumstances exist that outweigh

mitigating circumstances.” Parker v. Dugger, 498 U.S. 308, 313 (1991); citing Fla.

Stat. § 921.141(38) (1985). The 2017 change to the statute merely requires that the

jury make these findings unanimously in order for the defendant to be eligible to

receive a death sentence.

As related to the finding that aggravation is sufficient, Hurst did not ascribe

a standard of proof. Hurst, 202 So. 3d at 54. The Eighth Amendment requires that

“States must give narrow and precise definition to the aggravating factors that can

result in a capital sentence.” Roper v. Simmons, 543 U.S. 551, 568 (2005). The

State of Florida has a list of sixteen aggravating factors enumerated in the statute.

Fla. Stat. § 921.141(6). These aggravating factors have been deemed sufficient to

impose the death penalty by virtue of their inclusion in the statute. Any one of

these aggravating factors is sufficient to cause a defendant to be eligible to receive a

sentence of death. Thus, if one of these enumerated aggravating factors has been

proven beyond a reasonable doubt, any Eighth Amendment concerns have been

satisfied. However, the weight that a juror gives to the aggravator based on the

evidence is not something that can be defined by a beyond-a-reasonable-doubt

standard.

As related to the finding that the aggravation outweighs the mitigation,

Hurst did not ascribe a standard of proof. Hurst, 202 So. 3d at 54. This Court has

specifically held that the beyond-a-reasonable-doubt standard for finding that the

aggravation outweighs mitigation is not required under federal law. See Kansas v.

Marsh, 548 U.S. 168, 164 (2006) (“Weighing is not an end, but a means to reaching

a decision.”); Tuilaepa v. California, 512 U.S. 967, 979 (1994) (“A capital sentencer

need not be instructed how to weigh any particular fact in the capital sentencing

decision.”); Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (“[Tlhe 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 the defendants must deserve mercy

beyond a reasonable doubt.”). The weight that a juror gives to the aggravation as

compared to the weight given to mitigation is also not something that can be

defined by a beyond-a-reasonable-doubt standard.

Additionally, this Court “has not ruled on whether unanimity is required” in

capital cases. Hurst, 202 So. 3d at 59; see also Apodaca v. Oregon, 406 U.S. 404

(1972); Johnson v. Louisiana, 406 U.S. 356 (1972). As this Court noted, “holding

that because [a State/has made a certain fact essential to the death penalty, that

fact must be found by a jury, is not the same as this Court’s making a certain fact

essential to the death penalty. The former was a procedural holding; the latter

would be substantive.” Summerlin, 542 U.S. at 354 (emphasis in original). Thus,

Hurst v. States requirement that the jury make specific factual findings before the

imposition of the death penalty is procedural.

In support of his argument that Hurst should be retroactive under the federal

Teague standard as a substantive change because it “addressed the proof-beyond-areasonable-doubt standard,” Petitioner relies upon Jn re Winship and Fiore.

(Petition at 30); In re Winship, 397 U.S. 358 (1970); Fiore v. White, 531 U.S. 225

(2001). However, Hurst is distinguishable from these cases. Jn re Winship required

that the proof-beyond-a-reasonable-doubt standard be afforded to juveniles “during

the adjudicatory stage of a delinquency proceeding... .” Jn re Winship, 397 U.S. at

368. Hurst did not alter the burden of proof during the adjudication phase in

finding a defendant guilty of first-degree murder. In Fiore, this Court held that the

Federal Due Process Clause was violated when an individual was convicted of a

crime despite his conduct not being prohibited by the criminal statute, and thus

every element of the crime had not been proven beyond a reasonable doubt. Fiore,

531 U.S. at 228. As was true in Hurst and here, Petitioner’s conduct is clearly in

violation of the criminal statute and by virtue of his conviction for first-degree

murder, every element of the crime was proven beyond a reasonable doubt. As

discussed previously, Hurst did not alter the burden of proof. Thus, neither Fiore

nor Jn re Winship is applicable to the discussion of the retroactive application of

Hurst.

No substantive change has occurred which makes Fla. Stat. § 921.141 or

Hurst retroactive under federal law. Thus, there is no basis for which certiorari

review should be granted. Thus, this Petition should be denied.

Conclusion

Respondent respectfully submits that the Petition for a writ of certiorari

should be denied.

Respectfully submitted,