Opposition Brief — Guy Gamble, Petitioner v. Florida

Supreme Court briefJul 26, 2018

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CASE NO. 17-9587

IN THE SUPREME COURT OF THE UNITED STATES

GUY GAMBLE

Petitioner,

v.

STATE OF FLORIDA

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

PAMELA JO BONDI

ATTORNEY GENERAL

DORIS MEACHAM*

ASSISTANT ATTORNEY GENERAL

Fla. Bar #63265

*Counsel of Record

444 Seabreeze Blvd., 5th Floor

Daytona Beach, FL 32118

(386) 238-4990

Fax # (386) 226-0457

doris.meacham@myfloridalegal.com

CapApp@myfloridalegal.com

COUNSEL FOR RESPONDENTS

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Whether this Court should deny certiorari to review the Florida

Supreme Court’s ruling on the retroactivity of Hurst v. Florida and

Hurst v. State, where the issue of retroactivity was decided as an

issue of state law in a decision that does not conflict with any of this

Court’s precedent and which does not present a significant or

unsettled issue of constitutional law worthy of certiorari review?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............................................................ i

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

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

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 the Florida Supreme court’s ruling on

the retroactivity of Hurst relies 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, and the court’s ruling does not violate the Eighth or Fourteenth

Amendments and does not conflict with any decision of this court or involve an

important, unsettled question of federal law. .........................................................5

CLAIM I. The Florida Court’s Ruling on the Retroactivity of Hurst is Not

Unconstitutional ..................................................................................................6

CLAIM 2. Gamble’s Argument That His Jury Did Not Unanimously Find All

“Elements” Required to Convict Him of Capital Murder Is Just Another Attack

on Florida’s Retroactivity Decision. .................................................................14

A. The Florida Court’s Ruling on the Retroactivity of Hurst v. Florida and

Hurst v. State Is a Matter of State Law That Does Not Violate the United

States Constitution. ...................................................................................................... 15

B. The Additional Requirements Imposed By Hurst v. State Did Not Create

“Elements” Of A Capital Offense ............................................................................ 16

C. Hurst’s Retroactivity Does Not Address The Proof Beyond A

Reasonable Doubt Standard ...................................................................................... 18

D.

Gamble’s Sentencing Scheme Did Not Violate His Due Process Rights

................................................................................................................................. 22

E. Conclusion: Hurst v. Florida and Hurst v. State Are Not Retroactive

under Teague ................................................................................................................. 24

CONCLUSION ........................................................................................................27

CERTIFICATE OF SERVICE ................................................................................27

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Aguirre-Jarquin v. State,

9 So. 3d 593 (Fla. 2009)....................................21

Alleyne v. United States,

133 S. Ct. 2151 (2013)................................16, 18, 19

Almendarez-Torres v. United States,

523 U.S. 224 (1998).......................................16

Asay v. State,

210 So. 3d 1 (Fla. 2016).................................Passim

Bogle v. State,

213 So. 3d 833 (Fla. 2017)..................................11

Branch v. State,

234 So. 3d 548 (Fla. 2018).................................6, 10

Butler v. McKellar,

494 U.S. 407 (1990).......................................21

Cardinale v. Louisiana,

394 U.S. 437 (1969).......................................12

Cole v. State,

234 So. 3d 644 (Fla. 2018)...................................6

Danforth v. Minnesota,

552 U.S. 264 (2008).......................................7

DeStefano v. Woods,

392 U.S. 631 (1968).......................................15

Dorsey v. United States,

567 U.S. 260 (2012).......................................13

Finney v. State,

660 So. 2d 674 (Fla. 1995)................................19, 21

Fiore v. White,

531 U.S. 225 (2001).......................................19

Florida v. Powell,

559 U.S. 50 (2010).......................................12

Floyd v. State,

497 So. 2d 1211 (Fla. 1986)...............................19, 21

iii

Fox Film Corp. v. Muller,

296 U.S. 207 (1935).......................................12

Gamble v. Crosby,

2005 WL 1618212 (M.D. Fla. July, 5 2005)........................2

Gamble v. Florida,

516 U.S. 1122, 116 S.Ct. 933, 133 L.Ed.2d 860 (1996).................4

Gamble v. State,

235 So.3d 288 (Fla. 2018)..................................1, 4

Gamble v. State,

659 So. 2d 242 (Fla. 1995)................................1, 2, 4

Gamble v. State,

877 So. 2d 706 (Fla. 2004)...................................2

Gaskin v. State,

218 So. 3d 399 (Fla. 2017)..................................11

Hannon v. State,

228 So. 3d 505 (Fla. 2017).................................6, 10

Harris v. Alabama,

513 U.S. 504 (1995).......................................23

Hitchcock v. State,

226 So. 3d 216 (Fla. 2017)..............................3, 4, 6, 9

Hughes v. State,

901 So. 2d 837 (Fla. 2005)..................................23

Hurst v. Florida,

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

Hurst v. State,

202 So. 3d 40 (2016)...................................Passim

Ivan V. v. City of New York,

407 U.S. 203 (1972).......................................19

Jenkins v. Hutton,

137 S. Ct. 1769 (2017).....................................16

Johnson v. New Jersey,

384 U.S. 719 (1966).......................................8

Johnson v. State,

904 So. 2d 400 (Fla. 2005).................................9, 25

Jones v. State,

234 So. 3d 545 (Fla. 2018)...................................6

iv

Kaczmar v. State,

228 So. 3d 1 (Fla. 2017).....................................6

Kansas v. Carr,

136 S. Ct. 633 (2016).................................16, 17, 20

Kansas v. Marsh,

548 U.S. 163 (2006).......................................20

Lambrix v. Secretary, Fla. Dep’t of Corr.,

872 F.3d 1170 (11th Cir. 2017)..............................8, 25

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

851 F.3d 1158 (11th Cir. 2017).............................10, 25

Lambrix v. State,

227 So. 3d 112 (Fla. 2017).................................6, 9

Linkletter v. Walker,

381 U.S. 618 (1965).......................................7

McCleskey v. Kemp,

481 U.S. 279 (1987).......................................13

Michigan v. Long,

463 U.S. 1032 (1983)......................................12

Mosley v. State,

209 So. 3d 1248 (Fla. 2016).............................7, 8, 9, 11

Parker v. State,

873 So. 2d 270 (Fla. 2004)..................................21

Powell v. Delaware,

153 A. 3d 69 (Del. 2016).................................19, 22

Proffitt v. Florida,

428 U.S. 242 (1976).......................................24

Rauf v. State,

145 A. 3d 430 (Del. 2016)...................................22

Rhoades v. State,

233 P. 3d 61 (2010).......................................23

Ring v. Arizona,

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

Roper v. Simmons,

543 U.S. 551 (2005).......................................19

Schriro v. Summerlin,

542 U.S. 348 (2004)....................................Passim

v

State v. Gales,

658 N.W. 2d 604 (Neb. 2003)................................18

State v. Mason,

___ N.E.3d ___, 2018 WL 1872180 (Ohio, April 18, 2018).............18

Stovall v. Denno,

388 U.S. 293 (1967).......................................7

Teague v. Lane,

489 U.S. 288 (1989)...................................7, 9, 15

Tuilaepa v. California,

512 U.S. 967 (1994).......................................20

United States v. Abney,

812 F.3d 1079 (D.C. Cir. 2016)...............................13

United States v. Purkey,

428 F.3d 738 (8th Cir. 2005).................................18

United States v. Sampson,

486 F.3d 13 (1st Cir. 2007)..................................18

Victorino v. State,

241 So. 3d 48 (Fla. 2018)...................................17

Waldrop v. Comm’r, Alabama Dept. of Corr.,

2017 WL 4271115 (11th Cir. Sept. 26, 2017)......................18

Williams v. State,

37 So. 3d 187 (Fla. 2010)...................................21

Witt v. State,

387 So. 2d 922 (Fla. 1980).................................7, 26

Ybarra v. Filson,

869 F.3d 1016 (9th Cir. 2017)................................10

Zack v. State,

228 So. 3d 41 (Fla. 2017)....................................6

Zeigler v. State,

580 So. 2d 127 (Fla. 1991)................................19, 21

Statutes

28 U.S.C. § 1257(a).........................................1

Fla. Std. J. Inst. (Crim.) 7.11................................19, 21

vi

CITATION TO OPINION BELOW

The decision of the Florida Supreme Court is reported at Gamble v. State, 235

So.3d 288 (Fla. 2018). (Pet. App. A).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on January 29, 2018.

(Pet. App. A). Petitioner asserts that this Court’s jurisdiction is based upon 28 U.S.C.

§ 1257(a). Respondent agrees that this statutory provision sets out the scope of this

Court’s certiorari jurisdiction, but submits that this case is inappropriate for the

exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT OF THE CASE

On December 10, 1991, Guy R. Gamble and Michael Love murdered their

landlord, Helmut Kuehl by striking him on the head multiple times with a claw

hammer and by strangulation. Gamble and Love also stole the victim’s car and

wallet. Within the wallet was a blank check which Gamble forged and cashed in the

amount of $8,544. After cashing the check, Gamble and Love, accompanied by their

girlfriends, drove to Mississippi in the stolen car. Gamble subsequently abandoned

the group, but was later arrested. Gamble v. State, 659 So. 2d 242, 244–45 (Fla.

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1995) (footnotes omitted).

The jury found Gamble guilty of conspiracy to commit armed robbery, armed

robbery, and murder in the first degree and recommended the death sentence by a

ten-to-two vote. Id., at 244. The trial court sentenced Gamble to death, finding the

following aggravating circumstances: 1) the murder was cold, calculated, and

premeditated; and 2) committed for pecuniary gain. The court found one statutory

mitigating factor (Gamble's age of twenty) and several non-statutory factors. Id., at

244.

On appeal, the Florida Supreme Court affirmed Gamble’s convictions and

death sentence. Gamble v. State, 659 So. 2d 242, 246 (Fla. 1995). Gamble’s sentence

became final on February 20, 1996, when this Court denied certiorari review.

Gamble v. Florida, 516 U.S. 1122 (1996).

Gamble continued to seek relief from his convictions and death sentence

through postconviction litigation. Gamble v. State, 877 So. 2d 706 (Fla. 2004) After

the hearing, the trial court denied relief on all claims. Id. The Florida Supreme Court

affirmed the trial court’s order denying Gamble’s motion to vacate and the petition

for habeas corpus. Id. at 720.

Gamble subsequently filed a petition for habeas corpus in the United States

District Court for the Middle District of Florida, which was denied. Gamble v.

Crosby, 2005 WL 1618212 at *8 (M.D. Fla. July, 5 2005). Gamble then appealed to

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the United States Court of Appeals for the Eleventh Circuit, and the Court affirmed

the decision of the District Court. Gamble v. Secretary, Florida Dept. of Corrections,

450 F.3d 1245, 1251 (11th Cir. 2006). The United States Supreme Court denied

Gamble’s petition for certiorari review. Gamble v. McDonough, 549 U.S. 1002, 127

S.Ct. 510, 166 L.Ed.2d 381 (2006).

On January 5, 2017, Gamble 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. A), 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 Hitchcock v. State,

226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017). (Pet. App. B).

In Hitchcock, the Florida Supreme Court reaffirmed its previous holding in

Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017), ruling that

Hurst v. Florida as interpreted by Hurst v. State is not retroactive to defendants

whose death sentences were final when this Court decided Ring v. Arizona, 536 U.S.

584 (2002). After the court decided Hitchcock, it issued an order to show cause

directing Gamble to show why Hitchcock should not be dispositive in his case. The

Florida Supreme Court ultimately affirmed the lower court’s denial of relief, finding:

After reviewing Gamble's response to the order to show cause, as well

as the State's arguments in reply, we conclude that Gamble is not

3

entitled to relief. Gamble was sentenced to death following a jury's

recommendation for death by a vote of ten to two. Gamble v. State, 659

So. 2d 242, 244 (Fla. 1995). Gamble's sentence of death became final

in 1996. Gamble v. Florida, 516 U.S. 1122, 116 S.Ct. 933, 133 L.Ed.2d

860 (1996). Thus, Hurst does not apply retroactively to Gamble's

sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we

affirm the denial of Gamble's motion.

Gamble v. State, 235 So. 3d 288, 289 (Fla. 2018). (Pet. App. C).

Gamble now seeks certiorari review of the Florida Supreme Court’s decision.

4

REASONS FOR DENYING THE WRIT

Certiorari review should be denied because the Florida Supreme

court’s ruling on the retroactivity of Hurst relies 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, and the court’s ruling does not violate the Eighth or

Fourteenth Amendments and does not conflict with any decision of

this court or involve an important, unsettled question of federal

law.

Gamble requests that this Court review the Florida Supreme Court’s decision

affirming the denial of his successive postconviction motion and claims that the state

court’s holding with respect to the retroactive application of Hurst violates the

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

death penalty and the Fourteenth Amendment’s guarantee of equal protection.

However, the Florida Supreme Court’s denial of the retroactive application of Hurst

to Petitioner’s case is based on adequate and independent state grounds, is not in

conflict with this Court’s jurisprudence on retroactivity. Indeed, the Florida Supreme

Court’s decision granting partial retroactivity provides greater relief than this

Court’s own decisions would. Nor is there any conflict between the Florida Supreme

Court’s decision and that of any other federal appellate court or state supreme court.

Thus, because Gamble has not provided any “compelling” reason for this Court to

review his case, certiorari review should be denied. See Sup. Ct. R. 10.

Respondent would further note that this Court has repeatedly denied certiorari

to review the Florida Supreme Court’s retroactivity decisions following the issuance

5

of Hurst v. State. See, e.g., Jones v. State, 234 So. 3d 545 (Fla.), cert. denied, 2018

WL 1993786 (June 25, 2018); Zack v. State, 228 So. 3d 41 (Fla. 2017), cert. denied,

2018 WL 1367892 (June 18, 2018); Kaczmar v. State, 228 So. 3d 1 (Fla. 2017),

cert. denied, 138 S.Ct. 1973 (2018); Cole v. State, 234 So. 3d 644 (Fla.), cert. denied,

2018 WL 1876873 (June 18, 2018); 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); Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017).

CLAIM I. The Florida Court’s Ruling on the Retroactivity of Hurst is Not

Unconstitutional

The Florida Supreme Court’s holding in Hurst v. State, 202 So. 3d 40 (Fla.

2016), cert. denied, 137 S. Ct. 2161 (2017), followed this Court’s ruling in Hurst v.

Florida, 136 S. Ct. 616 (2016), 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

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

6

Hurst v. State, 202 So. 3d at 57.1

The Florida Supreme Court first analyzed the retroactive application of Hurst

in Mosley v. State, 209 So. 3d 1248, 1276-83 (Fla. 2016), and Asay v. State, 210 So.

3d 1, 15-22 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017). In Mosley, the Florida

Supreme Court held that Hurst is retroactive to cases which became final after this

Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), on June 24, 2002. 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. See 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. 293, 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. Danforth v. Minnesota,

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

The dissent observed that “[n]either the Sixth Amendment nor Hurst v. Florida

requires a jury to determine the sufficiency of the aggravation, the weight of the

aggravation relative to any mitigating circumstances, or whether a death sentence

should be imposed.” Hurst, 202 So. 3d at 82 (Canady, J., dissenting).

1

7

(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 v. Summerlin, 542 U.S. 348, 358 (2004)

(holding that “Ring announced a new procedural rule that does not apply

retroactively to cases already final on direct review”); Lambrix v. Secretary, Fla.

Dep’t of Corr., 872 F.3d 1170, 1182-83 (11th Cir. 2017), cert. denied, 138 S. Ct.

312 (2017) (noting that “[n]o 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.” Id. at 1283. It is this aspect of their reasoning

that gave rise to the idea of “fundamental fairness” under these unique

circumstances. Thus, the Florida Supreme Court held Hurst to be retroactive to

8

Mosley, whose case became final in 2009, which is post-Ring. Id.

Conversely, applying the Witt analysis in Asay v. State, 210 So. 3d 1, 22 (Fla.

2016), cert. denied, 138 S. Ct. 41 (2017), the Florida Supreme Court held that Hurst

is not retroactive to any case in which the death sentence was final pre-Ring. The

court specifically noted that Witt “provides more expansive retroactivity standards

than those adopted in Teague.” Asay, 210 So. 3d at 15 (emphasis in original) (quoting

Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005)).

The Florida Supreme Court then again reaffirmed their decision denying all

retroactive relief to cases that were final before Ring in Hitchcock v. State, 226 So.

3d 216, 217 (Fla. 2017) (stating: “our decision in Asay forecloses relief”), cert.

denied, 138 S. Ct. 513 (2017). The Florida Supreme Court in Hitchcock rejected

Eighth Amendment, equal protection, and due process challenges to its prior holding

in Asay. Hitchcock, 226 So. 3d at 217 (explaining that although Hitchcock referenced

“various constitutional provisions as a basis for arguments that Hurst v. State”

entitled him to a new sentencing proceeding, “these are nothing more than arguments

that Hurst v. State should be applied retroactively”).

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 Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138

S. Ct. 513 (2017); Lambrix v. State, 227 So. 3d 112, 113 (Fla. 2017), cert. denied,

9

138 S. Ct. 312 (2017); Hannon v. State, 228 So. 3d 505, 513 (Fla. 2017), cert. denied,

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

138 S. Ct. 1164 (2018). This distinction between cases which were final pre-Ring

versus cases which were final post-Ring is neither arbitrary nor capricious.2

Gamble misrepresents the rulings from the Florida Supreme Court addressing

retroactivity. In doing so, he improperly creates a second class of defendants in

which retroactivity allegedly applies, in order to circumvent the requirement that the

sentence must not be final prior to Ring. The Florida Supreme Court has never held

that Hurst is retroactive to any defendant who specifically preserved the Ring issue,

as Gamble suggests. To the contrary, the court has outright denied retroactive

application of Hurst to all cases that were final before Ring was decided. Whether

or not Gamble previously raised a Ring claim makes no difference in whether he is

entitled to relief because his sentence was final prior to Ring.

The analysis does not always permit retroactive application of a change in

law. Indeed, when discussing the fundamental fairness doctrine, the Florida Supreme

2

Federal courts have had little trouble determining that Hurst, like Ring, is not

retroactive at all under Teague. See Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d

1158, 1165 n.2 (11th Cir. 2017) (“under federal law Hurst, like Ring, is not

retroactively applicable on collateral review”), cert. denied, 138 S. Ct. 217 (2017);

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).

10

Court stated that, “fundamental fairness alone may require the retroactive

application of certain decisions involving the death penalty after the United States

Supreme Court decides a case that changes our jurisprudence.” Mosley v. State, 209

So. 3d 1248, 1274-75 (Fla. 2016) (emphasis added). The Florida Supreme Court

made it very clear that Hurst is not retroactive to defendants like Gamble, whose

sentence was final when Ring was announced. See Gaskin v. State, 218 So. 3d 399

(Fla. 2017) (“Because Gaskin’s sentence became final in 1993, Gaskin is not entitled

to relief under Hurst v. Florida.”) (citing Asay v. State); Bogle v. State, 213 So. 3d

833 (Fla. 2017) (rejecting defendant’s post-conviction claims “because Hurst does

not apply retroactively to cases that were final before Ring was decided). The Florida

Supreme Court has set a clear boundary for the retroactive application of Hurst.

Gamble is beyond that boundary. Gamble’s death sentence was finalized on

February 20, 1996, roughly six years prior to the Ring decision. Accordingly,

because Gamble’s death sentence was finalized well in advance of Ring, the

fundamental fairness doctrine of James does not apply to his case.

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

Hurst under the state law Witt standard is based on adequate and independent state

grounds and is not violative of federal law or this Court’s precedent. 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

11

independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935); see also 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.”); 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). 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); Long, 463 U.S. at 1041.

Any retroactive application of a new development in the law under any

analysis will mean that some cases will get the benefit of a new development, while

other cases will not. Drawing a line between newer cases that will receive benefit of

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

is part and parcel of the landscape of any retroactivity analysis. It is simply part of

the retroactivity paradigm that some cases will be treated differently than other cases

based on the age of the case. This is not arbitrary and capricious in violation of the

Eighth Amendment; it is simply a fact inherent in any retroactivity analysis.

Moreover, if partial retroactivity violated the United States Constitution or

this Court’s retroactivity jurisprudence, this Court would not have given partial

12

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).

Gamble’s suggestion that Florida’s retroactivity ruling violates the Equal

Protection Clause is also unpersuasive. 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.

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

murderers in general, and Gamble 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

13

2002. Gamble is being treated exactly the same as similarly situated death-sentenced

murderers.

Simply stated, this Court’s ruling in Hurst v. Florida applied Ring v. Arizona

to Florida’s death penalty procedure. “Ring announced a new procedural rule that

does not apply retroactively to cases already final on direct review.” Schriro, 542

U.S. at 352. As Hurst v. Florida was merely an application of the holding in Ring to

Florida’s death penalty procedure, it stands to reason that under this Court’s

retroactivity jurisprudence, Hurst v. Florida extends no further than does Ring. That

is, Hurst v. Florida, like Ring, “announced a new procedural rule that does not apply

retroactively to cases already final on direct review.” Schriro, 542 U.S. at 352. That

the Florida court decided to apply state law as set forth in Witt, to extend Hurst relief

to all post-Ring death-sentenced murderers is constitutionally immaterial and

provides no basis for the exercise of this Court’s certiorari jurisdiction.

CLAIM 2. Gamble’s Argument That His Jury Did Not Unanimously Find All

“Elements” Required to Convict Him of Capital Murder Is Just Another

Attack on Florida’s Retroactivity Decision.

Contrary to Gamble’s proposition, Hurst did not announce a substantive

change in the law and is not retroactive under federal law. This is just another attempt

at claiming a Sixth Amendment violation and amounts to yet another endeavor to

urge universal retroactivity of the Hurst decisions. As discussed above, however,

Hurst v. Florida is not retroactive under federal law, and Hurst v. State is not

14

retroactive under state law to cases that were final prior to the decision in Ring v.

Arizona. Teague v. Lane, 489 U.S. 288, 307 (1989), Schriro v. Summerlin, 542 U.S.

348 (2004), Asay v. State, 210 So. 3d 1 (Fla. 2016). Notably, even the right to a jury

trial itself is not so fundamental as to require retroactive application. DeStefano v.

Woods, 392 U.S. 631, 633-34 (1968).

Because the Florida Supreme Court’s retroactive application of Hurst in

Gamble’s case is based on adequate and independent state grounds, certiorari review

should be denied.

A. The Florida Court’s Ruling on the Retroactivity of Hurst v. Florida and

Hurst v. State Is a Matter of State Law That Does Not Violate the United States

Constitution.

Quince asserts that the exception to retroactivity announced in Teague is

applicable to Hurst. Aside from the question of retroactivity, certiorari would be

inappropriate in this case because there is no underlying federal constitutional error

as 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.

Gamble became eligible for a death sentence by virtue of his guilt phase

conviction for a contemporaneous violent felony - armed robbery. 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

15

Sixth Amendment’s fact-finding requirement. See Jenkins v. Hutton, 137 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.”); Alleyne

v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (recognizing the “narrow

exception . . . for the fact of a prior conviction” set forth in Almendarez-Torres v.

United States, 523 U.S. 224 (1998)).

B.

The Additional Requirements Imposed By Hurst v. State Did Not Create

“Elements” Of A Capital Offense

This Court’s ruling in Hurst v. Florida was a narrow one: “Florida’s

sentencing scheme, which required the judge alone to find the existence of an

aggravating circumstance, is . . . unconstitutional.” Hurst v. Florida, 136 S. Ct. at

624 (emphasis added). The Florida Supreme Court expanded that narrow Sixth

Amendment holding by 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 the mitigating

16

circumstances, and unanimously recommend a sentence of death.” Hurst v. State,

202 So. 3d at 57. Florida's new capital sentencing scheme, neither alters the

definition of criminal conduct nor increases the penalty by which the crime of firstdegree murder is punishable. Victorino v. State, 241 So. 3d 48 (Fla. 2018). These

additional requirements imposed by Hurst v. State are not “elements” of a capital

offense, contrary to Gamble’s argument. This Court in 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 just 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 juror 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 the defendants

must deserve mercy beyond a reasonable doubt, or must more-likelythan-not 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.

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

17

Amendment. 3 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.

C. Hurst’s Retroactivity Does Not Address The Proof Beyond A Reasonable

Doubt Standard

Both Hurst and Hurst v. State cited Alleyne v. United States, 570 U.S. 99, 104

(2013), which held any facts that increases the mandatory minimum sentence for an

offense must be submitted to the jury and found beyond a reasonable doubt because

“the Sixth Amendment applies where a finding of fact both alters the legally

prescribed range and does so in a way that aggravates the penalty.” Alleyne, 570 U.S.

at 99, 102, 113 n.2. The Alleyne Court explained, “this is distinct from factfinding

3

State v. Mason, ___ N.E.3d ___, 2018 WL 1872180, *5-6 (Ohio, April 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”).

18

used to guide judicial discretion in selecting a punishment within limits fixed by

law.” Id. at 113 n.2. “While such findings of fact may lead judges to select sentences

that are more severe than the ones they would have selected without those facts, the

Sixth Amendment does not govern that element of sentencing.” Id.

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,” Gamble relies upon Ivan V., Fiore, and Powell. Ivan

V. v. City of New York, 407 U.S. 203, 205 (1972); Fiore v. White, 531 U.S. 225

(2001); Powell v. Delaware, 153 A. 3d 69 (Del. 2016). However, neither Ivan V.,

nor Fiore, which concerned the proof-beyond-a-reasonable-doubt standard, is

relevant to any retroactivity analysis in Florida. Hurst did not address the proofbeyond-a-reasonable-doubt standard. The standard of proof for proving aggravating

factors in Florida has been beyond a reasonable doubt long before Hurst was

decided. See Fla. Std. J. Inst. (Crim.) 7.11; 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).

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). Florida’s

19

aggravating factors are enumerated in section 921.141(6), Florida Statues. 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 Sixth 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. 163, 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) (“[T]he 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

20

the weight given to mitigation is also not something that can be defined by a beyonda-reasonable-doubt standard.

If a rule of law it not new, there is no retroactivity analysis required. Butler v.

McKellar, 494 U.S. 407, 412 (1990) (defining a “new rule” for purpose of

retroactivity as one that “breaks new ground or imposes a new obligation,” such as

a decision that explicitly overrules an earlier holding). Florida’s standard of proof

for aggravating circumstances is not new. See Fla. Std. J. Inst. (Crim.) 7.11; 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). Florida law has

required that the State prove aggravators at the beyond-a-reasonable-doubt standard

of proof for over three decades. Williams v. State, 37 So. 3d 187, 194-95 (Fla. 2010)

(stating that the State has the burden to prove beyond a reasonable doubt each and

every aggravating circumstance); Aguirre-Jarquin v. State, 9 So. 3d 593, 607 (Fla.

2009) (explaining that the State must prove the existence of an aggravator beyond a

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

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

proven “beyond a reasonable doubt”). Proving aggravators beyond a reasonable

doubt is not new in Florida, thus neither case is analogous to Hurst and is irrelevant

in Florida. Unless two cases involve the same issues, the two cases cannot conflict.

Likewise, while the Delaware Supreme Court held that its prior decision in

21

Rauf v. State, 145 A. 3d 430 (Del. 2016), was fully retroactive in Powell, it did so as

a matter of state law. Under Danforth, each state is permitted to apply its own

decisions as broadly as they choose. Moreover, the Delaware case involved a

standard of proof issue that the Florida cases did not. Powell, 153 A. 3d at 74. The

Delaware Supreme Court used this fact to distinguish Hurst from Delaware’s

“watershed ruling” in Rauf which was the basis for Delaware to find that Rauf

retroactively applied to under Teague. Powell, 153 A. 3d at 74; . Thus, Powell

applies Delaware’s specific law and is not in conflict with the Florida Supreme

Court’s determination of the retroactive application of Hurst. As Florida’s and

Delaware’s death penalty statutes are different, an interpretation by the Supreme

Court of Delaware that Hurst should be given full retroactive effect is not in conflict

with the decision of the Florida Supreme Court. As only Delaware’s case law calls

for the retroactive application of Hurst beyond Ring, there is no conflict between the

Florida Supreme Court’s retroactive application and any other state court of last

resort.

D.

Gamble’s Sentencing Scheme Did Not Violate His Due Process Rights

To the extent Gamble 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)

(“[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 the fact that an aggravating factor

22

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

(holding that the Constitution does not prohibit the trial judge from “impos[ing] 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. Gamble’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. Gamble cannot establish that his sentencing procedure was less accurate than

future sentencing procedures employing the new standards announced in Hurst v.

State, 202 So. 3d 40 (Fla. 2016). Certainly, other than speculation, Gamble has

neither identified nor established any particular lack of reliability in the proceedings

used to impose his death sentence. 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 v. Florida. As this Court

23

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).

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. Gamble’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. Gamble disregards the fact that all offenders on

death row were placed there after determination of guilt, through plea or trial, of first

degree murder, beyond a reasonable doubt; therefore, each and every one of the

offenders was found culpable for the most severe of all criminal offenses. Thus,

because the accuracy of Gamble’s death sentence is not at issue, fairness does not

demand retroactive application of Hurst.

E. Conclusion: Hurst v. Florida and Hurst v. State Are Not Retroactive under

Teague

The Florida Supreme Court’s partial retroactivity analysis is based on the state

retroactivity test of Witt, not the federal retroactivity test of Teague. The Florida

Supreme Court did not employ a Teague analysis in either Asay or Mosley. Instead,

24

in both cases, the Florida Supreme Court invoked state retroactivity tests. The

Florida Supreme Court, using a state test for retroactivity, gave both Hurst v. Florida

and Hurst v. State broader retroactive application than a Teague analysis would do.

When the Danforth Court spoke of state courts being free to choose the “degree of

retroactivity” that includes partial retroactivity analysis. And that is exactly what the

Florida Supreme Court did in Asay, Hitchcock, and this case.

If a case is not retroactive under the broader Witt test, which the Florida

Supreme Court used in Asay, it is certainly not retroactive under the narrower federal

test for retroactivity in Teague. See Asay, 210 So. 3d at 15 (describing the Witt test

as “more expansive” than Teague) (citing Johnson v. State, 904 So. 2d 400, 409 (Fla.

2005)). See also Lambrix v. Secretary, Fla. Dept. of Corr., 851 F.3d 1158, 1165 n.2

(11th Cir. 2017) (holding that “under federal law Hurst, like Ring, is not retroactively

applicable on collateral review”); Lambrix v. Secretary, Fla. Dept. of Corr., ___ F.3d

___, 2017 WL 4416205, *8 (11th Cir. Oct. 5, 2017) (concluding this Court’s holding

in Asay to be “fully in accord with the U.S. Supreme Court’s precedent in Ring and

Schriro”), cert. denied, Lambrix v. Jones, 2017 WL 4456332 (Oct. 5, 2017). Hurst

is not retroactive under federal law.

Furthermore, the Florida Supreme Court’s partial retroactivity analysis

provides more relief than this Court’s retroactivity analysis does. The Florida

Supreme Court has already granted more capital defendants retroactive relief than

25

this Court would under a Teague analysis. Whereas, this Court, following its

Summerlin precedent, would deny every Florida capital defendant retroactive relief,

the Florida Supreme Court, following its Asay and Hitchcock precedent, has granted

over a hundred Florida capital defendants retroactive relief.

What Gamble is

arguing is that, while this Court itself would not grant any capital defendant

retroactive relief, the Florida Supreme Court is somehow constitutionally required

to grant even more retroactive relief than its current partial retroactivity analysis

does.

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.

26

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 26th 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 email and U.S. mail to: Ann Marie Mirialakis, Counsel for Petitioner, Office

of Capital Collateral Regional, Counsel - Middle Region, 12973 N. Telecom

Parkway, Temple Terrace, Florida 33637 email: mirialakis@ccmr.state.fl.us and

27

support@ccmr.state.fl.us.

s/ Doris Meacham

COUNSEL FOR RESPONDENT

28

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.

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