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.
1
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
2
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.