Opposition Brief — Jeremiah Rodgers, Petitioner v. Florida

No. 18-113

In the

Supreme Court of the United States

_______________

JEREMIAH RODGERS,

v.

STATE OF FLORIDA,

_______________

Petitioner,

Respondent.

On Petition For A Writ Of Certiorari

To The Florida Supreme Court

_______________

BRIEF IN OPPOSITION

_______________

PAMELA JO BONDI

Attorney General of Florida

CAROLYN M. SNURKOWSKI

CHARMAINE M. MILLSAPS

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3681

amit.agarwal@

myfloridalegal.com

AMIT AGARWAL

Solicitor General

*Counsel of Record

EDWARD M. WENGER

Chief Deputy Solicitor

General

CHRISTOPHER J. BAUM

Deputy Solicitor General

Counsel for Respondent

i

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether a state prisoner whose death

sentence became final before this Court’s decision in

Hurst v. Florida, 136 S. Ct. 616 (2016), has a federal

right to seek postconviction relief in state court based

on Hurst, even though (1) this Court has never held

that Hurst applies retroactively as a matter of federal

law, and (2) this Court has held that Ring v. Arizona,

536 U.S. 584 (2002)—the case on which Hurst was

based—does not apply retroactively as a matter of

federal law.

2. Whether federal law gives a state prisoner

the right to seek postconviction relief in state court

based on Hurst, even if the prisoner (1) did not ask for

a jury to make any findings—advisory or mandatory—

during the sentencing phase of the proceeding,

(2) expressly asked for the trial court to make all

sentencing determinations, and (3) waived the right to

seek any future postconviction relief, while

acknowledging that such a decision would effectively

mean that “the case is over.”

3. Whether, assuming Petitioner has a federal

right to seek postconviction relief in state court based

on Hurst, the denial of Petitioner’s motion should be

affirmed because this Court’s caselaw forecloses any

claim that the Sixth Amendment gives a defendant

the right to insist that a jury find the fact of a prior

conviction, that aggravators outweigh mitigators, or

that death is the appropriate sentence.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................i

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

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

STATEMENT .............................................................. 1

REASONS FOR DENYING THE PETITION ............ 9

I. This case is an unsuitable vehicle for considering

the question Petitioner presents, and the decision

below does not conflict with this Court’s

precedents or implicate a split between the lower

courts. ..................................................................... 9

II. Petitioner’s independent waiver of all

postconviction proceedings bars Hurst relief, and

the validity of that waiver is not

presented here. ..................................................... 19

III. Even if Petitioner has a federal right to seek

retroactive application of the Hurst decisions,

Petitioner is not entitled to any relief. ................ 32

CONCLUSION .......................................................... 36

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ................................................ 33

Alston v. State,

243 So. 3d 885 (Fla. 2018)...................................... 22

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................ 1, 33

Asay v. State,

210 So. 3d 1 (Fla. 2016)........................................ 3, 4

Brady v. United States,

397 U.S. 742 (1970) .................................... 26, 29, 30

Brant v. State,

197 So. 3d 1051 (Fla. 2016)................................ 8, 12

Danforth v. Minnesota,

552 U.S. 264 (2008) .................................................. 3

Demosthenes v. Baal,

495 U.S. 731 (1990) ................................................ 23

Durocher v. Singletary,

623 So. 2d 482 (Fla. 1993)........................................ 7

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

699 F.3d 1249 (11th Cir. 2012) ................................ 2

Gilmore v. Utah,

429 U.S. 1012 (1976) .............................................. 23

Halbert v. Michigan,

448 U.S. 725 (1980) .................................... 29, 30, 31

iv

Hildwin v. Florida,

490 U.S. 638 (1989) .............................................. 1, 2

Hurst v. Florida,

--- U.S. ---, 136 S. Ct. 616 (2016) .................... passim

Hurst v. State,

147 So. 3d 435 (Fla. 2014)........................................ 2

Hurst v. State,

202 So. 3d 40 (Fla. 2016)........................ 3, 15, 16, 34

In re Coley,

871 F.3d 455 (6th Cir. 2017) .................................. 11

In re Jones,

847 F.3d 1293 (10th Cir. 2017) .............................. 11

Iowa v. Tovar,

541 U.S. 77 (2004) .................................................. 29

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

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

McMann v. Richardson,

397 U.S. 759 (1970) .................................... 26, 29, 30

Moran v. Burbine,

475 U.S. 412 (1986) ................................................ 25

Mosley v. State,

209 So. 3d 1248 (Fla. 2016).......................... 4, 12, 18

Mullens v. State,

197 So. 3d 16 (Fla. 2016).......................................... 8

Neder v. United States,

527 U.S. 1 (1999) .................................................... 33

People v. Isaacks,

133 P.3d 1190 (Colo. 2006) .................................... 13

v

People v. Montour,

157 P.3d 489 (Colo. 2007) ...................................... 13

Rees v. Peyton,

384 U.S. 312 (1966) ................................................ 23

Rhines v. Young,

899 F.3d 482 (8th Cir. 2018) .................................. 11

Ring v. Arizona,

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

Rodgers v. State,

104 So. 3d 1087 (Fla. 2012)...................................... 8

Rodgers v. State,

242 So. 3d 276 (Fla. 2018)...................................... 20

Rodgers v. State,

3 So. 3d 1127 (Fla. 2009)................................ passim

Rodgers v. State,

934 So. 2d 1207 (Fla. 2006).................................. 4, 5

Schriro v. Summerlin,

542 U.S. 348 (2004) ...................................... 3, 10, 11

Spaziano v. Florida,

468 U.S. 447 (1984) .................................................. 1

State v. Curtis,

108 P.3d 1233 (Wash. App. 2005) .......................... 13

State v. Dettman,

719 N.W.2d 644 (Minn. 2006) ................................ 13

State v. Foster,

845 N.E.2d 470 (Ohio 2006) ................................... 14

State v. Franklin,

878 A.2d 757 (N.J. 2005) ........................................ 13

vi

State v. King,

168 P.3d 1123 (N.M. 2007) .................................... 13

State v. Meynardie,

616 S.E.2d 21 (N.C. App. 2005) ............................. 13

State v. Schofield,

895 A.2d 927 (Me. 2005) ........................................ 14

State v. Silvia,

235 So. 3d 349 (Fla. 2018)................................ 24, 27

State v. Ward,

118 P.3d 1122 (Ariz. Ct. App. 2005) ...................... 14

State v. Williams,

104 P.3d 1151 (Or. App. 2005) ............................... 14

Teague v. Lane,

489 U.S. 288 (1989) .................................................. 3

Tyler v. Cain,

533 U.S. 656 (2001) .................................................. 9

United States v. Rodgers,

No. 3:98-cr-00073 (N.D. Fla. June 29, 1999) ......... 32

United States v. Ruiz,

536 U.S. 622 (2002) .......................................... 26, 30

United States v. Simpson,

430 F.3d 1177 (D.C. Cir. 2005) ........................ 26, 31

Walton v. Arizona,

497 U.S. 639 (1990) .................................................. 2

Ybarra v. Filson,

869 F.3d 1016 (9th Cir. 2017) ................................ 11

Yee v. City of Escondido,

503 U.S. 519 (1992) ................................................ 10

vii

Youakim v. Miller,

425 U.S. 231 (1976) ................................................ 10

Statutes

28 U.S.C. § 1257 ........................................................ 12

28 U.S.C. § 2244 .......................................................... 9

§ 921.141, Fla. Stat. (1983) ................................... 1, 32

Rules

Fla. R. of Crim. P. 3.851 .................................... passim

1

STATEMENT

1.

When Petitioner Jeremiah Rodgers was

sentenced to death in 2007, a defendant convicted of a

capital crime in Florida could be sentenced to death

only if the trial judge found both (1) the existence of at

least one statutorily enumerated aggravating

circumstance,

and

(2) that

the

aggravating

circumstances

outweighed

the

mitigating

circumstances. Spaziano v. Florida, 468 U.S. 447,

451-52 & n.4 (1984) (citing § 921.141(2)(b), (3)(b), Fla.

Stat. (1983)). A sentencing jury would render an

advisory verdict, but the judge would make the

ultimate sentencing determination. See id. (citing

§ 921.141(3), Fla. Stat. (1983)). This Court had upheld

that regime as constitutional, including under the

Sixth Amendment. See Hildwin v. Florida, 490 U.S.

638 (1989).

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

this Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a

reasonable doubt,” even if the State characterizes the

additional factual findings made by the judge as

“sentencing factor[s].” Id. at 483, 490, 492. Ring v.

Arizona extended Apprendi to findings on the

aggravating factors necessary to impose a death

sentence. 536 U.S. 584 (2002). The Court held that,

“[b]ecause Arizona’s enumerated aggravating factors

[necessary to impose a death sentence] operate as ‘the

functional equivalent of an element of a greater

offense,’ the Sixth Amendment requires that they be

2

found by a jury.” Id. at 609 (quoting Apprendi, 530

U.S. at 494 n.19).

Neither Apprendi nor Ring overruled Hildwin, 490

U.S. at 640-41, which until Hurst was this Court’s

“last word in a Florida capital case on the

constitutionality of that state’s death sentencing

procedures.” Hurst v. State, 147 So. 3d 435, 446-47

(Fla. 2014). Indeed, in Ring, the Court

acknowledged—but did not address—“hybrid” capital

sentencing procedures, like Florida’s, in which the

judge decides the ultimate sentence but the jury has

an advisory role. See Ring, 536 U.S. at 608 n.6. The

Court recognized that in both Ring and the case it

overruled, Walton v. Arizona, 497 U.S. 639 (1990), the

Court had analyzed Arizona’s capital procedures,

which differ considerably from those of other states.

Accordingly, in the years following Ring, both the

Florida Supreme Court and the Eleventh Circuit

declined to extend Ring to Florida’s capital sentencing

scheme, reasoning that the lower courts were bound

by this Court’s pre-Ring decisions, such as Hildwin,

all of which had upheld Florida’s procedures against

Sixth Amendment attack. See, e.g., Hurst, 147 So. 3d

at 447; Evans v. Secretary, Fla. Dep’t of Corr., 699 F.3d

1249, 1264 (11th Cir. 2012), cert. denied, Evans v.

Crews, 569 U.S. 994 (2013).

In 2016, this Court granted certiorari in Hurst v.

Florida “to resolve whether Florida’s capital

sentencing scheme violates the Sixth Amendment in

light of Ring.” 136 S. Ct. 616, 621 (2016) (citations

omitted) (“Hurst”). The Court held that Florida’s

capital sentencing scheme suffered from the same

Sixth Amendment infirmity as did Arizona’s scheme

3

in Ring. Id. at 621-22. It therefore expressly overruled

its pre-Ring decisions upholding Florida’s capital

sentencing scheme to the extent that they allowed a

sentencing judge, rather than a jury, to find an

aggravating circumstance necessary to impose the

death penalty. Id. at 624.

2. Shortly after this Court decided Ring, it held

that Ring is not retroactive as a matter of federal law.

See Schriro v. Summerlin, 542 U.S. 348, 353 (2004).

This Court characterized its decision in Hurst v.

Florida as a straightforward application of its holding

in Ring, 136 S. Ct. at 622, and the Florida Supreme

Court’s decision in Hurst v. State purported to apply

the teaching of Hurst v. Florida. 202 So. 3d at 50-69.

Accordingly, the Florida Supreme Court has ruled

that its decision in Hurst v. State does not apply

retroactively as a matter of federal law. Asay v. State,

210 So. 3d 1, 15-22 (Fla. 2016). Petitioner does not ask

this Court to review that ruling. See Pet. i.

This Court has never held that Hurst applies

retroactively under federal law to postconviction

applicants, like Petitioner, whose sentences were final

on direct review when Hurst was decided. Such

applicants thus are not currently entitled under

federal law to a new sentencing hearing if a judge, not

a jury, made the penalty-phase findings necessary to

impose the death penalty.

3. Under Florida law, meanwhile, Hurst does

apply retroactively in some cases. That is because the

federal retroactivity test, the “much narrower Teague

[v. Lane, 489 U.S. 288 (1989)] test,” uses “completely

different factors from Florida’s” retroactivity test.

Asay, 210 So. 3d at 15; see Danforth v. Minnesota, 552

4

U.S. 264, 282 (2008) (“Teague . . . does not in any way

limit the authority of a state court, when reviewing its

own state criminal convictions, to provide a remedy

for a violation that is deemed ‘nonretroactive’ under

Teague.”).

In Asay v. State, the Florida Supreme Court

concluded that, under state law, Hurst did not apply

retroactively to cases in which the death sentence

became final before Ring was decided in 2002. 210 So.

3d at 11, 22. Then, in Mosley v. State, the Florida

Supreme Court addressed the question it had

reserved in Asay—whether Hurst should apply

retroactively under state law to death sentences that

became final after Ring. 209 So. 3d 1248, 1274 (Fla.

2016). The court concluded that capital defendants

falling into this category should normally benefit from

Hurst because, “[f]or fourteen years after Ring, until

the United States Supreme Court decided Hurst v.

Florida, Florida’s capital defendants attempted to

seek relief based on Ring, both in this Court and the

United States Supreme Court.” Id. at 1275. In other

words, Hurst made clear that “Florida’s capital

sentencing statute was unconstitutional from the time

that the United States Supreme Court decided Ring,”

id. at 1281, so “[f]undamental fairness” compelled the

court to hold, under state law, that “[d]efendants who

were sentenced to death under Florida’s former,

unconstitutional capital sentencing scheme after

Ring” should normally benefit from Hurst, id. at 1283.

4. Rodgers’ death sentence became final in 2009,

before Hurst, but after Ring. In 2000, Petitioner

entered a plea of guilty as a principal to the

first-degree murder of Jennifer Robinson; conspiracy

5

to commit murder; giving alcohol to a minor; and

abusing a human corpse. Rodgers v. State, 934 So. 2d

1207, 1210 (Fla. 2006). Petitioner acknowledged the

following in a statement to police:

Rodgers . . . [took] Robinson on a date as part of

a plan. Rodgers met Robinson’s mother and

then drove to [co-defendant] Lawrence’s house

to pick him up and use Lawrence’s truck.

Lawrence had already purchased Everclear

grain alcohol, and they stopped at a gas station

to pick up Mountain Dew and Dr. Pepper soft

drinks to mix with the alcohol. They drove as

far as they could into the woods and pretended

to wait for Lawrence’s girlfriend to arrive,

although Lawrence and Rodgers knew that she

was not coming. While pretending to wait, they

mixed large portions of the alcohol with the soft

drinks for Robinson, while drinking very little

alcohol themselves. Rodgers and Robinson

engaged in consensual sex. While this occurred,

Lawrence walked into the woods to fix his

handgun, which had jammed. When Lawrence

returned, he handed the weapon to Rodgers.

Rodgers convinced Robinson to go with him to

look at a marijuana field, which did not exist,

and as they were walking to Lawrence’s truck,

Rodgers shot her in the back of the head. The

two men then placed Robinson’s body in the

back of the truck and drove to a place where

they attempted to burn her clothes and then

covered the body with debris.

Id. Rodgers also received a life sentence for a different

murder committed with Lawrence, the stabbing

6

murder of Justin Livingston. Id. at 1210-11. The

Florida Supreme Court affirmed the convictions but

remanded for a new penalty phase based on excluded

evidence regarding Lawrence’s culpability. Id. at

1221-22.

At the second penalty phase, Rodgers waived the

statutory right to empanel a penalty-phase jury and

affirmatively requested that the trial court make all

sentencing findings. Rodgers v. State, 3 So. 3d 1127,

1130 (Fla. 2009). 1 Explaining that decision, Rodgers

explained that she “trust[ed] the Court’s judgment

better than people who I think are more against me

than for me—more against me than neutral, I should

say.” Id. at 1130. Rodgers did not say or imply that she

might have made a different decision if she had

thought that the jury’s findings would be binding on

the court. To the contrary, she elected to “go without

the jury” because she believed that death was the

proper sentence and did not want any jury findings to

bind the court’s decision: “I can count on a death

sentence with you [the judge] I feel, but with this jury,

I mean, it could go six/six or I don’t know how it’s going

to go.” Id.

Following a bench trial, the judge found two

aggravating circumstances: (1) the prior violent

felony; and (2) cold, calculated, and premeditated. Id.

at 1133. Rodgers appealed, but the Florida Supreme

Court affirmed the death sentence on direct review.

Id.

1

For purposes of this brief, the State adopts the pronoun used

in the Petition. See Pet. at 4 n.1.

7

Petitioner subsequently wrote a letter to the state

postconviction court, seeking to waive the right to

postconviction counsel and to all postconviction

proceedings. As required by state law, the court held

a hearing to ensure that Petitioner’s waiver was

knowing and intelligent. Durocher v. Singletary, 623

So. 2d 482, 485 (Fla. 1993); see Fla. R. Crim P. 3.851(i).

In a colloquy, the trial court warned that, absent a

waiver, future developments could result in the

commutation or invalidation of Petitioner’s sentence.

Tr. of Hearing on Waiver of Right to Postconviction

Counsel & Right to Institute Postconviction

Proceedings at 16-17. For example, a court “may find

that you’re entitled to relief either in the form of a new

trial or a sentence from death to life imprisonment.”

Id. at 17. Similarly, there was “a possibility” that

judicial rulings or new legislation could result in

Petitioner’s sentence being “commuted.” Id. If

Petitioner waived the right to seek further

postconviction relief, however, that “basically means

the case is over.” Id. at 20. Petitioner responded: “I

understand.” Id.

The court also explained that “that would include

a federal review of state claims. Do you understand

that as well?” Petitioner responded: “Yes, I do.” The

trial court continued: “Do you also understand . . . that

state postconviction motions and federal habeas

corpus proceedings or petitions have time limitations?

And that even if you wanted to reinstate the

proceedings at a later date, you may waive those type

[of] proceedings and it may be too late for you to do so

in either state or federal or both courts?” Petitioner

responded: “Yes, I do.” Following the hearing, the

court found that Petitioner was competent and had

8

“freely, voluntarily, and intelligently” waived all

postconviction proceedings.

The Florida Supreme Court affirmed Petitioner’s

waiver, concluding that Petitioner “was fully aware of

and understood the consequences of waiving

postconviction counsel and proceedings.” Rodgers v.

State, 104 So. 3d 1087 (Fla. 2012) (Table). Petitioner

did not ask this Court to review that ruling.

5. In 2017, Petitioner filed a new postconviction

motion in the state trial court, seeking relief under

Hurst v. Florida and Hurst v. State pursuant to

Florida Rule of Criminal Procedure 3.851. Pet. App.

12a. The trial court denied Petitioner’s motion. Id.

Petitioner, the court stressed, had “waived” the right

to a “second penalty phase jury,” and had “discharged

postconviction counsel and waived postconviction

proceedings.” Id. The trial court and the Florida

Supreme Court had found both of those waivers “to be

valid.” Id. at 12a-13a (citing Rodgers, 3 So. 3d at

1132-33, & Rodgers, 104 So. 3d at 1087).

The Florida Supreme Court unanimously affirmed

the denial of Petitioner’s motion for postconviction

relief. Pet. App. 1a. First, it explained that it has

“consistently held that the Hurst decisions do not

apply to defendants, like Rodgers, who waive a

penalty phase jury.” Id. (citing Mullens v. State, 197

So. 3d 16, 40 (Fla. 2016), cert. denied, Mullens v.

Florida, 137 S. Ct. 672 (2017) & Brant v. State, 197

So. 3d 1051, 1079 (Fla. 2016)). Second, the court

rejected Petitioner’s “attac[k] [on] the waiver itself,”

as the court “ha[d] long since affirmed Rodgers’ waiver

of a penalty phase jury” and Petitioner had not

identified any reason that the court should revisit the

9

waiver’s validity. Pet. App. 2a. The court also

“agree[d] with the circuit court that the time for

Rodgers

to

contest

the

prior

competency

determination has passed.” Id. (citing Fla. R. Crim. P.

3.851(d)(1)).

REASONS FOR DENYING THE PETITION

I. THIS

CASE

IS

AN

UNSUITABLE

VEHICLE

FOR

CONSIDERING THE QUESTION PETITIONER PRESENTS,

AND THE DECISION BELOW DOES NOT CONFLICT WITH

THIS COURT’S PRECEDENTS OR IMPLICATE A SPLIT

BETWEEN THE LOWER COURTS.

A. Whether Petitioner has waived any federal

constitutional right recognized in Hurst v.

Florida is not properly before this Court

because Petitioner’s sentence was already final

by the time Hurst was decided and Hurst does

not apply retroactively as a matter of federal

law.

1. This Court has not held that Hurst applies

retroactively to sentences—like Petitioner’s—that

had already become final on direct review. What is

more, Petitioner does not contend that Hurst applies

retroactively under federal law. Thus, this Court’s

ruling in Hurst does not give Petitioner any federal

right that Petitioner could assert in a state

postconviction proceeding. And whether Petitioner

has a “federal constitutional right” (Pet. i.) to begin

with is necessarily a question antecedent to whether

Petitioner has validly waived any such right. As a

result, to reach the waiver question Petitioner

presents, the Court would first have to hold that Hurst

applies retroactively under federal law. See Tyler v.

10

Cain, 533 U.S. 656, 663 (2001) (“[A] new rule is not

‘made retroactive to cases on collateral review’ unless

the Supreme Court holds it to be retroactive” (quoting

28 U.S.C. § 2244(b)(2)(A))). This threshold question

counsels strongly against granting the Petition, for

several reasons.

First, the federal-law retroactivity issue is not

fairly included within the question presented.

Nowhere does Petitioner request that this Court

consider the question of whether Hurst applies

retroactively. And that is a distinct question of law—

for example, in Schriro v. Summerlin, the Court

granted certiorari to decide the sole question of

whether Ring applied retroactively. 542 U.S. 348, 349

(2004). Considering whether Petitioner’s 2007 jury

waiver precludes her from seeking Hurst relief “would

not assist in resolving whether” Hurst applies

retroactively, Yee v. City of Escondido, 503 U.S. 519,

537 (1992), so the Teague retroactivity analysis is

simply a question distinct from the effectiveness of her

2007 jury waiver.

Second, the retroactivity issue was neither pressed

nor passed on below. See Youakim v. Miller, 425 U.S.

231, 234 (1976). Although Petitioner argued in the

state postconviction trial court that Hurst applied

retroactively under federal law, Pet. App. 59a-62a,

Petitioner did not argue as much before the Florida

Supreme Court. See Pet. App. 14a-39a. Nor did the

Florida Supreme Court address the issue. Pet. App.

1a-10a.

Third, the retroactivity issue is not certworthy: the

courts of appeals are not divided on Hurst’s

retroactivity. Each circuit faced with the issue has

11

either held that, like Ring, Hurst is not retroactive, or

noted that only this Court can hold that Hurst is

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

851 F.3d 1158, 1165 n.2 (11th Cir.), cert. denied sub

nom. Lambrix v. Jones, 138 S. Ct. 217 (2017) (“[U]nder

federal law Hurst, like Ring, is not retroactively

applicable on collateral review.” (citing Schriro, 542

U.S. at 358)); Ybarra v. Filson, 869 F.3d 1016, 1032

(9th Cir. 2017) (same); see also Rhines v. Young, 899

F.3d 482, 499 (8th Cir. 2018) (“The opinion in Hurst

made no mention of retroactivity, and no subsequent

Supreme Court decision has made Hurst

retroactive.”); In re Coley, 871 F.3d 455, 457 (6th Cir.

2017) (same); In re Jones, 847 F.3d 1293, 1296 (10th

Cir. 2017) (same). None has even expressed the view

that Hurst is likely retroactive.

But even if the Court were inclined to consider

whether Hurst applies retroactively, the Court’s

precedents make clear that Hurst does not apply

retroactively under federal law. “Ring announced a

new procedural rule that does not apply retroactively

to cases already final on direct review.” Schriro, 542

U.S. at 358. It merely “altered the range of permissible

methods for determining whether a defendant’s

conduct is punishable by death” and, as such, was a

“prototypical procedural rul[e].” Id. at 353. Hurst, as a

mere application of Ring to Florida’s capital

sentencing procedures, similarly announced only a

prototypical procedural rule. 136 S. Ct. at 621-22. As

the Ninth Circuit has explained, “[i]f neither Ring nor

Apprendi apply retroactively, we fail to see why Hurst

would apply retroactively.” Ybarra, 869 F.3d at 1033.

And “it is not clear that Hurst actually establishes a

new rule of constitutional law at all. Instead, it may

12

be nothing more than a direct application of Ring.” Id.

at 1031.

In short, Petitioner has not asked this Court to

decide whether Hurst is retroactive as a matter of

federal law; that logically antecedent question is not

independently certworthy; and the Court’s precedents

establish that Hurst is not retroactive. Thus, this case

does not present the question whether, under federal

law, Petitioner has made “a knowing and intelligent

waiver of the federal constitutional right to have a

jury make all requisite findings for the imposition of

death,” Pet. i.

2. It is no answer to argue that, under state law,

the Hurst decisions should be deemed to be

retroactively applicable to Petitioner’s case. See Pet.

9. For purposes of Florida law, the Florida Supreme

Court has held that the Hurst decisions are, in

general, retroactively applicable to death sentences

that became final after Ring. Mosley, 209 So. 3d at

1274. However, the Florida Supreme Court has also

held that a prisoner whose sentence became final after

Ring but who waived the right to a penalty-phase jury

may not benefit from that state-law retroactivity

ruling. Brant, 197 So. 3d at 1079; see Pet. App. 1a.

Federal law does not give Petitioner the right to pick

and choose only those aspects of the Florida Supreme

Court’s state-law retroactivity jurisprudence that are

favorable to Petitioner’s position, and this Court

should not second-guess the extent to which a state

court opts to make a new right retroactively applicable

under state law. See 28 U.S.C. § 1257(a).

In short, Schriro forecloses any argument that

federal law gives Petitioner a right to invoke the Hurst

13

decisions retroactively, and the Court lacks

jurisdiction to decide whether state law gives

Petitioner such a right.

Because this case does not raise the question

Petitioner presents, this Court need not consider the

various issues mentioned in the Petition and by Amici.

Each puts the cart before the horse by asking whether

the waiver of a “federal constitutional right” was

effective (e.g., Pet. i, 19, 23) while simply assuming the

existence of the right to be waived. And each argues

as if this Court has already held that the Hurst

decisions are retroactive under federal law.

For the same reason, the purported split to which

Amici point is not implicated here. Amici contend that

“[n]umerous states have concluded that a defendant

cannot knowingly relinquish a Sixth Amendment

Apprendi right . . . before it is ‘known’ by the courts.”

Amici 16. But in each case that Amici cites for this

proposition, the defendant benefited from Apprendi or

Blakely because Apprendi or Blakely was decided

while the defendant’s case was pending on direct

appeal. State v. Dettman, 719 N.W.2d 644, 648 (Minn.

2006) (“Because Dettman’s direct appeal was pending

before the court of appeals when Blakely was decided,

the substantive rule of Blakely applies retroactively to

Dettman’s case.”); State v. Franklin, 878 A.2d 757, 763

(N.J. 2005) (Apprendi decided during defendant’s

direct appeal); State v. Curtis, 108 P.3d 1233, 1234

(Wash. App. 2005) (Blakely decided during

defendant’s direct appeal); State v. Meynardie, 616

S.E.2d 21, 23 (N.C. App. 2005) (same); People v.

Montour, 157 P.3d 489, 491 (Colo. 2007) (same);

People v. Isaacks, 133 P.3d 1190, 1192 (Colo. 2006)

14

(same); State v. King, 168 P.3d 1123, 1127 (N.M. 2007)

(same); State v. Foster, 845 N.E.2d 470, 483-84 (Ohio

2006), abrogated by Oregon v. Ice, 555 U.S. 160 (2009)

(same); State v. Schofield, 895 A.2d 927, 931 (Me.

2005) (same); State v. Williams, 104 P.3d 1151, 1152

(Or. App. 2005) (same); State v. Ward, 118 P.3d 1122,

1125 (Ariz. Ct. App. 2005) (same); see Amici 16-18.

In other words, Amici cite only cases holding that

defendants could benefit from either Blakely or

Apprendi, which applied retroactively to cases

pending on direct review, because they did not waive

those rights before those cases were decided. Here, by

contrast, it is undisputed that the Hurst cases on

which Petitioner relies were decided long after

Petitioner’s sentence became final. Thus, the

predicate for reaching the validity of Petitioner’s 2007

jury waiver—the subsequent recognition of a federal

constitutional right that Petitioner could waive—is

absent here. Amici cite no case holding that, although

this Court has not decided that a newly recognized

federal constitutional right applies retroactively to

cases on collateral review, a state convict is

nevertheless entitled under federal law to assert that

right in a state postconviction proceeding so long as

she did not waive it.

Finally, this Court has recently and repeatedly

denied petitions in other capital cases where the

defendant waived a penalty-phase jury but later

sought Hurst relief. See Covington v. State, 228 So. 3d

49, 69 (Fla. 2017), cert. denied, Covington v. Florida,

138 S. Ct. 1294 (2018) (No. 17-7400); Twilegar v.

State, 228 So. 3d 550 (Fla. 2017), cert. denied,

Twilegar v. Florida, 138 S. Ct. 2578 (2018) (No. 17-

15

8236); Quince v. State, 233 So. 3d 1017 (Fla. 2018),

cert. denied, Quince v. Florida, No. 17-9401 (Oct. 1,

2018); Hutchinson v. State, 243 So. 3d 880 (Fla. 2018),

cert. denied, Hutchinson v. Florida, No. 19-5377 (Oct.

1, 2018). Petitioner does not show why this case is any

more certworthy than those petitions. If anything, and

for the reasons set out below, this case is a much less

suitable vehicle.

B. This Court should not decide how the

federal constitutional rulings issued by the

Florida Supreme Court in Hurst v. State apply

to cases like this before deciding whether those

rulings are correct.

This case arises out of the denial of a

postconviction motion “seeking sentencing relief

pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016),

and Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert.

denied, 137 S. Ct. 2161 (2017).” Pet. App. 1a

(emphasis added); see id. at 12a. To the extent that

Petitioner seeks relief under Hurst v. State—i.e., to

the extent that she asks the Court to decide whether

she waived “the federal constitutional right to have a

jury” find that “the aggravating circumstances are

sufficient to impose death,” find that “the aggravating

factors outweigh the mitigating circumstances,” and

“recommend a sentence of death,” see Pet. i; Hurst v.

State, 202 So. 3d at 57—that question is not cleanly

presented here. That is because the Court has never

recognized a federal constitutional right to have a jury

make those determinations; and the Court should not

decide whether a “federal constitutional right” is

retroactive or whether it has been validly waived, see

16

Pet i, without first deciding whether it exists in the

first place.

In Hurst v. Florida, this Court held that Florida’s

capital sentencing system violated the Sixth

Amendment insofar as it authorized a judge to find an

aggravating circumstance necessary to impose the

death penalty. 136 S. Ct. at 619, 624.

On remand, the Florida Supreme Court extended

Hurst in three ways. First, the court held that the

Sixth Amendment gives defendants the right to have

a jury make non-factual determinations required by

state law before the death sentence may be imposed—

including “that the aggravating factors are sufficient

to impose death,” “that the aggravating factors

outweigh the mitigating circumstances,” and that “a

sentence of death” is appropriate. Hurst v. State, 202

So. 3d at 53, 57.

Second, as a matter of state law, the court held

that a jury must make all these findings unanimously.

Id. at 53-54, 57. The court was “mindful that a

plurality of the United States Supreme Court, in a

noncapital case, decided that unanimous jury verdicts

are not required in all cases under the Sixth

Amendment.” Id. at 57 (citing Apodaca v. Oregon, 406

U.S. 404 (1972)). But “in interpreting the Florida

Constitution and the rights afforded to persons within

this State,” the court decided to “afford[] criminal

defendants” more protection “than that mandated by

the federal Constitution.” Id.

Third, the court “conclude[d] that juror unanimity

in any recommended verdict resulting in a death

sentence is required under the Eighth Amendment” to

17

the United States Constitution. Id. at 59. As the court

saw it, this Court had “not ruled on whether

unanimity is required in the jury’s advisory verdict in

capital cases.” Id. In the court’s view, however, “the

foundational precept of the Eighth Amendment”—

“the principle that death is different”—“calls for

unanimity in any death recommendation that results

in a sentence of death.” Id.

The State filed a petition for a writ of certiorari

challenging Hurst II’s federal law holdings.

Specifically, the State sought review of whether the

Sixth Amendment requires that a jury make

determinations that are required by statute but are

not factual in nature, and whether the Eighth

Amendment requires jury sentencing in capital cases.

Pet., Florida v. Hurst, No. 16-998, 2017 WL 656209 at

*i. The Court denied the petition. Florida v. Hurst, 137

S. Ct. 2161, 2161 (2017).

Petitioner does not ask this Court to decide

whether the federal constitutional holdings of Hurst

v. State are correct. Instead, Petitioner simply

assumes that there is a “federal constitutional right to

have a jury make all requisite findings for the

imposition of death” in Florida, Pet. i (emphasis

added), including the normative judgment that

aggravators outweigh mitigators and that death is the

appropriate sentence. Based on that assumption,

Petitioner asks this Court to decide whether the

Florida Supreme Court erred in holding that

Petitioner made “a knowing and intelligent waiver of

the federal constitutional right to have a jury make all

requisite findings,” Pet. i (emphasis added).

18

This Court should not decide whether a “federal

constitutional right” is retroactively applicable—and,

if so, whether there has been “a knowing and

intelligent waiver of [that] federal constitutional

right,” Pet. i—without first deciding whether a federal

constitutional right exists in the first place. Just last

year, moreover, this Court denied a petition squarely

presenting that question, and Petitioner does not

argue that the issue has become more certworthy

since then. Indeed, while the State’s cert petition was

pending in Hurst v. State, the Florida Legislature

amended the state’s death penalty statute to require,

as a matter of state statutory law, what the Florida

Supreme Court mandated as a matter of federal

constitutional law in Hurst v. State. Thus, the

question whether Hurst v. State was correctly decided

would have a direct impact only on those Florida cases

in which a death sentence became final after Ring but

before the Florida Legislature amended the statute in

2017. See Pet. 9-10 (asserting that, since the Florida

Supreme Court’s decision in Mosley, “the Florida

courts have set aside 130 death sentences because the

defendants were denied the jury trial right recognized

in Hurst”).

In short, this Court has never held that the

additional rights posited by the Florida Supreme

Court in Hurst v. State are based on a sound

interpretation of the federal Constitution. To reach

the question of whether Petitioner waived any

“federal constitutional right[s]” under Hurst v. State,

see Pet i, therefore, this Court would have to consider

whether that case is correct as a matter of federal law

and whether any such federal rights apply

19

retroactively under federal law. Neither of those

questions is fairly included in the question presented.

II. PETITIONER’S

INDEPENDENT

WAIVER

OF

ALL

POSTCONVICTION PROCEEDINGS BARS HURST RELIEF,

AND THE VALIDITY OF THAT WAIVER IS NOT PRESENTED

HERE.

Although the question Petitioner presents focuses

exclusively on the effectiveness of her 2007 waiver of

her right to a penalty-phase jury, the courts below also

relied on a separate, broader waiver: Petitioner’s 2011

waiver of all postconviction proceedings. Based on that

waiver, the courts below concluded, Petitioner may

not now invoke the Hurst decisions in seeking

postconviction relief in state court under Florida Rule

of Criminal Procedure 3.851. And although Petitioner

contends—in a brief footnote—that her 2011 waiver is

ineffective for the same reason that her 2007 waiver

of a jury recommendation is purportedly ineffective,

the distinct question of the 2011 waiver’s effectiveness

is neither fairly included within the question

presented nor an independently certworthy question.

1. In 2011, Petitioner sought to discharge

postconviction counsel and waive all postconviction

proceedings pursuant to Florida Rule of Criminal

Procedure 3.851(i). After receiving a letter explaining

that Petitioner sought to discharge counsel and

dismiss postconviction proceedings, the circuit court

held an evidentiary hearing to determine Petitioner’s

competency and whether Petitioner was knowingly

and intelligently waiving the right to seek

postconviction relief. Two mental health experts

examined Petitioner and determined that she was

competent. Her discharged counsel stipulated to the

20

mental experts’ reports. The court also conducted a

colloquy to determine whether Petitioner’s waiver was

knowing and intelligent. Following the hearing, the

court found that Petitioner was competent to

discharge postconviction counsel and waive

postconviction proceedings; the Florida Supreme

Court affirmed that order.

Below, the circuit court explained that, in addition

to waiving a second penalty-phase jury, Petitioner

“also discharged postconviction counsel and waived

postconviction proceedings.” Pet. App. 12a (citing Fla.

R. Crim. P. 3.850(i)). The circuit court and the Florida

Supreme Court had previously upheld both of those

waivers. Id. at 12a-13a. Petitioner is “now claiming

that the waivers were not valid,” but the circuit court

concluded that “such claims are not properly before

this Court because the instant motion (1) was filed

beyond the time limitation provided in rule 3.851(d)(1)

and (2) does not allege that the claims are predicated

on facts that were unknown to [Petitioner] or his

counsel and could not have been ascertained by the

exercise of due diligence.” Id. at 13a.

The State argued on appeal that both waivers

required the dismissal of Petitioner’s motion for

postconviction relief under Florida Rule of Criminal

Procedure 3.851, e.g., Appellee Br. 11, Rodgers v.

State, 242 So. 3d 276 (Fla. 2018), and the Florida

Supreme Court unanimously “affirm[ed]” the circuit

court’s denial of Petitioner’s motion. Pet. App. 3a. The

court’s per curiam opinion does not separately discuss

the import of Petitioner’s 2011 waiver, see id. at 1a-3a;

but, as one member of the court made clear, “[t]he

issue in this case is whether Rodgers’ waivers of the

21

right to a penalty phase jury and the right to

postconviction proceedings and counsel should be

rendered invalid because Rodgers was suffering from

undiagnosed and untreated gender dysphoria when

he made the waivers.” Pet. App. 3a (Pariente, J.,

concurring in result) (emphasis added). Notably, the

full court “agree[d] with the circuit court that the time

for Rodgers to contest the prior competency

determination has passed,” Pet. App. 2a; and

Petitioner does not offer any basis for concluding that

the state-law timeliness ruling applied only to

Petitioner’s challenge to the 2007 jury waiver.

Consistent with those facts, Justice Pariente

construed the court’s opinion to address the validity of

both waivers. See Pet. App. 3a (“I agree that Rodgers’

waivers remain valid”); Pet. App. 9a (“I agree with the

majority that Rodgers is not entitled to have his

waivers set aside”).

2. The effectiveness of Petitioner’s 2011 waiver of

all postconviction proceedings is not fairly included

within the question presented. Petitioner asks this

Court to decide whether “waiving a state-law right to

have a jury make an advisory sentencing

recommendation constitute[s] a knowing and

intelligent waiver of the federal constitutional right to

have a jury make all requisite findings for the

imposition of death, particularly when the latter right

did not exist at the time of the waiver.” Pet. i. A waiver

of “a state-law right to have a jury make an advisory

sentencing recommendation,” Pet. i, is substantially

narrower than a waiver of the right to bring any

further “postconviction proceedings,” Pet. App. 12a;

see, e.g., Tr. of Hearing on Waiver of Right to

Postconviction Counsel and Right to Institute

22

Postconviction Proceedings at 20 (Petitioner

acknowledging that, if the court grants Petitioner’s

request, “you’ll be barred from filing any further

proceedings” and that “this basically means that this

case is over”). Accordingly, even if the Court were to

decide the question presented in Petitioner’s favor,

that would not resolve the distinct question whether

the courts below reversibly erred in holding that

Petitioner’s separate waiver of postconviction

proceedings independently barred the state trial court

from granting Petitioner’s successive motion for

postconviction relief. See Pet. App. 1a, 12a.

3. Petitioner has made no showing at all on the

certworthiness of whether a defendant may validly

waive as-yet unrecognized procedural rights by

waiving all postconviction proceedings. Likely

because Petitioner does not present that question in

the Petition, Petitioner identifies no split on the issue.

And although several defendants may be similarly

situated to Petitioner as to a waiver of a jury

recommendation, Petitioner does not identify other

defendants—in Florida or elsewhere—who knowingly

and

intelligently

waived

all

postconviction

proceedings but who now seek Hurst relief. 2

4. Even if this Court were inclined to address

Petitioner’s postconviction waiver, the courts below

did not err as a matter of federal law in holding that

Petitioner’s postconviction waiver bars Petitioner

from seeking Hurst relief in the particular

circumstances present here.

2

Counsel are aware of only one similarly situated defendant.

See Alston v. State, 243 So. 3d 885 (Fla. 2018).

23

In assessing a capital defendant’s waiver of

postconviction proceedings, this Court considers only

“whether he has capacity to appreciate his position

and make a rational choice with respect to continuing

or abandoning further litigation or on the other hand

whether he is suffering from a mental disease,

disorder, or defect which may substantially affect his

capacity in the premises.” Rees v. Peyton, 384 U.S.

312, 314 (1966) (per curiam); see also Hammett v.

Texas, 448 U.S. 725, 725 (1980) (per curiam) (“In the

absence of any issue as to petitioner’s competence to

withdraw the petition filed against his will, there is no

basis under Rule 60 for denying this motion.”);

Gilmore v. Utah, 429 U.S. 1012, 1013 (1976)

(terminating stay of execution because defendant

“made a knowing and intelligent waiver of any and all

federal rights he might have asserted”); cf.

Demosthenes v. Baal, 495 U.S. 731, 734-37 (1990)

(vacating stay where defendant was competent to

waive

postconviction

proceedings).

Although

Petitioner argued before the Florida Supreme Court

that her 2011 waiver was invalid for lack of

competency, Pet. App. 21a-31a, and although the

court rejected that fact-bound argument, she chose

not to present it in the Petition. Thus, the

effectiveness of the 2011 waiver—under federal law, a

question only of her competency—is not fairly

included within the question presented. 3

3 Moreover, even if it were fairly included within the

question presented, Petitioner waived her right to challenge the

competency of her waiver. After the Florida Supreme Court

upheld the waiver, Petitioner did not file a petition for certiorari

in this Court.

24

And if this Court were to remand to the Florida

Supreme Court to expressly decide the effectiveness of

Petitioner’s 2011 waiver under state law, that court

would hold that the 2011 waiver “precludes [her] from

claiming a right to relief under Hurst.” State v. Silvia,

235 So. 3d 349, 351 (Fla. 2018). In Silvia—a case not

mentioned in the Petition or by Amici—the Florida

Supreme Court considered the precise question of

whether a waiver of postconviction proceedings

precluded retroactive Hurst relief, and concluded that

it does. Id. The result here would be no different—

particularly because the courts below found that

Petitioner’s challenge to the 2011 waiver was

untimely as a matter of state law. See Pet. App. 2a,

13a (citing Fla. R. Crim. P. 3.851(d)(1)). Indeed,

Petitioner’s claim here is substantially weaker than

Silvia’s; unlike Silvia and “almost all” of Florida’s

other capital defendants whose death sentences

became final after Ring, Petitioner did not raise “a

Ring claim on direct appeal.” 235 So. 3d at 351.

Thus, even if the Court were to hold that Hurst is

retroactive under federal law and that the 2007 jury

waiver was ineffective, Petitioner’s 2011 waiver of

postconviction proceedings bars Petitioner from

obtaining Hurst relief. Under federal law, her waiver

would be ineffective only if she were incompetent—

but she failed to present that question here—and

under state law, the waiver bars retroactive Hurst

relief.

5. In a conclusory footnote, Petitioner asserts that

“[f]or all the same reasons” that the 2007 jury waiver

is supposedly ineffective, her 2011 waiver of all

postconviction proceedings “could not constitute a

25

knowing waiver of the [purported] Hurst right.” Pet.

21 n.11. But neither of Petitioner’s two challenges to

the 2007 jury waiver would resolve the 2011 waiver’s

effectiveness.

First, Petitioner argues that the 2007 jury waiver

is ineffective because “a knowing and intelligent

waiver of a limited state statutory right does not

constitute a knowing and intelligent waiver of a

related constitutional right.” Pet. 17. But holding that

a waiver of the jury recommendation right under

Florida law does not waive Hurst rights plainly would

not resolve whether a capital defendant’s knowing

and intelligent waiver of all postconviction

proceedings, done with the knowledge that the death

penalty is likely to be carried out as a result,

constitutes a knowing and intelligent waiver of

procedural rights recognized in the future.

Second, Petitioner contends that her 2007 jury

waiver was ineffective because “a party can[not]

constructively waive a right that does not yet exist.”

Pet. 21. But Petitioner’s 2011 waiver did not involve a

“constructive” waiver; it was an express, unequivocal,

knowing, and intelligent waiver of Petitioner’s right to

pursue any further postconviction relief. Petitioner

waived the right to postconviction proceedings “with a

full awareness of both the nature of the right being

abandoned,” all postconviction proceedings; “and the

consequences of the decision to abandon it,” the

imposition of the death penalty. Moran v. Burbine,

475 U.S. 412, 421 (1986). In fact, Florida courts

required an evidentiary hearing on those matters to

ensure that Petitioner was fully aware of the nature

26

of the right and the consequences of expressly

abandoning it.

In other words, Petitioner’s 2011 waiver of the

right to seek further postconviction relief applied, by

its terms, to claims predicated on not-yet-decided

cases. See Tr. 16-17 (reciting Petitioner’s

understanding of the trial court’s explanation that “in

the course of time, many things are possible” and that

“a court of law” or the “Florida Legislature” might

make determinations “that could end in the result”

that Petitioner’s death sentence should be

“commuted”). And like plea agreements “intelligently

made in the light of the then applicable law,”

Petitioner’s waiver “does not become vulnerable

because later judicial decisions” indicate that the

decision “rested on a faulty premise.” Brady v. United

States, 397 U.S. 742, 757 (1970); see McMann v.

Richardson, 397 U.S. 759, 773-74 (1970) (similar).

After all, “the law ordinarily considers a waiver

knowing, intelligent, and sufficiently aware if the

defendant fully understands the nature of the right

and how it would likely apply in general in the

circumstances—even though the defendant may not

know the specific detailed consequences of invoking

it.” United States v. Ruiz, 536 U.S. 622, 629 (2002); see

also United States v. Simpson, 430 F.3d 1177, 1192-93

(D.C. Cir. 2005) (Silberman, J., concurring) (“the

Supreme Court has held that imperfect knowledge of

future developments in the law has no bearing on the

question of the validity of a waiver”).

Even if Petitioner’s broad waiver of the right to

bring any future postconviction challenges could be

ineffective as to later-recognized rights in some

27

circumstances, that waiver is plainly effective as to

the specific claim at issue here. Petitioner invited the

alleged error by waiving the right to a penalty-phase

jury and affirmatively asking the trial court to make

all sentencing determinations: As Petitioner

explained, she waived the right to a jury trial because

Petitioner “trust[ed] the Court’s judgment better than

people who I think are more against me than for me—

more against me than neutral, I should say.” 3 So. 3d

at 1130. What is more, it is clear from the record that

Petitioner would not have made a different decision if

she had thought that the jury’s findings would be

binding on the court. To the contrary, Petitioner

elected to “go without the jury” because Petitioner

believed that death was the proper sentence and did

not want any jury findings to bind the court’s decision:

“I can count on a death sentence with you [the judge]

I feel, but with this jury, I mean, it could go six/six or

I don’t know how it’s going to go.” Id.

In granting Petitioner’s explicit request for the

trial judge to make all sentencing determinations, the

trial court merely applied binding precedent of this

Court. And unlike “almost all” other capital

defendants in Florida, Petitioner did not challenge

that ruling on direct appeal by arguing that the logic

of Ring applied to Florida’s capital sentencing scheme.

See Silvia, 235 So. 3d at 351 (noting that Ring

“provided the underpinnings for Hurst v. Florida,”

and that, following Ring, “almost all [capital]

defendants . . . had raised a Ring claim on direct

appeal”); Mosely, 209 So. 3d at 1275 (“For fourteen

years after Ring, until the United States Supreme

Court decided Hurst v. Florida, Florida’s capital

defendants attempted to seek relief based on Ring,

28

both in this Court and the United States Supreme

Court.”). Still less did Petitioner argue that she would

have changed her mind and elected to empanel a

penalty-phase jury—i.e., that she would not have

“trust[ed] the Court’s judgment better” than a jury’s—

if Ring applied and the jury’s determinations had been

binding on the court. See Rodgers, 3 So. 3d at 1130.

Petitioner’s waiver of postconviction proceedings is

even less vulnerable to attack based on later judicial

decisions than are plea agreements. Under Brady,

even if a defendant who pleads guilty would not have

pleaded guilty had a later judicial decision existed at

the time of the plea, the defendant’s plea agreement

remains intact. 397 U.S. at 757.

Here, even the defendant’s change in calculus

(which is insufficient to defeat the plea under Brady)

is not present. Petitioner did not waive postconviction

proceedings because she thought she had no chance,

such that her decision might have changed had she

known Hurst would have been decided. Instead,

Petitioner waived postconviction proceedings because

she had decided “to choose death over life.” Pet. 8 n.3.

Petitioner stated that she wanted to “face the

consequences” of her crime, Tr. 7, and expressed

concern that she might kill somebody else and wind

up on death row again if she received a life sentence.

See Tr. 17-18 (“since I have been on death row, I have

erupted one time and almost killed somebody on the

rec yard, you know. I broke his jaw, split his face

open.”); id. at 18 (explaining that Petitioner was

“afraid” of the “violence,” had “been in the prison

population before” and knew she didn’t “have much

patience for foolishness,” and was concerned that she

29

“could end up back on death row” if she were to kill

someone else while serving a life sentence). Knowing

that she was entitled to jury findings on her

aggravating sentencing factors would not have

affected that decision—and even if it might have,

under Brady, the waiver would still be unaffected.

Petitioner might contend that if the Court were to

broadly hold that a litigant cannot “knowingly and

intelligently waiv[e] a right not yet recognized to

exist,” Pet. 14, that would necessarily mean that the

2011 waiver did not cover her purported Hurst right.

But this Court has never issued such a broad holding;

that holding would conflict with Brady, McMann, and

Ruiz; and issuing such a broad holding would have

sweeping adverse effects.

To begin with, in Halbert v. Michigan, 545 U.S. 605

(2005), this Court did not “squarely rejec[t]” (Pet. 14)

the notion that a litigant can knowingly and

intelligently waive a not-yet-recognized right. There,

Michigan argued that the defendant waived his right

to “appointed counsel for first-level appellate

review . . . by entering a plea of nolo contendere.” Id.

at 623. The Court rejected that argument for two

reasons: First, he “had no recognized right to

appointed appellate counsel he could elect to forgo,”

and second, “the trial court did not tell [him], simply

and directly, that in his case, there would be no access

to appointed counsel.” Id. at 623-24 (citing Iowa v.

Tovar, 541 U.S. 77, 81 (2004), & Brady, 397 U.S. at

748, for the proposition that waiver must be knowing

and intelligent). In other words, the specific details of

the trial court’s colloquy (and the defendant’s

knowledge) were directly relevant, and the Court did

30

not issue any broad holding that waiving a not-yetrecognized right is categorically impossible.

Such a broad holding would conflict with Brady,

397 U.S. at 757, Ruiz, 536 U.S. at 629, and McMann,

397 U.S. at 773-74, in which the Court held that

future judicial decisions undermining the premise for

a defendant’s plea do not affect whether a plea was

knowing and intelligent when entered. In other words,

when defendants enter into pleas, they are waiving

rights that might be recognized in future decisions.

Brady itself is a powerful demonstration of this

principle. After Brady pleaded guilty, the Court held

that the statute permitting the death penalty for his

crime was unconstitutional; he therefore argued that

had he known that, he would not have pleaded guilty,

which he did “perhaps to ensure that he would face no

more than life imprisonment or a term of years.” 397

U.S. at 756. The Court rejected that argument,

explaining that it was “intelligently made in the light

of the then applicable law.” Id. at 757. In so doing, the

Court recognized that Brady had validly waived his

right to go to trial without risking the death penalty,

a right that did not exist when he pleaded guilty.

Not only would reading Halbert so broadly conflict

with this Court’s earlier precedents, it would also have

broad and troubling implications. As Justice Thomas

(joined by Chief Justice Rehnquist and Justice Scalia)

explained in dissent, the majority “cannot possibly

[have] mean[t] that only rights that have been

explicitly and uniformly recognized by statute or case

law may be waived,” because if so, “the majority has

outlawed all conditional waivers (ones in which a

defendant agrees that, if he has such a right, he

31

waives it).” 545 U.S. at 640 (Thomas, J., dissenting).

As Justice Thomas further pointed out, such a rule

would “wreak havoc” because it does not specify

“which sources of law are to be considered in deciding

whether a right is ‘no[t] recognized.’” Id. at 641 n.2;

see Simpson, 430 F.3d at 1194 (Silberman, J.,

concurring).

*

*

*

In sum, this case is not a suitable vehicle for

resolving the question Petitioner presents—whether

“waiving a state-law right to have a jury make an

advisory sentencing recommendation constitute[s] a

knowing and intelligent waiver of the federal

constitutional right to have a jury make all requisite

findings for the imposition of death,” Pet. i—because

Petitioner did not just waive a state-law right to

empanel an advisory sentencing jury. Instead,

Petitioner also waived all postconviction proceedings,

including the right to raise federal claims based on

future decisions on this Court, and that waiver

independently bars the relief Petitioner now seeks.

What is more, the enforceability of that waiver is not

fairly included within the question presented, turns in

part on disputed issues of state law, and is not

independently certworthy. Finally, the courts below

did not err as a matter of federal law insofar as they

held that Petitioner validly waived the right to seek

postconviction relief based on the trial court’s decision

not to empanel a penalty-phase jury: Petitioner

expressly invited the alleged error of which she now

complains by affirmatively requesting that the trial

court make all sentencing determinations; unlike

“almost all” other post-Ring capital defendants in

32

Florida, Petitioner did not raise a claim of alleged

error under Ring on direct appeal; it is clear from the

record that Petitioner would not have elected to

empanel a penalty-phase jury if Petitioner had

thought that the jury’s determinations would be

binding on the court; and the trial court’s

determination that Petitioner’s postconviction waiver

was valid was based on a straightforward application

of this Court’s precedents to the particular

circumstances present here.

III. EVEN IF PETITIONER HAS A FEDERAL RIGHT TO SEEK

RETROACTIVE APPLICATION OF THE HURST DECISIONS,

PETITIONER IS NOT ENTITLED TO ANY RELIEF.

A. Petitioner is not entitled to any relief

under this Court’s decision in Hurst v. Florida.

In Hurst v. Florida, this Court held that Florida’s

capital sentencing statute violated the Sixth

Amendment insofar as it “required the judge alone to

find the existence of an aggravating circumstance.”

136 S. Ct. at 624. That holding does not provide a basis

for disturbing Petitioner’s sentence.

In sentencing Petitioner to death, the trial court

“found two aggravating circumstances: Rodgers was

previously convicted of another capital felony or a

felony involving the use of violence; and the murder

was committed in a cold, calculating, and

premeditated manner.” Rodgers, 3 So. 3d at 1131.

Only one aggravating circumstance was required for

the court to impose the death penalty. § 921.141(2)(a),

Fla. Stat.

Petitioner’s recidivist aggravator was based on the

murder of Justin Livingston, to which Petitioner

33

pleaded guilty, see United States v. Rodgers, No. 3:98cr-00073 002 (N.D. Fla. June 30, 1999). Under the

Sixth Amendment, a capital defendant is not entitled

to a jury finding on the fact of a prior conviction. See

Apprendi, 530 U.S. at 490; Almendarez-Torres v.

United States, 523 U.S. 224, 239-46 (1998).

As for the cold, calculating, and premeditated

aggravator, Petitioner “agreed that Robinson’s

murder”—in which Petitioner “shot Robinson in the

back of the head”—“was premeditated,” 3 So. 3d at

1131, and “Rodgers admitted to . . . key aspects of the

prearranged plan, including inviting the victim on a

date,” having “‘ill intentions’ when he first picked her

up from her home,” “getting her drunk, killing her,

and then taking pictures of the body.” Id. at 1134,

1135. As to that same crime, moreover, Petitioner

entered a guilty plea to first-degree murder as well as

conspiracy to commit murder. Rodgers, 934 So. 2d at

1210. Because the trial court’s finding that Robinson’s

murder was cold, calculating, and premeditated was

supported by overwhelming and “uncontroverted

evidence,” the absence of a jury finding on that

aggravator was harmless error. See Neder v. United

States, 527 U.S. 1, 18 (1999).

In short, Petitioner would not be entitled to any

relief under Hurst v. Florida, even if it applied

retroactively, and even if Petitioner could bypass the

two waivers on which the courts below relied.

34

b. Insofar as Petitioner relies on the federal

constitutional rulings set out in Hurst v. State,

those rulings contravene this Court’s caselaw.

In Hurst v. State, the Florida Supreme Court held

that a capital defendant has a Sixth Amendment right

to insist that a jury make certain normative

judgments required by statute before a sentence of

death may be imposed—i.e., that aggravating

circumstances outweigh mitigating circumstances

and that death is the appropriate sentence. That

holding, along with the Florida Supreme Court’s

related decision that jury findings on such non-factual

sentencing issues must be unanimous under the

Eighth Amendment, cannot be reconciled with

portions of Spaziano and Hildwin that remain good

law. See generally Hurst v. State, 202 So. 3d at 80-82

(Canady, J., dissenting).

In Hurst v. Florida, this Court “overrule[d]

Spaziano and Hildwin in relevant part,” 136 S. Ct. at

623 (emphasis added)—that is, “to the extent they

allow a sentencing judge to find an aggravating

circumstance, independent of a jury’s factfinding, that

is necessary for imposition of the death penalty.” Id.

at 624. Accordingly, Hurst v. Florida left intact

Spaziano’s holdings that the federal Constitution

allowed the sentencing judge to make non-factual

determinations supporting the imposition of the death

penalty,

including

(1) that

“the

mitigating

circumstances were insufficient to outweigh such

aggravating circumstances,” and (2) that “a sentence

of death should be imposed.” 468 U.S. at 451-52, 45865; see Pet., Florida v. Hurst, No. 16-998, 2017 WL

656209, at *18-33 (Feb. 13, 2017).

35

Because the federal constitutional rulings

announced by the Florida Supreme Court in Hurst v.

State are squarely foreclosed by this Court’s

precedents, federal law does not require that those

rulings be applied to Petitioner’s case. See Rodriguez

de Quijas v. Shearson/Am. Express, 490 U.S. 477, 484

(1989) (explaining that lower courts are bound to

“follow the case which directly controls, leaving to this

Court the prerogative of overruling its own

decisions”). At a minimum, and as explained above,

this Court should not be asked to determine whether

Petitioner has a federal right to obtain retroactive

relief based on the Sixth and Eighth Amendment

rulings of Hurst v. State without first having the

opportunity to determine whether those rulings are

correct under federal law.

36

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

PAMELA JO BONDI

Attorney General of

Florida

CAROLYN M. SNURKOWSKI

CHARMAINE M. MILLSAPS

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3681

amit.agarwal@

myfloridalegal.com

AMIT AGARWAL

Solicitor General

Counsel of Record

EDWARD M. WENGER

Chief Deputy Solicitor

General

CHRISTOPHER J. BAUM

Deputy Solicitor General

Counsel for Respondent

October 19, 2018