Opposition Brief — Kenneth Darcell Quince, Petitioner v. Florida

CASE NO. 18-5018

IN THE SUPREME COURT OF THE UNITED STATES

KENNETH DARCELL QUINCE

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]

I.

Whether This Court Should Exercise Its Certiorari Jurisdiction

To Review The Florida Supreme Court's Fact-Based Decision

Finding That Quince Failed To Establish A Claim Of Intellectual

Disability When The Range Of His IQ Scores, Even When

Factoring In The Standard Error Of Measurement, Failed To

Demonstrate Significantly Subaverage Intellectual Functioning

And When Quince Failed To Demonstrate Deficits In His

Adaptive Behavior?

II.

Whether This Court Should Exercise Its Certiorari Jurisdiction

To Review The Florida Supreme Court's Application Of The

Clear And Convincing Standard To A Determination Of

Intellectual Disability?

i

TABLE OF CONTENTS

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

I. Whether This Court Should Exercise Its Certiorari Jurisdiction To Review

The Florida Supreme Court's Fact-Based Decision Finding That Quince Failed

To Establish A Claim Of Intellectual Disability When The Range Of His IQ

Scores, Even When Factoring In The Standard Error Of Measurement, Failed To

Demonstrate Significantly Subaverage Intellectual Functioning And When

Quince Failed To Demonstrate Deficits In His Adaptive Behavior? ..................... i

II. Whether This Court Should Exercise Its Certiorari Jurisdiction To Review

The Florida Supreme Court's Application Of The Clear And Convincing

Standard To A Determination Of Intellectual Disability? ..................................... i

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

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

CITATION TO OPINION BELOW..........................................................................1

STATEMENT OF JURISDICTION..........................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................1

REASONS FOR DENYING THE WRIT ...............................................................12

QUESTION 1 ....................................................................................................12

There Is No Basis For Certiorari Review Of The Florida Supreme Court's

Decision Finding That Quince Failed To Meet His Burden Of Proof Of

Establishing Intellectual Disability As The Court Consistently Applied This

Court's Precedent To The Disputed Facts And Found That Quince Did Not

Have Significantly Subaverage Intellectual Functioning And Deficits In His

Adaptive Behavior. ........................................................................................12

A. The Florida Supreme Court Correctly Determined That Quince Did

Not Suffer From Significantly Subaverage Intellectual Functioning Based

On His Multiple Full Scale IQ Scores Of 75 Or Above ............................13

QUESTION 2 ....................................................................................................28

There Is No Basis For Certiorari Review Of The Florida Supreme Court's

Application Of The Clear And Convincing Standard To Quince’s Intellectual

Disability Claim As The State Court Resolution Was Not Contrary To Atkins,

Cooker, Medina or violate the Eighth or Fourteenth Amendments. .............28

CONCLUSION ........................................................................................................34

CERTIFICATE OF SERVICE ................................................................................35

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ake v. Oklahoma,

470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) ...................................... 25

Atkins v. Virginia,

536 U.S. 304 (2002)....................................................................................... Passim

Black v. Carpenter,

866 F.3d 734 (6th Cir. 2017) .......................................................................... 15

Bobby v. Bies,

556 U.S. 825 (2009)........................................................................................ 28

Braxton v. United States,

500 U.S. 344 (1991)........................................................................................ 34

Dufour v. State,

69 So. 3d 235 (Fla. 2011) ............................................................................... 24

Estelle v. McGuire,

502 U.S. 62 (1991).......................................................................................... 28

Florida v. Powell,

559 U.S. 50 (2010).......................................................................................... 28

Ford v. Wainwright,

477 U.S. 399 (1986)........................................................................................ 13

Glover v. State,

226 So.3d 795 (Fla. 2017) .............................................................................. 14, 20

Hall v. Florida,

134 S.Ct. 1986 (2014).................................................................................... Passim

Hill v. Humphrey,

662 F.3d 1335 (11th Cir. 2011) ......................................................... 30, 31, 32, 33

Hurst v. State,

147 So. 3d 435 (Fla. 2014) ............................................................................. 20

In re Henry,

757 F.3d 1151 (11th Cir. 2014) ...................................................................... 20

Jones v. State,

231 So.3d 374 (Fla. 2017) .............................................................................. 14

Ledford v. Warden, Ga. Diagnostic & Classification Prison,

818 F.3d 600 (11th Cir. 2016) ........................................................................ 15

iii

Leland v. Oregon,

343 U.S. 790 (1952)........................................................................................ 30

Mays v. Stephens,

757 F.3d 211 (5th Cir. 2014) .......................................................................... 20

Moore v. Texas,

137 S. Ct. 1039 (2017)................................................................................... Passim

Nixon v. State,

2 So. 3d 137 (Fla. 2009) ................................................................................. 14, 20

Ohio v. Akron Center for Reproductive Health,

497 U.S. 502 (1990)........................................................................................ 29

Quince v. Crosby,

360 F.3d 1259 (11th Cir. 2004) ...................................................................... 4

Quince v. State,

116 So. 3d 1262 (Fla. 2012) ........................................................................... 9

Quince v. State,

241 So.3d 58 (Fla. 2018) ...................................................................... 1, 10, 21, 27

Quince v. State,

414 So. 2d 185 (Fla. 1982) ............................................................................. 2, 4

Quince v. State,

477 So. 2d 535 (Fla. 1985) ............................................................................. 4

Quince v. State,

592 So. 2d 669 (Fla. 1992) ............................................................................. 4

Quince v. State,

732 So. 2d 1059 (Fla. 1999) ........................................................................... 4

Rice v. Sioux City Mem'l Park Cemetery,

349 U.S. 70 (1955).......................................................................................... 27

Rose v. Hodges,

423 U.S. 19 (1975).......................................................................................... 29

Salazar v. State,

188 So.3d 799 (Fla. 2016) .............................................................................. 14, 21

Smith v. Duckworth,

824 F.3d 1233 (10th Cir. 2016) ...................................................................... 15

State v. Grell,

135 P.3d 696 (Ariz. 2006) .............................................................................. 31

Strickland v. Washington,

466 U.S. 668 (1984)........................................................................................ 21

iv

Tibbs v. State,

397 So. 2d 1120 (Fla. 1981) ........................................................................... 25

United States v. Johnston,

268 U.S. 220 (1925)........................................................................................ 27

Wright v. State,

213 So. 3d 881 (Fla. 2017) ............................................................................. 14

Statutes

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

28 U.S.C. § 2241 ............................................................................................... 29

A.R.S. § 13-703.02(G) ...................................................................................... 31

Florida State Stat. § 921.137(4) ....................................................................... 29

Florida State Stat. §921.137 (2012) ................................................................. 20

Florida State Stat. § 921.137(1) (2013) ............................................................ 14, 20

Rules

Fla. R. Crim. P. 3.203 ....................................................................................... 14, 32

Fla. R. Crim. P. 3.203(1) .................................................................................. 24

v

CITATION TO OPINION BELOW

The decision of the Florida Supreme Court is reported at Quince v. State, 241

So.3d 58 (Fla. 2018).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on January 18, 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.

Facts of the Direct Appeal Case

In Petitioner’s direct appeal case, the Florida Supreme Court summarized the

facts of the case as follows:

In December of 1979, the body of an eighty-two-year-old woman

dressed in a bloodstained nightgown was found lying on the floor of

her bedroom. She had bruises on her forearm and under her ear, a small

abrasion on her pelvis, and lacerations on her head, which were severe

enough to cause death. She was sexually assaulted while alive, but the

medical examiner could not determine whether the victim was

conscious or unconscious during the battery. Strangulation was the

cause of death.

1

Based upon a fingerprint identification, Appellant was arrested.

Although he initially denied knowledge of the incident, he later

confessed to the burglary. He also admitted to stepping on the victim's

stomach before leaving her house. A month later, when faced with

laboratory test results, he admitted that he sexually assaulted the

deceased.

Quince v. State, 414 So. 2d 185, 186 (Fla. 1982).

On January 17, 1980, a grand jury returned a three-count indictment against

Quince for first-degree murder, sexual battery, and burglary of a dwelling. Quince

subsequently entered a plea to first-degree murder and burglary of a dwelling. 1

Quince waived a sentencing jury, and the sentencing hearing was held on October

20, 1980.

Mental Health Testimony During the Sentencing Hearing

During the sentencing hearing, the State presented testimony from Dr. George

Barnard, a physician and psychiatrist who had been previously appointed to conduct

evaluations on persons charged with criminal offenses in Florida, in approximately

fourteen hundred cases prior to Quince’s case.

Dr. Barnard was appointed by the trial court to determine whether Quince was

legally competent to stand trial and whether Quince was legally sane at the time of

the offenses. Dr. Barnard conducted the interview on March 18, 1980, and concluded

that, in his expert opinion, Quince was not under the influence of an extreme mental

1

The sexual battery count was dismissed because it was the underlying felony

for the murder offense.

2

or emotional disturbance at the time of the offenses, that Quince appreciated the

criminality of his conduct, and that Quince had the capacity to conform his conduct

to the requirements of the law.

An expert for the defense, Dr. Ann McMillan, testified that she specialized in

school psychology and clinical psychology. Dr. McMillan conducted an evaluation

of Quince on October 2, 1980. As part of her evaluation, she administered two tests

to Quince, the Minnesota Multiphasic Personality Test and the Wechsler Adult

Intelligence Test. After her evaluation of Quince, she concluded that Quince suffered

borderline mental retardation and severe specific learning disability and neurological

impairment. Dr. McMillan also concluded that Quince had permanent learning and

judgment disability, limited ability to perceive the consequences of his actions, and

that Quince’s capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law was impaired. Dr. McMillan made the

assessment that neurological damage was implied, and also equated Quince’s

intelligence to an eleven-year-old adolescent.

Dr. Barnard disagreed with Dr. McMillan’s report. Specifically, Dr. Barnard

noted that Dr. McMillan’s report concluded that while Quince had a borderline level

of intelligence, Quince was not intellectually disabled. Dr. Barnard also disagreed

with Dr. McMillan’s assessment that “neurological damage is implied in borderline

level and borderline intelligence,” because there was no data in Dr. McMillan’s

3

report to support her assessment. Regarding Dr. McMillan’s assessment equating

Quince with an eleven-year-old child, Dr. Barnard said that similar issues exist in

highly intelligent persons that did not receive any schooling. Thus, in his opinion, it

was wrong to equate Quince to being a child, because that would lead to the

conclusion that Quince functions as a child in every area, when the law evaluates

competency for specific areas and functions. Dr. Barnard did not see any signs that

Quince had a neurological disorder.

The Florida Supreme Court affirmed Petitioner’s convictions and death

sentence. Quince v. State, 414 So. 2d 185, 188-189 (Fla. 1982). Quince’s sentence

became final on October 4, 1982, when this Court denied Quince’s Petition for writ

of certiorari. Quince v. Florida, 459 U.S. 895 (1982).

Quince continued to seek relief from his convictions and sentence through

postconviction litigation. Quince v. State, 477 So. 2d 535 (Fla. 1985) (affirming

denial of postconviction relief); Quince v. State, 592 So. 2d 669 (Fla. 1992)

(remanding for evidentiary hearing on claim alleging trial counsel conflict of

interest); Quince v. State, 732 So. 2d 1059, 1060 (Fla. 1999) (affirming denial of

conflict of interest claim following remand).

Petitioner filed an amended petition for writ of habeas corpus in the United

States District Court which was denied and ultimately affirmed by the Eleventh

Circuit Court of Appeals. Quince v. Crosby, 360 F.3d 1259 (11th Cir.), cert denied,

4

Quince v. Crosby, 543 U.S. 960 (2004).

2004 Postconviction Proceedings

On November 1, 2004, Quince again sought postconviction relief in the circuit

court, and filed a motion for determination of intellectual disability. The circuit court

held a hearing on May 12, 15-16, 2008, and November 3, 2008.

The defense presented testimony from Dr. Thomas Oakland, a psychologist

at the University of Florida.

In evaluating Quince, Dr. Oakland relied upon

materials written by Dr. James Flynn, the Adaptive Behavior Assessment System II

(“ABAS”), the user’s guide for the intellectually disabled published by the American

Association on Intellectual and Developmental Disabilities (“AAIDD”), and the

comprehensive manual for the Scales of Independent Behavior-Revised “SIB-R.”

Based on all the data provided to him, in a report dated on April 22, 2008, Dr.

Oakland concluded that Quince was intellectually disabled.

In terms of intellectual functioning, Dr. Oakland stated that intelligence is

measured by the Wechsler Adult Intelligence Scale (“WAIS”). Subaverage general

intellectual functioning is generally defined as an intelligence score that is seventy

or below.

Dr. Oakland said that three intelligence tests were administered to Quince.

The first WAIS test was administered to Quince in 1980, and Quince received a full

scale score of 79. The second WAIS test was administered in 1984, and Quince

5

received a full scale score of 77. The last WAIS test was administered in 2006, and

Quince received a full scale score of 79.

Applying the Flynn Effect to Quince, Dr. Oakland used Quince’s IQ score

obtained in 1980, which was a seventy-nine. The WAIS test administered to Quince

in 1980 was normed in 1954, which was a 26-year difference from the time the test

was normed to when it was administered in 1980. Dr. Oakland multiplied 26 by .33,

which equaled 8.58 IQ points. He rounded the 8.58 points to nine, and subtracted the

9 points from Quince’s IQ score of 79, which equaled 70.

However, Dr. Oakland admitted that the Flynn Effect does not automatically

apply in every single case to adjust an IQ score. Additionally, if a longitudinal study

is being conducted, the Flynn Effect is not applied to revise the IQ score. A

longitudinal study is a study comprised of several intelligence tests administered to

the same person over a period of time. Dr. Oakland admitted that Quince’s case

falls into the category of a longitudinal study.

Dr. Oakland also stated that the data for the Flynn Effect comes from group

data, and that none of the data is based on information from a single individual.

Instead, an assumption has to be made that the data from the group would apply to

a particular individual. He also acknowledged that there is no scientific validation

for the assumption that the group data can be applied to any specific individual. The

Flynn Effect also cannot be applied to any individual with one-hundred percent

6

certainty.

Moreover, Dr. Oakland had no reason to believe that the 1980 WAIS test was

administered improperly. He also said that if the Flynn Effect was applied to the

1984 WAIS test, Quince’s revised score would be 75. Applying the Flynn Effect in

2006, Quince’s revised score would also be 75.

Dr. Oakland also stated, “[t]he assessment of adaptive behavior in an

incarcerated situation is absurd. We may be forced to do it, but it provides no

information except in reference to the person’s present behavior in an incarcerated

situation.” Dr. Oakland also admitted that another doctor looking at the ABAS

form would not know whether the individual scored zero on certain functions

because the individual was actually unable to perform the activity, or because that

person is not allowed to perform the activities due to incarceration. He also said

that the adaptive assessment performed on Quince while incarcerated was “moot.”

Dr. Oakland also admitted that none of the four doctors who evaluated Quince

in 1980 found that Quince was intellectually disabled.2 Dr. Oakland also evaluates

an individual’s adaptive function irrespective of the individual’s IQ score, but

admitted that IQ scores of 77 and 79 are inconsistent with a diagnosis of intellectual

disability.

2

The evaluations were conducted by Dr. Bernard, Dr. Rosario, Dr. McMillan,

and Dr. Carrera.

7

The State’s expert witness, Dr. Harry McClaren, was a licensed psychologist

in Florida and Alabama, who specialized in forensic psychology. Dr. McClaren

evaluated Quince to determine whether Quince was intellectually disabled. After

reviewing Quince’s records, Dr. McClaren concluded that Quince was not

intellectually disabled.

As to the first prong, subaverage intellectual functioning, Dr. McClaren said

that there is no way to tell whether the Flynn Effect influences a particular IQ score.

He said that it is not standard practice to apply the Flynn Effect and subtract the

number from the Flynn Effect from the IQ score.

As to Quince’s case, Dr.

McClaren said that it did not appear that the Flynn Effect influenced Quince’s scores,

given that there was no downward trajectory in Quince’s IQ scores. Dr. McClaren

also said that it is not standard practice within the profession to subtract both the

standard error of Measurement and the Flynn Effect from an IQ score. In his opinion,

the Flynn Effect did not apply to Quince’s IQ scores.

As to adaptive deficits, Dr. McClaren said that there is no test or assessment

designed for incarcerated individuals. Thus, if an adaptive assessment is performed

on an incarcerated individual, the result from the assessment would not be an

accurate reflection on the individual’s true adaptive abilities, given the individual’s

setting. As to the adaptive deficit score reflected in Dr. Oakland’s report, Dr.

McClaren questioned the validity of the score, and said that it was not an accurate

8

reflection of Quince, in light of Quince’s IQ scores. Furthermore, Dr. McClaren said

that there was no scientific basis to support Dr. Oakland’s retrospective assessment,

where Dr. Oakland interviewed Quince’s family members to determine whether

Quince’s alleged deficits in adaptive functioning manifested prior to Quince’s

eighteenth birthday. He also said that such an assessment is a misuse of the

instrument used in the assessment.

At the conclusion of the hearings, the trial court entered an order denying

Quince’s motion for determination of intellectual disability, and found that Quince

did not demonstrate that he is intellectually disabled.

Quince appealed the denial of his for determination of intellectual disability.

In affirming the trial court’s order denying Quince’s motion, the Florida Supreme

Court stated:

Quince has not scored 70 or below on an IQ test. The three IQ tests

taken by Quince-each the current version of the Wechsler Adult

Intelligence Scale when administered-produced scores of 79 on his

1980 test, 77 on his 1984 test, and 79 on his 2006 test . . . [c]ompetent,

substantial evidence supports the trial court's conclusion that Quince

did not demonstrate that he is mentally retarded by clear and convincing

evidence. None of the witnesses testified that they know for certain that

Quince had been given an IQ test prior to 1973 or what Quince scored

on that test. Therefore, Quince's argument that the trial court erred in

not concluding that he had scored below 70 on an IQ test prior to 1973

based on the lay witness testimony lacks merit.

Quince v. State, 116 So. 3d 1262, 1 (Fla. 2012), cert. denied, Quince v. Florida, 134

S. Ct. 2695 (2014).

9

Renewed Motion for Determination of Intellectual Disability

On May 21, 2015, Quince filed a “Renewed Motion for Determination of

Intellectual Disability as a Bar to Execution,” requesting the circuit court to revisit

its prior order denying his motion in light of Hall v. Florida, 134 S.Ct. 1986 (2014).

A hearing for Quince’s motion was held on May 9, 2016.

At the hearing, defense counsel did not present any new evidence in support

of Quince’s motion, and only requested the court to review the record and the

evidence presented at the previous hearings in light of Hall. Defense counsel also

requested that the trial court decide Quince’s motion under the preponderance of the

evidence standard, instead of the clear and convincing standard.

The trial judge acknowledged that in Quince’s first motion for determination

of intellectual ability, he based his denial of Quince’s motion solely on Quince’s IQ

scores, without considering Quince’s evidence regarding his adaptive deficits. The

trial court believed that under Hall, trial courts were required to review all three

prongs of the intellectual disability test, rather than deciding the issue on one

particular prong. The trial court concluded that in light of Hall, the court would

grant further review of Quince’s claim that he was intellectually disabled.

On December 28, 2016, the trial court entered an order denying Quince’s

Renewed Motion for Determination of Intellectual Disability as a Bar to Execution.

The Florida Supreme Court affirmed the lower court’s denial of relief. Quince v.

10

State, 241 So. 3d 58, 62–63 (Fla. 2018) (revised opinion). (Pet. App. A).

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

11

REASONS FOR DENYING THE WRIT

QUESTION 1

There Is No Basis For Certiorari Review Of The Florida

Supreme Court's Decision Finding That Quince Failed To Meet

His Burden Of Proof Of Establishing Intellectual Disability As

The Court Consistently Applied This Court's Precedent To The

Disputed Facts And Found That Quince Did Not Have

Significantly Subaverage Intellectual Functioning And Deficits

In His Adaptive Behavior.

INTRODUCTION

Quince alleges in his petition that the Florida Supreme Court disregarded this

Court's pronouncements in Atkins v. Virginia, 536 U.S. 304 (2002), Hall v. Florida,

134 S. Ct.

1986 (2014), and Moore v. Texas, 137 S. Ct. 1039 (2017), when

rejecting his intellectual disability claim. Contrary to Petitioner's assertion, it is clear

the Florida Supreme Court properly followed this Court's diagnostic framework

when analyzing Quince's intellectual disability claim. Significantly, following this

Court’s decision in Hall, Petitioner was provided with the opportunity to present

the post-conviction court with additional evidence in support of his previously

rejected intellectual disability claim and he failed to present any such evidence.

The state postconviction court had previously heard extensive testimony regarding

Quince’s intellectual scores on multiple standardized intelligence tests and assessed

evidence regarding his adaptive behavior.

Following this Court’s decision in Hall,

both the state postconviction court and the Florida Supreme Court agreed that

12

Quince failed to establish that he had significantly subaverage intellectual

functioning and concurrent deficits in his adaptive behavior. There is no conflict

between this Court's intellectual disability cases and the Florida Supreme Court's

decision. Furthermore, there is no conflict between the Florida Supreme Court's

decision and that of any other federal appellate court or state court of last resort. As

such, Quince has failed to offer any persuasive reasons for this Court to grant

certiorari review.

A. The Florida Supreme Court Correctly Determined That Quince Did Not

Suffer From Significantly Subaverage Intellectual Functioning Based On

His Multiple Full Scale IQ Scores Of 75 Or Above

This Court left the definition of intellectual disability to state legislature and

state courts in Atkins.3 In Hall, this Court noted that Florida's statute conforms with

clinical definitions of intellectual disabilities. Nonetheless, Hall imposed an

additional requirement that courts consider the “standard error of measurement” of

an IQ test in evaluating the first prong of a three- pronged test. See Hall, 134 S. Ct.

at 1994. Neither the decision in Hall nor the decision in Moore were dictated by the

holding in Atkins, which held only that the Eighth Amendment prohibits imposition

3

Atkins, 536 U.S. at 317 (leaving to the states the "task of developing

appropriate ways to enforce the constitutional restriction" as this Court had done in

the area of insanity citing Ford v. Wainwright, 477 U.S. 399 (1986)); Hall, 134 S.Ct.

at 1989 (noting that "Atkins did not give" states "unfettered discretion" to define

intellectual disability); Moore, 137 S.Ct. at 1048 (stating that although Atkins and

Hall left the definition of, and procedures for determining, intellectual disability to

the states, their discretion was not "unfettered").

13

of the death penalty on intellectually disabled defendants and specifically refused to

endorse any particular procedure for determining who, among those claiming to be

intellectually disabled, were members of that class.

Under Florida's three-prong test for intellectual disability, a defendant must

demonstrate "(1) significantly subaverage general intellectual functioning; (2)

concurrent deficits in adaptive behavior; and (3) manifestation of the condition

before age eighteen." Glover v. State, 226 So.3d 795, 808 (Fla. 2017) (citing Salazar

v. State, 188 So.3d 799, 811 (Fla. 2016); Fla. R. Crim. P. 3.203; and § 921.137(1),

Fla. Stat. (2013)). "Significantly subaverage general intellectual functioning'' is

defined as "performance that is two or more standard deviations from the mean score

on a standardized intelligence test specified in the rules of the Agency for Persons

with Disabilities." Jones v. State, 231 So.3d 374, 375 (Fla. 2017) (citing§

921.137(1), (2015)).

The Florida Supreme Court has consistently interpreted subaverage general

intellectual functioning as an IQ score consisting of 70 or below. Nixon v. State, 2

So. 3d 137, 142 (Fla. 2009). Hence, an IQ score above 70, even after applying the

standard error of measurement, is insufficient to establish subaverage intellectual

functioning. See Wright v. State, 213 So. 3d 881 (Fla. 2017) (holding that defendant

whose IQ scores were above 70 after applying the standard error of measurement

failed to show significant subaverage intellectual functioning). Quince’s IQ scores

14

consisted of 79, 77, and 79. After applying the five-point standard error of

measurement to each of Quince’s IQ scores, all of his IQ scores are still above the

70 threshold. Thus, applying Wright, Quince cannot meet the first prong of showing

subaverage intellectual functioning, as his IQ scores, even after applying the

standard error of measurement, fall outside the range of intellectual disability.

The views of medical experts do not ‘‘dictate’’ a court’s intellectual-disability

determination. As many courts have already recognized, Hall does not mention the

Flynn effect and does not require its application to all IQ scores in Atkins cases.

E.g., Black v. Carpenter, 866 F.3d 734, 746 (6th Cir. 2017) (noting that Hall does

not even mention the Flynn effect and does not require that IQ scores be adjusted for

it), petition for cert. filed, No. 17-8275 (U.S. Mar. 26, 2018); Smith v. Duckworth,

824 F.3d 1233, 1246 (10th Cir. 2016) (“Hall says nothing about application of the

Flynn Effect to IQ scores in evaluating a defendant’s intellectual disability.”), cert.

denied, 137 S. Ct. 1333 (2017); Ledford v. Warden, Ga. Diagnostic & Classification

Prison, 818 F.3d 600, 639 (11th Cir. 2016) (“Hall did not mention the Flynn effect.

. . . There is no ‘established medical practice’ of reducing IQ scores pursuant to the

Flynn effect. The Flynn effect remains disputed by medical experts, which renders

the rationale of Hall wholly inapposite.”), cert. denied, 137 S. Ct. 1432 (2017).

This Court in Moore struck Texas' definition of intellectual disability because

it did not comport with any clinical definition. At issue in Moore was the state

15

appellate court's adherence to factors for assessing intellectual disability long

abandoned by the medical community and factors which were the invention of the

state court "untied to any acknowledged source." Moore, 137 S .Ct. at 1044. Texas'

definition was, in this Court's words, "wholly nonclinical." Moore, 137 S. Ct. at

1053. Additionally, the Moore Court also noted that states retained "some flexibility"

in the definition of intellectual disability and the Hall Court explained that the

psychiatric community does not "dictate" the legal definition. Moore, 137 S.Ct. at

1052; Hall, 134 S.Ct. at 2000; see also Hall, 134 S.Ct. at 2006 (Alito,J., dissenting)

(noting that tying Eighth Amendment law to the views of professional associations

that often change would "lead to instability" and "fuel protracted litigation").

Conversely, in the instant case, the state courts were informed by experts from

both parties, assessed the evaluations conducted, and made credibility findings all

consistent with the accepted definition of intellectual disability found in the

Diagnostic and Statistical Manual of Mental Disorders IV. This Court determined

that the Texas court completely failed to inform itself of the medical community's

diagnostic framework. No such failure occurred in Quince’s case.

Although Quince argues that many jurisdictions have approved accounting for

the Flynn Effect in assessing IQ scores and thus the Flynn Effect should be applied

in an Atkins setting, it is important to note that Quince’s own expert, Dr. Oakland,

testified that the Flynn Effect should not be applied to individuals like Quince, who

16

have had multiple examinations over a period of time, also known as a longitudinal

study. Furthermore, Dr. Oakland admitted that there is no way of knowing whether

the Flynn Effect has impacted any particular individual’s IQ score, and the

application of the Flynn Effect is based on an expert’s own assumption that it applies,

instead of any actual data indicating that the Flynn Effect has impacted an

individual’s IQ score.

Moreover, although Dr. Oakland testified that his decision to apply the Flynn

Effect was based on Quince’s low IQ score, Dr. Oakland still testified that the Flynn

Effect does not apply to any particular case automatically, and more importantly, as

previously stated, Dr. Oakland admitted that the Flynn Effect is based on group data

that cannot be applied to any particular individual. He also admitted that there is no

way of knowing whether the Flynn Effect has impacted an individual’s IQ score.

Thus, Quince did not show why the Flynn Effect applied in his case, and there was

no actual data to demonstrate that the Flynn Effect impacted his IQ score.

Furthermore, while the Hall decision requires trial courts to consider the

standard error of measurement for IQ scores that would fall within the intellectual

disability range once applied, there is nothing in the opinion to support the

proposition that trial courts should first apply the Flynn Effect and then subtract the

standard error of measurement from the already-adjusted IQ score. Indeed, Dr.

McClaren specifically testified that it would not be standard practice to do multiple

17

subtractions as Quince suggests, as that is considered “double-dipping,” and not in

line with prevailing standards. Accordingly, there is no basis whatsoever to support

Quince’s mathematical formula of subtracting both the Flynn Effect and standard

error of measurement from his IQ scores, and thus Quince did not show subaverage

intellectual functioning.

Accordingly, as Quince’s IQ scores fell outside the range for intellectual

disability even after the standard error of measurement is applied, Quince did not

show that he suffers from significantly subaverage intellectual functioning.

Furthermore, there is no basis whatsoever to show that the Flynn Effect impacted

Quince’s IQ scores, or that Quince is entitled to deduct both the standard error of

measurement and the Flynn Effect from his IQ scores, as the double deduction would

not have been in accordance with prevailing standards.

Quince insists that there is no bright-line cut-off for intellectual functioning.

But there is a bright-line. Hall merely adjusted the bright-line rule to include the

statistical error of measurement (SEM) of five points. 4 The Hall Court increased

the line from 70 to 75 to account for the SEM in recognition of the fact that an IQ

4

And the Hall Court was being generous when it created a statistical error of

measurements of± five points since most of the statistical error of measurements for

the standard IQ tests are actually two to three points, not five points. For example,

the SEM at 95% confidence interval for the WAIS-IV is two or three points, not five

points. If the actual SEM for a particular IQ test is available, it should be used rather

than the Hall± 5 point default SEM.

18

score of 75 could actually represent an IQ of 70 due to the SEM. The IQ score must

be within the SEM, which is under 76, to warrant inquiry into the other prongs or an

evidentiary hearing. A capital defendant who does not have a single score within the

SEM range necessarily is not intellectually disabled. Not a single one of Quince’s

three different IQ scores was below 75. Contrary to Quince’s argument, there is still

a bright-line cut-off after Hall and Moore, and Quince fails to meet it. Since the

Florida Supreme Court’s application of Hall is based on adequate and independent

state grounds, certiorari review should be denied.

Quince Failed To Satisfy All Three Prongs Of The Intellectual Disability Test

Although the trial court was not required to examine all three prongs of the

intellectual disability test, given that Quince’s IQ scores fell outside the range of

intellectual disability even after the standard error of measurement is applied, the

trial court did in fact examine all three prongs of the intellectual disability test,

contrary to Quince’s assertions. Moreover, the evidence showed that Quince failed

to satisfy all three prongs of the intellectual disability test as required under the law.

There is no conflict between this Court's decision in Hall and the Florida Supreme

Court's decision in this case. Certiorari should be denied.

In Hall, this Court determined that Florida's interpretation of its statute

defining intellectual disability was unconstitutional and might result in a violation

of Atkins v. Virginia, 536 U.S. 304 (2002) where the standard error of measurement

19

(“SEM”) is not taken into consideration for IQ scores - most commonly from the

Wechsler Adult Intelligence Scale (WAIS). As a result, a defendant with a full scale

score between 70 and 75 must be permitted the opportunity to present, and have

considered, evidence concerning the second two factors in the intellectual disability

analysis, namely, concurrent deficiency in adaptive behavior and manifestation of

the condition before age eighteen. See Hurst v. State, 147 So. 3d 435, 441 (Fla. 2014)

(emphasis added); Nixon v. State, 2 So. 3d 137, 142 (Fla. 2009); §921.137, Fla. Stat.

(2012); In re Henry, 757 F.3d 1151, 1158, 1161 (11th Cir. 2014); see also Mays v.

Stephens, 757 F.3d 211, 21719 (5th Cir. 2014), cert. denied, 135 S.Ct. 951 (2015)

(rejecting claim that Hall required states to define adaptive functioning deficits in

any particular manner). This Court held that Florida should not have precluded Hall

from presenting other evidence of his intellectual disability based solely on a full

scale score of 71.

Florida's test for intellectual disability is a conjunctive test. Glover v. State,

226 So.3d 795, 808 (Fla. 2017) (explaining Florida's three-prong test for intellectual

disability requires a defendant to demonstrate: "(1) significantly subaverage general

intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3)

manifestation of the condition before age eighteen" citing § 921.137(1), Fla. Stat.

(2013)) (emphasis added). If the defendant fails to prove anyone prong of the three

20

prongs, the defendant will not be found to be intellectually disabled. Quince v. State,

241 So.3d 58 (Fla. 2018) (citing Salazar v. State, 188 So.3d 799, 812 (Fla. 2016)).

As with any other conjunctive multi- prong legal test, the failure to meet any

one of the prongs means the claim fails. For example, in the multi-prong test for

ineffective assistance of counsel established by this Court in Strickland v.

Washington, 466 U.S. 668 (1984), a petitioner must establish both prongs. Id. at 700

(stating that the failure "to make the required showing of either deficient

performance or sufficient prejudice" defeats the ineffectiveness claim) (emphasis

added). Courts are not required to address both prongs of the Strickland test. Id. at

697 (stating that there is no reason for a court deciding an ineffective assistance

claim to "address both components of the inquiry if the defendant makes an

insufficient showing on one"). Likewise, there is no reason for a court to address all

three components of intellectual disability, if the defendant makes an insufficient

showing on one of the components.

The Hall Court stated that this "Court agrees with the medical experts that

when a defendant's IQ test score falls within the test's acknowledged and inherent

margin of error, the defendant must be able to present additional evidence of

intellectual disability, including testimony regarding adaptive deficits." Hall, 134

S.Ct. at 2001 (emphasis added). The Hall Court observed that "when a defendant's

IQ test score falls within the test's acknowledged and inherent margin of error, the

21

defendant must be able to present additional evidence of intellectual disability,

including testimony regarding adaptive deficits." Id. at 2001 (emphasis added). If

the defendant's "IQ score is 75 or below the inquiry would consider factors indicating

whether the person had deficits in adaptive functioning." Id. at 1996 (emphasis

added). The Hall Court concluded that "an individual with an IQ test score between

70 and 75 or lower, may show intellectual disability by presenting additional

evidence regarding difficulties in adaptive functioning." Id. at 2000 (emphasis

added).

If there was any doubt about the reach of Hall, this Court clarified it in Moore

v. Texas, 137 S. Ct. 1039 (2017). The Moore Court wrote that "Hall instructs that,

where an IQ score is close to, but above, 70, courts must account for the test's

standard error of measurement." Id. at 1049 (emphasis added). This Court in Moore

explained that "in line with Hall, we require that courts continue the inquiry and

consider other evidence of intellectual disability where an individual's IQ score,

adjusted for the test's standard error, falls within the clinically established range for

intellectual-functioning deficits" Id. at 1050 (emphasis added). The Moore majority

explained that "because the lower end of Moore's score range falls at or below 70,"

the Texas courts "had to move on to consider Moore's adaptive functioning." Id. at

1049 (emphasis added).

22

Quince has undergone intelligence testing on three separate occasions. Each

intelligence assessment utilized the version of the Wechsler Adult Intelligence Scale

that was current at the time of testing. In 1980, on the Wechsler Adult Intelligence

Scale ("WAIS"), Quince obtained a full scale score of 79. In 1984, on the Wechsler

Adult Intelligence Scale-Revised ("WAIS-R") he obtained a full scale score of 77.

In 2006, on the Wechsler Adult Intelligence Scale-III ("WAISIII") he attained a full

scale score of 79.

The trial court announced that it would apply Hall retroactively to Quince’s

case, review the record of the 2008 intellectual disability hearing, and reconsider all

of the evidence presented in light of Hall. After reviewing the record and considering

written memoranda from both parties, the trial court concluded that because “none

of [Quince’s IQ] scores are within the tests’ acknowledged and inherent margin of

error, and the defendant was not precluded from presenting additional evidence of

intellectual disability, including testimony regarding adaptive deficits,” Quince is

not entitled to relief under Hall.

Quince’s argument that the testimony by his experts below went unrefuted,

and that the evidence overwhelmingly supports his contention that he is

intellectually disabled, is not entirely accurate. First, Quince’s IQ scores fell outside

the range of scores for intellectually disability. Second, although the State did not

put on witnesses to refute Quince’s contention that he suffers from deficits in

23

adaptive functioning and that the deficits manifested before the age of eighteen, the

State did not need to put on witnesses to refute his claims, as the evidence showed

that the testimony by Quince’s own witnesses rebutted his claims of deficits in

adaptive functioning.

Florida Rule of Criminal Procedure 3.203(1) defines adaptive behavior as “the

effectiveness or degree with which an individual meets the standards of personal

independence and social responsibility expected of his or her age, cultural group,

and community.” Florida courts have interpreted rule 3.203(1) to mean that the

adaptive deficits must exist concurrently with the subaverage intellectual

functioning. Dufour v. State, 69 So. 3d 235, 248 (Fla. 2011). Furthermore, in

reviewing alleged deficits in adaptive behavior, courts determine whether a

defendant has deficits in adaptive behavior by examining evidence of a defendant’s

limitations, in addition to evidence that may rebut those limitations. Id. at 250. “If

evidence of a strength rebuts evidence of a perceived limitation, that limitation may

not serve as justification for finding a deficit in adaptive behavior.” Id.

At the motion hearing, Dr. Oakland testified that there were no standard

assessments for incarcerated individuals like Quince, and that the assessments he

used for Quince were not appropriate for him, given his incarceration status.

Moreover, five doctors, Dr. Stern, Dr. Bernard, Dr. Rosario, Dr. McMillan, and Dr.

Carrera, all found that Quince was not intellectually disabled. In fact, Quince’s own

24

expert at the penalty phase, Dr. Stern, testified that individuals like Quince could

function quite well in society, and that there was no reason to believe that Quince

was mentally retarded.

The evidence showed that there was no scientific basis to support Dr.

Oakland’s retrospective adaptive assessment, where he interviewed family members

to form an opinion about Quince’s alleged adaptive deficits as a minor. The trial

court who served as the factfinder weighed the credibility of the witnesses and their

testimony, and ultimately concluded that Quince did not establish this prong of the

test. See Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) (stating that the trial

court’s role is to evaluate the credibility of the witnesses and their testimony, and

that appellate courts should not reweigh the trial court’s findings on the credibility

of witnesses and their testimony).

The views of medical experts do not ‘‘dictate’’ a court’s intellectual-disability

determination. ‘‘Psychiatry is not … an exact science.’’ Ake v. Oklahoma, 470 U.S.

68, 81, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). ‘‘[B]ecause there often is no single,

accurate psychiatric conclusion,’’ we have emphasized the importance of allowing

the ‘‘primary factfinder[ ]’’ to ‘‘resolve differences in opinion …on the basis of the

evidence offered by each party.’’ Id. Because the views of professional associations

often change, tying Eighth Amendment law to these views will lead to instability

25

and continue to fuel protracted litigation. Hall v. Florida, 134 S. Ct. 1986, 2006

(2014).

Quince insists that Hall requires States to conform the legal definition of

intellectually disabled to the views of the medical community. However, this

assertion is contrary to the express language in Hall itself. This Court specifically

stated that the work of the medical community “do[es] not dictate the Court’s

decision,” and that the “legal determination of intellectual disability is distinct from

a medical diagnosis.” Hall, 134 S. Ct. at 2000. Instead, it merely stated that it was

appropriate for legal authorities to “consult” and be “informed” by the views of the

medical community. Id. at 1993.

This Court clarified that “Hall indicated that being informed by the medical

community does not demand adherence to everything stated in the latest medical

guide.” Moore v. Texas, 137 S. Ct. 1039, 1048 (2017). These clinical guides are

‘‘designed to assist clinicians in conducting clinical assessment, case formulation,

and treatment planning.’’ DSM–5,5 at 25. They do not seek to dictate or describe

who is morally culpable—indeed, the DSM–5 cautions its readers about ‘‘the

imperfect fit between the questions of ultimate concern to the law and the

information contained’’ within its pages. Id.

5

American Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders (5th Ed. 2013) (“DSM-5”).

26

In the instant case, trial court granted a second review of Quince’s case to

specifically examine all three prongs of the intellectual disability test. Following the

evidentiary hearing, the postconviction court found that Quince had failed to

establish significantly subaverage intellectual functioning and deficits in his

adaptive behavior, and the Florida Supreme Court properly affirmed that ruling on

appeal. Quince v. State, 241 So.3d 58 (Fla. 2018). Respondent submits that the

Florida Supreme Court correctly followed this Court's precedent and the relevant

clinical standards when analyzing Quince’s claim, and as such, certiorari review of

this factual dispute is inappropriate.

The Florida Supreme Court's analysis of Quince’s intellectual disability claim

was the result of a fact-specific review and credibility determinations which were

decided adversely to Quince and which were consistent with this Court's precedent

and prevailing clinical standards. The correctness of the state court's ruling on this

claim is a factual determination with no implications beyond the parties involved

in this case, mandating the denial of certiorari review. See generally United States

v. Johnston, 268 U.S. 220, 227 (1925) (noting that the Court does "not grant a

certiorari to review evidence and discuss specific facts"). This Court is "consistent

in not granting certiorari except in cases involving principles the settlement of which

is of importance to the public as distinguished from that of the parties." Rice v. Sioux

City Mem'l Park Cemetery, Inc., 349 U.S. 70, 79 (1955).

27

QUESTION 2

There Is No Basis For Certiorari Review Of The Florida

Supreme Court's Application Of The Clear And Convincing

Standard To Quince’s Intellectual Disability Claim As The State

Court Resolution Was Not Contrary To Atkins, Cooker, Medina

or violate the Eighth or Fourteenth Amendments.

Quince argues that the clear and convincing standard used by Florida in

determining intellectual disability is in violation of the Eight and Fourteenth

Amendments. In Atkins v. Virginia, 536 U.S. 304, 317 (2002), this Court held that

the Eighth Amendment's prohibition against cruel and unusual punishment bars the

execution of an intellectually disabled defendant, but this Court left to the States

"the task of developing appropriate ways" to identify intellectually disabled

defendants and to enforce this constitutional protection. As this Court noted in Bobby

v. Bies, 556 U.S. 825,831 (2009), the Atkins decision "did not provide definitive

procedural or substantive guides for determining when a person" is intellectually

disabled. The determination of the standard of proof to be applied for the intellectual

disability determination is a question this Court has left to the states and is primarily

a matter of state law. Consequently, certiorari review should be denied.

See

Florida v. Powell, 559 U.S. 50, 57 (2010)(If a state court’s decision is based on

separate state law, this Court “of course, will not undertake to review the decision.”);

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing that “it is not the

28

province of a federal habeas court to reexamine state-court determinations on statelaw questions[] . . .” and that “a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States.”) (citing

28 U.S.C. § 2241; and Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam)).

It is undisputed that this Court in Atkins v. Virginia, 536 U.S. 304 (2002) stated

that “[m]entally retarded defendants in the aggregate face a special risk of wrongful

execution.” Atkins, 536 U.S. at 321. However, there is no language in the Atkins

decision to indicate that the clear and convincing standard runs afoul of the Atkins

decision, or any constitutional provision. Instead, this Court left to the states the task

of deciding how to comply with the Eighth Amendment’s prohibition on the

execution of intellectually disabled individuals. Accordingly, Section 921.137(4),

Florida Statutes provides, “[i]f the court finds, by clear and convincing evidence,

that the defendant has an intellectual disability . . . the court may not impose a

sentence of death . . . .” Thus, the Florida legislature has determined that the clear

and convincing standard should be used when deciding issues of intellectual

disability.

Although Quince classifies the clear and convincing standard as a high

standard, this is also how this Court has defined the clear and convincing standard.

See, e.g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990).

Although Quince argues that other states use the preponderance of the evidence

29

standard, that argument does not mean that the clear and convincing standard is

unconstitutional. Indeed, Quince’s argument has no bearing whatsoever on the

constitutionality of the clear and convincing standard. This very point was stated in

Leland v. Oregon, 343 U.S. 790 (1952), where this Court held that the beyond a

reasonable doubt standard for a defendant’s insanity claim did not violate the

constitution. The Court stated:

Oregon is the only state that requires the accused, on a plea of insanity, to

establish that defense beyond a reasonable doubt. Some twenty states,

however, place the burden on the accused to establish his insanity by a

preponderance of the evidence or some similar measure of persuasion. While

there is an evident distinction between these two rules as to the quantum of

proof required, we see no practical difference of such magnitude as to be

significant in determining the constitutional question we face here. Oregon

merely requires a heavier burden of proof . . . The fact that a practice is

followed by a large number of states is not conclusive in a decision as to

whether that practice accords with due process . . . .

Id. at 798. (Emphasis added). Notably, Georgia’s “beyond a reasonable doubt”

standard has not been held to violate Atkins or any constitutional provision. Hill v.

Humphrey, 662 F.3d 1335 (11th Cir. 2011). Accordingly, if the “beyond a

reasonable doubt” standard does not violate Atkins or any constitutional provisions,

Florida’s lower standard of clear and convincing evidence likewise does not violate

Atkins.

30

Arizona, like Florida, requires a defendant to prove by clear and convincing

evidence that he or she is mentally retarded. 6 In State v. Grell, 135 P.3d 696 (Ariz.

2006), cert denied, Grell v. Arizona 127 S. Ct. 2246 (2007), one issue before the

court was the constitutionality of the clear and convincing standard. Id. at 701. In

concluding that the clear and convincing standard does not violate the Eighth

Amendment, the Arizona court began its analysis by first noting that the Atkins Court

declined to specify what procedures should be used identify intellectually disabled

individuals. Id. The Arizona court noted that this Court based its decision to decline

to specify what procedures should be used due to the lack of consensus regarding

which individuals are, in fact, intellectually disabled. Id.

The Arizona court further reasoned that Arizona’s sentencing scheme

permitted a defendant to have a pretrial hearing to determine his or her mental

retardation, and if the defendant does not prevail at the pretrial hearing, the defendant

may still present the evidence in mitigation of his or her sentence under a lower

standard. Id. at 704. Thus, the court concluded that given the procedural protections

afforded to capital defendants, the clear and convincing standard did not violate the

Eighth Amendment. Id. at 705. See also Hill, 662 F.3d at 1353 (noting Georgia’s

procedural protections for capital defendants include the right to a unanimous verdict

Arizona uses the term “mental retardation” instead of the term “intellectual

disability.” A.R.S. § 13-703.02(G).

6

31

for a death sentence, the right to a pretrial determination of mental retardation, and

the right to present witnesses, cross-examine witnesses).

Florida’s clear and convincing standard does not violate the Eighth

Amendment. Florida has the same procedural safeguards built into its death

sentencing scheme as Arizona. Pursuant to Florida Rule of Criminal Procedure

3.203, a defendant may file a pretrial motion for determination of intellectual

disability as a bar to execution. Florida’s scheme also permits for the defendant to

present expert testimony in support of his or her claim, and also gives the defendant

the right to cross-examine the State’s experts. Moreover, a defendant can still present

evidence relating to his or her mental state in mitigation under the preponderance of

the evidence standard. Hence, clear and convincing standard does not violate the

Eighth Amendment.

Finally, Quince’s contention that individuals with mild intellectual disability

are harder to identify, does not lead to the conclusion that the clear and convincing

standard violates Atkins. Moreover, even if it is true as Quince contends, that

individuals with mild intellectual disability are harder to identify, that argument is

still insufficient to warrant consideration to grant review. A similar argument made

by Quince was raised and rejected in Hill.

In responding to Hill’s contention that Georgia’s beyond a reasonable doubt

standard would result in the execution of intellectually disabled individuals, the

32

Court reasoned that Hill ignored the fact that “Atkins disavowed any intent to

establish a nationwide procedural or substantive standard for determining mental

retardation.” Hill, 662 F.3d at 1354. The court also reasoned that Hill’s argument

exists with any burden of proof. Id. at 1355. Specifically, the Court stated:

[e]very standard of proof allocates some risk of an erroneous factual

determination to the defendant and therefore presents some risk that mentally

retarded offenders will be executed in violation of Atkins . . . Consequently,

under Hill’s reasoning, even a preponderance of the evidence standard will

result in the execution of those offenders that Atkins was designed to protect

because it does not eliminate the risk that the trier of fact will conclude that

the offender is not mentally retarded when, in fact, he is.

Id.

Indeed, Quince’s argument is based on the science identifying the

intellectually disabled individual, not the standard. As recognized by the court in

Hill, changing the standard would not change the fact that an individual with mild

intellectual disability is harder to identify, nor would it eliminate the risk of

executing an intellectually disabled individual.

In sum, the underlying question presented by Petitioner on the standard

chosen by the State of Florida for the intellectual disability determination is a matter

of state law.

The Florida Supreme court decision does not conflict with any of this Court’s

precedent or present this Court with an important or unsettled question of

constitutional law. As this Court has observed, a principal purpose for certiorari

jurisdiction "is to resolve conflicts among the United States courts of appeals and

33

state courts concerning the meaning of provisions of federal law." Braxton v. United

States, 500 U.S. 344, 347 (1991); see also Sup. Ct. R. 10(b) (listing conflict among

federal appellate courts and state supreme courts as a consideration in the decision

to grant review). States are free, within constitutional parameters set by this Court,

to establish the burden of proof for an intellectual disability determination. The

Constitution does not require uniformity among the states. Nothing in the petition

justifies the exercise of this Court’s certiorari jurisdiction.

CONCLUSION

Based on the foregoing arguments and authorities, Respondent requests

respectfully that this Honorable Court deny the request for certiorari review.

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

34

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 30th 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: Raheela Ahmed, ahmed@ccmr.state.fl.us, Maria

Christine

Perinetti,

Perinetti@ccmr.state.fl.us,

Lisa

Marie

Bort,

bort@ccmr.state.fl.us, Capital Collateral Regional Counsel, 12973 North Telecom

Parkway, Temple Terrace, Florida 33637-0907.

s/ Doris Meacham

COUNSEL FOR RESPONDENT

35