Opposition Brief — Henry Perry Sireci, Petitioner v. Florida
Supreme Court briefJul 30, 2018
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CASE NO. 18-5040
IN THE SUPREME COURT OF THE UNITED STATES
HENRY PERRY SIRECI,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
RESPONDENT’S BRIEF IN OPPOSITION
PAMELA JO BONDI
Attorney General
Tallahassee, Florida
SCOTT A. BROWNE
Senior Assistant Attorney General
*Counsel of Record
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813) 287-7910
scott.browne@myfloridalegal.com
COUNSEL FOR RESPONDENT
[Capital Case]
QUESTION PRESENTED FOR REVIEW
Whether this Court should grant certiorari review where
the retroactive application of Hurst v. Florida and
Hurst v. State is based on adequate independent state
grounds and the issue presents no conflict between the
decisions of other state courts of last resort or
federal courts of appeal, does not conflict with this
Court’s precedent, and does not otherwise raise an
important federal question?
i
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW.................................. i
TABLE OF CONTENTS............................................. ii
TABLE OF CITATIONS........................................... iii
CITATION TO OPINION BELOW...................................... 1
JURISDICTION................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............... 1
STATEMENT OF THE CASE.......................................... 1
RELEVANT FACTS................................................. 5
REASONS FOR DENYING THE WRIT................................... 9
Certiorari review should be denied because the Florida
Supreme Court’s ruling on the retroactivity of Hurst
relies on state law to provide that the Hurst cases are
not retroactive to defendants whose death sentences
were final when this Court decided Ring v. Arizona, and
the court’s ruling does not violate the Eighth or
Fourteenth Amendments and does not conflict with any
decision of this Court or involve an important,
unsettled question of federal law..........................9
CONCLUSION.................................................... 28
CERTIFICATE OF SERVICE........................................ 28
ii
TABLE OF CITATIONS
Federal Cases
Alleyne v. United States,
570 U.S. 99 (2013) .......................................... 11
Apprendi v. New Jersey,
530 U.S. 466 (2000) ......................................... 18
Caldwell v. Mississippi,
472 U.S. 320 (1985) ................................. 25, 26, 27
Cardinale v. Louisiana,
394 U.S. 437 (1969) ......................................... 21
Chapman v. California,
386 U.S. 18 (1967) .......................................... 23
Danforth v. Minnesota,
552 U.S. 264 (2008) ......................................... 14
Darden v. Wainwright,
477 U.S. 168 (1986) ......................................... 26
Dugger v. Adams,
489 U.S. 401 (1989) ......................................... 27
Eisenstadt v. Baird,
405 U.S. 438 (1972) ......................................... 19
Florida v. Powell,
559 U.S. 50 (2010) .......................................... 22
Fox Film Corp. v. Muller,
296 U.S. 207 (1935) ......................................... 21
Griffith v. Kentucky,
479 U.S. 314 (1987) ......................................... 17
Harris v. Alabama,
513 U.S. 504 (1995) ......................................... 24
Hurst v. Florida,
136 S. Ct. 616 (2016) ................................... passim
Jenkins v. Hutton,
137 S. Ct. 1769 (2017) ...................................... 11
Johnson v. Florida,
465 U.S. 1051 (1984) ........................................ 20
iii
Johnson v. New Jersey,
384 U.S. 719 (1966) ......................................... 14
Lambrix v. Sec’y, Fla. Dep’t of Corr.,
872 F.3d 1170 (11th Cir.),
cert. denied, 138 S. Ct. 312 (2017) ......................... 14
Lambrix v. Sec’y, Fla. Dept. of Corr.,
851 F.3d 1158 (11th Cir.),
cert. denied, 138 S. Ct. 217 (2017) ......................... 17
Lawrence v. Texas,
539 U.S. 558 (2003) ......................................... 20
McCleskey v. Kemp,
481 U.S. 279 (1987) ..................................... 20, 21
Michigan v. Long,
463 U.S. 1032 (1983) .................................... 21, 22
Penry v. Lynaugh,
492 U.S. 302 (1989) ......................................... 17
Ring v. Arizona,
536 U.S. 584 (2002) ..................................... passim
Romano v. Oklahoma,
512 U.S. 1 (1994) ........................................... 26
Roper v. Simmons,
543 U.S. 551 (2005) ......................................... 22
Royster Guano Co. v. Virginia,
253 U.S. 412 (1920) ......................................... 19
Schriro v. Summerlin,
542 U.S. 348 (2004) ..................................... 14, 25
Sireci v. Attorney General,
406 Fed. Appx. 348 (11th Cir. 2010)(unpublished),
cert. denied, 565 U.S. 870 (2011) ............................ 4
Sireci v. Florida,
137 S. Ct. 470 (2016) ........................................ 9
Sireci v. Florida,
456 U.S. 984 (1982) .......................................... 1
Sireci v. Florida,
503 U.S. 946 (1992) .......................................... 3
iv
Teague v. Lane,
489 U.S. 288 (1989) ..................................... 14, 17
United States v. Purkey,
428 F.3d 738 (8th Cir. 2005) ................................ 12
United States v. Sampson,
486 F.3d 13 (1st Cir. 2007) ................................. 12
Walker v. United States,
810 F.3d 568 (8th Cir. 2016) ................................ 15
Walton v. Arizona,
497 U.S. 639 (1990) ......................................... 18
Ybarra v. Filson,
869 F.3d 1016 (9th Cir. 2017) ............................... 17
State Cases
Asay v. State,
210 So. 3d 1 (Fla. 2016),
cert. denied, 138 S. Ct. 41 (2017) ...................... passim
Branch v. State,
234 So. 3d 548 (Fla.),
cert. denied, 138 S. Ct. 1164 (2018) .................... 10, 17
Cole v. State,
234 So. 3d 644 (Fla.),
cert. denied, 17-8540, 2018 WL 1876873 (June 18, 2018) ...... 10
Ellerbee v. State,
87 So. 3d 730 (Fla. 2012) ................................... 15
Finney v. State,
660 So. 2d 674 (Fla. 1995) .................................. 23
Floyd v. State,
497 So. 2d 1211 (Fla. 1986) ................................. 23
Hannon v. State,
228 So. 3d 505 (Fla.),
cert. denied, 138 S. Ct. 441 (2017) ..................... 10, 17
Hitchcock v. State,
226 So. 3d 216 (Fla.),
cert. denied, 138 S. Ct. 513 (2017) .................. 4, 10, 17
v
Hughes v. State,
901 So. 2d 837 (Fla. 2005) .................................. 24
Hurst v. State,
202 So. 3d 40 (Fla. 2016),
cert. denied, 137 S. Ct. 2161 (2017) .................... passim
Johnson v. State,
205 So. 3d 1285 (Fla. 2016) ................................. 20
Johnson v. State,
44 So. 3d 51 (Fla. 2010) .................................... 20
Johnson v. Wainwright,
498 So. 2d 938 (Fla. 1986) .................................. 20
Kaczmar v. State,
228 So. 3d 1 (Fla. 2017),
cert. denied, 138 S. Ct. 1973 (2018) ........................ 10
Lambrix v. State,
227 So. 3d 112 (Fla.),
cert. denied, 138 S. Ct. 312 (2017) ..................... 10, 17
McGirth v. State,
209 So. 3d 1146 (Fla. 2017) ................................. 12
Mosley v. State,
209 So. 3d 1248 (Fla. 2016) ......................... 13, 15, 18
Reynolds v. State,
___ So. 3d ___, 2018 WL 1633075 (Fla. Apr. 5, 2018) ......... 26
Rhoades v. State,
233 P. 3d 61 (2010) ......................................... 25
Sireci v. Moore,
825 So. 2d 882 (Fla. 2002) ................................... 3
Sireci v. State,
192 So. 3d 42 (Table) (Fla. 2015),
cert. denied, 137 S. Ct. 470 (2016) ....................... 4, 9
Sireci v. State,
237 So. 3d 916 (Fla.),
rehearing stricken, 2018 WL 1052680 (Fla. Feb. 26, 2018) ..... 1
Sireci v. State,
399 So. 2d 964 (Fla. 1981) ............................. 1, 6, 7
Sireci v. State,
469 So. 2d 119 (Fla. 1985),
cert. denied, 478 U.S. 1010 (1986) ........................... 2
vi
Sireci v. State,
587 So. 2d 450 (Fla. 1991) ................................... 3
Sireci v. State,
773 So. 2d 34 (Fla. 2000) .............................. 3, 6, 7
Sireci v. State,
908 So. 2d 321 (Fla.),
cert. denied, 546 U.S. 1077 (2005) ..................... 3, 7, 8
State v. Gales,
658 N.W.2d 604 (Neb. 2003) .................................. 12
State v. Mason,
___ N.E.3d ____, 2018 WL 1872180 (Ohio Apr. 18, 2018) ....... 11
State v. Sireci,
502 So. 2d 1221 (Fla. 1987) .................................. 2
State v. Sireci,
536 So. 2d 231 (Fla. 1988) ................................... 2
Witt v. State,
387 So. 2d 922 (Fla. 1980) .............................. passim
Zack v. State,
228 So. 3d 41 (Fla. 2017),
cert. denied, 17-8134, 2018 WL 1367892 (June 18, 2018) ...... 10
Other Authorities
§ 921.141(6)(d), Fla. Stat.................................... 11
28 U.S.C. § 1257(a)............................................ 1
Fla. R. Crim. P. 3.851......................................... 4
Fla. R. Crim. P. 3.851(d)(1)(B)................................ 3
Fla. Std. J. Inst. (Crim.) 7.11............................... 23
Sup. Ct. R. 10................................................ 10
vii
CITATION TO OPINION BELOW
The opinion of the Florida Supreme Court is reported at
Sireci v. State, 237 So. 3d 916 (Fla.), rehearing stricken, 2018
WL 1052680 (Fla. Feb. 26, 2018).
JURISDICTION
The judgment of the Florida Supreme Court was entered on
January
31,
2018
and
the
mandate
issued
February
26,
2018.
Petitioner invokes the jurisdiction of this Court based upon 28
U.S.C. § 1257(a). Respondent agrees that this statutory provision
sets out the scope of this Court’s certiorari jurisdiction, but
submits that this case is inappropriate for the exercise of this
Court’s discretionary jurisdiction.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Respondent
accepts
Petitioner’s
statement
regarding
the
applicable constitutional and statutory provisions involved.
STATEMENT OF THE CASE
In 1976, Henry Perry Sireci was convicted of the brutal
first-degree
murder
of
Howard
Poteet.
The
trial
judge,
the
Honorable Maurice M. Paul, followed the jury’s recommendation and
imposed a sentence of death. The Florida Supreme Court affirmed
Sireci’s conviction and sentence on direct appeal. Sireci v.
State, 399 So. 2d 964 (Fla. 1981). On May 17, 1982, this Court
denied certiorari. Sireci v. Florida, 456 U.S. 984 (1982).
1
Sireci
subsequently
unsuccessfully
sought
post-conviction
relief in the trial court pursuant to Florida Rule of Criminal
Procedure 3.850, and that decision was affirmed on appeal. Sireci
v. State, 469 So. 2d 119 (Fla. 1985), cert. denied, 478 U.S. 1010
(1986).
On September 19, 1986, the Governor signed a death warrant
for Henry Sireci, prompting the filing of a second motion for
post-conviction relief. A limited evidentiary hearing on this
post-conviction motion was granted by the Ninth Judicial Circuit
Court, and the State unsuccessfully appealed. State v. Sireci,
502 So. 2d 1221 (Fla. 1987).
The trial court held an evidentiary hearing on Sireci’s
second
3.850
motion
and
ultimately
hearing
on
grounds
that
two
ordered
a
new
court-appointed
sentencing
psychiatrists
conducted incompetent evaluations at the time of the original
trial.
At
the
conclusion
of
the
evidentiary
hearing,
a
new
penalty phase was granted, and this decision was affirmed on
appeal.
State
v.
Sireci,
536
So.
2d
231
(Fla.
1988).
Upon
resentencing, the jury recommended the death penalty by a vote of
eleven to one and the Ninth Judicial Circuit Court again imposed
the
death
penalty.
circumstances:
1)
The
the
trial
court
defendant
was
found
five
previously
aggravating
convicted
of
another capital felony or a felony involving the use or threat of
violence (a prior murder and an earlier robbery); 2) the murder
2
was committed during a robbery and for pecuniary gain; 3) the
murder was committed for the purpose of avoiding or preventing a
lawful
arrest
by
eliminating
a
witness;
4)
the
murder
was
especially heinous, atrocious, or cruel; and 5) the murder was
cold, calculated, and premeditated. The court found non-statutory
mitigating circumstances (abusive childhood, brain damage) but no
statutory mitigating circumstances. Sireci v. State, 587 So. 2d
450, 452 n.1 (Fla. 1991).
Sireci pursued a direct appeal of the resentencing hearing.
The
Florida
Supreme
Court
affirmed
imposition
of
the
death
sentence on direct appeal. Sireci v. State, 587 So. 2d 450 (Fla.
1991). The judgment and sentence became final upon denial of
certiorari by this Court on March 23, 1992. Sireci v. Florida,
503 U.S. 946 (1992); Fla. R. Crim. P. 3.851(d)(1)(B) (A judgment
and sentence become final “on the disposition of the petition for
writ
of
certiorari
by
the
United
States
Supreme
Court,
if
filed”).
Following Sireci’s unsuccessful collateral attacks in state
and federal court,1 Sireci filed the instant successive post-
On September 7, 2000, the Florida Supreme Court affirmed the
lower court’s denial of post-conviction relief in Sireci v.
State, 773 So. 2d 34 (Fla. 2000). Sireci’s subsequent collateral
challenges have been rejected. See Sireci v. Moore, 825 So. 2d
882 (Fla. 2002) (denial of state petition for writ of habeas
corpus); Sireci v. State, 908 So. 2d 321, 325 (Fla.) (affirming
denial of Rule 3.853 motion for post-conviction DNA testing),
cert. denied, 546 U.S. 1077 (2005); Sireci v. State, 192 So. 3d
42 (Table) (Fla. 2015) (affirming denial of post-conviction
motion asserting claim of newly discovered evidence based upon
3
1
conviction motion pursuant to Florida Rule of Criminal Procedure
3.851 challenging his death sentence based on 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). On May 22, 2017, the
circuit court summarily denied Sireci’s motion. After the postconviction court denied relief (Pet. App. B), the Florida Supreme
Court stayed Sireci’s appeal pending the outcome of Hitchcock v.
State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513
(2017).
In
Hitchcock,
the
Florida
Supreme
Court
reaffirmed
its
previous holding in Asay v. State, 210 So. 3d 1 (Fla. 2016),
cert. denied, 138 S. Ct. 41 (2017), ruling that Hurst v. Florida
as interpreted by Hurst v. State is not retroactive to defendants
whose death sentences were final when this Court decided Ring v.
Arizona, 536 U.S. 584 (2002). After the court decided Hitchcock,
it issued an order to show cause directing Sireci to show why
Hitchcock should not be dispositive in his case. The Florida
Supreme
Court
affirmed
the
lower
court’s
denial
of
relief,
finding “Hurst does not apply retroactively to Sireci’s sentence
of death.” (citation omitted). (Pet. App. A2).
the unsound or over stated significance of hair comparison
testimony introduced during his trial), cert. denied, 137 S. Ct.
470 (2016). Federal habeas relief has also been denied. The
Eleventh Circuit Court of Appeals affirmed the district court’s
denial of Sireci’s petition for writ of habeas corpus on December
21, 2010. Sireci v. Attorney General, 406 Fed. Appx. 348 (11th
Cir. 2010) (unpublished), cert. denied, 565 U.S. 870 (2011).
4
Sireci now seeks certiorari review of the Florida Supreme
Court’s decision.
RELEVANT FACTS
In
affirming
Sireci’s
conviction
and
death
sentence
on
direct appeal, the Florida Supreme Court provided the following
factual summary:
The defendant, Sireci, went to a used car lot,
entered the office, and discussed buying a car with the
victim Poteet, the owner of a car lot. Defendant argues
that the purpose of his visit was to take some keys
from the rack so that he could come back later and
steal an automobile. The state argues that defendant
went to the used car lot for the purpose of robbing the
owner at that time.
The defendant was armed with a wrench and a knife.
A struggle ensued. The victim suffered multiple stab
wounds,
lacerations,
and
abrasions.
An
external
examination of the body revealed a total of fifty-five
stab wounds, all located on the chest, back, head, and
extremities. The stab wounds evoked massive external
and internal hemorrhages which were the cause of death.
The neck was slit.
The
defendant
told
his
girlfriend,
Barbara
Perkins, that he was talking to the victim about a car,
then he hit the victim in the head with the wrench.
When the man turned around, the defendant asked where
the money was, but the man wouldn’t tell the defendant,
so he stabbed him. The defendant told Perkins that he
killed Poteet. He admitted taking the wallet from the
victim.
Harvey Woodall, defendant’s cellmate when he was
arrested in Illinois, testified that the defendant had
described the manner in which he killed the victim.
According to Woodall’s testimony, the defendant hit the
victim with a wrench, then a fight ensued in which the
windows were broken, and the defendant stabbed the man
over sixty times. The defendant stated that he wasn’t
going to leave any witnesses to testify against him and
that he knew the man was dead when he left. The
5
defendant told
credit cards.
Woodall
he
got
around
$150.00
plus
The defendant also described the crime to Bonnie
Arnold. According to Arnold, the defendant stated that
the car lot owner and he were talking about selling the
defendant a car, when the defendant hit the victim with
a tire tool. A fight began and the defendant stabbed
the victim. The defendant told Arnold that he was going
in to steal some car keys and then come back later to
steal a car.
The defendant told David Wilson, his brother-inlaw, that he killed the victim with a five or six-inch
knife and took credit cards from the victim.
Sireci v. State, 399 So. 2d 964 (Fla. 1981).
While
Sireci
notes
that
he
has
always
maintained
his
innocence in this case (Petition at 3), the record reflects that
Sireci’s identity as Mr. Poteet’s murderer was never genuinely in
doubt. Identity is simply not an issue in this case. As the
Florida Supreme Court noted in affirming the denial of Sireci’s
previous
motion
for
post-conviction
relief:
“An
independent
review of the record indicates that, in total, seven different
people testified that appellant confessed to them that he had
murdered
Howard
“Specifically,
Poteet.”
the
Sireci,
following
773
people
So.
2d
testified
at
42-43.
that
Sireci
admitted killing Mr. Poteet: (1) Barbara Perkins-–girlfriend; (2)
Donald
Holtzinger--cell
mate;
(3)
Peter
Sireci--brother;
(4)
Harvey Woodall--cell mate; (5) Bonnie Lee Arnold--friend; (6)
6
David Wilson--brother in law2; (7) Gary Arbisi--detective.” Id.
at 43 n.16. “Those confessions were all consistent, detailed
accounts of the murder.” Id. at 43. The Florida Supreme Court
reached a similar conclusion in affirming the denial of postconviction DNA testing in this case. Sireci, 908 So. 2d at 325
(“Finally, we conclude that, in light of the other evidence of
guilt, there is no reasonable probability that Sireci would have
been acquitted or received a lesser sentence if the State had not
introduced into evidence the hair on Poteet’s sock. As we have
noted, seven witnesses testified that Sireci admitted to them
that
he
killed
Poteet.
We
find
no
error
in
this
regard.”)
(citations omitted). Indeed, even at trial the identity of Sireci
as the person who killed Mr. Poteet was not in dispute. Defense
counsel argued the State had not proved first-degree murder, but
conceded that Sireci was guilty of third-degree murder. (T4/70212).
Given
these
facts,
Sireci’s
belated
and
completely
unsupported attempt to cast doubt upon his state court conviction
is not only irrelevant to the narrow legal issue presently before
this Court, but it is factually unsound. Similarly, it is unclear
The trial court allowed into evidence testimony from another
former cell mate [Holtzinger] concerning an attempt by Sireci to
eliminate his former brother-in-law Wilson as a witness. “The
defendant told Holtzinger that the purpose of eliminating Wilson
and preventing him from testifying was to discredit the testimony
of witness Perkins, thereby avoiding a conviction.” Sireci, 399
So. 2d at 968.
2
7
why Sireci refers to prior state court litigation surrounding the
hair comparison testimony admitted at his trial. Such ‘facts’ are
plainly irrelevant to the question of retroactivity which was the
issue decided in state court below and the claim upon which
Sireci
now
materially
seeks
review.
incomplete
as
Moreover,
they
relate
Petitioner’s
facts
to
comparison
the
hair
are
testimony admitted at trial and the State’s failure to allow DNA
testing on the hair found on the victim’s sock.
Sireci asserts that in seeking a consent agreement from the
State to conduct DNA testing of various items, the State refused
to allow certain evidence to be tested, including hair collected
from Mr. Poteet’s sock - - the hair that allegedly tied Mr.
Sireci to the scene of the crime. (Petition at 5). This is an
inaccurate account of the proceedings below and in particular, of
the consent agreement. In the consent agreement entered into in
2010, Sireci, notably, did not seek DNA testing of the hair found
on Mr. Poteet’s sock. (V1/28-29). That agreement also included
the stipulation that Sireci would not seek additional DNA testing
in either state or federal court. (V1/29). Only after the agreed
upon testing had been conducted did Sireci, through the Innocence
Project, request testing of the hair located on Mr. Poteet’s sock
in a letter sent to the State Attorney’s Office.3
The State acknowledges that Sireci did seek DNA testing of the
hair on the sock in his earlier Rule 3.853 motion. See Sireci,
908 So. 2d at 325. However, Sireci inexplicably failed to seek
testing of the hair in the subsequent consent agreement.
8
3
Notably, the Florida Supreme Court affirmed the denial of
Sireci’s successive motion for post-conviction relief, Sireci v.
State,
192
So.
3d
42
(Fla.
2015),
based
upon
the
allegedly
misleading hair comparison testimony presented at this trial and
this Court subsequently denied certiorari of that ruling. Sireci
v. Florida, 137 S. Ct. 470 (2016).
REASONS FOR DENYING THE WRIT
Certiorari review should be denied because the Florida
Supreme Court’s ruling on the retroactivity of Hurst
relies on state law to provide that the Hurst cases are
not retroactive to defendants whose death sentences
were final when this Court decided Ring v. Arizona, and
the court’s ruling does not violate the Eighth or
Fourteenth Amendments and does not conflict with any
decision of this Court or involve an important,
unsettled question of federal law.
Petitioner seeks review the Florida Supreme Court’s decision
affirming the denial of his successive post-conviction motion and
claims
that
the
state
court’s
holding
with
respect
to
the
retroactive application of Hurst violates the Eighth Amendment’s
prohibition against arbitrary and capricious imposition of the
death penalty and the Fourteenth Amendment’s guarantee of equal
protection. However, the Florida Supreme Court’s denial of the
retroactive application of Hurst to Petitioner’s case is based on
adequate and independent state grounds, is not in conflict with
any other state court of last review, and is not in conflict with
any
federal
appellate
court.
This
decision
is
also
not
in
conflict with this Court’s jurisprudence on retroactivity, nor
9
does
it
violate
the
Eighth
and
Fourteenth
Amendments.
Thus,
because Petitioner has not provided any “compelling” reason for
this
Court
to
review
his
case,
certiorari
review
should
be
denied. See Sup. Ct. R. 10.
Respondent would further note that this Court has repeatedly
denied
certiorari
to
review
the
Florida
Supreme
Court’s
retroactivity decisions following the issuance of Hurst v. State.
See, e.g., Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied,
138 S. Ct. 41 (2017); Hitchcock v. State, 226 So. 3d 216 (Fla.),
cert. denied, 138 S. Ct. 513 (2017); Lambrix v. State, 227 So. 3d
112 (Fla.), cert. denied, 138 S. Ct. 312 (2017); Hannon v. State,
228 So. 3d 505 (Fla.), cert. denied, 138 S. Ct. 441 (2017);
Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S. Ct.
1164 (2018); Cole v. State, 234 So. 3d 644 (Fla.), cert. denied,
17-8540, 2018 WL 1876873 (June 18, 2018); Kaczmar v. State, 228
So. 3d 1 (Fla. 2017), cert. denied, 138 S. Ct. 1973 (2018); Zack
v. State, 228 So. 3d 41 (Fla. 2017), cert. denied, 17-8134, 2018
WL 1367892 (June 18, 2018). Petitioner offers no persuasive, much
less compelling reasons, for this Court to grant review of his
case.
I.
There Is No Underlying Constitutional Violation.
Aside from the question of retroactivity, certiorari would
be inappropriate in this case because there is no underlying
federal constitutional error as Hurst v. Florida did not address
10
the
process
of
weighing
the
aggravating
and
mitigating
circumstances or suggest that the jury must conduct the weighing
process to satisfy the Sixth Amendment.
case,
the
trial
court
found
that
In aggravation in this
Petitioner
was
previously
convicted of another capital felony or a felony involving the use
or threat of violence (a prior murder and an earlier robbery).
See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Alleyne v.
United States, 570 U.S. 99, 111 n.1 (2013)
(recognizing the
“narrow exception . . . for the fact of a prior conviction” set
forth
in
Almendarez-Torres
v.
United
States,
523
U.S.
224
(1998)). See also Jenkins v. Hutton, 137 S. Ct. 1769, 1772 (2017)
(noting that the jury’s findings that defendant engaged in a
course of conduct designed to kill multiple people and that he
committed kidnapping in the course of aggravated murder rendered
him eligible for the death penalty). This Court’s ruling in Hurst
v. Florida did not change the recidivism exception articulated in
Apprendi and Ring.4
Lower courts have almost uniformly held that a judge may
perform the “weighing” of factors to arrive at an appropriate
sentence without violating the Sixth Amendment. See State v.
Mason, ___ N.E.3d ____, 2018 WL 1872180 at *5-6 (Ohio Apr. 18,
2018) (“Nearly every court that has considered the issue has held
that the Sixth Amendment is applicable to only the fact-bound
§ 921.141(6) (listing prior violent felony as an aggravator
under Florida law).
4
11
eligibility
decision
concerning
an
offender’s
guilt
of
the
principle offense and any aggravating circumstances” and that
“weighing is not a factfinding process subject to the Sixth
Amendment.”)
(string
citations
omitted);
United
States
v.
Sampson, 486 F.3d 13, 32 (1st Cir. 2007) (“As other courts have
recognized, the requisite weighing constitutes a process, not a
fact to be found.”); United States v. Purkey, 428 F.3d 738, 750
(8th Cir. 2005) (characterizing the weighing process as “the lens
through which the jury must focus the facts that it has found” to
reach
its
individualized
determination);
State
v.
Gales,
658
N.W.2d 604, 628-29 (Neb. 2003) (“[W]e do not read either Apprendi
or
Ring
to
require
that
the
determination
of
mitigating
circumstances, the balancing function, or proportionality review
to
be
undertaken
by
Supreme
Court
Florida
a
jury”).
The
following
findings
remand
in
required
Hurst
v.
by
the
State
involving the weighing and selection of a defendant’s sentence
are not required by the Sixth Amendment. See, e.g., McGirth v.
State, 209 So. 3d 1146, 1164 (Fla. 2017). Thus, there was no
Sixth Amendment error in this case.
II.
The Florida Court’s Ruling On
Hurst Is Not Unconstitutional.
The
Retroactivity
Of
The Florida Supreme Court’s holding in Hurst v. State, 202
So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017),
followed this Court’s ruling in Hurst v. Florida, 136 S. Ct. 616
(2016), in requiring that aggravating circumstances be found by a
12
jury beyond a reasonable doubt before a death sentence may be
imposed. The Florida court then expanded this Court’s ruling,
requiring in addition that “before the trial judge may consider
imposing a sentence of death, the jury in a capital case must
unanimously and expressly find all the aggravating factors that
were proven beyond a reasonable doubt, unanimously find that the
aggravating factors are sufficient to impose death, unanimously
find
that
the
aggravating
factors
outweigh
the
mitigating
circumstances, and unanimously recommend a sentence of death.”
Hurst v. State, 202 So. 3d at 57.5
The Florida Supreme Court first analyzed the retroactive
application of Hurst in Mosley v. State, 209 So. 3d 1248, 1276-83
(Fla. 2016), and Asay v. State, 210 So. 3d 1, 15-22 (Fla. 2016),
cert.
denied,
138
S.
Ct.
Supreme Court held that
41
(2017).
In
Mosley,
the
Florida
Hurst is retroactive to cases which
became final after this Court’s decision in Ring v. Arizona, 536
U.S. 584 (2002), on June 24, 2002. Mosley, 209 So. 3d at 1283. In
determining
whether
Hurst
should
be
retroactively
applied
to
Mosley, the Florida Supreme Court conducted a Witt analysis, the
state-based test for retroactivity. See Witt v. State, 387 So. 2d
922, 926 (Fla. 1980) (determining whether a new rule should be
The dissent observed that “[n]either the Sixth Amendment nor
Hurst v. Florida requires a jury to determine the sufficiency of
the aggravation, the weight of the aggravation relative to any
mitigating circumstances, or whether a death sentence should be
imposed.” Hurst, 202 So. 3d at 82 (Canady, J., dissenting).
5
13
applied retroactively by analyzing the purpose of the new rule,
extent of reliance on the old rule, and the effect of retroactive
application on the administration of justice) (citing Stovall v.
Denno, 388 U.S. 293, 297 (1967); Linkletter v. Walker, 381 U.S.
618 (1965)). Since “finality of state convictions is a state
interest, not a federal one,” states are permitted to implement
standards for retroactivity that grant “relief to a broader class
of individuals than is required by Teague,” which provides the
federal test for retroactivity. Danforth v. Minnesota, 552 U.S.
264, 280-81 (2008) (emphasis in original); Teague v. Lane, 489
U.S. 288 (1989); see also Johnson v. New Jersey, 384 U.S. 719,
733
(1966)
(“Of
course,
States
are
still
entirely
free
to
effectuate under their own law stricter standards than we have
laid down and to apply those standards in a boarder range of
cases
than
extension
is
required
Hurst,
has
by
this
[Court].”).
As
been
held
not
retroactive
to
be
Ring,
and
by
under
federal law, Florida has implemented a test which provides relief
to a broader class of individuals in applying Witt instead of
Teague for determining the retroactivity of Hurst. See Schriro v.
Summerlin, 542 U.S. 348, 358 (2004) (holding that “Ring announced
a new procedural rule that does not apply retroactively to cases
already final on direct review”); Lambrix v. Sec’y, Fla. Dep’t of
Corr., 872 F.3d 1170, 1182-83 (11th Cir. 2017), cert. denied, 138
S. Ct. 312 (2017) (noting that “[n]o U.S. Supreme Court decision
14
holds that its Hurst decision is retroactively applicable”).
The Florida Supreme Court determined that all three Witt
factors weighed in favor of retroactive application of Hurst to
cases which became final post-Ring.6 Mosley, 209 So. 3d at 127683. The court concluded that “defendants who were sentenced to
death
based
on
a
statute
that
was
actually
rendered
unconstitutional by Ring should not be penalized for the United
States
Supreme
Court’s
delay
in
explicitly
making
this
determination.”7 Id. at 1283. Thus, the Florida Supreme Court
held Hurst to be retroactive to Mosley, whose case became final
in 2009, which is post-Ring. Id.
Conversely, applying the Witt analysis in Asay v. State, 210
Florida is a clear outlier for giving any retroactive effect to
an Apprendi/Ring based error. As explained by the Eighth Circuit
in Walker v. United States, 810 F.3d 568, 575 (8th Cir. 2016),
the consensus of judicial opinion flies squarely in the face of
giving any retroactive effect to an Apprendi based error.
Apprendi’s rule “recharacterizing certain facts as offense
elements that were previously thought to be sentencing factors”
does not lay “anywhere near that central core of fundamental
rules that are absolutely necessary to insure a fair trial.”
6
Of course, the gap between this Court’s rulings in Ring and
Hurst may be fairly explained by the fact that the Florida
Supreme Court properly recognized, in the State’s view, that a
prior violent felony or contemporaneous felony conviction took
the case out of the purview of Ring. See Ellerbee v. State, 87
So. 3d 730, 747 (Fla. 2012) (“This Court has consistently held
that a defendant is not entitled to relief under Ring if he is
convicted of murder committed during the commission of a felony,
or otherwise where the jury of necessity has unanimously made the
findings of fact that support an aggravator.”) (string citations
omitted). Hurst v. Florida presented this Court with a rare
“pure” Ring case, that is a case where there was no aggravator
supported either by a contemporaneous felony conviction or prior
violent felony.
7
15
So. 3d 1, 22 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017), the
Florida Supreme Court held that Hurst is not retroactive to any
case in which the death sentence was final pre-Ring. The court
specifically
noted
that
Witt
“provides
more
expansive
retroactivity standards than those adopted in Teague.” Asay, 210
So. 3d at 15 (emphasis in original) (quoting Johnson v. State,
904 So. 2d 400, 409 (Fla. 2005)). The court determined that
prongs two and three of the Witt test, reliance on the old rule
and effect on the administration of justice, weighed heavily
against the retroactive application of Hurst to pre-Ring cases.
Asay, 210 So. 2d at 20-22. As related to the reliance on the old
rule, the court noted “the State of Florida in prosecuting these
crimes, and the families of the victims, had extensively relied
on the constitutionality of Florida’s death penalty scheme based
on the decisions of the United States Supreme Court. This factor
weighs
heavily
against
retroactive
application
of
Hurst
v.
Florida to this pre-Ring case.” Id. at 20. With respect to the
effect on the administration of justice, the court noted that
resentencing
interests
of
is
expensive
finality
and
weighed
time
consuming
heavily
and
against
that
the
retroactive
application. Id. at 21-22. Thus, the Florida Supreme Court held
that Hurst was not retroactive to Asay since his judgment and
sentence became final in 1991, pre-Ring. Id. at 8, 20.
Since Asay, the Florida Supreme Court has continued to apply
16
Hurst retroactively to all post-Ring cases and declined to apply
Hurst
retroactively
to
all
pre-Ring
cases.
See
Hitchcock
v.
State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513
(2017); Lambrix v. State, 227 So. 3d 112, 113 (Fla. 2017), cert.
denied, 138 S. Ct. 312 (2017); Hannon v. State, 228 So. 3d 505,
513 (Fla. 2017), cert. denied, 138 S. Ct. 441 (2017); Branch v.
State, 234 So. 3d 548, 549 (Fla. 2018), cert. denied, 138 S. Ct.
1164 (2018). This distinction between cases which were final preRing versus cases which were final post-Ring is neither arbitrary
nor capricious.8
In
the
traditional
sense,
new
rules
are
applied
retroactively only to cases which are not yet final. See Griffith
v. Kentucky, 479 U.S. 314, 328 (1987) (“a new rule for the
conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not
yet final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past”); Penry v. Lynaugh,
492
U.S.
302,
314
(1989)
(holding
finality
concerns
in
retroactivity are applicable in the capital context). Under this
Federal courts have had little trouble determining that Hurst,
like Ring, is not retroactive at all under Teague. See Lambrix v.
Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1165 n.2 (11th Cir.
2017) (“under federal law Hurst, like Ring, is not retroactively
applicable on collateral review”), cert. denied, 138 S. Ct. 217
(2017); Ybarra v. Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017)
(denying permission to file a successive habeas petition raising
a Hurst v. Florida claim concluding that Hurst v. Florida did not
apply retroactively).
8
17
“pipeline” concept, Hurst would only apply to the cases which
were not yet final on the date of the decision in Hurst. Even
under
the
“pipeline”
concept,
cases
whose
direct
appeal
was
decided on the same day might have their judgment and sentence
become
final
on
either
side
of
the
line
for
retroactivity.
Additionally, under the “pipeline” concept, “old” cases where the
judgment and/or sentence has been overturned will receive the
benefit of new law as they are no longer final. Yet, this Court
recognizes this type of traditional retroactivity as proper and
not violative of the Eighth or Fourteenth Amendment.
The only difference between this more traditional type of
retroactivity and the retroactivity implemented by the Florida
Supreme Court is that it stems from the date of the decision in
Ring rather than from the date of the decision in Hurst.9 In
Petitioner incorrectly states that the Florida Supreme Court
“has never explained why it drew a line at Ring as opposed to
Apprendi[.]” (Petition at 13 n.6); Apprendi v. New Jersey, 530
U.S. 466 (2000). However, the Florida Supreme Court did in fact
discuss their rationale in Asay and Mosley. Asay, 210 So. 3d at
19; Mosley, 209 So. 3d at 1279. The Court concluded that “while
the reasoning of Apprendi appeared to challenge the underlying
prior reasoning of Walton and similar cases, the United States
Supreme Court expressly excluded death penalty cases from its
holding.” Asay, 210 So. 3d at 19 (citing Apprendi, 530 U.S. at
496); Mosley, 209 So. 3d at 1279 n.17 (citing Apprendi, 530 U.S.
at 497); Walton v. Arizona, 497 U.S. 639 (1990), overruled by
Ring, 536 U.S. at 589. Though Apprendi served as a precursor to
Ring, this Court specifically distinguished capital cases from
its holding in Apprendi. Apprendi, 530 U.S. at 496. It was not
until Ring that this Court determined that “Apprendi’s reasoning
is irreconcilable with Walton’s holding.” Ring, 536 U.S. at 589.
Thus, as the Florida Supreme Court reasoned, Ring is the
appropriate demarcation for retroactive application to capital
cases, not Apprendi. Asay, 210 So. 3d at 19.
9
18
moving the line of retroactive application back to Ring, the
Florida Supreme Court reasoned that since Florida’s death penalty
sentencing scheme should have been recognized as unconstitutional
upon the issuance of the decision in Ring, defendants should not
be penalized for time that it took for this determination to be
made official in Hurst. Certainly, the Florida Supreme Court has
demonstrated “some ground of difference that rationally explains
the different treatment” between pre-Ring and post-Ring cases.
Eisenstadt v. Baird, 405 U.S. 438, 447 (1972); see also Royster
Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (To satisfy the
requirements of the Fourteenth Amendment, “classification must be
reasonable, not arbitrary, and must rest upon some ground of
difference having a fair and substantial relation to the object
of the legislation, so that all persons similarly circumstanced
shall be treated alike.”). Unquestionably, extending relief to
more individuals, defendants who would not receive the benefit of
a new rule under the pipeline concept because their cases were
already final when Hurst was decided, cannot violate the Eighth
or Fourteenth Amendment. Thus, just like the more traditional
application
of
retroactivity,
retroactive application of
the
Ring-based
cutoff
for
the
Hurst is not in violation of the
Eighth or Fourteenth Amendment.
Petitioner uses the case of convicted murderer Johnson as an
example of such allegedly arbitrary application of the Florida
19
Supreme
Court’s
retroactivity
test.
(Petition
at
15).
While
Johnson’s case originally became final on February 21, 1984,
subsequent litigation led to a new trial being granted in 1987
and
his
death
sentences
being
vacated
in
2010.
Johnson
v.
Florida, 465 U.S. 1051 (1984); Johnson v. Wainwright, 498 So. 2d
938, 939 (Fla. 1986); Johnson v. State, 44 So. 3d 51, 74 (Fla.
2010). After a new penalty phase in 2013, Johnson’s case was
pending on direct appeal when
Hurst
was decided.
Johnson v.
State, 205 So. 3d 1285 (Fla. 2016). As such, although Johnson’s
crime occurred in the 1980s, he received the benefit of Hurst
because his judgment and sentence were not final pre-Hurst. The
result in Johnson does not in any way suggest that Florida’s
retroactivity
test
is
either
unfair
or
unconstitutionally
arbitrary.
Petitioner’s suggestion that his sentence violates the Equal
Protection Clause is plainly without merit. “The Equal Protection
Clause of the Fourteenth Amendment ‘is essentially a direction
that all persons similarly situated should be treated alike.’”
Lawrence v. Texas, 539 U.S. 558, 579 (2003). A criminal defendant
challenging the State’s application of capital punishment must
show
intentional
violation.
discrimination
McCleskey
v.
Kemp,
to
prove
an
equal
481
U.S.
279,
292
protection
(1987)
(“A
criminal defendant alleging an equal protection violation must
prove
the
existence
of
purposeful
20
discrimination”).
A
“‘[d]iscriminatory
purpose’
...
implies
more
than
intent
as
volition or intent as awareness of consequences. It implies that
the decisionmaker, in this case a state legislature, selected or
reaffirmed
a
particular
course
of
action
at
least
in
part
‘because of,’ not merely ‘in spite of,’ its adverse effects upon
an
identifiable
Petitioner
is
group.”
being
McCleskey,
treated
481
exactly
U.S.
the
at
same
298.
as
Here,
similarly
situated murderers.
The Florida Supreme Court’s determination of the retroactive
application of Hurst under the state law Witt standard is based
on adequate and independent state grounds and is not violative of
federal law or this Court’s precedent. This Court has repeatedly
recognized that where a state court judgment rests on non-federal
grounds, where the non-federal grounds are an adequate basis for
the ruling independent of the federal grounds, “our jurisdiction
fails.” Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); see
also Michigan v. Long, 463 U.S. 1032, 1040 (1983) (“Respect for
the
independence
of
state
courts,
as
well
as
avoidance
of
rendering advisory opinions, have been the cornerstones of this
Court’s refusal to decide cases where there is an adequate and
independent state ground.”); Cardinale v. Louisiana, 394 U.S.
437, 438 (1969) (reaffirming that this Court has no jurisdiction
to review a state court decision on certiorari review unless a
federal
question
was
raised
and
21
decided
in
the
state
court
below). If a state court’s decision is based on separate state
law, this Court “of course, will not undertake to review the
decision.” Florida v. Powell, 559 U.S. 50, 57 (2010); Long, 463
U.S. at 1041. Because the Florida Supreme Court’s retroactive
application of Hurst in Petitioner’s case is based on adequate
and
independent
state
grounds,
certiorari
review
should
be
denied.
Finally,
Petitioner’s
argument
that
the
Florida
Supreme
Court’s imposition of the unanimity requirement in Hurst v. State
causes all non-unanimous verdicts to be violative of the Eighth
Amendment is plainly without merit. The Florida Supreme Court’s
imposition of the unanimity requirement in Hurst v. State is
purely a matter of state law, is not a substantive change, and
did not cause death sentences imposed pre-Ring to be in violation
of the Eighth Amendment.
The
Eighth
Amendment
requires
capital
punishment
to
be
limited “to those who commit a ‘narrow category of the most
serious crimes’ and whose extreme culpability makes them ‘the
most deserving of execution.’” Roper v. Simmons, 543 U.S. 551,
568
(2005)
(quoting
Atkins
v.
Virginia,
536
U.S.
304,
319
(2002)). As such, the death penalty is limited to a specific
category of crimes and “States must give narrow and precise
definition
to
the
aggravating
factors
that
can
result
in
a
capital sentence.” Roper, 543 U.S. at 568. Petitioner’s death
22
sentence
was
imposed
in
accordance
with
all
applicable
constitutional principles at the time it was imposed.10
The retroactivity ruling below does not conflict with any of
this Court’s precedent or present this Court with a significant
or important unsettled question of law. Accordingly, certiorari
should be denied.
Petitioner’s argument that he was denied his right to have a
jury find beyond a reasonable doubt the “critical elements” that
subjected him to the death penalty, is plainly meritless. His
argument ignores Florida’s longstanding practice of using the
beyond-a-reasonable-doubt
standard
of
proof
for
proving
aggravating factors in Florida. See Fla. Std. J. Inst. (Crim.)
7.11; Finney v. State, 660 So. 2d 674, 680 (Fla. 1995); Floyd v.
State, 497 So. 2d 1211, 1214-15 (Fla. 1986). Hurst did nothing to
change this standard. Furthermore, neither Hurst v. Florida nor
Hurst v. State changed the standard of proof as to any required
finding in Florida’s capital sentencing proceedings. Rather, both
Hurst v. Florida and Hurst v. State addressed who makes the
findings — the jury versus the judge — not what standard of proof
is used.
Moreover, Hurst errors are subject to harmless error analysis.
See Hurst v. Florida, 136 S. Ct. at 624. See also Chapman v.
California, 386 U.S. 18, 23-24 (1967). Here, the aggravating
circumstances either relied upon prior violent felonies or were
established by overwhelming evidence. There is no reason to
believe the jury would view the evidence any differently than the
trial judge in this heavily aggravated case.
10
23
To the extent Petitioner suggests that jury sentencing is
now required under federal law, this is not the case. See Ring,
536 U.S. at 612 (Scalia, J., concurring) (“[T]oday’s judgment has
nothing to do with jury sentencing. What today’s decision says is
that
the
jury
must
find
the
existence
of
the
fact
that
an
aggravating factor existed.”) (emphasis in original); Harris v.
Alabama, 513 U.S. 504, 515 (1995) (holding that the Constitution
does not prohibit the trial judge from “impos[ing] a capital
sentence”). No case from this Court has mandated jury sentencing
in a capital case, and such a holding would require reading a
mandate into the Constitution that is simply not there. The
Constitution provides a right to trial by jury, not to sentencing
by jury.
Petitioner’s death sentence is neither unfair nor unreliable
because the judge imposed the sentence in accordance with the law
existing at the time of his trial. Petitioner cannot establish
that
his
sentencing
procedure
was
less
accurate
than
future
sentencing procedures employing the new standards announced in
Hurst v. State, 202 So. 3d 40 (Fla. 2016). Certainly, other than
speculation, Petitioner has neither identified nor established
any particular lack of reliability in the proceedings used to
impose his death sentence. See Hughes v. State, 901 So. 2d 837,
844 (Fla. 2005) (holding that Apprendi is not retroactive and
noting that “neither the accuracy of convictions nor of sentences
24
imposed and final before Apprendi issued is seriously impugned”;
Rhoades v. State, 233 P. 3d 61, 70-71 (2010) (holding that Ring
is not retroactive after conducting its own independent Teague
analysis and observing, as this Court did in Summerlin, that
there is debate as to whether juries or judges are the better
fact-finders
and
that
it
could
not
say
“confidently”
that
judicial factfinding “seriously diminishes accuracy.”) Just like
Ring did not enhance the fairness or efficiency of death penalty
procedures, neither does Hurst. As this Court has explained, “for
every argument why juries are more accurate factfinders, there is
another why they are less accurate.” Schriro v. Summerlin, 542
U.S. 348, 356 (2004). Thus, because the accuracy of Petitioner’s
death
sentence
is
not
at
issue,
fairness
does
not
demand
retroactive application of Hurst.11
Finally, Petitioner complains that the sentencing procedure
used in his case violated this Court’s ruling in Caldwell v.
Mississippi, 472 U.S. 320 (1985), because the jury was given
instructions that informed the jury its death recommendation was
merely
advisory.
However,
this
case
would
be
a
uniquely
inappropriate vehicle for certiorari because this is a postconviction
case
and
this
Court
would
have
to
address
Curiously, while espousing the virtues of jury sentencing,
Petitioner at the same time cites an out of date ABA report on
juror confusion relating to capital sentencing. (Petition at 16
n.11). The ultimate safeguard against such alleged juror
‘confusion’ would seem to be judicial sentencing in capital
cases.
25
11
retroactivity
instruction
before
issue.
even
This
reaching
matter
does
the
not
underlying
merit
this
jury
Court’s
review.
Aside from the question of retroactivity, it is clear there
was no Caldwell violation in this case. In order to establish
constitutional error under Caldwell, a defendant must show that
the comments or instructions to the jury “improperly described
the role assigned to the jury by local law.” Romano v. Oklahoma,
512 U.S. 1, 9 (1994). See Reynolds v. State, ___ So. 3d ___, 2018
WL 1633075, *9 (Fla. Apr. 5, 2018) (explaining that under Romano,
the
Florida
standard
jury
instruction
at
issue
“cannot
be
invalidated retroactively prior to Ring simply because a trial
court failed to employ its divining rod successfully to guess at
completely
unforeseen
changes
in
the
law
by
later
appellate
courts”).
Petitioner’s jury was properly instructed on its role based
on the law existing at the time of his trial.12 Entitlement to
relief under Caldwell requires that the prosecutor, judge, or
jury instructions misrepresent the jury’s role in sentencing.
Darden v. Wainwright, 477 U.S. 168, 183 n.15 (1986) (rejecting a
The jury was advised that although its role was advisory they
should “carefully weigh, sift and consider the evidence, and all
of it, realizing that a human life is at stake, and bring to bear
your best judgement in reaching your advisory sentence.”
(Resentencing
Transcript:
V17/2551).
The
trial
court’s
instructions were accurately reflected the law existing at the
time of Sireci’s resentencing trial.
12
26
Caldwell attack, explaining that “Caldwell is relevant only to
certain types of comment—those that mislead the jury as to its
role in the sentencing process in a way that allows the jury to
feel
less
responsible
than
it
should
for
the
sentencing
decision”). A Florida jury’s decision regarding a death sentence
was, and still remains, an advisory recommendation; therefore,
there was no violation of Caldwell. See Dugger v. Adams, 489 U.S.
401 (1989). Petitioner’s jury was accurately advised that its
decision was an advisory recommendation that would be accorded
“great
weight.”
The
Florida
Supreme
Court’s
decision
is
not
contrary to Caldwell and presents this Court with no conflict of
law among either state or federal courts.
In conclusion, the Florida Supreme Court’s determination of
the retroactive application of Hurst under Witt v. State, 387 So.
2d 922 (Fla. 1980), is based on an independent state ground and
is not violative of federal law or this Court’s precedent. Hurst
did not announce a substantive change in the law and is not
retroactive under federal law. Nothing in the petition justifies
the exercise of this Court’s certiorari jurisdiction.
27
CONCLUSION
Based on the foregoing, Respondent respectfully
requests
that this Court DENY the petition for writ of certiorari.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
s/Scott A. Browne
SCOTT A. BROWNE
Senior Assistant Attorney General
Florida Bar No. 0802743
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813) 287-7910
Scott.browne@myfloridalegal.com
E-Service: capapp@myfloridalegal.com
COUNSEL FOR RESPONDENT
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 U.S. mail to:
Maria E. DeLiberato, Assistant CCRC-M, Law Office of the Capital
Collateral Regional Counsel, Middle Region, 12973 North Telecom
Parkway,
Temple
Terrace,
Florida
33637,
deliberato@ccmr.state.fl.us. All parties required to be served
have been served.
s/Scott A. Browne
SCOTT A. BROWNE
COUNSEL FOR RESPONDENT
28
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