Petition for Writ of Certiorari — Ronnie Johnson, Petitioner v. Florida

Supreme Court briefJun 25, 2018

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IN THE

SUPREME COURT OF THE UNITED STATES

CASE NO.

LOWER CASE NOS. SC17-1480 and SC17-1484

__________________________________________________________________

RONNIE JOHNSON,

Petitioner,

-vsSTATE OF FLORIDA,

Respondent.

__________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

FROM THE SUPREME COURT OF THE STATE OF FLORIDA

__________________________________________________________________

CHARLES G. WHITE, ESQ.

CHARLES G. WHITE, P.A.

Counsel for Petitioner

1031 Ives Dairy Road

Suite 228

Miami, FL 33179

Tel: (305) 914-0160

Fax: (305) 914-0166

Florida Bar No. 334170

Email: cgwhitelaw@aim.com

CAPITAL CASE

QUESTION PRESENTED

WHETHER THE BLACK LINE DRAWN BY THE FLORIDA SUPREME

COURT IN ASAY v. STATE, 210 So.3d 1 (Fla. 2016), LIMITING THE

RETROACTIVE EFFECT OF HURST v. FLORIDA, 577 U.S. —, 136 S.Ct.

616 (2016), TO DEATH SENTENCES THAT WERE FINAL AFTER THE

DECISION IN RING v. ARIZONA, 536 U.S. 384 (2002), BUT NOT BEFORE

VIOLATED THE SUBSTANTIVE DUE PROCESS CLAUSE AND EQUAL

PROTECTIVE CLAUSE OF THE FIFTH AMENDMENT, SIXTH

AMENDMENT RIGHT TO JURY TRIAL, AS WELL AS THE

PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT IN

THE EIGHTH AMENDMENT APPLICABLE TO THE STATES

THROUGH THE FOURTEENTH AMENDMENT.

TABLE OF CONTENTS

Page

CERTIFICATE OF SERVICE

. . . . . . . . . . . . .

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

QUESTIONS PRESENTED

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

TABLE OF CONTENTS

TABLE OF AUTHORITIES

. . . . . . . . . . . . . .

vii

. . . . . . . . . . . . . . . . . . .

OPINIONS BELOW . . . . . . . . . . . . . . . . . . .

BASIS OF JURISDICTION

INTRODUCTION

. . . . . . . . . . . . . . . .

CONSTITUTIONAL PROVISIONS

. . . . . . . . . . . .

STATUTORY PROVISIONS . . . . . . . . . . . . . . . .

STATEMENT OF THE CASE

. . . . . . . . . . . . . . .

REASONS FOR GRANTING WRIT . . . . . . . . . . . . .

CONCLUSION

. . . . . . . . . . . . . . . . . . . . .

APPENDIX “1”

TABLE OF AUTHORITIES

Page

CASES

Apodaca v. Oregon,

406 U.S. 404, 92 S.Ct. 1628,

32 L.Ed.2d 184 (1972) . . .

Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 435 (2000) . . 4, 5, 9, 11, 17, 18, 19, 22, 23, 31, 32

Asay v. State,

210 So.3d 1 (Fla. 2016)

14, 18, 19, 21, 23, 24, 33

Blackwelder v. State,

851 So.2d 650 (Fla. 2003) .

Bottoson v. Moore,

833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070,

123 S.Ct. 662, 154 L.Ed.2d 564 (2002) . . .

. 9, 10, 17

Caldwell v. Mississippi,

472 U.S. 320 (1985)

4, 31

Furman v. Georgia,

408 U.S. 238, 92 S.Ct. 2726,

33 L.Ed.2d 346 (1972)

. .

26, 29

Griffin v. Illinois,

351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) .

Hildwin v. Florida,

490 U.S. 638, 109 S.Ct. 2055,

104 L.Ed.2d 728 (1989) . .

10, 17, 18

vii

Hitchcock v. State,

226 So.3d 216 (Fla. 2017)

14, 23, 24, 25

Hurst v. Florida,

577 U.S. —, 136 S.Ct. 616,

193 L.Ed.2d 504 (2016) . . 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21,

22, 23, 24, 25, 30, 32

Hurst v. State,

202 So.3d 40 (Fla. 2016) . . . . . . . . 11, 12, 13, 23

Johnson v. State,

240 So.3d 630 (Fla. 2018) .

Johnson v. State,

921 So.2d 490 (Fla. 2005) .

9, 10

Johnson v. State,

903 So.2d 888 (Fla. 2005)

2, 3

Johnson v. State,

696 So.2d 326 (Fla. 1997) .

2, 3

King v. Moore,

831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067,

123 S.Ct. 657, 154 L.Ed.2d 556 (2002) . . .

Mosley v. State,

209 So.3d 1248 (Fla. 2016)

Perry v. State,

210 So.3d 630 (Fla. 2016) .

Johnson v. Florida,

522 U.S. 1095 (1998) .

viii

Proffitt v. Florida,

428 U.S. 242, 96 S.Ct. 2960,

49 L.Ed.2d 9131 (1976)

Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428,

153 L.Ed.2d 556 (2002) . 9, 11, 12, 14, 15, 16, 17, 18, 19, 20, 22, 23,

24, 25, 31, 32

Simmons v. State,

207 So.3d 860 (2016) . . . . . . . . . .

Spaziano v. Florida,

468 U.S. 447, 104 S.Ct. 3154,

82 L.Ed.2d 340 (1984) . . .

Spinkellink v. Wainright,

578 F.2d 582 (5th Cir. 1978), cert. denied,

440 U.S. 976 (1979). rehearing denied,

441 U.S. 937 (1979) . . . . . . .

10, 17, 18

Spinkellink v. State,

313 So.2d 666 (Fla. 1975), cert. denied, sub nom.,

Spinkellink v. Florida, 428 U.S. 911 (1976),

rehearing denied, 492 U.S. 874 (1976) . . . .

State v. Steele,

921 So.2d 538 (Fla. 2005) .

10, 16

Tedder v. State,

322 So.2d 908 (Fla. 1975) .

Walton v. Arizona,

497 U.S. 639, 110 S.Ct. 3047,

111 L.Ed.2d 511 (1990)

. .

11, 12, 16, 17

Weems v. United States,

217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 783 (1910) .

Williams v . Florida,

399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)

Witherspoon v. Illinois,

391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) .

Witt v. State,

387 So.2d 922 (Fla. 1980) .

OTHER AUTHORITIES:

Federal Rules of Criminal Procedure,

Rule 3.850

. . . . .

Rule 3.851

. . . . .

. 1, 15, 22

Florida Constitution,

Article I, Section 22

Florida Statutes,

Section 775.082

Section 921.141

20, 21

. . .

2, 13, 20, 23

. 2, 4, 10, 15, 16, 21, 30

Hearings before Subcommittee No. 3, House Committee

on the Judiciary, 92nd Cong., 2d Sess.,

Ernest van den Haag, on H.R. 8414

. . . .

Title 28 United States Code,

Section 1257

. . .

Section 2244

. . .

Section 2254

. . .

United States Constitution,

Fifth Amendment

. . . . . . . . . . .

Sixth Amendment . . 4, 10, 11, 12, 15, 16, 17, 18, 21, 22, 23, 24, 31, 32

Eighth Amendment . . . . . . .4, 15, 19, 24, 26, 29, 30, 32

Fourteenth Amendment . . . . . . . . . .

4, 31

INTRODUCTION

Petitioner, RONNIE JOHNSON, through counsel, hereby petitions for a

Writ of Certiorari from the Supreme Court for the State of Florida which affirmed

the Judgment of the Circuit Court for the Eleventh Judicial Circuit, in Miami-Dade

County, Florida, denying a Successive Motion for Post-Conviction Relief Pursuant

to Fla.R.Crim.P. 3.851 and affirming two Death Sentences imposed in Case Nos.

F89-014998 and F89-012383B.

OPINION BELOW

The Supreme Court for the State of Florida issued an Opinion which has

been reported as Johnson v. State, 240 So.3d 630 (Fla. 2018). A copy of that

Opinion is attached as Appendix “1”.

BASIS OF JURISDICTION

RONNIE JOHNSON invokes the jurisdiction of this Court to hear final

judgments or decrees issued by the Florida Supreme Court pursuant to Title 28,

United States Code, Section 1257.

CONSTITUTIONAL PROVISIONS

AMEND. V–DUE PROCESS/EQUAL PROTECTION

No person shall . . . be deprived of life, liberty, or property, without due

process of law . . .

AMEND. VI–RIGHT TO TRIAL BY JURY

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State . . .

AMEND. VIII–PROHIBITION AGAINST

CRUEL AND UNUSUAL PUNISHMENT

Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

STATUTORY PROVISIONS

Florida Statute Section 921.141, Florida Statute Section 775.082.

STATEMENT OF THE CASE

RONNIE JOHNSON has been sentenced to Death for two murders: Tequila

Larkins on March 11, 1989 (F89-014998), and Lee Arthur Lawrence on March 20,

1989 (F89-012383B). The Death Sentences were imposed after two separate

trials. At the time of both trials, Florida Statute Section 921.141, provided that a

jury of 12 would make a recommendation to the Trial Judge whether to impose the

Sentence of Death or Life Imprisonment. That recommendation could be made by

a simple majority of the jury.

In F89-014998, the jury recommended that JOHNSON be sentenced to

Death by a vote of 9 to 3. In F89-012383B, the jury recommended that

JOHNSON be sentenced to Death by a verdict of 7 to 5. In both cases, the Trial

Court followed the recommendations of the jury and imposed a Sentence of Death.

Timely Notices of Appeal to the Florida Supreme Court were filed in both

cases. In F89-014998, the Conviction and Death Sentence was affirmed on

May 8, 1997. Johnson v. State, 696 So.2d 326 (Fla. 1997). A Petition for Writ of

Certiorari with this Court was filed, and denied on January 26, 1998. Johnson v.

Florida, 522 U.S. 1095 (1998).

In F89-012383B, Johnson’s Conviction and Death Sentence was also

affirmed on May 8, 1997. Johnson v. State, 696 So.2d 317 (Fla. 1997). A Petition

for Writ of Certiorari was denied by this Court on February 23, 1998. Johnson v.

Florida, 522 U.S. 1120 (1998). JOHNSON’s Convictions and Death Sentences

were now final.

In 1997, the Florida Legislature decided to provide post-conviction counsel

to inmates under a sentence of death. A one-year limitations period was imposed

in order to facilitate capital collateral litigation. A State agency called the Capital

Collateral Commission was established to serve as counsel for Death Row

inmates. A Registry of private attorneys was created to provide representation

when the Capital Collateral Commission had a conflict of interest. As the system

was just getting started, it was not until August, 1998, that JOHNSON received

Court-appointed counsel.

JOHNSON’s original Court-appointed counsel was not able to do his job.

He repeatedly requested extensions of the one-year limitations period, which were

granted. Finally, by January, 2000, he gave up and withdrew. Mr. White was

appointed on February 1, 2000.

Prior to Mr. White’s Appointment, JOHNSON had repeatedly written his

Court-appointed attorney advising him of the one-year limitations period for filing

Petitions in Federal Court pursuant to 28 U.S.C., Section 2254. The attorney was

aware of the one-year limitations period provided in Section 2244(d)(1), but did

nothing. It would later be determined by the U.S. District Court that the one-year

statute of limitations had passed, and a subsequent 2254 Petition dismissed as

untimely. JOHNSON’s post-conviction claims for relief were never heard by a

Federal Court on their merits.

While Mr. White was preparing his Motions for Post-Conviction Relief,

this Court decided the case of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000). Apprendi held that any sentencing factor that

increased the maximum penalty was an element of the offense. As an element of

the offense, the State was required to prove it beyond a reasonable doubt to a

unanimous jury. By Mr. White’s estimation, Apprendi’s holding invalidated

Florida Statute Section 921.141. Allowing a sentence of death be imposed

pursuant to the recommendation of a non-unanimous recommendation would

violate the defendant’s Sixth Amendment right to trial by jury per Apprendi.

On March 1, 2001, JOHNSON filed his initial Motion for Post-Conviction

Relief in both cases. He raised the following issue:

THAT FLORIDA’S DEATH PENALTY PROCEDURE

VIOLATED APPRENDI V. NEW JERSEY.

This issue was summarily denied.

In his original Motions for Post-Conviction Relief, JOHNSON raised

several other issues, including the following:

THAT THE SENTENCING JURY WAS MISLED BY

COMMENTS, QUESTIONS AND INSTRUCTIONS

THAT UNCONSTITUTIONALLY AND INACCURATELY

DILUTED THE JURY’S SENSE OF RESPONSIBILITY

TOWARDS SENTENCING IN VIOLATION OF THE

EIGHTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND TRIAL COUNSEL

WAS INEFFECTIVE FOR NOT PROPERLY ADDRESSING.

This claim was based on this Court’s decision in Caldwell v. Mississippi, 472 U.S.

320 (1985). Caldwell held that “[i]t is constitutionally impermissible to rest a

death sentence on a determination made by sentencer who has been led to believe

that responsibility for determining the appropriateness of defendant’s death rests

elsewhere.” Id., at 328-29. Where a mere majority recommendation can be used

to justify the imposition of the death penalty, further diminishing the jury’s sense

of responsibility for the ultimate outcome encourages arbitrary and unreliable

verdicts/recommendations in violation of the Eighth Amendment. That argument

implicated the principles later articulated in Apprendi and its progeny. This issue

was summarily denied.

Both Motions for Post-Conviction Relief focused on the ineffective

assistance of trial counsel, Raymond Badini. The investigation into Badini’s

representation in these two cases shared common elements of incompetence of

counsel across the board. Badini’s incompetence most dramatically manifested

itself in his complete failure to have conducted an adequate investigation into

JOHNSON’s psychological background in order to properly present his case

against the death penalty at the Penalty Phase.

Both Motions for Post-Conviction Relief detailed Badini’s lack of expertise

and/or effort in dealing with the various death penalty issues. Particularly

shocking, in light of Badini’s demonstrated incompetence, was the fact that he was

not even the attorney who was appointed to handle the case by the Trial Court. He

was “referred” the case by his landlord, who was the attorney of record throughout

the Trial Court proceedings, but had no role in the trial of either one of them.

JOHNSON asserted his claim that this illegal referral of two death penalty cases

against the same person from an experienced attorney to a relatively inexperienced

one in capital cases was error for which prejudice could be presumed.

Badini’s preparation for the Penalty Phase was non-existent. Despite the

passage of 30 months from Arraignment to the first trial, which was the murder of

Tequila Larkin in F89-014998, Badini failed, neglected, or refused to have a

forensic psychiatrist or psychologist evaluate JOHNSON. During jury selection,

Badini admitted to the Trial Judge that he had not had JOHNSON evaluated, but

offered as an excuse that all the forensic psychiatrists and psychologists available

were refusing to take cases because of an alleged refusal by Miami-Dade County

to pay their fees. The Trial Judge reached out to Lloyd Miller, M.D., a local

forensic psychiatrist, and asked him to “evaluate Johnson as a favor for free.”

At an Evidentiary Hearing held to determine whether Badini’s

representation at Penalty Phase was constitutionally deficient because of his

failure to have presented mental health mitigation, JOHNSON acknowledged that

Dr. Miller had come to see him at the jail during trial. The interview lasted no

more than 15 minutes, and the questions asked were focused on competency to

stand trial rather than a search for mitigating evidence. After this short interview,

Dr. Miller told Badini he would not be any help.

In the four months that transpired following the Penalty Phase in F89014998, and the trial of the murder of Lee Arthur Lawrence in Case No. F89012383B, Badini made no further effort to have JOHNSON psychologically

evaluated. No evidence of JOHNSON’s mental health was presented to the jury in

either Penalty Phase.

At the Evidentiary Hearing, JOHNSON called Merry Haber, Ph.D., a

forensic psychologist, who specialized in death penalty mitigation, and was

practicing at the time of JOHNSON’s trials. Dr. Haber diagnosed JOHNSON with

certain personality disorders. She identified an adjustment disorder with mixed

disturbance of emotions and conduct, and a sexual disorder derived from

discomfort with his homosexuality. These disorders were recognized in the DSMIII, which was in use at the time of JOHNSON’s trials. Dr. Haber attributed these

disorders to maladjustments from a series of stressors that had occurred in

JOHNSON’s life almost immediately before his murder spree, which were

aggravated by the shame he experienced as a homosexual and substance abuser.

These traumatic effects included the deaths of close friends and relatives as well as

the disability of a beloved grandmother, and produced the stressors on his psyche

which altered his behavior. While Badini had presented some testimony about

these events, he had only sought their use to curry sympathy from the jury. This

argument was viciously mocked by the prosecutor.

Dr. Haber explained that JOHNSON’s repressed homosexuality, particularly

his maladjustment to it, pushed him over the edge, and put his life into a tailspin.

He would sneak out of his mother’s house dressed in women’s clothing to

prostitute himself for drugs. Due to the shame that overt homosexuality brought

him in the macho African-American ghetto environment where he lived,

JOHNSON felt compelled to prove his manhood by killing people targeted by a

local drug dealer. (That drug dealer, Bobby Robinson, was released from prison in

2008). Haber testified how the adjustment disorders she had diagnosed adversely

affected his judgment. She noted that JOHNSON’s psychological profile offered a

far different picture of his motivations and mental conditions from the coldblooded killer for hire portrayed by the State. None of JOHNSON’s personality

disorders, including his homosexuality and his maladjustment to it, were

uncovered by Badini during his representation. No other mental health

professional than Dr. Miller had interviewed JOHNSON. The homosexuality

issue was only relevant to the death penalty due to JOHNSON’s maladjustment,

not because he was a homosexual. The Trial Court denied relief on this issue as

well.

Both Motions for Post-Conviction Relief were denied on January 17, 2003.

JOHNSON filed timely Notices of Appeal to the Florida Supreme Court. One of

the issues raised in both cases stated as follows:

THAT THE TRIAL COURT ERRED IN DETERMINING

THAT FLORIDA’S PENALTY PHASE PROCEDURE

DID NOT VIOLATE APPRENDI V. NEW JERSEY,

530 U.S. 466 (2000).

On March 31, 2005, the Florida Supreme Court affirmed the Trial Court’s

denial of JOHNSON’s Motions for Post-Conviction Relief in both cases: Johnson

v. State, 921 So.2d 490 (Fla. 2005) [F89-014998], Johnson v. State, 903 So.2d 888

(Fla. 2005) [F89-012383B].

During the pendency of litigation at the Trial Court level, this Court had

handed down Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L..Ed.2d 556

(2002). Ring had applied the principles of Apprendi to Arizona’s Death Penalty

Statute. It reinforced the constitutional principle established in Apprendi that

sentencing factors are elements of the offense that must be proven beyond a

reasonable doubt through unanimous verdicts. The Florida Supreme Court

rejected JOHNSON’s argument stating in identical language in both cases:

Johnson argued that Florida’s Death Penalty Scheme violates

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,153 L.Ed.2d

556 (2002). This Court has repeatedly rejected similar claims.

See, Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied,

537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002);

King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S.

1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002).

921 So.2d 509, 903 So.2d at 900.

On January 12, 2016, the United States Supreme Court declared that

Florida’s capital sentencing scheme, under which an advisory jury makes a

recommendation to the Judge, and the Judge makes the critical findings needed for

imposition of a death sentence, violated the Sixth Amendment right to trial by

jury, overruling Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d

340 (1984), and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d

728 (1989), and abrogating Bottoson v. Moore, 833 So.2d 693 (Fla. 2002), Tedder

v. State, 322 So.2d 908 (1975), Blackwelder v. State, 851 So.2d 650 (Fla. 2003),

and State v. Steele, 921 So.2d 538 (2005). Hurst v. Florida, 577 U.S. —, 136 S.Ct.

616, 193 L.Ed.2d 504 (2016). The Court held that Florida Statute Section

921.141, the capital sentencing statute under which Hurst was sentenced to death,

was unconstitutional “to the extent it failed to require the jury, rather than the

Judge to find the facts necessary to impose the death sentence–the jury’s advisory

recommendation for death was “not enough.” Hurst v. Florida, 136 S.Ct. at 619.

The Supreme Court refused to take up the issue of whether the error in sentencing

was harmless, remanding the case to the Florida Supreme Court to consider

whether the error was harmless beyond a reasonable doubt. Hurst v. Florida, 136

S.Ct. at 624. The Court did not make any findings as to retroactivity.

On October 14, 2016, the Florida Supreme Court on remand evaluated the

effect the U.S. Supreme Court decision had on Florida’s capital sentencing

scheme. Hurst v. State, 202 So.3d 40 (Fla. 2016). The Court considered the

evolution of the Sixth Amendment right to trial by jury both before and after Ring.

The Court noted that the U.S. Supreme Court had originally held in Walton v.

Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that Arizona’s

death penalty law “was compatible with the Sixth Amendment because the facts

found by the Judge qualified as sentencing considerations, not as ‘element[s] of

the offense of capital murder.’” Hurst, 202 So.3d at 47, quoting Ring, 536 U.S. at

588, 122 S.Ct. 2428 (quoting Walton, 497 U.S. at 649, 110 S.Ct. 3047). The

Court further noticed that ten years after Walton, the U.S. Supreme Court decided

Apprendi, in which it held that the Sixth Amendment does not permit a defendant

in a non-capital case, without additional jury findings, to be exposed to a penalty

exceeding the maximum he would receive if the punishment was based only on the

facts reflected in the jury’s guilty verdict. Implementing the same principle in

Ring–and applying it to capital defendants–the Supreme Court stated that “[t]his

prescription governs . . . even if the State characterizes additional findings

made by the Judge as ‘sentencing factor[s].’” Id., quoting Ring, 536 U.S. at 589,

122 S.Ct. 2428 (quoting Apprendi, 530 U.S. at 492, 120 S.Ct. 348).

The Florida Supreme Court acknowledged that the U.S. Supreme Court in

Ring had held, “capital defendants, no less than non-capital defendants, we

conclude, are entitled to a jury determination of any facts on which the Legislature

conditions are inclusive of the maximum punishment.” Id., quoting Ring, 536

U.S. at 589, 122 S.Ct. 2428. The Court further found that a defendant convicted

of first-degree murder in Arizona cannot receive a death sentence unless the Judge

makes critical factual findings that allow the imposition of the sentence of death.

Id., at 48-49, quoting Ring, 536 U.S. at 602, 122 S.Ct. 2428. Ring then overruled

Walton, and the jury’s role in determining critical facts in homicide cases under

the Sixth Amendment invalidated Arizona’s capital sentencing scheme. “[J]ust as

elements of a crime must be found unanimously by a Florida jury, all these

findings necessary for the jury to essentially convict a defendant of capital

murder–must allow an imposition of the death penalty–and also elements that must

be found unanimously by the jury.” Hurst, 202 So.2d at 53-54. The Court went

on to hold that “in addition to unanimously finding the existence of any

aggravating factor, the jury must also unanimously find that the aggravating

factors are sufficient for the imposition of death and unanimously find that the

aggravating factors outweigh the mitigation before a sentence of death may be

considered by the Judge.” Id., at 54. The jury’s recommendation for death must

be unanimous. Id.

On January 12, 2017, JOHNSON filed Successive Motions for PostConviction Relief in both cases. Citing both this Court’s and the Florida Supreme

Court’s decisions in Hurst, JOHNSON argued that since the statute under which

he had been twice sentenced to death violated the Constitution, his death sentences

should be vacated. Although the Florida Supreme Court had remanded Hurst for a

new Penalty Phase, JOHNSON contended that he should be resentenced to life

imprisonment pursuant to Florida Statute Section 775.082(2), which states in

pertinent part:

In the event the death penalty in a capital felony is held to be

unconstitutional by the Florida Supreme Court or the United

States Supreme Court, the Court having jurisdiction over a

person previously sentenced to death for a capital felony shall

cause such person to be brought before the Court, and the

Court shall sentence such person to life imprisonment as

provided in subsection (1).

In the alternative, JOHNSON requested a new Penalty Phase.

JOHNSON also contended that Hurst should be retroactively applied to his

cases. Since he had raised the issue in his State habeas petitions, and the Florida

Supreme Court had denied relief on the merits, he should benefit from a change in

the law that validated his position. The cases relied upon by the Florida Supreme

Court to deny him relief had been abrogated by this Court in Hurst. Without those

cases, JOHNSON deserved relief.

The Trial Court rejected JOHNSON’s claim that Hurst should be applied

retroactively to him. After hearing Oral Argument, both Successive Motions for

Post-Conviction Relief were denied on June 5, 2017. Timely Notices of Appeal

were filed to the Florida Supreme Court.

The sole issue on appeal was whether Hurst was retroactive to JOHNSON’s

cases. There was no question that if Hurst was applicable, he would be entitled to

new Penalty Phase Trials. What prevented JOHNSON from enjoying the fruits of

Hurst was a “black line” drawn by the Florida Supreme Court. The Florida

Supreme Court had held that Hurst would only apply to those cases where the

death penalty became final after this Court’s decision in Ring. Hitchcock v. State,

226 So.3d 216 (Fla. 2017); Asay v. State, 210 So.3d 1 (Fla. 2016).

RETROACTIVITY ANALYSIS BY THE FLORIDA

SUPREME COURT–DRAWING THE BLACK LINE

Hurst was decided on direct appeal and made no findings as to retroactivity

for those sentenced to death whose convictions were already final. The Florida

Supreme Court initially considered the issue of retroactivity in Mosley v. State,

209 So.3d 1248 (Fla. 2016).

Mosley’s case was on appeal from the trial court’s denial of his Motion for

Post-Conviction Relief Pursuant to Rule 3.851 when the U.S. Supreme Court case

of Hurst v. Florida was decided. He filed a Motion requesting leave to file

supplemental briefing to address the impact of Hurst v. Florida on his case. The

Florida Supreme Court granted the Motion, and Mosely submitted supplemental

briefing contending that he was entitled to relief under Hurst v. Florida, and his

sentence of death must be vacated because of the jury’s non-unanimous death

recommendation. The Florida Supreme Court in Mosely decided to apply Hurst v.

Florida to habeas petitioners whose convictions were final after the U.S. Supreme

Court decided Ring. Id., at 1283.

The Florida Supreme Court in Mosely based its finding of retroactivity on

its analysis of Hurst v. Florida as not relying on new jurisdictional developments

in Sixth Amendment case law, but directly on Ring, which was decided in 2002.

The U.S. Supreme Court determined that “[t]he analysis the Ring Court applied to

Arizona’s sentencing scheme applies equally to Florida’s death penalty”:

Like Arizona at the time of Ring, Florida does not require the jury to

make the critical findings necessary to impose the death penalty.

Rather, Florida requires a judge to find these facts. Fla. Stat. Section

921.141(3) [2015]. Although Florida incorporates an advisory jury

verdict that Arizona lacked, we have previously made clear that this

distinction is immaterial: ‘It is true that in Florida the jury

recommends a sentence, but it does not make specific factual

findings with regard to the existence of mitigating or aggravating

circumstances and its recommendation is not binding on the trial

judge. A Florida trial court no more has the assistance of a jury’s

findings of fact with respect to sentencing issues than does a trial

judge in Arizona.’ Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct.

3047, 111 L.Ed.2d 511 (1990); accord., State v. Steele, 921 So.2d 38,

546 (Fla. 2005). (‘[T]he trial court alone must make detailed findings

about the existence and weight of aggravating circumstances; it has

no jury findings on which to rely’).

As with Timothy Ring, the maximum punishment Timothy Hurst

could have received without any judge-made findings was life in

prison without parole. As with Ring, a judge increased Hurst’s

authorized punishment based on her own fact-finding. In light of

Ring, we hold that Hurst sentence violates the Sixth Amendment.

(Emphasis in original).

Mosley, at 1273, quoting Hurst v. Florida, 136 S.Ct. at 621-22.

Thus, in holding Florida’s Death Penalty Statute unconstitutional, the U.S.

Supreme Court had applied the exact reasoning of Ring.

The Florida Supreme Court in Mosley used the Ring case as the dividing

line separating those cases for which Hurst v. Florida would apply retroactively.

So long as the conviction and sentence of death were final after Ring, then the

post-conviction litigant would be able to raise the unconstitutionality of Section

921.141 when seeking relief from the death penalty. If the conviction and

sentence of death became final before Ring, then Hurst v. Florida would be

unavailable. At the least, JOHNSON contends that Hurst v. Florida’s holding

should be applied to him because he raised the issue in his first Post-Conviction

Motion immediately after the U.S. Supreme Court decided Apprendi v. New

Jersey in 2000. Apprendi was the first case decided by the U.S. Supreme Court

that held that any fact that raised the maximum penalty for an offense was an

element that needed to be proven by the jury beyond a reasonable doubt.

Apprendi was the prerequisite to Ring. Ring applied the holding in Apprendi to

capital cases.

The Florida Supreme Court in Mosley clearly understood the significance of

Apprendi to the holding in Ring.

It was not until Ring that the United States Supreme Court applied its

reasoning from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000), holding that a jury must find every

fact necessary to increase the maximum punishment, to capital

sentencing. Ring, 536 U.S. at 589, 122 S.Ct. 2428. In the words of

Justice Scalia, Ring brought about ‘new wisdom’:

The right to trial by jury guaranteed by the Sixth Amendment would

be senselessly diminished if it encompassed the factfinding necessary

to increase a defendant's sentence by two years, but not the

factfinding necessary to put him to death. Id. at 609, 122 S.Ct.

2428. Ring specifically overruled Walton v. Arizona, 497 U.S.

639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), but failed to address

the constitutionality of Florida's capital sentencing scheme by not

discussing Hildwin or Spaziano, thereby leaving those decisions

intact to support an argument that Florida's capital sentencing scheme

remained valid. Ring, 536 U.S. at 603, 122 S.Ct. 2428. Thus, this

Court continued to rely in good faith on precedent supporting the

validity of Florida's capital sentencing scheme, despite doubt about its

constitutionality. The plurality in Bottoson v. Moore concluded that it

was within the purview of the United States Supreme Court to

overrule Hildwin and Spaziano to the extent they upheld Florida's

death penalty statute from Sixth Amendment attacks. Nevertheless, the

Florida Legislature did not revise our capital sentencing statute until

2016, after the United States Supreme Court decided Hurst v. Florida.

While inaction was clearly within the Legislature's prerogative, it is

now for this Court to determine whether to deny relief to those

defendants who were sentenced to death under an invalid statute based

solely on the United States Supreme Court's delay in overruling

Hildwin and Spaziano.

Because Florida's capital sentencing statute has essentially been

unconstitutional since Ring in 2002, fairness strongly favors applying

Hurst, retroactively to that time. The “extent of reliance” prong is not a

question of whether this Court properly or in good faith relied on

United States Supreme Court precedent, but how the precedent

changed the calculus of the constitutionality of Florida's death penalty

scheme.

Mosley at 1279-80.

JOHNSON contends that Ring was born of Apprendi, and the “black line”

should have been extended to 2000 at least, assuming that any “black line” could

be drawn that does not violate equal protection. That JOHNSON acted within the

time period for seeking State habeas relief should at least entitle him to the benefit

of Apprendi/Ring holdings.

On the same day that Mosley was decided, the Florida Supreme Court

decided the case of Asay v. State, 210 So.2d 1 (Fla. 2016). In Asay, the murders

took place on July 17, 1987. Asay’s conviction and sentence of death became final

on October 7, 1991. He filed a Motion for Post-Conviction Relief in 1993. After

being denied by the Circuit Court, the Florida Supreme Court denied relief on

October 26, 2000. A Petition for Writ of Habeas Corpus filed before the Florida

Supreme Court on October 25, 2001, which denied relief on October 4, 2002. It

was not until October 17, 2002, that Asay filed his first successive post-conviction

motion in which he contended that Florida’s capital sentencing statute was

unconstitutional pursuant to Ring. Since his conviction had been finalized before

Ring had been decided, and there was no opportunity for him to have raised Ring

or even Apprendi in his first post-conviction motion, the Court ruled that Hurst v.

Florida would not be applied retroactive to his case. Id., at 19.

Justice Perry dissented, arguing that limiting the retroactive application of

Hurst v. Florida to those cases that were not final when Ring was decided was a

line drawn that was “arbitrary and cannot withstand scrutiny under the Eighth

Amendment because it creates an arbitrary application of law to two groups of

similarly situated persons.” He was also concerned by what he characterized as

“Florida’s troubled history in applying the death penalty in a discriminatory

manner.” He concluded that the “majority’s decision today leads me to declare that

I no longer believe that there is a method of which the State can avail itself to

impose the death penalty in a constitutional manner.” Returning to the retroactivity

issue, Justice Perry plainly stated that “Retroactivity isn’t binary–either something

is retroactive, has affect on the past, or it is not.” He condemned the majority’s

reliance on concerns regarding the administration of justice pointing out that those

concerns could be obviated by following Section 775.082(2) and vacating the death

sentences rather than ordering a new Penalty Phase. Id., at 36-41 (PERRY, J.,

dissenting).

Justice Lewis concurred in the result, but was concerned about the

limitations on retroactivity set by the majority. In his view, the “majority opinion

has incorrectly limited the retroactive application of Hurst by barring relief to even

those defendants who, prior to Ring, have properly asserted, presented, and

preserved challenges to the lack of jury fact-finding and unanimity in Florida’s

capital sentencing procedure at the trial level and on direct appeal, the underlying

gravamen of this entire issue.” Id., at 30-31 (LEWIS, J., concurring).

Justice Pariente concurred in part, and dissented in part. She recognized that

Hurst “was undoubtedly a decision of fundamental constitutional significance

based not only on the United States Supreme Court’s decision in Hurst v. Florida,

but also on Florida’s separate constitutional right to trial by jury under Article I,

Section 22, of the Florida Constitution.” That Hurst required unanimous jury

findings of each aggravating factor, that the aggravating factors are sufficient to

impose death, and that the aggravating factors outweigh the mitigating

circumstances and the unanimous jury recommendation of death as part of

Florida’s constitutional right to a trial by jury represented a decision of

“fundamental constitutional significance.” She applied the retroactivity standard in

Witt v. State, 387 So.2d 922 (Fla. 1980), to justify full retroactivity of Hurst. “A

faithful Witt analysis includes consideration of uniqueness and finality of the death

penalty, together with the fundamental constitutional rights at stake when the State

sentences someone to death–mainly the right to trial by jury in sentencing by a

unanimous jury as guaranteed by both the Sixth Amendment to the United States

Constitution and Article I, Section 22, of the Florida Constitution.” Asay, 210

So.3d at 32-3 (PARIENTE, J., concurring in part, dissenting in part).

Justice Pariente’s conclusions were based, in part, on the holding of the

Florida Supreme Court in Perry v. State, 210 So.3d 630 (Fla. 2016). Perry arose

from a challenge to the Amendment to Florida’s Capital Sentencing Scheme passed

into law after Hurst v. Florida was decided. Ch. 2016-13, Laws of Fla. (2016).

The Statute amended Section 921.141 to permit a death recommendation if there

are ten votes rather than the single majority permitted under prior law. This Court

held that Hurst v. Florida required a unanimous recommendation by the jury before

a Sentence of Death could be imposed. The Court concluded as follows:

[T]o increase the penalty from a life sentence to a sentence

of death, the jury must unanimously find the existence of any

aggravating factor, that the aggravating factors are sufficient to

warrant a sentence of death, that the aggravating factors outweigh

the mitigating circumstances, and must unanimously recommend

a sentence of death. (citation omitted). While most of the Act can

be construed constitutionally under our holding in Hurst, the

Acts 10-2 jury recommendation requirement renders the Act

unconstitutional.

210 So.3d at 640.

In Perry, the Court finally recognized that Apprendi/Ring’s requirement that all

findings of fact that would increase the sentence must, consistent with the Sixth

Amendment right to trial by jury, be determined by unanimous jury beyond a

reasonable doubt.

Although JOHNSON did not specifically raise a Sixth Amendment issue at

trial or direct appeal, he did raise one at his initial Motion for Post-Conviction

Relief filed before Ring. In both his cases, non-unanimous jury recommendations

containing no findings of fact were made. A judge made findings of fact to impose

the death penalty, which was later prohibited by Hurst, and, he argued, always

prohibited by Apprendi. Fla.R.Crim.P. Rule 3.851 describes the procedure for

collateral relief after a death sentence has been imposed. The grounds for relief are

set forth in Rule 3.850. Rule 3.850(a)(1) permits a person in custody to vacate a

judgment when [t]he judgment was entered or sentence was imposed in violation of

the Constitution or laws of the United States or the State of Florida.” JOHNSON’s

sentence was imposed in violation of Apprendi although he had to wait sixteen

years until Hurst v. Florida by the U.S. Supreme Court, and later the Florida

Supreme Court to agree with him. Full retroactivity should be extended to

JOHNSON and all others similarly situated.

Having determined that the statute that was used to sentence JOHNSON to

death has been declared unconstitutional in violation of the Sixth Amendment, his

remedy should be a remand for the imposition of a life sentence. See, Florida

Statute Section 775.082(2) (2016). See also, Simmons v. State, 207 So.3d 860

(2016) (PERRY, J., concurring in part and dissenting in part); Hurst v. State, 202

So.3d 40, 75-76 (Fla. 2016) (PERRY, J., concurring in part and dissenting in part).

In Hitchcock v. State, 226 So.3d 216 (Fla. 2017), the Florida Supreme Court

affirmed the black line rule in Asay for extending retroactive effect under Hurst to

only those convictions and sentences of death that were final after Ring. Hitchcock

was denied relief because his sentence of death which became final in 2000, before

Ring.

Justice Lewis wanted to extend Hurst to those cases final before Ring where

defendants made objections during trial or direct appeal. Those defendants “who

properly preserve the substance of a Ring challenge at trial and on direct appeal

prior to that decision should also be entitled to have their constitutional challenges

heard.” Id., at 219. (LEWIS, J., concurring).

Justice Pariente dissented. She again challenged the black line drawn by the

majority in Asay. Stating, “[t]o deny Hitchcock relief when other similarly situated

defendants have been granted relief amounts to a denial of due process.”

Reiterating her prior dissent in Asay, she concluded that the right announced in

Hurst under both the Sixth and Eighth Amendment required full retroactivity.

While agreeing that the preservation of error approach taken by Justice Lewis was

preferable to the black line, “this resolution still results in the additional

arbitrariness of defendants being granted a new penalty phase only if their lawyers

have the foresight to raise an issue that was repeatedly determined to be meritless

before Ring.” Id., at 222. (PARIENTE, J., dissenting).

Justice Pariente, in her dissent, opened the door to a consideration of whether

the death sentence was reliable based on the existence of strong mitigation. Noting

that the jury’s most recent vote to recommend Hitchcock be sentenced to death was

10-2, the existence of significant mitigating evidence as well as the lack of clarity

why two jurors determined that death was not the appropriate punishment in the

case, she concluded that the Hurst error was not harmless beyond a reasonable

doubt. Id., at 222-23. (PARIENTE, J., dissenting).

JOHNSON contends that he had demonstrated meritorious psychological

mitigation at his State habeas evidentiary hearing sufficient to show prejudice

arising from the ineffectiveness of trial counsel at Penalty Phase. Eight jurors over

two trials who voted for life did so in the absence of a competent presentation of

mitigating evidence. JOHNSON would not likely have received his death

sentences had the jury’s recommendation for death need have been unanimous.

After handing down the Hitchcock decision, the Florida Supreme Court

issued a Rule to Show Cause demanding JOHNSON explain why its ruling should

apply to him. JOHNSON filed a timely Response.

On March 27, 2018, the Florida Supreme Court affirmed the denial of

JOHNSON’s Successive Motions for Post-Conviction Relief in both cases rejecting

his Hurst claim. Following Hitchcock, the Court held that JOHNSON was not

entitled to relief under Hurst because his sentences of death became final in 1998

before Ring. Justice Pariente dissented for the same reasons she discussed in her

dissent in Hitchcock.

This Court in Hurst declared Florida’s Death Penalty Statute unconstitutional

as it permitted a sentence of death upon less than a unanimous jury

recommendation. The Florida Supreme Court decided to make this holding

retroactive, but drew an arbitrary line where similarly situated defendants would

either receive a new Penalty Phase or not depending upon when their sentence of

death became final. This Court should accept certiorari in this case to erase that

line and grant full retroactivity to those under a sentence of death imposed under an

unconstitutional statute.

REASONS WRIT SHOULD BE GRANTED

Death penalty cases are a class apart from non-death penalty cases. Furman

v. Georgia, 408 U.S. 238, 285-87, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). That

“death is different” compels a closer look at the application of constitutional

principles implicated by a process that is irrevocable. The finality of a death

sentence, the inability to take it back, the unavailability of a redo, flips the

argument for finality. A prisoner wrongfully incarcerated will be released, but a

prisoner put to death cannot be resurrected.

In Furman, Justice Douglas, in his concurring Opinion, described the history

of the Eighth Amendment from its antecedents in England following the Norman

Conquest to its inclusion in the Bill of Rights. “It is [ ] settled that the proscription

of clear and unusual punishments forbids the judicial imposition of them as well

their imposition by the Legislature.” Id., at 239, 92 S.Ct. at 2728, (MARSHALL,

J., concurring), citing Weems v. United States, 217 U.S. 349, 378-82, 30 S.Ct. 544,

553-55. 54 L.Ed. 783 (1910).

Justice Marshall quoted with approval a witness’s statement at Hearings

before the House Judiciary considering a Bill that would abolish all executions,

who stated the following:

Any penalty, a fine, imprisonment or the death penalty could be

unfairly or unjustly applied. The vice in this case is not in the

penalty but in the process by which it is inflicted. It is unfair to

inflict unequal penalties on equally guilty parties, or on any

innocent parties, regardless of what the penalty is.

Id., at 247-48, 92 S.Ct. at 2731, (MARSHALL, J., concurring), quoting Hearings

before Subcommittee No. 3 of the House Committee on the Judiciary, 92nd Cong.,

2d Sess., Ernest van den Haag, testifying on H.R. 8414, et al., at 116-17.

Justice Marshall famously documented the existence of racial disparities in the

imposition of the death penalty that supported his contention that regardless of the

intent of the Framers, the death penalty was being imposed in an arbitrary and

capricious manner.

Justice Brennan traced the historical effort to define what constituted cruel

and unusual punishment. He, too, explained how “death is different”.

There has no national debate about punishment, in general or by

imprisonment, comparable to the debate about the punishment of

death. No other punishment has been so continuously restricted,

see, infra, at 2755-2757, nor has any State yet abolished prisons,

as some have abolished this punishment. And those state that still

inflict death reserve it for the most heinous crimes. Juries, of course,

have always treated death cases differently, as have governors

exercising their commutation powers. Criminal defendants are of

the same view. ‘As all practicing lawyers know, they have defended

persons charged with capital offenses, often the only goal possible is

to avoid the death penalty.’ Griffin v. Illinois, 351 U.S. 12, 28, 76

S.Ct. 585, 595, 100 L.Ed. 891 (1956) (BURTON and MINTON, J.J.,

dissenting). Some Legislatures have required particular procedures,

such as two State trials and automatic appeals, applicable only in

death cases. ‘It is the universal experience in the administration of

criminal justice that those charged with capital offenses are granted

special consideration.’ Ibid. See, Williams v . Florida, 399 U.S. 78,

103, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970). (All states require

juries of 12 in death cases). This Court, too, almost always treats

death cases of a class apart. And the unfortunate effect of this

punishment upon the functioning of the judicial process is well

known; no other punishment has a similar effect.

Id., at 286-287, 92 S.Ct. at 2750-2751 (BRENNAN, J., concurring).

Justice Brennan goes on to explain that a person executed by the State loses the

“right to have rights.” Id., at 290, S.Ct. at 2752 (BRENNAN, J., concurring).

Apart from the common charge, grounded upon the recognition of

human fallibility, that the punishment of death must inevitably be

inflicted upon innocent men, we know that death has been for a lot

of men whose convictions were unconstitutionally secured in view

of later, retroactively applied, holdings of this Court. The punishment

itself may have been unconstitutionally inflicted, see, Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), yet the

finality of death precludes relief. An executed person has indeed

‘lost the right to have rights.’ As one 19th century proponent of

punishing criminals by death declared ‘When a man is hung, there is

an end of our relations with him. His execution is a way of saying,

‘You are not fit for this world, take your chance elsewhere.’

Id., at 290, S.Ct. at 2752-53 (BRENNAN, J., concurring).

Justice Stewart noted that “[t]hese death sentences are cruel and unusual in

the same way as being struck by lightening is cruel and unusual.” He found “the

petitioners are among a capriciously selected random handful upon whom the

sentence of death has in fact been imposed.” Although he found that racial

discrimination had not been proven, he concluded that the death penalty should not

be imposed “under legal systems that permit this unique penalty to be so wantonly

and so freakishly imposed.” Id., at 309-10, 92 S.Ct. at 2762-63 (STEWART, J.,

concurring). Justice Stewart was joined by Justice White in concluding that the

sentencing processes (or procedure) used to impose the death penalty in the various

states rendered the death penalty cruel and unusual under the Eighth Amendment.

The effect of Furman was, of course, to invalidate all of the death penalty

capital sentencing statutes in effect in all the states. By operation of law, death

sentences were reduced to life imprisonment. There were no more executions in

the United States for several more years.

Although an Eighth Amendment case, the majority in Furman found fault

with the death penalty as applied by the Courts, not as an excessive exercise of

legislative authority. In the wake of Furman, the death penalty was resurrected in

almost all of the States as well as by Congress.

The Florida Legislature passed Section 921.141, which required that a

defendant convicted of a capital felony must be provided a bifurcated trial, with a

separate sentencing proceeding following his conviction to determine whether he

should receive the death penalty or life imprisonment. The jury would reach the

decision by a majority vote. The Florida Supreme Court rejected a constitutional

challenge to Section 921.141 under the Fifth Amendment Due Process and Eighth

Amendment. Spinkellink v. State, 313 So.2d 666 (Fla. 1975), cert. denied, sub

nom., Spinkellink v. Florida, 428 U.S. 911 (1976), rehearing denied, 492 U.S. 874

(1976). Spinkellink sought habeas relief in the Federal Courts where Section

921.141 again passed constitutional muster. Spinkellink v. Wainright, 578 F.2d

582 (5th Cir. 1978), cert. denied, 440 U.S. 976 (1979). rehearing denied, 441 U.S.

937 (1979). See also, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d

9131 (1976).

In reacting to Hurst v. Florida, the Florida Supreme Court finally awoke to a

fundamental defect in Section 921.141; to-wit: the recommendation of a Penalty

Phase jury can be by majority vote.

JOHNSON’s juries were instructed by the Court that they needed to find the

aggravating circumstances outweighed the mitigating circumstances beyond a

reasonable doubt to recommend death. But it was the Judge who was the ultimate

sentencer. There always existed the fear that jurors would not understand the vital

importance of their recommendation, and vote for death thinking that if their

judgment mistaken, the Judge will correct it. As addressed in Caldwell, supra,

caution must be exercised when instructing a jury to prevent them from delegating

the responsibility of imposing the death penalty on the Judge, rather than as the

unanimous judgment of the jury as a whole.

In Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972),

this Court held that although the Sixth Amendment compelled the United States

Courts to require that jury verdicts be unanimous, the unanimity requirement was

not forced on the states through the Fourteenth Amendment. The Florida Courts

could theoretically apply Apodaca to maintain the majority recommendations of an

advisory jury in a capital case without offending the Sixth Amendment, but how

does that square with the fact that every other jury decision in Florida is based upon

a unanimous verdict? Given the unique characteristics, and the irrevocable penalty

recognized by all Courts in capital cases, permitting a majority recommendation

violated equal protection.

The notion of jury unanimity and proof beyond a reasonable doubt for every

element of the offense as propounded by Apprendi and Ring has finally been

recognized by the Florida Supreme Court. This union of Sixth Amendment with

Eighth Amendment rights created a substantive rule, not a procedural one. In noncapital cases, where juror unanimity was a given, Apprendi and its progeny taught

that it was for a jury to decide beyond a reasonable doubt any sentencing factor.

This caused the Federal Courts to uniformly hold that relief under Apprendi would

not be given to any convictions final before it was decided.

But “death is different”. The reliability of the fact-finding process requires

proof beyond a reasonable doubt and a unanimous jury. An unreliable result

violates the Eighth Amendment.

This Court in Hurst v. Florida invalidated Florida’s Death Penalty Statute on

Sixth Amendment grounds. The Sixth Amendment violations went to the heart of

the reliability of the findings of fact relied upon by the sentencing Judge deciding

whether to impose the death penalty. It was that Sixth Amendment violation that

constituted the Eighth Amendment violation. Rather than restrict the retroactivity

of Hurst v. Florida to those death sentences that were final after Ring, it should be

applied to vacate all death sentences imposed by a majority recommendation from

the advisory Penalty Phase jury. There is no justification for drawing a black line

above which constitutional violations are corrected, and below which they are not.

Such a result not only tarnishes the credibility of Florida’s death penalty on those

already executed, but it raises the monstrous prospect of persons like JOHNSON

being executed based upon sentences of death imposed in violation of the U.S.

Constitution.

This Court should grant certiorari in order to correct the error made that the

Florida Supreme Court in Asay when it drew that black line, and erase it.

CONCLUSION

Upon the arguments and authorities aforementioned, Petitioner requests this

Court accept certiorari in this case.

Respectfully submitted,

/s/Charles G.White, Esq.

CHARLES G. WHITE, ESQ.

CHARLES G. WHITE, P.A.

Counsel for Petitioner

Member of the Supreme Court Bar

1031 Ives Dairy Road, Suite 228

Miami, FL 33179

Tel: (305) 914-0160

Fax: (305) 914-0166

E-mail: cgwhitelaw@aim.com

Florida Bar No. 334170

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