Opposition Brief — Jeffrey Glenn Hutchinson, Petitioner v. Florida

No. 18-5377

Jn the Supreme Court of the Anited States

JEFFREY GLENN HUTCHINSON, Petitioner,

v.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General of Florida

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

CHARMAINE M. MILLSAPS

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

OF FLORIDA

CAPITAL APPEALS

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3584

carolyn.snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

Counsel for Respondent

CAPITAL CASE

QUESTION PRESENTED

Whether this Court should grant review of a decision of the Florida

Supreme Court holding that the petitioner waived any right to relief

based on Hurst v. State, 202 So.3d 40 (Fla. 2016), by waiving his right to

a jury during the penalty phase.

TABLE OF CONTENTS

PAGE(S

QUESTION PRESENTED ............ 0.0.00... ccc cee eee eee e ee i

TABLE OF CONTENTS .. 2.0.0.2. ce eee eee eeeeee i

TABLE OF AUTHORITIES ...........0.0 000 ccc eee eee eee ee eees ili

OPINION BELOW .................. 00. ccc eee eee ne eeeee 1

JURISDICTION 2.0.0... ee eee eee e ence enna 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........... 3

STATEMENT OF THE CASE AND PROCEDURAL HISTORY ............... 4

REASON FOR DENYING THE WRIT .........0 0.0.00... 0c 8

ISSUE 2... ee eee teen eee e eee e een ees 8

WHETHER THIS COURT SHOULD GRANT REVIEW OF

A DECISION OF THE FLORIDA SUPREME COURT

HOLDING THAT THE PETITIONER WAIVED ANY

RIGHT TO RELIEF BASED ON HURST V. STATE, 202

SO.3D 40 (FLA. 2016), BY WAIVING HIS RIGHT TO A

JURY DURING THE PENALTY PHASE.

The Florida Supreme Court’s decision in this case .......... 9

The Florida Supreme Court’s precedent on the waiver of a

penalty phase Jury ..... 0.0... ccc cece eee eee 10

No conflict with this Court’s waiver jurisprudence ......... 12

No conflict with any federal appellate court or state supreme

COURT 2 we ec ce esate a copie me emer ee ee eee eee 17

Hurst v. Florida ..... 0... eee 21

Ineffectiveness of trial counsel .....................0004. 22

CONCLUSION ..... 2.0... 0. tence e eee n tenes 24

CERTIFICATE OF SERVICE ...... 0... 0c ccc ee eee eae 25

TABLE OF AUTHORITIES

CASES PAGE(S

Apprendi v. New Jersey,

530 U.S. 466 (2000) ...................0.. aie ee ccc eee eens eae eens 12

Blakely v. Washington,

542 U.S. 296 (2004) 2... ee ete e eee eee eees 10,12

Brady v. United States,

397 U.S. 742 (1970) 0... eee ee eee eee 11,13,14,16,17,18

Brant v. State,

197 So.3d 1051 (Fla. 2016) .... 0.02 cc cece cece ee enee 6,9

Braxton v. United States,

500 U.S. 344 (1991) 0. eee eee cee eee eees 17

Class v. United States,

138 S.Ct. 798 (2018) 2... eee eee eee eee ees 13,14,16

Covington v. State,

228 So.3d 49 (Fla. 2017),

cert. denied, Covington v. Florida, 138 S.Ct. 1294 (2018) .................. 11,12

Danforth v. Minnesota,

552 U.S. 264 (2008)... cc eee eee eee ence eens 21

Evans v. Sec’y, Fla. Dept. of Corr.,

699 F.3d 1249 (11th Cir. 2012)... 0.0.2... ccc eee 15

Furman v. Georgia,

408 U.S. 238 (1972) ... 00. eee eee eee eees 15

Halbert v. Michigan,

545 U.S. 605 (2005) .. 2. eee eee 9,10,13,14,15,16,20

Hurst v. Florida,

136 S.Ct. 616 (2016) 2.0.0... cece eee enna passim

Hurst v. State,

202 So.3d 40 (Fla. 2016) 2.0.20... ce nee eee eee passim

Hutchinson v. Florida,

2010 WL 3833921 (N.D. Fla. Sept. 28, 2010).......... 20.00.0002... 02 e ee 5

Hutchinson v. Florida,

677 F.3d 1097 (11th Cir. 2012),

cert. denied, Hutchinson v. Florida, 138 S.Ct. 485 (2012) ........0....0........ 5,6

Hutchinson v. Staite,

882 So.2d 943 (Fla. 2004), abrogated on other grounds, Deparvine v. State, 995

So.2d 351 (Fla. 2008)... 2... 0 eee ee eens 4,5,22

Hutchinson v. Staite,

17 So.3d 696 (Fla. 2009) .. 0... ccc ec cee teen eee neas 5

Hutchinson v. State,

243 So.3d 880 (Fla. 2018) .. 0... ce eee 1,6,7,9,10,22

lowa v. Tovar,

541 U.S. 77 (2004) 2... eee nee eens 14

Jenkins v. Hutton,

137 S.Ct. 1769 (2017) 22. ccc cee cece een e ee enee 21

Keen v. State,

775 So.2d 263 (Fla. 2000) .. 0.0... cc eee cece ee eens 15

Lewis v. Wheeler,

609 F.3d 291 (4th Cir. 2010)... cee 10,18,19

McMann v. Richardson,

397 U.S. 759 (1970)... ce ee ce ee eee 10,12,13,16,17,18,23

Martinez v. Ryan,

566 U.S. 1 (2012) 2... eee ccc cece cece cecneeeuceeeeveneuunnees 6

Mosley v. State,

209 So.3d 1248 (Fla. 2016) 2.0.0.0... 00 ee eee ens 21

Mullens v. State,

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

cert. denied, Mullens v. Florida, 137 S.Ct. 672 (2017) ........... 6,7,9,10,11,12,19

Patton v. United States,

281 U.S. 276 (1930) 2... ce eee eee eee eee eee eee 10

Proffitt v. Florida,

428 U.S. 242 (1976) 2... ee eee tee eee eee e nee enas 15

Quince v. State,

233 So.3d 1017 (Fla. 2018), petition for cert. filed (June 15, 2018) ............. 11

Ring v. Arizona,

586 U.S. 584 (2002) .. 2. ce eee 10,18,19,20,21

Rodgers v. State,

242 So.3d 276 (Fla. 2018), petition for cert. filed (July 23, 2018) .............. 11

Schriro v. Summerlin,

542 U.S. 348 (2004) 2. eee ee nee eens 21

Singer v. United States,

380 U.S. 24 (1965) 2. eee eee e eee eens 10,12

State ex rel. Taylor v. Steele,

341 S.W.3d 634 (Mo. 2011) .. 2. cc ee eee nee 19,20

State v. Hutchinson,

2008 WL 8948638 (Fla. Cir. Ct. Jan. 3, 2008) ... 2... ee 5

State v. Murdaugh,

97 P.3d 844 (Ariz. 2004) 260. ee nee teen eee eee 11

Strickland v. Washington,

466 U.S. 668 (1984) ... 02. ce eee eee ee eee enee 22

H

Teague v. Lane,

489 U.S. 288 (1989) o.oo cece cece cece ce eeneeeecseveeeeneeeeeees 21

Tedder v. State,

322 So.2d 908 (Fla. 1975) 2... cece eee eens 15

Twilegar v. State,

228 So.3d 550 (Fla. 2017),

cert. denied, Twilegar v. Florida, 138 S.Ct. 2578 (2018) ................0.. 11,12

United States v. Booker,

543 U.S. 220 (2005)... eee eee eee eens 17,18

United States v. Cardenas,

230 Fed. Appx. 933 (11th Cir. 2007)... 2... 0. eee ee eens 17

United States v. Copeland,

707 F.3d 522 (4th Cir. 2018)... 0.0.00 c cece cece ce cece eee ceeeeecuees 18

United States v. Green,

405 F.3d 1180 (10th Cir. 2005)... 2... cee eee 18

United States v. Grinard-Henry,

399 F.3d 1294 (11th Cir. 2005) ...... 20.0. cece ccc cececeeeeseseseneeees 18

United States v. Lockett,

A406 F.3d 207 (8rd Cir. 2005)... eee eens 17

United States v. Mezzanatto,

518 U.S. 196 (1995)... ee eee cence ee enees 12

United States v. Ruiz,

536 U.S. 622 (2002) 0. ee eee eee eens 13,16,18

United States v. Sahlin,

399 F.3d 27 (Ist Cir. 2005) .. 0.20 cc cee eee c eens 17

United States v. Vela,

740 F.3d 1150 (7th Cir. 2014) 2... ee eee ewes 17

Washington v. State,

653 So.2d 362 (Fla. 1994) .. 0... ce cee eee eee e eae 15

Young v. United States, .

124 F.3d 794 (7th Cir. 1997)... 2. eee ee eee ees 17

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI «2... 0... 2. eee eee eee passim

U.S. Const. Amend. XIV .. 0.2.0... neces 3

STATUTES

28 U.S.C. § 1257(a) 2. eee nee eee enn eee 2

2B U.S.C. § ZION (GC) we. eee crate onete Feral e Fe oie te en ee ae Bote Bon 2

Chapter 72-724, Laws of Fla. (1972) .........0.0 0.00.0 ccc ee eee 15

RULES

Fed. R. Civ. P. GO(D)(6) 2.2... cee eee teen ee eeenee 6

Fla. R. Crim. P. 3.851 2.0... ete nen ene eee 6

Sup. Ct. R. 10... 0. ce een e cere eect enn e eens 12,17

Sup. Ct. R. 18.3 2.2. nee een e eee eee e eens 2

IN THE

SUPREME COURT OF THE UNITED STATES

No. 18-5377

JEFFREY GLENN HUTCHINSON, Petitioner,

Uv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

OPINION BELOW

The Florida Supreme Court’s opinion is available at Hutchinson v. State, 248

So.3d 880 (Fla. 2018) (No. SC17-1229).

JURISDICTION

On March 15, 2018, the Florida Supreme Court affirmed the state trial court’s

denial of the successive postconviction motion. On March 28, 2018, Hutchinson filed

a motion for rehearing. On April 26, 2018, the Florida Supreme Court denied the

rehearing. On July 19, 2018, Hutchinson filed a petition for a writ of certiorari in this

Court. The petition was timely. See Sup. Ct. R. 13.3; 28 U.S.C. § 2101(c). Jurisdiction

exists pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution, which provides:

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

and public trial, by an impartial jury...

U.S. Const. Amend. VI.

The Fourteenth Amendment to the United States Constitution, section one,

which

provides:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

U.S. Const. Amend. XIV.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Hutchinson murdered his live-in girlfriend, Renee Flaherty, and her three young

children: Logan, Amanda, and Geoffrey. Hutchinson v. State, 882 So.2d 9438, 948-49

(Fla. 2004), abrogated on other grounds, Deparvine v. State, 995 So.2d 351 (Fla. 2008).

A 911 call from 410 John King Road, the victims’ home, was received at 8:41 p.m.

(XXII 728,750). The 911 caller stated: “I just shot my family.” (XXII 701). Hutchinson

had been living with Renee and three her children at 410 John King Road. Two close

friends of Hutchinson identified the voice on the 911 tape as Hutchinson's voice. (XXII

673-674; XXIV 1148). The deputies arrived at the residence within ten minutes of the

911 call and found Hutchinson on the ground in the garage with the cordless phone

receiver eight inches from his hand. (XXII 768-769). The phone was still on. (XXII

769). See Hutchinson, 882 So.2d at 948.

The jury convicted Hutchinson of four counts of first-degree murder with a

firearm. Hutchinson, 882 So.2d at 948. Hutchinson waived his right to a penalty phase

jury but presented mitigation to the trial judge at the bench penalty phase. Jd. The

trial court conducted a colloquy, found the waiver voluntary, and excused the jury. Id.

at 949. There was no jury recommendation regarding sentencing due to the waiver.

Following the bench penalty phase, the trial court sentenced Hutchinson to life

imprisonment for the murder of Renee Flaherty and to death for the murder of each

of the three children. Hutchinson, 882 So.2d:- at 949. The trial court found two

aggravating circumstances for the murders of Logan and Amanda: 1) previously

convicted of another capital felony for the murders of the other children and 2) the

victim was less than 12 years of age. Jd. at 959. The trial court found three

aggravating circumstances for the murder of Geoffrey Flaherty: 1) previously convicted

of another capital felony for the murders of the other children; and 2) the victim was

less than 12 years of age; and 3) heinous, atrocious, or cruel (HAC). Id.

On appeal to the Florida Supreme Court, Hutchinson raised ten issues.

Hutchinson, 882 So.2d at 949-50. The Florida Supreme Court affirmed the four

convictions of first-degree murder and affirmed the three death sentences for the

murders of the three children. Jd. at 961.

In October of 2005, Hutchinson filed a 3.851 motion for postconviction relief in

state trial court. Hutchinson v. State, 17 So.3d 696, 699 (Fla. 2009). Hutchinson’s

original postconviction counsel withdrew and the trial court appointed new

postconviction counsel. Jd. at 699. On August 15, 2007, new postconviction counsel

filed an amended postconviction motion. Following an evidentiary hearing on some of

the claims, the trial court denied the motion for postconviction relief. State v.

Hutchinson, 2008 WL 8948638 (Fla. Cir. Ct. Jan. 3, 2008).

In his postconviction appeal to the Florida Supreme Court, Hutchinson raised

three issues. Hutchinson v. State, 17 So.3d 696, 700 (Fla. 2009). The Florida Supreme

Court affirmed the trial court’s denial of postconviction relief. Id. at 704.

On July 24, 2009, Hutchinson filed a pro se federal habeas petition in district

court. Hutchinson v. Florida, 5:09-cv-RS (N.D. Fla.) (Doc. #1). On November 238, 2009,

habeas counsel Todd Doss, filed an amended habeas petition. (Doc. #19). The amended

petition raised five grounds for relief. On December 13, 2009, Respondent filed a

motion to dismiss the petition as untimely. The district court granted the motion and

dismissed the amended petition as untimely. Hutchinson v. Florida, 2010 WL 3833921

(N.D. Fla. Sept. 28, 2010).

The Eleventh Circuit affirmed the district court’s dismissal of Hutchinson’s

habeas petition as being untimely, finding that equitable tolling did not apply.

Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. 2012).

Hutchinson then filed a petition for a writ of certiorari in this Court from the

Eleventh Circuit’s opinion raising three issues related to equitable tolling. On October

9, 2012, this Court denied the petition. Hutchinson v. Florida, 133 S.Ct. 435 (2012) (No.

12-5582).

In 2014, Hutchinson filed a pro se rule 60(b)(6) motion to reopen his capital

federal habeas case based on Martinez v. Ryan, 566 U.S. 1 (2012). The federal district

court then appointed the Capital Habeas Unit of the Office of the Public Defender of

the Northern District of Florida (CHU-N) as federal habeas counsel of record. The

60(b)(6) motion is still pending in federal court awaiting additional discovery.

On January 11, 2017, represented by registry counsel Clyde M. Taylor and Billy

Nolas of the CHU, filed a successive rule 3.851 postconviction motion in state trial

court raising a claim based on Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst v. Florida),

and Hurst v. State, 202 So.3d 40 (Fla. 2016) (Hurst v. State). The State filed an answer

to the successive postconviction motion asserting that the motion should be summarily

denied because Hutchinson waived his right to any Hurst relief by waiving his right

to a penalty phase jury citing to the Florida Supreme Court controlling precedent of

Mullens v. State, 197 So.3d 16, 48-40 (Fla. 2016), cert. dented, Mullens v. Florida, 137

S.Ct. 672 (2017) (No. 16-6773). The trial court summarily denied the successive

postconviction motion based on Hutchinson’s waiver of the penalty phase jury relying

on Mullens.

Hutchinson appealed the state trial court’s denial of his successive

postconviction motion to the Florida Supreme Court. The Florida Supreme Court

affirmed the trial court’s summary denial of the postconviction motion rejecting the

Hurst claim based on the waiver of the right to a penalty phase jury. Hutchinson v.

State, 243 So.3d 880 (Fla. 2018) (SC17-1229). The Florida Supreme Court explained

that “Hurst relief is not available to individuals who waived their right to a penalty

phase jury.” Id. at 884. The Florida Supreme Court relied on their prior decision in

Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016), and Mullens v. State, 197 So.3d 16,

38-40 (Fla. 2016). Id. at 881, 883. The Florida Supreme Court explained that they

refused to permit capital defendants to “abuse the judicial process by waiving the right

to jury sentencing and claiming reversible error upon a judicial sentence of death.”

Hutchinson, 243 So.3d at 884 (quoting Mullens, 197 So.3d at 40).

Hutchinson, represented by the CHU, then filed a petition for a writ of certiorari

in this Court from the Florida Supreme Court’s opinion. This is the State’s brief in

opposition.

REASON FOR DENYING THE WRIT

ISSUE

WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION

OF THE FLORIDA SUPREME COURT HOLDING THAT THE

PETITIONER WAIVED ANY RIGHT TO RELIEF BASED ON HURST

V. STATE, 202 SO.3D 40 (FLA. 2016), BY WAIVING HIS RIGHT TO A

JURY DURING THE PENALTY PHASE.

Petitioner Hutchinson seeks review of the Florida Supreme Court’s decision

holding that he waived his rights under Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst

uv. Florida), and Hurst v. State, 202 So.3d 40 (Fla. 2016) (Hurst v. State), by waiving his

right to a penalty phase jury. There is no conflict between this Court’s waiver

decisions and the Florida Supreme -Court’s decision in this case. Under this Court’s

waiver jurisprudence, subsequent developments in the law do not render a prior waiver

involuntary. Hurst did not render Hutchinson’s waiver of his right to a penalty phase

jury involuntary. A waiver of a known, established right remains valid regardless of

later expansions of the right. Nor is there any conflict between that of any other

federal appellate court or state supreme court and the Florida Supreme Court’s

decision in this case. Federal appellate courts and state supreme courts follow this

Court’s precedent and hold that subsequent developments in the law do not render a

prior waiver involuntary. Opposing counsel does not cite any decision from any federal

circuit or state supreme court holding that a prior waiver of a jury became invalid due

to Hurst. Additionally, regardless of the waiver, Hutchinson is not entitled to any

relief based on Hurst v. Florida. One of the aggravating circumstances was found by

the jury during the guilt phase when the jury convicted Hutchinson of the other

murders. Hurst v. Florida was satisfied in the guilt phase. This Court should deny the

petition.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court rejected the Hurst v. State claim. Hutchinson v.

State, 243 So.3d 880 (Fla. 2018) (SC17 -1229). ‘The Florida Supreme Court rejected the

claim because Hutchinson had waived his right to a jury during the penalty phase. Id.

at 881 (noting that “Hutchinson waived his right to a penalty phase jury and presented

mitigation to the trial judge”); td. at 884 (“Hutchinson is not entitled to relief on this

Hurst claim where he waived his right to a jury trial”). The Florida Supreme Court

explained that “Hurst relief is not available to individuals who waived their right to

a penalty phase jury.” Id. at 884. The Florida Supreme Court relied on its prior

decision in Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016), and Mullens v. State, 197

So.3d 16, 38-40 (Fla. 2016). Id. at 881, 883. The Florida Supreme Court explained that

they refused to permit capital defendants to “abuse the judicial process by waiving the

right to jury sentencing and claiming reversible error upon a judicial sentence of

death.” Hutchinson, 248 So.3d at 884 (quoting Mullens, 197 So.3d at 40).

The Florida Supreme Court rejected the claim on ineffectiveness for advising

Hutchinson to waive the penalty phase jury explaining that counsel’s recommending

«

a jury waiver “was not deficient performance” because counsel properly advised

Hutchinson “of the law at the time.” Hutchinson, 248 So.3d at 882.

The Florida Supreme Court additionally rejected the argument that the waiver

became invalid as a result of the change in the law of Hurst. Hutchinson, 2438 So.3d at

883. The Florida Supreme Court rejected any attempt to distinguish their precedent

based on Hutchinson challenging the validity of his waiver, noting that Brant also

involved a challenge to the validity of the waiver. Id. “A defendant's ability to waive

a penalty phase jury did not change after Hurst.” Id. at 884.

The Florida Supreme Court rejected Hutchinson’s reliance on Halbert v.

Michigan, 545 U.S. 605, 623 (2005), noting that this Court had rejected an argument

similar to Hutchinson’s in McMann v. Richardson, 397 U.S. 759, 773-74 (1970).

Hutchinson, 2438 So.3d at 884. The Florida Supreme Court explained, that unlike the

new right in Halbert, “the right to a jury trial was well recognized before Hurst.” Id.

The Florida Supreme Court’s precedent

on the waiver of a penalty phase jury

The Florida Supreme Court relied on its precedent regarding the waiver of a

penalty phase jury established in Mullens v. State, 197 So.3d 16, 38-40 (Fla. 2016), cert.

denied, Mullens v. Florida, 137 S.Ct. 672 (2017) (No. 16-6778), to deny the Hurst claim

in this case. In Mullens, the Florida Supreme Court rejected a Hurst claim in a case

where the defendant had waived his penalty phase jury. The Florida Supreme Court

noted that Mullens waived his right to a penalty phase jury. Jd. at 20. The Florida

Supreme Court concluded that, in light of the fact that Mullens waived his right to a

jury, his argument that his sentence must be commuted to life imprisonment failed.

fd. at 38. The Florida Supreme Court, relying on this Court's caselaw, explained that

nothing prevents a defendant from waiving his right to a jury and that even “a

defendant who stands trial may consent to judicial factfinding as to sentence

enhancements.” Jd. at 38 (quoting Blakely v. Washington, 542 U.S. 296, 310 (2004)).

The Florida Supreme Court noted that this Court has long “recognized that defendants

may entirely waive their right to a jury trial.” Jd. at 38 (citing Singer v. United States,

380 U.S. 24, 32-35 (1965); and Patton v. United States, 281 U.S. 276, 308 (1930)). The

Florida Supreme Court also relied on a number of cases from other state supreme

courts, as well as a Fourth Circuit case, holding that Ring v. Arizona, 5386 U.S. 584

(2002), did not invalidate a prior waiver of a jury. Jd. at 38-39 (citing other state cases

and Lewis v. Wheeler, 609 F.3d 291, 309 (4th Cir. 2010)). The Florida Supreme Court

explained that a “subsequent change in the law regarding the right to jury sentencing

10

did not render that initial waiver involuntary.” Jd. at 39 (citing State v. Murdaugh, 97

P.3d 844, 853 (Ariz. 2004) (citing Brady v. United States, 397 U.S. 742 (1970)). The

Florida Supreme Court noted that the trial court conducted a thorough colloquy before

permitting Mullens to waive the penalty phase jury. Jd. at 39. The Florida Supreme

Court observed that accepting such an argument would “encourage capital defendants

to abuse the judicial process” by waiving the right to jury sentencing and claiming

reversible error upon a judicial sentence of death. Id. at 40. The Florida Supreme

Court wrote that Mullens cannot “subvert the right to jury factfinding by waiving that

right and then suggesting that a subsequent development in the law has

fundamentally undermined his sentence.” Jd. The Florida Supreme Court denied

Hurst relief based on the waiver.

The Florida Supreme Court has followed its Mullens precedent in several other

capital cases where the defendant waived his penalty phase jury to reject Hurst claims,

just as it did in this case. See, e.g., Covington v. State, 228 So.3d 49, 69 (Fla. 2017)

(rejecting a Hurst claim where the defendant waived the penalty phase jury citing

Mullens), cert. denied, Covington v. Florida, 1388 S.Ct. 1294 (2018) (No. 17-7400);

Twilegar v. State, 228 So.3d 550 (Fla. 2017) (rejecting a Hurst claim where the

defendant waived the penalty phase jury citing Mullens), cert. denied, Twilegar v.

Florida, 138 S.Ct. 2578 (2018) (No. 17-8236); Quince v. State, 233 So.3d 1017 (Fla.

2018) (rejecting a Hurst claim where the defendant waived the penalty phase jury

citing Mullens), petition for cert. filed (June 15, 2018) (No. 17-9401); Rodgers v. State,

242 So.3d 276 (Fla. 2018) (rejecting a Hurst claim where the defendant waived the

penalty phase jury citing Mullens), petition for cert. filed (July 23, 2018) (No. 18-118).

This Court has denied petitions for writ of certiorari in several of these cases.

' The petition in Quince v. Florida, No. 17-9401 is scheduled for conference on

September 24, 2018.

11

Mullens v. Florida, 137 S.Ct. 672 (2017) (No. 16-6773); Covington v. Florida, 138 S.Ct.

1294 (2018) (No. 17-7400); Twilegar v. Florida, 138 S.Ct. 2578 (2018) (No. 17-8236).

Review should be denied in this case as well.

No conflict with this Court’s waiver jurisprudence

Alternatively, there is no conflict between the Florida Supreme Court’s decision

in this case and this Court’s waiver jurisprudence. See Sup. Ct. R. 10(c) (listing conflict

with this Court as a consideration in the decision to grant review).

A capital defendant may waive his Sixth Amendment right to a jury trial.

Blakely v. Washington, 542 U.S. 296, 300 (2004) (explaining that nothing prevents a

defendant from waiving his right under Apprendi v. New Jersey, 530 U.S. 466 (2000),

and when “a defendant pleads guilty, the State is free to seek judicial sentence

enhancements so long as the defendant either stipulates to the relevant facts or

consents to judicial factfinding”) (emphasis added); United States v. Mezzanatto, 513

U.S. 196, 201 (1995) ("A criminal defendant may knowingly and voluntarily waive

many of the most fundamental protections afforded by the Constitution" citing

numerous constitutional waiver cases); Singer v. United States, 380 U.S. 24, 34 (1965)

(holding a defendant can waive his right to a jury trial and employ a bench trial

instead with the consent of the judge and the prosecutor). When a capital defendant

waives a penalty phase jury, he is consenting to judicial factfinding regarding his

sentence.

This Court has held that pleas are not rendered involuntary due to later changes

in the law. McMann v. Richardson, 397 U.S. 759, 773-74 (1970). Richardson argued

his plea was involuntary when a new decision regarding coerced confessions was issued

by this Court. Richardson argued that he could now challenge his confession under the

new decision regardless of his guilty plea. This Court rejected the argument that

12

subsequent changes in the law rendered an earlier plea involuntary. The Court

explained that when a defendant waives his right to a jury trial “he does so under the

law then existing.” Jd. at 774. This Court observed that, regardless of whether a

defendant might have “pleaded differently” had the later decided case been the law at

the time of the plea, “he is bound by his plea.” Jd. The Court noted the damage that

would be wrought on the finality of pleas if courts permitted later changes in the law

to be a basis for claiming a plea was involuntary. See also Brady v. United States, 397

U.S. 742, 757 (1970) (rejecting an argument that the plea was involuntary because it

was based in part on a statute that was declared unconstitutional years later because

the fact the defendant did not anticipate a change in the law “does not impugn the

truth or reliability of his plea”); United Siates v. Ruiz, 536 U.S. 622, 630 (2002) (stating

that the Constitution, in respect to a defendant’s awareness of relevant circumstances,

does not require complete knowledge of the relevant circumstances, but permits a court

to accept a guilty plea, with its accompanying waiver of various constitutional rights,

despite various forms of misapprehension under which a defendant might labor

including a defendant’s failure “to anticipate a change in the law”). Voluntariness is

determined under the law that exists at the time.

The same rationale expressed by this Court in Richardson, Brady, and Ruiz

applies to Hutchinson’s waiver of a penalty phase jury. Hutchinson was not required

to foresee Hurst for his waiver of the penalty phase jury to be valid. The validity of a

waiver is not dependent on subsequent changes in the law.

Opposing counsel’s reliance on Class v. United States, 138 S.Ct. 798 (2018), and

Halbert v. Michigan, 545 U.S. 605 (2005), is misplaced. Neither Class nor Halbert

conflict with either Richardson, Brady, or Ruiz. Subsequent developments in the law,

that modify or expand an established right, do not render prior waivers involuntary.

This Court in Class held that a defendant’s negotiated guilty plea did not, by

13

itself, bar a defendant from challenging the constitutionality of the statute of

conviction in the direct appeal. Class, 188 S.Ct. at 803. Class entered a written

negotiated plea that did not contain an appellate waiver provision. Jd. at 802, 807.

The issue in Class was what type of issues: does a defendant implicitly waive on

appeal simply by pleading guilty. Jd. at 805 (emphasis added). The Court concluded

that Class had neither expressly nor implicitly waived his right to appeal his

constitutional! claims. Jd. at 807.

But, here, Hutchinson explicitly waived the right to a penalty phase jury after

an on-the-record colloquy regarding that exact right. The waiver in this case was an

explicit waiver of that particular right. Class does not apply to cases involving explicit

waivers of particular rights.

Halbert does not apply either. This Court in Halbert held that the Equal

Protection and Due Process clauses required the appointment of counsel for defendants

seeking first-tier review of a conviction based on a plea or nolo contendere. The State

contended that Halbert had waived the newly-created right to appellate counsel by

entering a plea of nolo contendere and the Court rejected the waiver argument.

Halbert, 545 U.S. at 623. The Halbert Court, however, observed, at the time he entered

his plea, Halbert “had no recognized right to appointed appellate counsel he could

elect to forgo.” Id. (emphasis added). In a footnote to that observation, this Court

stated that a “conditional waiver,” which it defined, as one in which a defendant agrees

that, if he has a right, he waives it was not at issue in the case because nothing in the

plea colloquy indicated that Halbert waived the “unsettled” right to appellate counsel.

Id. at n.7. This Court noted that the trial court, during the plea colloquy, did not tell

Halbert, simply and directly, that there would be no access to appointed counsel. Jd.

at 624. The Court wrote that a waiver must be a “knowing, intelligent act done with

sufficient awareness of the relevant circumstances.” Jd. (quoting Iowa v. Tovar, 541

14

U.S. 77, 81 (2004), and citing Brady).

Halbert does not apply to this case because this case involves a known,

well-established, settled right. Opposing counsel is missing the distinction between

a totally unknown right and a known, established right that is later expanded. Halbert

involved a totally new right, not a well-established right.

In Florida, capital defendants have had a statutory right to a penalty phase jury

since the enactment of the death penalty statute in 1972. Chapter 72-724, Laws of Fla.

(1972); Proffitt v. Florida, 428 U.S. 242, 248 (1976) (describing the death penalty

statute that the Florida legislature adopted in response to Furman v. Georgia, 408 U.S.

238 (1972), which provided that “if a defendant is found guilty of a capital offense, a

separate evidentiary hearing is held before the trial judge and jury to determine his

sentence” and holding Florida’s death penalty statute did not violate the Eighth

Amendment) (emphasis added). The right to a penalty phase jury was established by

the Florida Legislature nearly 30 years before Hutchinson waived his penalty phase

jury in 2001.

Not only was the statutory right to a jury during the penalty phase well

established in Florida at the time of the waiver of the penalty phase jury, it was a

significant right under the Florida Supreme Court precedent at the time of the waiver

in 2001. It was nearly impossible for a trial judge to override a jury’s recommendation

of life under the Florida Supreme Court’s established precedent of Tedder v. State, 322

So.2d 908 (Fla. 1975), and Keen v. State, 775 So.2d 263 (Fla. 2000). Under the Tedder

and Keen standards, if there is any reasonable basis in the record to support the jury’s

recommendation of life, a trial court must impose a life sentence. As the Eleventh

Circuit observed years ago, the Florida Supreme Court's “stringent application” of the

Tedder standard meant that the last override affirmed on appeal in Florida was over

20 years ago. Evans v. Sec'y, Fla. Dept. of Corr., 699 F.3d 1249, 1258 (11th Cir. 2012)

15

(citing Washington v. State, 653 So.2d 362 (Fla. 1994)). So, many years before

Hutchinson’s waiver of a penalty phase jury, the established precedent in Florida was

a jury recommendation of life would have almost guaranteed him a life sentence.

As explained above, Hutchinson waived an established and significant right to

a penalty phase jury that would have nearly guaranteed him a life sentence if six

jurors had voted for a life sentence. He did not waive some minor right that later

turned out to be of great significance. At the time of the waiver, a jury’s

recommendation mattered a great deal. Hutchinson waived an established and

significant right to a penalty phase jury. Subsequent developments in the law, that

modify or expand an established right, do not render prior waivers involuntary.

Neither Class nor Halbert overruled Richardson, Brady, or Ruiz.

In this case, at the start of the penalty phase, counsel filed a motion to waive the

jury's recommendation regarding sentencing. (XXX 2308). The motion was

accompanied by an affidavit signed by the defendant. (XIII 2408-2409). The trial court

conducted a waiver colloquy, during which the defendant stated that he had discussed

the waiver with his attorney and family and he personally agreed that a jury

recommendation should be waived. (XXX 23811). The trial court found Hutchinson

competent to waive and found the waiver voluntary. (XXX 2316). The trial court then

excused the jury. (XXX 2321). Nothing the trial court said during the waiver colloquy

could have misled Hutchinson as to the significance of a penalty phase jury. Opposing

counsel points to nothing in the waiver colloquy that would have made Hutchinson

underestimate the value of a penalty phase jury.

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

Court's waiver jurisprudence. Because there is no conflict with this Court, review

should be denied.

16

No conflict with any federal appellate court or state supreme court

There is also no conflict with that of any federal appellate court or state supreme

court either. As this Court has observed, a principal purpose for certiorari jurisdiction

“is to resolve conflicts among the United States courts of appeals and state courts

concerning the meaning of provisions of federal law.” Braxton v. United States, 500

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

courts and state supreme courts as a consideration in the decision to grant review). In

the absence of such conflict, certiorari is rarely warranted.

The federal appellate courts naturally follow the logic of Richardson regarding

pleas. United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (stating the possibility

of a favorable change in the law occurring after a plea agreement is “one of the normal

risks that accompanies a guilty plea”); United States v. Lockett, 406 F.3d 207, 214 (8rd

Cir. 2005) (observing that “the possibility of a favorable change in the law occurring

after a plea agreement is merely one of the risks that accompanies a guilty plea”);

United States v. Cardenas, 230 Fed. Appx. 933, 935 (11th Cir. 2007) (rejecting a claim

that the plea was rendered involuntary due to this Court’s later decision in United

States v. Booker, 543 U.S. 220 (2005), explaining that a guilty plea is not invalidated

by a later change in the law citing Brady). As the Seventh Circuit explained, if the law

allowed the defendant to get off scot free in the event an argument later is shown to

be a winner, then every plea would become a conditional plea, with the (unstated)

condition that the defendant obtains the benefit of favorable legal developments, while

the prosecutor is stuck with the original bargain no matter what happens later. Young

v. United States, 124 F.3d 794, 798 (7th Cir. 1997).

Several federal circuits have also followed the logic of Richardson regarding

appellate waivers. United States v. Vela, 740 F.3d 1150 (7th Cir. 2014) (holding a

defendant's waiver of his right to appeal was not rendered involuntary by subsequent

17

Supreme Court ruling citing Brady and Richardson); United States v. Copeland, 707

F.3d 522, 529 (4th Cir. 2013) (stating that a criminal defendant “cannot invalidate his

appeal waiver now to claim the benefit of subsequently issued caselaw”); United States

v. Grinard-Henry, 399 F.3d 1294, 1295 (11th Cir. 2005) (refusing to reconsider the

dismissal of an appeal based on an appellate waiver in a plea in light of a later decision

of United States v. Booker, 543 U.S. 220 (2005)); United States v. Green, 405 F.3d 1180,

1190 (10th Cir. 2005) (rejecting a claim that an appellate waiver was involuntary

because the Supreme Court has made it clear that a defendant's decision to give up

some of his rights “remains voluntary and intelligent or knowing despite subsequent

developments in the law” citing Brady and Ruiz).

In Lewis v. Wheeler, 609 F.3d 291 (4th Cir. 2010), the Fourth Circuit affirmed

the denial of habeas relief. Lewis entered a plea in Virginia to, among other charges,

two counts of capital murder for hire for the murder of her husband and her stepson

and was sentenced to death for both murders. Jd. at 293. Under Virginia law at the

time, if a defendant pled guilty to capital murder, the trial judge conducted the

sentencing proceeding without a jury. Jd. at 297. After the sentencing bench trial, the

state trial judge imposed the two death sentences. Jd. at 298. The Virginia Supreme

Court affirmed the death sentences. Id. at 299. In the state postconviction proceedings,

Lewis raised a constitutional attack on the Virginia statute that mandated a bench

trial for sentencing in cases involving a guilty plea arguing that the statute violated

Ring v. Arizona, 536 U.S. 584 (2002), and asserting it rendered her plea involuntary.

Id. at 300. She then filed a federal habeas petition raising the Ring claim which the

federal district court denied. Id. She argued that her guilty plea was not knowingly

and intelligently made because the trial judge's plea colloquy failed to advise her rights

under Ring to have a jury determine the aggravators. Jd. at 308. The Fourth Circuit

noted that Ring did not hold that a defendant who pleads guilty and waives a jury trial

18

retains a constitutional right to have a jury determine aggravating factors. Id. at 309.

The Fourth Circuit noted that the defense strategy was to have Lewis plead guilty to

obtain a bench trial instead of a jury trial. Id. at 311. Experienced counsel, based upon

their knowledge of typical juries in the area and the assigned trial judge, believed that

a death sentence by a jury was a virtual certainty and that Lewis stood a better chance

of obtaining a life sentence from the trial judge. Id. The trial judge had never imposed

a death sentence before. Lewis voluntarily signed a letter stating that she “wished to

plead guilty and be sentenced by the Judge.” Jd. at 312. The Fourth Circuit found

that her claim that she would have insisted on having a jury determine her sentence,

if she was aware of her constitutional rights under Ring was “wholly inconsistent with

this reasonable and agreed-upon strategy.” Jd. at 312-13. The Fourth Circuit observed

that Lewis had to plead guilty in order “to take advantage of the very statute she now

seeks to challenge.” Jd. at 313. The Fourth Circuit rejected the claim that Ring had

rendered her waiver invalid.

There is no conflict with any state supreme court either. Mullens, 197 So.3d at

38-39 (citing other state supreme court cases). The Missouri Supreme Court in State

ex rel. Taylor v. Steele, 341 S.W.3d 634 (Mo. 2011), rejected a claim that a waiver of the

right to a jury in a capital case was invalid due to the change in law occasioned by

Ring. In 1991, before Ring, Taylor pled guilty and waived jury sentencing. Under the

statute in effect at the time, if a defendant pled guilty, he waived his statutory right

under Missouri law to jury factfinding at sentencing. Jd. at 641, n.10. “Taylor sought

to be sentenced by the trial judge, rather than by a jury, because he believed that the

trial judge was less likely to sentence him to death.” Id. at 637. The Missouri Supreme

Court concluded that his decision “to plead guilty and be sentenced by a judge, rather

than by a jury, precludes his ability now to claim the Sixth Amendment entitles him

to jury sentencing.” Jd. at 641. The Missouri Supreme Court determined that Taylor

19

“understood that a consequence of his plea was that he would not have his guilt or

sentence determined by a jury.” Id. The Missouri Supreme Court quoted the colloquy

in which Taylor stated that he understood that if he pled guilty it would “be up to the

judge to decide the sentence”; that “the judge could impose death”; and it would “all be

up to one man.” Jd. at 641-42. The Missouri Supreme Court found with “unmistakable

clarity” that Taylor “purposefully and strategically sought to avoid jury sentencing.”

Id. at 645. The Missouri Supreme Court rejected the claim that the plea was invalid

because it was entered before the Sixth Amendment right to jury sentencing was

established by Ring. Id. at 646-47. The Missouri Supreme Court reasoned that the

waiver was valid because “courts do not require a defendant to know if the source of

the right being waived is the constitution or a statute.” Jd. at 647. It “did not matter

whether his right to jury sentencing at that time stemmed from the constitution or a

statute.” Id. The Missouri Supreme Court found that his jury waiver “was not

motivated by the source of his right” but “by his strategic choice to avoid jury

sentencing.” Id. Taylor's “purposeful, strategic” agreement to be sentenced by a judge,

instead of by a jury, “did not evaporate in light of future case law that clarified a Sixth

Amendment right for capital defendants to be sentenced by a jury.” Jd. at 648. The

Missouri Supreme Court rejected any reliance on Halbert v. Michigan, 545 U.S. 605

(2005), explaining that, unlike Halbert, the trial court did “simply and directly” tell

Taylor that the judge, not a jury, would determine his sentence. Id. at 648. The

Missouri Supreme Court observed that nothing in “Ring or its progeny extends Sixth

Amendment jury sentencing protections to defendants who strategically plead guilty

and purposefully waive jury sentencing.” Id. at 649.

Opposing counsel does not cite any decision from any federal circuit or state

supreme court holding that either Ring or Hurst rendered a prior waiver of a penalty

phase jury invalid. There is no conflict between that of any federal appellate court or

20

state court of last resort and the Florida Supreme Court’s decision.

Hurst v. Florida

On the merits, regardless of the waiver, Hutchinson is not entitled to any relief

based on Hurst v. Florida.

This Court’s decision in Hurst v. Florida does not apply retroactively under the

federal retroactivity test of Teague v. Lane, 489 U.S. 288 (1989). Cf. Schriro v.

Summerlin, 542 U.S. 348, 358 (2004) (holding that Ring v. Arizona, 536 U.S. 584

(2002), was not retroactive under Teague). Hutchinson’s death sentences became final

in 2004, when the Florida Supreme Court issued the mandate from the direct appeal

(Hutchinson did not file a petition in this Court from the direct appeal). Because

Hutchinson’s death sentences were final years before this Court’s decision in Hurst v.

Florida, Hurst v. Florida does not apply retroactively to him, under federal law. While,

absent the waiver, Hutchinson would be entitled to retroactive benefit of the Florida

Supreme Court’s more expansive decision in Hurst v. State under the state test for

retroactivity, as determined in Mosley v. State, 209 So.3d 1248 (Fla. 2016), that is a

matter of state law. Danforth v. Minnesota, 552 U.S. 264, 266 (2008) (holding that state

courts are free to give broader retroactive effect to new rules of criminal procedure than

is required Teague). In federal court, the Hurst v. Florida claim is Teague-barred.

Moreover, there was no Hurst v. Florida error in this case. This Court’s decision

in Hurst v. Florida was limited to a right to jury findings on the aggravating

circumstances. Hurst v. Florida, 136 S.Ct. at 624 (holding “Florida’s sentencing

scheme, which required the judge alone to find the existence of an aggravating

circumstance, is therefore unconstitutional”) (emphasis added). But, here, one of the

aggravating circumstances was found by the jury during the guilt phase jury. Jenkins

21

v. Hutton, 137 S.Ct. 1769, 1771 (2017) (noting that the jury had found the existence of

two aggravating circumstances during the guilt phase by convicting Hutton of

aggravated murder and that “each of those findings rendered Hutton eligible for the

death penalty”). In this case, the trial court found two aggravating circumstances for

the murders of Logan and Amanda: 1) previously convicted of another capital felony

for the murders of the other children and 2) the victims were less than 12 years of age.

Hutchinson, 882 So.2d at 959. But the guilt phase jury had convicted Hutchinson of

murdering all three children. Id. at 949. So, the guilt phase jury, in effect, found the

previously-convicted-of-another-capital-felony aggravating circumstance by convicting

Hutchinson of the murders of all three children. One of the two aggravating

circumstances for two of the death sentences was, in fact, found by the jury. Hurst v.

Florida was satisfied in the guilt phase. There was no Hurst v. Florida error in the

first place in this case.

Ineffectiveness of trial counsel

Hutchinson also asserts that his trial attorney was ineffective for advising him

to waive his right to a penalty phase jury in light of the subsequent legal developments

in Hurst. The Florida Supreme Court rejected this claim of ineffectiveness and finding

the advice was a strategic decision and therefore, was not deficient performance.

Hutchinson, 248 So.3d at 882.

Claims of ineffectiveness of counsel are analyzed under the law at the time the

advice as given, not decades later. Strickland v. Washington, 466 U.S. 668, 689 (1984)

(explaining that a fair assessment of attorney performance requires that courts make

every effort to eliminate the distorting effects of hindsight and to evaluate the

attorney’s conduct from counsel’s perspective at the time) (emphasis added). Claims

of ineffectiveness regarding advice must be premised on the law at the time the advice

22

was given. McMann v. Richardson, 397 U.S. 759, 773 (1970) (stating that counsel

“cannot be faulted” for not anticipating a change in law where the attorney advised the

defendant to enter a guilty plea under the law at the time). Counsel is not required to

have a legal crystal ball to be effective. Trial counsel’s advice to Hutchinson in 2001

cannot be attacked based on legal developments that occurred in 2016 when Hurst v.

Florida was decided. Such a claim of ineffectiveness is, as a matter of law, invalid.

Furthermore, Hutchinson cannot establish that his attorney was ineffective for

advising him to waive the penalty phase under the law at the time. Counsel’s advice

to waive the jury in a case involving the murder of three young children in a

conservative area to prevent the judge from following what was likely to be an

unanimous or nearly unanimous jury recommendation of death was sound advice at

that time and for that place.

Accordingly, the petition should be denied.

23

[OCR skipped on page(s) 31]

[Read from a scan; the first 30 pages.]