Opposition Brief — Thomas Dewey Pope, Petitioner v. Florida

CASE NO. 18-5402

IN THE UNITED STATES SUPREME COURT

October 2017, Term

THOMAS DEWEY POPE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar No.: 158541

*Counsel of Record

Carolyn.Snurkowski@myfloridalegal.com

CapApp@myfloridalegal.com

Telephone: (850) 414-3300

LESLIE T. CAMPBELL

Senior Assistant Attorney General

Florida Bar No. 0066631

Office of the Attorney General

1515 N. Flagler Dr.; Suite 900

West Palm Beach, FL 33401

Leslie. Campbell@myfloridalegal.com

Telephone (561) 837-5016

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Whether certiorari review should be denied because (1)

the Florida Supreme Court’s decision determining Hurst

v. Florida and Hurst v. State are not retroactive to cases

final before Ring v. Arizona was decided is based on state

law and does not violate the Eighth Amendment or the

Equal Protection and Due Process Clauses; (2) partial

retroactivity does not violate the Supremacy Clause; and

(3) Petitioner's capital sentence comports with Caldwell v.

Mississippi, and the Florida Supreme Court decision does

not conflict with any decision of this Court or involve an

important, unsettled question of federal law? (restated)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW |... ee eeceeesecessseceeseeeeseeaeecnseeesseees i

TABLE OF CONTENTS 1.0... cece eseeeeesseeeeseceeecsceceesseneseseeesssnesessausenseeeses il

TABLE OF CITATIONS 2... eee eecessceeessceeeesseeesesscesesssesecsseeeceeeeeeessnseecterees il

CITATION TO OPINION BELOW ...000. oo eeesccececsneeeesseceesseceesenrerseseeeseeeseaees 1

JURISDICTION ..o.o eee eecc ee cecceecenenesesaeeeesseacesseueeseesneessseneeessaeeseseeeesssaeenasenes 1

CONSTITUTIONAL PROVISIONS INVOLVED ....000....eeccceeessccesteeeeneeeenteesenees 1

STATEMENT OF THE CASE AND FACTS 20 eeesccceesneeceteceeseneeeseteeenaeee 2

REASONS FOR DENYING THE WRIT... eee ee eeecceeeeneeeeeeneeestecenaeeeeues 6

ISSUE I

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE (1) THE

FLORIDA SUPREME COURT’S DECISION DETERMINING HURST V.

FLORIDA AND HURST V. STATE ARE NOT RETROACTIVE TO CASES

FINAL BEFORE RING V. ARIZONA WAS DECIDED IS BASED ON STATE

LAW AND DOES NOT VIOLATE THE EIGHTH AMENDMENT OR THE

EQUAL PROTECTION AND DUE PROCESS CLAUSES; (2) PARTIAL

RETROACTIVITY DOES NOT VIOLATE THE SUPREMACY CLAUSE;

AND (8) PETITIONER’S CAPITAL SENTENCE COMPORTS WITH

CALDWELL V. MISSISSIPPI AS THE DECISION DOES NOT CONFLICT

WITH ANY DECISION OF THIS COURT OR INVOLVE AN IMPORTANT,

UNSETTLED QUESTION OF LAW (RESTATED) .......cececssssscseseseesecseseseseeees 6

CONCLUSION 1... ccccccccscessseseeeseesssaasesssaassescacaseseeesessaeeessseceseserevseeneeateetenes 24

CERTIFICATE OF SERVICE wu... cscssccscsssssscsscsssssscccessssccccscssscscsessssonscsonesars 25

INDEX TO APPENDIX... cesccsssseececcesceceesesscseccecossesecesssnsceceesensssesssnenees 26

ul

TABLE OF CITATIONS

Page(s)

Cases

Alleyne v. United States,

B70 U.S. 99 (2013) ...ccccecsscsssscscssssesessccesescesesesesesscssenesesssecseeeeaeseesesssssssesssesesseesesenees 21

Almendarez-Torres v. United States,

B23 U.S. 224 (1998) oo. cecccsecccecesesescecseseesesesscesecsesecsesssecscuseesssssessasesesescessssseseesoaes 21

Apprendi v. New Jersey,

BBO U.S. 466 (2000) oc. ccececscsesssecsscssssesessessesesssssessssssseasssssseesescsessuecsescscsesesceeerecs 10, 21

Asay v. State,

210 So. 3d 1 (Fla. 2016) ......ccccecsscesssesesscssesessceessearenessesessessessssessssesesssssessvecsaaes 7, 8,9

Beck v. Washington,

BED U.S. 541 (1962) oo. cescscsscssssesescesssessssesescsecsesssesecsessescsesscsesscsesceecnesesecseeteesecaseass 12

Brady v. Maryland,

B73 U.S. 83 (1968) .o..eeceececcscsseseescssesesseccsecosssesecsesscsestesssessseascsesscsuseesssssesseasecsesaseeeess 12

Branch v. State,

234 So.3d 548 (Fla.)...cccccseccsssscesesscsescessscsesscsesesssseseeesessrssesseesassessssesessssssssacsescacensseeees 9

Caldwell v. Mississippi,

AT2 U.S. 820 (1985) .occcccesecccscsscsscscssesessesseseseesssesseseesesecsacseeseesceestssecseseeeesseseneses 6-7, 17

Cardinale v. Louisiana,

394 U.S. 437 (1969) ...ccecccccssesesesessescssssessecsescesenescscecseesessesesecssensssssssestsssseseacereseceees 8

Chapman v. California,

386 U.S. 18 (1967) oo... cceccceccsccssssscsssssecscsssscsssecscsesesscscssssesessscsesscscsesscsesscscsessectsesvesees 22

Crawtord v. Washington,

BAL U.S. 86 (2004) oo. eeceecssscsesessssessecescsececsessscescseseeeesesesessceacasesnsesaceestscesssceneneteneas 10

Danforth v. Minnesota,

B52 U.S. 264 (2008) oo... ececcescsseccsssscsecscssesscssscessesssessssssessssetsasscsssssessessescssssesessverssseecees 8

Darden v. Wainwright,

ATT U.S. 168 (1986) ....cececescssescscesesesesscesecseescsesecssacstcesesscetscenssenees seteateseseeateseasereneeees 18

Dorsey v. United States,

BG7 U.S. 260 (2012) oo. cecccescsscsssssessesscscssesessseassessccseesecseesscsseeseseeasessessesseasessecessceeens 11

Dugger v. Adams,

AB9 U.S. 401 (1989) oe. eeeccscccssescsscscssesecsseesesecsesscsesseecsessesecsessesessesseseenesecaesneee 18, 19

Florida v. Powell,

BBO U.S. 50 (2010) oo. eecsssesescsscssesescesssseccssesesecsesteceseessescsececesesscsessessssssassesecseessscasenss 9

Fox Film Corp. v. Muller,

296 U.S. 207 (1985)... .eccccsescsscessscscssessesesccssssessssesessessseesessssesacesecseseecscscsessesessssessseeeuss 8

General Talking Pictures Corp. v. Western Electric Co.,

304 U.S. 175 (1924) oo. ccecccsessecesesccsesessencssssesesessssesesesecsesssseaeseesssevscsuesseesscssevecesesees 19

Griffith v. Kentucky,

ATO U.S. 814 (1987) .o.cccccccscsssscsesssscscsessssescesescsesecscsesececseecesesseecseceesceeearsesacasseensesseanes 10

ili

Hannon v. State,

228 S0.Bd 505 (Fla.)...cccccscsssscsscssesescsscssssssessssvsesessssesescsceessesessesscssesssseesssesesesesceceacesesees 9

Harris v. Alabama,

513 U.S. 504 (1995) oe ceeccccsssssescsescesseseescssesesessesacsessesesasstenessesesscssesssesessessasassesuveas 23

Hitchcock v. State,

226 So. 3d 216 (Pla.).....eccccessscssssscsessesssscsscsececssesesacsesasssesssesessesacesesscssesscscseeeecseeeaes 5,9

Hurst v. Florida,

186 S.Ct. 616 (2016) 0... .ccceesscssssesssscesessesesecsessesseccsessessseessseeseseeessseseesessavsnenees Passim

Hurst v. State,

202 S0.3d 40 (Pla. 2016) ...ccccccccccccccssssccsscesesssessscceesececscececesneccesseaceeeseaeeseneeeees Passim

Jenkins v. Hutton,

137 S.Ct. 1769 (2017) ....eececscscsscsesseseesesscsessesssseatsssrsesestessseateresecseseussassseessasacassssenes 21

Johnson v. State, So. 3d ,

2018 WL 1633048 (Fla. April 5, 2018).........cccccccccccsescessesceccssesscssessccsecseseceserscsssesnss 18

Johnson v. United States,

135 S.Ct. 2551 (2015) oo. eeecccscscssssesscsccscescsescecesessesessceestesecsesscssseacsssussevsceessesaasenes 15

Kansas v. Carr,

136 S. Ct. 633 (QO16) ..ceecceccssescsssscsscesescsscsssesessessesesacseessssesssecseseessesseeesssercseseseceees 22

Lambrix v. State,

227 So.3d 112 (Fla.) ....ccccccesssssescsesssecscscsscsscsccesecscssssesscscaesescscseceessesssssssesssesssssesavenes 9

McCleskey v. Kemp,

A481 U.S. 279 (1987) o.oo eeeeeeeeeeeeee pane ecaeceeceneeaseeacaesuaeesasuseceaeesceccnceeeterccacesecesteannseees ll

McGirth v. State,

209 S0.3d 1146 (Fla. 2017) oo... eccccecsccccesesccesssccecesececsccecesccecsseuccesssacsesseacesseauscsensceseas 22

Michigan v. Long,

AG3 U.S. 1082 (1988) occ cccccecscsessscssccseesescesesscscesesseecsesscseceessesscsseecsssssescesssssceseeceeesees 8

Middleton v. Florida,

138 S. Ct. 829 (2018) oo. ceececccccececescsscscesessescesesessesesecsesecsscsesecscsccesssuceessesssnseusavaseaees 18

Miller v. Alabama,

BOT U.S. 460 (2012) vce cceccssscscescscessssescesssseeessescessccesesecssscesessesscesesscesseeaeeasseeaceacasees 13

Montgomery v. Louisiana,

136 S.Ct. 718 (2016) oo... .eccccccsccsscscesseseescssessessessesesecssesacssenscseetenseeeesscsnescsnens 6, 13, 14

Mosley v. State,

209 So.3d 1248 (Fla. 2016) .u........ecesecccccesseecccceceececcccesstcccessensecececessnsanececsencanscessnnscecees 7

Page v. Arkansas Natural Gas Corp.,

286 U.S. 269 (1932) ....ccecccccssssccssssssessesssscescseccessesesecsesssacssesesacsessesecscsesscsecsesseeesseseses 19

Pope v. Crosby,

921 So.2d 629 (Fla. 2005) .......cccccccccccccscssesscscesecssesecsesscsecssssecsecseceecsecsecseeesseaeassseasencess 4

Pope v. Sec'y, Florida Dept. of Corr.,

680 F.3d 1271 (11th Cir, 2012) oo... cccccccsssscscsesscsessscssesesesesssseesesssscsssssesessssscacenes 4,5

Pope v. Sec'y, Florida Dept. of Corr.,

752 F.3d 1254 (11th Cir. 2014) oo.ccccccccccccscssssessceseesesesnessesesscesscssseccecsessecsssseesssseeneeaee 4

Pope v. State,

27 So.3d G61 (Fla. 2010) ......ccccceecssscsssssssscscesessessecscsecsecsessesscssseseesecsesnecseeecsesnseecaneess 4

iv

Pope v. State,

237 So.8d 926 (Fla. 2018) .......ccccccccccsccsessesscsscscescsecescseereesesssecsscsecseceuesscssssassssssesseases 1

Pope v. State,

AA1 So.2d 1078 (Fla. 1983) ....c.cccccssscssssssecsessssssessescsssssscsccsssscsesscscesscsessveseecsacscneeveaees 2

Pope v. State,

569 So.2d 1241 (Fla. 1990) oo. c cece cccececceceseccsscecsseceseeseneesscevevscesssaseesaceceuecasenees 4

Pope v. State,

702 So.2d 221 (Fla. 1997) ...c.cccccccecescssssessesesssscesssessesssccsessecesscscesessesscecssvsecasensscsnsasene 4

Pope v. State,

845 So.2d 892 (Fla. 2008) oo... .ceceecccesccecssssscesscssssssscssssssecsscsssveseseaescsnecesecenessneseatesecens 4

Pope v. Wainwright,

A96 So.2d 798 (Fla. 1986) ....cccccsccsssessssesesessscessscescsessssesesseecscsessesesecseeseessetereecerseeesees 4

Powell v. Delaware,

153 A.3d 69 (Del. 2016) oo... ..eccceccccecscesscesssessssssvsscesevscscssessessesecseessseessessaceeaataseeeace 16

Rauf v. State,

145 A.38d 480 (Del. 2016) ...cccccccsscssssesesssscescssssssssssesesessessecesesscsscscssecscsssseseesesevecseees 16

Reynolds v. State,

__ So.38d ___, 2018 WL 1633075 (Fla. April 5, 2018) wo... ce cecceessceccesssceeceeseeees 18

Hing v. Arizona,

B36 U.S. 584 (2002) oe cceccccccsssssscssesesesesscssssescsesssscssscsesssessssenecacsesacaterseesesecscereees 2,7

Rockford Lite Insurance Co. v. hinois Department of Revenue,

ABQ U.S. 182 (1987) ....cccesccsscccscssesesecseseesescsessesesesecessscscsesssssssesssseveusssssesssesesesseses 18-90

Romano v. Oklahoma,

B12 U.S. 1 (1994) woe cccccscscssssssssescsssesssessescscscsesssssecsesesesescscsesssssscscsesscececacaceees 17, 20

Schriro v. Summerlin,

BAZ U.S. 348 (2004) oo. cccscsccsecsecscesccscesecsessesecseesscateaeceesseseensesesnesens 10, 18, 14, 15

State v. Gales,

658 N.W.2d 604 (Neb. 2008) .....cccccsesesesscssesesscessrssessescsecescseasssessesssecsecscssesscsesseseeeseee 22

State v. Mason,

___N.E.3d __, 2018 WL 1872180 (Ohio, April 18, 2018) ooo... lle eeeeeeeeeceeeeeeee 22

Street v. New York,

394 U.S. 576 (1969) oo. cececcsccsscssesseccssesesccsessesececssesscecsessessceesusecseessssasecesssessssseessnseas 8-9

Strickland v. Washington,

AGC U.S. 668 (1984) vo. .cecccescesesssscsssescsssscsecseccesecssescsessesececsesscssesesecsssssstessescencaseeeseess 12

Teague v. Lane,

ABO U.S. 288 (1989) oo... ceccccesccscescecescescscssesessessencsscseseenscscsessesesscsessessssevestscsacasenceses 8, 10

United States v. Abney,

812 F.3d 1079 (D.C. Cir. 2016) vec cceescccccccccerecesssesscesesecessceseeseesasesseeceseceeaseeeces 11

United States v. Johnston,

268 U.S. 220 (1925) oo. eccccccscsssscssssscecscssesscsssssesesceseacsecscesesssessessesscssseesetscsecsseenseseveee 19

United States v. Purkey,

428 F.3d 738 (8th Cir. 2005) ooo... cee ceeecescccsscesesesesccecneveseseecsesscecesssecssesevececeaecareees 22

United States v. Sampson,

A486 F.3d 13 (1st Cir. 2007) .......c:ccccsessccsescscccsssccececcceeccecscccesesscecsesccessenscecssuccesasecsens 22

Waldrop v. Comm’, Alabama Dept. of Corr.,

2017 WL 4271115 (11th Cir. Sept. 26, 2017) ..eccccccecccccccsscsscsssssssescsecsescsssesseseees 22

Welch v. United States,

136 S.Ct. 1257 (2016) ....e.ceeeccececccccececsccececscecesscececssesesssecessscecesscecuseesensueeenseascens 14, 15

Whorton v. Bockting,

549 U.S. 406 (2007) .ccccccccsccscsscssccsscsscescsscecescsssssssesssssssasssesscacsenseceseseceeesaseaceevere 9-10

Witt v. State,

B87 So.2d 922 (Fla.) ...c.ccceccseccsescsssscsssssesscssscscccsccsssesscesssecssesssesecesseseseseaseeacessaceaceeasenes 8

Woodson v. North Carolina,

AQ8B U.S. 280 (1976) ecececccccscsscssssseseseccsscsececccceccsecsecaceacsscescsarsesseesessecsceaeenaveneaseacaace 17

Statutes

28 U.S.C. § 125 7a) ooececcccccccccccccscsssccsscsccescesecssesssssecacessesescssesevscesaeseecsecssensessaeeeseasenaes 1

§ 921.141(2)(c), Fla. Stat. (2017) ....ccccccccscsscsscscsscsscsscsscsscsssssssesscesssssssesavescessesseecseess 19

Rules

Rule 3.851, Fla. R. Crim. Poi... ieee cesescccnesscecccevvecsceucscecesececsscesarseeesscessssccsssseseuees 4

Rule 10 of the Rules of the United States Supreme Court .00...............csssceeeeeeeeeeeeeees 16

al

CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review is reported as

Pope v. State, 237 So.3d 926 (Fla. 2018).

JURISDICTION

Petitioner, Thomas Dewey Pope (“Pope”), is seeking jurisdiction pursuant to

28 U.S.C. § 1257(a). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (hereinafter “State”), accepts as accurate

Petitioner’s recitation of the applicable constitutional provisions involved.

STATEMENT OF THE CASE AND FACTS

This capital case is before this Court upon the Florida Supreme Court’s

affirmance of the denial of Pope’s successive postconviction relief motion addressed

to Hurst v. Florida, 136 S.Ct. 616 (2016) and Hurst v. State, 202 So.3d 40 (Fla.

2016) wherein the Florida Supreme Court determined that under state law they

were not retroactive to cases final before June 24, 2002, the date this Court issued

Ring v. Arizona, 536 U.S. 584 (2002).

A grand jury indicted Thomas Dewey Pope (“Pope”) for the first-degree

murders of Al Doranz (“Doranz”), Caesar DiRusso (“DiRusso”), and Kristine Walters

(“Walters”). The jury found Pope guilty as charged and recommended life for the

murders of Doranz and DiRusso, and death for Walters’ murder by a nine-to-three

vote. (ROA-R.7 1265-67)! Pope v. State, 441 So.2d 1073 (Fla. 1983). On October 27,

1983, the Florida Supreme Court affirmed finding:

On January 19, 1981, the bodies of Al Doranz and Caesar

Di Russo were discovered in an apartment rented to

Kristine Walters. Both had been dead several days but Di

Russo's. body was in a more advanced state of

decomposition than Doranz's. Both victims had been shot,

Doranz three times and Di Russo five times. A spent .22

caliber shell casing was found under Di Russo's body.

Three days later, the body of Kristine Walters was found

floating in a canal. She had been shot six times with

exploding ammunition, her skull was fractured and she

had been thrown into the canal while still breathing.

All three victims had been shot with exploding

ammunition, so ballistics comparison was impossible.

However, parts of an AR-7 rifle were found in the canal

near Walters's body and the spent shell casing under Di

Russo's body had been fired from an AR-7 weapon.

1 Tdentifying the direct appeal record; “2017PCR” references the instant record.

Investigation led to appellant's girlfriend, Susan Eckard,

and ultimately police were able to show that Doranz

purchased an AR-7 rifle for Pope shortly before the

murder. Eckard and Pope admitted being with Doranz

and Walters at Walters's apartment on Friday night, the

night Doranz and Di Russo were killed. Eckard later

testified that Pope had arranged a drug deal with Doranz

and Di Russo. She stated that she and Pope left Walters's

apartment to visit Clarence “Buddy” Lagle and to pick up

some hamburgers. They then returned to the apartment

where Pope and Doranz convinced Walters to go with

Eckard to the apartment where Pope had been staying.

Later that same night, Pope arrived at his apartment and

told the women there had been trouble and that Doranz

had been injured but that it was best for Walters to stay

away from him for a while. Eckard said she knew that Di

Russo and Doranz were dead, and that she had known

Pope intended to kill them at this point. The next day,

Walters checked into a nearby motel, where Pope supplied

her with quaaludes and cocaine. On Sunday, Pope told

Walters he would take her to see Doranz. Eckard testified

that Pope had told her that he knew he had to get rid of

Walters but that he regretted it because he had become

fond of her. According to Eckard, Pope described Walters's

murder when he returned and said the gun had broken

when he beat Walters over the head with it. The next day

Eckard went with Pope to the scene of the crime to collect

fragments of the broken stock and to look for the missing

trigger assembly and receiver.

Buddy Lagle told the police he had made a silencer for the

AR-7 rifle at Pope's request. Because Lagle planned to

leave the jurisdiction to take a job on a ship in the Virgin

Islands, he was deposed on videotape pursuant to an

order granting the state's motion to perpetuate testimony.

When the state was unable to produce him at trial, the

videotape was admitted into evidence.

Pope was convicted of three counts of first degree murder.

The jury recommended a life sentence for the murders of

Doranz and Di Russo and death for Walters's murder. The

state indicated its agreement with that recommendation,

and the trial court imposed sentence accordingly.

Pope, 441 So.2d at 1074-75. Rehearing was denied on January 11, 1984 and Pope

did not seek certiorari review; thus, for purposes of postconviction litigation, his

case became final 90-days later on April 10, 1984 under Rule 3.851, Fla. R. Crim. P.

On September 17, 1984, Pope filed a postconviction relief motion (entitled

Motion for New Trial) and later amended it. Following an evidentiary hearing, the

trial court denied relief and on October 11, 1990, this was affirmed by the Florida

Supreme Court. Pope v. State, 569 So.2d 1241 (Fla. 1990). During the pendency of

that motion, Pope filed a petition for writ of habeas corpus with the Florida

Supreme Court which denied relief. Pope v. Wainwright, 496 So.2d 798, 801-03 (Fla.

1986) cert. denied, 480 U.S. 951 (1987).

In September 1991, Pope filed a federal habeas petition, however, in March

1995, Pope filed a second state postconviction relief motion. Ultimately, on May 29,

1996, the trial court summarily denied relief as procedurally barred. The Florida

Supreme Court affirmed. Pope v. State, 702 So.2d 221 (Fla. 1997). Later, Pope

returned to federal court where eventually all relief was denied. See, Pope v. Sec'y,

Florida Dept. of Corr., 680 F.3d 1271 (11th Cir. 2012); Pope v. Sec'y, Florida Dept. of

Corr., 752 F.3d 1254, 1256 (11th Cir. 2014). Also during the pendency of his federal

litigation, Pope filed successive postconviction motions and appeals. See Pope v.

State, 845 So.2d 892 (Fla. 2003); Pope v. Crosby, 921 So.2d 629 (Fla. 2005) (Tables);

Pope v. State, 27 So.3d 661 (Fla. 2010).

On January 10, 2017, Pope filed his fourth successive postconviction motion

in which he challenged his capital sentence based on Hurst v. Florida, 136 S.Ct. 616

(2016). In his May 31, 2017 amendment, Pope relied upon Hurst v. State, 202 So.3d

40 (Fla. 2016) to claim entitlement to a resentencing. (2017PCR 3-53, 81-106). On

September 6, 2017, relief was denied summarily. (2017PCR 141-44) On January 4,

2018, the Florida Supreme Court issued an Order to Show Cause requiring:

Appellant shall show cause on or before Wednesday,

January 24, 2018, why the trial court’s order should not

be affirmed in light of this Court’s decision in Hitchcock v.

State, SC17-445. The response shall be limited to no more

than 20 pages. Appellee may file a reply on or before

Thursday, February 8, 2018, limited to no more than 15

pages. Appellant may file a reply to the Appellee’s reply

on or before Monday, February 19, 2018, limited to no

more than 10 pages.

(Pet. Appx C). After the parties filed their respective pleadings, the Florida

Supreme Court, on February 28, 2018, affirmed the denial of postconviction relief

stating:

Pope’s motion sought relief pursuant to the United States

Supreme Court’s decision in Hurst v. Florida, 136 S. Ct.

616 (2016), and our decision on remand in Hurst v. State

(Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.

2161 (2017). After this Court decided Hitchcock v. State,

226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017),

Pope responded to this Court’s order to show cause

arguing why Hitchcock should not be dispositive in this

case.

After reviewing Pope’s response to the order to show

cause, as well as the State’s arguments in reply, we

conclude that Pope is not entitled to relief. Pope was

sentenced to death following a jury’s recommendation for

death by a vote of nine to three, and his sentence of death

became final in 1984. Pope v. State, 441 So. 2d 1073, 1075

(Fla. 1983); Pope v. Sec’y for Dep’t of Corrs., 680 F.3d

1271, 1278 (11 Cir. 2012). Thus, Hurst does not apply

retroactively to Pope’s sentence of death. See Hitchcock,

226 So. 3d at 217. Accordingly, we affirm the denial of

Pope’s motion.

Pope, 237 So.3d at 926-27. Pope seeks review of the Florida Supreme Court’s

decision here.

REASONS FOR DENYING THE WRIT

ISSUE I

CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE (1) THE FLORIDA SUPREME COURTS

DECISION DETERMINING HURST V. FLORIDA AND

HURST V. STATE ARE NOT RETROACTIVE TO CASES

FINAL BEFORE RING V. ARIZONA WAS DECIDED IS

BASED ON STATE LAW AND DOES NOT VIOLATE

THE EIGHTH AMENDMENT OR THE EQUAL

PROTECTION AND DUE PROCESS CLAUSES; (2)

PARTIAL RETROACTIVITY DOES NOT VIOLATE THE

SUPREMACY CLAUSE; AND (3) PETITIONER'S

CAPITAL SENTENCE COMPORTS WITH CALDWELL

V. MISSISSIPPI AS THE DECISION DOES NOT

CONFLICT WITH ANY DECISION OF THIS COURT OR

INVOLVE AN IMPORTANT, UNSETTLED QUESTION

OF LAW (RESTATED).

It is Pope’s assertion that the Florida Supreme Court’s decision finding Hurst

v. Florida and Hurst v. State partially retroactive is arbitrary and violates the

Eighth Amendment to the United States Constitution and the Equal Protection and

Due Process Clauses. He maintains that Florida’s new requirement of a unanimous

jury recommendation shows that his non-unanimous recommendation is unreliable.

Continuing, Pope presses that partial retroactivity should be rejected under

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) the Supremacy Clause which

requires a “substantive” constitutional change, of which he claims Hurst v. Florida

and Hurst v. State are examples, to be applied retroactively. As his final point,

Pope suggests that his death sentence was imposed in violation of Caldwell v.

Mississippi, 472 U.S. 320 (1985). As will be shown below, nothing about the process

employed by the Florida Supreme Court in rejecting Pope's Aurst claim is

inconsistent with the Constitution. Pope does not provide any “compelling” reason

for this Court to review his case on procedural or constitutional grounds. Certiorari

review should be denied.

1. Partial retroactivity based on state law does not violate the Eighth

Amendment or the Equal Protection and Due Process Clauses

The Florida Supreme Court’s holding in Hurst v. State followed this Court’s

ruling in Hurst v. Florida in requiring that aggravating circumstances be found by a

jury beyond a reasonable doubt before a death sentence may be imposed. The

Florida court then expanded this Court’s ruling, requiring in addition that “before

the trial judge may consider imposing a sentence of death, the jury in a capital case

must unanimously and expressly find all the aggravating factors that were proven

beyond a reasonable doubt, unanimously find that the aggravating factors are

sufficient to impose death, unanimously find that the aggravating factors outweigh

the mitigating circumstances, and unanimously recommend a sentence of death.”

Hurst v. State, 202 So.3d at 57. In Asay v. State, 210 So. 3d 1, 22 (Fla. 2016), cert.

denied, 138 S. Ct. 41 (2017), the Florida Supreme Court ruled that, as a matter of

state law, Hurst v. State is not retroactive to any case in which the death sentence

was final prior to the June 24, 2002, decision in Ring v. Arizona, 5386 U.S. 584

(2002). See Mosley v. State, 209 So.3d 1248, 1272-73 (Fla. 2016) (holding, as a

matter of state law, Hurst v. State applies retroactively to defendants whose

sentences were not yet final when Ring was decided). Florida’s partial retroactive

application of Hurst v. State is not constitutionally infirm and does not present a

matter that merits the exercise of this Court’s certiorari jurisdiction.

This Court has held that, in general, a state court’s retroactivity

determinations are a matter of state law, not federal constitutional law. Danforth v.

Minnesota, 552 U.S. 264 (2008). State courts may fashion their own retroactivity

tests, including partial retroactivity tests. Under Danforth, a state supreme court is

free to employ a partial retroactivity approach without violating the federal

constitution. The state retroactivity doctrine employed by the Florida Supreme

Court did not violate federal retroactivity standards. The state court’s expansion of

Hurst v. Florida in Hurst v. State is applicable only to defendants in Florida, and,

consequently, subject to retroactivity analysis under state law as set forth in Witt v.

State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067 (1980). See Asay, 210 So.3d

at 15 (noting Florida’s Witt analysis for retroactivity provides “more expansive

retroactivity standards’ than the federal standards articulated in Teague v. Lane,

489 U.S. 288 (1989) (emphasis in original; citation omitted).

Repeatedly, this Court has recognized that where a state court judgment

rests on non-federal grounds, where the non-federal grounds are an adequate basis

for the ruling independent of the federal grounds, “our jurisdiction fails.” Fox Film

Corp. v. Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038

(1983). See also Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that

this Court has no jurisdiction to review a state court decision on certiorari review

unless a federal question was raised and decided in the state court below); Street v.

New York, 394 U.S. 576, 581-82 (1969) (same). If a state court’s decision is based on

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

Florida v. Powell, 559 U.S. 50, 57 (2010).

Florida’s retroactivity analysis is a matter of state law. This fact alone

militates against the grant of certiorari. It should be noted that this Court has

denied repeatedly certiorari to review the Florida Supreme Court’s retroactivity

decisions following the issuance of Hurst v. State. See, e.g., Asay v. State, 210 So.3d

1 (Fla. 2016), cert. denied, 138 S.Ct. 41 (2017); Hitchcock v. State, 226 So.3d 216

(Fla.), cert. denied, 138 S.Ct. 5183 (2017); Lambrix v. State, 227 So.3d 112 (Fla.),

cert. denied, 138 S.Ct. 312 (2017); Hannon v. State, 228 So.3d 505 (Fla.), cert.

denied, 138 S.Ct. 441 (2017); Branch v. State, 234 So.3d 548 (Fla.), cert. denied, 138

S.Ct. 1164 (2018).

Pope argues that the Florida Supreme Court’s partial retroactive application

of Hurst v. Florida as interpreted in Hurst v. State violates the Eighth Amendment

and the Equal Protection and Due Process Clauses. He also claims the sentencing

procedure used in his case is unconstitutional because the jury was instructed that

its death recommendation was advisory and did not have to be unanimous, thus,

rendering it unreliable. The Florida Supreme Court’s retroactivity ruling is not

contrary to federal law. It does not conflict with precedent from this Court or any

other federal appellate or state supreme court. Certiorari review is unnecessary.

New rules of law such as the rule announced in Hurst v. Florida do not

usually apply to cases that are final. See Whorton v. Bockting, 549 U.S. 406, 416

(2007) (explaining the normal rule of non-retroactivity and holding the decision in

Crawford v. Washington, 541 U.S. 36 (2004), was not retroactive). Also, the general

rule is one of non-retroactivity for cases on collateral review, with narrow

exceptions. See Teague v. Lane, 489 U.S. 288, 307 (1989) (observing there were only

two narrow exceptions to general rule of non-retroactivity for cases on collateral

review). Further, certain matters are not retroactive at all. Hurst v. Florida was

based on this Court’s holding in Ring, which in turn was based on Apprendi v. New

Jersey, 530 U.S. 466 (2000). This Court has held that “Ring announced a new

procedural rule that does not apply retroactively to cases already final on direct

review.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (emphasis added).

In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), this Court held “a new rule

for the conduct of criminal prosecutions is to be applied retroactively to all cases,

state or federal, pending direct review or not yet final, with no exception for cases in

which the new rule constitutes a ‘clear break’ with the past.” Under this “pipeline”

concept, only those cases still pending direct review or not yet final would receive

the benefit from alleged Aurst error. Retroactivity under Griffith depends on the

date of the finality of the direct appeal. Under Teague, if a case is final on direct

review, the defendant will not receive the benefit of the new rule unless one of the

narrow exceptions announced in Teague applies. Again, finality is the critical datebased test under Teague. There is nothing about Florida’s decision providing partial

retroactivity to Hurst v. Florida and Hurst v. State that is contrary to this Court’s

retroactivity jurisprudence.

10

Moreover, if partial retroactivity violated the United States Constitution or

this Court’s retroactivity jurisprudence, this Court would not have given partial

retroactive effect to a change in the penal law in Dorsey v. United States, 567 U.S.

260 (2012). In Dorsey, this Court held that the Fair Sentencing Act was partially

retroactive in that it would apply to those offenders who committed applicable

offenses prior to the effective date of the act, but who were sentenced after that

date. Id. at 273. See United States v. Abney, 812 F.3d 1079, 1097-98 (D.C. Cir.

2016) (noting prior to decision in Dorsey, Court had not held a change in criminal

penalty to be partially retroactive).

Any retroactive application of a new development in the law under any

analysis will mean some cases will get the benefit of a new development, while

others will not, depending on a date. Drawing a line between newer cases that will

receive the benefit of a new development in the law and older final cases that will

not receive the benefit is part and parcel of the landscape of any retroactivity

analysis. It is simply part of the retroactivity paradigm that some cases will be

treated differently than others based on the age of the case. This is not arbitrary

and capricious nor a violation of the Eighth Amendment; it 1s simply a fact inherent

in the retroactivity analysis.

Pope’s argument for the finding of a violation of the Equal Protection Clause is

likewise without merit. A criminal defendant challenging the State’s application of

capital punishment must show intentional discrimination to prove an equal

protection violation. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). A

11

eee

[dliscriminatory purpose’ . . . implies more than intent as violation or intent as

awareness of consequences. It implies that the decisionmaker . . . selected or

reaffirmed a particular course of action at least in part ‘because of, not merely ‘in

spite of, its adverse effects upon an identifiable group.” /d. at 298.

The Florida Supreme Court’s partial retroactivity ruling was based on the

date of the Ring decision, not based on a purposeful intent to deprive pre-Aing death

sentenced defendants in general, and Pope specifically, relief under Hurst v. State.

The Florida Supreme Court has been consistent in denying Hurst relief to those

defendants whose convictions and sentences were final when Hing was issued in

2002. Pope is being treated the same as similarly situated capital defendants.

Hence, his equal protection argument fails and certiorari should be denied.

Additionally, in Beck v. Washington, 369 U.S. 541 (1962), this Court refused to find

constitutional error in the alleged misapplication of Washington law by Washington

courts: “We have said time and againthat the Fourteenth Amendment does not

‘assure uniformity of judicial decisions . . . [or] immunity from judicial error. . . .’

Were it otherwise, every alleged misapplication of state law would constitute a

federal constitutional question.” Jd. at 554-55 (citation omitted).

Additionally, Pope’s assertion that his sentence is unreliable and that his

previously rejected Brady v. Maryland, 373 U.S. 83 (1963) and Strickland v.

Washington, 466 U.S. 668 (1984) claims should be considered in support of that

argument is without merit. This argument assumes he is entitled to relief under

Hurst, when as explained throughout, he is not. It further assumes that his Brady

12

and Strickland claims can be resurrected, when they cannot be. Even if Pope could

relitigate his previously disposed of claims, he would not be entitled to any relief

because the state and federal courts resolved those issues in accordance with this

Court’s precedent. Morover, the prejudice standard applied to those claims was not

a Sixth Amendment fact-finding error addressed in Hurst v. Florida. Resolution of

those claims does not support the instant claim that Pope’s sentence is unreliable.

2. The Florida Supreme Court’s Failure to Apply Full Retroactive

Effect to the Hurst Decisions Does Not Violate the Supremacy Clause.

It is Pope’s position that the Florida Supreme Court’s giving partial

retroactive application to Hurst claims is violative of the dictates of Montgomery v.

Louisiana, 136 S. Ct. 718 (2016) and improper under the Supremacy Clause. In

doing so, he asserts that the Florida court created a new substantive rule in Hurst

v. State which must be applied retroactively to all cases in which alleged Hurst

error occurred.

Reliance on Montgomery for his argument is misplaced. In Montgomery,

Louisiana ruled that this Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012),

which held that a juvemile could not be sentenced to mandatory life in prison

without the possibility of parole, did not apply retroactively. Montgomery, 1386 S.Ct.

at 727. This Court reversed because Mil/er “announced a substantive rule of

constitutional law.” Jd. at 734. The rule in Miller was substantive rather than

procedural because it placed a particular punishment beyond the State’s power to

impose. See Schriro v. Summerlin, 542 U.S. at 352 (defining substantive rule as a

new rule that places “particular conduct or persons” “beyond the State’s power to

13

punish”). Miller categorically prevented the State from imposing a mandatory life

sentence on anyone who was a juvenile when the crime was committed. /d. Because

Miller was determined to have created a substantive rule, it applied retroactively

regardless of when a qualifying defendant’s conviction became final. Montgomery,

136 S. Ct. at 729 (stating “Court now holds that when a new substantive rule of

constitutional law controls the outcome of a case, the Constitution requires state

collateral review courts to give retroactive effect to that rule.”).

Unlike the ruling in Miller, the rulings in Hurst v. Florida and Hurst v. State

were procedural, not substantive. See Montgomery, 136 S.Ct. at 730 (noting

“[plrocedural rules . . . are designed to enhance the accuracy of a conviction or

sentence by regulating ‘the manner of determining the defendant’s culpability.”)

(emphasis in original; quoting Schriro, 542 U.S. at 353). See also Schriro, 542 U.S.

at 352 (reiterating “Ring announced a new procedural rule that does not apply

retroactively to cases already final on direct review.”).

Pope also cites Welch v. United States, 136 S.Ct. 1257 (2016) in support of his

argument. This Court in We/ch did not overrule Schriro. Indeed, Welch supports

the conclusion that this Court’s decision in Hurst applied a procedural rule:

“A rule is substantive rather than procedural if it alters

the range of conduct or the class of persons that the law

punishes.” Schriro, 542 U.S. at 353, 124 S. Ct. 2519. “This

includes decisions that narrow the scope of a criminal

statute by interpreting its terms, as well as constitutional

determinations that place particular conduct or persons

covered by the statute beyond the State’s power to

punish.” /d., at 351-352, 124 S. Ct. 2519 (citation omitted);

see Montgomery, supra, at ----, 136 S. Ct. at 728.

Procedural rules, by contrast, “regulate only the manner

14

of determining the defendant’s culpability.” Schriro, 542

U.S. at 353, 124 S. Ct. 2519. Such rules alter “the range of

permissible methods for determining whether a

defendant’s conduct is punishable.” Jbid. “They do not

produce a class of persons convicted of conduct the law

does not make criminal, but merely raise the possibility

that someone convicted with use of the invalidated

procedure might have been acquitted otherwise.” /d., at

352, 1248. Ct. 2519.

Welch, 136 S. Ct. at 1264-65.

In Welch, this Court found the rule in Johnson v. United States, 135 S.Ct.

2551 (2015), which “changed the substantive reach of the Armed Career Criminal

Act,” was a substantive rather than procedural change because it altered the class

of people affected by the law. Welch, 136 S.Ct. at 1265. In explaining how the rule

in Johnson was not procedural, this Court in Welch stated, “lilt did not, for example,

‘allocate decision making authority between judge and jury, rbid., or regulate the

evidence that the court could consider in making its decision.” Welch, 186 S. Ct. at

1265 (citation omitted). Here, the new rule announced in Aurst v. Florida, and

expanded in Hurst v. State, allocated the authority to make certain capital

sentencing decisions from the judge to the jury. This is how this Court in Welch

defined a procedural change. Considering this precedent, there can be no doubt

that the Hurst rule is a procedural one. Accordingly, the Supremacy Clause does

not require that Florida give full (or indeed any) retroactive effect on collateral

review to the rule announced in Hurst v. Florida or Hurst v. State.

In support of his argument that Hurst should be retroactive under the federal

Teague standard as a substantive change because it “addressed the proof-beyond-a-

15

reasonable-doubt standard,” Pope relies upon Powell v. Delaware, 153 A.3d 69 (Del.

2016). His reliance is misplaced. In Powell, the Delaware Supreme Court agreed

that “neither Hing nor Hurst involved a Due Process Clause violation caused by the

unconstitutional use of a lower burden of proof.” Powell, 153 A.3d at 74. The

Delaware Supreme Court used this fact to distinguish Hurst from Delaware’s

“watershed ruling” in Rauf which was the basis for Delaware to find that Rauf

retroactively applied to Powell under Teague. Powell, 153 A.3d at 74; Rauf v. State,

145 A.3d 430 (Del. 2016). Thus, Powel/ applies Delaware specific law and is not in

conflict with the Florida Supreme Court’s determination of the retroactive

application of Hurst. As Florida’s and Deleware’s death penalty statutes are

different, an interpretation by the Supreme Court of Deleware that Hurst should be

given full retroactive effect is not in conflict with the decision of the Florida

Supreme Court. As only Deleware’s case law calls for the retroactive application of

Hurst beyond fing, there is no conflict between the Florida Supreme Court’s

retroactive application and any other state court of last resort.

In sum, the questions Pope presents do not offer any. matter which comes

within the parameters of Rule 10 of the Rules of the United States Supreme Court.

He does not identify any direct conflict with this Court or other federal circuit

courts or state supreme courts, nor does he offer any unresolved, pressing federal

question. Pope challenges only the application of this Court’s well-established

principles to the Florida Supreme Court’s decision. As such, Pope does not

demonstrate any compelling reasons for this Court to exercise its certiorari

16

jurisdiction under Rule 10. This Court should deny the petition.

3. There is no violation of Caldwell v. Mississippi.

Pope’s attempt to tie his Equal Protection argument to Caldwell v.

Mississippi, 472 U.S. 320 (1985), fails. First, the decision in Caldwel/ did not

interpret the Equal Protection Clause. There, this Court found that a prosecutor’s

comments diminishing the jurys sense of responsibility for determining the

appropriateness of a death sentence was “inconsistent with the Eighth

Amendment’s ‘need for reliability in the determination that death is the appropriate

punishment in a specific case.” Caldwell, 472 U.S. at 323 (citing Woodson v. North

Carolina, 428 U.S. 280, 305 (1976)). This case is an inappropriate vehicle for

certiorari as this is a postconviction case and this Court would have to address

retroactivity before even reaching the underlying jury instruction issue. Hurst is

merely an application or refinement of Aing and this Court has already held that

Ring is not retroactive. See Schriro. It would be an odd result indeed, if this Court

were to hold that Hurst is retroactive, even though Hing was not.

In any case, there was no Caldwell error in this case. To establish

constitutional error under Caldwell, a defendant must show that the comments or

instructions to the jury “improperly described the role assigned to the jury by local

law.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994).2 Pope’s jury was instructed

2 In Caldwell, error was found based on the prosecutor’s argument to the jury that

the appellate court would review that sentence and would decide whether the death

sentence were appropriate. “To establish a Caldwell violation, a defendant

necessarily must show that the remarks to the jury improperly described the role

17

properly on its role based on the state law existing at the time of his trial. See

Reynolds v. State, So.3d , 2018 WL 1633075, *9 (Fla. April 5, 2018)

(explaining that under Romano, the Florida standard jury instructions at issue

“cannot be invalidated retroactively prior to Ring simply because a trial court failed

to employ its divining rod successfully to guess at completely unforeseen changes in

the law by later appellate courts”).3

Pope also points to Ca/dwe//l to assert constitutional error as his jury was

instructed its role was advisory and did not need to be unanimous thereby violating

the Eighth Amendment as discussed in Caldwell. First, there is no underlying

Sixth Amendment violation and no conflict between the Florida Supreme Court’s

decision and this Court’s Eighth Amendment jurisprudence set forth in Caldwell

and its progeny. There is no conflict between the Florida Supreme Court’s decision

and that of any other federal appellate court or state supreme court.4

assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407 (1989);

Darden v. Wainwright, 477 U.S. 168, 183 n.15 (1986) (rejecting a Caldwell attack,

explaining “Caldwell is relevant only to certain types of comment—those that

mislead the jury as to its role in the sentencing process in a way that allows the jury

to feel less responsible than it should for the sentencing decision”)

3 Respondent is cognizant of the Honorable Justice Sotomayor’s dissent from the

denial of certiorari in Middleton v. Florida, 138 S. Ct. 829 (2018), wherein she

criticized the Florida Supreme Court for not addressing the Ca/dwel/ claim in cases

where Hurst was applicable under state law. The Florida Supreme Court has now,

however, rejected explicitly Ca/dwell attacks on Florida’s standard penalty phase

jury instructions in the wake of Hurst. See Reynolds v. State, ___ So. 3d ___, 2018

WL 1633075 (Fla. April 5, 2018); Johnson v. State,___ So. 3d ___, 2018 WL 1633048

(Fla. April 5, 2018) (citing Reynolds in rejecting Caldwell claim).

4 This Court has recognized that cases which have not developed conflicts between

federal or state courts or presented important, unsettled questions of federal law

usually do not deserve certiorari review. Aockford Life Insurance Co. v. Illinois

18

Pope’s jury was informed properly that the aggravators had to be proven

beyond a reasonable doubt, but mitigation needed to be proven by a preponderance

of the evidence. Further, the jury needed to determine whether sufficient

aggravating factors existed to support the imposition of the death penalty and, if so,

whether the aggravation outweighed the mitigation before the death penalty could

be imposed. His jury was also informed that it had an “awesome” responsibility in

recommending a sentence, that it would not have a “harder” decision to make, and

not to “act hastily or without due regard to the gravity of these proceedings.” The

jurors were told that life should be recommended if the aggravation did not justify

the death penalty. Only where sufficient aggravation was found did the jury have

to determine whether the mitigation outweighed the aggravation. (Resp. App. A —

Direct Appeal Record pages 1120-26). A Florida jury’s decision regarding a death

sentence was, and remains, an advisory recommendation. See Dugger v. Adams,

489 U.S. 401 (1989). See also § 921.141(2)(0), Fla. Stat. (2017) (providing that “[ilf a

unanimous jury determines that the defendant should be sentenced to death, the

jury’s recommendation to the court shall be a sentence of death”) (emphasis added).

Thus, there was no violation of Caldwell because there were no comments or

instructions to the jury that “improperly described the role assigned to the jury by

Department of Revenue, 482 U.S. 182, 184, n. 3 (1987). The law is well-settled that

this Court does not grant certiorari for the purpose of reviewing evidence and/or

discussing specific facts. United States v. Johnston, 268 U.S. 220 (1925) (denying

certiorari to review evidence or discuss specific facts). Further, this Court has

rejected requests to reassess or re-weigh factual disputes. Page v. Arkansas Natural

Gas Corp., 286 U.S. 269 (1932) (rejecting request to review fact questions); General

Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 178 (1924) (same).

19

local law.” Homano, 512 U.S. at 9. Pope’s jury was advised accurately that its

decision was an advisory recommendation that would be accorded “great weight.”

Additionally, to the extent Pope’s argument could be interpreted as

suggesting a Sixth Amendment violation occurred, the record refutes the claim.

The jury convicted Pope of three counts of first degree murder and distinguished

between the homicides committed during a drug buy and the death of Kristine

Walters who was duped into going to a hotel where Pope kept her drugged during

the weekend while contemplating killing her because he did not want a witness to

the prior murders. In discussing aggravation, the Florida Supreme Court

determined:

... the court found four aggravating circumstances. First,

the defendant had been convicted of another capital

felony, the murders of Donranz and Di Russo. ... Second,

the capital felony was committed for the purpose of

avoiding or preventing lawful arrest. The defendant's own

statements to Susan Eckard as well as the circumstances

surrounding the murder show, beyond a reasonable doubt,

that this was the sole motive for the murder. ... Third, the

capital felony was committed in a cold, calculated and

premeditated manner. Susan Eckard's testimony about

Pope's discussions of the murder with her prior to the

killing supports beyond a reasonable doubt the finding of

premeditation as required by this statutory aggravating

factor. ... Fourth, the capital felony was especially

heinous, atrocious or cruel. The medical examiner's

testimony at trial revealed that the pattern of gun-shot

wounds on Walter's body revealed, without indicating the

sequence of shots, that she had been shot from the rear,

had attempted to flee the attack, and had been shot twice

with the gun pressed close to her abdomen. The wounds

caused by the explosion of the bullets at impact would

have been extraordinarily painful without causing

unconsciousness or death. When this had failed to kill

her, she had been clubbed over the head with the gun

20

barrel. When the gun barrel broke before the murderous

end had been achieved, the defendant dragged his stillliving victim to the canal where he threw her to drown.

The evidence of conscious psychological and physical

suffering is clear from the medical examiner's testimony

and supports a finding that this murder was heinous,

atrocious and cruel to an extent greater than that

inherent in all murders. .... We find no merit to

appellant's assignment of error to the finding of any of

these factors.

Pope, 441 So.2d at 1076—77 (citations omitted, emphasis supplied).

Clearly, the jury found the “convicted of another capital felony” aggravator as

it had convicted Pope of the triple homicide. Inherent in the guilt phase facts are

the aggravators of avoid arrest and cold, calculated and premeditated (“CCP”)

which are supported by Pope’s own admissions. Based on the medical examiner’s

testimony and Pope’s admissions, the heinous, atrocious, or cruel (“HAC”) finding

cannot be questioned. Relying merely on the two prior violent capital felonies, the

murders of Donranz and Di Russo, establishes beyond a reasonable doubt that no

Sixth Amendment error occurred. See Apprendi, 530 U.S. at 490; Alleyne v. United

States, 570 U.S. 99, 111 n.1 (2013) (recognizing “narrow exception . . . for the fact of

a prior conviction” set forth in Almendarez-Torres v. United States, 523 U.S. 224

(1998)). See also Jenkins v. Hutton, 137 S.Ct. 1769, 1772 (2017) (noting jury’s

findings that defendant engaged in course of conduct designed to kill multiple

people and that he committed kidnapping in the course of aggravated murder

rendered him eligible for the death penalty). This Court’s ruling in Hurst v. Florida

did not change the recidivism exception articulated in A/mendarez-Torres:

Apprendi; and Ring.

21

Lower courts have almost uniformly held that a judge may perform the

“weighing” of factors to arrive at an appropriate sentence without violating the

Sixth Amendment.® The findings required by the Florida Supreme Court following

remand in Hurst vy. State involving the weighing and selection of a defendant’s

sentence are not required by the Sixth Amendment. See, e.g., McGirth v. State, 209

So.3d 1146, 1164 (Fla. 2017). There was no Sixth Amendment error in this case. In

fact, Hurst v. Florida did not address the process of weighing the aggravating and

mitigating circumstances or suggest that the jury must conduct the weighing

process to satisfy the Sixth Amendment. In Kansas v. Carr, 136 S. Ct. 633 (2016),

decided eight days after this Court issued Hurst v. Florida, this Court emphasized:

5 State v. Mason, N.E.3d ___, 2018 WL 1872180, *5-6 (Ohio, April 18, 2018)

(“Nearly every court that has considered the issue has held that the Sixth

Amendment is applicable to only the fact-bound eligibility decision concerning an

offender’s guilt of the principle offense and any aggravating circumstances” and

that “weighing is not a factfinding process subject to the Sixth Amendment.”)

(string citation omitted); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007)

(“As other courts have recognized, the requisite weighing constitutes a process, not

a fact to be found.”); United States v. Purkey, 428 F.3d 738, 750 (8th Cir. 2005)

(characterizing the weighing process as “the lens through which the jury must focus

the facts that it has found” to reach its individualized determination); Waldrop v.

Comm'’r, Alabama Dept. of Corr., 2017 WL 4271115, *20 (11th Cir. Sept. 26, 2017)

(unpublished) (rejecting Hurst claim and explaining “Alabama requires the

existence of only one aggravating circumstance in order for a defendant to be deatheligible, and in Mr. Waldrop’s case the jury found the existence of a qualifying

aggravator beyond a reasonable doubt when it returned its guilty verdict.”) (citation

omitted); State v. Gales, 658 N.W.2d 604, 628-29 (Neb. 2003) (“[Wle do not read

either Apprendi or Ring to require that the determination of mitigating

circumstances, the balancing function, or proportionality review to be undertaken

by a jury”).

6 Hurst errors are subject to harmless error analysis. See Hurst v. Florida, 136 S.

Ct. at 624. See also Chapman v. California, 386 U.S. 18, 23-24 (1967). Here, the

aggravating circumstances found by the trial court were either uncontestable or

well-established by overwhelming evidence.

22

Whether mitigation exists, however, is largely a judgment

call (or perhaps a value call); what one jury might

consider mitigating another might not. And of course, the

ultimate question whether mitigating circumstances

outweigh aggravating circumstances is mostly a question

of mercy—the quality of which, as we know, is not

strained. It would mean nothing, we think, to tell the jury

that defendants must deserve mercy beyond a reasonable

doubt, or must more-likely-than-not deserve it... . In the

last analysis, jurors will accord mercy if they deem it

appropriate, and withhold mercy if they do not, which is

what our case law is designed to achieve.

Carr, 136 S. Ct. at 642.

To the extent Pope suggests that jury sentencing is now required under

federal law, his argument is misplaced. See Ring, 536 U.S. at 612 (Scalia, J.,

concurring) (noting “today’s judgment has nothing to do with jury sentencing. What

today’s decision says is that the jury must find the existence of the fact that an

aggravating factor existed.”) (emphasis in original); Harris v. Alabama, 513 U.S.

504, 515 (1995) (holding the Constitution does not prohibit the trial judge from

“imposling] a capital sentence”). No case from this Court has mandated jury

sentencing in a capital case, and such a holding would require reading a mandate

into the Constitution that is simply not there. The Constitution provides a right to

trial by jury, not to sentencing by jury.

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

Court’s Sixth Amendment or Eighth Amendment jurisprudence. Further, there is

no conflict between the Florida Supreme Court’s decision and that of any other

federal appellate or state supreme court. Finally, there is no underlying

constitutional error under the facts of this case. Certiorari review should be denied.

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