Petition for Writ of Certiorari — Louis B. Gaskin, Petitioner v. Florida

CAPITAL CASE

DOCKET NO.

IN THE SUPREME COURT OF THE UNITED STATES

LOUIS B. GASKIN,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE FLORIDA SUPREME

COURT

PETITION FOR A WRIT OF CERTIORARI

James L. Driscoll Jr.

Florida Bar No. 0078840

Law Office of the Capital Collateral

Regional Counsel

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

Phone No. (813) 558-1600 ext. 608

Fax No. (813) 558-1601

Attorney of Record for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED

In Hurst v. Florida this Court struck down Florida’s

longstanding capital-sentencing procedures, overruling Spaziano v.

Florida, 468 U.S. 447 (1984) and Hildwin v. Florida, 490 U.S. 638

(1989), because it authorized a judge, rather than a jury, to make

the factual findings that were necessary for a death sentence. On

remand, the Florida Supreme Court held that a death verdict could

not be rendered without unanimous jury findings of at least one

aggravating circumstance and that the aggravation is sufficient to

outweigh any mitigating circumstances and to warrant death.

The Florida Supreme Court then held that it would apply both

the federal and state jury-trial rights retroactively to inmates

whose death sentences had not become final as of June 24, 2002

(the date of Ring v. Arizona, precursor of Hurst) but that it would

deny relief to inmates whose death sentences were final on that

date. Mr. Gaskin presents the following questions:

1. Whether the Fourteenth Amendment’s guarantee of Equal

Protection and the Eighth Amendment’s prohibition of capricious

capital sentencing impose limits upon a state court’s power to

declare unconventional rules of retroactivity, and whether those

limits were transgressed here.

2. Whether Mr. Gaskin’s death sentence was unconstitutional

as applied.

LIST OF PARTIES

All parties appear in the caption on the cover page.

1i

TABLE OF CONTENTS

QUESTIONS PRESENTED ....... 6. 6 1 ee ee ee eee ee ad

LIST OF PARTIES. . .... 1. 6 2 ee ee ee ee ee ee ew LD

INDEX OF APPENDICES. ....... 0.0. ee ee ew ee ee ee eee LV

TABLE OF AUTHORITIES. ..... 1. 1 6 eee ee wee ee ee ee eV

PETITION FOR WRIT OF CERTIORARI ..........6 6. 6 «ee ee sel

OPINIONS AND ORDERS BELOW........... 26.2 6 6 «© © «6 «ss al

JURISDICTION. . . . 2... ee ee ee ee ee ee ee ee eee 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. .......2

STATEMENT OF THE CASE ....... 2. 6 ee te ee ew ew ee ee A

1. Case History. ...... 1. 6 ee ee ew ee ee ee ee ee A

2. The Florida Supreme Court’s Decisions Following Hurst V.

Florida. . . 2. 1. 6 ee ee ee ee ee ee ee

REASONS FOR GRANTING THE WRIT ................ =. 19

CONCLUSION. . . 2. 2. 1. we ee ee ee ee ee ee eee ee ew ee 28

iii

INDEX OF APPENDICES

APPENDIX A: The order of the Circuit Court of the Seventh Judicial

Circuit denying the Second Successive Motion to Vacate Judgment of

Conviction and Sentence at issue. (Unreported).

APPENDIX B: The opinion of the Supreme Court of Florida following

appeal of the denial of Petitioner’s Second Successive Motion to

Vacate. Gaskin v. State, 237 So.3d 928 (Fla. 2018)

APPENDIX C: The opinion of the Supreme Court of Florida following

direct appeal of Petitioner’s judgment and sentence of death.

Gaskin v. State, 591 So.2d 917 (Fla. 1991).

APPENDIX D: The opinion of the Supreme Court of Florida following

remand from this Court. Gaskin v. State, 615 So.2d 679 (Fla. 1993).

APPENDIX E: The opinion of the Supreme Court of Florida following

appeal of the denial of Petitioner’s first successive

postconviction motion. Gaskin v. State, 218 So.3d 399 (Fla. 2017),

reh'g denied, No. SC15-1884, 2017 WL 2210388 (Fla. May 17, 2017);

cert denied Gaskin v. Florida, 138 S.Ct. 471 (2017).

APPENDIX F: The order of the Circuit Court of the Seventh Judicial

Circuit denying Petitioner’s First Successive Motion to Vacate

Judgment of Conviction and Sentence. (Unreported).

APPENDIX G: Corrected Judgment and Sentence Vacating the Death

Penalty Imposed In Counts II and IV of the Indictment and the

Adjudication of Guilt in Said Counts. (Unreported).

lv

Armstrong v. State,

211 So.3d 864

Armstrong v. State,

862 So.2d 705

Armstrong v. State,

642 So.2d 730

Asay v. State,

TABLE OF AUTHORITIES

(Fla. 2017)

(2003)

(Fla. 1994

210 So.3d 1 (Fla. 2016).

Beard v. Banks,

542 U.S. 406 (2004).

Espinosa v. Florida,

505

U.S. 1079, 112 S.Ct. 2926 (1992)

U.S. 925, 114 S.Ct. 328 (1993).

U.S. 1216, 112 S.Ct. 3022(1992).

So.3d 928 (Fla. 2018).

So.3d 399, 400 (Fla. 2017)

So.2d 679 (Fla. 1993)

Furman v. Georgia,

408 U.S. 238 (1972).

Gaskin v. Florida,

138 S.Ct. 471(2017).

Gaskin v. Florida,

510

Gaskin v. Florida,

505

Gaskin v. State,

237

Gaskin v. State,

218

Gaskin v. State,

615

Gaskin v. State,

591

So.2d 917 (Fla. 1991).

Godfrey v. Georgia,

446

U.S. 420 (1980).

25

25

295

18-19

21

20

20

Hildwin v. Florida,

490 U.S. 638 (1988).

Hitchcock v. State,

226 So.3d 216 (Fla. 2017)

Hurst v. Florida,

136 S.Ct. 616 (2016) ......... 2.2... 2.2... .5,

Hurst v. State,

202 So.3d 40 (Fla. 2016). ..... 2... .. . 4... .5,

James v. State,

615 So.2d 668 (Fla. 1993). .......2.2.+2.2.2.2. 2. .8,

Johnson v. State,

904 So.2d 400 (Fla. 2005).

Johnson v. Mississippi,

486 U.S. 578 (1988).

Kennedy v. Louisiana,

554 U.S. 407 (2008).

Linkletter v. Walker,

381 U.S. 618 (1965)

Mosley v. State,

209 So.3d 1248 (Fla. 2016). ......2.2.2.2. 2... .14,

Ring v. Arizona,

536 U.S. 584,122 S.Ct. 2428 (2002).

Perry v. State,

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

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535, 62 S.Ct. 1110 (1942). ....... 2. =. .20,

Spaziano v. Florida,

468 U.S. 447 (1984).

Teague v. Lane,’

489 U.S. 288 (1989).

Witt v. State,

vi

ii

19

13

14

19

20

20

21

19

10

13

21

ii

21

387 So.2d 922

Yick Wo v. Hopkins,

118 U.S. 356,

STATUTES AND RULES

28 U.S.C. 1257 .

(Fla.

6S.

1980).

Ct. 1064

(1886).

vil

14

20

PETITION FOR WRIT OF CERTIORARI

Louis B. Gaskin respectfully petitions for a writ of

certiorari to review a judgment of the Supreme Court of Florida.

OPINIONS AND ORDERS BELOW

The unreported order of the Circuit Court, in and for, Flagler

County, Florida, denying Mr. Gaskin’s second successive

postconviction motion filed under Florida Rule of Criminal

Procedure 3.851 appears at Appendix A.

The opinion of the Supreme Court of Florida following the

appeal of the trial court’s denial of Mr. Gaskin’s postconviction

motion filed January 10, 2017 appears at Appendix B and is reported

as Gaskin v. State, 237 So.3d 928 (Fla. 2018)

The opinion of the Supreme Court of Florida following direct

appeal of Petitioner’s judgment and sentence of death appears at

Appendix C to the petition and is reported at Gaskin v. State, 591

So.2d 917 (Fla. 1991).

The opinion of the Supreme Court of Florida following appeal

after remand from this Court (Gaskin v. Florida, 505 U.S. 1216,

112 S.Ct. 3022, 120 L.Ed.2d 894 (1992)) appears at Appendix D to

the petition and is reported at Gaskin v. State, 615 So.2d 679

(Fla. 1993).

The opinion of the Supreme Court of Florida following appeal

of the denial of Petitioner’s first successive postconviction

motion appears at Appendix E to the petition and is reported at

1

Gaskin v. State, 218 So.3d 399, 400 (Fla. 2017), reh'g denied, No.

SC15-1884, 2017 WL 2210388 (Fla. May 17, 2017) cert denied Gaskin

v. Florida, 138 S.Ct. 471 (2017).

The unreported order of the Circuit Court of the Seventh

Judicial Circuit denying Petitioner’s First Successive Motion to

Vacate Judgment of Conviction and Sentence appears at Appendix F.

The unreported Corrected Judgment and Sentence Vacating the

Death Penalty Imposed in Counts II and IV of the Indictment and

the Adjudication of Guilt in Said Counts appears at Appendix G.

JURISDICTION

The Florida Supreme Court’s final judgment was entered on

February 28, 2018. Mr. Gaskin did not seek rehearing. Mr. Gaskin

filed a motion for a 60 day extension of time which the Honorable

Justice Clarence Thomas granted, which extended the time for filing

until July 28, 2018. The Jurisdiction of this Court is invoked

under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

The Eighth Amendment to the United States Constitution

states:

Excessive bail shall not be reguired, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution,

Section 1 states:

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.

STATEMENT OF THE CASE

1. Case History

Following trial, a jury found Mr. Gaskin guilty of two counts

of first-degree murder in the death of Robert Sturmfels

(premeditated and felony murder); two counts of first-degree

murder in the death of Georgette Sturmfels (premeditated and firstdegree murder); one count of armed robbery of the Sturmfels; one

count of burglary of the Sturmfels' home; one count of attempted

first-degree murder of Joseph Rector; one count of armed robbery

of the Rectors; and one count of burglary of the Rector's home.

The jury found Mr. Gaskin not guilty of attempted first-degree

murder of Mary Rector. (Vol. VII R. 1285 1294).

Following the jury’s guilty verdict, Mr. Gaskin did not have

a jury for penalty phase, just an advisory panel. The State argued:

First, that Louis Bernard Gaskin has previously been

convicted of another capital felony or ae felony

involving the use or the threat of violence against

another person.

In this particular case, and, as is allowed under and

the Law, the very acts which have brought him into this

Courtroom are the acts evincing that previous violence.

In other words, the fact that the violence and the

murders and the burglaries and, the robberies are all

occurring within the same set of circumstances does not

disqualify them for consideration.

If they did, Your Honor would not instruct you that it

is appropriate for you to consider them as aggravation.

I do not need to review with you the numerous charges.

You have heard the evidence and delivered a verdict,

really just a short time ago, but there is more than

sufficient previous convictions, as, His Honor, had

adjudicated guilt in this case on those nine verdicts of

prior felonious assaults, crimes.

(Transcript of June 18, 1990 Penalty Phase).

The advisory panel recommended death, by a vote of eight to

four based on each victim, not each capital offense. The trial

court instructed the advisory panel on the aggravating factor that

Mr. Gaskin “had been previously convicted of another capital

offense or a felony involving the use or threat of violence to

some person[.]” (Vol. VIII R.1297).

The advisory panel’s recommendation was without any findings

of fact, or anything approximating the constitutional requirements

of Hurst v. Florida, 136 S.Ct. 616 (2016) and or the Florida

Supreme Court’s decision in Hurst v. State, 202 So.3d 40 (Fla.

2016). The court made the findings of fact that subjected Mr.

Gaskin to the death penalty, and sentenced him to death for Counts

I-IV and sentenced him to death on those counts. See (Vol. VIII R.

1303 referencing the judgments and sentences that followed, R.

1311-24).

The trial court based the death sentence for the murder of

Robert Sturmfels on the felony murder and premeditated murder of

Georgette Sturmfels and the other charges Mr. Gaskin was convicted.

(Vol. VIII R. 1313). The trial court based the death sentence for

the murder of Georgette Sturmfels on the felony murder and

premeditated murder of Robert Sturmfels and the other charges Mr.

Gaskin was convicted. (Vol. VIII R. 1320).

Mr. Gaskin appealed to the Florida Supreme Court. The court

vacated the two felony murder convictions, affirmed the other

convictions and sentences, “including two [remaining] sentences of

death” and remanded for proceedings consistent with the Court’s

opinion. Gaskin v. State, 591 So.2d 917, 922 (Fla. 1991), cert.

granted, judgment vacated, 505 U.S. 1216, 112 S. Ct. 3022, 120 L.

Ed. 2d 894 (1992). The Florida Supreme Court’s mandate issued on

January 6, 1991. No proceedings consistent with the Florida Supreme

Court’s opinion were held until 2014, well beyond 2002.

On June 29, 1992, this Court granted certiorari review,

vacated the judgment, and remanded the case to the Florida Supreme

Court for reconsideration in light of Espinosa v. Florida, 505

U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Gaskin v.

Florida, 505 U.S. 1216, 112 S.Ct. 3022, 120 L.Ed.2d 894 (1992).

On remand, the Florida Supreme Court affirmed Mr. Gaskin's

two sentences based on a finding that the vagueness challenge to

the heinous, atrocious or cruel jury instruction (Espinosa error)

was not properly preserved for appellate review. Gaskin v. State,

615 So.2d 679 (Fla. 1993). The court did not remand for the trial

court to vacate the two felony murder convictions or resentencing.

This Court denied certiorari. Gaskin v. Florida, 510 U.S. 925, 114

S.Ct. 328 (1993). At this time the Florida Supreme Court’s order

for remand should have resumed yet counsel continued to seek relief

in state and federal court and was denied relief.

On August 12, 2014, some 23 years after the mandate issued in

Gaskin v. State, 591 So.2d 917 (Fla. 1991), the lower court vacated

the felony murder adjudications as ordered by the Florida Supreme

Court as the court had mandated earlier. (PC2. R. 56-57). Mr.

Gaskin had no attorney to represent him at the time that the lower

court issued the order. Mr. Gaskin filed a pro se motion for

rehearing. The court granted the State’s “Motion to Strike

Unauthorized Pro Se Pleading, Defendant’s Motion for Rehearing” on

November 18, 2014.

Mr. Gaskin filed a pro se notice of appeal, appealing to the

Fifth Circuit Court of Appeal for Florida. (PC2 R. 79-80).

Following receipt of an order from the circuit court, the district

court dismissed the appeal, according to the Clerk of the Fifth

District Court of Appeals Case Docket.

On May 6, 2015, Mr. Gaskin filed his First Successive Motion

to Vacate Judgement of Conviction and Sentence, alleging that the

use of both premeditated murder and felony murder as aggravating

circumstances amounted to improper doubling of aggravators by the

advisory panel, sentencing judge, and the Florida Supreme Court.

(PC2. 95-102). On August 6, 2015 the lower court denied the

successive motion. (PC2. 133-135).

Mr. Gaskin appealed to the Florida Supreme Court. Mr. Gaskin

filed his initial brief after certiorari was granted in Hurst v.

Florida but prior to the court issuing an appellate decision in

Mr. Gaskin’s case. The reply brief was filed on January 12, 2016,

the same date that this Court issued Hurst. The Florida Supreme

Court affirmed the lower court’s denial and went on to deny relief

based on Hurst v. Florida without briefing or oral argument. Gaskin

v. State, 218 So. 3d 399 (Fla.), reh'g denied, No. SC15-1884, 2017

WL 2210388 (Fla. May 17, 2017), and cert. denied sub nom. Gaskin

v. Fla., 138 S. Ct. 471, 199 L. Ed. 2d 362 (2017).

Justice Lewis dissented without an opinion. Id. at 401.

Justice Pariente dissented finding that, “Even without a finding

a full retroactivity, under Justice Lewis's concurring in result

opinion in Asay, Hurst would apply retroactively to Gaskin under

James v. State, 615 So.2d 668 (Fla. 1993), because Gaskin asserted,

presented, and preserved a challenge to the lack of jury

factfinding in Florida's capital sentencing procedure.” Id. at

402. Justice Pariente found that the error was not harmless. Id.

at 403. Justice Perry dissented and would have found that Hurst

was retroactive regardless of whether a sentence was final before

Ring. Id. at 404-405.

Prior to the Florida Supreme Court’s opinion, on January 10,

2017, Mr. Gaskin filed a successive postconviction motion based on

Hurst and Hurst v. State. Once Mr. Gaskin had a properly filed

motion that complied with any possible time limits, he filed a

motion for the court to relinquish jurisdiction so that he could

exhaust his Hurst and related claims in the lower court. In the

alternative, the motion asked for supplemental briefing. The

Florida Supreme Court denied this motion as moot.

Mr. Gaskin’s January 10, 2017 Hurst related postconviction

motion was denied by the lower court. Mr. Gaskin appealed the

denial to the Florida Supreme Court. On December 19, 2017, the

Florida Supreme Court required Mr. Gaskin to “show cause [ ], why

the trial court’s order should not be affirmed in light of [the

Florida Supreme] Court’s decision Hitchcock v. State, SC17-445.”

The Florida Supreme Court denied Mr. Gaskin appellate briefing on

the Hurst and Hurst related claims the lower court denied. On

February 28, 2018, the Florida Supreme Court affirmed the lower

court’s denial of postconviction relief. Gaskin v. State, 237

So.3d 928 (Fla. 2018). The court did not address Mr. Gaskin’s

argument that his case became final in 2014, not in 1993 when this

Court denied certiorari, and relied on its prior decision in Gaskin

v. State, 218 So.3d 399, 491 (2017). See Id. at 929.

Justice Pariente concurred because the Florida Supreme

Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017),

cert. denied, 138 S.Ct. 513 (2017) had become final. Nevertheless,

Justice Pariente “continue[d] to adhere to the views expressed in

[Justice Pariente’s] dissenting opinion in Hitchcock. Id. at 929.

2. The Florida Supreme Court’s Decisions Following Hurst V.

Florida.

The Florida Supreme Court has only allowed for limited

retroactive application of this Court’s decision in Hurst v.

Florida, and its own decision in Hurst v. State, despite finding

that under Florida’s death penalty scheme unanimous jury verdicts

are required to meet the demands of the Florida Constitution and

the Eighth Amendment. The Florida Supreme Court drew a line based

on the date each individual case became final in relation to the

date this Court issued Ring v. Arizona, 536 U.S. 584, 122 8.Ct.

2428 (2002).

In Ring, this Court held that “[c]apital defendants, no less

than mnon-capital defendants . . . are entitled to a jury

determination of any fact on which the legislature conditions an

increase in their maximum punishment.” Id. at 589, 2432. In Hurst

v. Florida, 136 S. Ct. 616 (2016), this Court stated the crux of

Ring, that:

“*the required finding of an aggravated circumstance

exposed Ring to a greater punishment than that

authorized by the jury’s guilty verdict.’” Had Ring’s

judge not engaged in any factfinding, Ring would have

received a life sentence. Ring’s death sentence

therefore violated his right to have a jury find the

facts behind his punishment.

Hurst, 136 S.Ct. at 621. (Internal citations omitted). This Court

applied Ring directly to Florida’s death penalty system, overruled

Spaziano and Hildwin, and found:

The analysis the Ring Court applied to Arizona’s

sentencing scheme applies equally to Florida’s. Like

Arizona at the time of Ring, Florida does not require

10

the jury to make the critical findings necessary to

impose the death penalty. Rather, Florida requires a

judge to find these facts. Fla. Stat. § 921.141(3).

Although Florida incorporates an advisory jury verdict

that Arizona lacked, we have previously made clear that

this distinction is immaterial: “It is true that in

Florida the jury recommends a sentence, but it does not

make specific factual findings with regard to the

existence of mitigating or aggravating circumstances and

its recommendation is not binding on the trial judge. A

Florida trial court no more has the assistance of a

jury’s findings of fact with respect to sentencing

issues than does a trial judge in Arizona.” Walton v.

Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d

511 (1990); accord, State v. Steele, 921 So.2d 538, 546

(Fla.2005) (“[T]he trial court alone must make detailed

findings about the existence and weight of aggravating

Circumstances; it has no jury findings on which to

rely”).

As with Timothy Ring, the maximum punishment Timothy

Hurst could have received without any judge-made

findings was life in prison without parole. As with Ring,

a judge increased Hurst’s authorized punishment based on

her own factfinding. In light of Ring, we hold that

Hurst’s sentence violates the Sixth Amendment.

Id. at 621-22.

On remand, a majority of the Florida Supreme Court applied

this Court's decision in Hurst to Florida’s death penalty system

and held,

that [this] Court's decision in Hurst v. Florida

reguires that all the critical findings necessary before

the trial court may consider imposing a sentence of death

must be found unanimously by the jury. We reach this

holding based on the mandate of Hurst v. Florida and on

Florida's constitutional right to jury trial, considered

in conjunction with our precedent concerning the

requirement of jury unanimity as to the elements of a

criminal offense. In capital cases in Florida, these

specific findings required to be made by the jury include

the existence of each aggravating factor that has been

proven beyond a reasonable doubt, the finding that the

11

aggravating factors are sufficient, and the finding that

the aggravating factors outweigh the mitigating

circumstances. We also hold, based on Florida's

requirement for unanimity in jury verdicts, and under

the Eighth Amendment to the United States Constitution,

that in order for the trial court to impose a sentence

of death, the jury's recommended sentence of death must

be unanimous.

Hurst v. State, 202 So.3d at 44. The court found that the right to

a jury trial found in the United States Constitution required that

all factual findings be made by the jury unanimously under the

Florida Constitution and that the Eighth Amendment’s evolving

standards of decency and bar on arbitrary and capricious imposition

of the death penalty require a unanimous jury fact-finding:

[T]he the foundational precept of the Eighth Amendment

calls for unanimity in any death recommendation that

results in a sentence of death. That foundational

precept is the principle that death is different. This

means that the penalty may not be arbitrarily imposed,

but must be reserved only for defendants convicted of

the most aggravated and least mitigated of murders.

Accordingly, any capital sentencing law must adequately

perform a narrowing function in order to ensure that the

death penalty is not being arbitrarily or capriciously

imposed. See Gregg, 428 U.S. at 199, 96 S.Ct. 2909. The

Supreme Court subsequently explained in McCleskey v.

Kemp that “the Court has imposed a number of requirements

on the capital sentencing process to ensure that capital

sentencing decisions rest on the individualized inquiry

contemplated in Gregg.” McCleskey v. Kemp, 481 U.S. 279,

303, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). This

individualized sentencing implements the required

narrowing function that also ensures that the death

penalty is reserved for the most culpable of murderers

and for the most aggravated of murders. If death is to

be imposed, unanimous jury sentencing recommendations,

when made in conjunction with the other critical

findings unanimously found by the jury, provide the

highest degree of reliability in meeting these

12

constitutional requirements in the capital sentencing

process.

Hurst v. State, 202 So.3d 40, 59-60 (Fla. 2016). The court cited

to Eighth Amendment concerns finding that, “in addition to

unanimously finding the existence of any aggravating factor, the

jury must also unanimously find that the aggravating factors are

sufficient for the imposition of death and unanimously find that

the aggravating factors outweigh the mitigation before a sentence

of death may be considered by the judge.” Id. at 54. (Emphasis in

original). “In addition to the requirements of unanimity that flow

from the Sixth Amendment and from Florida’s right to a trial by

jury, we conclude that juror unanimity in any recommended verdict

resulting in death sentence is required under the Eighth

Amendment.” Id. at 59.

In Perry v. State, 210 So.3d 630 (Fla. 2016) a majority of

the Florida Supreme Court found Florida's first post-Hurst

revision of the death penalty statute was unconstitutional and

found:

In addressing the second certified question of whether

the Act may be applied to pending prosecutions, we

necessarily review the constitutionality of the Act in

light of our opinion in Hurst. In that opinion, we held

that as a result of the longstanding adherence to

unanimity in criminal jury trials in Florida, the right

to a jury trial set forth in article I, section 22 of

the Florida Constitution requires that in cases in which

the penalty phase jury is not waived, the findings

necessary to increase the penalty from a mandatory life

sentence to death must be found beyond a reasonable doubt

by a unanimous jury. Hurst, 202 So.3d at 44-45. Those

13

findings specifically include unanimity as to all

aggravating factors to be considered, unanimity that

sufficient aggravating factors exist for the imposition

of the death penalty, unanimity that the aggravating

factors outweigh the mitigating circumstances, and

unanimity in the final jury recommendation for death.

Id. at 53-54, 59-60.

Id. at 633.

When addressing the question of retroactivity of Hurst v.

Florida and its own decision in Hurst v. State, a majority found

that Hurst v. Florida applies retroactively to cases that became

final after Ring v. Arizona but not before. In Mosley v. State,

209 So.3d 1248, 1275 (Fla. 2016), the majority found that Hurst

and Hurst v. State applied retroactively to cases which became

final after Ring v. Arizona was issued. The majority analyzed

retroactivity under the fundamental fairness approach of James v.

State, 615 So.2d 668 (Fla. 1993) and the approach of Witt v. State,

387 So.2d 922, 926 (Fla. 1980).

The majority found that Mosley was entitled to retroactive

application of Hurst v. Florida and Hurst v. State under the

fundamental fairness approach of James “because Mosley raised a

Ring claim at his first opportunity and was then rejected at every

turn. . ..” Id. at 1275.

The majority also found Hurst v. Florida and Hurst v. State

retroactive to Mr. Mosley’s case under Florida’s Witt standard.

Id. at 1276. The Witt standard grants retroactive application of

changes in the law if,

14

“

.the change: (a) emanates from this Court or the

United States Supreme Court, (b) is constitutional in

nature, and (c) constitutes a development of fundamental

Significance.” Witt, 387 So.2d at 931. Determining the

retroactivity of a holding “regquirfes] that [thl[e]

Florida Supreme] Court] resolve a conflict between two

important goals of the criminal justice system—ensuring

finality of decisions on the one hand, and ensuring

fairness and uniformity in individual cases on the

other-within the context of post-conviction relief from

a sentence of death.” Id. at 924-25. Put simply,

balancing fairness versus finality is the essence of a

Witt retroactivity analysis. See id. at 925.

Id. The majority decided that the first two prongs were met because

Hurst v. State and Hurst v. Florida emanated from this Court and

the Florida Supreme Court and were constitutional in nature. Id.

The third prong required the majority to decide whether the change

in the law was a development of fundamental significance. As the

majority explained,

To be a “development of fundamental significance,” the

change in law must “place beyond the authority of the

state the power to regulate certain conduct or impose

certain penalties,” or alternatively, be “of sufficient

magnitude to necessitate retroactive application as

ascertained by the three-fold test of Stovall and

Linkletter.” Id. at 929. We conclude that Hurst v.

Florida, as interpreted by this Court in Hurst, falls

within the category of cases that are of “sufficient

Magnitude to necessitate retroactive application as

ascertained by the three-fold test” from Stovalll4 and

Linkletter, which we address below. Id.

The three-fold test of Stovall and Linkletter requires

courts to analyze three factors: (a) the purpose to be

served by the rule, (b) the extent of reliance on the

prior rule, and (c) the effect that retroactive

application of the new rule would have on _ the

administration of justice. Witt, 387 So.2d at 926;

Johnson, 904 So.2d at 408.

15

Id. at 1276-77.

The majority found the threefold test of Stovall and

Linkletter was met. Id. at 1277. The majority declared that the

purpose of the new rule announced in Hurst v. Florida is,

to ensure that capital defendants’ foundational right to

a trial by jury-the only right protected in both the

body of the United States Constitution and the Bill of

Rights and then, independently, in the Florida

Constitution—under article I, section 22, of the Florida

Constitution and the Sixth Amendment to the United

States Constitution-is preserved within Florida’s

capital sentencing scheme. See Hurst, 202 So.3d at 5/7.

Id. The majority concluded,

Thus, because Hurst v. Florida held our capital

sentencing statute unconstitutional under the Sixth

Amendment to the United States Constitution, and Hurst

further emphasized the critical importance of a

unanimous verdict within Florida’s independent

constitutional right to trial by jury under article I,

section 22, of the Florida Constitution, the purpose of

these holdings weighs heavily in favor of retroactive

application.

Id. at 1278. The majority found that, as far as post-Ring cases

were concerned, “fairness strongly favors applying Hurst

retroactively to” the time that Ring was issued. Id. at 1280. The

majority found that, “From Hurst [v. State], it is undeniable that

Hurst v. Florida changed the calculus of the constitutionality of

capital sentencing in this State. Thus, this factor weighs in favor

of granting retroactive relief to the point of the issuance of

Ring. Id. at 1280.

Lastly, the majority found that the effect on _ the

16

administration of justice would not be so great as to deny

retroactive application to the post-Ring cases. Id. at 1281. The

majority considered that:

Of course, any decision to give retroactive effect to a

newly announced rule of law will have some impact on the

administration of justice. That is not the inquiry.

Rather, the inquiry is whether holding a decision

retroactive would have the effect of burdening “the

judicial machinery of our state, fiscally and

intellectually, beyond any tolerable limit.” Witt, 387

So.2d at 929-30. By embracing this principle as an

analytical lynchpin, together with the other two prongs

of the three-part test, the Court was attempting to

distinguish between “jurisprudential upheavals” and

“evolutionary refinements,” the former being those that

justify retroactive application and the latter being

those that do not.

Id. at 1281-82. The Court found that it did not so burden the

administration of justice because,

capital punishment “connotes special concern for

individual fairness because of the possible imposition

of a penalty as unredeeming as death.” Witt, 387 So.2d

at 926. In this case, where the rule announced is of

such fundamental importance, the interests of fairness

and ‘cur[ing] individual injustice’ compel retroactive

application of Hurst despite the impact it will have on

the administration of justice. State v. Glenn, 558 So.2d

4, 8 (Fla. 1990).

Id. at 1282.

While this decision was correct, and fair, it was not based

on anything about the nature of the crime or Mr. Mosley’s

mitigation. Certainly, relief was appropriate, but the majority’s

basing the decision on the finality date of Mr. Mosley’s case had

no relation to the actual wrongfulness of the constitutional

17

violations it remedied, the nature of Mr. Mosley’s case or the

actual functioning of Florida’s death penalty scheme.

The Florida Supreme Court considered retroactivity of Hurst

v. Florida for pre-Ring cases and came to an entirely different

conclusion in Asay v. State, 210 So.3d 1, 15 (Fla. 2016). The

majority found that Hurst v. Florida did not apply retroactively

to allow relief for Mr. Asay under just the Sixth Amendment.

In Asay, the majority held:

After weighing all three of the above factors, we

conclude that Hurst should not be applied retroactively

to Asay’s case, in which the death sentence became final

before the issuance of Ring. We limit our holding to

this context because the balance of factors may change

Significantly for cases decided after the United States

Supreme Court decided Ring. When considering the three

factors of the Stovall/Linkletter test together, we

conclude that they weigh against applying dHurst

retroactively to all death case litigation in Florida.

Accordingly, we deny Asay relief.

Id. at 22. The majority found that the first prong of the

Stovall/Linkletter test, the “purpose of the new rule” weighed in

Mr. Asay’s favor. The majority discussed that the importance of

the right to a jury trial under the United States and Florida

Constitutions which “thle Florida Supreme] Court has taken care to

ensure all necessary constitutional protections are in place

before one forfeits his or her life[ ].” Id. at 18. The majority

found that the reliance on the old rule weighed “against

retroactive application of Hurst v. Florida” to Mr. Asay’s pre-

Ring case. Id. at 19. The majority found this Court had previously

18

relied upon Supreme Court precedent and the breadth of the Court’s

prior reliance.

Lastly, the majority considered the “Effect on the

Administration of Justice.” The majority recognized that the

Florida Supreme Court’s prior analysis of the retroactivity of

Ring under the first prong of Witt “was impacted by an incorrect

understanding of the Sixth Amendment claim .. ..” The majority

found that the Court’s conclusion in Johnson v. State, 904 So.2d

400, 412 (Fla. 2005) that “to apply Ring retroactively in Florida

would .. . ‘would consume immense judicial resources without any

corresponding benefit to the accuracy or reliability of penalty

phase proceedings’” was correct. Id. at 22; citing Johnson at 412.

REASONS FOR GRANTING THE WRIT

THE FLORIDA SUPREME COURT’S DENIAL OF RETROACTIVE APPLICATION OF

HURST V. FLORIDA AND RETROACTIVE APPLICATION OF THE CASES THAT

FOLLOWED PURSUANT TO SUCH PRECEDENT WAS UNCONSTITUTIONAL AND

PREJUDICED GASKIN WHOSE SENTENCES OF DEATH ARE UNRELIABLE AND ARE

BASED ON FACTS NOT FOUND BY THE JURY AND DID NOT BECOME FINAL UNTIL

AFTER 2014.

The Florida Supreme Court’s denial of retroactive relief

under Hurst v. Florida, 136 S.Ct. 616 (2016), on the ground that

Mr. Gaskin’s death sentence became final before June 24, 2002 under

the decisions in Asay v. State, 210 So.3d 1 (Fla. 2016) was

incorrect. Granting retroactive Hurst relief to inmates whose

death sentences had not become final on June 24, 2002 under the

decision in Mosley v. State, 209 So.3d 1248 (Fla. 2016), violated

19

Mr. Gaskin’ right to Equal Protection of the Laws under the

Fourteenth Amendment to the Constitution of the United States

(e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535 (1942)) and his right against

arbitrary infliction of the punishment of death under the Eighth

Amendment to the Constitution of the United States (e.g., Godfrey

v. Georgia, 446 U.S. 420 (1980); Espinosa v. Florida, 505 U.S.

1079 (1992) (per curiam))and Johnson v. Mississippi, 486 U.S. 578,

584-585, 587 (1988). Furthermore, the Florida Court’s position is

inaccurate as Mr. Gaskin’s case became final in 2014. Denial of

such relief violates Hurst v. Florida.

This case arises at the intersection of two principles that

have become central fixtures of the Court’s jurisprudence over the

past four anda half decades:

The first principle, emanating from Furman v. Georgia, 408

U.S. 238 (1972), and Godfrey v. Georgia, 446 U.S. 420 (1980), is

that “if a State wishes to authorize capital punishment it has a

constitutional responsibility to tailor and apply its law in a

manner that avoids the arbitrary and capricious infliction of the

death penalty” (id. at 428). This principle “insist[s] upon

general rules that ensure consistency in determining who receives

a death sentence.” Kennedy v. Louisiana, 554 U.S. 407, 436 (2008).

The Eighth Amendment’s concern against capriciousness in capital

cases refines the older, settled precept that Equal Protection of

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the Laws is denied “[{w]hen the law lays an unequal hand on those

who have committed intrinsically the same quality of offense and

[subjects] one and not the other” to a uniquely harsh form

of punishment. Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942).

The second principle, originating in Linkletter v. Walker,

381 U.S. 618 (1965), and later refined in Teague v. Lane, 489 U.S.

288 (1989) recognizes the pragmatic necessity for the Court to

evolve constitutional protections prospectively without undue cost

to the finality of preexisting judgments. This need has driven

acceptance of various rules of non-retroactivity, all of which

necessarily accept the level of arbitrariness that is inherent in

the drawing of temporal lines.

The Court has struck a balance between the two principles by

honoring the second even when its application results in the

execution of an inmate whose death sentence became final before

the date of an authoritative ruling establishing that the

procedures used in his or her case were constitutionally defective.

E.g., Beard v. Banks, 542 U.S. 406 (2004). If nothing more were

involved here, that balance would be decisive. But the Florida

Supreme Court’s post-Hurst retroactivity rulings do involve more.

They inaugurate a kind and degree of capriciousness that far

exceeds the level justified by normal non-retroactivity

Jurisprudence.

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The particular application of non-retroactivity resulting

from the Florida Supreme Court’s Mosley-Asay divide involves a

level of caprice that runs far beyond that tolerated by standardfare Linkletter and Teague rulings. Mr. Gaskin’s case is precisely

the type of case in which relief makes the most sense is and the

denial of relief irremediably perverse. Even more perverse is that

Gaskin’s case was remanded back to the trial court for proceeding

consistent with the Florida Supreme Court opinion in 1991. As a

direct result of such the Florida Supreme Court’s denial of

retroactive application of the Hurst cases and Mosley, the decision

in Mr. Gaskin's case was unconstitutional, prejudicial,

fundamentally unreliable and harmful. This Court should grant

certiorari and consider whether Mr. Gaskin’s case rises to a degree

of capriciousness and inequality that violates the Eighth

Amendment and Equal Protection respectively.

The Florida Supreme Court has only held this Court’s decision

in Hurst v. Florida, and its own decision in Hurst v. State,

retroactive to cases that became final after Ring v. Arizona.

Following Mr. Gaskin’s direct appeal of his judgment and

sentence this Court granted certiorari and remanded the case to

the Florida Supreme Court for reconsideration in light of Espinosa

v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992).

Gaskin v. Florida, 505 U.S. 1216, 112 S.Ct. 3022, 120 L.Ed.2d 894

(1992). On remand, the Florida Supreme Court found that the

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