Opposition Brief — Louis B. Gaskin, Petitioner v. Florida

CASE NO. 18-5415

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 SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

PAMELA JO BONDI

ATTORNEY GENERAL OF FLORIDA

CAROLYN SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Lisa Martin

Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

carolyn.snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

COUNSEL FOR RESPONDENT

[Capital Case]

QUESTION PRESENTED FOR REVIEW

Whether this Court should grant certiorari review where the retroactive

application of Hurst v. Florida, 136 8. Ct. 616 (2016) and Hurst v.

State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017) is

based on adequate independent state grounds and the issue presents no

conflict between the decisions of other state courts of last resort or

federal courts of appeal, does not conflict with this Court’s precedent,

and does not otherwise raise an important federal question?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.........ccccsssssssscssessessecsscssessscssesesseseessscseees i

TABLE OF CONTENTS 100... eescssecscessescsseecsesssscessessneaeestecsessesseseeussccsessasessease ii

TABLE OF CITATIONS 00.00. ecescceseesseeceesssecsecsseeesesssseseeeseecseenevsesusessaussssssseases ii

CITATION TO OPINION BELOW . 00... .ccccecsssccsssssssssessssseesseseusseceessassnssessssssseseass 1

JURISDICTION 0.0... ecesesceceseeeseesseeseeseseseesesscecessssesseseeseesseseenerssecaussasenssaussseesenavass 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... f

STATEMENT OF THE CASE .......ccccessssscsssssssesssssecssceeecsscssescsscceussuassaussscsessancaseenss 1

REASONS FOR DENYING THE WRIT ........cccscccsssssessescessseseesssssessscsssssssseseceaseee 7

Certiorari review should be denied because the Florida Supreme

Court’s ruling on the retroactivity of Hurst relies on state law to provide

that the Hurst cases are not retroactive to defendants whose death

sentences were final when this Court decided Ring v. Arizona, and the

court’s ruling does not violate the Eighth or Fourteenth Amendments

and does not conflict with any decision of this Court or involve an

important, unsettled question of federal laW............scsccessssesssseesssessesssesesseanens 7

CONCLUSION ..0... ccececeeseeeecessceeeesceeeesseeseeseeseesaessceseeseessessneoseceeeseseeeseeseaseusnssasens 25

CERTIFICATE OF SERVICE... .ccccccsescsecsssetesseesseceesseceecsseseeseesusstessessessesneseneas 26

il

TABLE OF CITATIONS

Cases

Alleyne v. United States,

570 U.S. 99 (2013)... eceeccessseenceesseeseeesseeesaeensesssceesaeeesaecesssenseesseeeseeseseecesensenenensss 9

Anton v. State,

976 So. 2d 6 (Fla. 2d DCA 2008).........cceessccssessseeesteesssesscessseseceesessssssscscsaseesees 23

Apprendi v. New Jersey,

530 U.S. 466 (2000)... eeessscssecesssceecsesesesevsssseesseeesscessesseesesseecsseesosses passim

Armstrong v. State,

211 So. 3d 864 (Fla. 2017)... cece csesccsesecescesesseesesnesseeseessnesaessessscatessseaseseesessnss 19

Armstrong v. State,

642 So. 2d 730 (Fla. 1994),

cert denied, 314 U.S. 1085 (1995)... cescssssesssssseesessseessecreseeeseresessetsetsceaecaes 19

Armstrong v. State,

73 So. 3d 155 (Fla. 2011),

cert denied, 567 U.S. 907 (2012)... .esccssccsssessscsssecssecssscesasecsscseeeenssecsseseneesenesons 19

Armstrong v. State,

862 So. 2d 705 (Fla. 2003).......ccceccsscscecscesscessessscsscsseccsseseesssecseeeseeeesesecneacsecesenes 19

Asay v. State,

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

cert. denied, 138 S. Ct. 41 (2017)... cecesccsssssccsecsesssesseecseseseeseseseesseeeseneass passim

Branch v. State,

234 So. 3d 548 (Fla.),

cert. denied, 138 S. Ct. 1164 (2018) 0... cessescssseeessecssseesscesssecsatessecenteeaceses 8, 16

Cardinale v. Louisiana,

394 U.S. 437 (1969)... cccsccessecsssccsssccsssseceseessesesseeeesseteesseesessecesssesssuseassesessseeecs 21

Cole v. State,

234 So. 3d 644 (Fla.),

cert. denied, 2018 WL 1876873 (June 18, 2018) ............cccssesssecessesseseccesssscesesones 8

ili

Danforth v. Minnesota,

552 U.S. 264 (2008)... cccsssccssccssseeessseceeeessstessseeseseeeussseesenseessnsusecsssscssseosaas 13

Eisenstadt v. Baird,

405 U.S. 438 (1972)... ccssscccsssscessnseccssccsusesseeesseeensseeesnacsecsseeesssescesssensnssccussesees 18

Ellerbee v. State,

87 So. 3d 730 (Fla. 2012)........ccccccssccssssessseesscecesssecsseecssessscecusevseesoneesecscessusaceans 14

Espinosa v. Florida,

505 U.S. 1079 (1992),

reh’g denied, 505 U.S. 1244 (1992) oo... ccsccsssecsssessscsssesssccesssessaeesssceteneseecsssenseesees 4

Fasenmyer v. State,

457 So. 2d 1361 (Fla. 1984)........cccccccssccsssccssscssssccsseccsseeeesssescessnscssussseeeasenenesnes 23

Florida v. Powell,

559 U.S. 50 (2010)... ccccccccccssssscccssssccesssssecsssseeecesseeesessueeessossesesscseaeasccuuasenaaeeees 21

Fox Film Corp. v. Muller,

296 U.S. 207 (1935)... cccsccccssscssscccssescsssceesseecessccssseesseeeeeseessseneeusseecssuessausesenss 21

Gaskin v. Florida,

510 U.S. 925 (1993)... eescccccsssscecsssnssecssseecesseesesssnecsessnseecsusenessnsreessseeseseueeseeses 4

Gaskin v. Secretary, Dept. of Corr.,

494 F.3d 997 (11th Cir. 2007) 0... eescssccenseesseessssssecssccsssecsssecsscesseeseseseeeseeesees 5

Gaskin v. State,

218 So. 3d 399 (Fla.),

cert denied, 138 S. Ct. 471 (2017).......ccccccccsssscssssesestecssceecsssecesseessseevens 4,5, 7, 24

Gaskin v. State,

237 So. 3d 928 (Fla. 2018).......cccsccssccsssecssessscessecesecsssecseeecsssesseesessseseeeees 1, 2, 6, 24

Gaskin v. State, ;

591 So. 2d 917 (Fla. 1991)... ecccsscsssscsssccsssesstcessseeseeseeesserecesseeesseseesees 3, 4, 22

Gaskin v. State,

615 So. 2d 679 (Fla. 1993)... cccscccssssecsstcnssseecsseesssseseseecseseeseeseeeesseseeseesesesees 4,7

Gaskin v. State,

822 So. 2d 1243 (Fla. 2002)...........cccccssssccsssssecesssecssssteecesssesesesseeeesessessecensesansenes 4

iv

Griffith v. Kentucky,

479 U.S. 314 (1987)... ccccccscssecsccescsseescesessssssessceseeseesesseeaesaccsssensesaeseessaeesessesesenes 16

Hannon v. State,

228 So. 3d 505 (Fla.),

cert. denied, 138 8. Ct. 441 (2017) .......cccssccssssessseecseteesecessseeeesseeessstseesseeeeees 8, 16

Hitchcock v. State,

226 So. 3d 216 (Fla.),

cert. denied, 138 S. Ct. 513 (2017)....cssssssccssesssssscscesessssessesscscessesssssscsecnens 6, 8, 16

Hughes v. State,

901 So. 2d 837 (Fla. 2005)...........cccccssssecsstesssscesssesesssceseeseeseeeeeseeecesseseseseesneessenes 19

Hurst v. Florida,

136 S. Ct. 616 (2016)... cccsssseceessnscecssssncesessnscsssseeesseeenssssnseeessseeeeeessaeees passim

Hurst v. State,

202 So. 3d 40 (Fla. 2016),

cert. denied, 137 S. Ct. 2161 (2017)... eee cecsessessseeeeceseeescesensetesneesseeseeeens passim

Jenkins v. Hutton,

137 S. Ct. 1769 (2017) ccc ccssccsssscsssccssscssscesscessecsssesssesssscsssessseseseseessesensecssessnenees 9

Johnson v. New Jersey,

384 U.S. 719 (1966)... ec cccesessessessecneeseseecaseeceesseeeceesseseseeseseessnesseeessresssessneess 13

Kaczmar v. State,

228 So. 3d 1 (Fla. 2017),

cert. denied, 138 S. Ct. 1973 (2018).........cccccsssccsscecssscsssecsseecssseeessssseseseeesaneesaees 8

Kansas v. Carr,

136 S. Ct. 633 (2016)... eecccceesesceetescceeteneneseesneceesaaeeessaaeeeessuneeesssnesssaceeseens 9

Lambrix v. Sec’y, Fla. Dept. of Corr.,

851 F.3d 1158 (11th Cir.),

cert. denied, 138 S. Ct. 217 (2017)... cece ecssscetsessceesecseccseeessessceseesseesnaeeessseneess 16

Lambrix v. Sec’y, Fla. Dept. of Corr.,

872 F.3d 1170 (11th Cir.),

cert. denied, 138 S. Ct. 312 (2017)... eecesccsesseeeseceseeeseeeeeseessaeeeseeesnneeaneneeeens 13

Lambrix v. State,

227 So. 3d 112 (Fla.),

cert. denied, 138 S. Ct. 312 (2017)....c.cccceccssccssstesssecessececsseeceseeessseeeenseusesnenes 8, 16

Lawrence v. Texas,

539 U.S. 558 (2003).......ccscscssscsessccsseeecsesssseeseeecssesseseeseesssssssessaeesssaeesaeecssseaeeengees 20

Lowenfield v. Phelps,

484 U.S. 231 (1988)... .ccccsccssssecsscccssecsseesssseseecseesssscssssesaessasesueeesaeesseeeessecseseaes 10

McCleskey v. Kemp,

481 U.S. 279 (1987)... cccccccsceccssecessseccseesesuecssseessaeeceaueesssecesaeeesseeeceseeeesseeseseesaes 20

McGirth v. State,

209 So. 3d 1146 (Fla. 2017)... ec ccesccsssccssscesscseccsseecssccsseeseesessecsseeesseeesensseensaes 11

Michigan v. Long,

463 U.S. 1032 (1983)... ccscccsstccessnnccssseccssscessseccseeeessnececseeeseteessesensseeeseaeneateses 21

Mosley v. State,

209 So. 3d 1248 (Fla. 2016)...........ccccscccssccsssesscecsseesstseseeesssesstesseeesseesaees 12, 14,17

Penry v. Lynaugh,

492 U.S. 302 (1989)... cccscssecssescescesssessseeescecssssesssesseeessesaueassesesuesseecesseesueesees 16

Rhoades v. State,

233 P.3d 61 (2010)... ..eccccccccssscssssecensseecsscessseeseaseessaeecessesesseessseesessneesesseseseeees 19

Ring v. Arizona,

536 U.S. 584 (2002)... ceececeesesescceeseceesenecsersseeeeeseseeesaeessessaeessaserseeteneeeegs passim

Roper v. Simmons,

543 ULS. 551 (2005)... ee cceesccecsnceeeescesesseeeesscessseeesesaesesceessceesseeesesaeeeeeeeeenseeesaes 11

Royster Guano Co. v. Virginia,

253 U.S. 412 (1920)... eeeceeesseeecsaceeessceneceessecesssecessaceessacessaesenaeeeesesessnseseneeses 18

Schriro v. Summerlin,

542 U.S. 348 (2004)... eceeecceseceesseeeseceeseeessecseeeesceeeaeesseecsecesaeessaaesereeseeeeees 13, 20

State v. Gales,

658 N.W.2d 604 (Neb. 2003) ........ccccescccsssccssscesssscesstescesessaeesesseeeseecseeeeseseesenses 11

vi

State v. Mason,

__N.E.3d ;

2018 WL 1872180 (Ohio Apr. 18, 2018) 0... eee cecsssesscsseessssssecseeesreseeeseeseenens 10

Teague v. Lane,

489 U.S. 288 (1989)... ccsccseceeecneesseeeseeneessneseesseessreeaeseseeseeseesaeesessenesaes 13, 16

United States v. Purkey,

428 F.3d 738 (8th Cir, 2005) ee eecesesscesseeseesseessenssccssesaeessesseesaeesseeseseeeseeones 10

United States v. Sampson,

486 F.3d 13 (1st Cir, 2007)... eeeeccescesseeseeseecseeseessssscessesecsseseeseeseseseessesesseeeees 10

Walker v. United States,

810 F.3d 568 (8th Cir. 2016) oo. eee eesscceeeescesesecsscessesnessessseseesssesseesssesseeseesaes 14

Walton v. Arizona, .

497 U.S. 639 (1990),

overruled by Ring, 536 U.S. 584 (2002)........sccscssessssseesscssscssssssccsessseseecseeseenees 17

Witt v. State,

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

Ybarra v. Filson,

869 F.3d 1016 (9th Cir. 2017)... cccsssccssssccsssecestecesseevscescssesccsseccsseuesseesecsees 16

Zack vy. State,

228 So. 3d 41 (Fla. 2017),

cert. denied, 2018 WL 1367892 (June 18, 2018) oo... eeececeescesseeeeeseessessessaeesaes 8

Other Authorities

§ 921.141(6), Fla. Stat. (2017) oo. eeceseceeesecsscessenssseesaeesseceseseseeeseesseseseeeesseessees 10

28 U.S.C. § 12578)... ceccesccesseseccsescesseceeeeeesseeesaeeeseesseeseeenenseenseesseeesaeesacessaessneseaseesees 1

Fla. R. Crim, P. 3.85] cece ceccessscseessecccsceesseesseeceeeseseesneeseessseessteeseessseecsssesseeseeesas 5

Fla. R. Crim. P. 3.85 1(G)(1)(B) once eeecsssesscseseceenecesseesseessaeccsecseeseneceeeseneeseeeseneeses 4

Sup. Ct. R. 10 vee ceccessscceesseeescneessneesseeessscasccseaascnseseseeseceeessaeeeseecenseessaeesessereeeeeeses 8

Vii

CITATION TO OPINION BELOW

The opinion of the Florida Supreme Court is reported at Gaskin v. State, 237

So. 3d 928 (Fla. 2018).

JURISDICTION

The judgment of the Florida Supreme Court was entered on January 31, 2018

and the mandate issued February 26, 2018. Petitioner invokes the jurisdiction of this

Court based upon 28 U.S.C. § 1257(a). Respondent agrees that this statutory

provision sets out the scope of this Court’s certiorari jurisdiction, but submits that

this case is inappropriate for the exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT OF THE CASE

Louis B. Gaskin was charged by indictment on March 27, 1990, with two

counts of first-degree murder (victims Robert and Georgette Sturmfels), two counts

of attempted first-degree murder with a firearm (victims Joseph and Mary Rector),

two counts of armed robbery with a firearm, and two counts of burglary of a dwelling

with a firearm. The case proceeded to trial and Gaskin was convicted on all counts.

On June 19, 1990, Gaskin was sentenced to death for the murders of Robert and

Georgette Sturmfels. On the non-capital offenses, Gaskin was sentenced to two

]

thirty-year terms and three terms of natural life ordered to run consecutive to one

another. Pursuant to a stipulation, the case was remanded to vacate the consecutive

thirty-year sentences for imposition of consecutive life sentences on counts V and

IX. Subsequently, Gaskin pled guilty to the murder of Charles Miller. /d.

In upholding the convictions and death sentences, the Florida Supreme Court

set forth the following summary of the facts:

The convictions arise from events occurring on the night of

December 20, 1989, when Gaskin drove from Bunnell to Palm Coast

and spotted a light in the house of the victims, Robert and Georgette

Sturmfels. Gaskin parked his car in the woods and, with a loaded gun,

approached the house. Through a window he saw the Sturmfels sitting

in their den. After circling the house a number of times, Gaskin shot

Mr. Sturmfels twice through the window. As Mrs. Sturmfels rose to

leave the room, Gaskin shot her and then shot Mr. Sturmfels a third

time. Mrs. Sturmfels crawled into the hallway, and Gaskin pursued her

around the house until he saw her through the door and shot her again.

Gaskin then pulled out a screen, broke the window, and entered the

home. He fired one more bullet into each of the Sturmfels’ heads and

covered the bodies with blankets. Gaskin then went through the house

taking lamps, video cassette recorders, some cash, and jewelry.

Gaskin then proceeded to the home of Joseph and Mary Rector,

whom he again spied through a window sitting in their den. While

Gaskin cut their phone lines, the Rectors went to bed and turned out the

lights. In an effort to roust Mr. Rector, Gaskin threw a log and some

rocks at the house. When Mr. Rector rose to investigate, Gaskin shot

him from outside the house. The Rectors managed to get to their car

and drive to the hospital in spite of additional shots fired at their car as

they sped away. Gaskin then burglarized the house.

Gaskin’s involvement in the shootings was brought to the

attention of the authorities by Alfonso Golden, cousin of Gaskin’s

2

girlfriend. The night of the murders, Gaskin had appeared at Golden’s

home and asked to leave some “Christmas presents.” Gaskin told

Golden that he had “jacked” the presents and left the victims “stiff.”

Golden learned of the robberies and murders after watching the news

and called the authorities to report what he knew. The property that had

been left with Golden was subsequently identified as belonging to the

Sturmfels.

Gaskin was arrested on December 30, and a search of Gaskin’s

home produced more of the stolen items. After signing a rights-waiver

form, Gaskin confessed to the crimes and directed the authorities to

further evidence of the crime in a nearby canal.

Gaskin vy. State, 591 So. 2d 917, 918 (Fla. 1991).

After hearing all of the evidence of aggravation and mitigation, the jury

recommended the death sentence by a vote of eight to four. The trial court found the

following aggravating circumstances: (1) both murders were committed in a cold,

calculated, and premeditated manner; (2) Gaskin had previously been convicted of

another capital offense or of a felony involving the use or threat of violence; and (3)

that the murders were committed while the defendant was engaged in the

commission of a robbery or burglary. Additionally, the trial court found that the

murder of Georgette Sturmfels was especially wicked, evil, atrocious, or cruel. The

court found in mitigation of both murders that (1) the murders were committed while

Gaskin was under the influence of extreme mental or emotional disturbance; and (2)

that Gaskin had a deprived childhood. Gaskin, 591 So. 2d at 919 (footnotes omitted).

The trial court followed the recommendation of the jury and sentenced Gaskin to

3

death.

Gaskin’s convictions and death sentences were affirmed on direct appeal.

Gaskin v. State, 591 So. 2d 917 (Fla. 1991). Gaskin filed a petition for writ of

certiorari to this Court which was granted June 29, 1992, remanding his case to the

Florida Supreme Court for further consideration in light of Espinosa v. Florida, 505

U.S. 1079 (1992), reh’g denied, 505 U.S. 1244 (1992). Following remand, the

Florida Supreme Court affirmed Gaskin’s sentences on March 18, 1993. Gaskin v.

State, 615 So. 2d 679 (Fla. 1993). The judgment and sentences became final October

12, 1993. Gaskin v. Florida, 510 U.S. 925 (1993); Fla. R. Crim. P. 3.851(d)(1)(B)

(A judgment and sentence become final “on the disposition of the petition for writ

of certiorari by the United States Supreme Court, if filed”).

On June 13, 2002, the Florida Supreme Court affirmed the denial of postconviction relief in Gaskin v. State, 822 So. 2d 1243 (Fla. 2002). Gaskin’s

subsequent collateral challenges have been rejected. Gaskin v. State, 218 So. 3d 399

(Fla.) (affirming summary denial of post-conviction motion alleging an improper

“doubling” of aggravating circumstances and explaining that any Hurst error did not

require resentencing in this case because that case is not retroactive to cases that

were final when Ring was decided), cert. denied, 138 S. Ct. 471 (2017). Federal

habeas relief has also been denied. Gaskin v. Secretary, Dept. of Corr., 494 F.3d 997

(11th Cir. 2007).

On August 12, 2014, the Honorable J. David Walsh issued a corrected

judgment and sentence vacating the duplicative convictions for felony murder on

counts II and IV of Gaskin’s convictions. On May 6, 2015, Gaskin filed a successive

rule 3.851 motion for postconviction relief, alleging an improper “doubling” of

aggravating circumstances. The State filed its response to Gaskin’s motion for

postconviction relief on May 21, 2015. Following a case management hearing and

supplemental argument from both parties, the trial court denied relief in a corrected

order issued August 6, 2015. Following briefing in the Florida Supreme Court, the

court issued an opinion affirming the summary denial of relief and decided that any

Hurst error did not require resentencing in this case because that case is not

retroactive to cases that were final when Ring v. Arizona, 536 U.S. 584 (2002) was

decided. Gaskin v. State, 218 So. 3d 399, 401 (Fla.), cert denied, 138 S. Ct. 471

(2017).

Following Gaskin’s unsuccessful collateral attacks in state and federal court,

Gaskin filed the instant successive post-conviction motion pursuant to Florida Rule

of Criminal Procedure 3.851 challenging his death sentence based on Hurst v.

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

denied, 137 S. Ct. 2161 (2017). On October 12, 2017, the circuit court summarily

denied Gaskin’s motion. (Petition App. A).

After Gaskin appealed the denial of his successive motion for post-conviction

relief, the Florida Supreme Court issued an order to show cause directing Gaskin to

show why Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513

(2017) should not be dispositive in his case. In Hitchcock, the Florida Supreme Court

reaffirmed its previous holding in Asay v. State, 210 So. 3d 1 (Fla. 2016), cert.

denied, 138 S. Ct. 41 (2017), ruling that Hurst v. Florida as interpreted by Hurst v.

State is not retroactive to defendants whose death sentences were final when this

Court decided Ring v. Arizona, 536 U.S. 584 (2002). The Florida Supreme Court

affirmed the lower court’s denial of relief, finding “Hurst does not apply

retroactively to Gaskin’s sentence of death.” Gaskin, 237 So. 3d at 929.

Gaskin now seeks certiorari review of the Florida Supreme Court’s decision.

REASONS FOR DENYING THE WRIT

Certiorari review should be denied because the Florida Supreme

Court’s ruling on the retroactivity of Hurst relies on state law to

provide that the Hurst cases are not retroactive to defendants

whose death sentences were final when this Court decided Ring v.

Arizona, and the court’s ruling does not violate the Eighth or

Fourteenth Amendments and does not conflict with any decision of

this Court or involve an important, unsettled question of federal

law.

Petitioner Gaskin’s convictions and resulting death sentences for the brutal

murders of Robert and Georgette Sturmfels became final following certiorari review

in 1993. Gaskin v. State, 615 So. 2d 679 (Fla. 1993). His convictions and resulting

death sentences have withstood nearly twenty-five years of challenges since that

time.’ Petitioner seeks review of the Florida Supreme Court’s decision affirming the

denial of his successive post-conviction motion? and claims that the state court’s

holding with respect to the retroactive application of Hurst violates the Eighth

Amendment’s prohibition against arbitrary and capricious imposition of the death

penalty and the Fourteenth Amendment’s guarantee of equal protection. However,

' Notably, Gaskin’s convictions were final before this Court issued Apprendi v. New

Jersey, 530 U.S. 466 (2000).

* While Respondent agrees that the Florida Supreme Court correctly found that

Gaskin is not entitled to Hurst relief because his sentence was final in 1993,

Respondent maintains that the Hurst issue presently before this Court had already

been decided by the Florida Supreme Court, in Gaskin v. State, 218 So. 3d 399 (Fla.

2017), cert denied 138 S. Ct. 471 (2017), and was barred by res judicata and the law

of the case doctrine.

the Florida Supreme Court’s denial of the retroactive application of Hurst to

Petitioner’s case is based on adequate and independent state grounds, is not in

conflict with any other state court of last review, and is not in conflict with any

federal appellate court. This decision is also not in conflict with this Court’s

jurisprudence on retroactivity, nor does it violate the Eighth and Fourteenth

Amendments. Thus, because Petitioner has not provided any “compelling” reason

for this Court to review his case, certiorari review should be denied. See Sup. Ct. R.

10.

Respondent would further note that this Court has repeatedly denied certiorari

to review the Florida Supreme Court’s retroactivity decisions following the issuance

of Hurst v. State. See, e.g., Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied, 138

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

513 (2017); Lambrix v. State, 227 So. 3d 112 (Fla.), cert. denied, 138 S. Ct. 312

(2017); Hannon v. State, 228 So. 3d 505 (Fla.), cert. denied, 138 S. Ct. 441 (2017);

Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S. Ct. 1164 (2018); Cole v.

State, 234 So. 3d 644 (Fla.), cert. denied, 2018 WL 1876873 (June 18, 2018);

Kaczmar v. State, 228 So. 3d 1 (Fla. 2017), cert. denied, 138 S. Ct. 1973 (2018);

Zack v. State, 228 So. 3d 41 (Fla. 2017), cert. denied, 2018 WL 1367892 (June 18,

2018). Petitioner offers no persuasive, much less compelling reasons, for this Court

to grant review of his case.

I. There Is No Underlying Constitutional Violation

Aside from the question of retroactivity, certiorari would be inappropriate in

this case because there is no underlying federal constitutional error as Hurst v.

Florida did not address the process of weighing the aggravating and mitigating

circumstances or suggest that the jury must conduct the weighing process to satisfy

the Sixth Amendment. The unanimous verdict by Petitioner’s jury establishing his

guilt of his contemporaneous murder and robbery, an aggravator under wellestablished Florida law, was clearly sufficient to meet the Sixth Amendment’s factfinding requirement. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Jenkins

v. Hutton, 1378. Ct. 1769, 1772 (2017) (noting that the jury’s findings that defendant

engaged in a course of conduct designed to kill multiple people and that he

committed kidnapping in the course of aggravated murder rendered him eligible for

the death penalty); Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (rejecting a claim that

the constitution requires a burden of proof on whether or not mitigating

circumstances outweigh aggravating circumstances, noting that such a question is

“mostly a question of mercy.”); Alleyne v. United States, 570 U.S. 99, 111 n.1 (2013)

(recognizing the “narrow exception . . . for the fact of a prior conviction” set forth

in Almendarez-Torres v. United States, 523 U.S. 224 (1998)); Lowenfield v. Phelps,

484 U.S. 231, 244-45 (1988) (“The use of ‘aggravating circumstances’ is not an end

in itself, but a means of genuinely narrowing the class of death-eligible persons and

thereby channeling the jury's discretion. We see no reason why this narrowing

function may not be performed by jury findings at either the sentencing phase of the

trial or the guilt phase”). This Court’s ruling in Hurst v. Florida did not change the

recidivism exception articulated in Apprendi and Ring?

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

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

Amendment. See State v. Mason, N.E3d__,2018 WL 1872180 at *5-6 (Ohio

Apr. 18, 2018) (“Nearly every court that has considered the issue has held that the

Sixth Amendment is applicable to only the fact-bound eligibility decision

concerning an offender’s guilt of the principle offense and any aggravating

circumstances” and that “weighing is not a factfinding process subject to the Sixth

Amendment.”) (string citations omitted); United States v. Sampson, 486 F.3d 13, 32

(1st Cir. 2007) (“As other courts have recognized, the requisite weighing constitutes

a process, not a fact to be found.”); United States v. Purkey, 428 F.3d 738, 750 (8th

Cir. 2005) (characterizing the weighing process as “the lens through which the jury

3 § 921.141(6), Florida Statutes (listing prior violent felony as an aggravator under

Florida law).

10

must focus the facts that it has found” to reach its individualized determination);

State v. Gales, 658 N.W.2d 604, 628-29 (Neb. 2003) (“[W]e do not read either

Apprendi or Ring to require that the determination of mitigating circumstances, the

balancing function, or proportionality review to be undertaken by a jury”). The

findings required by the Florida Supreme Court following remand in Hurst v. State

involving the weighing and selection of a defendant’s sentence are not required by

the Sixth Amendment. See, e. g, McGirth v. State, 209 So. 3d 1146, 1164 (Fla. 2017).

Thus, there was no Sixth Amendment error in this case.

U. The Florida Court’s Ruling On The Retroactivity Of Hurst Is Not

Unconstitutional

The Eighth Amendment requires capital punishment to be limited “to those

who commit a ‘narrow category of the most serious crimes’ and whose extreme

culpability makes them ‘the most deserving of execution.’” Roper v. Simmons, 543

U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). As

such, the death penalty is limited to a specific category of crimes and “States must

give narrow and precise definition to the aggravating factors that can result in a

capital sentence.” Roper, 543 U.S. at 568. The Florida Supreme Court’s holding in

Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017),

followed this Court’s ruling in Hurst v. Florida, 136 S. Ct. 616 (2016), in requiring

that aggravating circumstances be found by a jury beyond a reasonable doubt before

11

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 57.4

The Florida Supreme Court first analyzed the retroactive application of Hurst

in Mosley v. State, 209 So. 3d 1248, 1276-83 (Fla. 2016), and Asay v. State, 210 So.

3d 1, 15-22 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017). In Mosley, the Florida

Supreme Court held that Hurst is retroactive to cases which became final after this

Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002), on June 24, 2002. Mosley,

209 So. 3d at 1283. In determining whether Hurst should be retroactively applied to

Mosley, the Florida Supreme Court conducted a Witt analysis, the state-based test

for retroactivity. See Witt v. State, 387 So. 2d 922, 926 (Fla. 1980) (determining

whether a new rule should be applied retroactively by analyzing the purpose of the

4 The dissent observed that “[n]Jeither the Sixth Amendment nor Hurst v. Florida

requires a jury to determine the sufficiency of the aggravation, the weight of the

ageravation relative to any mitigating circumstances, or whether a death sentence

should be imposed.” Hurst, 202 So. 3d at 82 (Canady, J., dissenting).

12

new rule, extent of reliance on the old rule, and the effect of retroactive application

on the administration of justice) (citing Stovall v. Denno, 388 U.S. 293, 297 (1967);

Linkletter v. Walker, 381 U.S. 618 (1965)). Since “finality of state convictions is a

state interest, not a federal one,” states are permitted to implement standards for

retroactivity that grant “relief to a broader class of individuals than is required by

Teague,” which provides the federal test for retroactivity. Danforth v. Minnesota,

552 U.S. 264, 280-81 (2008) (emphasis in original); Teague v. Lane, 489 U.S. 288

(1989); see also Johnson v. New Jersey, 384 U.S. 719, 733 (1966) (“Of course, States

are still entirely free to effectuate under their own law stricter standards than we have

laid down and to apply those standards in a boarder range of cases than is required

by this [Court].”). As Ring, and by extension Hurst, has been held not to be

retroactive under federal law, Florida has implemented a test which provides relief

to a broader class of individuals in applying Witt instead of Teague for determining

the retroactivity of Hurst. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004)

(holding that “Ring announced a new procedural rule that does not apply

retroactively to cases already final on direct review”); Lambrix v. Sec’y, Fla. Dept.

of Corr., 872 F.3d 1170, 1182-83 (11th Cir.), cert. denied, 138 S. Ct. 312 (2017)

(noting that “[n]o U.S. Supreme Court decision holds that its Hurst decision is

retroactively applicable”).

13

The Florida Supreme Court determined that all three Witt factors weighed in

favor of retroactive application of Hurst to cases which became final post-Ring.

Mosley, 209 So. 3d at 1276-83. The court concluded that “defendants who were

sentenced to death based on a statute that was actually rendered unconstitutional by

Ring should not be penalized for the United States Supreme Court’s delay in

explicitly making this determination.”° Jd. at 1283. Thus, the Florida Supreme Court

held Hurst to be retroactive to Mosley, whose case became final in 2009, which is

post-Ring. Id.

Conversely, applying the Witt analysis in Asay v. State, 210 So. 3d 1, 22 (Fla.

> Florida is a clear outlier for giving any retroactive effect to an Apprendi/Ring based

error. As explained by the Eighth Circuit in Walker v. United States, 810 F.3d 568,

575 (8th Cir. 2016), the consensus of judicial opinion flies squarely in the face of

giving any retroactive effect to an Apprendi based error. Apprendi’s rule

“recharacterizing certain facts as offense elements that were previously thought to

be sentencing factors” does not lay “anywhere near that central core of fundamental

rules that are absolutely necessary to insure a fair trial.”

®° Of course, the gap between this Court’s rulings in Ring and Hurst may be fairly

explained by the fact that the Florida Supreme Court properly recognized, in the

State’s view, that a prior violent felony or contemporaneous felony conviction took

the case out of the purview of Ring. See Ellerbee v. State, 87 So. 3d 730, 747 (Fla.

2012) (“This Court has consistently held that a defendant is not entitled to relief

under Ring if he is convicted of murder committed during the commission of a

felony, or otherwise where the jury of necessity has unanimously made the findings

of fact that support an aggravator.”) (string citations omitted). Hurst v. Florida

presented this Court with a rare “pure” Ring case, that is a case where there was no

aggravator supported either by a contemporaneous felony conviction or prior violent

felony.

14

2016), cert. denied, 138 S. Ct. 41 (2017), the Florida Supreme Court held that Hurst

is not retroactive to any case in which the death sentence was final pre-Ring. The

court specifically noted that Witt “provides more expansive retroactivity standards

than those adopted in Teague.” Asay, 210 So. 3d at 15 (emphasis in original) (quoting

Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005)). The court determined that prongs

two and three of the Witt test, reliance on the old rule and effect on the administration

of justice, weighed heavily against the retroactive application of Hurst to pre-Ring

cases. Asay, 210 So. 2d at 20-22. As related to the reliance on the old rule, the court

noted “the State of Florida in prosecuting these crimes, and the families of the

victims, had extensively relied on the constitutionality of Florida’s death penalty

scheme based on the decisions of the United States Supreme Court. This factor

weighs heavily against retroactive application of Hurst v. Florida to this pre-Ring

case.” Id. at 20. With respect to the effect on the administration of justice, the court

noted that resentencing is expensive and time consuming and that the interests of

finality weighed heavily against retroactive application. Jd. at 21-22. Thus, the

Florida Supreme Court held that Hurst was not retroactive to Asay since his

judgment and sentence became final in 1991, pre-Ring. Id. at 8, 20.

Since Asay, the Florida Supreme Court has continued to apply Hurst

retroactively to all post-Ring cases and declined to apply Hurst retroactively to all

15

pre-Ring cases. See Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S.

Ct. 513 (2017); Lambrix v. State, 227 So. 3d 112, 113 (Fla.), cert. denied, 138 S. Ct.

312 (2017); Hannon v. State, 228 So. 3d 505, 513 (Fla.), cert. denied, 138 S. Ct. 441

(2017); Branch v. State, 234 So. 3d 548, 549 (Fla.), cert. denied, 138 S. Ct. 1164

(2018). This distinction between cases which were final pre-Ring versus cases which

were final post-Ring is neither arbitrary nor capricious.’

In the traditional sense, new rules are applied retroactively only to cases which

are not yet final. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“a new rule for

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

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

which the new rule constitutes a ‘clear break’ with the past”); Penry v. Lynaugh, 492

U.S. 302, 314 (1989) (holding finality concerns in retroactivity are applicable in the

capital context). Under this “pipeline” concept, Hurst would only apply to the cases

which were not yet final on the date of the decision in Hurst. Even under the

“pipeline” concept, cases whose direct appeal was decided on the same day might

7 Federal courts have had little trouble determining that Hurst, like Ring, is not

retroactive at all under Teague. See Lambrix v. Sec’y, Fla. Dept. of Corr., 851 F.3d

1158, 1165 n.2 (11th Cir.), cert. denied, 138 S. Ct. 217 (2017) (“under federal law

Hurst, like Ring, is not retroactively applicable on collateral review”); Ybarra v.

Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017) (denying permission to file a

successive habeas petition raising a Hurst v. Florida claim concluding that Hurst v.

Florida did not apply retroactively).

16

have their judgment and sentence become final on either side of the line for

retroactivity. Additionally, under the “pipeline” concept, “old” cases where the

judgment and/or sentence has been overturned will receive the benefit of new law as

they are no longer final. Yet, this Court recognizes this type of traditional

retroactivity as proper and not violative of the Eighth or Fourteenth Amendment.

The only difference between this more traditional type of retroactivity and the

retroactivity implemented by the Florida Supreme Court is that it stems from the

date of the decision in Ring, * rather than from the date of the decision in Hurst. In

moving the line of retroactive application back to Ring, the Florida Supreme Court

reasoned that since Florida’s death penalty sentencing scheme should have been

recognized as unconstitutional upon the issuance of the decision in Ring, defendants

8 In explaining why retroactivity was based on Ring, as opposed to Apprendi, the

Florida Supreme Court concluded that “while the reasoning of Apprendi appeared

to challenge the underlying prior reasoning of Walton and similar cases, the United

States Supreme Court expressly excluded death penalty cases from its holding.”

Asay, 210 So. 3d at 19 (citing Apprendi, 530 U.S. at 496); Mosley, 209 So. 3d at

1279, n.17 (citing Apprendi, 530 U.S. at 497); Walton vy. Arizona, 497 U.S. 639

(1990), overruled by Ring, 536 U.S. at 589. Though Apprendi served as a precursor

to Ring, this Court specifically distinguished capital cases from its holding in

Apprendi. Apprendi, 530 U.S. at 496. It was not until Ring that this Court determined

that “Apprendi’s reasoning is irreconcilable with Walton’s holding.” Ring, 536 U.S.

at 589. Thus, as the Florida Supreme Court reasoned, Ring is the appropriate

demarcation for retroactive application to capital cases, not Apprendi. Asay, 210 So.

3d at 19. (emphasis added).

17

should not be penalized for time that it took for this determination to be made official

in Hurst. Certainly, the Florida Supreme Court has demonstrated “some ground of

difference that rationally explains the different treatment” between pre-Ring and

post-Ring cases. Eisenstadt v. Baird, 405 U.S. 438, 447 (1972); see also Royster

Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (To satisfy the requirements of the

Fourteenth Amendment, “classification must be reasonable, not arbitrary, and must

rest upon some ground of difference having a fair and substantial relation to the

object of the legislation, so that all persons similarly circumstanced shall be treated

alike.”). Unquestionably, extending relief to more individuals, defendants who

would not receive the benefit of a new rule under the pipeline concept because their

cases were already final when Hurst was decided, cannot violate the Eighth or

Fourteenth Amendment. Thus, just like the more traditional application of

retroactivity, the Ring-based cutoff for the retroactive application of Hurst is not in

violation of the Eighth or Fourteenth Amendment.

Petitioner uses the case of convicted murderer Armstrong as an example of

such allegedly arbitrary application of the Florida Supreme Court’s retroactivity test.

(Petition at 25). While Armstrong’s case originally became final in 1995, subsequent

litigation led to a new sentencing hearing being granted in 2003, and he was

resentenced to death in 2007, which became final in 2011. Armstrong v. State, 642

18

So. 2d 730 (Fla. 1994), cert denied, 514 U.S. 1085 (1995); Armstrong v. State, 862

So. 2d 705 (Fla, 2003); Armstrong v. State, 73 So. 3d 155 (Fla. 2011), cert denied,

567 U.S. 907 (2012). As such, although Armstrong’s crimes occurred in 1990, he

was resentenced in 2007; therefore, he received the benefit of Hurst because his

sentence was not final pre-Ring, unlike Gaskin’s sentence which was final in 1993.

See Armstrong v. State, 211 So. 3d 864 (Fla. 2017). The result in Armstrong does

not in any way suggest that Florida’s retroactivity test is either unfair or

unconstitutionally arbitrary.

Petitioner’s death sentence is neither unfair nor unreliable because the judge

imposed the sentence in accordance with the law existing at the time of his trial.

Certainly, other than speculation, Petitioner has neither identified nor established

any particular lack of reliability in the proceedings used to impose his death

sentence. See Hughes v. State, 901 So. 2d 837, 844 (Fla. 2005) (holding that

Apprendi is not retroactive and noting that “neither the accuracy of convictions nor

of sentences imposed and final before Apprendi issued is seriously impugned”;

Rhoades v. State, 233 P.3d 61, 70-71 (2010) (holding that Ring is not retroactive

after conducting its own independent Teague analysis and observing, as this Court

did in Summerlin, that there is debate as to whether juries or judges are the better

fact-finders and that it could not say “confidently” that judicial factfinding “seriously

19

diminishes accuracy.”) Just like Ring did not enhance the fairness or efficiency of

death penalty procedures, neither does Hurst. As this Court has explained, “for every

argument why juries are more accurate factfinders, there is another why they are less

accurate.” Schriro v. Summerlin, 542 U.S. 348, 356 (2004). Thus, because the

accuracy of Petitioner’s death sentence is not at issue, fairness does not demand

retroactive application of Hurst.

Petitioner’s contention that his death sentences violate the Equal Protection

Clause is plainly without merit. “The Equal Protection Clause of the Fourteenth

Amendment ‘is essentially a direction that all persons similarly situated should be

treated alike.’” Lawrence v. Texas, 539 U.S. 558, 579 (2003). A criminal defendant

challenging the State’s application of capital punishment must show intentional

discrimination to prove an equal protection violation. McCleskey v. Kemp, 481 U.S.

279, 292 (1987) (“A criminal defendant alleging an equal protection violation must

prove the existence of purposeful discrimination”). A “‘[d]iscriminatory purpose’ ...

implies more than intent as volition or intent as awareness of consequences. It

implies that the decisionmaker, in this case a state legislature, selected or reaffirmed

a particular course of action at least in part “because of,’ not merely ‘in spite of,’ its

adverse effects upon an identifiable group.” McCleskey, 481 U.S. at 298. Here,

20

Petitioner is being treated exactly the same as similarly situated murderers whose

sentences were final pre-Ring. Therefore, there is no valid equal protection claim.

The Florida Supreme Court’s determination of the retroactive application of

Hurst under the state law Witt standard is based on adequate and independent state

grounds and is not violative of federal law or this Court’s precedent. This Court has

repeatedly recognized that where a state court judgment rests on non-federal

grounds, where the non-federal grounds are an adequate basis for the ruling

independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935); see also Michigan v. Long, 463 U.S. 1032, 1040

(1983) (“Respect for the independence of state courts, as well as avoidance of

rendering advisory opinions, have been the cornerstones of this Court’s refusal to

decide cases where there is an adequate and independent state ground.”); Cardinale

v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that this Court has no

jurisdiction to review a state court decision on certiorari review unless a federal

question was raised and decided in the state court below). If a state court’s decision

is based on separate state law, this Court “of course, will not undertake to review the

decision.” Florida v. Powell, 559 U.S. 50, 57 (2010); Long, 463 U.S. at 1041.

Because the Florida Supreme Court’s retroactive application of Hurst in Petitioner’s

case is based on adequate and independent state grounds and does not involve an

21

important, unsettled question of federal law, certiorari review should be denied.

III. Petitioner’s capital sentences were final in 1993.

Apart from challenges to Florida’s Hurst retroactivity decision, Petitioner

contends that he is entitled to Hurst relief because his sentences were final in 2014.

Initially, Gaskin was convicted and sentenced to four death sentences for the

murders of the two victims, Robert and Georgette Sturmfels: the murder of each

victim was charged under both a premeditated theory and a felony murder theory.

However, the Florida Supreme Court ruled that it was impermissible to sentence

Gaskin to death twice for a singular victim’s homicide. Gaskin v. State, 591 So. 2d

917 (Fla. 1991). Petitioner asserts that his sentences only became final when the state

trial court, leaving the two premeditated murder sentences untouched, vacated his

two felony murder convictions and sentences (one for each victim), in 2014.

(Petition, p. 23) However, Gaskin presents no law to support that conclusory

argument. In fact, Petitioner’s argument, that the ministerial correction of his

sentences determined the date of finality, is contrary to Florida law:

Under Florida law, it is appellate court action-i.e., the issuance of

the mandate-that returns jurisdiction to the trial court. Speaking of cases

pending before it, the Supreme Court of Florida explained this process:

If no writ of certiorari is filed with the United States Supreme Court, as

in the case at bar, the judgment and sentence become final when direct

review proceedings are completed and jurisdiction to entertain the

motion for postconviction relief returns to the trial court. Until this

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