Petition for Writ of Certiorari — Pressley Bernard Alston, Petitioner v. Florida, et al.
Supreme Court briefAug 15, 2018
Ask Donna
What actually matters in this document.
Text
No. ______
IN THE
Supreme Court of the United States
___________________________________________________________
PRESSLEY BERNARD ALSTON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of Florida
______________________________________________________________
PETITION FOR A WRIT OF CERTIORARI
______________________________________________________________
THIS IS A CAPITAL CASE
ROBERT A. NORGARD
Norgard, Norgard, & Chastang
310 East Main Street
Bartow, Florida 33830
Tallahassee, Florida 32301
(863) 354-0508
norgardlaw@verizon.net
BILLY H. NOLAS
Counsel of Record
SEAN GUNN
KATHERINE A. BLAIR
Office of the Federal Public Defender
Northern District of Florida
Capital Habeas Unit
227 North Bronough St., Suite 4200
Tallahassee, Florida 32301
(850) 942-8818
billy_nolas@fd.org
CAPITAL CASE
QUESTIONS PRESENTED
1.
Does a state capital defendant’s state-law waiver of state post-conviction
review automatically and forever preclude the defendant from seeking relief
for all federal constitutional violations subsequently recognized by this Court?
2.
Does the partial retroactivity formula designed by the Florida Supreme Court
to limit the class of condemned prisoners obtaining a life-or-death jury
determination pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016), violate the
Eighth and Fourteenth Amendments to the United States Constitution?
3.
Does the partial retroactivity formula employed for Hurst violations in Florida
violate the Supremacy Clause of the United States Constitution in light of
Montgomery v. Louisiana, 136 S. Ct. 718 (2016)?
i
TABLE OF CONTENTS
Questions Presented ....................................................................................................... i
Table of Contents ........................................................................................................... ii
Table of Authorities ...................................................................................................... iv
Parties to the Proceeding ............................................................................................ vii
Decision Below ............................................................................................................... 1
Jurisdiction .................................................................................................................... 1
Constitutional Provisions Involved ............................................................................... 1
Statement of the Case ................................................................................................... 1
I.
Introduction .............................................................................................. 1
II.
Factual and Procedural Background ....................................................... 3
A.
Conviction, Death Sentence, and Direct Appeal .......................... 3
B.
State Waiver of Post-Conviction Proceedings .............................. 4
C.
Federal Habeas Proceedings ......................................................... 5
D.
Hurst Litigation ............................................................................. 6
E.
Florida Supreme Court’s Initial Decision and
Recall of Mandate .......................................................................... 7
Reasons for Granting the Writ .................................................................................... 10
I.
This Court Should Review the Florida Supreme Court’s Silvia Rule that
a State Post-Conviction Waiver Automatically Waives all Future
Federal Constitutional Review .............................................................. 10
II.
Certiorari Review is Also Warranted Because the Florida Supreme
Court’s Application of its Unconstitutional Silvia Rule to Deny Hurst
Relief Was Particularly Unjust in Petitioner’s Case ............................ 17
III.
The Florida Supreme Court’s Ring-Based Retroactivity Cutoff Violates
the Eighth Amendment’s Prohibition Against Arbitrary and Capricious
Capital Punishment and the Fourteenth Amendment’s Guarantee of
Equal Protection ..................................................................................... 21
A.
Traditional Non-Retroactivity Rules Can Serve Legitimate
Purposes, but the Eighth and Fourteenth Amendments Impose
Boundaries in Capital Cases ....................................................... 21
ii
IV.
B.
The Florida Supreme Court’s Hurst Retroactivity Cutoff at Ring
Involves Something Other Than the Traditional NonRetroactivity Rules Addressed by This Court’s Teague and
Related Jurisprudence................................................................. 22
C.
The Florida Supreme Court’s Hurst Retroactivity Cutoff at Ring
Exceeds Eighth and Fourteenth Amendment Limits ................ 25
1.
The Ring-Based Cutoff Creates More Arbitrary and Unequal
Results than Traditional Retroactivity Decisions ...................... 25
2.
The Ring-Based Cutoff Denies Hurst Relief to the Most Deserving
Class of Death-Sentenced Florida Prisoners .............................. 30
The Partial Retroactivity Formula Employed for Hurst Violations in
Florida Violates the Supremacy Clause of the United States
Constitution, Which Requires Florida’s Courts to Apply Hurst
Retroactively to All Death-Sentenced Prisoners ................................... 35
Conclusion .................................................................................................................... 40
INDEX TO APPENDIX
Exhibit 1 — Florida Supreme Court Opinion Below (May 17, 2018) ................ 1a
Exhibit 2 — Duval Circuit Court Order Denying Relief (Feb. 21, 2017)........... 5a
Exhibit 3 — Florida Supreme Court Order to Show Cause
(Oct. 17, 2017) ............................................................................... 12a
Exhibit 4 — Florida Supreme Court Recall of Mandate and Order to
Show Cause (Feb. 12, 2018).......................................................... 15a
Exhibit 5 — Petitioner/Appellant’s Response to Order to Show Cause
(Oct. 13, 2017) ............................................................................... 18a
Exhibit 6 — Petitioner/Appellant’s Response to Order to Show Cause
(Feb. 27, 2018) ............................................................................... 42a
Exhibit 7 — Respondent’s Reply to Petitioner/Appellant’s Response
(Nov. 1, 2017) .............................................................................. 103a
Exhibit 8 — Petitioner/Appellant’s Reply in Support of Response
(Nov. 7, 2017) .............................................................................. 122a
iii
TABLE OF AUTHORITIES
Cases:
Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937)................................................11
Alston v. Dep’t of Corrs., 610 F.3d 1318 (11th Cir. 2010) ...................................6
Alston v. Dep’t of Corrs., No. 3:04-cv-257 (M.D. Fla. April 5, 2004) ..................5
Alston v. Florida, 555 U.S. 943 (2008) ................................................................4
Alston v. State, 723 So. 2d 148 (Fla. 1998) .........................................................4
Alston v. State, 894 So. 2d 46 (Fla. 2004) .....................................................5, 18
Alston v. State, 243 So. 3d 885 (Fla. 2018) .........................................................9
Apprendi v. New Jersey, 530 U.S. 466 (2000) ...................................................25
Asay v. State, 210 So. 3d 1 (Fla. 2016) .................................................... 6, 23, 29
Barker v. Wingo, 407 U.S. 514 (1972) ...............................................................15
Bates v. State, 3 So. 3d 1091 (Fla. 2009) ...........................................................26
Blackledge v. Perry, 417 U.S. 21 (1974) ............................................................13
Bowles v. Florida, 536 U.S. 930 (2002) .............................................................27
Bowles v. State, 235 So. 3d 292 (Fla. 2018) ......................................................27
Bowles v. State, 804 So. 2d 1173 (Fla. 2001) ....................................................27
Bradley v. State, 33 So. 3d 664 (Fla. 2010) .......................................................26
Brown v. State, 755 So. 2d 616 (Fla. 2002) .......................................................15
Caldwell v. Mississippi, 472 U.S. 320 (1987)....................................................34
Calloway v. State, 210 So. 3d 1160 (Fla. 2017).................................................28
Card v. Florida, 536 U.S. 963 (2002) ................................................................27
Card v. State, 803 So. 2d 613 (Fla. 2001)..........................................................27
Card v. Jones, 219 So. 3d 47 (Fla. 2017) ...........................................................27
Class v. United States, 138 S. Ct. 798 (2018) ...................................................14
Danforth v. Minnesota, 552 U.S. 264 (2006) .....................................................23
Duncan v. Henry, 513 U.S. 364 (1995) ..............................................................15
Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993) ............................................5
Eisenstadt v. Baird, 405 U.S. 438 (1972) ..........................................................28
iv
Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008) .......................................................19
Furman v. Georgia, 408 U.S. 238 (1972) ..........................................................21
Griffith v. Kentucky, 479 U.S. 314 (1987) .........................................................22
Godfrey v. Georgia, 446 U.S. 420 (1980) ...........................................................21
Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May 27, 2016) ........................40
Halbert v. Michigan, 545 U.S. 605 (2005)...................................................11, 12
Hart v. Attorney Gen. of State of Fla., 323 F.3d 884 (11th Cir. 2003) .............13
Hitchcock v. State, 226 So. 3d 216 (Fla. 2017) ........................................ 6, 26, 29
Hurst v. Florida, 136 S. Ct. 616 (2016) ..................................................... passim
Hurst v. State, 202 So. 3d 40 (Fla. 2016) .............................................. 23, 37, 38
In re Winship, 397 U.S. 358 (1970) ...................................................................39
Ivan V. v. City of New York, 407 U.S. 203 (1972) .............................................39
Johnson v. State, 205 So. 3d 1285 (Fla. 2016) ..................................................28
Johnson v. United States, 135 S. Ct. 2551 (2015).............................................38
Johnson v. Zerbst, 304 U.S. 458 (1938)................................................. 10, 11, 14
Kennedy v. Louisiana, 554 U.S. 407 (2008) ......................................................22
Knight v. Florida, 120 S. Ct. 459 (1999) ...........................................................34
Linkletter v. Walker, 381 U.S. 618 (1965) .........................................................23
Lucio v. State, 351 S.W. 3d 878 (Tex. Crim. App. 2011) ..................................15
Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018) ..............................................13
Malvo v. Mathena, 254 F.Supp.3d 820 (E.D. Va. 2017) ...................................12
Marshall v. Jones, 226 So. 3d 211 (Fla. 2017) ..................................................34
McGhee v. State, 657 So. 2d 799 (Miss. 1995)...................................................15
McLaughlin v. Florida, 379 U.S. 184 (1964) ....................................................28
Menna v. New York, 423 U.S. 61 (1975) ...........................................................14
Miller v. Alabama, 567 U.S. 460 (2012) ................................................ 12, 35, 36
Miller v. State, 926 So. 2d 1243 (Fla. 2006) ......................................................26
Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ...................................... passim
Moran v. Burbine, 475 U.S. 412 (1986).............................................................11
Mosley v. State, 209 So. 3d 1248 (Fla. 2016) ..................................... 6, 23, 24, 25
v
Nixon v. State, 932 So. 2d 1009 (Fla. 2006) ......................................................26
Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U.S. 292 (1937) ......11
People v. Billings, 770 N.W. 3d 893 (Mich. App. 2009) ....................................13
Powell v. Delaware, 153 A.3d 69 (Del. 2016) ....................................................39
People v. Valdez, 281 P. 3d 924 (Ca. 2012) .......................................................15
Ring v. Arizona, 536 U.S. 584 (2002) ..............................................................3, 6
Sause v. Bauer, 138 S. Ct. 2561 (2018) .............................................................14
Schriro v. Summerlin, 542 U.S. 348 (2004) ................................................36, 39
Sireci v. Florida, 137 S. Ct. 470 (2016) .............................................................34
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ..................22, 29
Smith v. Yeager, 393 U.S. 122 (1968)................................................................12
State v. Bridgeford, 903 N.W. 2d 22 (Neb. 2017)..............................................15
State v. O’Neal, 203 P. 3d 135 (N.M. App. 2008) ..............................................15
State v. Silvia, 235 So. 3d 349 (Fla. 2018) ......................................................7, 8
Stovall v. Denno, 388 U.S. 293 (1967) ...............................................................23
Sullivan v. Louisiana, 508 U.S. 275 (1993) ......................................................34
Teague v. Lane, 489 U.S. 288 (1989) .................................................................22
Tisnado v. United States, 547 F.2d 452 (9th Cir. 1976) ...................................14
Townsend v. Sain, 372 U.S. 293 (1963) ............................................................12
Truehill v. Florida, 138 S. Ct. 3 (2017) .............................................................34
United States v. Tigano, 880 F.3d 602 (2d Cir. 2018) ......................................14
United States v. Wysinger, 683 F.3d 784 (7th Cir. 2012) .................................13
Welch v. United States, 136 S. Ct. 1257 (2016)...........................................37, 38
Witt v. State, 387 So. 2d 922 (Fla. 1980) ...........................................................23
Statutes:
28 U.S.C. § 1257 ...................................................................................................1
Fla. Stat. § 921.141 ..............................................................................................4
vi
PARTIES TO THE PROCEEDINGS
Petitioner Pressley Bernard Alston, a death-sentenced Florida prisoner, was
the appellant in the Florida Supreme Court. Respondent, the State of Florida, was
the appellee.
vii
DECISION BELOW
The decision of the Florida Supreme Court is reported at 243 So. 3d 885 (Fla.
2018), and reprinted in the Appendix (App.) at 1a-4a.
JURISDICTION
The judgment of the Florida Supreme Court was entered on May 17, 2018.
App. 1a-4a. This Court has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment provides, in relevant part:
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury . . . .
The Eighth Amendment provides:
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
The Fourteenth Amendment provides, in relevant part:
No State shall . . . deny to any person within its jurisdiction
the equal protection of the laws.
STATEMENT OF THE CASE
I.
Introduction
No court or party disputes that Petitioner Pressley Alston’s death sentence was
obtained in violation of the United States Constitution for the reasons described in
Hurst v. Florida, 136 S. Ct. 616 (2016). Nevertheless, Petitioner’s unconstitutional
death sentence has not been vacated.
The Florida Supreme Court declined to grant relief for two reasons, both of
which warrant certiorari review.
First, the Florida Supreme Court wrongly
1
determined that Petitioner’s general waiver of Florida state post-conviction review
and appointed counsel in 2003—13 years before Hurst was decided—also constitutes
a prospective and continuing waiver of all federal constitutional rights that have
since been, or will ever be, recognized by this Court, including the right to penalty
jury fact-finding recognized in Hurst. Second, the Florida Supreme Court wrongly
held that while Hurst should apply retroactively to dozens of Florida death sentences
on collateral review, it should not apply to dozens of others, including Petitioner’s.
The Florida Supreme Court’s waiver analysis violated the United States
Constitution because a state post-conviction waiver cannot forever bar a defendant
from challenging the federal constitutionality of the statute underlying his conviction
or sentence.
Such a rule would subvert the authority of the federal courts by
immunizing state-court rulings on federal constitutional rights from federal-court
review. A state defendant’s decision not to pursue state post-conviction review in
Florida cannot constitute a knowing and intelligent waiver of the federal
constitutional right to penalty jury fact-finding recognized in Hurst more than a
decade later. Under this Court’s precedent, a state defendant cannot validly waive a
federal constitutional right that was not recognized by the state courts at the time of
the purported waiver. This Court should grant a writ of certiorari not only to correct
the injustice of the Florida Supreme Court’s erroneous application of a waiver
analysis to Petitioner, but also to clarify that there can be no blanket prospective
state-court waivers of all newly-recognized federal constitutional rights.
2
Certiorari is also appropriate because the Florida Supreme Court’s partial
retroactivity framework for Hurst claims is unconstitutional. Under that framework,
Hurst is applied retroactively on collateral review, but only to prisoners whose death
sentences became final on direct appeal after this Court invalidated Arizona’s capital
sentencing scheme more than 14 years before Hurst in Ring v. Arizona, 536 U.S. 584
(2002). The Florida Supreme Court’s Ring-based retroactivity formula prohibits a
class of more than 150 Florida prisoners from obtaining a jury determination of their
death sentences, while requiring that the death sentences of another group of
prisoners be vacated on collateral review so that they can receive a jury
determination.
The state court’s formula is inconsistent with the Eighth
Amendment’s prohibition against arbitrary and capricious imposition of the death
penalty and the Fourteenth Amendment’s guarantee of equal protection. The Florida
Supreme Court has refused to discuss these issues in any meaningful way.
Petitioner’s case is an appropriate vehicle for this Court to address the Florida
Supreme Court’s unconstitutional post-conviction waiver and retroactivity bars to
Hurst relief.
Delaying review of these issues will allow further application of
unconstitutional rules denying defendants access to the full and fair review of their
death sentences the Constitution requires.
II.
Factual and Procedural Background
A.
Conviction, Death Sentence, and Direct Appeal
In 1995, Petitioner was convicted of murder and related crimes in a Florida
court. Successive Post-Conviction Record on Appeal (“ROA”) at 21. A penalty phase
3
was conducted pursuant to the Florida capital sentencing scheme in place at the time.
See Hurst v. Florida, 136 S. Ct. 616, 620 (2016) (describing Florida’s prior scheme).
The jury “advise[d] and recommend[ed]” the death penalty by a vote of 9 to 3. ROA
at 28. The “advisory” jury did not make findings of fact or otherwise specify the
factual basis for its divided recommendation.
The trial judge, not the jury, then made the findings of fact required to impose
a death sentence under Florida law. See Fla. Stat. § 921.141(3) (1992), invalidated
by Hurst, 136 S. Ct. at 624. The judge found that five aggravating circumstances had
been proven beyond a reasonable doubt during Petitioner’s penalty phase, and that
those five aggravating circumstances were sufficient for the death penalty and not
outweighed by the mitigation. Alston v. State, 723 So. 2d 148, 153 (Fla. 1998). 1 Based
on his fact-finding, the judge sentenced Petitioner to death. ROA at 28-37.
The Florida Supreme Court affirmed on direct appeal. Alston v. State, 723 So.
2d 148 (Fla. 1998), cert. denied, 555 U.S. 943 (2008).
B.
State Waiver of Post-Conviction Proceedings
Petitioner’s appointed state post-conviction counsel moved for a competency
determination. The state circuit court, after reviewing the reports of three doctors,
The aggravating circumstances found by the judge were: (1) the defendant was
convicted of three prior violent felonies; (2) the murder was committed during a
robbery/kidnapping and for pecuniary gain; (3) the murder was committed for the
purpose of avoiding a lawful arrest; (4) the murder was especially heinous, atrocious,
or cruel; and (5) the murder was cold, calculated, and premeditated.
The mitigating circumstances found by the judge were that Petitioner: (1) had
a horribly deprived and violent childhood; (2) cooperated with law enforcement; (3)
has low intelligence and mental age; (4) has a bipolar disorder; and (5) has the ability
to get along with people and treat them with respect.
1
4
found Petitioner incompetent to proceed. Alston v. State, 894 So. 2d 46, 48 (Fla. 2004).
Thereafter, Petitioner filed a series of pro se motions. In 2002, Petitioner requested
a hearing pursuant to Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993), which would
determine whether Petitioner was competent to waive his state post-conviction
appeals. Id. at 49. Petitioner was found competent and the Durocher hearing was
held in 2003. Id. The circuit court concluded that Petitioner “knowingly, intelligently,
and voluntarily” waived his right to state post-conviction proceedings.
The court
therefore dismissed Petitioner’s pending state post-conviction motion and pro se
motions, as well as his state-appointed counsel. Id.
After counsel appealed, Petitioner began filing pro se motions in the Florida
Supreme Court, arguing that his statements at the Durocher hearing proved his
innocence and urging that the Florida Supreme Court investigate his case. Id. Those
pro se motions alleged, among other things, that the state attorney had drugged
Petitioner, who now claimed to be an FBI agent, in a way that forced Petitioner to
commit the capital offense. The Florida Supreme Court upheld the state circuit
court’s finding of competence and dismissal with prejudice of all of Petitioner’s
pending post-conviction motions and pleadings. Id. at 59.
C.
Federal Habeas Proceedings
In 2004, Petitioner filed a pro se petition for writ of habeas corpus under 28
U.S.C. 2254. The United States District Court for the Middle District of Florida
appointed counsel and granted leave to amend. Alston v. Dep’t of Corrs., No. 3:04-cv257, ECF No. 1 (M.D. Fla. Apr. 5, 2004); id., ECF No. 30. In 2009, the district court
5
denied the amended § 2254 petition on the merits. Id., ECF No. 99. The Eleventh
Circuit affirmed. Alston v. Dep’t of Corrs., 610 F.3d 1318, 1328-29 (11th Cir. 2010).
D.
Hurst Litigation
In January 2017, Petitioner sought to vindicate his federal constitutional
Hurst rights by filing a state post-conviction motion. The state circuit court denied
relief based on the Florida Supreme Court’s decision in Asay v. State, 210 So. 3d 1, 22
(Fla. 2016), which held that Hurst applies retroactively on collateral review under
state law, but not to prisoners whose death sentences became final on direct appeal
before Ring v. Arizona, 536 U.S. 584 (2000), was decided on June 24, 2002. The state
court did not address Petitioner’s argument that a Ring-based retroactivity cutoff
violates the Eighth and Fourteenth Amendments, nor did it discuss whether
Petitioner’s waiver of state post-conviction proceedings constituted a prospective
waiver of his rights under Hurst. See App. 1a-4a.
In June 2017, the Florida Supreme Court stayed Petitioner’s appeal of the trial
court’s Hurst ruling and accompanying Petitioner’s state habeas petition2 pending
the disposition of Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), another appeal from
the denial of Hurst relief in a “pre-Ring” death sentence case. In Hitchcock, the
Florida Supreme Court summarily upheld its Ring-based retroactivity cutoff for
Hurst claims, citing its prior decisions in Asay and Mosley v. State, 209 So. 3d 1248
Due to ambiguity regarding the proper procedural vessel for raising a Hurst
claim, out of an abundance of caution, Petitioner’s claim was raised by counsel in both
a successive state post-conviction motion and a state habeas corpus petition.
2
6
(Fla. 2016), that had established the Ring-based cutoff, but declining to address any
of the appellant’s federal constitutional arguments. Id. at 217.
The Florida Supreme Court thereafter ordered Petitioner to show cause why
the denial of Hurst relief in his case should not be summarily affirmed in light of
Hitchcock and the Ring-based retroactivity cutoff.
App. 12a-14a.
Petitioner
responded that the cutoff violates the United States Constitution. He asserted that
by denying Hurst retroactivity to him and other “pre-Ring” defendants, while
applying Hurst retroactively to “post-Ring” defendants, the Florida Supreme Court
violated the Eighth Amendment’s prohibition against arbitrary and capricious
imposition of the death penalty and the Fourteenth Amendment’s guarantee of equal
protection. Petitioner further argued that, given the substantive nature of the rules
involved, the Supremacy Clause of the Constitution requires the Florida Supreme
Court to apply those rules retroactively to all defendants, not merely some
defendants, in light of Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and other
precedent. App. 18a-41a.
E.
Florida Supreme Court’s Initial Decision and Recall of Mandate
On January 22, 2018, the Florida Supreme Court issued an opinion summarily
affirming the denial of Hurst relief based on its Ring-based retroactivity cutoff given
that Petitioner’s death sentence became final in 1998. However, the Florida Supreme
Court subsequently recalled the mandate and ordered Petitioner to show cause why,
in light of the Florida Supreme Court’s then-recent decision in State v. Silvia, 235 So.
7
3d 349 (Fla. 2018), Hurst relief was not also precluded in his case based on his waiver
of state post-conviction proceedings in 2003. App. 15a-17a.
In Silvia, the defendant’s death sentence, rendered following a divided
advisory jury recommendation of death, became final nearly nine years after Ring.
Silvia, 235 So. 3d at 350. In his pre-Hurst direct appeal, Mr. Silvia argued that
Florida’s capital sentencing scheme was unconstitutional under Ring. That claim
was denied and his death sentence was affirmed in 2011. In 2012, Mr. Silvia waived
his right to post-conviction proceedings and appointed counsel. Id. But in 2016, after
Hurst was decided, he filed a post-conviction motion seeking to vacate his death
sentence under his federal constitutional Hurst rights.
The state circuit court
granted a new penalty phase under Hurst. On appeal by the State, the Florida
Supreme Court ruled that Mr. Silvia was not entitled to Hurst relief due to his state
post-conviction waiver, which the court deemed a prospective and continuing waiver
of all federal constitutional rights that have been recognized since the waiver or will
ever be recognized in the future. Id. at 351-52.
In response to the Florida Supreme Court’s post-Silvia show cause order in his
Hurst litigation, Petitioner responded Silvia violates the federal constitution because
a state post-conviction waiver cannot forever bar a defendant from challenging the
federal constitutionality of the statute underlying his conviction or sentence. Such a
rule would subvert the authority of the federal courts by immunizing state-court
rulings on federal constitutional rights from federal-court review. A state defendant’s
decision not to pursue state post-conviction review in Florida cannot constitute a
8
knowing and intelligent waiver of the federal constitutional right to penalty jury factfinding recognized in Hurst more than a decade later. Under this Court’s precedent,
a state defendant cannot validly waive a federal constitutional right that was not
recognized by the state courts at the time of the purported waiver.
Petitioner also argued that his case is factually distinguishable from Mr.
Silvia’s based on the lack of clarity in Petitioner’s waiver as compared to Silvia’s and
that, unlike Petitioner, Mr. Silvia was aware of the Ring issue at the time of his
waiver, having raised it in the trial court and on direct appeal.
On May 17, 2018, the Florida Supreme Court withdrew its January 2018
opinion denying Petitioner Hurst relief on retroactivity grounds alone, and
substituted an opinion denying relief on retroactivity and waiver grounds under
Silvia. The Florida Supreme Court’s brief opinion contained only this analysis:
After reviewing Alston’s responses to the orders to show cause, as well
as the State’s arguments in reply, we conclude that Alston’s valid waiver
of postconviction proceedings and counsel in 2003 precludes him from
claiming a right to relief under Hurst. See Silvia, 239 So. 3d 349; Alston
v. State, 894 So. 2d 46 (Fla. 2004). Moreover, Alston’s sentence of death
became final in 1999. Alston v. State, 723 So. 2d 148 (Fla. 1998). Thus,
even if Alston’s postconviction waiver did not preclude him from raising
a Hurst claim, Hurst would not apply retroactively to Alston’s sentence
of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the
circuit court’s denial of relief and deny Alston’s habeas petition.
App. 3a-4a; Alston v. State, 243 So. 3d 885, 886 (Fla. 2018).
9
REASONS FOR GRANTING THE WRIT
I.
This Court Should Review the Florida Supreme Court’s Silvia Rule
that a State Post-Conviction Waiver Automatically Waives all Future
Federal Constitutional Review
Petitioner was sentenced to death without a jury having made the necessary
findings for a death sentence. Nevertheless, the Florida Supreme Court denied Hurst
relief on the ground that he had waived his federal constitutional Hurst rights
because, long before Hurst was decided, he waived a materially different state-law
right to post-conviction review of his death sentence.
This Court should grant
certiorari review and hold that a state post-conviction waiver cannot forever bar a
defendant from challenging the federal constitutionality of the statute underlying his
conviction or sentence. This Court’s intervention is warranted not only to correct the
injustice of the Florida Supreme Court’s erroneous application of a waiver analysis to
Petitioner, but also to clarify that there can be no blanket prospective state-court
waivers of all newly-recognized federal constitutional rights.
The Florida Supreme Court’s holding in Silvia—that a capital defendant’s
state-law waiver of state post-conviction review forever precludes that defendant
from ever litigating subsequently-recognized federal constitutional rights—conflicts
with this Court’s well-established waiver jurisprudence, which requires the State to
bear the burden of demonstrating that a waiver of a federal constitutional right is
“knowing, intelligent, and voluntary.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
The ruling also conflicts with decisions of this Court holding that waivers are rightsspecific, and that one cannot knowingly waive a right that does not exist.
10
As this Court stated in Zerbst, “‘courts indulge every reasonable presumption
against waiver’ of fundamental constitutional rights[,] and . . . [the Court does] ‘not
presume acquiescence in the loss of fundamental rights.’” 304 U.S. at 464 & nn.12–
13 (quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937)); Ohio Bell Telephone
Co. v. Public Utilities Comm’n, 301 U.S. 292, 307 (1937) (“We do not presume
acquiescence in the loss of fundamental rights.”). A waiver requires “an intentional
relinquishment or abandonment of a known right or privilege.” Zerbst, 304 U.S. at
464 (emphasis added). To be valid, a waiver “must have been made with a full
awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
Applying these principles, this Court has rejected the argument that a litigant
can knowingly and intelligently waive a right not yet recognized. In Halbert v.
Michigan, 545 U.S. 605 (2005), for example, this Court addressed whether the Due
Process and Equal Protection Clauses of the Fourteenth Amendment “require the
appointment of counsel for defendants, convicted on their pleas, who seek access to
first-tier” appellate review of their convictions. 545 U.S. at 609-10. After holding
that the Fourteenth Amendment requires such appointment, the Court considered
the State’s argument that, regardless of the constitutional claim, the petitioner
himself was not entitled to relief because he had waived the “constitutionallyguaranteed right to appointed counsel . . . by entering a plea of nolo contendere.” Id.
at 623. The Court rejected that argument, reasoning that “[a]t the time he entered
11
his plea, Halbert, in common with other defendants convicted on their pleas, had no
recognized right to appointed appellate counsel he could elect to forego.” Id.
Similarly, in Smith v. Yeager, 393 U.S. 122 (1968), a state prisoner attacking
his conviction via federal habeas was denied an evidentiary hearing in the district
court. The denial was based on a finding that his counsel had previously waived any
right to a hearing in the course of a prior habeas petition attacking the same
conviction.
The prior waiver, however, occurred before this Court had issued a
decision expanding “the availability of evidentiary hearings in habeas corpus
proceedings, and ma[king] mandatory much of what had previously been within the
broad discretion of the District Court.” Id. at 125 (citing Townsend v. Sain, 372 U.S.
293, 310, 312 (1963)). Citing Zerbst, the Court held that it would not presume that
counsel “intentionally relinquished a known right or privilege . . . when the right or
privilege was of doubtful existence at the time of the supposed waiver.” Id. at 126.
The Florida Supreme Court’s Silvia rule, both facially and as applied in
Petitioner’s case, conflicts with Zerbst and Smith by holding that defendants like
Petitioner waived their Hurst rights before those rights existed. As in Halbert, 545
U.S. at 623, at the time of his pre-Hurst trial, Petitioner “had no recognized right . . .
he could elect to forgo.”
The Florida Supreme Court’s decision also conflicts with the decisions of other
courts holding that defendants cannot knowingly waive rights that do not exist at the
time they execute a waiver. See, e.g., Malvo v. Mathena, 254 F. Supp. 3d 820, 833-34
(E.D. Va. 2017) (holding that because Miller v. Alabama, 567 U.S. 460 (2012), had not
12
yet been decided at the time of petitioner’s guilty plea, he would not have received
notice of his Eighth Amendment right announced in Miller, and therefore he could
not possibly have knowingly waived this right), aff’d 893 F.3d 265 (4th Cir. 2018);
People v. Bilings, 770 N.W. 3d 893 (Mich. App. 2009) (holding indigent defendants
could not have knowingly and intelligently waived their Halbert rights because they
could not have clearly understood they had the Halbert rights before that decision). 3
In addition, the decision below contravenes this Court’s precedents holding
that the waiver of one right does not somehow implicitly waive a distinct right. In
Blackledge v. Perry, 417 U.S. 21 (1974), for example, the defendant pleaded guilty to
a felony assault indictment, and then pursued habeas relief from that conviction,
arguing that the State had vindictively increased his original misdemeanor assault
charge to a felony assault indictment. This Court rejected the State’s argument that
the guilty plea waived this claim. The Court held that a vindictive prosecution claim
implicates the “very power of the State” to prosecute, stating a due process claim
against being “hauled into court.”
Id. at 30-31.
The right against vindictive
prosecution, the Court reasoned, is therefore distinct from the trial and related rights
that one waives as part of a guilty plea. Id.
The Florida Supreme Court’s decision is also in tension with decisions of
federal courts of appeals and state high courts that have held that Miranda waivers
are insufficiently knowing where police have failed to provide the standard Miranda
warning. See, e.g., United States v. Wysinger, 683 F.3d 784, 793-805 (7th Cir. 2012);
Hart v. Attorney Gen. of State of Fla., 323 F.3d 884, 894 (11th Cir. 2003). Petitioner’s
waiver was similarly not knowing because he did not have accurate information about
the right he was purportedly waiving.
3
13
Similarly, in Menna v. New York, 423 U.S. 61, 63 & n.2 (1975) (per curiam),
the Court held that the rights waived as part of a guilty plea did not include the right
protected by the Double Jeopardy Clause not to be charged twice.
The latter
guarantee, the Court reasoned, is distinct from the rights a person waives by agreeing
he committed the illegal acts the prosecution has charged. And most recently, in
Class v. United States, 138 S. Ct. 798, 804-805 (2018), this Court held that the express
waiver of rights that are part of a guilty plea do not amount to a valid waiver of the
distinct right to challenge the constitutionality of the statute of conviction. Absent
an express waiver to prospective constitutional challenges, the defendant cannot be
said to have waived those rights. Id. at 806-07. See also Sause v. Bauer, 138 S. Ct.
2561, 2563 (2018) (finding “petitioner’s choice to abandon her Fourth Amendment
claim on appeal did not obviate the need to address” her First Amendment claim).
In all of these cases, the Court rejected claims that the waiver of some rights
implied a waiver of a distinct constitutional right. The Florida Supreme Court’s
conflation of Petitioner’s waiver of his statutory right to state post-conviction review
with a prospective waiver of the distinct federal constitutional right announced in
Hurst conflicts with these decisions. Cf. Tisnado v. United States, 547 F.2d 452, 460
(9th Cir. 1976) (“[I]t does not necessarily follow that petitioner’s waiver of a known
state [constitutional] right in 1954 can be said to constitute a knowing waiver of a
similar, but then as yet unknown, federal right.”) (citing Zerbst, 304 U.S. at 464). 4
In the speedy-trial context in particular, appellate courts finding waiver of
statutory trial rights routinely review their non-waived federal constitutional
counterparts. See, e.g., United States v. Tigano, 880 F.3d 602, 617 (2d Cir. 2018)
4
14
The flip side of the rule that the waiver of one right (be it state-law based or
under the federal constitution) does not constitute the waiver of a distinct
constitutional right is the rule that assertion of state-law claims in state courts, even
if related to federal constitutional claims, does not preserve the federal claims for
review. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (“Respondent did not apprise
the state court of his claim that the evidentiary ruling of which he complained was
not only a violation of state law, but denied him the due process of law guaranteed by
the Fourth Amendment.”). If a state-law objection is insufficient to afford a court an
opportunity to pass upon and correct a federal error, then a state-law waiver surely
must be insufficient evidence under Zerbst on which to find a defendant’s knowing
and intelligent waiver of a distinct federal constitutional right. 5
(holding that “a defendant may waive his statutory right to a speedy trial by failing
to formally raise it, but not his constitutional right”) (citing Barker v. Wingo, 407 U.S.
514, 529-30 (1972)); State v. O’Neal, 203 P. 3d 135, 140 (N.M. App. 2008) (finding
waiver of statutory six-month speedy-trial clock did not amount to knowing,
voluntary, and intelligent waiver of constitutional speedy trial right, and reviewing
constitutional claim on merits); State v. Bridgeford, 903 N.W. 2d 22, 28 (Neb. 2017)
(finding both defendants “permanently waived their statutory right to a speedy trial”
but addressing federal speedy trial claim on the merits); McGhee v. State, 657 So. 2d
799, 805 (Miss. 1995) (finding waiver in part of statutory speedy trial claim, but
addressing merits of constitutional speedy trial claim).
State high courts similarly reject state-law trial objections as sufficient to
preserve federal constitutional claims for appellate review. See, e.g., People v. Valdez,
281 P. 3d 924, 966 (Ca. 2012) (“Defendant argues the prosecution’s use of the
challenged gang-related evidence violated not only his statutory rights, but also his
constitutional rights to due process, a fair trial, and a reliable determination of guilt
and penalty. He failed to assert these constitutional objections at trial.”); Brown v.
State, 755 So. 2d 616, 622-23 (Fla. 2002) (holding appellant’s claim that jury
instruction was unconstitutionally vague was not preserved for appellate review by
counsel’s state-law objections); Lucio v. State, 351 S.W. 3d 878, 909 (Tex. Crim. App.
2011) (finding defendant’s “objections in no way alerted the trial court to any claim
5
15
The statutory right to continued state post-conviction proceedings on pre-filed
claims that Petitioner waived in 2003 is not the functional equivalent of the Sixth
Amendment right recognized in Hurst. To have a jury find all the facts necessary to
impose the death sentence is critically different from having a judge review
specifically listed claims of error. At the time of Petitioner’s sentencing, the only jury
right he was aware of was the right to an advisory jury sentencing recommendation
—not the right to have the jury find all facts necessary to impose a death sentence.
By holding that any Florida state post-conviction waiver precludes all future
federal constitutional review, the Florida Supreme Court’s Silvia rule effectively
removes the federal courts as the final arbiters of federal constitutional claims, and
usurps the federal judiciary’s independence. These actions by the Florida Supreme
Court stand counter to the most basic tenets of federalism, and deny defendants who
have given state waivers from their constitutional rights to due process, access to the
courts, and equal protection. Additionally, the Florida Supreme Court’s refusal to
entertain or even examine on the merits a new federal constitutional claim in such
cases, based solely on a state waiver, frustrates federal habeas review, because 28
U.S.C. § 2254(d)’s exhaustion rule requires defendants to seek a merits ruling on a
federal claim in state court prior to raising the claim in federal court.
that the State’s use of this information violated her Sixth Amendment right to
counsel, her Sixth Amendment right to confront the witnesses against her or any
other of her constitutional rights”).
16
The Florida Supreme Court’s Silvia rule poses federal constitutional questions
of extraordinary consequence. Waivers are an integral part of the civil and criminal
legal system, and questions of whether a waiver is knowing arise in thousands of
cases every year. In capital cases, waivers can carry grave consequences. The very
concept of waiver requires that an individual make an informed, autonomous, and
free choice to surrender a right. A waiver is a choice, and this Court has long held
that the validity of this choice turns on the exercise of an informed and free judgment.
That is why the Court has long required that waivers of constitutional rights must be
knowing, intelligent, and voluntary, and will not be presumed. If the courts have
held that the right does not exist, the individual cannot be assumed to “know” that it
does. And absent knowledge that the right exists, a waiver cannot be a truly informed
and autonomous decision.
The Florida Supreme Court’s rule undermines these
principles and continues to result in the unjust denial of federal constitutional review
in numerous capital cases in Florida. This Court should intervene to address the rule
now in order to prevent the Florida Supreme Court from continuing to apply its
unconstitutional rule to preclude the Sixth Amendment review Hurst requires.
II.
Certiorari Review is Also Warranted Because the Florida Supreme
Court’s Application of its Unconstitutional Silvia Rule to Deny Hurst
Relief Was Particularly Unjust in Petitioner’s Case
Certiorari review is also warranted because the Florida Supreme Court’s
application of its unconstitutional Silvia rule to deny Hurst relief was particularly
unjust in Petitioner’s case. As Petitioner argued to the Florida Supreme Court, even
if the Silvia rule—that defendants who waived state post-conviction review before
17
Hurst also prospectively waived their subsequently-recognized Hurst rights—was
constitutional in some cases like Mr. Silvia’s, it cannot be constitutionally applied to
those, like Petitioner, who did not know about Ring at the time of their state waiver.
Unlike Petitioner, Mr. Silvia knew that his state post-conviction waiver would
preclude him from raising in state court a federal claim for relief based on the
reasoning in Ring. Mr. Silvia had raised the Ring issue at the trial court level and
on direct appeal.
When he subsequently and uncontestably waived state post-
conviction review, Mr. Silvia indicated that he knew that by waiving arguments
regarding the constitutional defect in Florida’s capital sentencing scheme made
apparent in Ring. Petitioner’s state post-conviction waiver, however, occurred in the
midst of prolonged competency litigation. Petitioner’s case became final on direct
appeal prior to Ring in 1999. Petitioner filed numerous pleadings in the trial court
and Florida Supreme Court, seeking to end his state court collateral proceedings
based on the mistaken belief that his state collateral rights had ended or, because of
various issues, continued state court litigation would procedurally bar him from
challenging his convictions in federal court. App. 43a-102a. These pleadings led to a
competency challenge in 2000, which led to a finding of incompetence from 2001 until
2003, when, despite a split in opinions amongst experts, the trial court found
Petitioner to be competent. The Florida Supreme Court even ordered additional
briefing sua sponte after the 3.850 waiver based on Petitioner’s pro se pleadings.
Alston v. State, 894 So. 2d 641 (Fla. 2004).
18
Petitioner’s waiver also occurred after a shell motion had been filed on his
behalf, so if one assumes he was competent, one must also assume he knew exactly
which claims he was waiving (the claims in the shell motion). During the Durocher
hearing, the trial court advised Petitioner that waiving his post-conviction
proceedings would result in dismissal with prejudice of his currently pending claims.
App. 64a, 93a-94a. These claims did not include the Ring issue that led to Hurst, and
Petitioner was not instructed that he would not be able to file later motions regarding
different, new claims.
The decision in Silvia that a waiver of post-conviction rights precludes a claim
of Hurst relief, if constitutional at all, may only be applied under the narrow factual
circumstances in Silvia: (1) when a post-conviction waiver occurs prior to filing any
state post-conviction motion, which necessarily contemplates the waiver of future
claims; and (2) at the time of the waiver, the defendant knew about the Ring issue.
The state circuit court’s colloquy with Petitioner regarding his state postconviction waiver was directed at his already-filed shell motion and the claims
presented therein. The plain language used by the court was that the already-filed
motion would be dismissed and the issues in that motion could not be brought before
the courts again. There was no warning by either the court or the Attorney General’s
statements that future motions would be prohibited even if they relied upon different
grounds than those presented in the shell motion.
Indeed, the trial court told
Petitioner that a dismissal with prejudice would not bar him from reasserting his
rights under extraordinary circumstances. See Fahy v. Horn, 516 F.3d 169, 186-87
19
(3d Cir. 2008) (warning against precluding federal habeas review due to a state-court
waiver “when we are not convinced that the defendant was aware of the nature and
scope of those rights . . . What we have before us is a record of equivocation. It does
not support an enforceable waiver, which would deny [Petitioner] federal review of
his claims”). And, unlike in Silvia, at the time of the filing of Petitioner’s shell motion
and throughout the period of Petitioner’s incompetency, Ring had not issued. Unlike
Mr. Silvia, Petitioner had no knowledge of Ring at the time of his state post-conviction
waiver.
The only possibly valid basis to apply the state court’s Silvia rule is missing in
this case. The Florida Supreme Court’s application of the rule here violated
Petitioner’s equal protection and due process rights, and resulted in the arbitrary and
capricious upholding of Petitioner’s death sentence. Silvia cannot be used as a valid
basis to deny Petitioner from claiming a right to relief under Hurst.
This case presents an ideal opportunity to address the unconstitutionality of
the Silvia rule, as both a facial and as-applied matter. Petitioner, after a long period
of incompetence, waived only a state statutory right to review of his previously-raised
state post-conviction claims, not his federal constitutional right, later recognized in
Hurst to have the jury decide all facts necessary to the imposition of a death sentence.
Petitioner could not have knowingly and intelligently waived his right to future, notyet-established federal constitutional claims. At no time was Petitioner made aware
of a right to have a jury find all requisite elements for his death sentence.
20
This Court should grant a writ of certiorari and ultimately hold that the
Florida Supreme Court’s Silvia rule, both on its face and as applied to Petitioner’s
case, violates the United States Constitution.
III.
The Florida Supreme Court’s Ring-Based Retroactivity Cutoff
Violates the Eighth Amendment’s Prohibition Against Arbitrary and
Capricious Capital Punishment and the Fourteenth Amendment’s
Guarantee of Equal Protection
A.
Traditional Non-Retroactivity Rules Can Serve Legitimate
Purposes, but the Eighth and Fourteenth Amendments
Impose Boundaries in Capital Cases
Traditional non-retroactivity rules, which deny the benefit of new
constitutional decisions to prisoners whose cases have already become final on direct
review, are a pragmatic necessity of the judicial process and are accepted as
constitutional despite some features of unequal treatment. But in creating such
rules, courts are bound by constitutional restraints. In capital cases, the Eighth and
Fourteenth Amendments impose boundaries on a state court’s application of
untraditional non-retroactivity rules, such as those that fix retroactivity cutoffs at
points in time other than the date of the new constitutional ruling. This Court has
not had occasion to address a partial retroactivity scheme because such schemes are
not the norm, but the proposition that states do not enjoy free reign to draw arbitrary
temporal retroactivity cutoffs at any point in time emanates logically from the Court’s
Eighth and Fourteenth Amendment jurisprudence.
In Furman v. Georgia, 408 U.S. 238 (1972), and Godfrey v. Georgia, 446 U.S.
420 (1980), this Court described the now-familiar idea that “if a State wishes to
authorize capital punishment it has a constitutional responsibility to tailor and apply
21
its law in a manner that avoids the arbitrary and capricious infliction of the death
penalty.” Godfrey, 446 U.S. at 428. This Court’s Eighth Amendment decisions have
“insist[ed] 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 prohibition against arbitrariness and capriciousness
in capital cases refined this Court’s Fourteenth Amendment precedents holding that
equal protection 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 harsh form of punishment. Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535, 541 (1942). A state does not have unfettered discretion to create classes of
condemned prisoners.
The Florida Supreme Court did not simply apply a traditional retroactivity
rule to Petitioner’s case. On the contrary, it crafted a decidedly untraditional and
troublesome non-retroactivity scheme.
B.
The Florida Supreme Court’s Hurst Retroactivity Cutoff at Ring
Involves Something Other Than the Traditional NonRetroactivity Rules Addressed by This Court’s Teague and
Related Jurisprudence
The non-retroactivity rule applied below differs from traditional nonretroactivity rules addressed in this Court’s precedents. The question of retroactivity
arises in particular cases at the same point in time: when the defendant’s conviction
or sentence becomes “final” upon the conclusion of direct review. See, e.g., Griffith v.
Kentucky, 479 U.S. 314, 322 (1987); Teague v. Lane, 489 U.S. 288, 304-07 (1989). See
also, Montgomery, 136 S. Ct. at 725 (“In the wake of Miller, the question has arisen
22
whether its holding is retroactive to juvenile offenders whose convictions and
sentences were final when Miller was decided.”).
The Court’s decision in Danforth v. Minnesota, 552 U.S. 264 (2006), which held
that states may apply constitutional rules retroactively even when the United States
Constitution does not compel them to do so, also assumed a definition of retroactivity
based on the date that a conviction and sentence became final on direct review. See
id. at 268-69.
None of this Court’s precedents address the Florida Supreme Court’s concept
of “partial retroactivity,” whereby a new constitutional ruling of the Court may be
available on collateral review to some prisoners whose convictions and sentences have
already become final, but not to all prisoners on collateral review.
In two separate decisions issued on the same day—Asay v. State, 210 So. 3d 1
(Fla. 2016), and Mosley v. State, 209 So. 3d 1248 (Fla. 2016)—the Florida Supreme
Court addressed the retroactivity of this Court’s decision in Hurst v. Florida, as well
as the Florida Supreme Court’s own decision on remand in Hurst v. State, 202 So. 3d
40 (Fla. 2016), under Florida’s state retroactivity test. 6 The Florida Supreme Court
divided prisoners into two classes based on the date their sentences became final
relative to this Court’s June 24, 2002, decision in Ring. In Asay, the court held that
the Hurst decisions do not apply retroactively to Florida prisoners whose death
Florida’s retroactivity analysis is still guided by this Court’s pre-Teague threefactor analysis derived from Stovall v. Denno, 388 U.S. 293 (1967), and Linkletter v.
Walker, 381 U.S. 618 (1965). See Witt v. State, 387 So. 2d 922, 926 (Fla. 1980)
(adopting Stovall/Linkletter factors).
6
23
sentences became final on direct review before Ring. Asay, 210 So. 3d at 21-22. In
Mosley, the court held that the Hurst decisions do apply retroactively to prisoners
whose death sentences became final after Ring. Mosley, 209 So. 3d at 1283.
The Florida Supreme Court offered a narrative-based justification for this
partial retroactivity framework, explaining that “pre-Ring” retroactivity was
inappropriate because Florida’s capital sentencing scheme was not unconstitutional
before this Court decided Ring, but that “post-Ring” retroactivity was appropriate
because the state’s statute became unconstitutional as of the time of Ring.
Mosley,
209 So. 3d at 1283 (emphasis added).
Since Asay and Mosley, the Florida Supreme Court has mechanically applied
its Hurst retroactivity cutoff. In collateral-review cases, the Florida Supreme Court
has granted the jury determinations required by Hurst to dozens of “post-Ring”
prisoners whose death sentences became final before Hurst. But, because of the
Florida Supreme Court’s Ring-based retroactivity cutoff, dozens more “pre-Ring”
prisoners are denied access to the jury determination Hurst found constitutionally
required. At no point has the Florida Supreme Court made more than fleeting
remarks about whether its framework is consistent with the United States
Constitution.
24
C.
The Florida Supreme Court’s Hurst Retroactivity Cutoff at Ring
Exceeds Eighth and Fourteenth Amendment Limits
1.
The Ring-Based Cutoff Creates More Arbitrary and
Unequal Results than Traditional Retroactivity Decisions
The Florida Supreme Court’s Hurst retroactivity cutoff at Ring involves a kind
and degree of arbitrariness that far exceeds the level justified by traditional
retroactivity jurisprudence.
As an initial matter, the Florida Supreme Court’s rationale is open to question.
The court described its rationale as follows: “Because Florida’s capital sentencing
statute has essentially been unconstitutional since Ring in 2002, fairness strongly
favors applying Hurst retroactively to that time,” but not before then. Mosley, 209
So. 3d at 1280.
But Florida’s capital sentencing scheme did not become
unconstitutional when Ring was decided—Ring recognized that Arizona’s capital
sentencing scheme was unconstitutional. Florida’s capital sentencing statute was
always unconstitutional. This was recognized in Hurst, not Ring.
The Florida Supreme Court’s approach raises serious questions about linedrawing at a prior point in time. There will always be earlier precedents of this Court
upon which a new constitutional ruling builds. 7
The foundational precedent for both Ring and Hurst was the Court’s decision
in Apprendi, 530 U.S. at 466. As Hurst recognizes, it was Apprendi, not Ring, which
first explained that the Sixth Amendment requires any fact-finding that increases a
defendant’s maximum sentence to be found by a jury beyond a reasonable doubt.
Hurst, 136 S. Ct. at 621. However, the Florida Supreme Court has never explained
why it drew a line at Ring as opposed to Apprendi.
7
25
The effect of the cutoff also does not meet its aim. The Florida Supreme Court’s
rationale for drawing a retroactivity line at Ring is undercut by the court’s denial of
Hurst relief to prisoners whose sentences became final before Ring but who correctly
but unsuccessfully challenged Florida’s unconstitutional sentencing scheme after
Ring, 8 while granting relief to prisoners who failed to raise any challenge, either
before or after Ring.
If prisoners whose sentences became final after Ring are
deserving of Hurst relief because Florida’s scheme has been unconstitutional since
Ring, then prisoners who actually challenged Florida’s scheme after Ring would also
receive relief in a non-arbitrary scheme. But, as it stands, none of these prisoners
can access Hurst relief because they fall on the wrong side of the Florida Supreme
Court’s bright-line retroactivity cutoff. 9
The Florida Supreme Court’s rule also does not reliably separate Florida’s
death row into meaningful pre-Ring and post-Ring categories.
In practice, as
Petitioner explained to the Florida Supreme Court, the date of a particular Florida
death sentence’s finality on direct appeal in relation to the June 24, 2002, decision in
Ring can depend on a score of random factors having nothing to do with the offender
or the offense: whether there were delays in a clerk’s transmitting the direct appeal
See, e.g., Miller v. State, 926 So. 2d 1243, 1259 (Fla. 2006); Nixon v. State, 932
So. 2d 1009, 1024 (Fla. 2006); Bates v. State, 3 So. 3d 1091, 1106 n.14 (Fla. 2009);
Bradley v. State, 33 So. 3d 664, 670 n.6 (Fla. 2010).
8
In dissent in Hitchcock, 226 So. 3d at 218-20, Justice Lewis noted that this
inconsistency should cause the court to abandon the bright-line Ring cutoff and grant
Hurst relief to prisoners who preserved challenges to their unconstitutional
sentences.
9
26
record to the Florida Supreme Court; whether direct appeal counsel sought
extensions of time to file a brief; whether a case overlapped with the Florida Supreme
Court’s summer recess; how long the assigned Justice took to draft the opinion for
release; whether an extension was sought for a rehearing motion and whether such
a motion was filed; whether there was a scrivener’s error necessitating issuance of a
corrected opinion; how long a certiorari petition remained pending in this Court, if
filed at all; and so on.
In one striking example, the Florida Supreme Court affirmed Gary Bowles’s
and James Card’s unrelated death sentences in separate opinions that were issued
on the same day, October 11, 2001. See Bowles v. State, 804 So. 2d 1173, 1184 (Fla.
2001); Card v. State, 803 So. 2d 613, 617 (Fla. 2001). Both prisoners petitioned for a
writ of certiorari in this Court. Mr. Card’s sentence became final four (4) days after
Ring was decided—on June 28, 2002—when his certiorari petition was denied. Card
v. Florida, 536 U.S. 963 (2002). However, Mr. Bowles’s sentence became final seven
(7) days before Ring was decided—on June 17, 2002—when his certiorari petition was
denied. Bowles v. Florida, 536 U.S. 930 (2002). The Florida Supreme Court recently
granted Hurst relief to Mr. Card, ruling that Hurst was retroactive because his
sentence became final after the Ring cutoff. See Card v. Jones, 219 So. 3d 47 (Fla.
2017). However, Mr. Bowles, whose case was decided on direct appeal on the same
day as Mr. Card’s, falls on the other side of the Florida Supreme Court’s current
retroactivity cutoff. His Hurst claim was summarily denied by the Florida Supreme
27
Court in the same two-week period as Petitioner’s. Bowles v. State, 235 So. 3d 292
(Fla. 2018).
Another arbitrary factor affecting whether a defendant receives Hurst relief
under the Florida Supreme Court’s date-of-Ring retroactivity approach includes
whether a resentencing was granted because of an unrelated error.
Under the
current retroactivity rule, “older” cases dating back to the 1980s with a post-Ring
resentencing qualify for Hurst relief, while other less “old” cases do not. See, e.g.,
Johnson v. State, 205 So. 3d 1285, 1285 (Fla. 2016) (granting Hurst relief to a
defendant whose crime occurred in 1981 but who was granted relief on a third
successive post-conviction motion in 2010, years after the Ring decision); cf. Calloway
v. State, 210 So. 3d 1160 (Fla. 2017) (granting Hurst relief in a case where the crime
occurred in the late 1990s, but interlocutory appeals resulted in a 10-year delay before
the trial).
Under the Florida Supreme Court’s approach, a defendant who was
originally sentenced to death before Petitioner, but who was later resentenced to
death after Ring, would receive Hurst relief while Petitioner does not.
The Ring-based cutoff not only infects the system with arbitrariness, but it also
raises concerns under the Fourteenth Amendment’s Equal Protection Clause. As an
equal protection matter, the cutoff treats death-sentenced prisoners in the same
posture differently without “some ground of difference that rationally explains the
different treatment.” Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). When two classes
are created to receive different treatment, as the Florida Supreme Court has done
here, the question is “whether there is some ground of difference that rationally
28
explains the different treatment . . . .” Id.; see also McLaughlin v. Florida, 379 U.S.
184, 191 (1964). The Fourteenth Amendment requires that distinctions in state
criminal laws that impinge upon fundamental rights must be strictly scrutinized.
See, e.g., Skinner, 316 U.S. at 541. When a state draws a line between those capital
defendants who will receive the benefit of a fundamental right to jury decisionmaking, the justification for that line must satisfy strict scrutiny. The Florida
Supreme Court’s rule falls short of that demanding standard.
In contrast to the court’s majority, several members of the Florida Supreme
Court have explained that the cutoff does not survive scrutiny. In Asay, Justice
Pariente wrote: “The majority’s conclusion results in an unintended arbitrariness as
to who receives relief . . . . To avoid such arbitrariness and to ensure uniformity and
fundamental fairness in Florida’s capital sentencing . . . Hurst should be applied
retroactively to all death sentences.” Asay, 210 So. 3d at 36 (Pariente, J., concurring
in part and dissenting in part). Justice Perry was blunter: “In my opinion, the line
drawn by the majority is arbitrary and cannot withstand scrutiny under the Eighth
Amendment because it creates an arbitrary application of law to two grounds of
similarly situated persons.” Id. at 37 (Perry, J., dissenting). Justice Perry correctly
predicted: “[T]here will be situations where persons who committed equally violent
felonies and whose death sentences became final days apart will be treated differently
without justification.” Id. And in Hitchcock, Justice Lewis noted that the Court’s
majority was “tumbl[ing] down the dizzying rabbit hole of untenable line drawing.”
Hitchcock, 226 So. 3d at 218 (Lewis, J., concurring in the result).
29
2.
The Ring-Based Cutoff Denies Hurst Relief to the Most
Deserving Class of Death-Sentenced Florida Prisoners
The cutoff forecloses Hurst relief to the class of death-sentenced prisoners for
whom relief makes the most sense. In fact, several features common to Florida’s “preRing” death row population compel the conclusion that denying Hurst relief in their
cases, while affording Hurst relief to their “post-Ring” counterparts, is especially
perverse.
Florida prisoners who were tried for capital murder before Ring are more likely
to have been sentenced to death by a system that would not produce a capital
sentence—or sometimes even a capital prosecution—today. Since Ring was decided,
as public support for the death penalty has waned, prosecutors have been
increasingly unlikely to seek and juries increasingly unlikely to impose death
sentences. 10
Florida prisoners who were sentenced to death before Ring are also more likely
than post-Ring prisoners to have received those death sentences in trials that
involved problematic fact-finding.
The past two decades have witnessed broad
recognition of the unreliability of numerous kinds of evidence—flawed forensicscience theories and practices, hazardous eyewitness identification testimony, and so
The number of death sentences imposed in the United States has been in steep
decline in the last two decades. In 1998, there were 295 death sentences imposed in
the United States; in 2002, there were 166; in 2017 there were 39. Death Penalty
Information Center, Facts About the Death Penalty (updated August 2018), at
3, available at https://deathpenaltyinfo.org/documents/FactSheet.pdf.
10
30
forth—that was widely accepted in pre-Ring capital trials. 11 Forensic disciplines that
were once considered sound fell under deep suspicion following numerous
exonerations. 12
Post-Ring sentencing juries are more fully informed of the defendant’s entire
mitigating history than juries in the pre-Ring period. The American Bar Association
(“ABA”) guideline requiring a capital mitigation specialist for the defense was not
even promulgated until 2003. 13 Limited information being provided to juries was
See, e.g., Report to the President: Forensic Science in Criminal Courts:
Ensuring Scientific Validity of Feature-Comparison Methods” (2016) (Report of the
President’s Counsel of Advisors on Science and Technology), available at
https://fdprc.capdefnet.org/sites/cdn_fdprc/files/Assets/public/other_useful_informati
on/forensic_information/pcast_forensic_science_report_final.pdf (evaluating and
explaining the procedures of the various forensic science disciplines common to
capital trials, and the varying degrees, or lack, of accuracy and reliability of these
disciplines).
11
See, e.g., Paul C. Giannelli, Wrongful Convictions and Forensic Science: The
Need to Regulate Crime Labs, 86 N.C. L. REV. 163, 166 (2007) (“The most recent
study of 200 DNA exonerations found that forensic evidence (present in 57% of the
cases) was the second leading type of evidence (after eyewitness identifications at
79%) used in wrongful conviction cases; COMMITTEE ON IDENTIFYING THE NEEDS OF
FORENSICS SCIENCES COMMUNITY, NATIONAL RESEARCH COUNCIL,
THE
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD, at 4
(2009), available at https://www.ncjrs.gov
/pdffiles1/nij/grants/228091.pdf (“[Scientific advances] have revealed that, in some
cases, substantive information and testimony based on faulty forensic science
analyses may have contributed to wrongful convictions of innocent people.”).
12
ABA Guidelines for Appointment and Performance of Defense Counsel in
Death Penalty Cases (Rev. Ed. Feb., 2003), Guidelines 4.1(A)(1) and 10.4(C)(2), 31
HOFSTRA L. REV. 913, 952, 999-1000 (2003). See also Supplementary Guidelines
for the Mitigation of Defense Teams in Death Penalty Cases, Guideline 5.1(B),
(C), 36 HOFSTRA L. REV. 677 (2008); Craig M. Cooley, Mapping the Monster's
Mental Health and Social History: Why Capital Defense Attorneys and Public
Defender Death Penalty Units Require the Services of Mitigation Specialists, 30
OKLA. CITY U. L. REV. 23 (2005); Mark Olive, Russell Stetler, Using the
13
31
especially endemic to Florida in the era before Ring was decided. 14 The capital
defense bar in Florida, as a result of various funding crises and the inadequate
screening mechanism for lawyers on the list of those available to be appointed in
capital cases, produced what former Chief Justice of the Florida Supreme Court
Gerald Kogan described as “some of the worst lawyering” he had ever seen. 15 As a
result, since 1976, Florida has had 27 exonerations—more than any other state—all
but five of which involved convictions and death sentences imposed before 2002. 16
Supplementary Guideline for the Mitigation Function of Defense Teams in Death
Penalty Cases to Change the Picture in Post-Conviction, 30 HOFSTRA L. REV. 1067
(2008).
See, e.g., EVALUATING FAIRNESS AND ACCURACY IN STATE DEATH PENALTY
SYSTEMS: THE FLORIDA DEATH PENALTY ASSESSMENT REPORT, AN ANALYSIS OF
FLORIDA’S DEATH PENALTY LAWS, PROCEDURES, AND PRACTICES, American Bar
Association (2006) [herein “ABA Florida Report”]. The report concludes that Florida
leads the nation in death-row exonerations, inadequate compensation for conflict trial
counsel in capital cases, lack of qualified and properly monitored capital collateral
registry counsel and inadequate compensation for them, significant juror confusion,
lack of unanimity in jury’s sentencing decision, the practice of judicial override, lack
of transparency in the clemency process, racial and geographic disparities in capital
sentencing, and death sentences imposed on people with severe mental disability. Id.
at iv-ix. The report also “caution[s] that their harms are cumulative.” Id. at iii.
14
Death Penalty Information Center, New Voices: Former FL Supreme Court
Judge
Says
Capital
Punishment
System
is
Broken,
available
at
https://deathpenaltyinfo.org/new-voices-former-fl-supreme-court-judge-sayscapital-punishment-system-broken (citing G. Kogan, Florida’s Justice System Fails on
Many Fronts, St. Petersburg Times, July 1, 2008.
16
Death Penalty Information Center, Florida Fact Sheet, available at
https://deathpenaltyinfo.org/innocence?inno_name=&exonerated=&a
mp;state_innocence=8&race=All&dna=All.
15
32
And as for mitigating evidence, Florida’s statute did not even include the “catch-all”
statutory language until 1996. 17
The “advisory” jury instructions were also so confusing that jurors consistently
reported that they did not understand their role. 18
If the advisory jury did
recommend life, judges—who must run for election and reelection in Florida—could
impose the death penalty anyway. 19
In fact, relying on the cutoff, the Florida
Supreme Court has summarily denied Hurst relief where the defendant was
ABA Florida Report at 16, citing 1996 Fla. Laws ch. 290, § 5; 1996 Fla. Laws
ch. 96-302, Fla. Stat. 921.141(6)(h) (1996).
17
The ABA found one of the areas in need of most reform in Florida capital cases
was significant juror confusion. ABA Florida Report at vi (“In one study over 35
percent of interviewed Florida capital jurors did not understand that they could
consider any evidence in mitigation and 48.7 percent believed that the defense had to
prove mitigating factors beyond a reasonable doubt. The same study also found that
over 36 percent of interviewed Florida capital jurors incorrectly believed that they
were required to sentence the defendant to death if they found the defendant’s
conduct to be “heinous, vile, or depraved” beyond a reasonable doubt, and 25.2 percent
believed that if they found the defendant to be a future danger to society, they were
required by law to sentence him/her to death, despite the fact that future
dangerousness is not a legitimate aggravating circumstance under Florida law.”).
18
See ABA Florida Report at vii (“Between 1972 and 1979, 166 of the 857 first
time death sentences imposed (or 19.4 percent) involved a judicial override of a jury’s
recommendation of life imprisonment without the possibility of parole . . . . Not only
does judicial override open up an additional window of opportunity for bias—as stated
in 1991 by the Florida Supreme Court’s Racial and Ethnic Bias Commission but it
also affects jurors’ sentencing deliberations and decisions. A recent study of death
penalty cases in Florida and nationwide found: (1) that when deciding whether to
override a jury’s recommendation for a life sentence without the possibility of parole,
trial judges take into account the potential “repercussions of an unpopular decision
in a capital case,” which encourages judges in judicial override states to override jury
recommendations of life, “especially so in the run up to judicial elections;” and (2) that
the practice of judicial override makes jurors feel less personally responsible for the
sentencing decision, resulting in shorter sentencing deliberations and less
disagreement among jurors.”).
19
33
sentenced to death by a judge “overriding” a jury’s recommendation of life. See
Marshall v. Jones, 226 So. 3d 211 (Fla. 2017).
And, especially in these “older cases,” the advisory jury scheme invalidated by
Hurst implicated systematic violations of Caldwell v. Mississippi, 472 U.S. 320
(1987). Cf. Truehill v. Florida, 138 S. Ct. 3 (2017) (Sotomayor, J., dissenting from the
denial of certiorari) (“Although the Florida Supreme Court has rejected a Caldwell
challenge to its jury instructions in capital cases in the past, it did so in the context
of its prior sentencing scheme, where the court was the final decision-maker and the
sentencer—not the jury.”). In contrast to post-Ring cases, the pre-Ring cases did not
include more modern instructions leaning towards a “verdict” recognizable to the
Sixth Amendment. See Sullivan v. Louisiana, 508 U.S. 275 (1993).
We should also bear in mind that prisoners whose death sentences became
final before Ring was decided in 2002 have been incarcerated on death row longer
than prisoners sentenced after that date. Notwithstanding the well-documented
hardships of Florida’s death row, see, e.g., Sireci v. Florida, 137 S. Ct. 470 (2016)
(Breyer, J., dissenting from the denial of certiorari), they have demonstrated over a
longer time that they are capable of adjusting to a prison environment and living
without endangering any valid interest of the state. “At the same time, the longer
the delay, the weaker the justification for imposing the death penalty in terms of
punishment’s basic retributive or deterrent purposes.” Knight v. Florida, 120 S. Ct.
459, 462 (1999) (Breyer, J., dissenting from the denial of certiorari).
34
Taken together, these considerations show that the Florida Supreme Court’s
partial non-retroactivity rule for Hurst claims involves a level of arbitrariness and
inequality that is hard to reconcile with the Eighth and Fourteenth Amendments.
IV.
The Partial Retroactivity Formula Employed for Hurst Violations in
Florida Violates the Supremacy Clause of the United States
Constitution Under Montgomery, Which Requires Florida’s Courts to
Apply Hurst Retroactively to All Death-Sentenced Prisoners
In Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016), this Court held that
the Supremacy Clause of the United States Constitution requires state courts to
apply “substantive” constitutional rules retroactively as a matter of federal
constitutional law, notwithstanding any separate state-law retroactivity analysis. In
that case, a Louisiana state prisoner filed a claim in state court seeking retroactive
application of the rule announced in Miller v. Alabama, 567 U.S. 460 (2012) (holding
that imposition of mandatory sentences of life without parole on juveniles violates
the Eighth Amendment). The state court denied the prisoner’s claim on the ground
that Miller was not retroactive as a matter of state retroactivity law. Montgomery,
136 S. Ct. at 727. This Court reversed, holding that because the Miller rule was
substantive as a matter of federal law, the state court was obligated to apply it
retroactively. See id. at 732-34.
Montgomery clarified that the Supremacy Clause requires state courts to apply
substantive rules retroactively notwithstanding the result under a state-law
analysis. Montgomery, 136 S. Ct. at 728-29 (“[W]hen 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.”) (emphasis added).
35
Thus, Montgomery held, “[w]here state collateral review proceedings permit prisoners
to challenge the lawfulness of their confinement, States cannot refuse to give
retroactive effect to a substantive constitutional right that determines the outcome
of that challenge.” Id. at 731-32.
Importantly for purposes of Hurst retroactivity analysis, this Court found the
Miller rule substantive in Montgomery even though the rule had “a procedural
component.” Id. at 734. Miller did “not categorically bar a penalty for a class of
offenders or type of crime—as, for example, [the Court] did in Roper or Graham.”
Miller, 567 U.S. at 483. Instead, “it mandate[d] only that a sentencer follow a certain
process—considering an offender’s youth and attendant characteristics—before
imposing a particular penalty.” Id. Despite Miller’s “procedural” requirements, the
Court in Montgomery warned against “conflat[ing] a procedural requirement
necessary to implement a substantive guarantee with a rule that ‘regulate[s] only the
manner of determining the defendant’s culpability.’” Montgomery, 136 S. Ct. at 734
(quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)) (first alteration added).
Instead, the Court explained, “[t]here are instances in which a substantive change in
the law must be attended by a procedure that enables a prisoner to show that he falls
within a category of persons whom the law may no longer punish,” id. at 735, and
that the necessary procedures do not “transform substantive rules into procedural
ones,” id. In Miller, the decision “bar[red] life without parole . . . for all but the rarest
of juvenile offenders, those whose crimes reflect permanent incorrigibility. For that
reason, Miller is no less substantive than are Roper and Graham.” Id. at 734.
36
As Hurst v. Florida explained, under Florida law, the factual predicates
necessary for the imposition of a death sentence were: (1) the existence of particular
aggravating circumstances; (2) that those particular aggravating circumstances were
“sufficient” to justify the death penalty; and (3) that those particular aggravating
circumstances together outweigh the mitigation in the case. Hurst held that those
determinations must be made by juries. These decisions are substantive. Thus, they
amount to an “instance[] in which a substantive change in the law must be attended
by a procedure that enables a prisoner to show that he falls within a category of
persons whom the law may no longer punish.” Id. at 735.
On remand, Hurst v. State held not only that the requisite jury findings must
be made beyond a reasonable doubt, but also that juror unanimity is necessary for
compliance with the constitutional requirement that the death penalty be applied
narrowly to the worst offenders and that the sentencing determination “expresses the
values of the community as they currently relate to the imposition of the death
penalty.” Hurst v. State, 202 So. 3d at 60-61. The function of the unanimity rule is
to ensure that Florida’s death-sentencing scheme complies with the federal
constitution. Id. As a matter of federal retroactivity law, this is also substantive.
See Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“[T]his Court has determined
whether a new rule is substantive or procedural by considering the function of the
rule”). And it remains substantive even though the subject concerns the method by
which a jury makes its decision. See Montgomery, 136 S. Ct. at 735 (noting that
37
state’s ability to determine the method of enforcing constitutional rule does not
convert a rule from substantive to procedural).
In Welch, the Court addressed the retroactivity of the constitutional rule
articulated in Johnson v. United States, 135 S. Ct. 2551, 2560 (2015). In Johnson,
the Court held that a federal statute that allowed sentencing enhancement was
unconstitutional. Id. at 2556. Welch held that Johnson’s ruling was substantive
because it “affected the reach of the underlying statute rather than the judicial
procedures by which the statute is applied”—therefore it must be applied
retroactively. Welch, 136 S. Ct. at 1265.
The same is so in the Hurst context. The Sixth Amendment requirement that
each element of a Florida death sentence must be found beyond a reasonable doubt
and the Eighth Amendment requirement of jury unanimity in fact-finding are
substantive constitutional rules as a matter of federal law because they place certain
murders “beyond the State’s power to punish,” Welch, 136 S. Ct. at 1265, with a
sentence of death. Following the Hurst decisions, “[e]ven the use of impeccable
factfinding procedures could not legitimate a sentence based on” the judge-sentencing
scheme. Id. The “unanimous finding of aggravating factors and [of] the facts that
are sufficient to impose death, as well as the unanimous finding that they outweigh
the mitigating circumstances, all serve to help narrow the class of murderers subject
to capital punishment,” Hurst, 202 So. 3d at 60 (emphasis added), i.e., the very
purpose of the rules is to place certain individuals beyond the state’s power to punish
by death. Such rules are substantive and accordingly must be applied retroactively.
38
Hurst retroactivity is not undermined by Summerlin, 542 U.S. at 364, where
this Court held that Ring was not retroactive in a federal habeas case. In Ring, the
Arizona statute permitted a death sentence to be imposed upon a finding of fact that
at least one aggravating factor existed. Summerlin did not review a statute, like
Florida’s, that required the jury not only to conduct the fact-finding regarding the
aggravators, but also fact-finding on whether the aggravators were sufficient to
impose death and whether the death penalty was an appropriate sentence.
Summerlin acknowledged that if the Court itself “[made] a certain fact essential to
the death penalty . . . [the change] would be substantive.” 542 U.S. at 354. Such a
change occurred in Hurst where this Court held that it was unconstitutional for a
judge alone to find that “sufficient aggravating factors exist and [t]hat there are
insufficient mitigating circumstances to outweigh the aggravating circumstances.”
136 S. Ct. at 622 (internal citation omitted).
Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonable-doubt
standard in addition to the jury trial right, and this Court has always regarded proofbeyond-a-reasonable-doubt decisions as substantive. See, e.g., Ivan V. v. City of New
York, 407 U.S. 203, 205 (1972) (explaining that “the major purpose of the
constitutional standard of proof beyond a reasonable doubt announced in [In re
Winship, 397 U.S. 358 (1970)] was to overcome an aspect of a criminal trial that
substantially impairs the truth-finding function, and Winship is thus to be given
complete retroactive effect.”); see also Powell v. Delaware, 153 A.3d 69 (Del. 2016)
(holding Hurst retroactive under Delaware’s state Teague-like retroactivity doctrine
39
and distinguishing Summerlin on the ground that Summerlin “only addressed the
misallocation of fact-finding responsibility (judge versus jury) and not . . . the
applicable burden of proof.”). 20
“Under the Supremacy Clause of the Constitution . . . . [w]here state collateral
review proceedings permit prisoners to challenge the lawfulness of their confinement,
States cannot refuse to give retroactive effect to a substantive constitutional right
that determines the outcome of that challenge.” Montgomery, 136 S. Ct. at 731-32.
Because the outcome-determinative constitutional rights articulated in Hurst v.
Florida and Hurst v. State are substantive, the Florida Supreme Court was not at
liberty to foreclose their retroactive application in Petitioner’s case.
CONCLUSION
This Court should grant a writ of certiorari to review the decision below.
A federal district judge in Florida, citing Ivan, has already observed the
distinction between the holding of Summerlin and the retroactivity of Hurst arising
from the beyond-a-reasonable-doubt standard. See Guardado v. Jones, No. 4:15-cv256 (N.D. Fla. May 27, 2016) (explaining that Hurst federal retroactivity is possible
despite Summerlin because Summerlin “did not address the requirement for proof
beyond a reasonable doubt,” and “[t]he Supreme Court has held a proof-beyond-areasonable-doubt decision retroactive”).
20
40
Respectfully submitted,
ROBERT A. NORGARD
Norgard, Norgard, & Chastang
310 East Main Street
Bartow, Florida 33830
Tallahassee, Florida 32301
(863) 354-0508
norgardlaw@verizon.net
AUGUST 2018
/s/ Billy H. Nolas
BILLY H. NOLAS
Counsel of Record
SEAN GUNN
KATHERINE A. BLAIR
Office of the Federal Public Defender
Northern District of Florida
Capital Habeas Unit
227 North Bronough St., Suite 4200
Tallahassee, Florida 32301
(850) 942-8818
billy_nolas@fd.org
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.