Petition for Writ of Certiorari — Pressley Bernard Alston, Petitioner v. Florida, et al.
Supreme Court briefAug 15, 2018
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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
______________________________________________________________
PETITIONER’S APPENDIX
______________________________________________________________
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
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
EXHIBIT 1
001a
Supreme Court of Florida
____________
No. SC17-499
____________
PRESSLEY BERNARD ALSTON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC17-983
____________
PRESSLEY BERNARD ALSTON,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[May 17, 2018]
PER CURIAM.
We have for review Pressley Bernard Alston’s appeal of the circuit court’s
order denying Alston’s motion filed pursuant to Florida Rule of Criminal
Procedure 3.851 and Alston’s petition for a writ of habeas corpus. We have
002a
jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. We withdraw the opinion issued
on January 22, 2018, and substitute this opinion in its place.
Alston seeks relief pursuant to the United States Supreme Court’s decision
in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on remand in Hurst v.
State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). This Court
stayed Alston’s appeal and consideration of his habeas petition pending the
disposition of Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct.
513 (2017). After this Court decided Hitchcock, Alston responded to this Court’s
order to show cause arguing why Hitchcock should not be dispositive in both
cases. Then, after this Court decided State v. Silvia, 239 So. 3d 349 (Fla. 2018),
Alston responded to this Court’s order to show cause why Silvia should not be
dispositive in both cases.
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.
-2-
003a
Accordingly, we affirm the circuit court’s denial of relief and deny Alston’s habeas
petition.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and LAWSON, JJ.,
concur.
CANADY, J., concurs in result with an opinion.
LEWIS, J., dissents.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
CANADY, J., concurring in result.
I would base the denial of relief to Alston on my view that Hurst should not
be given retroactive application. See Mosley v. State, 209 So. 3d 1248, 1285-91
(Fla. 2016) (Canady, J., concurring in part and dissenting in part).
An Appeal from the Circuit Court in and for Duval County,
Russell Healey, Judge - Case No. 161995CF005326AXXXMA
And an Original Proceeding – Habeas Corpus
Robert A. Norgard of Norgard, Norgard, & Chastang, Bartow, Florida, and Billy
H. Nolas, Chief, Capital Habeas Unit, Northern District of Florida, Tallahassee,
Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney
General, Tallahassee, Florida,
for Appellee/Respondent
-3-
004a
EXHIBIT 2
005a
006a
007a
008a
009a
010a
011a
EXHIBIT 3
012a
Filing # 62042847 E-Filed 09/27/2017 09:16:52 AM
Supreme Court of Florida
WEDNESDAY, SEPTEMBER 27, 2017
CASE NOS.: SC17-499 & SC17-983
Lower Tribunal No(s).:
161995CF005326AXXXMA
PRESSLEY BERNARD ALSTON
vs.
STATE OF FLORIDA
PRESSLEY BERNARD ALSTON
vs.
JULIE L. JONES, ETC.
Appellant/Petitioner
Appellee/Respondent
Appellant/Petitioner shall show cause on or before Tuesday, October 17,
2017, why the trial court’s order should not be affirmed and the petition for a writ
of habeas corpus should not be denied in light of this Court's decision Hitchcock v.
State, SC17-445. The response shall be limited to no more than 20 pages.
Appellee/Respondent may file a reply on or before Wednesday, November 1,
2017, limited to no more than 15 pages. Appellant/Petitioner may file a reply to the
Appellee/Respondent’s reply on or before Monday, November 13, 2017, limited to
no more than 10 pages.
Motions for extensions of time will not be considered unless due to a
medical emergency.
A True Copy
Test:
jat
Served:
013a
1a
CASE NO.: SC17-499
Page Two
ROBERT ANTHONY NORGARD
JENNIFER L. KEEGAN
BILLY H. NOLAS
014a
1a
EXHIBIT 4
015a
Filing # 67813710 E-Filed 02/12/2018 11:04:22 AM
Supreme Court of Florida
MONDAY, FEBRUARY 12, 2018
CASE NO.: SC17-499
Lower Tribunal No(s).:
161995CF005326AXXXMA
PRESSLEY BERNARD ALSTON
vs.
Appellant(s)
STATE OF FLORIDA
Appellee(s)
The mandate issued on Wednesday, February 7, 2018, is hereby recalled.
A True Copy
Test:
tw
Served:
ROBERT ANTHONY NORGARD
BILLY H. NOLAS
JENNIFER L. KEEGAN
PRESSLEY BERNARD ALSTON
MEREDITH CHARBULA
HON. RONNIE FUSSELL, CLERK
HON. MARK H. MAHON, CHIEF JUDGE
HON. RUSSELL L. HEALEY, JUDGE
016a
1a
Filing # 67813710 E-Filed 02/12/2018 11:04:22 AM
Supreme Court of Florida
MONDAY, FEBRUARY 12, 2018
CASE NOS.: SC17-499 & SC17-983
Lower Tribunal No(s).:
161995CF005326AXXXMA
PRESSLEY BERNARD ALSTON
vs.
STATE OF FLORIDA
PRESSLEY BERNARD ALSTON
vs.
JULIE L. JONES, ETC.
Appellant/Petitioner
Appellee/Respondent
In light of this Court’s decision in State v. Silvia, SC17-337 (Fla. Feb. 1,
2018), Appellant/Petitioner shall show cause on or before February 27, 2018, why
this Court’s opinion in this case should not be vacated and why
Appellant’s/Petitioner’s postconviction waiver does not preclude him from
claiming a right to relief under Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert.
denied, 137 S. Ct. 2161 (2017). The response shall be limited to no more than 20
pages. Appellee/Respondent may file a reply on or before March 9, 2018, limited
to no more than 15 pages.
Motions for extensions of time will not be considered unless due to a
medical emergency.
A True Copy
Test:
jat
Served:
ROBERT ANTHONY NORGARD
BILLY H. NOLAS
JENNIFER L. KEEGAN
017a
1a
EXHIBIT 5
018a
Nos. SC17-499 & SC17-983
IN THE
Supreme Court of Florida
___________________________________________________________
PRESSLEY BERNARD ALSTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________________________________
PRESSLEY BERNARD ALSTON,
Petitioner,
v.
JULIE L. JONES, SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent.
____________________________________________________________
APPELLANT/PETITIONER’S RESPONSE TO
SEPTEMBER 27, 2017 ORDER TO SHOW CAUSE
_____________________________________________________
Robert A. Norgard
Norgard, Norgard, & Chastang
P.O. Box 811
Bartow, FL 33830
(863) 533-8556
norgardlaw@verizon.net
Florida Bar No. 322059
Billy H. Nolas
Chief, Capital Habeas Unit
Northern District of Florida
227 N. Bronough Street, Suite 4200
Tallahassee, FL 32301
(850) 942-8818
billy_nolas@fd.org
Florida Bar No. 806821
Counsel for Mr. Alston
019a
TABLE OF CONTENTS
INTRODUCTION....................................................................................................1
REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING .......................2
ARGUMENT ............................................................................................................2
I.
Mr. Alston’s sentence violates Hurst and the error is not “harmless”...............2
II.
This Court’s “retroactivity cutoff” at Ring is unconstitutional and
should not be applied to Mr. Alston.................................................................5
III.
A.
This Court’s retroactivity cutoff violates the Eighth and Fourteenth
Amendments’ prohibition against arbitrary and capricious imposition
of the death penalty...............................................................................6
B.
This Court’s retroactivity cutoff violates the Fourteenth Amendment’s
guarantee of equal protection and due process.....................................10
Because the Hurst decisions announced substantive constitutional rules, the
Supremacy Clause of the United States Constitution requires state courts to
apply those rules retroactively to all cases on collateral review......................13
A.
The Supremacy Clause requires state courts to apply substantive
constitutional rules retroactively to all cases on collateral review........13
B.
The Hurst decisions announced substantive rules that must be applied
retroactively to Mr. Alston under the Supremacy Clause.....................15
C.
This Court has an obligation to address Mr. Alston’s federal
retroactivity arguments.......................................................................20
CONCLUSION.......................................................................................................20
i
020a
INTRODUCTION
Appellant/Petitioner Pressley Alston’s death sentence was imposed pursuant
to a capital sentencing scheme that was ruled unconstitutional by the United States
Supreme Court in Hurst v. Florida, 136 S. Ct. 616 (2016), and this Court in Hurst v.
State, 202 So. 3d 40 (Fla. 2016). The issue in this case is whether this Court will
continue to apply its unconstitutional “retroactivity cutoff” to deny Mr. Alston Hurst
relief on the ground that his sentence did not become final at least one day after the
2002 decision in Ring v. Arizona, 536 U.S. 584 (2002).
This Court has already applied Hurst retroactively as a matter of state law in
dozens of collateral-review cases where the defendant’s sentence became final after
Ring. But the Court has also created a state-law cutoff at the date Ring was
decided—June 24, 2002—to deny relief in dozens of other collateral-review cases.
The Ring-based cutoff is unconstitutional and should not be applied to Mr. Alston.
Denying Mr. Alston Hurst relief because his sentence became final in 1999, rather
than some date between 2002 and 2016, would violate the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. Mr. Alston is entitled to
Hurst retroactivity as a matter of federal law. 1
1
Relief should not be denied here in light of Hitchcock v. State, No. SC17-445, 2017
WL 3431500 (Fla. Aug. 10, 2017). Mr. Alston notes that there is a petition for a
writ of certiorari pending in Hitchcock (No. 17-6180).
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REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING
This appeal presents an important issue of first impression: whether federal
law requires this Court to extend Hurst retroactivity to death sentences that became
final before Ring, rather than confining Hurst relief to post-Ring death sentences.
Mr. Alston respectfully requests oral argument on this and related issues pursuant to
Fla. R. App. P. 9.320. Mr. Alston also requests that the Court permit full briefing in
this case in accord with the normal, untruncated rules of appellate practice.
Depriving Mr. Alston the opportunity for full briefing in this case would
constitute an arbitrary deprivation of the vested state right to a mandatory plenary
appeal in capital cases. See Doty v. State, 170 So. 3d 731, 733 (Fla. 2015) (“[T]his
Court has a mandatory obligation to review all death penalty cases to ensure that the
death sentence is imposed in accordance with constitutional and statutory
directives.”); see also Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Hicks
v. Oklahoma, 447 U.S. 343 (1980).
ARGUMENT
I.
Mr. Alston’s sentence violates Hurst and the error is not “harmless”
Mr. Alston was sentenced to death pursuant to an unconstitutional Florida
capital sentencing scheme. In Hurst v. Florida, the United States Supreme Court
held that Florida’s scheme violated the Sixth Amendment because it required the
judge, not the jury, to make the findings of fact required to impose the death penalty
2
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under Florida law.
136 S. Ct. at 620-22.
Those findings included: (1) the
aggravating factors that were proven beyond a reasonable doubt; (2) whether those
aggravators were “sufficient” to justify the death penalty; and (3) whether those
aggravators outweighed the mitigation. Under Florida’s unconstitutional scheme,
an “advisory” jury rendered a generalized recommendation for life or death by a
majority vote, without specifying the factual basis for the recommendation, and then
the sentencing judge alone, notwithstanding the jury’s recommendation, conducted
the fact-finding. Id. at 622. In striking down that scheme, the Court held that the
jury, not the judge, must make the findings of fact required to impose death. Id.
On remand, this Court applied the holding of Hurst v. Florida, and further
held that the Eighth Amendment requires unanimous jury fact-finding as to each of
the required elements, and also a unanimous recommendation by the jury to impose
the death penalty. Hurst v. State, 202 So. 3d at 53-59. The Court also noted that,
even if the jury unanimously finds that each of the required elements is satisfied,
the jury is not required to recommend the death penalty, and the judge is not
required to sentence the defendant to death. Id. at 57-58.
Mr. Alston’s jury was never asked to make unanimous findings of fact as to
any of the required elements. Instead, after being instructed that its decision was
advisory, and that the ultimate responsibility for imposing a death sentence rested
with the judge, the jury rendered a non-unanimous, generalized recommendation
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023a
that the judge sentence Mr. Alston to death. The record does not reveal whether
Mr. Alston’s jurors unanimously agreed that any particular aggravating factor had
been proven beyond a reasonable doubt, or unanimously agreed that the aggravators
were sufficient for death, or unanimously agreed that the aggravators outweighed
the mitigation. But the record is clear that Mr. Alston’s jurors were not unanimous
as to whether the death penalty should even be recommended to the court.
Mr. Alston’s pre-Hurst jury recommended the death penalty by a vote of 93. This Court’s precedent makes clear that Hurst errors are not harmless where the
defendant’s pre-Hurst jury recommended death by a non-unanimous vote. Dubose
v. State, 210 So. 3d 641, 657 (Fla. 2017) (“[I]n cases where the jury makes a nonunanimous recommendation of death, the Hurst error is not harmless.”). This Court
has declined to apply the harmless error doctrine in every case where the pre-Hurst
jury’s recommendation was not unanimous. 2
To the extent any of the aggravators applied to Mr. Alston were based on prior
convictions, the judge’s finding of such aggravators does not render the Hurst error
harmless. Even if the jury would have found the same aggravators, Florida law does
not authorize death sentences based on the mere existence of an aggravator. As
2
See, e.g., Bailey v. Jones, No. SC17-433, 2017 WL 2874121, at *1 (Fla. July 6,
2017) (11-1 jury vote); Hertz v. Jones, 218 So. 3d 428, 431-32 (Fla. 2017) (10-2 jury
vote); Hernandez v. Jones, 217 So. 3d 1032, 1033 (Fla. 2017) (11-1 jury vote); Card
v. Jones, 219 So. 3d 47, 48 (Fla. 2017) (11-1 jury vote); McMillian v. State, 214 So.
3d 1274, 1289 (Fla. 2017) (10-2 jury vote).
4
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noted above, Florida law requires fact-finding as to both the existence of aggravators
and the “sufficiency” of the particular aggravators to warrant imposition of the death
penalty. There is no way to conclude whether the jury would have made the same
sufficiency determination as the judge. That is why this Court has consistently
rejected the idea that a judge’s finding of prior-conviction aggravators is relevant in
the harmless-error analysis of Hurst claims, and has granted Hurst relief despite the
presence of such aggravators. See, e.g., Franklin v. State, 209 So. 3d 1241, 1248
(Fla. 2016) (rejecting “the State’s contention that Franklin’s prior convictions for
other violent felonies insulate Franklin’s death sentence from Ring and Hurst”).3
II.
This Court’s “retroactivity cutoff” at Ring is unconstitutional and should
not be applied to Mr. Alston
Beginning with Mosley v. State, 209 So. 3d 1248 (Fla. 2016), this Court has
applied Hurst retroactively as a matter of state law and granted relief in dozens of
collateral-review cases where the defendant’s sentence became final after Ring. But
the Court has created a state-law cutoff at the date Ring was decided—June 24,
3
Moreover, although this Court’s state-law precedent is sufficient to resolve any
harmless-error inquiry in this case, the United States Constitution would not permit
a denial of relief based on the harmless error doctrine because any attempt to discern
what a jury in a constitutional proceeding would have decided would be
impermissibly speculative. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 328-29
(1985) (explaining that a jury’s belief about its role in death sentencing can
materially affect its decision-making); Sullivan v. Louisiana, 508 U.S. 275, 279-80
(1993) (foreclosing application of the harmless-error doctrine to deny relief based
on jury decisions not comporting with Sixth Amendment requirements).
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2002—to deny relief in dozens of other collateral-review cases. The Court recently
reaffirmed its retroactivity cutoff in Hitchcock v. State, No. SC17-445, 2017 WL
3431500 (Fla. Aug. 10, 2017). The Court has not addressed in any case whether this
retroactivity cutoff at Ring is constitutional as a matter of federal law.
The Ring-based retroactivity cutoff violates the United States Constitution and
should not be applied to deny Mr. Alston the same Hurst relief being granted in
scores of materially indistinguishable collateral cases. Denying Mr. Alston Hurst
retroactivity because his death sentence became final in 1999, while affording
retroactivity to similarly-situated defendants who were sentenced (or resentenced)
between 2002 and 2016, would violate the Eighth and Fourteenth Amendments’
prohibition against arbitrary and capricious imposition of the death penalty, as well
as the Fourteenth Amendment’s guarantee of equal protection and due process.
A.
This Court’s retroactivity cutoff violates the Eighth and
Fourteenth Amendments’ prohibition against arbitrary and
capricious imposition of the death penalty
This Court’s retroactivity cutoff violates the Eighth and Fourteenth
Amendments’ prohibition against arbitrary and capricious imposition of the death
penalty. The Hurst decisions guarantee substantive rights that must be protected
through sentencing procedures, and the United States Supreme Court has explained
that the death penalty cannot “be imposed under sentencing procedures that create[]
a substantial risk that it would be inflicted in an arbitrary or capricious manner.”
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Gregg v. Georgia, 428 U.S. 153, 188 (1976); see also Furman v. Georgia, 408 U.S.
238, 310 (1972) (“[T]he Eighth and Fourteenth Amendments cannot tolerate the
infliction of a sentence of death under legal systems that permit this unique penalty
to be so wantonly and so freakishly imposed.”) (Stewart, J., concurring). In other
words, the death penalty cannot be imposed in certain cases in a way that is
comparable to being “struck by lightning.” Furman, 408 U.S. at 308.
Experience has already shown the arbitrary results inherent in this Court’s
application of the Ring-based retroactivity cutoff. The date of a particular death
sentence’s finality on direct appeal in relation to the June 24, 2002 decision in
Ring—and thus whether this Court has held Hurst retroactive based on its brightline cutoff—has at times depended on whether there were delays in transmitting the
record on appeal to this Court for the direct appeal; whether direct appeal counsel
sought extensions of time to file a brief; whether a case overlapped with this Court’s
summer recess; how long the assigned Justice of this Court took to submit 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; whether counsel chose to file a petition for a writ of
certiorari in the United States Supreme Court or sought an extension to file such a
petition; and how long a certiorari petition remained pending in the Supreme Court.
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In one striking example, this 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. Bowles v. State, 804 So. 2d 1173 (Fla. 2001); Card v. State, 803
So. 2d 613 (Fla. 2001). Both inmates petitioned for a writ of certiorari in the United
States Supreme 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). Mr. Bowles’s sentence, however, 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). This Court recently granted
Hurst relief to Mr. Card, ruling that Hurst was retroactive because his sentence
became final after the Ring cutoff. See Card, 219 So. 3d at 47. Mr. Bowles, on the
other hand, whose case was decided on direct appeal on the same day as Mr. Card’s,
and who filed his certiorari petition in the Supreme Court after Mr. Card, now finds
himself on the pre-Ring side of this Court’s current retroactivity cutoff.
Other arbitrary factors affecting whether a defendant receives Hurst relief
under this Court’s date-of-Ring-based retroactivity approach include whether a
resentencing was granted. Under the Court’s current approach, “older” cases dating
back to the 1980s with a post-Ring resentencing are subject to Hurst, while other
less “old” cases are 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 was
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granted relief on a third successive post-conviction motion in 2010, years after the
Ring decision); Card, 219 So. 3d at 47 (granting Hurst relief to a defendant whose
crime occurred in 1981 but was afforded relief on a second successive postconviction motion in 2002—just four days after Ring was decided); 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 ten-year delay
before the trial). Under this Court’s approach, a defendant who was originally
sentenced to death before Mr. Alston, but who was later resentenced to death after
Ring, would receive Hurst relief and Mr. Alston would not.
Moreover, under the Court’s current rule, some litigants whose Ring claims
were wrongly rejected on the merits during the 2002-2016 period will be denied the
benefit of Hurst because the Court addressed the issue in a post-conviction rather
than a direct appeal posture. 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).4
4
Even if this Court were to maintain its unconstitutional retroactivity “cutoff” at
Ring, individuals who preserved the substance of the Hurst decisions before Hurst,
such as Mr. Alston, should receive the retroactive benefit of Hurst under this Court’s
“fundamental fairness” doctrine, which the Court has previously applied in other
contexts, see, e.g., James v. State, 615 So. 2d 668, 669 (Fla. 1993), and which the
Court has applied once in the Hurst context, see Mosley, 209 So. 3d at 1274, but
inexplicably never addressed since. Justice Lewis recently endorsed this
“preservation” approach in Hitchcock. See 2017 WL 3431500, at *2 (Lewis, J.,
concurring) (stating that the Court should “simply entertain Hurst claims for those
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Making Hurst retroactive to only post-Ring sentences also unfairly denies
Hurst access to defendants who were sentenced between Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring. The fundamental unfairness of that result is stark
given that the Supreme Court made clear in Ring that its decision flowed directly
from Apprendi. See Ring, 536 U.S. at 588-89. And in Hurst, the Court repeatedly
stated that Florida’s scheme was incompatible with “Apprendi’s rule,” of which Ring
was an application. 136 S. Ct. at 621. This Court itself has acknowledged that Ring
was an application of Apprendi. See Mosley, 209 So. 3d at 1279-80. This Court’s
drawing of its retroactivity cutoff at Ring instead of Apprendi represents the sort of
capriciousness that is inconsistent with the Eighth Amendment.
B.
This Court’s retroactivity cutoff violates the Fourteenth
Amendment’s guarantee of equal protection and due process
This Court’s retroactivity cutoff violates the Fourteenth Amendment’s
guarantee of equal protection and due process. As an equal protection matter, the
cutoff treats death-sentenced prisoners in the same posture—on collateral review—
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 by a state actor like this Court, the question is
defendants who properly presented and preserved the substance of the issue, even
before Ring arrived.”). Mr. Alston urges that the Court allow him to brief this aspect
of his case in an untruncated fashion.
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whether there is a rational basis for 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 be strictly
scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Capital
defendants have a fundamental right to a reliable determination of their sentences.
See Lockett v. Ohio, 438 U.S. 586, 604 (1978). When a state draws a line between
defendants who will receive the benefit of the rules designed to enhance the quality
of decision-making by a penalty-phase jury and those who will not, the state’s
justification for that line must satisfy strict scrutiny. Far from meeting strict scrutiny,
this Court’s Hurst retroactivity cutoff lacks even a rational connection to any
legitimate state interest. See Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973).
As a due process matter, denying Hurst retroactivity to “pre-Ring” defendants
like Mr. Alston violates the Fourteenth Amendment because once a state requires
certain sentencing procedures to implement substantive rights like those guaranteed
by the Hurst decisions, it creates Fourteenth Amendment life and liberty interests in
those procedures. See, e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985) (due process
interest in state-created right to direct appeal); Hicks, 447 U.S. at 346 (liberty interest
in state-created sentencing procedures); Ford v. Wainwright, 477 U.S. 399, 427-31
(1986) (O’Connor, J., concurring) (liberty interest in meaningful state competency
proceedings); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288-89 (1998)
11
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(O’Connor, J., with Souter, Ginsburg, & Breyer, JJ., concurring) (life interest in
state-created right to capital clemency proceedings).
Although the right to the particular procedure necessary to implement a
substantive guarantee is established by state law, the violation of the life and liberty
interest it creates is governed by federal constitutional law. See Hicks, 447 U.S. at
347; Ford, 477 U.S. at 399, 428-29; Evitts, 469 U.S. at 393 (state procedures
employed “as ‘an integral part of the . . . system for finally adjudicating the guilt or
innocence of a defendant’” must comport with due process). Defendants have “a
substantial and legitimate expectation that [they] will be deprived of [their] liberty
only to the extent determined by the jury in the exercise of its discretion . . . and that
liberty interest is one that the Fourteenth Amendment preserves against arbitrary
deprivation by the State.” Hicks, 447 U.S. at 346. Courts have found in a variety of
contexts that state-created death penalty procedures vest in a capital defendant life
and liberty interests that are protected by due process. See. e.g., Ohio Adult Parole
Auth., 523 U.S. at 272; Ford, 477 U.S. at 427-31. In Hicks, the Supreme Court held
that the trial court’s failure to instruct the jury that it had the option to impose an
alternative sentence violated the state-created liberty interest (and federal due
process) in having the jury select his sentence from the full range of alternatives
available under state law. 447 U.S. at 343.
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III.
Because the Hurst decisions announced substantive constitutional rules,
the Supremacy Clause of the United States Constitution requires state
courts to apply those rules retroactively to all cases on collateral review
A.
The Supremacy Clause requires state courts to apply substantive
constitutional rules retroactively to all cases on collateral review
In Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016), the United States
Supreme Court held that the Supremacy Clause of the 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
Montgomery, 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. The United States Supreme 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 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). Thus, Montgomery held, “[w]here
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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, the Supreme 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 sentence
follow a certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.”
Id.
Despite Miller’s
procedural mandates, 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)). 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. Miller “bar[red] life without parole . . . . For that reason, Miller
is no less substantive than are Roper and Graham.” Id. at 734.
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B.
The Hurst decisions announced substantive rules that must be
applied retroactively to Mr. Alston under the Supremacy Clause
The Hurst decisions announced substantive rules that this Court must apply
retroactively to Mr. Alston under the Supremacy Clause. At least two substantive
rules were established by Hurst v. Florida and Hurst v. State. First, a Sixth
Amendment rule was established requiring that a jury find as fact beyond a
reasonable doubt: (1) each aggravating circumstance; (2) that those particular
aggravating circumstances together are “sufficient” to justify imposition of the death
penalty; and (3) that those particular aggravating circumstances together outweigh
the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Such findings are
manifestly substantive. See Montgomery, 136 S. Ct. at 734 (holding that the decision
whether a juvenile is a person “whose crimes reflect the transient immaturity of
youth” is a substantive, not procedural, rule). As in Montgomery, these requirements
amounted 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.
Second, an Eighth Amendment rule was established that requires those three
beyond-a-reasonable-doubt findings to be made unanimously by the jury. The
substantive nature of the unanimity rule is apparent from this Court’s explanation in
Hurst v. State that unanimity (1) is necessary to ensure compliance with the
constitutional requirement that the death penalty be applied narrowly to the worst
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offenders, and (2) ensures that the sentencing determination “expresses the values
of the community as they currently relate to the imposition of the death penalty.”
202 So. 3d at 60-61. The function of the unanimity rule is to ensure that Florida’s
death-sentencing scheme complies with the Eighth Amendment and to “achieve the
important goal of bringing [Florida’s] capital sentencing laws into harmony with the
direction of the society reflected in [the majority of death penalty] states and with
federal law.” Id. As a matter of federal retroactivity law, the rule is therefore
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”). This is true even though the rule’s subject concerns the
method by which a jury makes its decision. See Montgomery, 136 S. Ct. at 735
(noting that state’s ability to determine method of enforcing constitutional rule does
not convert rule from substantive to procedural).
The United States Supreme Court’s decision in Welch is illustrative of the
substantive nature of Hurst. 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
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retroactively.
Welch, 136 S. Ct. at 1265.
The Court emphasized that its
determination whether a constitutional rule is substantive or procedural “does not
depend on whether the underlying constitutional guarantee is characterized as
procedural or substantive,” but rather whether “the new rule itself has a procedural
function or a substantive function,” i.e., whether the new rule alters only the
procedures used to obtain the conviction, or alters instead the class of persons the
law punishes. Id. at 1266. In Welch, the Court pointed out that, “[a]fter Johnson,
the same person engaging in the same conduct is no longer subject to the Act and
faces at most 10 years in prison. The residual clause is invalid under Johnson, so it
can no longer mandate or authorize any sentence.” Id. Thus, “Johnson establishes,
in other words, that even the use of impeccable factfinding procedures could not
legitimate a sentence based on that clause.” Id. “It follows,” the Court held, “that
Johnson is a substantive decision.” Id. (internal quotation omitted).
The same reasoning applies 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 factfinding, 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
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judge-sentencing scheme.
Id.
And in the context of a Welch analysis, 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 new law by
necessity places certain individuals beyond the state’s power to impose a death
sentence. The decision in Welch makes clear that a substantive rule, rather than a
procedural rule, resulted from the Hurst decisions. See Welch, 136 S. Ct. at 126465 (a substantive rule “alters . . . the class of persons that the law punishes.”).
Hurst retroactivity is not undermined by Summerlin, 542 U.S. at 364, where
the United States Supreme Court held that Ring was not retroactive in a federal
habeas case. In Ring, the Arizona statute permitted a death sentence to be imposed
on 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 factfinding regarding the aggravators, but also as to 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, for the first time, the Court found it
unconstitutional for a judge alone to find that “sufficient aggravating factors exist
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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-reasonabledoubt standard in addition to the jury trial right, and the United States Supreme Court
has always regarded proof-beyond-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.”); Powell v. Delaware, 153 A.3d 69
(Del. 2016) (holding Hurst retroactive under Delaware’s state Teague-like
retroactivity doctrine 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.”).5
5
The recent ruling of an Eleventh Circuit panel in Lambrix v. Sec’y, No. 17-14413,
2017 WL 4416205 (11th Cir. Oct. 5, 2017), does not negate Mr. Alston’s arguments.
First, Lambrix was decided in the context of the current federal habeas statute, which
dramatically curtails review: “A state court’s decision rises to the level of an
unreasonable application of federal law only where the ruling is objectively
unreasonable, not merely wrong; even clear error will not suffice.” Id. at *8 (internal
quotation marks omitted). In contrast, this Court’s application of federal
constitutional protections is not circumscribed, as this Court noted in the Hurst
context in Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016) (“[W]e hold that the Supreme
Court’s decision in Hurst v. Florida requires that all critical findings necessary
before the trial court may consider imposing a sentence of death must be found
19
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C.
This Court has an obligation to address Mr. Alston’s federal
retroactivity arguments
Because this Court is bound by the federal constitution, it has the obligation
to address Mr. Alston’s federal retroactivity arguments. See Testa v. Katt, 330 U.S.
386, 392-93 (1947) (state courts must entertain federal claims in the absence of a
“valid excuse”); Martin v. Hunter’s Lessee, 14 U.S. 304, 340-42 (1816).
Addressing those claims meaningfully in the present context requires full
briefing and oral argument. The federal constitutional issues were raised to this
Court in Hitchcock, but this Court ignored them. Dismissing this appeal on the basis
of Hitchcock would compound that error.
CONCLUSION
This Court should hold that federal law requires the Hurst decisions to be
applied retroactively to Mr. Alston, vacate Mr. Alston’s death sentence, and remand
to the circuit court for a new penalty phase or imposition of a life sentence.
unanimously by the jury . . . . We also hold . . . under the Eighth Amendment to the
United States Constitution, that in order for the trial court to impose a sentence of
death, the jury’s recommended sentence must be unanimous”). Second, Lambrix
dealt with an idiosyncratic issue—the “retroactivity” of Florida’s new capital
sentencing statute. Lambrix did not argue, as Mr. Alston does here, for the
retroactivity of the constitutional rules arising from the Hurst decisions. Third, the
Eleventh Circuit did not address the specific arguments about federal retroactivity
that are raised here. Fourth, almost needless to say, an Eleventh Circuit panel
decision has no precedential value in this forum.
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Respectfully submitted,
/s/ Billy H. Nolas
Billy H. Nolas
Chief, Capital Habeas Unit
Office of the Federal Public Defender
Northern District of Florida
227 N. Bronough St., Suite 4200
Tallahassee, FL 32301-1300
billy_nolas@fd.org
(850) 942-8818
Fla. Bar No. 806821
/s/ Robert A. Norgard
Robert A. Norgard
Norgard, Norgard, & Chastang
P.O. Box 811
Bartow, FL 33830
(863) 533-8556
norgardlaw@verizon.net
Florida Bar No. 322059
CERTIFICATE OF SERVICE
I hereby certify that on October 13, 2017, the foregoing was electronically
served via the e-portal to Assistant Attorney General Jennifer L. Keegan at
jennifer.keegan@myfloridalegal.com and capapp@myfloridalegal.com.
/s/ Billy H. Nolas
Billy H. Nolas
041a
EXHIBIT 6
042a
Filing # 68525947 E-Filed 02/27/2018 02:04:39 PM
No. SC17-499 and SC17-983
IN THE
Supreme Court of Florida
___________________________________________________________
PRESSLEY BERNARD ALSTON,
Appellant/Petitioner,
v.
STATE OF FLORIDA &
JULIE JONES
Appellee/Respondent.
_____________________________________________________
APPELLANT’S RESPONSE TO
FEBRUARY 12, 2018 ORDER TO SHOW CAUSE
_____________________________________________________
Robert A. Norgard
Attorney at Law
P.O. Box 811
Bartow, FL 33831
(863) 533-8556
Counsel for Appellant/Petitioner
043a
TABLE OF CONTENTS
INTRODUCTION………………………………………………………………1
RESPONSE ……………………………………………………………………..1
CONCLUSION…………………………………………………………………12
i
044a
INTRODUCTION
Mr. Alston’s death sentence was imposed pursuant to a capital sentencing
scheme that was ruled unconstitutional in Hurst v. Florida, 136 S. Ct. 616 (2016),
and Hurst v. State, 202 So. 3d 40 (Fla. 2016). Mr. Alston challenged his death
sentence in the trial court based on Hurst, through a successive postconviction
motion and then to this Court on appeal. This Court issued an opinion in this case
denying Mr. Alston’s challenge to the death sentence based on Hurst premised on
this Court’s decision in Hitchcock v. State. The mandate was issued on February 7,
2018. On February 12, 2018, this Court issued two orders: the first recalled the
February 7 mandate. The second order was an order to show cause directing Mr.
Alston to respond as to why this Court’s recent decision in State v. Silvia, SC17337 (Fla. Feb. 1, 2018) should not apply to his case.
This response is limited to addressing the Court’s order. So as to avoid
having the response stricken, Mr. Alston does not include argument beyond the
issue identified by the Court’s order.
RESPONSE
1. Mr. Alston’s case is factually distinguishable from State v. Silvia.
In State v. Silvia, SC17-337 (Fla. Feb. 1, 2018), this Court carved out yet
another exception to deny Hurst relief to death sentenced inmates. This Court held
that because the defendant had waived collateral proceedings after Ring, but before
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the Hurst decisions, he was precluded from obtaining Hurst relief. The facts
adduced from the opinion of this Court are that Silvia’s death sentence became
final on June 6, 2011. The jury recommended death with an 11-1 vote. Silvia had
challenged the constitutionality of Florida’s death penalty sentencing scheme based
on Ring in the trial court and on direct appeal but was unsuccessful because of this
Court’s previous rulings related to Ring challenges.
In 2012, Silvia waived his right to collateral proceedings and to collateral
counsel. This waiver was upheld by this Court in 2013. According to the opinion
Silvia’s waiver was made with the following understanding:
In addition, Silvia indicated that he understood that by waiving postconviction proceedings early in the process-before a motion was
filed –he was losing permanently his right to take advantage of any
changes that may occur in the law, that he was waiving his right to
federal review, and that because his attorneys had not yet completed
their discovery, it was unknown what issues could be raised.
State v. Silvia, SC17-337- at page -4-[emphasis added in opinion], quoting,
Silvia, 2013 WL5035694 at*2.
Based on the breadth and scope of the uncontested waiver and because
Silvia knew about the Ring issue by virtue of having raised it in the trial court and
on direct appeal, this Court held the valid, uncontested waiver of postconviction
precluded him from claiming a right to relief under Hurst.
Mr. Alston’s case is factually distinguishable from Silvia. The lengthy and
convoluted process that ultimately resulted in Mr. Alston’s waiver of
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postconviction rights was far different than that of the defendant in Silvia and is
set forth in Alston v. State, 894 So.2d 641 (Fla. 2004). Mr. Alston’s case became
final in 1999. Mr. Alston was represented by CCRC-M by June 1999 and a shell
motion was filed five months later.
From August 1999 until July 2000, Mr. Alston filed numerous pleadings in
the trial court and this Court, mostly in the form of extraordinary writs, seeking to
end his state court collateral proceedings. Most of these efforts were premised on
his mistaken belief that somehow his state collateral rights had either ended or that
because of various issues, he was facing a procedural bar to challenging his
convictions in federal court if his state court collateral proceedings were to
continue.[See, Repository Records: Case No. SC00-225 Mandamus Petition,
unnumbered pro se pleadings filed by Alston and Repository Records: Case No.
SC 02-1904 and Appendix to Amended Initial Brief of Petitioner’s Former Counsel
to Petitioner’s Pro-Se Petition for Writ of Habeas Corpus in Alston v. State, SC021904] During this time period Ring had not issued.
In July 2000, CCRC-M moved for a competency determination of Mr.
Alston, leading to the trial court finding him to be incompetent in October 2001.
Despite the finding of incompetency and his purported desire to waive
postconviction, Mr. Alston showered this court, the trial court, and the federal
court with pro se petitions, most of which alleged bizarre acts committed by the
3
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prosecutor, prison guards, and others that were used to incarcerate him for a crime
he had not committed.
From July through November 2002, Mr. Alston was evaluated by numerous
doctors and DOC, ultimately leading to an evidentiary hearing in March 2003 on
the question of Mr. Alston’s competency. Despite a split amongst the experts, the
trial court found Mr. Alston to be competent. The decision on whether Mr. Alston
would be permitted waive postconviction proceedings was scheduled for a later
date.
Despite Mr. Alston’s request during the competency hearing to waive
postconviction proceedings, between March and the June Durocher hearing, Mr.
Alston continued to filed pro se pleadings attacking his conviction, albeit with
increasingly bizarre allegations.[Attachment A: Copy of Durocher hearing
conducted June 6, 2003, p.23;26-7]
In compliance with orders from this Court, on June 6, 2003, the trial court
held a Durocher hearing to determine whether or not Mr. Alston would be
permitted to waive postconviction proceedings. [Attachment A: Copy of Durocher
hearing conducted on June 6, 2003]. At the time of the hearing CCRC-M had
already filed a shell motion, unlike the situation in Silvia, where no motion had
been filed at all.
During the hearing the trial court advised Mr. Alston that waiving his
postconviction proceedings would result in a dismissal with prejudice of any
4
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pending motions. The trial court told Mr. Alston that “Now, with prejudice means
that you can never refile those matters, that once they are dismissed, they’re over
and all of your collateral remedies are foreclosed. Then it is logical to assume if
you do that, that ultimately the judgment of the law will be carried out.
[Attachment A, p.7 (emphasis added)] The trial court’s explanation was directed
at the already filed shell motion- not at any prospective motions.
When questioning Mr. Alston, the Assistant Attorney General engaged in
this exchange with Mr. Alston:
AAG: Mr. Alston, you understand that if the court finds that you
knowingly, intelligently, and voluntarily waive your right to
postconviction proceedings, that in the future if you should
change your mind and attempt to re-invoke those proceedings,
that the State will oppose any such motion?
A: I understand Ms. Dolgin.
[Attachment A, p.36]
Immediately after this exchange the trial court advised Mr. Alston,
And that just follows up on what I said to you when I said it would
be with prejudice, which is a legal term that means that it could not
be brought again absent extraordinary circumstances, which I
frankly can’t foresee.
[Attachment A, p. 36-37 (emphasis added)]
The trial court then immediately proceeded to rule that Mr. Alston’s waiver
was knowing, intelligent, and voluntary. This Court upheld the waiver in Alston v.
State, 894 So.2d 641 (Fla. 2004).
5
049a
Since 2004 Mr. Alston has not ceased in his pro se filings to this Court, the
trial court, and the federal courts, which attack and challenge his conviction and
sentence.
The decision in Silvia that a waiver of postconviction rights precludes a
claim of Hurst relief should not be applied in a general manner, but should be
applied under the narrow factual circumstances present in Silvia. The Silvia waiver
exception should be just that- the exception only applicable under the same factual
circumstances. In Silvia the significant facts are (1) a waiver occurring prior to the
filing of any motion, which necessarily contemplates the waiver of future claims;
(2) a waiver where at the time of the waiver the defendant knew about Ring, and
(3) a record which unequivocally demonstrates the defendant is waiving all future
rights with no exceptions. In this case the trial court’s warnings to Mr. Alston
about the consequences of any waiver differ significantly from those in Silvia and
these differences compel a different result in this case than that in Silvia.
First, the trial court’s initial warning and explanation to Mr. Alston about the
prejudice that would result if he waived postconviction was clearly directed at the
already-filed shell motion. The plain language used by the trial court was that the
already filed motion would be dismissed and the issues in that motion could not be
brought before the courts again.
Conspicuously absent from the trial court’s
6
050a
statements are any warnings that future motions could not be brought if they relied
on different grounds other than those already present in the shell motion.
Second, unlike Silvia, at the time of the filing of the shell motion and
throughout the period Mr. Alston was incompetent Ring had not issued. Unlike the
defendant in Silvia, Mr. Alston did not have any knowledge of Ring at the time
these proceedings had occurred. Mr. Alston did not have the benefit of having had
counsel explain, pursue, or otherwise advocate Ring claims on his behalf as had
Silvia at the time of his waiver.
Third, the trial court and the Assistant Attorney General did not clearly
communicate to Mr. Alston that this waiver would be an absolute bar to any future
collateral efforts.
Neither the trial court nor the AAG’s statements advised Mr.
Alston that, as in Silvia, he was “losing permanently his right to take advantage of
any changes that may occur in the law.” State v. Silvia, 2013 WL 5035694 at *2.
The AAG did not tell Mr. Alston he could never pursue collateral relief again- she
told Mr. Alston if he filed something in the future the State would oppose it. The
trial court told Mr. Alston “with prejudice” was a legal term that “means it could
not be brought again absent extraordinary circumstances, which I frankly cannot
foresee.” This was the last statement made to Mr. Alston before the trial court
announced his ruling that Mr. Alston could waive the current shell motion. The
waiver made by Mr. Alston was not the type of waiver made by the defendant in
7
051a
Silvia. The waiver in this case was not as broad and it cannot be considered a
waiver of any changes in the law. The trial court told Mr. Alston prejudice would
not bar him from reasserting his rights under extraordinary circumstances. The
Hurst decisions represent just the extraordinary circumstances that even the trial
court did not foresee in 2004.
The factual basis to apply Silvia to this case is missing. Silvia cannot be
used as a basis to deny Mr. Alston from claiming a right to relief under Hurst. In
this case, if this Court finds that Silvia applies to Mr. Alston, he will have been
deemed to have waived a right he was unaware of at the time of the filing of his
postconviction motion and at the time of his waiver. See, Halbert v. Michigan, 545
U.S. 605 (2005) (a litigant cannot waive rights he does not yet have). Mr. Alston
continues to assert that the Hurst decision apply retroactively to him for the
reasons set forth in the initial pleadings in this case.
2. Class, an opinion of the United States Supreme Court issued
February 21, 2018, supports Mr. Alston and was not considered by this Court
in Silvia.
In Class, the United States Supreme Court held that a guilty plea and related
“waivers” do not, by themselves, bar a criminal defendant “from challenging the
constitutionality of the statute of conviction on direct appeal.” Class, 2018 WL
987347, at *4. Relevant here, the Court in Class rejected the argument that the
defendant had “expressly waived” his right to appeal “constitutional” issues
8
052a
because the judge informed the defendant that he “was giving up his right to appeal
his conviction.” Id. at *7 (internal brackets and quotation marks omitted). The
Supreme Court rejected this argument, noting that the plea did “not expressly refer
to a waiver of the appeal right here at issue.” Id. Rather, absent an express waiver
of prospective constitutional challenges, the defendant cannot be said to have
waived those rights. Id. at *4 (internal quotation mark omitted).
Mr. Alston’s waiver, like Class’s plea, prohibited him from raising only
certain claims in future proceedings. Mr. Alston’s waiver, however, does not
prohibit his claims under the Hurst opinions because his prior waiver did not
include a waiver of his rights under Hurst. In fact, Hurst rights did not even exist at
the time he entered his prior “waiver.” Also, as in Class, Mr. Alston’s waiver did
not expressly prohibit him from challenging the constitutionality of the underlying
statute, which was found unconstitutional by the Hurst decisions.
3.
A finding that Mr. Alston’s “waiver” precludes Hurst relief is
contrary to Halbert, holding that litigant cannot waive rights he does not yet
have
Any finding that Mr. Alston’s waiver, entered into before Ring, is contrary
to Halbert v. Michigan, 545 U.S. 605 (2005). Mr. Alston could not have waived
his rights to jury fact-finding and juror unanimity because those rights were not
recognized by Florida courts at the time he entered his waivers. This is the
established United States Supreme Court precedent applicable here.
9
053a
In Silvia, the Court cited to Mullens v. State, 197 So. 3d 16, 40 (Fla.
2016), as authority for denial of Hurst relief for defendants who waive a penalty
phase jury. The litigants in Mullens, however, did not direct this Court’s attention
to the United States Supreme Court’s holding in Halbert, finding that a litigant
cannot waive rights that he does not have. See also Class, 2018 WL 987347, at *5
(a guilty plea waives only arguments that “the defendant could have availed
himself by any other plea or motion.” (internal quotation marks omitted)). The
Court, therefore, has yet to consider Halbert’s controlling precedent that is
contrary to Silvia’s and Mullens’ reasoning. And, in most of the cases considered
in Mullens, the defendants, unlike Mr. Alston, already had state statutory rights to
jury fact-finding at sentencing that they had explicitly waived.
4. The decision in Silvia is incorrect and violates state and federal
constitutional guarantees of equal protection, due process, constitutes cruel
and unusual punishment, and results in the arbitrary and capricious
operation of the death penalty.
Mr. Alston further adopts, in its entirety, the dissent authored by Justice
Lewis in Silvia. Mr. Alston did not change his mind about pursuing collateral
relief, as was the case in Trease v. State, 41 So.3d 119, 126 (Fla. 2010) or in James
v. State, 974 So.2d 365, 368 (Fla. 2008).
Mr. Alston has chosen to pursue
collateral relief based on extraordinary circumstances- exactly as he was told he
could do by the trial court in 2003. As the dissent noted, the constitutional rights
10
054a
established by the Hurst decisions, is a new right Mr. Alston is seeking to avail
himself of- exactly the kind of right even the trial court did not foresee in 2003.
Mr. Alston is not precluded from pursuing Hurst relief under Florida law, as
the dissent asserts. To do so would deprive him of equal protection and due process
as guaranteed by the Fourteenth Amendment and Article I, Section 2 of the Florida
Constitution.
Mr. Alston further adopts the dissent’s position that to deny him Hurst relief
premised on the waiver of the 1999 shell motion is a violation of the Fourteenth
Amendment right to due process and Article I, Section 9 of the Florida
Constitution. It is fundamentally unfair to deny Mr. Alston the right to claim Hurst
relief under Witt v. State, 387 So.2d 922 (Fla. 1980) and Gore v. State, 710 So.2d
1197, 1203 (Fla. 1998).
Mr. Alston also adopts the dissent’s determination that to deny him the right
to claim Hurst relief violates his right to jury trial under the Sixth Amendment and
Article 1, Section 17 of the Florida Constitution because the decision to forgo
collateral proceedings is wholly separate from the Sixth and Eighth Amendment
rights at stake in Hurst.
The decision in Silvia would deny Mr. Alston his right to habeas corpus
relief under Article I, Section 13 of the Florida Constitution, as well as under
Article I, Section 9 of the United States Constitution.
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CONCLUSION
Mr. Alston would request full briefing on these matters, but even if there is
not full briefing, this Court should hold that Mr. Alston’s waiver of claims in a
previously filed postconviction motion do not preclude him claiming relief under
Hurst where he did not knowingly, intelligently, and voluntarily waive his right to
pursue claims based on the circumstances created by Hurst. Further, this Court
should reconsider its ruling on Silvia and follow the position of the dissent in
Silvia.
Respectfully submitted,
/s/Robert A. Norgard
ROBERT A. NORGARD
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CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2018, the foregoing was electronically
served via the e-portal to Assistant Attorney General Jennifer Keegan at
jennifer.keegan@myfloridalegal.com and to capapp@myfloridalegal.com.
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY the size and style font used in the preparation of this
Response is New Time Roman 14 in compliance with Fla. R. App. P. 9.210.
/s/ Billy H. Nolas
Billy H. Nolas
Chief, Capital Habeas Unit
Northern District of Florida
227 N. Bronough St., Suite 4200
Tallahassee, FL 32301
(850) 942-8818
Billy_nolas@fd.org
Fla. Bar No. 806821
Counsel for Appellant
/s/ Robert A. Norgard
Robert A. Norgard
Norgard, Norgard & Chastang
Attorney at Law
P.O. Box 811
Bartow, FL 33831
(863) 533-8556
Fax (753)533-1334
Norgardlaw@verizon.net
Fla. Bar No.: 322059
Counsel for Appellant
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EXHIBIT 7
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Filing # 63637101 E-Filed 11/01/2017 10:40:33 PM
IN THE SUPREME COURT OF FLORIDA
PRESSLEY BERNARD ALSTON,
Appellant,
CASE NO. SC17-499
v.
STATE OF FLORIDA,
Appellee.
__________________________________________________________
PRESSLEY BERNARD ALSTON,
Petitioner,
CASE NO. SC17-983
v.
JULIE L. JONES, ET AL.,
Respondents.
______________________________/
APPELLEE/RESPONDENTS’ REPLY TO APPELLANT/PETITIONER’S
RESPONSE TO SEPTEMBER 27, 2017, ORDER TO SHOW CAUSE
PAMELA JO BONDI
ATTORNEY GENERAL
JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL
Florida Bar No.: 0105283
PL-01, The Capitol
Tallahassee, FL 32399-1050
jennifer.keegan@myfloridalegal.com
capapp@myfloridalegal.com
Phone: (850)414-3579
Counsel for Appellee/Respondents
104a
TABLE OF CONTENTS
TABLE OF AUTHORITIES .....................................................................................3
STATEMENT OF THE CASE AND FACTS ..........................................................1
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................4
A. The June 24, 2002, Cutoff for Hurst Retroactivity is Not Unconstitutional ....5
B. Hurst Does Not Establish a New Substantive Constitutional Rule ..................9
CONCLUSION ........................................................................................................12
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TABLE OF AUTHORITIES
CASES
Alston v. State, 723 So. 2d 148 (Fla. 1998) ...........................................................1, 8
Alston v. State, 894 So. 2d 46 (Fla. 2004) .............................................................1, 2
Apprendi v. New Jersey, 530 U.S. 466 (2000) .........................................................7
Archer v. Jones, No. SC16-2111, 2017 WL 1034409 (Fla. Mar. 17, 2017) ............8
Asay v. State, 210 So. 3d 1 (Fla. 2016) .......................................................... passim
Asay v. State, 224 So. 3d 695 (Fla. 2017) ............................................................7, 8
Atkins v. Virginia, 536 U.S. 304 (2002) ....................................................................6
Bogle v. State, 213 So. 3d 833 (Fla. 2017) ...............................................................8
Cherry v. Jones, No. SC16-694, 2017 WL 1033693 (Fla. Mar. 17, 2017) ..............8
Danforth v. Minnesota, 522 U.S. 264 (2008) ...........................................................5
Davis v. State, No. SC16-264, 2017 WL 656307 (Fla. Feb. 17, 2017) ....................8
Durocher v. Singletary, 623 So. 2d 482 (Fla.1993) ...................................................2
Faretta v. California, 422 U.S. 806 (1975) ................................................................2
Floyd v. State, 497 So. 2d 1211 (Fla. 1986) .............................................................9
Gaskin v. State, 218 So. 3d 399 (Fla. 2017) .........................................................3, 8
Geralds v. Jones, No. SC16-659, 2017 WL 944236 (Fla. Mar. 10, 2017) ...............8
Griffith v. Kentucky, 479 U.S. 314 (1987) ...............................................................6
Hartley v. Jones, No. SC16-1359, 2017 WL 944232 (Mar. 10, 2017) .....................8
Hamilton v. Jones, No. SC16-984, 2017 WL 836807 (Fla. Mar. 3, 2017) ..............8
Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10, 2017) ...
3,
4, 7, 8, 12
Hurst v. Florida, 136 S. Ct. 616 (2016) ........................................................... passim
Hurst v. State, 202 So. 3d 40 (Fla. 2016)......................................................... passim
Ivan V. v. City of New York, 407 U.S. 203 (1972) ..................................................9
Johnson v. State, 904 So. 2d 400 (Fla. 2005) ...........................................................5
Jones v. Jones, No. SC16-607, 2017 WL 1034410 (Mar. 17, 2017) ........................8
Jones v. State, No. SC15-1549, 2017 WL 4296370 (Fla. Sept. 28, 2017) ................8
Lambrix v. Florida, 872 F. 3d 1170 (11th Cir. 2017) ...................................... 11, 12
Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla. Sep. 29, 2017) 7, 8, 9
Lambrix v. State, 217 So. 3d 977 (Fla. 2017) ...........................................................8
Lukehart v. Jones, No. SC16-1255, 2017 WL 1033691 (Fla. Mar. 17, 2017) .....7, 8
Marshall v. Jones, SC16-779, 2017 WL 1739246 (Fla. May 4, 2017)......................8
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Mosley v. State, 209 So. 3d 1248 (Fla. 2016) .................................................. 3, 7, 8
Oats v. Jones, 220 So. 3d 1127 (Fla. 2017) ...............................................................8
Penry v. Lynaugh, 492 U.S. 302 (1989) ...................................................................6
Powell v. Delaware, 153 A. 3d 69 (Del. 2016) ...................................................9, 10
Rauf v. State, 145 A. 3d 430 (Del. 2016) ...........................................................9, 10
Ring v. Arizona, 536 U.S. 584 (2002) ............................................................. passim
Rodriguez v. State, 219 So. 3d 751 (Fla. 2017) ........................................................8
Schriro v. Summerlin, 542 U.S. 348 (2004) .................................................... 10, 12
Smith v. State, 598 So. 2d 1063 (Fla. 1992) .............................................................6
Stein v. Jones, No. SC16-621, 2017 WL 836806 (Fla. Mar. 3, 2017) .....................8
Suggs v. Jones, No. SC16-1066, 2017 WL 1033680 (Fla. Mar. 17, 2017) ..............8
Teague v. Lane, 489 U.S. 288 (1989) ....................................................................5, 9
Trease v. State, 41 So. 3d 119 (Fla. 2010) ................................................................3
Wainwright v. State, No. SC15-2280, 2017 WL 394509 (Fla. Jan. 30, 2017) .........8
Welch v. U.S., 136 S. Ct. 1257 (2016) ...................................................................11
Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017) .............8
Witt v. State, 387 So. 2d 922 (Fla. 1980) ..................................................................5
Zack v. State, No. SC15-1756, SC16-1090, 2017 WL 2590703 (Fla. June 15, 2017)
.................................................................................................................................8
Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017) ....................................................8
Zeigler v. State, 580 So. 2d 127 (Fla. 1991) .............................................................9
OTHER AUTHORITIES
Fla. R. Crim. P. 3.851 ................................................................................................3
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STATEMENT OF THE CASE AND FACTS
Pressley Alston was convicted of first-degree murder in the Fourth Judicial
Circuit Court in Florida. Alston v. State, 723 So. 2d 148 (Fla. 1998). In the penalty
phase, the jury recommended a death sentence by a vote of nine to three. The trial
court found the following aggravating factors (“aggravators”): (1) Alston 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 to avoid
a lawful arrest; (4) the murder was especially heinous, atrocious, or cruel (HAC);
and (5) the murder was cold, calculated, and premeditated (CCP). Id. The trial court
did not find any statutory mitigating circumstances (“mitigators”) and found four
nonstatutory mitigators. Id. The Florida Supreme Court affirmed petitioner’s
conviction and death sentence on direct appeal on September 10, 1998. Id. (rehearing
denied December 17, 1998). His conviction and sentence became final when the
time for filing a writ of certiorari in the United States Supreme Court elapsed on
March 17, 1999.
On July 1, 2002, Alston filed a pro se petition in this Court asking to waive
further postconviction appeals. Alston v. State, 894 So. 2d 46 (Fla. 2004). This Court
ordered the Fourth Judicial Circuit Court of Florida to hold hearings to determine
competency and waiver, if necessary. Id. The trial court conducted an inquiry and
determined that Alston did want to waive further postconviction appeals. The trial
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court had Drs. Umesh M. Mhatre, Wade Cooper Myers, and Robert M. Berland
evaluate Alston and held an evidentiary hearing on the question of Alston’s
competency pursuant to Faretta v. California, 422 U.S. 806 (1975). The court
determined that Alston was competent to waive further appeals, and that his waiver
was knowing, voluntary, and intelligent. The trial court discharged Alston’s
postconviction counsel and dismissed all motions or petitions on postconviction
relief with prejudice pursuant to Durocher v. Singletary, 623 So. 2d 482 (Fla.1993).
Alston, 894 So. 2d at 58. In an opinion released October 14, 2004, following an
extensive review of the trial court proceedings, the Florida Supreme Court found
that evidence in the form of Dr. Mhatre's reports and testimony, the
DOC reports, and the testimony by DOC personnel support the circuit
court's conclusion that Alston is competent to proceed. … Given the
evidence at hand and the applicable standard of review, we conclude
that a sufficient basis exists to support the circuit court's resolution of
the conflicting evidence and that the circuit court did not abuse its
discretion in finding Alston competent to proceed.
Id., at 56-59. This Court also upheld the trial court’s Durocher proceeding and the
trial court’s finding that “Alston had knowingly, intelligently, and voluntarily
waived his rights to postconviction counsel and relief.” Id. at 47. In October 2004,
counsel was appointed to represent Alston in any state clemency proceedings.
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On January 3, 2017, Alston filed his Successive Postconviction Motion
(“Successive Motion”) in the trial court seeking relief under Hurst v. Florida, 136 S.
Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). On February 16, 2017,
the trial court denied the Successive Motion, holding that Asay v. State (Asay V),
210 So. 3d 1 (Fla. 2016), Mosley v. State, 209 So. 3d 1248 (Fla. 2016), and Gaskin
v. State, 218 So. 3d 399 (Fla. 2017), barred retroactive application of Hurst to
Alston’s case, and as such, the Successive Motion was untimely under Rule
3.851(d), Florida Rules of Criminal Procedure.1 On March 9, 2017, Alston filed a
notice of appeal. While Alston’s appeal was pending before this Court, he filed a
Petition for Writ of Habeas Corpus (“Habeas Petition”) in this Court seeking relief
under Hurst v. Florida and Hurst v. State.
On June 8, 2017, this Court stayed Alston’s appeal and Petition pending the
disposition of Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10,
2017). On August 10, 2017, this Court affirmed the conviction and sentence in
Hitchcock in accordance with this Court’s decision in Asay V, 210 So. 3d at 1. On
September 27, 2017, this Court issued an order for Alston to show cause as to “why
Notably, numerous procedural bars apply to the Hurst claim Alston raised below. Alston’s January 3,
2017 Successive Motion well exceeded the one year time limitation after his judgement and sentence
became final. See Fla. R. Crim. P. 3.851 (d)(1). As his claim did not fall into one of the enumerated
exceptions to the one year limitation, his petition was untimely. See Fla. R. Crim. P. 3.851(d)(2). Further,
Alston entered a valid Durocher waiver and the trial court’s acceptance of that waiver was affirmed by this
Court. Alston cannot now assert postconviction claims simply because he has changed his mind. See Trease
v. State, 41 So. 3d 119 (Fla. 2010).
1
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the trial court’s order should not be affirmed and the petition for a writ of habeas
corpus should not be denied in light of this Court's decision in Hitchcock v. State,
SC17-445.” On October 13, 2017, Alston filed his “Appellant/Petitioner’s Response
to September 27, 2017 Order to Show Cause” (“Response”).
This is the
Appellee/Respondents’ reply to Alston’s Response.
SUMMARY OF THE ARGUMENT
Alston has failed to show cause as to why his case should be excluded from
this Court’s precedent in Asay V as reaffirmed by Hitchcock. Because Alston’s case
was final before Ring, Hurst is not retroactive under federal law, and his claim for
relief is procedurally barred, this Court should deny Alston’s pending appeal from
the denial of his Successive Motion and his pending Habeas Petition.
ARGUMENT
Alston argues that various constitutional rules mandate the retroactive
application of Hurst v. Florida and Hurst v. State to his case. The circuit court
properly found that Alston was not entitled to relief based on this Court’s precedent,
and he has failed to show cause as to why the court’s ruling should not be affirmed
and why his Habeas Petition should not be denied.
In Asay v. State (Asay V), 210 So. 3d 1, 22 (Fla. 2016), this Court held that
Hurst v. State, 202 So. 3d 40 (Fla. 2016), is not retroactive to any case in which the
death sentence was final prior to the June 24, 2002, decision in Ring v. Arizona, 536
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U.S. 584 (2002). This Court performed a retroactivity analysis under state law using
the standard set forth in Witt v. State, 387 So. 2d 922 (Fla. 1980), which provides
“more expansive retroactivity standards than those adopted in Teague,2” which
enumerates the federal retroactivity standards. Asay V, 210 So. 3d at 15-16
(emphasis in original) (quoting Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005));
see also Danforth v. Minnesota, 522 U.S. 264, 280-81 (2008) (allowing states to
adopt a retroactivity test that is broader that Teague).
A. The June 24, 2002, Cutoff for Hurst Retroactivity is Not Unconstitutional
Alston alleges that the retroactivity cutoff for Hurst relief established by Asay
V, 210 So. 3d at 1, violates various constitutional principles, including the Due
Process Clause, the Equal Protection Clause, fundamental fairness, and the Eighth
Amendment protection against arbitrary and capricious punishment. To support his
point, Alston notes various facts in other cases, such as how long this Court took to
issue its opinion in a case. He asserts that the differing circumstances of a case will
affect when the case was final and thereby affect whether a given defendant is
entitled to a review of Hurst error in his case. Alston appears to conclude that it is
unconstitutional to extend Hurst relief to some defendants and not others based on
when their convictions and sentences became final.
2
Teague v. Lane, 489 U.S. 288 (1989).
5
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While every case is different, and these differences may impact when a
conviction and sentence becomes final, these differing outcomes arise in every
circumstance where a new constitutional rule is not applied retroactively to cases on
collateral review. If Alston’s complaints were valid, they would compel retroactive
application to every case every time a change in the law occurred. Such a result
would be untenable and would upend any semblance of finality in the criminal
justice system.
Finality is a significant consideration when determining whether to apply new
rules to existing cases. Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (holding finality
concerns in retroactivity are applicable in the capital context) (abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002)). In Griffith v. Kentucky, 479
U.S. 314, 328 (1987), the Supreme Court held “that 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.” See also Smith v. State, 598 So.
2d 1063, 1065 (Fla. 1992). Under this “pipeline” concept, only those still pending
direct review would receive the benefit of relief from Hurst error. The fact that this
Court has drawn the line at the decision date in Ring instead of the decision date in
Hurst, benefits more appellants instead of less.
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While Alston alleges that the June 24, 2002, Hurst retroactivity cutoff violates
the Due Process Clause, the Equal Protection Clause, and the Eighth Amendment’s
prohibition of arbitrary and capricious punishments, these claims have been
specifically rejected by this Court’s opinion in Lambrix v. State, No. SC17-1687,
2017 WL 4320637, *1 (Fla. Sep. 29, 2017). In its Lambrix opinion, this Court made
clear that its opinions in Hitchcock, 2017 WL 3431500 at *1, and Asay v. State
(Asay VI), 224 So. 3d 695 (Fla. 2017), contemplated and rejected such constitutional
arguments.3 Lambrix, at *1-2.
Further, Alston asserts briefly that this Court must extend Hurst retroactively
to his case under the fundamental fairness doctrine. (Response at 9, fn. 3). Alston
misinterprets the Mosley v. State, 209 So. 3d 1248 (Fla. 2016), holding to extend
Hurst relief to pre-Ring cases through the fundamental fairness doctrine when an
Apprendi or Ring claim was previously raised. The Mosley fundamental fairness
discussion concerned the impact this Court’s reliance on pre-Hurst precedent had on
Mosley’s post-Ring case. Specifically, the Court noted that Mosley had previously
sought Ring relief and was denied on bases this Court now considers incorrect.
Mosley, 209 So. 3d at 1275. Mosley’s fundamental fairness discussion was never
Alston’s argument that it is unfair to extend Hurst retroactivity to the Ring decision date but not to the
June 26, 2000, decision date in Apprendi v. New Jersey, 530 U.S. 466 (2000), is meritless. Unlike Ring,
the Apprendi opinion clearly states it does not apply to capital cases, and thus the decision date should not
serve as an end for Hurst retroactivity. Apprendi, 530 U.S. at 496-97. Further, this Court has declined to
extend Hurst relief in Lukehart v. Jones, No. SC16-1255, 2017 WL 1033691, *1 (Fla. Mar. 17, 2017), in
which the conviction and sentence became final after Apprendi, but before June 24, 2002.
3
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intended to create an exception to the June 24, 2002, Hurst retroactivity cutoff, and
this Court has confirmed this by rejecting the same argument in Gaskin v. State, 218
So. 3d 399 (Fla. 2017). Even if such an exception was intended by Mosley, it would
be inapplicable to Alston because he failed to raise the substance of a Ring-type
claim on direct appeal. Initial Brief of Appellant, Alston v. State, 723 So. 2d at 148.
This Court has consistently adhered to using June 24, 2002, as the cutoff point
for retroactivity.4 (Response at 1). This Court’s Hitchcock opinion reaffirmed the
decision in Asay V and rejected Hitchcock’s various constitutional arguments. This
Court noted that Hitchcock’s constitutional arguments against the Ring retroactivity
cutoff had been considered and rejected in the Asay V opinion. Hitchcock, 2017
WL 3431500 at *2; see also Asay VI, 224 So. 3d at 703 (rejecting the claim that
Chapter 2017-1, Laws of Florida, “creates a substantive right to a life sentence unless
a jury unanimously recommends otherwise”); Lambrix, 2017 WL 4320637 at *1
4
See Asay, 210 So. 3d at 8, 22; Jones v. State, No. SC15-1549, 2017 WL 4296370, *2 (Fla. Sept. 28, 2017);
Hitchcock, 2017 WL 3431500; Zack v. State, Nos. SC15-1756, SC16-1090, 2017 WL 2590703, *5 (Fla.
June 15, 2017); Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017); Oats v. Jones, 220 So. 3d 1127 (Fla.
2017); Marshall v. Jones, No. SC16-779, 2017 WL 1739246 (Fla. May 4, 2017); Rodriguez v. State, 219
So. 3d 751 (Fla. 2017); Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017); Suggs v.
Jones, No. SC16-1066, 2017 WL 1033680, *1 (Fla. Mar. 17, 2017); Lukehart, No. SC16-1225, 2017 WL
1033691, *1; Cherry v. Jones, No. SC16-694, 2017 WL 1033693, *1 (Fla. Mar. 17, 2017); Archer v. Jones,
No. SC16-2111, 2017 WL 1034409, *1 (Fla. Mar. 17, 2017); Jones v. Jones, No. SC16-607, 2017 WL
1034410 (Mar. 17, 2017); Hartley v. Jones, No. SC16-1359, 2017 WL 944232, *1 (Mar. 10, 2017); Geralds
v. Jones, No. SC16-659, 2017 WL 944236, *1 (Fla. Mar. 10, 2017); Lambrix v. State, 217 So. 3d 977 (Fla.
2017); Stein v. Jones, No. SC16-621, 2017 WL 836806 (Fla. Mar. 3, 2017); Hamilton v. Jones, No. SC16984, 2017 WL 836807 (Fla. Mar. 3, 2017); Davis v. State, No. SC16-264, 2017 WL 656307 (Fla. Feb. 17,
2017); Bogle v. State, 213 So. 3d 833 (Fla. 2017); Wainwright v. State, No. SC15-2280, 2017 WL 394509
(Fla. Jan. 30, 2017); Gaskin, 218 So. 3d at 399.
8
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(rejecting arguments based on the Eighth Amendment, denial of due process and
equal protection, and a substantive right based on new legislation).
B. Hurst Does Not Establish a New Substantive Constitutional Rule
Alston alleges that Hurst is retroactive under the United States Supreme
Court’s retroactivity test put forth in Teague v. Lane, 489 U.S. 288 (1989), because
Hurst constitutes a substantive change. (Response at 15). Alston relies upon Ivan V.
v. City of New York, 407 U.S. 203, 205 (1972), and Powell v. Delaware, 153 A. 3d
69 (Del. 2016), to support his argument. (Response at 19). He claims that Hurst is
a substantive change because it “addressed the proof-beyond-a-reasonable-doubt
standard.” (Response at 19). However, the standard of proof for proving aggravating
factors in Florida has been beyond a reasonable doubt long before Hurst was
decided. See Floyd v. State, 497 So. 2d 1211, 1214-15 (Fla. 1986); Zeigler v. State,
580 So. 2d 127, 129 (Fla. 1991). Alston’s reliance on Powell is misplaced because
the Delaware Supreme Court in Powell agreed that Ring and Hurst did not change
the burden of proof that was used in those cases. Powell, 153 A. 3d at 74 (“neither
Ring nor Hurst involved a Due Process Clause violation caused by the
unconstitutional use of a lower burden of proof”).
Powell, 153 A. 3d at 74.
Furthermore, Powell addressed the retroactivity of Rauf v. State, 145 A. 3d 430 (Del.
2016), the Delaware Court’s initial case interpreting Hurst v. Florida. The Delaware
Court distinguished Rauf from Hurst and Ring because Rauf addressed burden-of9
116a
proof issues that existed under Delaware state law. Rauf, at 74. Because the
Delaware Court held Rauf retroactive based on issues specific to Delaware state law,
the Powell case is easily distinguishable from Hurst and fails to support Alston’s
claim.
Importantly, the United States Supreme Court addressed the retroactivity of
Ring, and found that it was a procedural rule that did not justify retroactive
application. In Schriro v. Summerlin, 542 U.S. 348 (2004), the Supreme Court
determined that Ring was a procedural rule and did not establish substantive
constitutional change in the law because it only “altered the range of permissible
methods for determining whether a defendant’s conduct is punishable by death,
requiring that a jury rather than a judge find the essential facts bearing on
punishment.” Id., at 353. Ring did not alter the type of conduct that is punishable
nor the group or class of people that can be punished under the law. Id. Thus, the
new rule established by Ring was procedural in nature and not retroactive to
convictions and sentences that were already final. Id. at 358. Since the Supreme
Court held that Ring did not create a substantive constitutional rule, and Hurst is
simply an extension of Ring to Florida’s sentencing scheme, Hurst is likewise
procedural in nature and is not retroactive to convictions and sentences that are
already final.
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Alston further relies on Welch v. U.S., 136 S. Ct. 1257 (2016), to assert that
Hurst “place[s] certain murders ‘beyond the State’s power to punish,’” and is thereby
substantive in nature. Contrary to Alston’s assertion, Hurst does not change the
definition of first-degree murder, nor exclude a class of persons from being subject
to the death penalty. Rather, Hurst modifies the procedural steps required to impose
the death penalty. The very case Alston relies on aptly illustrates the State’s point.
In Welch, the United States Supreme Court held that striking the definition of “prior
violent felony” in the Armed Career Criminal Act was a substantive change that
must be applied retroactively. 136 S. Ct. at 1259. The United States Supreme Court
explained that by striking the definition of a prior violent felony, “the same person
engaging in the same conduct is no longer subject to the Act.” Id. at 1265. In contrast
to Welch, Hurst did not change the definition of first-degree murder, but rather,
changed the procedural requirements for determining the penalty for first-degree
murder. As such, Hurst is plainly procedural in nature.
Alston acknowledges that the Eleventh Circuit has declined to extend Hurst
retroactively in Lambrix v. Florida, 872 F. 3d 1170 (11th Cir. 2017), but he attempts
to explain this ruling away as a product of a narrow standard of review. However,
the Eleventh Circuit’s ruling reached the merits of the retroactivity issue and clearly
held that Hurst is not retroactive under federal law. The opinion explained that
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denying Hurst retroactivity was in full accord with Ring and Schriro, 542 U.S. at
348. Lambrix, 872 F. 3d at 1182-83.
Here, just as in Hitchcock, Alston raises various constitutional provisions to
argue that Hurst v. State should be retroactively applied to him. However, just as in
Asay, as reaffirmed by Hitchcock, Hurst v. State does not apply retroactively to
Alston. This case became final on November 11, 2000, which is prior to the June
24, 2002, decision in Ring. As such, Hurst v. State is not retroactive to this case.
Thus, the Habeas Petition should be denied and the trial court’s denial of Hurst relief
should be affirmed.
This Court’s rulings in Asay and Hitchcock apply to Alston, and he has
demonstrated no cause for this Court to recede from its lengthy case precedent.
Because Alston’s judgment and sentence were final prior to the decision in Ring,
Hurst is not retroactive to him.
CONCLUSION
WHEREFORE, Appellee/Respondents pray this Court deny Alston’s Habeas
Petition and affirm the circuit court’s denial of Hurst relief in his case.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/Jennifer L. Keegan_____
JENNIFER L. KEEGAN
ASSISTANT ATTORNEY GENERAL
Florida Bar No.: 0105283
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PL-01, The Capitol
Tallahassee, FL 32399-1050
jennifer.keegan@myfloridalegal.com
capapp@myfloridalegal.com
Phone: (850)414-3579
Counsel for Appellee/Respondents
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing State’s
Answer to Defendant’s Successive Postconviction Motion has been furnished via
the eportal to Robert A. Norgard, Esq., norgardlaw@verizon.net; Billy H. Nolas,
Esq., billy_nolas@fd.org, Attorneys for Appellant/Petitioner; this 1st day of
November, 2017.
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the size and style of the type used in this brief is
14-point Times New Roman, in compliance with Fla. R. App. P. 9.210.
/s/ Jennifer L Keegan_____________
Counsel for Appellee/Respondents
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EXHIBIT 8
122a
Filing # 63843017 E-Filed 11/07/2017 08:40:55 AM
Nos. SC17-499 & SC17-983
IN THE
Supreme Court of Florida
PRESSLEY BERNARD ALSTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
PRESSLEY BERNARD ALSTON,
Petitioner,
v.
JULIE L. JONES, SECRETARY,
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent.
APPELLANT/PETITIONER’S REPLY IN SUPPORT OF
RESPONSE TO ORDER TO SHOW CAUSE
Robert A. Norgard
Norgard, Norgard, & Chastang
P.O. Box 811
Bartow, FL 33830
(863) 533-8556
norgardlaw@verizon.net
Florida Bar No. 322059
Billy H. Nolas
Chief, Capital Habeas Unit
Northern District of Florida
227 N. Bronough Street, Suite 4200
Tallahassee, FL 32301
(850) 942-8818
billy_nolas@fd.org
Florida Bar No. 806821
Counsel for Appellant/Petitioner
123a
TABLE OF CONTENTS
RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT ........... 1
ARGUMENT ............................................................................................................. 1
I.
The State’s cursory response to Mr. Alston’s arguments that partial
retroactivity is unconstitutional should be rejected.......................................... 1
II.
The State’s cursory response to Mr. Alston’s federal retroactivity arguments
is unpersuasive .................................................................................................. 3
III.
The State is incorrect in asserting that Hitchcock addressed Mr. Alston’s
constitutional arguments…………………………………….......................... 6
IV.
The State abandons any “harmless error” arguments .................................... 10
CONCLUSION ........................................................................................................ 10
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RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT
Mr. Alston renews his requests that the Court permit untruncated briefing.
ARGUMENT
I.
The State’s cursory response to Mr. Alston’s arguments that partial
retroactivity is unconstitutional should be rejected
The State fails to substantively engage most of Mr. Alston’s constitutional
arguments regarding the Ring cutoff. Although the State mentions the Eighth
Amendment argument, the State does not address Mr. Alston’s specific argument
that a retroactivity cutoff at Ring violates the Eighth Amendment’s prohibition
against arbitrary and capricious imposition of the death penalty. See State’s Resp.
at 5-19.
The State offers only a cursory response to Mr. Alston’s arguments under the
Fourteenth Amendment. According to the State, a Ring-based cutoff does not violate
the Equal Protection and Due Process Clauses any more than a traditional rule that
provides for only prospective application of new constitutional rules. See id. at 6.
The State assumes that “partial” retroactivity is constitutional because it “benefits
more appellants,” no matter where the line is drawn. Id. at 6. Notably, however,
the State fails to provide an example of any previous constitutional ruling that has
been given only “partial” retroactive effect, and does not engage in any specific due
process or equal protection analysis.
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The State’s failure to address Mr. Alston’s Eighth Amendment arguments and
cursory treatment of his Fourteenth Amendment arguments is telling. A Ring cutoff
injects into Florida’s death penalty jurisprudence a level of arbitrariness and
capriciousness, as well as a denial of equal protection and due process, that is not
present in typical circumstances where retroactivity is withheld based on the
pragmatic necessity to evolve constitutional protections prospectively without undue
cost to the finality of preexisting judgments. A retroactivity cutoff at Ring
inaugurates a kind and degree of capriciousness that far exceeds the level justified
by normal non-retroactivity jurisprudence. Indeed, a Ring-based cutoff precludes
relief in precisely the class of cases in which relief makes the most sense.
For instance, inmates whose death sentences became final before Ring have
been on death row longer than their post-Ring counterparts. They have demonstrated
over a longer time that they are capable of adjusting to that environment and
continuing to live without endangering any valid interest of the State. Pre-Ring
inmates are more likely to have been given death sentences under standards that
would not produce a capital sentence—or even a capital prosecution—under the
conventions of decency prevailing today. In the generation since Ring was decided,
prosecutors and juries have been increasingly unlikely to seek and impose death
sentences. And pre-Ring inmates are more likely to have received death sentences
in trials involving problematic factfinding. The past two decades have witnessed a
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broad recognition of the unreliability of numerous kinds of evidence—flawed
forensic-science theories and practices, hazardous eyewitness identification
testimony, and so forth—that was accepted without question in pre-Ring capital
trials. Doubts that would cause today’s prosecutors, juries, and judges to hesitate
to seek or impose death were unrecognized in the pre-Ring era. Taken together,
these considerations highlight that a Ring-based retroactivity cutoff involves a level
of caprice that runs beyond that tolerated by typical retroactivity rules.
Taken together, these considerations highlight that a Ring-based retroactivity
cutoff involves a level of caprice that exceeds that tolerated by standard-fare
retroactivity rules. A Ring cutoff’s denial of relief in precisely the class of cases in
which relief makes the most sense is irremediably perverse and inconsistent with the
Eighth and Fourteenth Amendments.
II.
The State’s cursory response to Mr. Alston’s federal retroactivity
arguments is unpersuasive
The State’s federal retroactivity arguments can be dispensed with briefly. The
State cites Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for the proposition that
the Supreme Court’s ruling that Ring is not retroactive in a federal habeas proceeding
means that Hurst is not retroactive in any proceeding. See State’s Resp. at 10. But
as Mr. Alston explained in his earlier response, see Alston’s Resp. at 19-20, the
Arizona statute at issue in Ring v. Arizona, 536 U.S. 584 (2002), and Summerlin did
not require, as Florida’s statute did, factfinding regarding both the aggravators and
3
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their “sufficiency” for the death penalty. The State acknowledges as much by
addressing only Florida’s burden of proof for aggravators. See State’s Resp. at 9.
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 with the Hurst decisions. They recognized for the first time that it
is unconstitutional for a judge alone to make a finding of fact concerning the
“sufficiency” of the aggravation.
Moreover, unlike Ring, Hurst was grounded on the beyond-a-reasonabledoubt standard. The State unpersuasively attempts to distinguish Ivan V. v. City of
New York, 407 U.S. 203 (1972). See State’s Resp. at 9. Even assuming, as the State
suggests, that Florida’s scheme formerly incorporated the beyond-a-reasonabledoubt standard, the standard was misapplied to factfinding by the trial judge, not
findings made by the jury. The Hurst decisions held that the jury must make the
beyond-a-reasonable-doubt findings that subject a defendant to a death sentence.
Indeed, a federal judge in Florida, citing Ivan, has already observed the distinction
between Summerlin and Hurst because of the beyond-a-reasonable-doubt standard.
See Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May 27, 2016) (contrasting
Hurst to Ring and Summerlin because the latter decisions “did not address the
requirement for proof beyond a reasonable doubt,” and “[t]he Supreme Court has
held a proof-beyond-a-reasonable-doubt decision retroactive”).
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The State’s citation to Powell v. Delaware, see State’s Resp. at 9, is
particularly odd considering that the Delaware Supreme Court in Powell applied a
retroactivity test that mirrors the federal retroactivity test articulated in Teague v.
Lane, 489 U.S. 288 (1989), and held that Hurst should be applied retroactively in
Delaware. See Powell v. Delaware, 153 A.3d 69, 75-76 (Del. 2016). If anything,
Powell supports Mr. Alston’s arguments.
The State’s fundamental misunderstanding of Apprendi v. New Jersey, 530
U.S. 466 (2000), is on display in its attempt to distinguish Welch v. United States,
136 S. Ct. 1247 (2016). See State’s Resp. at 11. The State argues that, unlike Welch,
Hurst is not substantive because it “did not change the definition of first-degree
murder, but rather, changed the procedural requirements for determining the penalty
for first-degree murder.” State’s Resp. at 11. This argument, however, is the exact
argument that Apprendi rejected when it made clear that any factfinding that
increases the penalty to which a defendant is exposed is an element of an offense,
not merely a sentencing factor. See Apprendi, 530 U.S. at 485 (a state cannot
“circumvent the protections of [In re] Winship[, 397 U.S. 358 (2000),] merely by
redefining the elements that constitute different crimes, characterizing them as
factors that bear solely on the extent of punishment” (internal quotation marks
omitted)). Hurst, therefore, did not merely change a procedure, it explained that the
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factfinding that determines whether a defendant may be exposed to death is an
element of the offense.
Finally, it is telling that the State failed to even engage Mr. Alston’s
Montgomery arguments, a case in which the Supreme Court explained that
substantive rules will contain procedural components. See Montgomery v.
Louisiana, 136 S. Ct. 718, 734 (2016) (warning against “conflating a procedural
requirement necessary to implement a substantive guarantee with a rule that
regulates only the manner of determining the defendant’s culpability” (internal
brackets and quotation marks omitted))
III.
The State is incorrect in asserting that Hitchcock addressed Mr. Alston’s
constitutional arguments
This Court’s opinion in Hitchcock v. State, No. SC17-445, 2017 WL 3431500
(Fla. Aug. 10, 2017), relied exclusively on the reasoning in Asay v. State, 210 So. 3d
1 (Fla. 2016). As the State acknowledges, the Court’s decision in Asay rested
entirely on state retroactivity law articulated in Witt v. State, 387 So. 2d 922 (Fla.
1980). See State’s Resp. at 4-5 (“In Asay . . . . [t]his Court performed a retroactivity
analysis under state law using the standard set forth in Witt”); see also Asay, 210 So.
3d at 16 (“To apply a newly announced rule of law to a case that is already final at
the time of the announcement, this Court must conduct a retroactivity analysis
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pursuant to the dictates of Witt.”).1 Asay did not address whether federal law
required the Hurst decisions to be applied retroactively, and certainly did not address
the federal retroactivity arguments raised in Mr. Alston’s response to the order to
show cause in this proceeding. Namely, Asay did not address whether a retroactivity
“cutoff” drawn at Ring violates the Eighth Amendment’s prohibition against
arbitrary and capricious imposition of the death penalty or the Fourteenth
Amendment’s Equal Protection and Due Process Clauses. Nor did Asay address
whether the Hurst decisions are “substantive” within the meaning of federal law,
such that the Supremacy Clause of the Constitution requires state courts to apply the
decisions retroactively in light of Montgomery.
Hitchcock, in relying totally on Asay, also did not explicitly address or reject
Mr. Alston’s federal retroactivity arguments. See Hitchcock, 2017 WL 3431500, at
*1 (“We affirm because we agree with the circuit court that our decision in Asay
forecloses relief.”); id. at *2 (“Accordingly, we affirm the circuit court’s order
summarily denying Hitchcock’s successive postconviction motion pursuant to
Asay.”). The State’s response here attempts to highlight the conclusory sentence in
Hitchcock that reads: “Although Hitchcock references various constitutional
provisions as a basis for arguments that Hurst v. State should entitle him to a new
1
As this Court has repeatedly emphasized, Witt addresses retroactivity as a matter
of state law, which is separate and distinct from federal retroactivity analysis. See,
e.g., Falcon v. State, 162 So. 3d 954, 955-56 (Fla. 2015).
7
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sentencing proceeding, these are nothing more than arguments that Hurst v. State
should be applied retroactively to his sentence, which became final prior to Ring.”
State’s Resp. at 4 (citing Hitchcock, 2017 WL 3431500, at *2) (emphasis added).
But the Hitchcock Court’s reference to “constitutional provisions” cannot be
reasonably read to address Mr. Alston’s federal retroactivity arguments, as the very
next sentence in Hitchcock reads: “As such, these arguments were rejected when we
decided Asay.”). Hitchcock, 2017 WL 3431500, at *2. As explained above, Asay
rested its analysis entirely on state retroactivity law and the Florida Constitution.
During the nearly eight months between this Court’s decisions in Asay and
Hitchcock, many Hurst defendants have raised federal retroactivity arguments in this
Court and the circuit courts, explaining that Asay did not resolve those matters in its
exclusively state-law analysis and imploring that federal law be addressed. Those
defendants, appellants, and petitioners, as Mr. Alston does here, advanced federal
retroactivity arguments under the Eighth and Fourteenth Amendments, as well as the
Supremacy Clause and Montgomery. If this Court had intended to put those
arguments to rest in Hitchcock, it could have done so. But any fair reading of
Hitchcock leads to the conclusion that those issues remain unresolved in light of the
Court’s wholesale reliance on Asay. Indeed, Hitchcock neither mentions the Eighth
Amendment’s prohibition against arbitrary and capricious imposition of the death
penalty, nor the Fourteenth Amendment’s Equal Protection and Due Process
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Clauses. Nor does Hitchcock cite Montgomery or otherwise explain why the
Supremacy Clause does not require the substantive rules announced in the Hurst
decisions to be retroactively applied by state courts. The State’s response to the
order to show cause in this case does not contend otherwise.
To the extent the State suggests that Mr. Alston’s federal arguments have been
addressed in other cases, those decisions are not applicable here. As Mr. Alston
noted in his initial response to the order to show cause, the Eleventh Circuit’s
decision in Lambrix v. Sec’y, No. 17-14413, 2017 WL 4416205 (11th Cir. Oct. 5,
2017), is not precedential in this Court and was decided in the context of the current
federal habeas statute, which dramatically restricts federal review of state-court
decisions. This Court’s application of federal constitutional protections, on the other
hand, is not circumscribed. More importantly, Lambrix dealt with an idiosyncratic
issue—the “retroactivity” of Florida’s new capital sentencing statute—and did not
squarely address the retroactivity of the constitutional rules arising from the Hurst
decisions. Similar idiosyncratic presentations also render inapplicable to Mr. Alston
this Court’s recent active-death-warrant decisions in Asay v. State, 224 So. 3d 695
(Fla. 2017), Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla. Sep. 29,
2017), and Hannon v. State, No. SC17-1837, 2017 WL 4944899 (Fla. Nov. 1, 2017).
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IV.
The State abandons any “harmless error” arguments
The State abandons any argument that the Hurst error in Mr. Alston’s case
was harmless by failing to even reference the harmless error doctrine in its response.
See Hoskins, 75 So. 3d at 257 (“An issue not raised in an initial brief is deemed
abandoned.”) (citing Hall, 823 So. 2d at 763 (Fla. 2002)) (quotation cleaned up). As
Mr. Alston argued in his initial filing, the Hurst error is not harmless under this
Court’s precedent in light of the advisory jury’s non-unanimous recommendation.
CONCLUSION
For the reasons above and in Mr. Alston’s initial response to the Court’s order
to show cause, this Court should hold that federal law requires the Hurst decisions
to be applied retroactively and vacate Mr. Alston’s death sentence.
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Respectfully submitted,
/s/ Billy H. Nolas
Billy H. Nolas
Chief, Capital Habeas Unit
Office of the Federal Public Defender
Northern District of Florida
227 N. Bronough St., Suite 4200
Tallahassee, FL 32301-1300
billy_nolas@fd.org
(850) 942-8818
Fla. Bar No. 806821
/s/ Robert A. Norgard
Robert A. Norgard
Norgard, Norgard, & Chastang
P.O. Box 811
Bartow, FL 33830
(863) 533-8556
norgardlaw@verizon.net
Florida Bar No. 322059
CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2017, the foregoing was electronically
served via the e-portal to Assistant Attorney General Jennifer L. Keegan at
jennifer.keegan@myfloridalegal.com and capapp@myfloridalegal.com, and Robert
Norgard at norgardlaw@verizon.net.
/s/ Billy H. Nolas
Billy H. Nolas
135a
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.