Opposition Brief — Pressley Bernard Alston, Petitioner v. Florida, et al.

NO. 18-5641

IN THE SUPREME COURT OF THE UNITED STATES

PRESSLEY BERNARD ALSTON,

Petitioner,

Vv.

STATE OF FLORIDA, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

PAMELA JO BONDI

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Florida Bar No. 158541

Jennifer L. Keegan

Assistant Attorney General

Office of the Attorney General

PL-O1, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

[Capital Case]

Whether this Court should grant certiorari review where the

enforceability of Alston’s Durocher waiver and the _ retroactive

application of Hurst v. Florida and Hurst v. State is based on adequate

independent state grounds and the issue presents no conflict between

the decisions of other state courts of last resort or federal courts of

appeal, does not conflict with this Court’s precedent, and does not

otherwise raise an important federal question.

TABLE OF CONTENTS

QUESTION PRESENTED..200.ec elec eceeeeeeececcenesteesaeeseesseeessesseseseeecesensessecsesecesseneees i

TABLE OF CONTENTS 000oooooeeeecccccecceceeseeeeeesnesteeseeseeessssseeseeesesessesseeneessecsecaecsecseseatenes ii

TABLE OF CITATIONS 000. ecceccceeseesesesecseeneeeessaeesaeecseesnesnsesssseseceeceeesaseesescseeseess iil

OPINION BELOW ..000o.ceccec ccc ceeceeeccesceeseeseeeeesaeeeeeseecaneeanesseesaescessesseeeseseessesseesseenees 1

JURISDICTION o.oo cee ceeceeeneeseeceneeeneeesesasesaeeeseeseaeeeaeesaeesesssaeesuecsuseuesseesaneess 1

STATEMENT OF THE CASE AND FACTS... .eccccccescsssessscesseecssesesesseeceecsseeseenseses 2

REASONS FOR DENYING THE WRIT 0.000... cecccssccsssesssceeseesseesseseseeeseessecsseecesseeeee 6

I. There is No Basis for Certiorari Review of the Florida Supreme Court’s

Ruling that Alston Made a Knowing, Intelligent, Voluntary Waiver Which

Precluded Hurst Relief..............ccccccccsssceecssseecssnsecesseceesseeeceeesseecesseueussaaasanecsseesaaeesaes 6

II. There is No Basis for Certiorari Review of the Florida Supreme Court’s

Denial of Retroactive Application of Hurst to Alston’s Case.............cccccceseeeeeeeeeeeee 15

CONCLUSION 0000. eeceeececcceseecseneeseneeeneeensseecsseesnseeeseesessasesssesesssesecssecensecesscensesseneeeses 28

CERTIFICATE OF SERVICE ..000......cccccccccsssecssscssneessneeesseesesaeeesseeeesseecsareessasessecsenessaes 29

TABLE OF CITATIONS

Cases

Alleyne v. United States, 570 U.S. 99 (2018) ......ccccccssssesssecccescessccececeeresensaceneeesceeces 26

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ........cccccscssssseeeereseeeee 26

Alston v. State, 243 So. 3d 885 (Fla. 2018) .....ccccceesssssscccsceecceccesesssssccsecsussuesseseceeees 1,5

Alston v. State, 723 So. 2d 148 (Fla. 1998) .0.........ccsesssssssssessesesteseseseessssseeseeseatseeeees 2, 15

Alston v. State, 894 So. 2d 46 (Fla. 2004)... eecsecscsssesseseesesesesseseeneseecsseseesensens 2,4, 14

Apprendi v. New Jersey, 530 U.S. 466 (2000)............ccccccccesssessseeccecsssessseeseees 21, 26, 27

Asay v. State, 210 So. 8d 1 (Fla. 2016)... ecesseseeseeseeesseesesecesseeeeseeeseeseeneass 16, 17, 18

Blackledge v. Perry, 417 U.S. 21 (1974) ....cccccccccceeecessesseceseeseceseceecetsassasssessssaseees 13

Brady v. United States, 397 U.S. 742 (1970) .......cececccessesssessssesesssecseeseecenereaseneseseas 9, 10

Branch v. State, 234 So. 3d 548 (Fla. 2018) ..........ccccccccecscssscssessesseecsesecsceacesceceacesens 18

Caldwell v. Mississippi, 472 U.S. 320 (1987) oo... essesecsecsssecessesesssesesseseeneaeeneesees 19, 20

Class v. United States, 188 S.Ct. 798 (2018) ..........ccccccccccssssssssscesesesseesescsaceccecenceacess 13

Danforth v. Minnesota, 552 U.S. 264 (2008)..........ccccccscscccssessssescssceceevscsecececcevseseeasees 16

Durocher v. Singletary, 623 So. 2d 482 (Fla. 1998) 0... 3, 4, 7, 8, 10, 13, 14

Hisenstadt v. Baird, 405 U.S. 438 (1972) oo... ececsessseseseeseesssesesssseseeseseescseeeeseeenseneess 19

Faretta v. California, 422 U.S. 806 (1975) ........ccecessssssssssesesecsesesenesssenseessnsssssnseeseeaeaneses 2

Finney v. State, 660 So. 2d 674 (Fla. 1995) .......esccsssssessessessseessessecsesssessecssessursssesseenees 24

Griffith v. Kentucky, 479 U.S. 314 (1987) o.oo. ceeeecsceecseesecessecerseess peseveesceceeeeeeesenss 19

Halbert v. Michigan, 545 U.S. 605 (2008)... cecessecssseseeseeeeeeseeseeseesesesesees 10, 11, 12

Hitchcock v. State, 226 So. 8d 216 (Fla. 2017)........c.ccccccsssscsscessssssescsssecececsecereecerereers 18

Hurst v. Florida, 186 S.Ct. 616 (2016) wo... cecccccccecsescsssesseeeececececcccevscessecsusseeas passim

Hurst v. State, 202 So. 3d 40 (Fla. 2016) oo... cecceeecceccesecesececcesassascssesseesees passim

In re Coley, 871 F.8d 455 (6th Cir. 2017) oo... ceeeesccsccceccecceecsesseecseseseeseesecsuesseeesesenes 21

In re Jones, 847 F.3d 1293 (10th Cir. 2017)......ccccccccecscssececcecccececsecasecesacsauseessecaeeace 21

il

Ivan V. v. City of New York, 407 U.S. 203 (1972)........cccccccccccscccccecsceccesscssesceseseesseceees 24

Jenkins v. Hutton, 137 S.Ct. 1769 (2017) oo. eeseesseseeseneeeeceeeeseseeeseseeseeeeseeeneeeees 26

Johnson v. New Jersey, 384 U.S. 719 (1966) .......c..cccccccssscescsscsseseenseseeeserseesensteceeseaes 17

Johnson v. State, 904 So. 2d 400 (Fla. 2005) ooo..cececcccccssscsccesseccccesccesessessaesaeeeess 17

Johnson v. United States, 185 S.Ct. 2551 (2015) oo... cceccsecssscsssssessesesesesssececenes 23

Johnson v. Zerbst, 304 U.S. 458 (1938)... eecsscssssssesssessessssesssseseseeseaccnesesseseereessaseees 9

Kansas v. Carr, 136 S.Ct. 633 (2016) oo... .eeeceeeceecececseeeeseeseeeeseseseessseseeseseeseseesees 24, 26

Lambrix v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1170 (11th Cir. 2017) 0.0.0... 16, 21

Lambrix v. State, 227 So. 8d 112 (Fla. 2017) ....cc.c.cccecccsccescecesessceceaceeeseessesseacesesseseeaes 18

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)... cc cceseeeeecseceeeeeseeseseees 8

Lowenfield v. Phelps, 484 U.S. 231 (1988) .......cssccscecssssssssssssestesesesessesessseseenesessees 26, 27

Malvo v. Mathena, 254 F.Supp. 3d 820 (B.D. Va. 2017) ....cecceccsccsceccescesseceeceseceee 11, 12

McMann v. Richardson, 397 U.S. 759 (1970) ........eccccecccecccececesecsscecssecssscessuesuessecesseseee 9

Menna v. New York, 423 U.S. 61 (1975) ........cccccccsssscsssssssessessesssseseseeseesseesessessessessees 13

Michigan v. Long, 463 U.S. 1032 (1988) oo... .cccccccscsssscscceceececeseceeeececessesscausaesase 7,16

Miller v. Alabama, 567 U.S. 460 (2012) 0.........eceseeecesesseesseseseeesescseseeesesesceeees 12, 21, 22

Montgomery v. Louisiana, 186 S.Ct. 718 (2016) ........ecccccsesscsscescesecesecesesscenees 20, 22, 23

Mosley v. State, 209 So. 3d 1248 (Fla. 2016) ........:.:eecscsesssessesesssesseseseeseneneaees 16, 17, 18

Murray v. Giarratano, 492 U.S. 1 (1989) oo... essesesseneeeeseesesesseseseeseeesecncseeeseeaeeeeess 13

Pennsylvania v. Finley, 481 U.S. 551 (1987) ......ccccccscsscsscccssssceceecessecsceacecestceneeteceaees 13

Penry v. Lynaugh, 492 U.S. 302 (1989)... scescssseseseesesessesesestsseseeneseseensseesseees 19, 22

People v. Billings, 770 N.W. 2d 893 (Mich. App. 2009) .......0..cccccecceccccececsesesseseees 11, 12

Powell v. Delaware, 153 A.3d 69 (Del. 2016) oo.....c..cccccccccccecccsescecssecesseccessesececsee 24, 25

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

Romano v. Oklahoma, 512 U.S. 1 (1994)........ccccecccceccesssescessececcseeaeesseeeseeersessesaesnens 20

Schriro v. Summerlin, 542 U.S. 348 (2004)... eeceseeseeeesseseeees 16, 20, 21, 22, 28, 24

Smith v. Yeager, 393 U.S. 122 (1968) oo... cccccccsscssssssesssscscsssscessssasteveccaveceass 10, 11, 12

State v. Silvia, 235 So. 3d 349 (Fla. 2018) ........cccccccccccescccssscccssceccecessccscsseesesseeseeeeeese 5, 7

Teague v. Lane, 489 U.S. 288 (1989) .........ccccccccccccseseesescscsesecsceseasacsesseacescerees 16, 17, 21

Welch v. United States, 186 S.Ct. 1257 (2016) ......ccceccseccssscscesscssecceceecaceeeecsecees 22, 23

Whorton v. Bockting, 549 U.S. 406 (2007) o.....ccc ice eeccecssecceccsccecsstsecesessecesesesesseens 21

Witt v. State, 387 So. 2d 922 (Fla. 1980).........cccscscccssssssssessssserssssesescscsssesessseeneeees 16, 17

United States v. Johnston, 268 U.S. 220 (1925) ooo. ee cceccesscsecscsccseccessccsssecssecsecesseeees 9

United States v. Ruiz, 586 U.S. 622 (2002) ..........cccccsssceccccsscccsssceseeccescesscusseneeseeces 9, 10

Other Authorities

28 U.S.C. § L257 oo ececcccccccccssessssesesesescsesesesessscsescsesessessssssacscavavavessscesacacacacacacatatacatacacansess 1

§ 921.141 (5)(b) Fla. Stat. (1995) ooo. ccecescecseceecescsecececsecesessecessscaesseceessesecsens 26

§ 921.141 (5)(d) Fla. Stat. (1995) oo... cccccccscssssssssscsssccecccesecsecsesseeessessussesseueassaessens 26

Fla. R. Crim. P. 8.851 .....c.ccccccccsscsesssssescccscsesesssseeveceveeeeees seseseseseceecsnseesseseseseseteeeseseees 3,7

Fla. Std. J. Inst. (Crim.) 7.11 o.oo. cece ccccssccscccesseccescceseccccscecscnecsacecseceecsuecessuecarsevecueee 24

US. Sup. Ct. BR. 10 oo ccsssseeeceseeessssseccsccssssscesevecssscecesssseseusessesauseeesecsensnraueesesees 1, 8

IN THE SUPREME COURT OF THE UNITED STATES

NO. 18-5641

PRESSLEY BERNARD ALSTON,

Petitioner,

Vv.

STATE OF FLORIDA, ET AL..,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s decision appears as Alston v. State, 243 So. 3d

885 (Fla. 2018).

JURISDICTION

This Court’s jurisdiction to review the final judgment of a state court of last

resort is authorized by 28 U.S.C. § 1257. However, the Florida Supreme Court’s

decision in this case is based on adequate and independent state grounds and does

not implicate an important or unsettled question of federal law, does not conflict

with another state court of last resort or a United States court of appeals, and does

not conflict with relevant decisions of this Court. Under United States Supreme

Court Rule 10, this case is inappropriate for the exercise of this Court’s

discretionary jurisdiction.

STATEMENT OF THE CASE AND FACTS

Pressley Alston was convicted of first-degree murder, armed robbery, and

kidnapping 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 five aggravating factors

(“aggravators”).! 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 the Florida Supreme Court

asking to waive further postconviction appeals. Alston v. State, 894 So. 2d 46 (Fla.

2004). The Florida Supreme Court ordered the trial court to hold hearings to

determine Alston’s competency and whether he sought a waiver. Id. The trial court

conducted an inquiry and determined that Alston did want to waive further

postconviction appeals. The trial 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

1 The five aggravators found in Alston’s case were (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). The trial court did

not find any statutory mitigating circumstances (“mitigators”) and found four nonstatutory

mitigators. Alston, 723 So. 2d at 153.

2

(1975). After considering the evaluation results and other evidence, the trial court

found Alston competent.

On June 6, 2003, the trial court conducted a hearing to address Alston’s

waiver request, as required by Florida law. Fla. R. Crim. P. 3.851(); Durocher v.

Singletary, 623 So. 2d 482 (Fla. 1993). The trial court informed Alston that he had

the option to discharge counsel and represent himself pro se. (Appendix at 5). The

court also explained that he had the option to waive his postconviction proceedings,

saying,

[blut if you waive your post-conviction proceedings, the court will not

only discharge counsel, but will also enter an order dismissing with

prejudice any motions that you have under rule 3.851 or any other

post-conviction rules.

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 that if you do that,

that ultimately the judgement of the law will be carried out and you

will be put to death as ordered by this court.

(Appendix at 6-7).

Alston indicated repeatedly that he understood, stating “I would like to waive

all collateral proceedings and post-conviction proceedings and have the judgement

of the law carried out.” (Appendix at 9). The court then permitted Alston’s counsel

to inquire of Alston, who examined him extensively on the consequences of the

waiver. (Appendix at 17-29). During this inquiry, Alston confirmed his

understanding that “I believe that there is no second step after I knowingly and

intelligently and voluntarily waive all further appeals and collateral proceedings

and post-conviction proceedings in this case.” (Appendix at 20). Alston’s counsel also

3

questioned Alston about waiving possible future claims.

Q. Well, if I -- sorry to interrupt.

If I advised you today, Mr. Alston, that it’s my strong legal

opinion that we would have a very good argument to file a fully

pled and investigated 3.850 today despite the fact that it was

not filed within the one-year period of your initial appeal, would

that make a difference in any waiver that you intend to tell the

judge you want to go with?

A. No. My intentions are still the same.

(Appendix at 25).

The court ultimately 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 and

petitions on postconviction relief with prejudice pursuant to Durocher, 623 So. 2d at

482. 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 Dr. Mhatre's reports and testimony, the Florida Department of Corrections

(DOC) reports, and the testimony by DOC personnel support the trial court's

conclusion that Alston is competent to proceed. Id. at 56-59. The Florida Supreme

Court subsequently 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.

On January 3, 2017, Alston filed a successive postconviction motion in the

trial court seeking Hurst? relief. Following the denial of that motion, Alston filed an

appeal and a petition for writ of habeas corpus in the Florida Supreme Court

seeking Hurst relief. The Florida Supreme Court denied relief in the appeal and the

habeas petition on January 22, 2018, holding that Alston was not entitled to Hurst

relief because his case became final in 1999 and Hurst was not retroactive to his

case. The Florida Supreme Court then withdrew the mandate and issued an order

to show cause “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.”

On May 17, 2018, after reviewing each party’s response to its order, the

Florida Supreme Court denied all relief in Alston’s case. The court relied on State v.

Silvia, 235 So. 3d 349 (Fla. 2018), to conclude that Alston's valid waiver of

postconviction proceedings and counsel precluded review of his Hurst claim. The

court further ruled that even if Alston’s waiver did not preclude his claim, Hurst did

not apply retroactively to his case. Alston, 243 So. 3d at 886. Alston now seeks

review of that ruling.

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

5

REASONS FOR DENYING THE WRIT

I. There is No Basis for Certiorari Review of the Florida Supreme

Court’s Ruling that Alston Made a Knowing, Intelligent,

Voluntary Waiver which Precluded Hurst Relief.

Alston seeks certiorari review of the Florida Supreme Court’s decision that

Alston’s knowing, intelligent, and voluntary waiver of his postconviction litigation

was sufficient to bar consideration of a subsequent claim seeking Hurst relief.

(Petition at 10). Alston argues that his waiver should not preclude his Hurst claim

because 1) a waiver cannot apply to rights that had not yet been recognized at the

time of the waiver, 2) his waiver was limited to the claims in his then-pending

postconviction trial court motion, and 8) enforcing his waiver is unfair in his case

because he did not know about the existence of Ring v. Arizona’ at the time of his

waiver. Alston’s argument hinges on a misunderstanding of this Court’s waiver

jurisprudence and a disagreement with the Florida Supreme Court’s factual

findings. The ruling below is based on an adequate, independent state ground and

this claim is a poor vehicle for certiorari review because a ruling on Alston’s waiver

claim would not affect the outcome of his case. The Florida Supreme Court’s ruling

is not in conflict with this Court’s precedent, nor the precedent of any federal

appellate court or state court of last resort, and factual disputes are an inadequate

basis for certiorari review. As Alston provides no grounds to justify certiorari

review, Alston’s petition should be denied.

This Court should not grant certiorari review in this case because the ruling

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

below is based on an independent and adequate state-law ground. See Michigan v.

Long, 463 U.S. 1032, 1040 (1988) (holding that, “[rlespect for the independence of

state courts, as well as avoidance of rendering advisory opinions, have been the

cornerstones of this Court's refusal to decide cases where there is an adequate and

independent state ground”). Rule 3.851, Florida Rule of Criminal Procedure,

provides a procedural avenue for a defendant to file and litigate postconviction

claims attacking a conviction and sentence. The Rule also provides a mechanism for

a defendant to waive the right to state postconviction litigation. Rule 3.851G), Fla.

R. Crim. P. In Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993), the Florida

Supreme Court recognized that a capital defendant may waive the statutory right

to postconviction litigation and postconviction counsel if the defendant was

competent and provided a knowing, voluntary waiver. More recently, State v. Silvia,

235 So. 3d 349 (Fla. 2018), held that a defendant’s Durocher waiver barred him

from later seeking Hurst relief, even though Hurst had not been issued when he

entered his waiver.

Alston’s Durocher waiver of his postconviction proceedings was a waiver of

his state right to postconviction litigation. Such a waiver is entirely a creation of

state law, and it bars him from litigating any postconviction claim in state court.

Because the Florida Supreme Court’s ruling below is based on an independent and

adequate state-law ground, certiorari review should be denied.

Alston’s claim is an inadequate vehicle for certiorari review because any

adjudication of the merits of his waiver claim would have no impact on his access to

Hurst relief, nor the outcome of his case. The heart of Alston’s claim is that he is

entitled to Hurst relief, and would be able to avail himself of such relief if not for

the Florida Supreme Court’s ruling that his Durocher waiver barred consideration

of his Hurst claim. Ultimately, Alston is not entitled to Hurst relief because Hurst

is not retroactive to his case. Infra, pages 15-25. Alston will not be entitled to Hurst

relief regardless of this Court’s disposition of Alston’s waiver claim. Article III,

section 2 of the United States Constitution restricts federal court jurisdiction to

“cases” and “controversies.” It follows that invoking this Court’s jurisdiction to

review a claim that is not “likely to be redressed by a favorable judicial decision,”

would be improper. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).

Certiorari review should be denied in this case because addressing the merits of

Alston’s waiver claim will have no impact on the outcome of his case.

This Court should not grant certiorari review because the Florida Supreme

Court’s ruling below does not raise an unsettled constitutional question and does

not conflict with any ruling of a state court of last resort, this Court, or another

federal court. Rule 10 of the Rules of the Supreme Court of the United States

identifies the relevant considerations in granting certiorari review of a ruling of a

state court of last resort. Noting review is only granted for “compelling reasons,” the

Rule states review is appropriate where the ruling decides an important, unsettled

constitutional question, or where the ruling decides an important constitutional

question in conflict with this Court, a United States court of appeals, or another

state court of last resort. Review is not appropriate, however, to address factual

4

disputes. United States v. Johnston, 268 U.S. 220, 227 (1925) (holding, this Court

does not grant a certiorari “to review evidence and discuss specific facts”).

This Court’s established waiver jurisprudence upholds waivers in the face of

subsequent changes in the law and does not conflict with the Florida Supreme

Court’s ruling below. This Court has long held that any waiver must be knowing,

intelligent, and voluntary. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

However, the validity of the waiver is judged by the law that existed at the time of

the waiver and cannot be undermined by a future change in the law. In McMann v.

Richardson, 397 U.S. 759, 778-74 (1970), the defendant claimed his guilty plea was

involuntary when a new decision on coerced confessions was issued by this Court.

This Court rejected his argument, holding that when a defendant waives his jury

trial right, “he does so under the law then existing.” Id., 397 U.S. at 774. Even if the

defendant would have pleaded differently had the later change in the law been in

effect at the time of his plea, “he is bound by his plea.” Id.; see also Brady v. United

States, 397 U.S. 742, 757 (1970) (rejecting an attempt to vacate a plea based

partially on a statute that was later declared unconstitutional because defendant’s

failure to anticipate a change in the law “does not impugn the truth or reliability of

his plea”); United States v. Ruiz, 536 U.S. 622, 630 (2002) (moting that the

Constitution does not require a defendant to have complete knowledge of relevant

circumstances when entering a waiver, including anticipating a relevant change in

the law). The validity of Alston’s waiver of his postconviction litigation is based on

the law as it existed at the time and is not undermined by subsequent changes in

the law.

Alston strains to find conflict with the Florida Supreme Court’s ruling and

the rulings of other courts by arguing that Alston’s Durocher waiver was not a

knowing waiver of Hurst relief because the right did not exist when he entered his

waiver. (Petition at 10-11). However, Alston’s waiver acted to waive an existing

right to postconviction litigation, much like the guilty plea in Richardson was a

waiver of an existing right to a jury trial. 397 U.S. 761-64. The subsequent change

in the law that created a new claim for the Richardson defendants to raise at the

trial they waived did not invalidate their waivers because the waiver of a jury trial

acts as a waiver of the potential claims they could raise at that jury trial. Id. at 766-

68. Alston’s waiver of postconviction litigation similarly acted to waive the potential

claims he could raise during such litigation. Therefore, Alston’s argument that his

waiver was not knowing fails because his waiver applied to an existing right to

postconviction litigation, and necessarily any potential claims that could be raised

at that time or in the future.

Alston’s reliance on Halbert v. Michigan, 545 U.S. 605 (2005), and Smith v.

Yeager, 393 U.S. 122 (1968), to argue that Alston did not knowingly waive his

Hurst claim is misplaced. (Petition at 11-12). Neither Halbert nor Smith conflicts

with Richardson, Brady, or Ruiz, and the waivers in Halbert and Smith are readily

distinguishable from Alston’s Durocher waiver. Halbert held that the Equal

Protection and Due Process clauses required appointment of appellate counsel for

10

defendants seeking first-tier review of a conviction based on a plea. The state

argued that Halbert waived the newly-recognized right to appellate counsel by

entering a no contest plea, but the Halbert Court disagreed, holding that because

the right to counsel did not exist when Halbert entered his plea, he could not waive

it. In Smith, the issue was whether a claim was procedurally barred in a successive

federal habeas proceeding because it likely could have been proven at an

evidentiary hearing during the litigation of the initial habeas petition. The District

Court found the issue procedurally barred because Smith elected not to seek an

evidentiary hearing to prove this claim during his initial habeas litigation, even

though such hearing was unlikely to be granted under the law existing at the time.

The Smith Court’s primary concern was whether Smith abused the writ by not

seeking an evidentiary hearing at a previous stage. The court ultimately concluded

that Smith’s claim should not be barred for failing to prove a claim at an

evidentiary hearing to which he had no right.

In a similar vein, Alston relies on Malvo v. Mathena, 254 F.Supp. 3d 820

(E.D. Va. 2017), and People v. Billings, 770 N.W. 2d 893 (Mich. App. 2009), which

again, address issues irrelevant to Alston’s case. Each case raises the question of

whether a defendant can knowingly waive an unknown right, which is irrelevant in

Alston’s case because his waiver applied to his known right to postconviction

litigation. Additionally, Malvo is further distinguishable because the ruling turned

on the defects in the scope of Malvo’s waiver. The Court addressed whether Malvo

11

waived a Miller* claim by entering a plea prior to the issuance of Miller that

explicitly described all the rights being waived. The Court concluded that although

a plea certainly could waive a defendant’s future Miller claim, it did not in this case

because the agreed boundaries of the plea agreement did not contemplate the

possibility of this future claim. Malvo’s case would have arrived at the same

conclusion as the Court did in Richardson, 397 U.S. at 776-78, supra, page 9, if not

for the specific terms of his waiver.

Halbert, Smith, Malvo, and Billings do not conflict with the ruling below

because Alston’s waiver applied to the known, well-established right to

postconviction litigation. Alston’s argument misses the distinction between waiver

of a singular unknown right and waiver of a known right to a broad procedural

scheme, such as postconviction litigation. Additionally, the holding in Smith was

driven by the complexities of the procedural bars existing in successive federal

habeas litigation, and Malvo was driven by the defects in the scope of Malvo’s

waiver. These factors are absent in Alston’s case. Alston’s argument that his waiver

was not knowing fails because his waiver applied to his existing right to

postconviction litigation, and necessarily any potential claims that could be raised.

in postconviction litigation at that time or in the future.

Alston further argues he did not knowingly waive Hurst relief because he

only waived a state right. He argues that the waiver of a state right cannot

implicitly waive a distinct Constitutional right. (Petition at 14). This argument fails

because the enforceability of Alston’s waiver does not turn on whether he waived a

4 Miller vy. Alabama, 567 U.S. 460 (2012). 12

Constitutional or a state right. Even if Alston’s Hurst claim has a Constitutional

foundation, that does not impair Alston’s waiver of postconviction litigation because

the postconviction proceedings Alston is seeking only exist as a matter of state

right. Murray v. Giarratano, 492 U.S. 1, 8 (1989) (citing Pennsylvania v. Finley, 481

U.S. 551, 556-57 (1987)). If a defendant raises a Constitutional claim in a state

proceeding, that does not then transform access to the state proceeding into a

Constitutional right. Such a result would eviscerate the finality of nearly every

guilty plea or Durocher waiver. Alston’s waiver applies to the entire procedural

mechanism of state postconviction litigation, and necessarily waives utilizing that

procedural mechanism to address any current or future claim.

Alston’s reliance on Blackledge v. Perry, 417 U.S. 21 (1974), Menna v. New

York, 423 U.S. 61 (1975), and Class v. United States, 138 S.Ct. 798 (2018), are

readily distinguishable from Alston’s case because each case involved claims that

would implicate “the very power of the State” to prosecute the defendants.

Blackledge, 417 U.S. at 30. Blackledge concerned a vindictive prosecution claim,

Menna involved a Due Process claim, and Class involved a facial constitutional

challenge to the statute under which the defendant was convicted. Blackledge, 417

U.S. at 23-25; Menna, 423 U.S. at 62-63; Class, 138 S.Ct. at 801-02. These cases are

inapplicable to Alston’s case because Hurst only applies to Florida’s procedural

mechanism for determining the sentence in a capital case. A Hurst claim does not

implicate the power of the state to prosecute Alston but rather, the procedure for

sentencing him.

13

Alston presents a factual argument that he did not know about Ring v.

Arizona, 536 U.S. 584 (2002), the precursor to Hurst, when he entered his Durocher

waiver in 2003. Because Hurst was an extension of Ring to Florida’s sentencing

scheme, he argues that he could not have knowingly waived Hurst since he did not

know about Ring when he entered his Durocher waiver. (Petition at 18). The facts of

Alston’s case refute his argument.

This Court issued its Ring opinion on June 24, 2002. Ring, 536 U.S. at 584.

Alston filed his pro se motion seeking to waive his postconviction litigation shortly

after on July 1, 2002. Alston, 894 So. 2d at 46. Alston’s hearing to address his

Durocher waiver was held on June 6, 2003, nearly a year after Ring was issued.

Alston knew or had every opportunity to know that Ring had been issued when he

waived his postconviction proceedings.

Even if Alston had not known about Ring at the time of his waiver, he made

it clear at his Durocher hearing that he would still want to waive his postconviction

proceedings regardless of any new claims his attorney could raise. During the

hearing, Alston’s defense attorney asked him if he would change his mind about the

waiver if they could file new postconviction claims. Alston responded, “No. My

intentions are still the same.” (Appendix at 25). Alston knew or should have known

about Ring when he entered his waiver. Moreover, Alston’s colloquy demonstrates

that he unreservedly waived all of the postconviction claims pending before the trial

court as well as any possible future claims. There is no question that Alston’s

Durocher waiver was knowing.

14

The ruling below is based on an adequate, independent state ground and this

case is a poor vehicle for certiorari review because a ruling on Alston’s waiver claim

would not affect the outcome of his case. The Florida Supreme Court’s ruling is not

in conflict with this Court’s precedent, nor the precedent of any federal appellate

court or state court of last resort, and Alston’s factual disputes are an inadequate

basis for certiorari review. As Alston provides no grounds to justify certiorari

review, his petition should be denied.

II. There is No Basis for Certiorari Review of the Florida Supreme

Court’s Denial of Retroactive Application of Hurst to Alston’s

case.

Alston seeks certiorari review of the Florida Supreme Court’s decision that

Hurst is not retroactive to Alston’s case because his case became final in 1999, prior

to the issuance of Ring. See Alston, 723 So. 2d at 148 (rehearing denied Dec. 17,

1998). The Petition alleges that the Florida Supreme Court’s refusal to retroactively

apply Hurst to cases that were final before Ring was decided is arbitrary and

capricious under the Eighth Amendment and violates the Fourteenth Amendment’s

guarantee of equal protection. (Petition at 21). However, the Florida Supreme

Court’s denial of retroactive application to Alston’s case is based on adequate and

independent state grounds, is not in conflict with any other state court of last

resort, and is not in conflict with any federal appellate court. The decision below is

not in conflict with this Court’s jurisprudence on retroactivity nor does it violate the

Eighth or Fourteenth Amendments. As Alston provides no grounds to justify

certiorari review, his petition should be denied. U.S. Sup. Ct. R. 10.

15

As explained supra, page 7, this Court does not review state court decisions

that are based on adequate and independent state grounds. Michigan, 463 U.S. at

1040. This Court has held that Ring is not retroactive under federal law in Schriro

v. Summerlin, 542 U.S. 348, 358 (2004). As Hurst is an extension of Ring to

Florida’s capital sentencing scheme, it follows that Hurst is likewise not retroactive

under federal law. See Lambrix v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1170, 1182

(11th Cir. 2017) Gin denying the defendant’s claim seeking retroactive application of

Hurst, the court noted that no U.S. Supreme Court opinion holds Hurst to be

retroactive). As Hurst is not retroactive under federal law, the Florida Supreme

Court’s retroactive application of Hurst is based on a state test for retroactivity.

Florida has implemented a test which provides relief to a broader class of

individuals in applying Florida’s Witt5 test instead of Teague v. Lane, 489 U.S. 288

(1989), for determining the retroactivity of Hurst. Certiorari review should be

denied because the retroactive application of Hurst is based on an adequate and

independent state ground.

The Florida Supreme Court first analyzed the retroactive application of

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

210 So. 3d 1, 15-22 (Fla. 2016). In Mosley, the Florida Supreme Court held that

Hurst is retroactive to cases which became final after the June 24, 2002, decision in

Ring. 209 So. 3d at 1283. In reaching its conclusion, the Mosley court conducted a

Witt analysis, which is Florida’s retroactivity test. This Court has held that the

finality of state convictions is a state interest rather than a federal one. Danforth v.

16

Minnesota, 552 U.S. 264 (2008). Thus, states may implement standards for

retroactivity that grant relief to a greater class of individuals than what is required

by Teague. Johnson v. New Jersey, 384 U.S. 719, 733 (1966) (states may “effectuate

under their own law stricter standards than those we have laid down and to apply

those standards in a broader range of cases than is required by this decision”).

Mosley held that the Witt test favored retroactive application of Hurst in

cases which became final post-Ring. The court concluded that “defendants who were

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

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

explicitly making this determination.” Mosley, 209 So. 3d at 1276-83. Thus, Hurst

was retroactive to Mosley’s post-Ring case, which became final in 2009. Id.

Conversely, applying the Witt analysis in Asay, the Florida Supreme Court

held that Hurst is not retroactive to cases in which the death sentence was final

pre-Ring. The court specifically noted that Witt “provides more expansive

retroactivity standards than those adopted in Teague.” Asay, 210 So. 3d at 15

(emphasis in original) (quoting Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005)).

However, the court determined that the amount of reliance on the old rule, and the

effect retroactivity would have on the administration of justice, weighed heavily

against applying Hurst to pre-Ring cases. Asay, 210 So. 2d at 20-22. Asay noted

that the state and the victims’ families relied heavily on the constitutionality of

Florida’s death penalty scheme based on the U.S. Supreme Court’s decisions. Id. at

20. Resentencing is expensive and time consuming and the state’s interest in

5 Witt v. State, 837 So. 2d 922 (Fla. 1980). 17

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

Florida Supreme Court held that Hurst was not retroactive to Asay’s case since the

judgment and sentence became final in 1991, prior to Ring. Id. at 8, 20.

Asay and Mosley clearly explain the Florida Supreme Court’s rationale for

the Ring-based retroactivity cutoff. Alston claims this cutoff is arbitrary and results

in unequal sentences in similar cases. (Petition at 25). His argument

misapprehends a primary purpose of the Ring-based retroactivity cutoff, which is to

avoid penalizing those defendants who would have been entitled to Ring relief if

Ring had been applied to Florida’s sentencing scheme at the time Ring was decided.

See Mosley, 209 So. 3d at 1283. In moving the line of retroactive application back to

Ring, Florida’s retroactive application of Hurst exceeds what is constitutionally

required and expands the class of defendants who can benefit from Hurst.

As Alston’s case was final in 1999, he would not have been entitled to Ring

relief if Ring had applied to Florida law when it was decided in 2002. The denial of

Hurst relief in Alston’s case is consistent with its stated objectives and has been

applied consistently in other cases. Following Asay and Mosley, the Florida

Supreme Court has applied Hurst retroactively to all post-Ring cases and declined

to apply Hurst retroactively to all pre-Ring cases.6 This distinction between cases

which were final pre-Ring versus cases which were final post-Ring is neither

arbitrary nor capricious.

The differing outcomes between pre-Ring and post-Ring cases do not make

6 Hitchcock v. State, 226 So. 3d 216 (Fla. 2017); Lambrix v. State, 227 So. 3d 112 (Fla. 2017); Branch

v. State, 234 So. 3d 548 (Fla. 2018).

18

the Hurst retroactivity cutoff unconstitutional under the Eighth or Fourteenth

Amendments. New rules are primarily applied only to cases which are not yet final.

Griffith v. Kentucky, 479 U.S. 314, 328 (1987); Penry v. Lynaugh, 492 U.S. 302

(1989). Under this “pipeline” concept, Hurst would only apply to cases not yet final

on the date Hurst was issued. The case-by-case outcome resulting from this

traditional application of retroactivity can be affected by numerous factors that

have nothing to do with the defendant or the crime, such as trial scheduling or the

speed at which an appellate court issues its opinion. Yet, this Court recognizes that

traditional retroactivity does not violate the Eighth or Fourteenth Amendment.

Florida’s Hurst retroactivity calculation differs from traditional retroactivity

only in that the determinative date stems from the date Ring was decided rather

than the date Hurst was decided. Certainly, the Florida Supreme Court has

demonstrated “some ground of difference that rationally explains the different

treatment” between pre-Ring and post-Ring cases. Eisenstadt v. Baird, 405 U.S.

438, 447 (1972). Much like the more traditional application of retroactivity, the

Ring-based cutoff for the retroactive application of Hurst, does not violate the Eighth

or Fourteenth Amendment.

Alston’s Petition further alleges that Florida’s Ring retroactivity cutoff denies

relief to the most deserving capital prisoners. (Petition at 30). Alston argues that

older capital cases were more likely to contain errors, older jury instructions

contained Caldwell v. Mississippi, 472 U.S. 320 (1987),’ errors, and generally were

7 Alston makes the passing assertion that jury instructions in “older cases” violated Caldwell v.

Mississippi, 472 U.S. 320 (1987). Florida’s standard jury instructions in place at the time of Alston’s

19

more likely to result in a death sentence. Alston concludes that these errors provide

him and other similarly situated defendants special entitlement to retroactive

application of Hurst. (Petition at 30-35).

Alston’s argument seeks a dramatic reversal of this Court’s longstanding

precedent of favoring newer cases over older ones when considering retroactivity

questions and asks this Court to favor decades-old cases in applying Hurst

retroactively. Procedural avenues are available to capital prisoners in Florida to

challenge errors they discover and failing to prevail on those claims does not justify

retroactive application of Hurst. Allegations that some unrelated error exists at

another stage in Alston’s case does not, by itself, entitle him or any other defendant

to retroactive Hurst relief. Notably, Alston fails to cite a single case which would

demonstrate otherwise. The Florida Supreme Court’s refusal to retroactively apply

Hurst to Alston’s case is based on an adequate and independent state ground and

does not violate federal law or this Court’s precedent. Thus, certiorari review should

be denied.

Alston relies on Montgomery v. Louisiana, 136 S.Ct. 718 (2016), to assert

that Hurst created a substantive change in the law and thus should be afforded full

retroactive application under the Constitution. (Petition at 35-36). Contrary to

'Alston’s assertion, Hurst is merely a procedural change. In Schriro, 542 U.S. at 353,

trial did not violate Caldwell because they accurately described the role of the jury under the law at

the time. Romano v. Oklahoma, 512 U.S. 1, 9 (1994). Alston’s jury was provided standard jury

instructions, which emphasized the gravity of the jury’s role, warning against “actling] hastily or

without due regard to the gravity of these proceedings.” (Record Vol. II at 482). The jury was also

instructed to “carefully weigh, sift and consider the evidence, and all of it, realizing that human life

is at stake, and bring to bear your best judgment in reaching your advisory sentence.” Id.

20

this Court explained that rules that allocate decision making authority between the

judge and the jury are procedural rules. There is no conflict between the decision

below and this Court’s precedent nor the precedent of any other federal appellate

court or state court of last resort. Certiorari review should be denied.

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

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

(2007). The general rule is one of nonretroactivity for cases on collateral review,

unless the new rule is a substantive Constitutional rule or a watershed rule of

criminal procedure. Teague, 489 U.S. at 307, 310. The Constitution does not compel

retroactive application of Hurst because it is neither a substantive Constitutional

rule nor a watershed rule of criminal procedure.

Hurst was an extension of Ring to Florida’s capital sentencing scheme. Ring,

in turn, was based on Apprendi v. New Jersey, 530 U.S. 466 (2000). In Schriro, 542

U.S. at 358, this Court held that Ring established a procedural change in the law

and was not retroactive to cases that were final. As Hurst is merely an extension of

Ring, Hurst is also not retroactive under federal law. Lambrix, 872 F.3d at 1182

(“No U.S. Supreme Court decision holds that its Hurst decision is retroactively

applicable.”); In re Coley, 871 F.3d 455, 457 (6th Cir. 2017) (noting this Court has

not made Hurst retroactive to cases on collateral review); In re Jones, 847 F.3d

1293, 1295 (10th Cir. 2017) (holding this Court has not found that Hurst created a

substantive rule).

Alston attempts to analogize Hurst to Miller v. Alabama, 567 U.S. 460

21

(2012), arguing that Hurst “conflatles] a procedural requirement necessary to

implement a substantive guarantee with a rule that ‘regulatels] only the manner of

determining the defendant's culpability.” Montgomery, 136 S.Ct. at 734-35 (quoting

Schriro, 542 U.S. at 353) (emphasis in original). (Petition at 36). Alston’s argument

overlooks the reason this Court held Miller retroactive. Miller “rendered life

without parole an unconstitutional penalty for ‘a class of defendants because of

their status’ — that is juvenile offenders.” Montgomery, 136 S.Ct. at 734 (quoting

Penry, 492.U.S. at 330). Thus, Miller was held retroactive because it placed the

punishment of mandatory life in prison without parole beyond the state’s power to

impose for a class of defendants; juvenile offenders faced a sentence that now

cannot be applied to them.

Conversely, the same class of defendants committing the same conduct still

face the same punishment following Hurst. While mandatory life imprisonment

without parole can no longer be imposed on juveniles following Miller, the death

penalty can still be imposed following Hurst. This distinction strikes at the heart of

what makes a new rule substantive. Hurst is a procedural change because it merely

“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.” Schriro, 542 U.S. at 353.

Alston next relies on Welch v. United States, 136 S.Ct. 1257 (2016), to argue

that the Eighth Amendment unanimity requirement announced in Hurst v. State

was a substantive change in the law. (Petition at 37). However, the Welch decision

22

undermines Alston’s assertion that Hurst alters the class of persons the law

punishes, and instead, supports the determination that Hurst is procedural:

“A rule is substantive rather than procedural if it alters the range of

conduct or the class of persons that the law punishes.” Schriro, 542

U.S. at 3538, 124 S.Ct. 2519. “This includes decisions that narrow the

scope of a criminal statute by interpreting its terms, as well as

constitutional determinations that place particular conduct or persons

covered by the statute beyond the State’s power to punish.” Id., at 351-

352, 124 S.Ct. 2519 (citation omitted); see Montgomery, supra, at

136 S.Ct. at 728. Procedural rules, by contrast, “regulate only the

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

at 358, 124 S.Ct. 2519. Such rules alter “the range of permissible

methods for determining whether a defendant’s conduct is punishable.”

Ibid. “They do not produce a class of persons convicted of conduct the

law does not make criminal, but merely raise the possibility that

someone convicted with use of the invalidated procedure might have

been acquitted otherwise.” Id., at 352, 124 S.Ct. 2519.

Welch, 136 S.Ct. at 1264-65 (emphasis in original).

The Welch Court found that the rule in Johnson v. United States, 135 S.Ct.

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

Act,” was a substantive change because it altered the class of people affected by the

law. Welch, 136 S.Ct. at 1265. In explaining how the rule in Johnson was not

procedural, the Welch Court stated, “lilt did not, for example, ‘allocate decision

making authority’ between judge and jury, ibid., or regulate the evidence that the

court could consider in making its decision.” Id. (citation omitted).

Here, the new rule announced in Hurst v. State allocated the decision-

making authority to determine capital sentencing from the judge to the jury, which

is precisely how the Welch Court defined a procedural change. As this Court noted

in Schriro, requiring a jury to find a fact “because /a state/has made a certain fact

23

essential to the death penalty ... is not the same as this Court’s making a certain

fact essential to the death penalty. The former was a procedural holding; the latter

would be substantive.” Schriro, 542 U.S. at 354 (emphasis in original). Based on

this Court’s precedent, there is no doubt that the Hurst rule is a procedural rule.

Alston relies on Ivan V. v. City of New York, 407 U.S. 203 (1972), and Powell

v. Delaware, 153 A. 3d 69 (Del. 2016), to argue that Hurst is substantive because it

changed the proof-beyond-a-reasonable-doubt standard. (Petition at 39). He ignores

Florida’s longstanding practice of using the beyond-a-reasonable-doubt standard of

proof for proving aggravating factors in Florida. See Fla. Std. J. Inst. (Crim.) 7.11;

Finney v. State, 660 So. 2d 674, 680 (Fla. 1995). Hurst did not change this

standard. Furthermore, neither Hurst v. Florida nor Hurst v. State changed the

standard of proof for any required finding in Florida’s capital sentencing

proceedings. Rather, both Hurst v. Florida and Hurst v. State addressed who makes

the findings — the jury versus the judge — not what standard of proof is used.

This Court has explained that weighing in capital cases does not even involve

a standard of proof. This Court decided Kansas v. Carr, 186 S.Ct. 633, 642 (2016),

after Hurst_v. Florida, and rejected an argument that the Eighth Amendment

required the jury be told that mitigating circumstances did not have to be proven

beyond a reasonable doubt. This Court expressed some doubt as to whether it was

even possible to apply a standard of proof to mitigation because such

determinations are largely “a judgment call” and weighing the aggravating

circumstances against the mitigating circumstances is “mostly a question of mercy.”

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