Opposition Brief — Charles Lee Burton, Petitioner v. Alabama

Supreme Court briefSep 11, 2018

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No. 18-5937

CAPITAL CASE

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In the

Supreme Court of the United States

──────────────────────────────────

CHARLES LEE BURTON,

Petitioner,

STATE OF ALABAMA,

Respondent.

──────────────────────────────────

On Petition for a Writ of Certiorari to the

Alabama Court of Criminal Appeals

═════════════════════════════════════

BRIEF IN OPPOSITION

═════════════════════════════════════

STEVE MARSHALL

Alabama Attorney General

Lauren A. Simpson

Assistant Attorney General

*Counsel of Record

OFFICE OF ALA. ATT’Y GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

lsimpson@ago.state.al.us

September 11, 2018

CAPITAL CASE

QUESTIONS PRESENTED

(Restated)

Whether the Court should overrule Harris v. Alabama, 513 U.S. 504

(1995), which held Alabama’s recently repealed capital sentencing

statute to be constitutional even though it did not require jury

sentencing in capital cases, because of the alleged interplay of Hurst v.

Florida, 136 S. Ct. 616 (2016), and Caldwell v. Mississippi, 472 U.S. 320

(1985).

Whether Hurst is retroactively applicable to cases that became final

before that decision was announced.

Whether the Eighth Amendment prohibits the execution of the leader

and organizer of a multi-defendant robbery-murder where the

triggerman was resentenced to life without parole.

TABLE OF CONTENTS

Questions Presented ........................................................................................... i

Table of Authorities .......................................................................................... iv

Introduction.........................................................................................................1

Statement of the Case ........................................................................................3

The murder of Doug Battle ..............................................................3

Trial and direct appeal .....................................................................5

State and federal postconviction proceedings....................................6

Second Rule 32 petition .....................................................................7

Reasons the Petition Should be Denied .............................................................9

The petition is directed to the wrong state appellate court ................ 12

II.

Certiorari is unwarranted because Burton’s death sentence was

constitutionally imposed and remains constitutional post-Hurst....... 13

III.

Even if Hurst applied in exactly the way Burton argues it

should, Burton would be due no relief ................................ 14

Alabama’s former capital sentencing scheme was

constitutional, and Hurst did not overrule Harris ..................... 15

Informing jurors rendering an advisory penalty-phase

verdict that their verdict is advisory does not violate

Caldwell v. Mississippi ................................................................ 18

There is no conflict for this Court to resolve .............................. 22

Certiorari is unwarranted because Hurst has no retroactive

application .............................................................................................. 24

IV.

Certiorari is unwarranted because “evolving standards of decency”

do not mandate that Burton be resentenced ........................................ 27

Procedural background ................................................................ 27

“Evolving standards of decency” do not entitle Burton to be

resentenced................................................................................... 32

Conclusion ........................................................................................................ 36

iii

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon,

406 U.S. 404 (1972) ................................................................................ 23

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................................................................ 15

Atkins v. Virginia,

536 U.S 304 (2002) ............................................................................. 1, 32

Belcher v. Sec’y, Dep’t of Corrs.,

427 F. App’x 692 (11th Cir. 2011) ......................................................... 20

Bohannon v. Alabama,

137 S. Ct. 831 (2017) (mem.) ............................................................. 9, 15

Burton v. Comm’r, Ala. Dep’t of Corrs.,

700 F.3d 1266 (11th Cir. 2012).................................................................6

Burton v. State,

651 So. 2d 641 (Ala. Crim. App. 1993) .....................................................3

Burton v. State,

CR-00-2472 (Ala. Crim. App. Feb. 20, 2004) ...........................................6

Burton v. State,

61-CC-91-341.61 (Talladega Cty. Cir. Ct. Mar. 31, 2017) ......................7

Burton v. Thomas,

134 S. Ct. 249 (2013) (mem.) ....................................................................6

Caldwell v. Mississippi,

472 U.S. 320 (1985) ....................................................... i, 2, 10, 18–20, 22

Carr v. Schofield,

364 F.3d 1246 (11th Cir. 2004).............................................................. 20

Danforth v. Minnesota,

552 US. 264 (2008) ................................................................................. 26

Darden v. Wainwright,

477 U.S. 168 (1986) ................................................................................ 19

Davis v. Singletary,

119 F.3d 1471 (11th Cir. 1997).............................................................. 20

DeBruce v. Comm’r, Ala. Dep’t of Corrs.,

758 F.3d 1263 (11th Cir. 2014)............................................................ 1, 7

DeBruce v. Dunn,

1:04-cv-2669-KOB (N.D. Ala. Sept. 22, 2015)..........................................7

DeBruce v. State,

651 So. 2d 599 (Ala. Crim. App. 1993) .....................................................5

Dugger v. Adams,

489 U.S. 401 (1989) ................................................................................ 20

Ex parte Bohannon,

222 So. 3d 525 (Ala. 2016) ........................................................... 9, 13, 16

Ex parte Thomas,

462 So. 2d 216 (Ala. 1984) ..................................................................... 29

Ex parte Waldrop,

859 So. 2d 1181 (Ala. 2002) ................................................................... 16

Guardado v. Jones,

138 S. Ct. 1131 (2018) (mem.) ............................................................... 10

Harris v. Alabama,

513 U.S. 504 (1995) ............................................................... i, 2, 9, 15, 18

Hurst v. Florida,

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

Hurst v. State,

202 So. 3d 40 (Fla. 2016) ................................................................. 22–23

Interstate Circuit, Inc. v. Dallas,

390 U.S. 676 (1968) ................................................................................ 13

James v. State,

615 So. 2d 668 (Fla. 1993) ..................................................................... 25

Lee v. Alabama,

138 S. Ct. 1440 (2018) (mem.) ............................................................... 10

Lockett v. Ohio,

438 U.S. 586 (1978) ...................................................................... 2, 30–31

McCleskey v. Kemp,

481 U.S. 279 (1987) .................................................................... 11, 29–30

Middleton v. Florida,

138 S. Ct. 829 (2018) (mem.) ................................................................. 10

Miller v. Alabama,

132 S. Ct. 2455 (2012) ............................................................................ 13

Mosley v. State,

209 So. 3d 1248 (Fla. 2016) ............................................................. 11, 25

Powell v. Delaware,

153 A.3d 69 (Del. 2016).................................................................... 11, 26

Pulley v. Harris,

465 U.S. 37 (1984) ............................................................................ 11, 30

Rauf v. State,

145 A.3d 430 (Del. 2016)............................................................ 11, 23–26

Ring v. Arizona,

536 U.S. 584 (2002) .............................................. 3, 10–11, 15–18, 24–26

Romano v. Oklahoma,

512 U.S. 1 (2004) ........................................................................ 10, 19–20

Roper v. Simmons,

543 U.S 551 (2005) ................................................................. 1, 28, 29, 32

Samra v. Price,

2:07-cv-01962-LSC (N.D. Ala. Sept. 5, 2014) ............................. 8, 29–31

Samra v. State,

CR-11-0084 (Ala. Crim. App. Aug. 10, 2012)........................................ 29

Sawyer v. Smith,

497 U.S. 227 (1990) ................................................................................ 20

Schriro v. Summerlin,

542 U.S. 348 (2004) .......................................................................... 11, 24

State v. Brantley,

61-CC-91-342 (Talladega Cty. Cir. Ct. May 22, 1992) ............................5

State v. Gamble,

63 So. 3d 707 (Ala. Crim. App. 2010) .............................................. 28–29

State v. Jones,

61-CC-91-345 (Talladega Cty. Cir. Ct. May 26, 1992) ............................6

State v. Long,

61-CC-91-343 (Talladega Cty. Cir. Ct. May 28, 1992) ............................5

State v. McCants,

61-CC-91-344 (Talladega Cty. Cir. Ct. May 28, 1992) ............................6

Sullivan v. Texas,

207 U.S. 416 (1908) ................................................................................ 13

Teague v. Lane,

489 U.S. 288 (1989) .......................................................................... 11, 26

Tison v. Arizona,

481 U.S. 137 (1987) ............................................................................ 2, 32

Washington v. Crosby,

324 F.3d 1263 (11th Cir. 2003).............................................................. 29

Williams v. Illinois,

399 U.S. 235 (1970) ............................................................................ 2, 28

vii

Witt v. State,

387 So. 2d 922 (Fla. 1980) ..................................................................... 25

Zant v. Stephens,

462 U.S. 862 (1983) .......................................................................... 28, 30

Statutes and Rules

ALA. CODE § 13A-5-40 (1975) ..............................................................................5

ALA. CODE § 13A-5-45 (1975) ..................................................................... 14, 24

ALA. CODE § 13A-5-46 (1975) ............................................................... 14, 20, 24

ALA. CODE § 13A-5-47 (1975) ......................................................... 14, 20–21, 24

ALA. CODE § 13A-5-49 (1975) ..................................................................... 14, 18

Ala. Laws Act 2017-131 ................................................................. 14, 18, 21, 24

ALA. R. CRIM. P. 32.2 .................................................................................. 27, 31

Other Authorities

Ralph Blumenthal,

Governor Commutes Sentence in Texas, N.Y. TIMES, Aug. 31, 2007,

at A14, https://tinyurl.com/ycjvs9lj ....................................................... 33

Clemency for AR Death Row Inmate Jason McGehee,

FOX16.COM (Aug. 25, 2017), https://tinyurl.com/y9y8az3q .................. 34

Tracy Connor,

Texas Grants Clemency to Thomas Whitaker Minutes Before

Execution,

NBCNEWS.COM

(Feb.

22,

2018),

https://tinyurl.com/yc4n8l3g .................................................................. 34

EUGENE GRESSMAN ET AL.,

SUPREME COURT PRACTICE (9th ed. 2008) ............................................ 13

viii

Parole Board Recommends Death Row Inmate Receive Clemency from

Governor,

KATV.COM (Apr. 5, 2017), https://tinyurl.com/yas684xj...................... 34

Pet. for Cert., Dunn v. DeBruce,

125 S. Ct. 2854 (2015) (No. 14-807) ...................................................... 34

Rachel Weiner & Gregory Schneider,

Virginia Governor Commutes Sentence of Death Row Prisoner,

WASH. POST, Apr. 20, 2017, https://tinyurl.com/y965sphh .................. 33

INTRODUCTION

In 1991, Charles Lee Burton and five accomplices piled into two cars,

drove to Talladega, Alabama, and robbed an Auto Zone automotive store at

gunpoint. Burton was the leader of the operation; he organized the robbery,

gave the other men directions, and forced the manager to open the safe. During

the course of the robbery, accomplice Derrick DeBruce fatally shot a customer.

Both DeBruce and Burton were convicted of capital murder and sentenced to

death. In fact, Burton’s jury unanimously recommended the death penalty, and

the trial court concurred with that recommendation. (Pet. App’x B at 1–2.)

More than two decades after the fact, the Eleventh Circuit Court of

Appeals held that DeBruce had received ineffective assistance of counsel

during the penalty phase of his trial and remanded the matter for a new

sentencing proceeding. DeBruce v. Comm’r, Ala. Dep’t of Corrs., 758 F.3d 1263

(11th Cir. 2014). The State subsequently reached an agreement with DeBruce

whereby he was resentenced to life without parole in 2015.

Burton now claims it is unconstitutional that he, the ringleader, should

still be subject to a death sentence when DeBruce, the triggerman, was

resentenced. In so doing, he makes an unsupported “evolving standards of

decency” argument, including the incredible claim that his sentence puts him

in a class of defendants like those protected by Roper v. Simmons, 543 U.S 551

(2005), and Atkins v. Virginia, 536 U.S 304 (2002). But as this Court recognized

in Tison v. Arizona, 481 U.S. 137 (1987), it is not unconstitutional for a major

participant in a felony that results in murder, such as Burton, to be sentenced

to death if he exhibits reckless indifference to human life, even if he was not

the triggerman. Moreover, Burton fails to cite—and cannot cite—any decision

of this Court holding that a defendant sentenced to death has a right to have

his sentence vacated if a codefendant eventually receives a lesser sentence.

Rather, this Court has held that defendants are entitled to individualized

sentencing, e.g., Lockett v. Ohio, 438 U.S. 586, 605 (1978); Williams v. Illinois,

399 U.S. 235, 243 (1970). Burton’s jury and judge heard the evidence of his

leadership of the robbery-murder and determined that death was appropriate,

and a fault in DeBruce’s trial should not disturb that determination.

Burton’s other claims are nothing novel. He contends that certiorari is

warranted because Alabama’s former capital sentencing scheme is in conflict

with Hurst v. Florida, 136 S. Ct. 616 (2016), and Caldwell v. Mississippi, 472

U.S. 320 (1985)—and yet, somehow, he fails to even mention Harris v.

Alabama, 513 U.S. 504 (1995), in which this Court held that Alabama’s capital

scheme was constitutional. This Court has consistently declined to overrule

Harris, even post-Hurst, and it should not grant certiorari now.

Burton also claims that certiorari is warranted to resolve a split with

Delaware and Florida as to whether Hurst is due to be applied retroactively.

This claim is similarly not cert-worthy. Delaware applies Hurst retroactively

on state-law grounds, as does Florida, which limits its application to those

cases decided between Ring v. Arizona, 536 U.S. 584, 613 (2002), and Hurst.

That Florida should apply Hurst is unsurprising, as Hurst invalidated

Florida’s capital sentencing statutes; Delaware reviewed Hurst and

determined that its own statutes had several flaws. Hurst did not invalidate

Alabama’s capital statutes, however, and so the fact that Alabama declines to

apply Hurst to Burton’s case is not a matter worthy of certiorari. Moreover,

Burton’s case is a particularly poor vehicle for these Hurst claims, as the jury

unanimously found an aggravating circumstance and decided that death was

proper. Thus, this Court should deny review.

STATEMENT OF THE CASE

The murder of Doug Battle

On August 16, 1991,1 six men gathered at the home of Barbara Spencer

in Montgomery, Alabama, to plan a robbery. LuJuan McCants, one of the six,

later testified that Charles Lee Burton organized the robbery and told the

other five men what to do. After three men—Burton, Deon Long, and Derrick

DeBruce—left the house to procure guns, the six reconvened at Burton’s house.

1. A long-reprinted scrivener’s error in the opinion on direct appeal states that the

men gathered on April 16, not August 16. The correct date is shown on page 341 of

the trial record. See, e.g., Pet. App’x B at 3 (quoting Burton v. State, 651 So. 2d 641,

643–44 (Ala. Crim. App. 1993)).

They then drove in two cars to Talladega, where they went to a carwash and

decided to rob an Auto Zone store. Leaving one car at the carwash, they

proceeded to their target. (Pet. App’x B at 3.)

According to McCants, Burton directed him and Long to watch the door,

telling them to forget the plans if he left the store. Burton also told McCants

and Long that “if anyone caused any trouble in the store to let him handle the

situation.” (Id.) McCants stated that everyone who went into the store except

Long was armed with a gun. (Id.)

Larry McCardle, the store manager, saw Burton enter the store,

purchase items, and ask for the restroom. After Burton headed for the

restroom, DeBruce pulled a gun and told everyone to get on the floor. Burton

then grabbed McCardle and forced McCardle to take him to the safe at

gunpoint. Shortly thereafter, McCardle heard yelling and gunshots from the

store. (Id.)

Meanwhile, the other conspirators had put the customers on the floor

and taken their valuables. While the robbery was in progress, another

unsuspecting customer, Doug Battle, walked into the Auto Zone. McCants told

him to get on the floor; he apparently had difficulty doing so, and he and

DeBruce began to argue. According to McCants, DeBruce hit Battle, causing

him to fall, then shot Battle in the back. At this point, all of the conspirators

were either leaving or had left the store, and McCants believed that Burton

had already left. (Id. at 3–4.)

The men picked up their second car and returned to Spencer’s home,

where they divided the money. They even gave $100 to Spencer, who in turn

gave the money to McCants. (Id. at 4.)

Trial and direct appeal

On April 16, 1992, Burton was convicted of one count of robbery-murder, a

violation of section 13A-5-40(a)(2) of the Code of Alabama. The jury unanimously

recommended the death penalty, and the trial court accepted that recommendation.

(Id. at 1–2.)

The Alabama Court of Criminal Appeals affirmed Burton’s conviction and

sentence on direct appeal in 1993, the Alabama Supreme Court affirmed in 1994, and

this Court denied certiorari in 1995. (Id. at 2.)

As for Burton’s codefendants, Derrick DeBruce, the triggerman, was also

convicted of capital murder and sentenced to death. DeBruce v. State, 651 So.

2d 599, 602 (Ala. Crim. App. 1993). Willie Brantley pleaded guilty to murder

and was sentenced to life imprisonment. State v. Brantley, 61-CC-91-342

(Talladega Cty. Cir. Ct. May 22, 1992). Deon Long pleaded guilty to felony

murder and was sentenced to twenty-five years’ imprisonment. State v. Long,

61-CC-91-343 (Talladega Cty. Cir. Ct. May 28, 1992). Andre Jones pleaded

guilty to felony murder and was sentenced to life imprisonment as a habitual

offender. State v. Jones, 61-CC-91-345 (Talladega Cty. Cir. Ct. May 26, 1992).

LuJuan McCants, who was sixteen at the time of the crime, testified against

both Burton and DeBruce. He pleaded guilty to first-degree robbery and was

sentenced to twenty-five years’ imprisonment. State v. McCants, 61-CC-91-344

(Talladega Cty. Cir. Ct. May 28, 1992).

State and federal postconviction proceedings

Burton filed a state petition for postconviction relief pursuant to Rule 32

of the Alabama Rules of Criminal procedure in 1996. The circuit court

dismissed the petition after a hearing in 2001, the Alabama Court of Criminal

Appeals Affirmed in 2004, and the Alabama Supreme Court denied certiorari.

Burton v. State, CR-00-2472 (Ala. Crim. App. Feb. 20, 2004), cert. denied,

No. 1031200 (Ala. Sept. 24, 2004).

Turning then to the federal courts for relief, Burton filed a habeas

petition pursuant to 28 U.S.C. § 2254 in the Northern District of Alabama. The

district court denied the petition in 2009, and the Eleventh Circuit affirmed in

a published opinion. Burton v. Comm’r, Ala. Dep’t of Corrs., 700 F.3d 1266

(11th Cir. 2012). This Court once again denied certiorari in 2013, thus

concluding Burton’s standard appeals. Burton v. Thomas, 134 S. Ct. 249 (2013)

(mem.).

Second Rule 32 petition

In a 2–1 decision in 2014, the Eleventh Circuit remanded Derrick

DeBruce’s case for a new penalty-phase hearing upon finding that his trial

counsel conducted an insufficient mitigation investigation. DeBruce v. Comm’r,

Ala. Dep’t of Corrs., 758 F.3d 1263 (11th Cir. 2014). As this order came almost

twenty-three years after the robbery-murder, the Talladega County District

Attorney’s office agreed to settle the case, and DeBruce was resentenced to life

without parole in 2015. Order, DeBruce v. Dunn, 1:04-cv-2669-KOB (N.D. Ala.

Sept. 22, 2015), Doc. 55.

On January 11, 2017, Burton filed a successive Rule 32 petition alleging

two claims: (1) his death sentence is arbitrary and disproportionate because

DeBruce, the shooter, was resentenced to life without parole, and (2) Alabama’s

capital sentencing scheme is unconstitutional after Hurst v. Florida, 136 S. Ct.

616 (2016). (Pet. App’x D.) Two months later, the circuit court granted the

State’s motion to dismiss, finding that Burton’s petition was procedurally

barred as successive and time-barred under the one-year statute of limitations,

and that Hurst did not entitle Burton to relief. Burton v. State, 61-CC-91341.61 (Talladega Cty. Cir. Ct. Mar. 31, 2017).

The Alabama Court of Criminal Appeals affirmed in February 2018.

(Pet. App’x B.) That court noted that Hurst had no bearing upon Alabama’s

capital sentencing scheme, and that even if it had, Hurst has no retroactive

application. (Id. at 18–27.) As for Burton’s claim of disproportionate

sentencing, the court discussed the comparable case of Michael Samra, who

argued that he was entitled to have his death sentence vacated after his

juvenile codefendant’s death sentence was vacated post–Roper. (Pet. App’x B

at 14–18.) During habeas proceedings, the district court disagreed, concurring

with the Alabama Court of Criminal Appeals that Samra’s argument was

unsupported by law. Mem. Op. at 95–110, Samra v. Price, 2:07-cv-01962-LSC

(N.D. Ala. Sept. 5, 2014), Doc. 52.

The Alabama Supreme Court denied certiorari without opinion on April

20, 2018 (Pet. App’x A), and the present petition for writ of certiorari followed.

REASONS THE PETITION SHOULD BE DENIED

No issue in Burton’s petition is worthy of certiorari.

The first issue is yet another attempt by a death-sentenced defendant to

convince this Court to invalidate Alabama’s capital sentencing scheme after

Hurst. This Court held Alabama’s capital punishment statute to be

constitutional in Harris v. Alabama, 513 U.S. 504 (1995), despite the fact that

it allowed judicial sentencing. While Burton, remarkably, fails to mention

Harris in his petition, this Court has consistently declined to consider petitions

seeking to overrule or limit Harris in light of Hurst. For example, in Bohannon

v. Alabama, 137 S. Ct. 831 (2017) (mem.), the Court denied certiorari when the

Alabama Supreme Court held in Ex parte Bohannon, 222 So. 3d 525 (Ala.

2016), that Alabama’s capital scheme remained constitutional after Hurst.

Burton has presented no compelling argument for this Court to reverse that

case or to grant relief in his, particularly as the jury unanimously

recommended death and the trial court adopted that recommendation.

Moreover, Alabama has changed its capital sentencing statute to provide for

jury sentencing going forward. The Court should not grant certiorari to

consider overruling a longstanding precedent, Harris, when such overruling

would have no prospective effect on any future cases because of a change in

state law.

Moreover, Burton’s contention that it is a violation of Caldwell v.

Mississippi, 472 U.S. 320 (1985), to instruct a jury rendering an advisory

penalty-phase verdict that its verdict is advisory is hardly novel. As this Court

explained in Romano v. Oklahoma:

Caldwell [is] relevant only to certain types of comment—those that

mislead the jury as to its role in the sentencing process in a way

that allows the jury to feel less responsible than it should for the

sentencing decision. Thus, [t]o establish a Caldwell violation, a

defendant necessarily must show that the remarks to the jury

improperly described the role assigned to the jury by local law.

512 U.S. 1, 9 (2004) (quotation and citations omitted). At the time of Burton’s

trial, the jury’s penalty-phase verdict was a recommendation, and the jury was

properly advised of that fact, in accordance with Romano. This Court recently

denied certiorari in cases raising similar Caldwell claims. See Guardado v.

Jones, 138 S. Ct. 1131, 1132–34 (2018) (mem.) (Sotomayor, J., dissenting);

Middleton v. Florida, 138 S. Ct. 829, 829–30 (2018) (mem.) (Sotomayor, J.,

dissenting). There is no reason for this Court to grant certiorari now to consider

a question the Court has already resolved.

The second issue—whether the Hurst rule should be given retroactive

application in Alabama—is similarly familiar to this Court, and similarly

meritless. See, e.g., Lee v. Alabama, 138 S. Ct. 1440 (2018) (mem.) (denying

certiorari). Hurst is merely an application of Ring to the particular

circumstances of Florida’s capital sentencing scheme, and this Court has

already held that Ring is not retroactive. Schriro v. Summerlin, 542 U.S. 348

(2004). As Hurst is neither a new substantive rule nor a watershed rule of

criminal procedure, see Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion),

there is no reason that it must be given retroactive application. That Florida

and Delaware have chosen to apply it retroactively on state-law grounds does

not obligate Alabama to do so.2

The third issue asks this Court to vacate Burton’s death sentence

because his triggerman codefendant was resentenced to life without parole by

agreement. He has cited no decision from this Court mandating that he be

resentenced, nor can he. In Pulley v. Harris, 465 U.S. 37, 43–44 (1984), this

Court rejected the proposition that the Eighth Amendment requires a state

appellate court to compare a defendant’s sentence to those of similarly situated

defendants before affirming. Three years later, in McCleskey v. Kemp, 481 U.S.

279, 306–07 (1987), this Court wrote, “[A]bsent a showing that the [state]

capital punishment system operates in an arbitrary and capricious manner, [a

defendant] cannot prove a constitutional violation by demonstrating that other

2. As discussed below, Florida retroactively applies Hurst only to those cases decided

between Ring and Hurst—i.e., the period in which Florida’s capital sentencing

scheme was unconstitutional—a decision based on Florida law. Mosley v. State, 209

So. 3d 1248, 1283 (Fla. 2016). Delaware held that its capital scheme was

unconstitutional after Hurst for several reasons, including the failure to require a

unanimous jury finding of an aggravating circumstance beyond a reasonable

doubt. Rauf v. State, 145 A.3d 430 (Del. 2016). In Powell v. Delaware, 153 A.3d 69

(Del. 2016), the Supreme Court of Delaware found that the Rauf rule fit Delaware’s

“watershed procedural rule” retroactivity exception.

defendants who may be similarly situated did not receive the death penalty.”

Here, the ringleader of an armed robbery that resulted in the death of an

innocent bystander was properly—and unanimously—sentenced to death.

That the triggerman codefendant was resentenced to life without parole so as

to avoid calling a new penalty-phase hearing twenty-three years after the fact

is unfortunate, as the State maintains that DeBruce’s death sentence was

properly imposed. However, the infirmity that the Eleventh Circuit found in

DeBruce’s case, ineffective assistance of counsel, was not found in Burton’s,

and Burton does not merit a lesser sentence solely because his codefendant

had inadequate counsel. For the reasons that follow, Burton’s petition is not

cert-worthy.

The petition is directed to the wrong state appellate court.

Before this Court can consider the merits of Burton’s petition, it needs to

resolve a procedural problem: the petition is directed to the wrong state

appellate court.

Burton appealed the summary dismissal of his second Rule 32 petition

to the Alabama Court of Criminal Appeals, an intermediate appellate court

with statewide jurisdiction. That court affirmed in a twenty-seven-page

opinion. (Pet. App’x B.) Burton then petitioned the Alabama Supreme Court

for certiorari review, but that court denied review. (Pet. App’x A.) When a state

supreme court denies discretionary review, this Court reviews “the judgment

of the intermediate court rather than the order of refusal by the higher court.”

See EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 179 (9th ed. 2008)

(citing Sullivan v. Texas, 207 U.S. 416 (1908), and Interstate Circuit, Inc. v.

Dallas, 390 U.S. 676, 678 n.1 (1968)).

Burton’s petition erroneously seeks a writ of certiorari “to the Alabama

Supreme Court.” Pet. cover, 1. The Court has already recaptioned the case so

that it reflects the correct lower court. E.g., Miller v. Alabama, 132 S. Ct. 2455,

2475 (2012) (reversing Alabama Court of Criminal Appeals). It must also

decide whether the petitioner’s failure to identify the proper lower court is a

defect of jurisdictional significance.

II.

Certiorari is unwarranted because Burton’s death sentence was

constitutionally imposed and remains constitutional post-Hurst.

In Burton’s first claim, he contends that the Alabama Supreme Court

erred in Ex parte Bohannon, 222 So. 3d 525 (Ala. 2016), when it held that Hurst

did not invalidate Alabama’s capital sentencing statutes, including Alabama’s

provision permitting judicial sentencing in capital cases. (Pet. 11–19.) This

claim is utterly meritless.

Even if Hurst applied in exactly the way Burton argues it

should, Burton would be due no relief.

At the outset, Burton’s case is a poor vehicle for this claim, as this is not

a case of judicial override.3 Burton’s jury unanimously found an aggravating

circumstance necessary to expose him to the death penalty—the murder was

committed during a robbery, a fact proven by the jury’s guilt-phase verdict, see

ALA. CODE §§ 13A-5-45(e), -49(4) (1975)—and after weighing the aggravating

and mitigating evidence, the jurors unanimously recommended that he be

sentenced to death, a recommendation the trial court adopted.4 (Pet. App’x B

at 1–2.) Thus, even if Hurst applied here in exactly the way Burton argues it

should, Burton would not be entitled to be resentenced. The Sixth Amendment

right to a jury trial cannot require more than what happened here—a

unanimous jury vote on an aggravating factor and a unanimous jury vote that

death is the appropriate sentence.

3. The override provision of the Alabama’s capital sentencing scheme was eliminated

by legislation in April 2017. See Ala. Laws Act 2017-131. The current capital

sentencing scheme is provided in ALA. CODE §§ 13A-5-45, -46, -47 (1975).

4. Burton presents the Court with affidavits from three jurors suggesting that he be

resentenced because DeBruce was resentenced by agreement. (Pet. App’x G.) That

he was able to send an investigator and social worker to procure these affidavits in

2016, twenty-four years after the fact, neither impeaches his 1992 sentencing

verdict nor warrants resentencing.

Alabama’s former capital sentencing scheme

constitutional, and Hurst did not overrule Harris.

was

Importantly, while arguing that Hurst invalidated Alabama’s capital

sentencing statutes, Burton does not attempt to distinguish Harris—indeed,

he fails to mention this precedent. In Harris, this Court rejected the argument

that Alabama’s capital sentencing scheme was unconstitutional because it

allowed judges instead of juries to impose a capital sentence. Alabama has

relied on Harris to sentence hundreds of murderers since 1995. “[T]he States’

settled expectations deserve our respect.” Ring, 536 U.S. at 613 (Kennedy, J.,

concurring).

The Court has consistently declined to grant a petition to address

whether to overrule Harris in light of Hurst. For the same reasons that the

Court declined to grant cert in Bohannon v. Alabama, 137 S. Ct. 831 (2017)

(mem.)—an appeal from the Alabama Supreme Court’s decision finding that

Alabama’s capital scheme was constitutional after Ring and remained so postHurst—and has continued to decline to consider the issue in every subsequent

certiorari petition raising it, the Court should not grant certiorari in Burton’s

case.

Alabama’s capital punishment system is constitutional under Hurst. In

Ring, the Court applied the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000),

to death penalty cases, holding that although a judge can make the “selection

decision,” the jury must find the existence of any fact that makes the defendant

“eligible” for the death penalty by increasing the range of punishment to

include the imposition of the death penalty. There, the Court held that

Arizona’s death penalty statute violated the Sixth Amendment right to a jury

trial “to the extent that it allows a sentencing judge, sitting without a jury, to

find an aggravating circumstance necessary for imposition of the death

penalty.” Ring, 536 U.S. at 585. Thus, a trial court cannot make a finding of

“any fact on which the legislature conditions an increase in their maximum

punishment.” Id. at 589. Only the jury can.

Hurst did not add anything of substance to Ring. In Hurst, Florida

prosecuted a defendant for first-degree murder. Hurst, 136 S. Ct. at 620. The

jury did not unanimously find the existence of an aggravating circumstance at

either the guilt or penalty phase of trial, but it returned an advisory

recommendation of 7–5 in favor of death. Id. Because the jury found no

aggravating circumstance, the trial court should have imposed a life-withoutparole sentence. Instead, the judge found an aggravating circumstance herself

and imposed a death sentence, making both the eligibility and selection

determinations. Id. Applying Ring, the Court held the death sentence

unconstitutional because “the judge alone [found] the existence of an

aggravating circumstance” that expanded the range of punishment to include

the death penalty. Id. at 624.

In Ex parte Bohannon, the Alabama Supreme Court considered Ring,

Hurst, and its prior decision in Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002),

then found that Alabama’s capital scheme remained constitutional. First, the

court noted that “Ring and Hurst require only that the jury find the existence

of the aggravating factor that makes a defendant eligible for the death

penalty—the plain language in those cases requires nothing more and nothing

less.” 222 So. 3d at 532. “Accordingly, because in Alabama a jury, not the judge,

determines by a unanimous verdict the critical finding that an aggravating

circumstance exists beyond a reasonable doubt to make a defendant deatheligible, Alabama’s capital-sentencing scheme does not violate the Sixth

Amendment.” Id. As for the claim that Hurst requires that the jury weigh the

aggravating and mitigating circumstances, the court explained that “Hurst

does not address the process of weighing the aggravating and mitigating

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

satisfy the Sixth Amendment.” Id. Finally, the court concluded that Hurst does

not hold that “the Sixth Amendment requires that a jury impose a capital

sentence.” Id. at 533. Indeed, Alabama’s capital sentencing scheme at the time

of Bohannon’s trial—and Burton’s—was in line with Justice Scalia’s

concurrence in Ring:

What today’s decision says is that the jury must find the existence

of the fact that an aggravating factor existed. Those States that

leave the ultimate life-or-death decision to the judge may continue

to do so—by requiring a prior jury finding or aggravating factor in

the sentencing phase or, more simply, by placing the aggravatingfactor determination (where it logically belongs anyway) in the

guilt phase.

Ring, 536 U.S. at 612–13 (Scalia, J., concurring).

Burton’s case does not bear the infirmity present in Hurst. Burton’s jury

unanimously found the existence of an aggravating circumstance when it

convicted him of robbery-murder, as the fact that a murder was committed

during a robbery is an “overlapping” statutory aggravator. ALA. CODE § 13A-549(4) (1975). This is all that Ring and Hurst required to make a capital

defendant death-eligible. That the trial judge conducted his own weighing of

the aggravating and mitigating evidence and agreed with the jury’s

unanimous death recommendation does not offend Hurst (nor Ring), and

this Court’s decision in Harris remains untouched—as it should. Moreover, the

Court should not call into question a longstanding precedent like Harris

because its decision on the question would have no prospective effect, given

that Alabama amended its sentencing procedure in 2017 to end judicial

sentencing. See Ala. Laws Act 2017-131.

Informing jurors rendering an advisory penalty-phase

verdict that their verdict is advisory does not violate

Caldwell v. Mississippi.

Burton

attempts

downplay

the

jury’s

unanimous

death

recommendation by claiming that its responsibility for the ultimate sentencing

determination was unconstitutionally minimized, in violation of Caldwell.

(Pet. 17–18.) This contention is meritless.

In Caldwell, a plurality of the Court held that “it is constitutionally

impermissible to rest a death sentence on a determination made by a sentencer

who has been led to believe that the responsibility for determining the

appropriateness of the defendant’s death rests elsewhere.” 472 U.S. at 328–29.

In that case, the prosecution had informed the jury that its decision would be

automatically reviewed by the Mississippi Supreme Court, thereby limiting

the jurors’ responsibility for rendering a death sentence and shifting the

responsibility to the appellate court.

Nine years later, in Romano v. Oklahoma, the Court considered the

Caldwell rule in a different context. An Oklahoma defendant objected when a

copy of his judgment and death sentence from his first capital trial was

introduced during the penalty phase of his second capital trial. The defendant

argued that introducing the first conviction violated Caldwell because it

reduced the second jury’s sense of responsibility for its sentencing verdict. 512

U.S. at 3, 5. The Court disagreed:

[W]e have since read Caldwell as “relevant only to certain types of

comment—those that mislead the jury as to its role in the

sentencing process in a way that allows the jury to feel less

responsible than it should for the sentencing decision.” Darden v.

Wainwright, 477 U.S. 168, 184 n.15 (1986). Thus, “[t]o establish a

Caldwell violation, a defendant necessarily must show that the

remarks to the jury improperly described the role assigned to the

jury by local law.” Dugger v. Adams, 489 U.S. 401, 407 (1989); see

also Sawyer v. Smith, 497 U.S. 227, 233 (1990).

Id. at 9 (citations edited). Following Caldwell, Dugger, and Romano, the

Eleventh Circuit Court of Appeals has held that “references to and descriptions

of the jury’s sentencing verdict . . . as an advisory one, as a recommendation to

the judge, and of the judge as the final sentencing authority are not error under

Caldwell” when they “accurately characterize the jury’s and judge’s sentencing

roles under [state] law.” Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir.

1997); see Belcher v. Sec’y, Dep’t of Corrs., 427 F. App’x 692 (11th Cir. 2011)

(quoting Davis); Carr v. Schofield, 364 F.3d 1246, 1258 (11th Cir. 2004) (same).

At the time of Burton’s trial, the jury’s penalty-phase verdict was

properly described as advisory. Section 13A-5-46(a) of the Code of Alabama

provided that the penalty-phase jury “shall return an advisory verdict,” while

subsection (e) repeatedly described the verdict as an “advisory” verdict

“recommending to the trial court” a penalty. Section 13A-5-47 then provided

the procedure for the trial court’s post-trial sentencing hearing, including

ordering a presentence investigation report and taking additional testimony;

subsection (e) stated:

In deciding upon the sentence, the trial court shall determine

whether the aggravating circumstances it finds to exist outweigh

the mitigating circumstances it finds to exist, and in doing so the

trial court shall consider the recommendation of the jury contained

in its advisory verdict, unless such a verdict has been waived

pursuant to Section 13A-5-46(a) or 13A-5-46(g). While the jury’s

recommendation concerning sentence shall be given consideration,

it is not binding upon the court.5

Still, the prosecution recognized that the jury’s decision was a weighty one,

concluding:

You do what you think is right. You do what you think is just. But

I submit this to you, the verdict under the law, and it is a tough

verdict[,] I know it is[,] as it should be, the verdict under the law

speaks for itself when you weigh aggravation and when you weigh

mitigation.

(R. 1118.)6 While the trial court correctly referred to the jury’s decision as a

recommendation throughout the penalty-phase charge, the court also

reminded the jury of the seriousness of its choice:

The fact that the determination of whether 10 or more of you can

agree to recommend a sentence of death or seven or more of you

can recommend or agree to recommend a sentence of life

imprisonment without parole can be reached by a single ballot

should not influence you to act hastily or without due regard to the

gravity of these proceedings. You should hear and consider the

views of your fellow jurors. Before you vote, you should carefully

weigh, sift, and consider the evidence and all of it realizing that a

human life is at stake. And you should bring about your best

judgment on the sole issue which is before you. That issue is

whether the defendant should be sentenced to life imprisonment

without parole or death.

(R. 1133–34.)

5. The versions of these statutes in effect at the time of Burton’s trial are found in

Ala. Laws Act 2017-131, including the textual edits made for the current versions.

6. In accordance with the Alabama courts’ format for records on appeal, citations to

the trial transcript are designated “R. __.”

Because the trial court correctly informed the jury that its verdict was a

recommendation, yet still impressed upon the jury the weight of its decision,

there was no Caldwell violation in this case. Burton’s jury was given accurate

instructions, and nothing in this claim merits certiorari.

There is no conflict for this Court to resolve.

Burton makes much out of this meritless claim by trying to create a split

among the state courts of last resort for this Court to resolve. His claim is

baseless. While Burton is correct that the Florida and Delaware Supreme

Courts have found that Hurst applies to their capital sentencing statutes, both

have done so on state-law grounds.

As the Florida Supreme Court wrote in Hurst v. State:

As we will explain, we hold that the Supreme Court’s decision in

Hurst v. Florida requires that all the critical findings necessary

before the trial court may consider imposing a sentence of death

must be found unanimously by the jury. We reach this holding

based on the mandate of Hurst v. Florida and on Florida’s

constitutional right to jury trial, considered in conjunction

with our precedent concerning the requirement of jury

unanimity as to the elements of a criminal offense. In capital

cases in Florida, these specific findings required to be made by the

jury include the existence of each aggravating factor that has been

proven beyond a reasonable doubt, the finding that the

aggravating factors are sufficient, and the finding that the

aggravating factors outweigh the mitigating circumstances. We

also hold, based on Florida’s requirement for unanimity in

jury verdicts, and under the Eighth Amendment to the

United States Constitution, that in order for the trial court

to impose a sentence of death, the jury’s recommended

sentence of death must be unanimous.

***

We also conclude that, just as elements of a crime must be found

unanimously by a Florida jury, all these findings necessary for the

jury to essentially convict a defendant of capital murder—thus

allowing imposition of the death penalty—are also elements that

must be found unanimously by the jury. Thus, we hold that in

addition to unanimously finding the existence of any aggravating

factor, the jury must also unanimously find that the aggravating

factors are sufficient for the imposition of death and unanimously

find that the aggravating factors outweigh the mitigation before a

sentence of death may be considered by the judge. This holding

is founded upon the Florida Constitution and Florida’s long

history of requiring jury unanimity in finding all the

elements of the offense to be proven; and it gives effect to our

precedent that the “final decision in the weighing process must be

supported by ‘sufficient competent evidence in the record.’”

***

We are mindful that a plurality of the United States Supreme

Court, in a non-capital case, decided that unanimous jury verdicts

are not required in all cases under the Sixth Amendment to the

United States Constitution. See Apodaca v. Oregon, 406 U.S. 404

(1972) (plurality opinion). However, this Court, in

interpreting the Florida Constitution and the rights

afforded to persons within this State, may require more

protection be afforded criminal defendants than that

mandated by the federal Constitution. This is especially true,

we believe, in cases where, as here, Florida has a longstanding

history requiring unanimous jury verdicts as to the elements of a

crime.

202 So. 3d 40, 44, 53–54, 57 (Fla. 2016) (citation edited, footnotes omitted,

emphasis added).

The Delaware Supreme Court also found fault with its capital statutes

post-Hurst. In Rauf v. State, 145 A.3d 430, 434 (Del. 2016), that court held that

a jury, not a judge, must weigh the aggravating and mitigating circumstances

“because, under 11 DEL. C. § 4209, this is the critical finding upon which the

sentencing judge ‘shall impose a sentence of death.’”

As noted above, Alabama amended its capital sentencing scheme by

legislation in April 2017. See Ala. Laws Act 2017-131. The current capital

sentencing scheme is found in ALA. CODE §§ 13A-5-45, -46, -47 (1975) and

provides that the jury will make the ultimate determination as to sentence in

capital cases. Thus, Burton’s alleged “conflict” is a non-issue.

III.

Certiorari is unwarranted because Hurst has no retroactive

application.

In his second claim, Burton contends that Hurst should have retroactive

application to his case. (Pet. 19–23.) For the reasons that follow, this claim is

meritless.

First, as before, this case is a poor vehicle for this claim because even if

Hurst applied, Burton would be due no relief. His jury unanimously

recommended death, and the trial court agreed with the jury’s weighing of the

aggravating and mitigation circumstances.

Second, Hurst did not announce a new rule of constitutional law, but

rather was an application of Ring to the unique circumstances in Florida. As

this Court has explicitly held that Ring is not retroactively applicable to cases

on postconviction review, Schriro v. Summerlin, 542 U.S. 348 (2004), Hurst

must also have no retroactive effect.

As support for retroactive application, Burton again points to Florida

and Delaware. While those states decided to apply Hurst retroactively, they

did so on state-law grounds.

Florida retroactively applies Hurst only to those cases decided between

Ring and Hurst—in other words, to those defendants sentenced during the

period in which Florida’s capital sentencing scheme was not in compliance with

Ring. Mosley, 209 So. 3d at 1283. This decision was based on Florida law:

We now turn to the issue of whether Hurst should apply

retroactively to Mosley. We approach our retroactivity analysis

based on the United States Supreme Court’s holding in Hurst v.

Florida under the United States Constitution’s Sixth Amendment

right to trial by jury and our opinion in Hurst, interpreting the

meaning of Hurst v. Florida as applied to Florida’s capital

sentencing scheme and considering Florida’s independent right to

trial by jury in article I, section 22, of the Florida Constitution. We

first review our precedent holding that certain decisions should be

given retroactive effect on the basis of fundamental fairness, such

as James v. State, 615 So. 2d 668 (Fla. 1993). We then review the

factors in the Witt v. State, 387 So. 2d 922 (1980), retroactivity

framework, explaining the unique jurisprudential conundrum

caused by the United States Supreme Court’s delay in reviewing

the constitutionality of Florida’s capital sentencing scheme in light

of Ring. After reviewing these considerations, we conclude that

Hurst should apply retroactively to Mosley.

Id. at 1274.

Turning then to Delaware, in Rauf, the Delaware Supreme Court held that

its capital scheme was unconstitutional after Hurst for several reasons,

including the failure to require a unanimous jury finding of an aggravating

circumstance beyond a reasonable doubt. 145 A.3d at 433–34. Four months

later, that court determined that under Delaware’s retroactivity rules, Rauf

had announced a watershed rule of criminal procedure:

In Danforth v. Minnesota, 552 US. 264 (2008), the United States

Supreme Court explained that “Teague’s general rule of

nonretroactivity was an exercise of [its] power to interpret the

federal habeas statute” and “cannot be read as imposing a binding

obligation on state courts.” Nevertheless, more than twenty-five

years ago this Court recognized the Teague general rule of nonretroactivity and its two exceptions as persuasive authority for

deciding whether new state and federal precedents are to be

applied retroactively in Delaware postconviction proceedings. In

doing so, we noted that the federal Teague “new rule” doctrine was

evolving and that State courts may grant postconviction “relief to

a broader class of individuals than is required by Teague.”

Therefore, we declined to adopt a formal static test for determining

the meaning of a “new rule” for the purposes of deciding a

Delaware

postconviction

proceeding. . . . Accordingly,

the

retroactivity issue that is presented by Powell’s motion is a matter

of Delaware law. In analyzing that issue we look to Teague and its

progeny for guidance. However, as the United States Supreme

Court held in Danforth, the postconviction retroactivity remedy

that a state court provides for “violations of the Federal

Constitution is primarily a question of state law.”

***

Ring only implicated the Sixth Amendment right to a jury. The

same was true in Hurst because Florida also already required proof

beyond a reasonable doubt. . . . Thus, unlike Rauf, neither Ring

nor Hurst involved a Due Process Clause violation caused by the

unconstitutional use of a lower burden of proof. This significant

distinction in Ring and Hurst is fatal to the State’s reliance upon

Summerlin and is dispositive of why the Rauf holding fits within

Teague’s second exception to nonretroactivity.

Powell, 153 A.3d at 72–74 (citation added, footnotes omitted).

While Florida and Delaware are free to give Hurst retroactive

application based on their unique state laws, no federal law or decision from

this Court obligates Alabama to do likewise. Therefore, certiorari should be

denied.

IV.

Certiorari is unwarranted because “evolving standards of

decency” do not mandate that Burton be resentenced.

Finally, Burton contends that he is entitled to be resentenced because

his triggerman codefendant, DeBruce, was resentenced to life without parole.

(Pet. 24–34.) This claim does not merit certiorari.

Procedural background

As discussed above, in 2014, a split panel of the Eleventh Circuit Court

of Appeals found that DeBruce’s counsel had rendered ineffective assistance

and ordered that he be given a new penalty-phase hearing. The District

Attorney and DeBruce reached an agreement to avoid that hearing, and

DeBruce was sentenced to life without parole in 2015.

In January 2017, Burton filed a successive Rule 32 petition for

postconviction relief, arguing that he was entitled to be resentenced as well.

The circuit court correctly dismissed the claim under Rule 32.2(b) of the

Alabama Rules of Criminal Procedure, as it arose in a successive petition that

failed to show either (1) that the trial court was without jurisdiction to render

judgment or impose sentence or (2) that good cause exists why the new ground

was not known or could not have been ascertained at the time of the first

petition, and failure to entertain the successive petition would result in a

miscarriage of justice. The court pointed out that on direct appeal, Burton had

raised a claim alleging that DeBruce was more culpable as the triggerman, and

therefore, the claim underlying Burton’s new claim could have been raised

during the first petition. (Pet. App’x B at 7–9.)

The Alabama Court of Criminal Appeals agreed with the circuit court.

(Id. at 6–18.) First, Burton had based his argument in part on State v. Gamble,

63 So. 3d 707 (Ala. Crim. App. 2010), a case in which the defendant’s death

sentence had been set aside as disproportionate to that of his triggerman

codefendant, who had been resentenced to life without parole after Roper. The

Alabama Court of Criminal Appeals had disagreed and ordered that the death

sentence be reinstated, explaining, “Alabama recognizes that capital-murder

codefendants have a right to an individualized sentencing determination and

do not have to be sentenced to the same punishment.” Id. at 726. Indeed, as

this Court has made clear, “[t]he Constitution permits qualitative differences

in meting out punishment and there is no requirement that two persons

convicted of the same offense receive identical sentences.” Williams, 399 U.S.

at 243); see Zant v. Stephens, 462 U.S. 862, 879 (1983) (“What is

important . . . is an individualized determination on the basis of the

character of the individual and the circumstances of the crime.”). The Alabama

Court of Criminal Appeals noted that while appellate courts must consider

codefendants’ sentences when deciding the appropriateness of a death

sentence, those other sentences “are not controlling per se.” Gamble, 63 So. 3d

at 727 (quoting Ex parte Thomas, 462 So. 2d 216, 226 (Ala. 1984)). As such, the

court held that Gamble had no right to be resentenced on proportionality

grounds because “there is no constitutional right to a proportionality review in

death-penalty cases.” Id. at 728; see McCleskey, 481 U.S. at 306–07 (defendant

“cannot prove a constitutional violation by demonstrating that other

defendants who may be similarly situated did not receive the death penalty”).

Second, in affirming the dismissal of Burton’s claim, the Alabama Court

of Criminal Appeals considered its decision in Samra v. State, CR-11-0084 (Ala.

Crim. App. Aug. 10, 2012), and the federal district court’s subsequent decision

in Samra v. Price, 2:07-cv-01962-LSC (N.D. Ala. Sept. 5, 2014). Samra, like

Gamble, argued that he should be resentenced after his juvenile codefendant’s

death sentence was vacated following Roper. The Alabama Court of Criminal

Appeals disagreed, citing Gamble. Samra, CR-11-0084, at 7–12. On habeas

review, the federal district court affirmed, explaining:

As an initial matter, none of the cases cited by Samra holds that a

capital murder defendant has an Eighth Amendment right to have

his death sentence vacated solely because his co-defendant

received a lesser sentence than the death penalty. See Washington

v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003) (indicating that a

petitioner must cite to Supreme Court precedent that confronts

nearly identical facts but reaches the opposite conclusion in order

to show that a state court decisions was contrary to law). To the

contrary, and as discussed by the ACCA, such a bright-line rule

would violate Supreme Court precedent mandating that a

defendant is entitled to an individualized sentencing

determination. See Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct.

2954, 2965 (1978) (“Given that the imposition of death by public

authority is so profoundly different from all other penalties, we

cannot avoid the conclusion that an individualized decision is

essential in capital cases.”); Williams v. Illinois, 399 U.S. 235, 243,

90 S. Ct. 2018, 2023 (1970) (“[T]here is no requirement that two

persons convicted of the same offense receive identical

sentences.”); Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733,

2743-44 (1983) (“What is important . . . is an individualized

determination on the basis of the character of the individual and

the circumstances of the crime.”).

Thus, while “proportionality” in criminal sentence has been

described by the Supreme Court as “an abstract evaluation of the

appropriateness of a sentence for a particular crime,” Pulley v.

Harris, 465 U.S. 37, 42-43, 104 S. Ct. 871, 875 (1984) (internal

citations omitted), Samra is not arguing that his sentence is

“disproportionate to the crime in the traditional sense.” Id. at 43;

104 S. Ct. at 875. In other words, he does not deny that he killed

four people in the course of one scheme or course of conduct, the

penalty for which can be death under Alabama law. The type of

proportionality review Samra is seeking is “of a different sort,” see

id., 104 S. Ct. at 876—a consideration of the appropriateness of his

sentence in light of his co-defendant Duke’s lesser sentence.

However, and as stated by the ACCA, the Supreme Court has held

that “[c]omparative proportionality review is not constitutionally

required in every state court death sentence review.” Id. at 50–51,

104 S. Ct. at 879 (considering whether the Eighth and Fourteenth

Amendments require a state appellate court, before it affirms a

death sentence, to compare the sentence in the case before it with

the penalties imposed in similar cases if requested to do so by the

prisoner, and holding that they do not). Moreover, as also stated

by the ACCA, the Supreme Court has rejected a defendant’s

attempt to “prove a[n] [Eighth Amendment] violation by

demonstrating that other defendants who may be similarly

situated did not receive the death penalty.” McCleskey v. Kemp,

481 U.S. 279, 306-07, 107 S. Ct. 1756, 1775 (1987) (emphasis in

original).

This rule is especially appropriate in this case,

considering the fact that the reason that Mark Duke did not

receive the death penalty had nothing to do with the

circumstances of Duke and Samra’s crime or the presence

or absence of aggravating or mitigating factors. The basis

was purely legal. Despite the fact that a jury analyzed the facts

and considered the aggravating and mitigating circumstances and

recommended that Duke be sentenced to death, and the trial court

imposed such a sentence, the court later concluded as a matter of

law that Duke was ineligible for the death penalty. Duke’s

sentence reduction has no connection to the nature or

circumstances of the crime or to Samra’s character or record.

Under Lockett, Duke’s sentence reduction is irrelevant as a

mitigating circumstance in Samra’s case. See 438 U.S. at 605, 98

S. Ct. at 2965.

[. . .]

Because the ACCA held that the trial court’s finding

regarding the aggravating and mitigating circumstances was

supported by the evidence and because the court found that

Samra’s

death

sentence

was

neither

excessive

nor

disproportionate to the penalty imposed in similar cases, the court

affirmed his death sentence. Id. Nothing has happened in Samra’s

case that alters the state courts’ finding that his death sentence is

proportionate to his crime.

Mem. Op. at 103–06, 108–09, Samra v. Price (footnotes omitted, emphasis

added).7

As Burton’s claim was not jurisdictional and failed to meet either

exception to successive petitions in Rule 32.2(b), the Alabama Court of

Criminal Appeals held that the claim was procedurally barred and untimely.

(Pet. App’x B at 17–18.)

7. While Samra appealed to the Eleventh Circuit and petitioned this Court for

certiorari, he abandoned his resentencing claim.

“Evolving standards of decency” do not entitle Burton to be

resentenced.

Faced with clear precedent from this Court and the state courts showing

that a defendant is not entitled be resentenced solely due to the sentences his

codefendants receive, Burton contends that, as in Atkins and Roper, “evolving

standards of decency” forbid his execution. (Pet. 24–25.) Here, Burton barely

pays lip service to Tison v. Arizona, 481 U.S. 137 (1987), in which the Court

held that it does not offend the Eighth Amendment for a major participant in

a felony that results in murder, such as Burton, to be sentenced to death if he

exhibited reckless indifference to human life, even if he was not the

triggerman. As in Gamble and Samra, both Burton and DeBruce were

originally sentenced to death as the leader of the robbery and the triggerman.

Gamble and Samra’s codefendants were resentenced due to Roper, and

DeBruce was similarly resentenced due to a factor that had nothing to do with

Burton or his culpability. Indeed, while Burton argues that he is less culpable

than DeBruce, the evidence adduced at trial shows that he was just as

culpable, if not more so. Burton was the organizer and point man in the

robbery, the other participants followed his orders, and five of the six men went

into the store with guns. Burton even forced the store manager to open the safe

at gunpoint. Having heard testimony concerning Burton’s planning,

involvement, and leadership, his jury unanimously determined that death was

appropriate in his case because he was the ringleader of the robbery, and the

trial court concurred. The fact that DeBruce was resentenced decades later by

agreement does not call into question Burton’s sentencing determination.

Unable to support his position with case law, Burton instead cites four

instances in which state governors commuted death sentences for nonshooters. (Pet. 26–29.) This does not constitute proof of “evolving standards of

decency,” nor are the decisions of these governors binding upon the State of

Alabama or this Court. Moreover, these cases are distinguishable from

Burton’s. Kenneth Foster was a getaway driver, and the Texas Board of

Pardons and Paroles overwhelmingly recommended commutation. Ralph

Blumenthal, Governor Commutes Sentence in Texas, N.Y. TIMES, Aug. 31,

2007, at A14, https://tinyurl.com/ycjvs9lj. Ivan Teleguz’s sentence was

commuted by a governor opposed to the death penalty who reviewed thousands

of pages of documents concerning the case and came to the independent

conclusion that Teleguz’s sentencing was “terribly flawed and unfair.” Rachel

Weiner & Gregory Schneider, Virginia Governor Commutes Sentence of Death

Row Prisoner, WASH. POST, Apr. 20, 2017, https://tinyurl.com/y965sphh. Jason

McGehee’s sentence was commuted after the Arkansas Parole Board

overwhelmingly recommended it, explaining that he was young at the time of

the crime, that he had a nearly perfect prison record, and that two

codefendants who were equally or more culpable had received sentences less

than death. Parole Board Recommends Death Row Inmate Receive Clemency

from Governor, KATV.COM (Apr. 5, 2017), https://tinyurl.com/yas684xj;

Clemency for AR Death Row Inmate Jason McGehee, FOX16.COM (Aug. 25,

2017), https://tinyurl.com/y9y8az3q. Most recently, Thomas Whitaker’s

sentence was commuted because his surviving victim—his father, who is

deeply religious and lost the rest of his family to Whitaker’s crime—pleaded

for his life to be spared; Whitaker’s clemency petition also noted that the

gunman had not been sentenced to death. Tracy Connor, Texas Grants

Clemency to Thomas Whitaker Minutes Before Execution, NBCNEWS.COM (Feb.

22, 2018), https://tinyurl.com/yc4n8l3g. None of these cases is a perfect

reflection of Burton’s, a case in which both the mastermind of a crime and the

triggerman are rightly sentenced to death, but the triggerman is later

resentenced to life without parole in order to avoid redoing a trial proceeding

decades after the fact.8

Burton’s sentence is not disproportionate, nor does decency dictate that

he be resentenced. He was the leader of the robbery and a major participant in

8. Burton makes much of the State’s petition for certiorari in DeBruce’s case, in which

the State argued that the Eleventh Circuit’s vacatur “creates an unusual and

arguably unjust situation in which the ringleader of DeBruce’s gang—a man

names Charles Burton—has had his death sentence affirmed, although DeBruce,

the triggerman, has not.” Pet. for Cert. at 24, Dunn v. DeBruce, 125 S. Ct. 2854

(2015) (No. 14-807). The State maintains that DeBruce’s death sentence was

proper. Regardless, the fact that the State and DeBruce ultimately reached an

agreement to avoid a new penalty-phase proceeding does not entitle Burton to be

resentenced.

the events that ultimately led to Doug Battle’s murder. Burton is at least as

culpable for Battle’s death as DeBruce is, and his properly imposed death

sentence should stand. Therefore, this Court should deny certiorari.

CONCLUSION

This Court should deny certiorari.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney General

s/ Lauren A. Simpson

Lauren A. Simpson

Assistant Attorney General

*Counsel of Record

OFFICE OF ALA. ATT’Y GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

lsimpson@ago.state.al.us

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.