Opposition Brief — Victor Tony Jones, Petitioner v. Florida

NO. 18-6175

IN THE SUPREME COURT OF THE UNITED STATES

VICTOR TONY JONES,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

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

MELISSA ROCA SHAW

Assistant Attorney General

Office of the Attorney General

1 SE Third Avenue, Suite 900

Miami, Florida 33131

Telephone: (805)-377-5441

Facsimile: (805)-377-5655

COUNSEL FOR RESPONDENT

Capital Case

Question Presented

Petitioner, Victor Tony Jones, was found guilty of first-degree murders

of Matilda Nestor, Jacob Nestor, two counts of armed robbery, and

possession of a firearm by a convicted felon. Petitioner’s sentence of

death was finalized on October 2, 1995. Following this Court’s decision

in Hurst v. Florida, the Florida Supreme Court decided Hurst v. State.

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

(Fla. 2016). There, the Florida Supreme Court explained that in order

for a defendant to be sentenced to death, the jury must find all the

aggravating circumstances outweighed the mitigating circumstances

and unanimously vote that the defendant receive the death penalty.

Following Hurst v. State, the Supreme Court decided Asay v. State,

and Mosley v. State, which created a bright-line retroactivity test

where defendants whose sentences of death were finalized prior to this

Court’s 2002 Ring v. Arizona decision would not receive retroactive

relief. Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct.

41 (2017); Mosley v. State, 209 So. 3d 1248 (Fla. 2016); Ring v.

Arizona, 536 U.S. 584 (2002). Petitioner’s case falls in this category of

defendants.

Petitioner sought postconviction relief through the Florida Supreme

Court but was denied. Petitioner’s petition seeking certiorari review

gives rise to the following question presented:

Whether this Court should deny certiorari to review the Florida

Supreme Court’s ruling on the retroactivity of Hurst v. Florida and

Hurst v. State, where the issue of retroactivity was decided as an issue

of state law in a decision that does not conflict with any of this Court’s

precedent and which does not present a significant or unsettled issue

of constitutional law worth certiorari review.

Table of Contents

Question Presented ..0...........ccccccessssssessceecseseceesseeeeeseseessessaussesesaesesscscceeesseceeseeseceuacereeaae 1

Table of Contents ..........ccccsscccssscscsssecessscecessnccececsssseceucceccecseceecsuaeeseecueeseenseceesaueeseanscecs li

Table of Citations .............cccccccssscccssseseesssssessssseccsesseeeecessescceseseuesueeseeusaceessenesseaceecenacess ili

Opinion Below ..............ccccssccccecessseceeecsessneseeceesusececssesseuscsssssescessceesseusesseneeseessausaeessesececaes 1

JULISCICCION 00.2... eeeeeeeeecceescceescceesseeessceceacecseueessseeceeseecussesenseesseesensescossssesseseseccesseensaeeeenes 1

Statement of the Case and Facts...........ccccccssccssssscsssseccssccesseceseesessussecssesesssesssseseeeeseseers 2

Reasons for Denying the Writ..............ccccccccccccessesssecccescesssaceccesssccececessensaneeseeseseeseeeesenee 7

Certiorari review should be denied because (1) the Florida Supreme

Court’s ruling on the retroactivity of Hurst v. Florida and Hurst v.

State, which relies on state law to provide that the Hurst cases are not

retroactive to defendants whose death sentences were final when this

Court decided Aing v. Arizona, does not violate the Eighth or

Fourteenth Amendments; and (2) the Florida Supreme Court’s decision

does not conflict with any decisions of this Court or involve an

important, unsettled question of federal law, ............cccccccccccesssessssececceecersessenss 7

Conclusion .........c.cccecccceecccececccssecccseccccsceccusceccasccacceaseccusececsecsecsesecesenesescucceceuecececausceeees 21

i

Table of Citations

Statutes

2B U.S.C. § 1257 (a) occ cccccccsccscsecesssessesssscssssccocssessecsceceeseeeesacsaeceesaueaseaucausauenseaesessease 1

Fla. Stat. § 921.141(2) (2017)... eeeseeesseseseeseseeseseseeseeecesseeesseecesssesasseersaeeesseeseesenees 14

Fla. Stat. § 921.1416) (2017) ......cccccccccccccecccccssescescscsecsevscescescsnssesscseessesesactaeeeseseneeess 16

Federal Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000)... ccceccccesecsssssssssscesseccecessacsececens 11

Atkins v. Virginia, 536 U.S. 804 (2002) ........ccscsscsccssssssssssscessssccsscceceeccscceseeesarseeeees 3, 12

Butler v. McKellar, 494 U.S. 407 (1990) .o...cccecccecceccccecccccecececccceessessseseasensecssesae 12, 14

Cardinale v. Louisiana, 394 U.S. 437 (1969).......ccccccccsecssecscscsecssccesscessecssccsseesseseeeseeces 11

Danforth v. Minnesota, 552 U.S. 264 (2008) ...........ccccccccccssccccesccccecscccecsesesecscesensesenees 10

Davis v. United States, 417 U.S. 383 (1974) oo... ssecssessecseesesseseesseesessesessessseseeesenseesenees 13

Erie R. Co. v. Tompkins, 304 U.S. 64 (1988) .....ccccccccecccecceccescessccesssececuesacesesseseessees 12

Fiore v. White, 531 U.S. 225 (2001)... esecessecesssseeeeseseecaeeesseseeeseeeeseeseseesceeeseeaeseenes 14

Florida v. Powell, 559 U.S. 50 (2010) oo...ecceecceccececcccccceseccecceccccccceceacessuesssesueeseesescueess 11

Fox Film Corp. v. Muller, 296 U.S. 207 (1935) .....ccccccccscscsecssssccesssssesececcseceeeseesaeees 11

Griffith v. Kentucky, 479 U.S. 814 (1987) .......ccccccsscesessesssecccsessscsecsevsessevseseasreeteneeaes 12

Hall v. Florida, 134 S. Ct. 1986 (2014) oo... e.seseescsessseesessseeseaeesssesessecesaeseenesesseseeseeseeseaes 5

Hurst v. Florida, 136 S. Ct. 616 (2016)........cccccccccccccecesscesssesccsceceesseceaceerenecenes passim

Jackson v. Virginia, 443 U.S. 807 (1979) ......ccccscceccescesessesssecssesscssssscscascessessscsssscavsceees 17

Jones v. Florida Dep't of Corr., 568 U.S. 873 (2012) ......cccccecccccsceeecesecceecceseceesessessaees 4

Jones v. Florida, 516 U.S. 875 (1995) .......seessssessssssesseseereseseseeeseeseecseseesesesesseseeseseesesses 3

Jones v. McNeil, 776 F. Supp. 2d 1323 (S.D. Fla. 2010) ..o.cecce ee ceeeeecseceeeceseececceresees 4

Kansas v. Carr, 186 S. Ct. 633 (2016) 0.0... seeeceeseeceseceeeesceeeeesssesessesesesescaesneseanencasens 16

Kansas v. Marsh, 548 U.S. 163 (2006) ..0......esessesessesesesseseeseneseeneeeeaeeesseseseeeeeseeseeeeaeeees 16

Michigan v. Long, 463 U.S. 1082 (1988).........ccccccccscsssscssesscecesssseescsscscescsucecsevsesevenseeas 11

Penry v. Lynaugh, 492 U.S. 802 (1989) .........ccccccscccocccessscccecccscsscesscssessssssuseesecceeececeeees 12

Porter v. McCollum, 558 U.S. 80 (2009) ........ccccscsssssssescsssscsscessscssescsscececereessesenatscnearens 4

Ring v. Arizona, 536 U.S. 584 (2002).......ccccccccsecccsscessescsecseceeeseessecaessecaussusssecseccecace 6

Roper v. Simmons, 543 U.S. 551 (2005) .....ccccccssssescscsssssesccecceesecsecececesacsassusaesssacsueaes 15

Saffle v. Parks, 494 U.S. 484 (1990) .....c.ccccccccscsssssseccscssessevsssscesscsecevasseeseacssecececsesaeaees 12

Schriro v. Summerlin, 542 U.S. 348 (2004) .......ecccsccsccceccecscccecsecececscscsceesessane 9, 14,17

Street v. New York, 394 U.S. 576 (1969)... cceccecccseccceccesesessssesscectecsssecsecssesscceseece 11

Teague v. Lane, 489 U.S. 288 (1989) ....cccceecssscsscecceccceccecccsseececeetesuessessuessecsasaee 10, 12

Tuilaepa v. California, 512 U.S. 967 (1994) .0..0..cccccsssessesseescesecsccesceccscesceseseeseasencsusaes 16

Welch v. United States, 136 S. Ct. 1257 (2016) .o....c.eeeecccceccceccccecccesecesesescsacessecessees 17

Ybarra v. Filson, 863 F.3d 1016 (Oth Cir. 2017) ......ccccccccccssccccsscscessccecsececcsscececsececeesee 17

State Cases

Aguirre-Jarquin v. State, 9 So. 3d 598 (Fla. 2009) ....cccccccccsecceceeccecceeserceecesseceacees 15

AGAY V. SACO... ccceccsscccccceeecsnssnseessnsnceseseecseneaeeccesssccecsscscsucccesecsavsanecesedetaneeseesencecs passim

Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S. Ct. 1164 (2018) ............... 8

Cole v. State, 234 So. 3d 644 (Fla.), cert. denied, No. 17-8540, 2018 WL 1876873

(U.S. Jume 18, 2018) oo... eecessessesssssesseeseseesesssscsesesecsesseeseseenesesseseseeassecseareeseesesceseess 8

Finney v. State, 660 So. 2d 674 (Fla. 1995).......ccccccscscssssscsscesssssssssssccessaceeserseseeereneass 14

Floyd v. State, 497 So. 2d 1211 (Fla. 1986) ........cccceccecscccsscssesceseesecseseeseeeeaseecenees 14, 15

Hannon v. State, 228 So. 3d 505 (Fla.), cert. denied, 138 S. Ct. 441 (2017) .........00000. 8

Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017)......... 6, 8

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

Jones v. State, 135 So. 3d 287 (Fla. 2014) 0... eecssscesseseseesessesesteseesesseeeeseessesseseseeseesecs 5

Jones v. State, 234 So. 3d 545 (Fla. 2018), cert. denied, No. 17-8652, 2018 WL

1993786 (U.S. June 25, 2018)... eeeecescesecseesesesesseseeseessestsssseseeseseeseseesesesneacssessseeseees 8

Jones v. State, 241 So. 3d 65 (Fla. 2018) oo... ceccsecsscccsssececccsecccassccssccssccsesecescecseeeseees 1

lv

Jones v. State, 652 So. 2d 346 (Fla. 1995) .........ccccccccccccececocecssccessccsecsesscessecececeseecseseeees 2

Jones v. State, 93 So. 8d. 178 (Fla. 2012) .....ccccccecesscsssecceccecccsecceccesseesecessesssessessecseseeses 4

Jones v. State, 966 So. 2d 819 (Fla. 2007) .........ccecceseecceccecsscesseccescececcecsecsecessecsseeeseees 4

Lambrix v. State, 227 So. 3d 112 (Fla.), cert. denied, 138 S. Ct. 312 (2017) ............... 8

Mosley v. State, 209 So. 8d 1248 (Fla. 2016) .......cccccccccccsscsccsccceceeccescesesecceceseaseaueeusere 9

Victorino v. State, 241 So. 3d 48 (Fla. 2018) .0.......scsesscessssssessesesssseseseeseseetesesesseeesseeees 14

Williams v. State, 37 So. 3d 187 (Fla. 2010) ........cccccccsescceccceccecsccesssecssecsscecssecssestecsuee 15

Witt v. State, 387 So. 2d 922 (Fla.), cert. dented, 449 U.S. 1067 (1980) ...........cccccc00- 10

Zeigler v. State, 580 So. 2d 127 (Fla. 1991) .......cccccecccccccecsscsesesecsscecceeseesaceaceeeaceneseass 14

Rules

Fla. R. Crim. Pro. 3.851 (d) (1) (B).o. eee eesesseesessesseeseeseeseesesscescessesssesesesessessceneesenseess 18

Sup. Ct. R. 10... eeessccesessseeecessseecessaeseeessseseessseccenseesecsececcscecssuessnesesensaaens 2, 7, 19, 20

Sup. Ct. R. 13. Deccecccccccecsecsecssesseececssessuessucsuesssssuessuessecsuscsssssscssecsesssssseseeessecssssseesuecsevssseees 1

Sup. Ct. R. 14g) ee eeecccccseecsssesseseessesssesesesesesssessseseasevevececeesesesssusesevevsceusssesssssesssaveees 2

Other Authorities

Fla. Std. J. Inst. (Crim.) 7.11 o...cccccsssssssssssessssecesecsesseseccsscsesseccsssecsecacsevsesavassavaracsacanees 14

IN THE SUPREME COURT OF THE UNITED STATES

NO. 18-6175

VICTOR TONY JONES,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

Opinion Below

The decision of the Florida Supreme Court appears as Jones v. State, 241 So.

3d 65 (Fla. 2018).

Jurisdiction

The Florida Supreme Court issued its opinion affirming the summary denial

of Petitioner’s successive postconviction motion for relief on May 2, 2018. Jones v.

State, 241 So. 3d 65 (Fla. 2018). Petitioner’s “Petition for Writ of Certiorari” was

docketed in this Court on September 28, 2018 after Petitioner was granted an

extension from this Court. The Petition is timely filed before this Court. Sup. Ct.

R. 13.1.

Pursuant to 28 U.S.C. § 1257(a), this Court has jurisdiction to review the

decision of the Florida Supreme Court. However, Respondent submits that this

Court should not exercise its jurisdiction, as Petitioner fails to raise a novel

question of federal law. The Florida Supreme Court’s decision was based on

independent and adequate state grounds and Petitioner has not raised a question of

federal law. Sup. Ct. R. 14(g)G). Additionally, because the Florida Supreme Court’s

decision does not conflict with the decision of another United States court of

appeals, another state court of last resort, or with relevant decisions of this Court,

this Petition should be denied. Sup. Ct. R. 10.

Statement of the Case and Facts

Petitioner was charged with (1) the first-degree murder of Matilda Nestor, (2)

the first-degree murder of Jacob Nestor, (8) the armed robbery of Matilda Nestor,

(4) the armed robbery of Jacob Nestor, and (5) the possession of a firearm by a

convicted felon. Jones v. State, 652 So. 2d 346, 348 (Fla. 1995). The crimes were

committed on December 19, 1990. /d. Evidence at trial established that Petitioner,

who worked for the Nestors, stabbed Mrs. Nestor once to the base of her neck, which

severed her aorta, and stabbed Mr. Nestor once in the chest, which entered his

heart. Jd. Mr. Nestor fled to his office, where he removed the knife from his chest,

drew his pistol and shot at the Petitioner, striking him in the forehead. Jd. There

was no money or valuables found on the victims, nor in Mrs. Nestor’s purse which

was next to Petitioner. Jd. The evidence showed Mr. Nestor’s body was rolled over,

so his valuables could be removed from his pockets. /d.

2

Following a jury trial, Petitioner was convicted on all counts. /d. Petitioner’s

jury recommended a death sentence for the murder of Mrs. Nestor by a 10-2 vote

and by unanimous vote for the murder of Mr. Nestor. /d. The trial court followed the

jury’s recommendation and sentenced Petitioner to death. ad.

The Florida Supreme Court affirmed Petitioner’s convictions and sentences

on direct appeal and his case became final when this Court denied his petition for

writ of certiorari on October 2, 1995. Jones v. Florida, 516 U.S. 875 (1995). On

March 27, 1997, Petitioner filed a shell motion for postconviction relief.

Subsequently, Jones filed an amended motion for postconviction relief, raising 22

claims, including claims that counsel had been ineffective for failing to present a

voluntary intoxication defense, for failing to investigate and present mitigation and

for failing to litigate his competency to stand trial properly. Jones v. State, 855 So.

2d 611, 614-15 (Fla. 2008).

Following a limited evidentiary hearing, the postconviction court denied relief

on March 8, 2001. Petitioner appealed the denial of his motion to the Florida

Supreme Court, raising five issues. /d. Petitioner also filed a petition for writ of

habeas corpus. /d. at 619. The Florida Supreme Court affirmed the denial of the

motion for postconviction relief and denied habeas relief. /d.

Thereafter, Petitioner filed a successive motion for postconviction relief

claiming to be intellectually disabled and entitled to relief under Atkins v. Virginia,

536 U.S. 304 (2002). The circuit court summarily denied Petitioner’s successive

postconviction motion; however, on May 27, 2005, the Florida Supreme Court

3

remanded for an evidentiary hearing on Petitioner’s intellectual disability claim.

Following that evidentiary hearing, the lower court denied Petitioner’s

motion and Petitioner appealed the denial of his motion to the Florida Supreme

Court. On May 24, 2007, the Florida Supreme Court affirmed the denial of the

second successive motion for postconviction relief, agreeing that Petitioner failed to

prove any of the elements of intellectual disability. Jones v. State, 966 So. 2d 319,

330 (Fla. 2007)

On November 6, 2007, Petitioner filed a federal habeas petition in the

Southern District of Florida, raising 26 claims, including claims that he was

intellectually disabled. Jones v. McNeil, 776 F. Supp. 2d 1323, 1338 n. 7 (S.D. Fla.

2011). On March 7, 2011, the district court denied the petition, finding the

intellectual disability claims meritless. /d. at 1371-75. Petitioner attempted to

appeal the denial but was denied leave to do so. He sought certiorari, insisting that

his intellectual disability claims were meritorious, which was denied. Jones v.

Florida Dep’t of Corr., 568 U.S. 873 (2012).

On November 29, 2010, Petitioner filed a third motion for postconviction

relief, raising a claim that Porter v. McCollum, 558 U.S. 30 (2009), constituted a

retroactive change in law that required reconsider of the denial his prior

postconviction claims. The postconviction court summarily denied the motion on

February 2, 2011, finding that Porter was not a change in law, that it would not be

retroactive even if it was and that it would not apply. Petitioner appealed the denial

of the motion to this Court, which summarily affirmed the denial on April 26, 2012.

4

Jones v. State, 93 So. 3d 178 (Fla. 2012).

On September 30, 2013, Petitioner filed a fourth motion for postconviction

relief. (PCR4. 48) In this motion, Petitioner suggests that he was somehow being

denied due process in clemency proceedings because he had yet to be appointed

clemency counsel. The lower court summarily denied that motion and Petitioner

initially appealed the denial. However, on January 13, 2014, Petitioner filed a

notice of voluntary dismissal of that appeal, and as a result, the Florida Supreme

Court dismissed the appeal on February 10, 2014. Jones v. State, 1385 So. 3d 287

(Fla. 2014).

Petitioner filed his fifth successive motion for postconviction relief on May 26,

2015, asserting that Hall v. Florida, 134 S. Ct. 1986 (2014), was a fundamental

change in law that should be applied retroactively. After the lower postconviction

court summarily denied this motion, Petitioner appealed to the Florida Supreme

Court, who affirmed the denial on September 28, 2017. Jones v. State, 231 So. 3d

374, 376 (Fla. 2017), reh’g denied, No. SC15-1549, 2017 WL 6604265 (Fla. Dec. 27,

2017).

On October 13, 2017, Petitioner filed his sixth postconviction motion for relief

pursuant to this Court’s in Hurst v. Florida, 136 S. Ct. 616 (2016), and the Florida

Supreme Court’s decision on remand in Hurst v. State, 202 So. 3d 40 (Fla. 2016),

cert. denied, 137 S. Ct. 2161 (2017). On January 10, 2018, the postconviction court

summarily denied Petitioner’s motion. Petitioner appealed to the Florida Supreme

Court.

On March 2, 2018, pursuant to the Florida Supreme Court’s decision in

Ffitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017), the

Florida Supreme Court issued an order to show cause, which asked Petitioner to

respond why Hitchcock should not be dispositive in this case. In Hitchcock, the

Florida Supreme Court reaffirmed its previous holding in Asay v. State that Hurst

v. Florida, as interpreted by Hurst v. State, is not retroactive to defendants whose

death sentences were final when this Court decided Ring v. Arizona!. 226 So. 3d at

217.

On May 2 ,2018, the Florida Supreme Court affirmed the denial of relief,

holding that Petitioner is not entitled to retroactive relief. Jones v. State, 241 So. 3d

65 (Fla. 2018). Petitioner then filed his Petition in this Court from the Florida

Supreme Court’s decision. This is the State’s brief in opposition.

1 536 U.S. 584 (2002)

Reasons for Denying the Writ

Certiorari review should be denied because (1) the Florida Supreme

Court’s ruling on the retroactivity of Hurst v. Florida and Hurst v.

State, which relies on state law to provide that the Hurst cases are not

retroactive to defendants whose death sentences were final when this

Court decided Hing v. Arizona, does not violate the Eighth or

Fourteenth Amendments; and (2) the Florida Supreme Court’s decision

does not conflict with any decisions of this Court or involve an

important, unsettled question of federal law.

Petitioner requests that this Court review the Florida Supreme Court’s

decision affirming the denial of his successive postconviction motion, arguing that

the state court’s holding with respect to retroactivity violates his Due Process

Rights under the Eighth and Fourteenth Amendments. However, the Florida

Supreme Court’s denial of the retroactive application of Hurst to Petitioner’s case is

based on adequate and independent state grounds, is not in conflict with any other

state court of last review and is not in conflict with any federal appellate court. As

will be shown, nothing about the Florida Supreme Court’s retroactivity decision is

inconsistent with the United States Constitution. Moreover, Petitioner does not

provide any “compelling” reason for this Court to review his case. Sup. Ct. R. 10.

Indeed, Petitioner cannot cite to any decision from this or any appellate court that

conflicts with the Florida Supreme Court’s decision in Jones v. State, 241 So. 3d 65

(Fla. 2018), in which the court determined that Petitioner was not entitled to relief

because Hurst v. State was not retroactive to his death sentence. As no compelling

reason for review has been offered by Petitioner, certiorari should be denied.

Respondent would further note that this Court has repeatedly denied

7

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

the issuance of Hurst v. State. See, e.g., Jones v. State, 234 So. 8d 545 (Fla. 2018),

cert. denied, No. 17-8652, 2018 WL 1993786, at *1 (U.S. June 25, 2018); Cole v.

State, 234 So. 3d 644 (Fla.), cert. denied, No. 17-8540, 2018 WL 1876873, at *1 (U.S.

June 18, 2018); Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S. Ct. 1164

(2018); Hannon v. State, 228 So. 3d 505 (Fla.), cert. denied, 138 S. Ct. 441 (2017);

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

Hitchcock, 226 So. 3d 216, cert. denied, 138 S. Ct. 513; Asay, 210 So. 3d 1, cert.

denied, 138 S. Ct. 41.

Petitioner's Argument That Hurst Identified the “Elements” Required to Convict

Him of Capital Murder Is Just Another Attack on Florida’s Retroactivity Decision.

Petitioner contends that the Florida Supreme Court created a new

substantive rule in Hurst v. State which must be applied retroactively to all cases in

which alleged Hurst error occurred. Petitioner insists that Hurst identified the

statutory elements that had to have been proven beyond a reasonable doubt, which

causes a substantive change, making Hurst retroactive under federal law. Hurst did

not announce a substantive change in the law and is not retroactive under federal

law. Petitioner’s arguments do not identify any federal or state court conflict, and

instead amount to his general disagreement with how Florida has elected to apply

its own death penalty laws. This is just another attempt at claiming a Sixth

Amendment violation and amounts to yet another endeavor to urge universal

retroactivity of the Hurst decisions.

Florida was not required to grant retroactive application of Hurst v. Florida

to all death sentenced murderers regardless of the date their convictions and

sentences became final. This Court’s ruling in Hurst v. Florida was a narrow one:

“Florida’s sentencing scheme, which required the judge alone to find the existence of

an aggravating circumstance, is . . . unconstitutional.” Hurst v. Florida, 136 S. Ct.

at 624 (emphasis added). However, Hurst, like Ring, was a procedural change, not a

substantive one. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (“Ring

announced a new procedural rule that does not apply retroactively to cases already

final on direct review.”). In response, Florida adopted new procedural requirements

that, among other things, mandated that all factual findings necessary to impose

death be found by a unanimous jury. The Florida Supreme Court’s interpretation of

Hurst v. Florida in Hurst v. State greatly expanded that procedural rule.

Nevertheless, 1t remained a procedural rule and not a “definition” of Florida’s death

penalty statute. The range of conduct punished by death in Florida remains the

same.

Following issuance of this Court’s decision in Hurst v. Florida, the Florida

Supreme Court held that Hurst v. Florida would apply to those sentences which

were final after this Court’s decision in Aing. In Asay, the Florida Supreme Court

ruled that, as a matter of state law, Hurst v. State is not retroactive to any case in

which the death sentence was final prior to the June 24, 2002, decision in Hing. 210

So. 3d at 22; see also Mosley, 209 So. 3d at 1272-73 (holding that as a matter of

state law, Hurst v. State does not apply retroactively to defendants whose sentences

9

were not yet final when this Court issued Ring).

This Court has held that, in general, a state court’s retroactivity

determinations are a matter of state law, not federal constitutional law. Danforth v.

Minnesota, 552 U.S. 264 (2008). State courts may fashion their own retroactivity

tests, including partial retroactivity tests. A state supreme court is free to employ a

partial retroactivity approach without violating the federal constitution under

Danforth. The state retroactivity doctrine employed by the Florida Supreme Court

did not violate federal retroactivity standards. The court’s expansion of Hurst v.

Florida in Hurst v. State is applicable only to defendants in Florida, and,

consequently, subject to retroactivity analysis under state law as set forth in Witt v.

State, 387 So. 2d 922 (Fla.), cert. denied, 449 U.S. 1067 (1980). See Asay, 210 So. 3d

at 15 (noting that Florida’s Witt analysis for retroactivity provides “more expansive

retroactivity standards” than the federal standards articulated in Teague v. Lane,

489 U.S. 288 (1989)) (emphasis in original; citation omitted).

Furthermore, both the majority opinion and the concurring opinion in

Alleyne v. United States, 570 U.S. 99 (2013), which Petitioner relies on for support,

classified the right to a jury trial regarding facts required to impose a minimum

mandatory sentence as procedural. Alleyne, 570 U.S. at 116, n.5 (“the force of stare

decisis is at its nadir in cases concerning procedural rules . . .”) (emphasis added);

Alleyne, 570 U.S. at 119 (Sotomayor, J., concurring) (“when procedural rules are at

issue .. .”) (emphasis added). This Court’s opinion in Alleyne, like this Court’s

opinion in Hurst v. Florida itself, was explicitly based on Apprendi v. New Jersey,

10

530 U.S. 466 (2000). Both Alleyne and Hurst are the offspring of Apprendi. The

Alleyne majority and the Alleyne concurrence both characterized that Apprend7-

based right as procedural. This Court views Apprendi and all its offspring, including

Hurst v. Florida, as procedural, not substantive. Therefore, Petitioner’s assertion

that chapter 2017-1 (which codifies the holding in Hursé) must be considered a

substantive rule fails.

This Court has repeatedly recognized that where a state court judgment rests

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

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

Corp. v. Muller, 296 U.S. 207, 210 (1985); Michigan v. Long, 463 U.S. 1032, 1038

(1983); see also Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that

this Court has no jurisdiction to review a state court decision on certiorari review

unless a federal question was raised and decided in the state court below); Street v.

New York, 394 U.S. 576, 581-82 (1969). If a state court’s decision is based on

separate state law, this Court “of course, will not undertake to review the decision.”

Florida v. Powell, 559 U.S. 50, 57 (2010).

The question of Hurst retroactivity as related to Petitioner's postconviction

claim was entirely a matter of state law. This fact alone militates against the grant

of certiorari in this case. The Florida Supreme Court, following its now established

precedent in Asay, rejected Petitioner’s claim because his convictions and sentences

became final prior to this Court’s decision in Ring. This determination concerns only

state law and is outside the scope of certiorari jurisdiction of this Court. See, e.g.,

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Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (noting that “whether the law of the

state shall be declared by its Legislature in a statute or by its highest court in a

decision is not a matter of federal concern []” and that “[e]xcept in matters governed

by the Federal Constitution or by acts of Congress, the law to be applied in any case

is the law of the state.”).

When a constitutional rule is announced, its requirements apply to

defendants whose convictions or sentences are pending on direct review or not

otherwise final. Griffith v. Kentucky, 479 U.S. 314, 323 (1987). However, once a

criminal conviction has been upheld on appeal, the application of a new rule of

constitutional criminal law is limited. This Court has held that new rules of

criminal law will apply retroactively only if they fit within one of two narrow

exceptions. Those exceptions are: (1) a substantive rule that "places certain kinds of

primary, private individual conduct beyond the power of the criminal law-making

authority to proscribe or if it prohibits a certain category of punishment for a class

of defendants because of their status or offense"; and (2) a procedural rule which

constitutes a watershed rule of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding. Teague, 498 U.S. at 310-13; Penry

v. Lynaugh, 492 U.S. 302 (1989) (abrogated on other grounds by Atkins v. Virginia,

5386 U.S. 304 (2002)); Butler v. McKellar, 494 U.S. 407 (1990); Saffle v. Parks, 494

U.S. 484 (1990). Moreover, certain matters are not retroactive at all.

Despite the Florida Supreme Court’s clear mandate, Petitioner suggests that

the Florida court created a new substantive rule in Hurst v. State which must,

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pursuant to Bousley v. United States, 523 U.S. 614 (1998), be applied retroactively

to all cases in which alleged Hurst error occurred. A decision that modifies the

elements of an offense is normally substantive rather than procedural. New

elements alter the range of conduct the statute punishes, rendering some formerly

unlawful conduct lawful or vice versa. See id. at 620-621. Such rules apply

retroactively because they “necessarily carry a significant risk that a defendant

stands convicted of ‘an act that the law does not make criminal” or faces a

punishment that the law cannot impose upon him. /d. at 620 (quoting Davis v.

United States, 417 U.S. 333 (1974)). However, that is not what Hurst has done.

Petitioner’s reliance on Bous/ey for this proposition is misplaced. There, this

Court “decidled] the meaning of a criminal statute enacted by Congress.” Jd. at 620.

Concluding that a Teague analysis was not necessary under that circumstance, this

Court held that an individual who pled guilty to violating 18 U.S.C. § 924(c)(1),

based upon the prior interpretation of “using” a firearm is entitled to have the

conviction set aside if he or she was actually innocent of the crime as it was

subsequently defined by this Court. Jd. By contrast, as explained herein, Hurst v.

Florida announced a new procedural rule.

Florida’s new capital sentencing scheme, which requires the jury to

unanimously and expressly find all the aggravating factors that were proven beyond

a reasonable doubt, unanimously find that sufficient aggravating factors exist to

impose death, unanimously find that the aggravating factors outweigh the

mitigating circumstances, and unanimously recommend a sentence of death before

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the trial judge may consider imposing a sentence of death, see Fla. Stat. §

921.141(2) (2017), neither alters the definition of criminal conduct nor increases the

penalty by which the crime of first-degree murder is punishable. Victorino v. State,

241 So. 3d 48 (Fla. 2018). These additional requirements imposed by Hurst v. State

are not “elements” of a capital offense, contrary to Petitioner's argument. Instead,

Hurst, like Ring, 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.” Summerlin, 542 U.S.

at 353.

Additionally, Petitioner’s reliance on Fiore v. White is also misplaced. Fiore v.

White, 581 U.S. 225, 228-29 (2001) (noting that the case did not focus on the issue of

retroactivity, but instead whether Pennsylvania could convict an individual without

proving the elements of a crime beyond a reasonable doubt). Hurst is readily

distinguishable from Fiore because it did not address the proof-beyond-areasonable-doubt standard.

If a rule of law it not new, there is no retroactivity analysis required. Butler

v. McKellar, 494 U.S. 407, 412 (1990) (defining a “new rule” for purpose of

retroactivity as one that “breaks new ground or imposes a new obligation,” such as a

decision that explicitly overrules an earlier holding). Florida’s standard of proof for

aggravating circumstances is not new. See Fla. Std. J. Inst. (Crim.) 7.11; Floyd v.

State, 497 So. 2d 1211, 1214-15 (Fla. 1986); Zeigler v. State, 580 So. 2d 127, 129

(Fla. 1991); Finney v. State, 660 So. 2d 674, 680 (Fla. 1995). Florida law has

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required that the State prove aggravators at the beyond-a-reasonable-doubt

standard of proof for over three decades. Williams v. State, 37 So. 3d 187, 194-95

(Fla. 2010) (stating that the State has the burden to prove beyond a reasonable

doubt each and every aggravating circumstance); Aguirre-Jarquin v. State, 9 So. 3d

593, 607 (Fla. 2009) (explaining that the State must prove the existence of an

aggravator beyond a reasonable doubt citing Parker v. State, 873 So. 2d 270, 286

(Fla. 2004)); cf Floyd, 497 So. 2d at 1214 (striking an aggravator that was not

proven “beyond a reasonable doubt”). Proving aggravators beyond a reasonable

doubt is not new in Florida, thus Fiore is not analogous to Hurst and irrelevant in

Florida.

Nor did Hurst truly involve the standard of proof. The issue in Hurst v.

Florida was who finds the existence of an aggravator — the judge versus the jury —

not the standard of proof. The new unanimity requirement established by the

Florida Supreme Court in Hurst is also not the equivalent of a standard of proof.

They are two very different concepts. The “retroactivity” of the beyond-a reasonabledoubt standard of proof is a non-issue in this case and all other Florida capital cases

as well. Hurst did not alter the burden of proof as aggravating circumstances have

long been required to be proven beyond a reasonable doubt in Florida.

As related to the finding that aggravation is sufficient, Hurst did not ascribe

a standard of proof. Hurst, 202 So. 3d at 54. The Eighth Amendment requires that

“States must give narrow and precise definition to the aggravating factors that can

result in a capital sentence.” Roper v. Simmons, 548 U.S. 551, 568 (2005). Florida’s

15

aggravating factors are enumerated in section 921.141(6) of the Florida Statutes.

See Fla. Stat. § 921.141(6) (2017). These aggravating factors have been deemed

sufficient to impose the death penalty by virtue of their inclusion in the statute. Any

one of these aggravating factors is sufficient to cause a defendant to be eligible to

receive a sentence of death. However, the weight that a juror gives to the

aggravator based on the evidence is not something that can be defined by a beyonda-reasonable-doubt standard.

As related to the finding that the aggravation outweighs the mitigation,

Hurst did not ascribe a standard of proof. Hurst, 202 So. 3d at 54. This Court has

specifically held that the beyond-a-reasonable-doubt standard for finding that the

aggravation outweighs mitigation is not required under federal law. See Kansas v.

Marsh, 548 U.S. 163, 164 (2006) (“Weighing is not an end, but a means to reaching

a decision.”); Tuilaepa v. California, 512 U.S. 967, 979 (1994) (“A capital sentencer

need not be instructed how to weigh any particular fact in the capital sentencing

decision.”); Kansas v. Carr, 186 S. Ct. 633, 642 (2016) (“[T]he ultimate question

whether mitigating circumstances outweigh aggravating circumstances is mostly a

question of mercy—the quality of which, as we know, is not strained. It would mean

nothing, we think, to tell the jury that the defendants must deserve mercy beyond a

reasonable doubt.”). The weight that a juror gives to the aggravation as compared to

the weight given to mitigation is also not something that can be defined by a

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beyond-a-reasonable-doubt standard.?

While Petitioner may view the right to a jury trial as substantive, this Court

has repeatedly classified it as procedural and in a very similar context to Hurst. As

this Court noted, “holding that because [a State] has made a certain fact essential to

the death penalty, that fact must be found by a jury, 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.” Summerlin, 542 U.S. at 354. Thus, Hurst

v. States requirement that the jury make specific factual findings before the

imposition of the death penalty is procedural.

Welch v. United States, 136 S. Ct. 1257, 1264 (2016) does not distinguish

itself from Summerlin, but instead quotes Summerlin to describe the distinctions

between a substantive and a procedural change. /d. at 1265. In explaining how the

rule in Johnson was not procedural, the Welch court stated, “[ilt did not, for

example, ‘allocate decision making authority’ between judge and jury, zbid., or

2 Furthermore, the Ninth Circuit Court of Appeals has rejected this exact argument.

Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017). Ybarra also argued that Hurst v.

Florida should be applied retroactively because it involved the standard of proof

citing Jackson v. Virginia, 443 U.S. 307, 316 (1979) just as Petitioner does in his

petition. Ybarra, 869 F.3d at 1032-33. The Ninth Circuit rejected that argument,

reasoning that even if Hurst v. Florida extended the beyond-a-reasonable-doubt

standard of proof to the weighing determinations, it did not redefine capital murder

and therefore, Hurst v. Florida was not required to be applied retroactively. Jd. at

1032. Based on this Court’s jurisprudence, it is clear that the only factual finding

necessary to impose the death penalty is a conviction for murder plus the addition

of an aggravating factor. Finding additional aggravators does not expose the

defendant to any higher or additional penalty. Nor does the weighing of aggravation

and mitigation.

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regulate the evidence that the court could consider in making its decision.” Jd.

Florida’s new Hurst rule, however, did allocate the decision-making authority by

assigning the duty to determine aggravating factors, formerly the responsibility of

the sentencing judge, to the jury. Unlike Welch, after Hurst, Florida’s death

penalty sentencing scheme still applies to the same persons engaging in the same

conduct.

Accordingly, Petitioner’s argument that the failure to receive the benefit of

the retroactive application of Chapter 2017-1 Laws of Florida will amount to a

deprivation of his rights under the Equal Protection Clause and Due Process Clause

of the Fourteenth and Eighth Amendments is without merit. See Petition at 5-7.

Petitioner's claim primarily hinges on his assertion that he is being treated

differently that James Armando Card, who will get the benefit of the revised statute

at his new penalty phase.

In Card v. Jones, 210 So. 3d 47, 48 (Fla. 2017), the Florida Supreme Court

held:

Card’s sentence of death, which his penalty phase jury recommended

by a vote of eleven to one, became final when the United States

Supreme Court denied Card’s petition for writ of certiorari on June 28,

2002. See Card v. State, 803 So. 2d 613 (F la 2001), cert. denied Card v.

Florida, 536 U.S. 963, 122 S. Ct. 2673, 153 L.Ed.2d 845 (2002); see also

Fla. R. Crim. Pro. 3.851 (d) (1) (B). We have held that Hurst applies

retroactively to “defendants whose sentences became final after the

United States Supreme Court issued its opinion in Ring [v. Arizona,

586 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.2d 566 (2002)].” Mosely v.

State, 209 So. 3d 1248, 1276 (Fla. 2016). Thus, Hurst applies

retroactively to Card, whose sentence became final four days after the

United States Supreme Court issued its opinion in Ring.

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Id. (emphasis added). Regardless of when Card’s murder took place, his death

sentence was final after Ring was decided. Petitioner’s death sentences were final

before Ring was decided. Petitioner and Card are not similarly situated; therefore,

Petitioner has no change of success on the merits of his claim. See, e.g., City of

Cleburne, Tex. V. Clerburne Living Center, 473 U.S. 482, 489 (1985) (“The Equal

Protection Clause of the Fourteenth Amendment commands that no State shall

“deny to any person within its jurisdiction the equal protection of the laws,’ which is

essential a direction that all persons similarly situated should be treated alike.”)

(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Moreover, other defendants in

Petitioner's situation have made this exact argument, and this Court has refused to

grant certiorari. See e.g., Brief for Petitioner at 13-21, Hannon v. Florida, 138 S. Ct.

441 (2017) (No. 17-6650, 17A491) (denying certiorari review).

The Florida Supreme Court has been entirely consistent in deny Hurst relief

to those defendants whose convictions and sentences were final when Aing was

issued in 2002. Additionally, the Florida Supreme Court has been entirely

consistent in the prospective application of the 2017-1 statute as well. It applies

only to those defendants who face sentencing after its enactment. Petitioner is

being treated exactly the same as similarly situated murderers.

In sum, the question Petitioner presents does not offer any matter which

comes within the parameters of Rule 10 of the Rules of the United States Supreme

Court. Petitioner does not identify any direct conflict with this Court or other

courts, nor does he offer any unresolved, pressing federal question. He challenges

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only the application of this Court’s well-established principles to the Florida

Supreme Court’s decision. As Petitioner does not demonstrate any compelling

reasons for this Court to exercise its certiorari jurisdiction under Rule 10, this Court

should deny the petition.

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Conclusion

Respondent respectfully submits that the petition for a writ of certiorari

should be denied.

PAMELA JO’BONDI

re: GENERAL

“

pAAY ul.

me M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Melissa Roca Shaw

Assistant Attorney General

Florida Bar No. 99628

Office of the Attorney General

1 SE Third Avenue, Suite 900

Miami, Florida 33131

Telephone: (305)-377-5441

Facsimile: (805)-377-5655

capapp@myfloridalegal.com

Carolyn.Snurkowski@myfloridalegal.com

Melissa.Shaw@myfloridalegal.com

COUNSEL FOR RESPONDENT

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