Opposition Brief — Willie Seth Crain, Jr., Petitioner v. Florida

CASE NO. 18-6882

IN THE SUPREME COURT OF THE UNITED STATES

WILLIE SETH CRAIN, JR.,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

PAMELA JO BONDI

ATTORNEY GENERAL OF FLORIDA

CAROLYN SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Lisa Martin

Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

carolyn.snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

COUNSEL FOR RESPONDENT

[Capital Case]

QUESTION PRESENTED FOR REVIEW

Whether this Court should grant review of the Florida Supreme Court’s

determination that Crain’s jury was not misled nor was its responsibility minimized,

as discussed in this Court’s decision in Caldwell v. Mississippi, 472 U.S. 320

(1985), by an instruction that accurately reflected Florida law at the time of

sentencing?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW uuu... cceccssesssssescsseesessesessescenesssenesseseeneseeseerssecausnsaeseaeaas i

Whether this Court should grant review of the Florida Supreme Court’s

determination that Crain’s jury was not misled nor was its responsibility minimized,

as discussed in this Court’s decision in Caldwell v. Mississippi, 472 U.S. 320

(1985), by an instruction that accurately reflected Florida law at the time of

SEMCCNCING? oo... ee eesecesssesesseecssectscsceesceccneesneseseseseeseeneseessecseessacessaessessssaesesseseseeaeseereaesseseees i

TABLE OF CONTENTS... ccccccessesessssseseseeeseesseseesceseecesasenesesseseesnesesseseesacseenessestasesaessesseneceecess ii

TABLE OF CITATIONS uu. scscsseesessessssecceccssersssessssecsacsnsseseesesssessssessnsavassesersusaserseseeseenesases iti

CITATION TO OPINION BELOW. .......ccsecccssesseectseessessessesseseseeseecesseaeseeseesoestestessseuseessenesesseeseeaes 1

JURISDICTION .00.... ccc cccscsesssseesesseescensnseaseeeveasseeseseceaseaesensceaseasseeaeeasnssceascnsensaeeasesseresesausesenesaeets 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..........:cccssscesesseseeeseeseees 1

STATEMENT OF THE CASE..u0..... ccc ceeesseccessesseseseesenescsenseesseneseeecseseesassasessaeeaseneseesecsesseaesseesees 1

REASONS FOR DENYING THE WRIT uu... eecsesesessescececeseeceseenesessesesneseseeeeseseesesasaetsetacenesasas 4

This Court should decline to grant review of the Florida Supreme Court’s finding

that Crain’s penalty phase jury instructions, which accurately reflected Florida law

at the time of the sentencing, did not violate Caldwell v. Mississippi, 472 U.S. 320

(1985). ceccescssssessssssusecscssssescsssssseccesssssecencasecessnssecsssssescesensscessssusessssusecsssssuecsesssuseesssssuecsessesecs 4

CONCLUSION. ...ccecscssssssscsssssevecssssseccssssssssccessssesssuseccssnssesessnssesesssnscceesssusecessavesesesssesessssssssessssscees 14

CERTIFICATE OF SERVICE ....csssecscssssscssccssceecsssusesssssscesssssuessssssssssssssssvesessssasesssssscscesnsseseessuecs 15

ii

TABLE OF CITATIONS

Cases

Alleyne v. United States,

133 S. Ct. 2151 (2013)... eccceesessesscesessessnscsescseseseaeesseceesseseessesseesecceuseasaeesesesacssseucscsavenaceeeees 6

Apprendi v. New Jersey,

530 U.S. 466 (2000)... eee ececccesceseesecsceesssacecesessousssessesseesaeseessseseesseaecuseseseeesnesescsssssseseseceseaees 5

Belcher v. Sec'y, Fla. Dept. of Corr.,

427 Fed. Appx. 692 (11th Cir. 2011)........cccccccecescsseessesccsecesecceeseesesssatsonecsuseessccssesasssecennecaas 13

Blakely v. Washington,

S42 U.S. 296 (2004)... eeccsssccsssecsessesecsceecesecssseseessecseessessessesecessenteseeeeccessensessescessusenseevenssanss 7

Bowling v. Parker,

344 F.3d 487 (6th Cir. 2003) os ecsssssessessesssesesecsececeseseesesesscsesseseecssscsseeesseseeseseeseseseseseesesans 13

Braxton v. United States,

500 U.S. 344 (1991)... ce cesessssssesssessessnsestessueceesesesceussssecsuuanecssecsseassssscessuscseusseuseesensesereesereesess 6

Caldwell v. Mississippi,

472 U.S. 320 (1985)... eeesssescssecsescecesceecseseeeeseeessseasenesesaesensesesseaeseeacseeseseseesseaesesseaeeeensees passim

Crain v. State,

246 So. 3d 206 (Fla. 2018) ........cccecsscesssecsssccsescsccesesccecssesscsecsnecosecesseeccaceessseecasescsenseeeeceesaceees 1,3

Crain v. State,

78 So. 3d 1025 (Fla. 2011) oe eecsseesseeseessesceneesesecesssseseessesseseessessssaesssesceeneuseeessneneeauseeenseaees 2

Crain v. State,

894 So. 2d 59 (Fla. 2004),

cert. denied, 546 U.S. 829 (2005)... cssscessessssscessseessescseescesesesesstseeseassseesaeseseeseesesseeeeeesseeese 2,5

Cunningham v. California,

S49 U.S. 270 (2007)... eeeeeeeesesceseeereessenecoceecesccsuscuecsuscsuseeeseesesseeesssaessueaeeeesseacassensecstssseeessessnees 5

Danforth v. Minnesota, ;

552 U.S. 264 (2008)... ecssseccsssecsenecesesecestsesscssesecessseesseassnseesacsceseesesseseesseseeseesuseestesssneeesansaasas 8

Darden vy. Wainwright,

ATT U.S. 168 (1986)... eececeseeeeresesesensesssecesseseseaeseaecaeeseessessensesseenessceasessessseaesseentesserecesseess 12

Davis v. Singletary,

119 F.3d 1471 (11th Cir. 1997) one eeeesssssesrssseseessestesseneseeeeeessesseseessnaesseesesaesecseseeseceseass 13

Dugger v. Adams,

489 US. 410 (1989)... eccsssecesssscesstscesseescsseescsacesseessessesseeseuseessesnessuccessueeseeaessescaceneceusesanseaseass 8

Evans v. Sec’y, Fla. Dept. Corr.,

ili

699 F.3d 1249 (11th Cir, 2012) ooo ceeseccsesesssecsesesecsessssesseusessssesessesesessseseeecarscaescaseuseeses 11

Fleenor v. Anderson,

171 F.3d 1096 (7th Cir, 1999) oo. eccsscccscesesssseseesesecnesesnesessesessesteaeessesessesessuseseveuseseusvenseenes 13

Florida v. Powell,

S59 U.S. 50 (2010)... ee eeeeesscseessseecesccescesesssceasseseescsscseseeseesesecessecesseeseseeseseesssneassecessescaseessssaes 8

Fox Film Corp. v. Muller,

296 U.S. 207 (1935)... cccscsccsscsssssescsessssecsstsesesscsessescsssseesesessusessesecseseesesaesesasseseessseceeststseeesseeeces 8

Harris v. Alabama,

313 U.S. 504 (1995)... eccssescesscessecssesssecssessscsssscseesssessessecesseceeecsususcsvonssvenessssecsssaseacessseeesaneases 9

Hurst v. Florida,

136 S. Ct. 616 (2016)... eececsseesssesecseesscseesssesscssessessesssesescecsteceeseecsuceesceacessuacsesneees 6, 7, 8, 10

Hurst v. State (Hurst),

202 So. 3d 40 (Fla. 2016),

cert. denied, 137 S. Ct. 2161 (2017)... eecesessssscseeseeesseecssscesssesessesecesesseseseeesesaeeeseseseensess passim

James v. United States,

550 U.S. 192 (2007)... eccccsscsssessecsscctesnseseeesecesssesessaceseusetevsessseeccssssssssessscseceseseeccarseaceacerseneetes 5

Johnston v. Singletary,

162 F.3d 630 (11th Cir. 1998) oo... ccc ceccscssesssssseseesscsesccceseessecoesseceeavsessesetsssscesesacsesaneseeseaees 13

Jones v. United States,

526 U.S. 227 (1999)... ccessscsssssseesssscesssesssssnessnssecsasecsseeeseessecesssssasscessecescecesssseatceeseeconseaaecessenaes 5

Kaczmar v. Florida,

138 S. Ct. 1973 (2018)... cee eeccccesscsssecssecstecssesnessneceseaeessesessssnsestsensscssucenasssesaseeeeecersreseteaseenee 6

Kansas v. Carr,

136 S. Ct. 633 (2016)... cscccssseesssecseccessccescecsnccseeeussececsusecensecessectusecauseeasseeceseuceeeneccseencees 6, 10

Lambrix v. Sec’y, Fla. Dept. of Corr.,

851 F.3d 1158 (11th Cir. 2017)

cert. denied, 138 S. Ct. 217 (2017) wu... cecccccsssssessesssscessescecseessccescseecsccesseuacecseecsessccsesescaseaceacenees 7

Lorraine v. Coyle,

291 F.3d 416 (6th Cir. 2002) oo... ecccsccsssssscssscsssesscsseecsesseesseceececsecsrcstsesessseeseesvecseseseesesseeses 13

Michigan v. Long,

463 U.S. 1032 (1983)... escsseseessesseeeecssscecsneseessessesscesseesesseesessesaesaeesesssecsreaucsueaassrsesseeseesrens 8

Neder v. United States,

S27 U.S. 1 (1999). ccccscccsecsesseesesssesseeceeseesesssesseseecasesacorecsueneeeeecsueaesseeceusesseusasssassecsasearseneass 10

Proffitt v. Florida,

428 U.S. 242 (1976) oe eeeccesecscenseesneeneeeseseneesscessesseesseesssessessseceaeesseecerensevecsseussessecccausnecsesees 10

Reynolds v. Florida,

139 S.Ct. 27 (2018)... ee ccccssccsssscesesssesccessseesssescesessessencesceseecesesccsuscsaseasusatscseesasassseeaseneeaseeees 6

Reynolds v. State,

251 So. 3d 811 (Fla. 2018) oo. ccecscsssscssssessssscssesseseseessesececcnessesssseesevsesensedssasessessvasseesaeeataees 5

Ring v. Arizona,

536 U.S. 584 (2002)... eesssssseessssecssessccsecseeseessussesaecsecsseseessecenenscscssrscceccassesenesoneeeseass 5, 7, 9, 12

Rockford Life Insurance Co. v. Hlinois Dept. of Revenue,

482 U.S. 182 (1987)... eecccccsseeseseesscssscssecsessacsesseesssesssssenscsseseeeaceneecsuesecccesessacessvanssseesseasseseases 6

Romano v. Oklahoma,

S12 U.S. 1 (1994) oe ecccseeceeesneeseseeeseresseesnscsuessressesseessecsnecessesstsesesenscnseesseacesesesseees 5, 10, 13

Schriro v. Summerlin,

S42 U.S. 348 (2004)... eee cseescceeeseseesscessseecesuessessessuesesseessetesseesneneecsessussessnecseccsscesescassescaaseneees 7

State v. Gales,

658 N.W.2d 604 (Neb. 2003) 0... cccccesscssessessecsscssesssssssresseseecseesesneesseuseseeussaneesseucsessesacaseneenee 10

State v. Mason,

153 Ohio St.3d 476 (Oh. 2018)........cccscssscssssescsssessssssceecsecsssseecscscrccsessucsessscescessssacssssssecsecsecesss 10

Teague v. Lane,

A489 U.S. 288 (1989) oo ccecsceesesseessesessecseusessseesesseesecssessessesseesesseecsnecseeasceseesereseusesacaeseeaeaes 7

Tedder y. State,

322 So. 2d 908 (Fla. 1975) 2.0... eecssscssecsesssessessessessesssesneaesseecessaeeseceuessesascsscsccsaseessacesseeveneenesees 12

United States v. Purkey,

428 F.3d 738 (8th Cir. 2005) .......cccccccsssssesscssecsecsecsseseenteccecessseenesseceessasssacsecsarsasasacessaneneeseees 10

United States v. Sampson,

486 F.3d 13 (1st Cir, 2007)... cecsssssssscesssscesscsssssesssessensessececscecseesecceussnscesseesenssesnsesseseeeaeeseeas 10

Wilson v. Sirmons,

536 F.3d 1064 (LOth Cir, 2008) 20.0... eceesssseessesseseesssssesessacecessesssessescscsccsssesscescsesseeavereeaeesees 13

Witt v. State,

387 So. 2d 922 (Fla. 1980) oo... ccecccsssssssssessessessseseesecssessessuscesseeneseucesusacssauesssecccsscsseasnaeeaceacessees 7

Ybarra v. Filson,

869 F.3d 1016 (9th Cir. 2017) oc cssccsssssscssesssseesssessssessscssesesseesseacesesesecccuseasseeenscesseesesaceesees 7

Other Authorities

§ 921.141(2)(c), Fla. Stat. (2017)... ccecsssssssssssssssssssesesssessessecseestesescrsseesesorseseeseeateeveeesess 8, 11

28 U.S.C. § 12578) oo. eecececcsssecsesssseescssessesseessesccsseeseceresscseceessecesseeseucessssesassasessssscsssnaesassaseceeaeeeees 1

CITATION TO OPINION BELOW

The opinion of the Florida Supreme Court is reported at Crain y. State, 246 So. 3d 206

(Fla. 2018).

JURISDICTION

The judgment of the Florida Supreme Court was entered on April 5, 2018 and the mandate

issued July 23, 2018. Petitioner invokes the jurisdiction of this Court based upon 28 U.S.C. §

1257(a). Respondent agrees that this statutory provision sets out the scope of this Court’s certiorari

jurisdiction, but asserts that this case is inappropriate for the exercise of this Court’s discretionary

jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the applicable constitutional and

statutory provisions involved.

STATEMENT OF THE CASE

Petitioner, Willie Seth Crain, was convicted of the first-degree murder and kidnapping of

seven-year-old Amanda Brown. At the conclusion of the penalty phase, the jury unanimously

recommended the death sentence. The trial court found three aggravators, all of which were given

great weight: (1) prior violent felonies; (2) the murder was committed during the course of a

kidnapping and (3) the victim was under the age of twelve. The court found no statutory mitigators

and eight nonstatutory mitigators', and imposed the death sentence. Crain v. State, 894 So. 2d 59,

' (1) nonstatutory mental health impairment (some weight); (2) mental problems exacerbated by

the use of alcohol and drugs, both legal and illegal (some weight); (3) Crain was an uncured

pedophile (some weight); (4) Crain had a history of abuse and an unstable home life (modest

weight); (5) Crain was deprived of the educational benefits and social learning that one would

normally obtain from public education (modest weight); (6) Crain had a history of hard, productive

work (some weight); (7) Crain had a good prison record (modest weight); and (8) Crain had the

1

66-67 (Fla. 2004), cert. denied, 546 U.S. 829 (2005).

On appeal, the Florida Supreme Court affirmed a conviction for first degree murder but

reduced the kidnapping with the intent to commit murder charge to false imprisonment. The court

found the sentence proportionate and affirmed the sentence of death. Crain v. State, 894 So. 2d 59,

78 (Fla. 2004), cert. denied, 546 U.S. 829 (2005).

On or about September 8, 2006, Crain filed a Motion to Vacate Judgment of Conviction

and Sentence pursuant to Fla. R. Crim. P. 3.851, raising nine claims for relief. (PCR V2, 229-95).

Following an evidentiary hearing, the Honorable Anthony K. Black issued an Order on September

10, 2009 denying Crain’s post-conviction motion.? (PCR V5, 903-51). The Florida Supreme Court

entered its opinion affirming the denial of post-conviction relief on October 13, 2011. Crain v.

State, 78 So. 3d 1025 (Fla. 2011).

Crain filed a successive motion for post-conviction relief on January 5, 2017 seeking relief

from his sentence based upon Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137

S. Ct. 2161 (2017). After reviewing the State’s response and conducting a case management

conference, the trial court issued an order on June 14, 2017, denying Crain’s motion based on a

finding that any Hurst error was harmless beyond a reasonable doubt. Following the filing of a

notice of appeal, the Florida Supreme Court issued an order directing the parties to “file briefs

addressing why the lower court’s order should not be affirmed based on this Court’s precedent in

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, No. 16-998 (U.S. May 22, 2017),

Davis v. State, 207 So. 3d 142 (Fla. 2016), and Mosley v. State, 209 So. 3d 1248 (Fla. 2016).” The

capacity to form loving relationships (modest weight).

? Crain, through counsel, filed a Petition for Writ of Habeas Corpus in the Middle District of

Florida on February 15, 2012. The State has filed a response and the district court has stayed the

case pending final resolution of Crain’s state court proceedings.

2

Florida Supreme Court affirmed the lower court’s denial of relief, rejecting Crain’s arguments and

finding that “the Hurst error was harmless beyond a reasonable doubt.” Crain, 246 So. 3d at 210.

Crain now seeks certiorari review of the Florida Supreme Court’s decision.

REASONS FOR DENYING THE WRIT

This Court should decline to grant review of the Florida Supreme Court’s finding

that Crain’s penalty phase jury instructions, which accurately reflected Florida law

at the time of the sentencing, did not violate Caldwell v. Mississippi, 472 U.S. 320

(1985).

Following his conviction for first depree premeditated murder, Crain’s penalty phase jury

was instructed, without contemporaneous objection from the defense, and consistent with thenexisting Florida law, that its role was to advise the court as to an appropriate sentence. Crain’s jury

was told to assess whether sufficient aggravating factors existed, whether any mitigating

circumstances outweighed the aggravators, and that their sentencing recommendation would be

given great weight by the court in deciding what sentence to impose. (Respondent’s Appendix A,

p. 3661). This was the law in effect at the time of Crain’s sentence, and it is significant here that

the parties are in complete agreement regarding this important fact.

Crain’s primary argument before this Court is his claim, raised for the first time in a state

postconviction motion filed years after his conviction became final, that his penalty phase

proceedings violated this Court’s decision in Caldwell v. Mississippi, 472 U.S. 320 (1985). Setting

aside the clear procedural default caused by Crain’s failure to raise this claim at the time of trial,

it is nevertheless clear that no such violation occurred. This is because Crain’s jury was not misled

regarding their role in the sentencing process, nor was their role diminished as they were accurately

instructed in conformity with contemporaneous Florida law, and (perhaps most significant of all)

they were told that their sentencing recommendation would be given great weight, and that only

under rare circumstances would the court impose a sentence other than that recommended.

(Respondent’s Appendix A, p. 3661). Under these circumstances, Crain cannot establish that a

Caldwell violation occurred, which is exactly what the Florida courts concluded. See Romano v.

4

Oklahoma, 512 U.S. 1, 9 (1994), and Reynolds v. State, 251 So. 3d 811 (Fla. 2018) (explaining

that under Romano, the Florida standard jury instruction at issue “cannot be invalidated

retroactively prior to Ring simply because a trial court failed to employ its divining rod

successfully to guess at completely unforeseen changes in the law by later appellate courts”).

Moreover, Petitioner became eligible for a sentence of death due to his previous violent

felony convictions, and since a judge is permitted to enhance a sentence based on prior convictions

without a jury finding, there was no constitutional error in sentencing Crain to death based on this

aggravator.’ See Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring. See also James v. United

States, 550 U.S. 192, 214 n.8 (2007) (noting that prior convictions need not be treated as an element

of the offense for Sixth Amendment purposes.); Cunningham y. California, 549 U.S. 270 (2007)

(noting Apprendi’s recidivism exception); Jones v. United States, 526 U.S. 227, 249 (1999)

(explaining that “a prior conviction must itself have been established through procedures satisfying

the fair notice, reasonable doubt, and jury trial guarantees”). The prior violent felony aggravator

3 In affirming Crain’s death sentence on direct appeal for proportionality, the Florida

Supreme Court recognized the particular gravity of the prior violent felony conviction aggravator

in this case:

During the penalty phase in this case, the State submitted copies of

judgments and sentences for five counts of sexual battery and one count of

aggravated child abuse. The State also offered the testimony of three child victims

of Crain’s previous sexual assaults. The three female victims all testified that Crain

began abusing them when they were between the ages of seven and nine years of

age. One of the victims endured Crain’s repetitive abuse on a monthly basis for five

years. The victims also testified that Crain threatened them with extensive bodily

harm or death should they reveal his abuse to anyone. Thus, as we found in

Lukehart, the prior felony aggravator is an exceptionally weighty aggravating

factor under the circumstances of the present case, and as we concluded in Stephens,

Crain’s history of victimization of children similar in age to the victim in this case

increases the magnitude of the prior violent felony aggravator.

Crain, 894 So. 2d at 77-78.

is well-established Florida law, and was clearly sufficient to meet the Sixth Amendment’s factfinding requirement. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (recognizing

the “narrow exception . . . for the fact of a prior conviction” set forth in Almendarez-Torres vy.

United States, 523 U.S. 224 (1998)); Kansas y. Carr, 136 S. Ct. 633, 642 (2016) (rejecting a claim

that the constitution requires a burden of proof on whether or not mitigating circumstances

outweigh aggravating circumstances, noting that such a 894question is “mostly a question of

mercy.”). Therefore, there was no underlying Sixth Amendment violation in this case.

As stated in Rule 10 of the Rules of the Supreme Court of the United States certiorari

review “will be granted only for compelling reasons.” Additionally, consideration of a decision by

a state court of last resort should involve an “important question of federal law that has not been,

but should be, resolved by this Court” or should involve cases that decide a federal question in a

way that conflicts with other state high courts or federal courts of appeal. Cases that do not divide

the federal or state courts or that do not present important, unsettled questions of federal law

usually do not merit certiorari review. Rockford Life Insurance Co. v. Illinois Dept. of Revenue,

482 U.S. 182, 184, n. 3 (1987); Braxton v. United States, 500 U.S. 344, 348 (1991). Crain fails to

present a compelling reason for this Court to grant certiorari review.’

Federal versus State retroactivity standards

This case is inappropriate for certiorari for several reasons. First, this is a postconviction

case, and this Court would have to address retroactivity before even reaching the underlying jury

instruction issue. Before this Court could hold that Hurst v. Florida, 136 S. Ct. 616 (2016) is

* The State observes that this Court has repeatedly denied review of similar Hurst-related Caldwell

claims. See e.g. Reynolds v. Florida, 139 S. Ct. 27, 32 (2018); Kaczmar v. Florida, 138 S. Ct. 1973

(2018)

6

retroactive, it would necessarily have to overturn extensive precedent establishing that Ring v.

Arizona, 536 U.S. 584, 612 (2002) is not. Indeed, federal courts have had little trouble determining

that Hurst, like Ring, is not retroactive under the test announced in Teague v. Lane, 489 U.S. 288

(1989).°

Hurst v. Florida is only applicable to Petitioner through Florida’s more expansive state law

test for retroactivity. And Florida has determined that Hurst v. Florida (along with those state law

cases that followed) applies retroactively to the date this Court decided Ring in 2002. Federal

courts, however, have declined to find that Ring is retroactive under federal law, and have, as noted

above, similarly declined to grant retroactivity to Hurst v. Florida.

Florida’s retroactivity test, announced in Witt v. State, 387 So. 2d 922, 926 (Fla. 1980),

provides relief to a broader class of individuals than does Teague, and Florida has, as a matter of

state law, granted limited retroactivity to this Court’s decision in Hurst v. Florida. Consequently,

in granting certiorari review, this Court would find itself addressing retroactivity of Hurst v.

Florida and the possibility of overruling Schriro v. Summerlin, 542 U.S. 348 (2004), before

reaching the underlying question of harmlessness. See also Blakely v. Washington, 542 U.S. 296,

323 (2004) (stating “Ring (and a fortiori Apprendi) does not apply retroactively ....”).

Therefore, pursuant to this Court’s jurisprudence, there can be no federally based “Hurstinduced Caldwell claims.” The fact that a state court has held, as a matter of state law, that a

decision of this Court and a later related state supreme court decision are partially retroactive,®

> See Lambrix v. Sec’y, Fla. Dept. of Corr., 851 F.3d 1158, 1165 n.2 (11th Cir. 2017) (“under

federal law Hurst, like Ring, is not retroactively applicable on collateral review”), cert. denied,

138 S. Ct. 217 (2017); Ybarra v. Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017) (denying

permission to file a successive habeas petition raising a Hurst v. Florida claim concluding that

Hurst v. Florida did not apply retroactively).

® This Court has held that, generally, a state court’s retroactivity determinations are matters of state

7

does not provide a basis for this Court to address tangentially related constitutional claims. This

Court has repeatedly recognized that where a state court judgment rests on adequate and

independent state law grounds, the Court’s jurisdiction fails. Fox Film Corp. v. Muller, 296 U.S.

207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038 (1983). Florida v. Powell, 559 U.S. 50,

57 (2010) (stating that if a state court’s decision is based on separate state law, this Court “of

course, will not undertake to review the decision.”)

Crain’s Caldwell claim

Putting the question of retroactivity aside, Crain’s present complaint appears to arise out

of the fact that his penalty phase jury’s determination was merely a recommendation, and nothing

more. His argument improperly conflates this Court’s decision in Hurst v. Florida, which

addressed Sixth Amendment infirmities in Florida’s previous sentencing procedure, and Florida’s

decision in Hurst v. State. In the latter case, the Florida Supreme Court went far beyond this Court’s

criticism of Florida’s procedure that authorized the sentencing judge, as opposed to the jury, to

make critical factual findings necessary to imposing a death sentence under Florida law. The

Florida Supreme Court’s ruling in Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.

Ct. 2161 (2017), stands as a matter of state law, and fails to provide grounds for certiorari review.

Crain’s criticism aside, a Florida jury’s decision regarding a death sentence was, and still

remains, an advisory recommendation. See Dugger v. Adams, 489 U.S. 410 (1989). See also §

921.141(2)(c), Fla. Stat. (2017) (providing that “[i]f a unanimous jury determines that the

defendant should be sentenced to death, the jury’s recommendation to the court shall be a

sentence of death”) (emphasis added). What Crain seeks, even if he fails to say it precisely, is a

law, not federal constitutional law. Danforth v. Minnesota, 552 U.S. 264 (2008).

8

procedure where the jury itself imposes the sentence.

Consider the essence of Crain’s Caldwell claim, which effectively condemns any jury

instruction that grants the trial judge discretion to disregard the jury’s sentencing decision. Crain’s

version of a Caldwell violation would apply in any case where such discretion is permitted and

can only be resolved by requiring that a jury’s sentencing recommendation be binding on the trial

court, thus effectively shifting all responsibility for sentencing to the jury. There has never been a

federal mandate requiring jury sentencing, however, and certainly no decisions impose such a

requirement on the states. See Ring v. Arizona, 536 U.S. 584, 612 (2002) (Scalia, J., concurring)

(“[T]oday’s judgment has nothing to do with jury sentencing. What today’s decision says is that

the jury must find the existence of the fact that an aggravating factor existed.”) (emphasis in

original); Harris v. Alabama, 513 U.S. 504, 515 (1995) (holding that the Constitution does not

prohibit the trial judge from “impos[ing] a capital sentence”). This Court has never required jury

sentencing in a capital case, and such a holding would require a strained and tortuous reading of

the Constitution, which, after all, provides a right to trial by jury, not to sentencing by jury.

Nonetheless, Crain claims that the Florida Supreme Court’s decision violates the federal

constitution because it rejected his argument that the Eighth Amendment and this Court’s Caldwell

decision require what effectively amounts to jury sentencing. In Crain’s view, a mere

recommendation fails to meet constitutional muster where the trial judge has any discretion to

accept or reject it. Crain’s argument is fundamentally flawed. First, nothing in Caldwell mandates

relief merely because, after a trial in which the jury was properly instructed, the law has changed.

However, Crain conveniently omits any discussion of the fact that he failed to preserve his present

claim by contemporaneous objection at trial. Even if preserved, however, this Court has made clear

that Caldwell violations occur only when remarks to the jury improperly describe the role assigned

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to the jury by local law and does so in a way that undermines the jury’s sense of responsibility.

See Romano v. Oklahoma, 512 U.S. 1, 9 (1994). Therefore, the Florida Supreme Court’s decision

is not in conflict with this Court’s Caldwell decision; rather, it is in conformity with it.

As already noted, Crain’s jury was properly instructed. Additionally, this Court has never

held (as the Florida Supreme Court did in Hurst v. State) that the constitution requires a jury to

determine the relative weight of aggravating circumstances and mitigating factors, let alone that it

must do so unanimously. This requirement is not mandated by federal law, but was imposed by

the Florida Supreme Court, and his argument erroneously conflates what the state court requires

with this Court’s ruling in Hurst v. Florida. Significantly, this Court has expressly stated that such

findings by a jury are not necessary. See Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (noting, “the

ultimate question whether mitigating circumstances outweigh aggravating circumstances is mostly

a question of mercy . . .”).’ Similarly, this Court has stated that jury sentencing is not a prerequisite

to the constitutionality of a death sentence. See Proffitt v. Florida, 428 U.S. 242, 252 (1976) (this

Court “has never suggested that jury sentencing is constitutionally required.”). Finally, this Court

has expressly found the type of error Crain claims to be structural is, instead, subject to harmless

error analysis. Neder v. United States, 527 U.S. 1, 18-19 (1999) (concluding that the lack of a jury

T State v. Mason, 153 Ohio St.3d 476, 483, 485 (Oh. 2018) (“Nearly every court that has considered

the issue has held that the Sixth Amendment is applicable to only the fact-bound eligibility decision

concerning an offender's guilt of the principal offense and any aggravating circumstances” and

that “weighing is not a factfinding process subject to the Sixth Amendment.”) (string citations

omitted); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007) (“As other courts have

recognized, the requisite weighing constitutes a process, not a fact to be found.”); United States v.

Purkey, 428 F.3d 738, 750 (8th Cir. 2005) (characterizing the weighing process as “the lens

through which the jury must focus the facts that it has found” to reach its individualized

determination); State v. Gales, 658 N.W.2d 604, 628-29 (Neb. 2003) (“[W]e do not read either

Apprendi or Ring to require that the determination of mitigating circumstances, the balancing

function, or proportionality review be undertaken by a jury”).

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determination on an element of the offense is subject to harmless error analysis.)

The Florida Supreme Court’s decision does not conflict with Caldwell.

This Court’s decision in Caldwell is straightforward. A capital penalty phase jury should

not be misled regarding the role it plays in the sentencing process, and the jury’s responsibility in

determining an appropriate sentence should not be diminished. A Caldwell error, therefore, has

two interrelated components. First, a jury must be misled by jury instructions, prosecutor

argument, or judicial comments. Second, they must be misled in a way that diminished their role

in the process. Examination of what took place in Crain’s penalty phase demonstrates that no

Caldwell violation occurred.

As the state postconviction court found, Crain’s jury was properly instructed regarding its

role in the sentencing process according to contemporaneous state law. Interestingly, Crain does

not contest the State’s position in this regard. Instead, Crain argues that the Florida Supreme Court

incorrectly evaluated whether the Hurst error in his case was harmless because the “advisory nature

of the panel’s role carries less weight than a binding verdict.” (Petitioner’s Brief, p. 13) However,

Crain fails to recognize that Caldwell focuses on the legal accuracy of the jury instructions and the

effect any erroneous information may have had on its sense of responsibility. A Caldwell error

does not arise out of what an appellate court does or does not do.

Crain correctly notes that his jury was told that their recommendation was advisory and

that the court was responsible for sentencing. That was true then and, with regard to a death

recommendation, true now.® Still, Florida juries are hardly led to believe that their role in the

® Under Florida’s new statute, only life recommendations can be characterized as “binding.” §

921.141(2)(c), Fla. Stat. (2017). Even under the previous versions of the statute, a jury’s finding

of no aggravating factors was, for all practical purposes, binding. Evans v. Sec’y, Fla. Dept. Corr.,

699 F.3d 1249, 1256 (11th Cir. 2012) (noting the Florida Supreme Court’s “stringent application”

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proceedings is insignificant — even post-Ring, pre-Hurst juries. See Darden v. Wainwright, 477

U.S. 168, 183 n. 15 (1986) (“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.”).

Crain asserts, in a wholly conclusory manner, that “{t]he jury’s belief that it was not

ultimately responsible for Petitioner’s death sentence is a violation of the principles snunnciated

in Caldwell”. (Petitioner’s Brief, p. 10) However, Crain’s jury was informed of their grave

responsibility: Crain’s penalty phase jury was instructed that “[y]our advisory sentence is entitled

by law and will be given great weight by this court in determining the sentence to impose in this

case. It is only under rare circumstances that this court could impose a sentence other than what

you recommend.” (Respondent’s Appendix A, p. 3661). And, to reinforce the significance of the

jury’s undertaking, Crain’s jury was told that “[t]he fact that the determination of whether you

recommend a sentence of death or a sentence of life imprisonment in this case can be reached by

a single ballot should not influence you to act hastily or without due regard to the... gravity of

these proceedings. Before you ballot, you should carefully weigh, sift and consider the evidence,

and all of it, realizing that a human life is at stake and bring to bear your best judgment in reaching

your advisory sentence.” (Respondent’s Appendix A, p. 3666).

Because Crain’s jury was properly instructed, and nothing was said to diminish the gravity

of the task they were undertaking, there is no Caldwell error. As such, there is no basis for this

Court to exercise its certiorari jurisdiction because the Florida Supreme Court is not in conflict

with any decision of this Court and the state court’s decision does not present a question of

of the Tedder v. State, 322 So. 2d 908 (Fla. 1975) standard under which the last override of a life

recommendation affirmed on appeal was in 1994),

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important, unsettled federal law.

The Florida Supreme Court’s decision does not conflict with that of any federal appellate

court or state supreme court.

The Eleventh Circuit has consistently rejected Caldwell challenges to Florida’s jury

instructions in capital cases in the years since Romano. As the Eleventh Circuit has explained, the

infirmity identified in Caldwell is “simply absent” in a case where “the jury was not affirmatively

misled regarding its role in the sentencing process.” Davis v. Singletary, 119 F.3d 1471, 1481-82

(11th Cir. 1997) see also Johnston v. Singletary, 162 F.3d 630, 642-44 (11th Cir. 1998); Belcher

v. Sec'y, Fla. Dept. of Corr., 427 Fed. Appx. 692, 695 (11th Cir. 2011).

Other federal circuit courts have also held that the use of the words “advisory” or

“recommendation” does not violate Caldwell when it accurately reflects state law. Lorraine v.

Coyle, 291 F.3d 416, 446 (6th Cir. 2002); Bowling v. Parker, 344 F.3d 487, 514-15 (6th Cir. 2003);

Fleenor v. Anderson, 171 F.3d 1096, 1098-99 (7th Cir. 1999); Wilson v. Sirmons, 536 F.3d 1064,

1121 (10th Cir. 2008).

Crain cites to no federal circuit court case or state supreme court case holding to the

contrary. There is no conflict between the Florida Supreme Court’s decision and that of any federal

circuit court of appeals or that of any state supreme court. Therefore, this Court should deny review

of this issue.

The Florida Supreme Court properly found that the error in Crain’s case was harmless

beyond a reasonable doubt. This state-law finding neither contravenes this Court’s precedent, nor

violates federal law. This case presents no important, unsettled, or conflicting application of

constitutional law. Thus, certiorari review should be denied.

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CONCLUSION

Based on the foregoing, Respondent respectfully requests that this Court DENY the

petition for writ of certiorari. ‘“

CAROLYN SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar No. 15854

*Counsel of Record

LISA MARTIN

Assistant Attorney General

Florida Bar No. 72138

Office of the Attorney General

3507 East Frontage Road

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5500

carolyn.snurkowski@myfloridalegal.com

lisa.martin@myfloridalegal.com

capapp@myfloridalegal.com

COUNSEL FOR RESPONDENT

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