Petition for Writ of Certiorari — Stephen Todd Booker, Petitioner v. Florida

Supreme Court briefNov 27, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

STEPHEN TODD BOOKER,

Petitioner,

STATE OF FLORIDA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITIONER’S APPENDIX

______________________________________________________________

THIS IS A CAPITAL CASE

TERRI BACKHUS

Counsel of Record

SEAN T. GUNN

KELSEY PEREGOY

Office of the Federal Public Defender

Northern District of Florida

Capital Habeas Unit

227 North Bronough St., Suite 4200

Tallahassee, Florida 32301

(850) 942-8818

terri_backhus@fd.org

sean_gunn@fd.org

kelsey_peregoy@fd.org

INDEX TO APPENDIX

Exhibit 1 — Florida Supreme Court Opinion Below (Aug. 30, 2018) ........................ 1a

Exhibit 2 — Florida Supreme Court Order to Show Cause (May 7, 2018) ............... 3a

Exhibit 3 — Petitioner/Appellant’s Response to Florida Supreme Court’s

Order to Show Cause (May 29, 2018)..................................................... 4a

Exhibit 4 — Respondent/State’s Response to Florida Supreme Court’s

Order to Show Cause (June 8, 2018) .................................................... 27a

Exhibit 5 — Petitioner/Appellant’s Reply in Support of Response to Florida

Supreme Court’s Order to Show Cause (June 12, 2018) ..................... 45a

Exhibit 6 — Alachua County Circuit Court Order Denying Successive Motion for

Postconviction Relief (March 8, 2018) .................................................. 58a

Filing # 77234497 E-Filed 08/30/2018 11:07:59 AM

Supreme Court of Florida

____________

No. SC18-541

____________

STEPHEN TODD BOOKER,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

August 30, 2018

PER CURIAM.

We have for review Stephen Todd Booker’s appeal of the circuit court’s

order denying Booker’s motion filed pursuant to Florida Rule of Criminal

Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Booker’s motion sought relief pursuant to the United States Supreme

Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on

remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.

2161 (2017). Booker responded to this Court’s order to show cause arguing why

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

should not be dispositive in this case.

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After reviewing Booker’s response to the order to show cause, as well as the

State’s arguments in reply, we conclude that our prior denial of Booker’s petition

for a writ of habeas corpus raising similar claims is a procedural bar to the claims

at issue in this appeal. All of Booker’s claims depend upon the retroactive

application of Hurst, to which we have held he is not entitled. See Booker v.

Jones, 235 So. 3d 298, 299 (Fla. 2018); Hitchcock, 226 So. 3d at 217.

Accordingly, we affirm the denial of Booker’s motion.

The Court having carefully considered all arguments raised by Booker, we

caution that any rehearing motion containing reargument will be stricken. It is so

ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ.,

concur.

CANADY, C.J., concurs in result.

An Appeal from the Circuit Court in and for Alachua County,

William Elbridge Davis, Judge - Case No. 011977CF002332AXXXXX

Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,

Northern District of Florida, Tallahassee, Florida, and Ann Finnell of Finnell,

McGuinness, Nezami & Andux, P.A., Jacksonville, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney

General, Tallahassee, Florida,

for Appellee

-2-

002a

Supreme Court of Florida

MONDAY, MAY 7, 2018

CASE NO.: SC18-541

Lower Tribunal No(s).:

011977CF002332AXXXXX

STEPHEN TODD BOOKER

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant shall show cause on or before Tuesday, May 29, 2018, why the

trial court’s order should not be affirmed in light of this Court’s decision in

Hitchcock v. State, SC17-445. The response shall be limited to no more than 20

pages. Appellee may file a reply on or before Wednesday, June 13, 2018, limited

to no more than 15 pages. Appellant may file a reply to the Appellee’s reply on or

before Monday, June 25, 2018, limited to no more than 10 pages.

Motions for extensions of time will not be considered unless due to a

medical emergency.

A True Copy

Test:

Served:

BILLY H. NOLAS

ANN E. FINNELL

LISA HOPKINS

003a

No. SC18-541

IN THE

Supreme Court of Florida

___________________________________________________________

STEPHEN TODD BOOKER,

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S RESPONSE TO

MAY 7, 2018 ORDER TO SHOW CAUSE

_____________________________________________________

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar. No.: 0270040

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301

billy_nolas@fd.org

(850) 942-8818

Florida Bar No.: 00806821

Counsel for Appellant

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TABLE OF CONTENTS

INTRODUCTION....................................................................................................1

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING .......................2

ARGUMENT ............................................................................................................3

Appellant’s death sentence violates Hurst, and the error is not “harmless”......3

II.

This Court’s “retroactivity cutoff” at Ring is unconstitutional and

should not be applied to Appellant’s post-Apprendi death sentence.................6

III.

This Court’s Ring-based retroactivity cutoff is unconstitutional as

applied to post-Apprendi death sentences because Apprendi was the

constitutional basis for both Ring and Hurst..........................................7

This Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition

of the death penalty.............................................................................10

This Court’s retroactivity cutoff violates the Fourteenth Amendment’s

guarantee of equal protection and due process.....................................13

Because the Hurst decisions announced substantive constitutional rules, the

Supremacy Clause of the United States Constitution requires state courts to

apply those rules retroactively to all cases on collateral review......................15

The Hurst decisions announced substantive rules that must be applied

retroactively to Appellant under the Supremacy Clause......................17

This Court has an obligation to address Appellant’s federal retroactivity

arguments............................................................................................20

CONCLUSION.......................................................................................................20

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INTRODUCTION

Appellant’s death sentence was imposed pursuant to a sentencing scheme that

was ruled unconstitutional in Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.

State, 202 So. 3d 40 (Fla. 2016). His sentence became “final” in 2001, after the

United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000).

A core issue in this case is whether this Court should apply its “retroactivity cutoff”

to deny Appellant Hurst relief on the ground that his sentence did not become final

at least one day after the 2002 decision in Ring v. Arizona, 536 U.S. 584 (2002),

even though the rule announced in Apprendi was the basis for both Ring and Hurst.

This Court has already applied Hurst retroactively as a matter of state law in

dozens of collateral-review cases where the defendant’s sentence became final after

Ring. But the Court has also created a state-law cutoff at the date Ring was

decided—June 24, 2002—to deny relief in dozens of other collateral-review cases.

There are 22 Florida cases without penalty-phase waivers and with non-unanimous

jury recommendations that became “final” during the two-year period between

Apprendi and Ring. This Court has never specifically addressed this “Apprendi gap”

in any case, not even in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla.

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Aug. 10, 2017). Nor has the Court directly addressed the constitutionality of denying

Hurst retroactivity as a matter of federal law, in Hitchcock or any other case. 1

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

This case presents an important issue of first impression: whether federal law

requires this Court to extend Hurst retroactivity to death sentences that became final

after Apprendi but before Ring, rather than cabining Hurst relief to post-Ring death

sentences. Appellant respectfully requests oral argument on this and related issues

pursuant to Fla. R. App. P. 9.320. Appellant also requests that the Court permit full

review in this case in accord with the normal, untruncated rules of appellate practice.

Depriving Appellant the opportunity for full briefing in this case would

constitute an arbitrary deprivation of the vested state right to a mandatory plenary

appeal in capital cases. See Doty v. State, 170 So. 3d 731, 733 (Fla. 2015) (“[T]his

Court has a mandatory obligation to review all death penalty cases to ensure that the

death sentence is imposed in accordance with constitutional and statutory

directives.”); see also Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Hicks

v. Oklahoma, 447 U.S. 343 (1980).

Relief should not be denied here in light of Hitchcock. Appellant notes that there

is a petition for a writ of certiorari pending in Hitchcock (No. 17-6180).

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ARGUMENT

Appellant’s death sentence violates Hurst, and the error is not “harmless”

Appellant was sentenced to death pursuant to an unconstitutional Florida

capital sentencing scheme. In Hurst v. Florida, the United States Supreme Court

held that Florida’s scheme violated the Sixth Amendment because it required the

judge, not the jury, to make the findings of fact required to impose the death penalty

under Florida law.

136 S. Ct. at 620-22.

Those findings included: (1) the

aggravating factors that were proven beyond a reasonable doubt; (2) whether those

aggravators were “sufficient” to justify the death penalty; and (3) whether those

aggravators outweighed the mitigation. Under Florida’s unconstitutional scheme,

an “advisory” jury rendered a generalized recommendation for life or death by a

majority vote, without specifying the factual basis for the recommendation, and then

the sentencing judge alone, notwithstanding the jury’s recommendation, conducted

the fact-finding. Id. at 622. In striking down that scheme, the Court held that the

jury, not the judge, must make the findings of fact required to impose death. Id.

On remand, this Court applied the holding of Hurst v. Florida, and further

held that the Eighth Amendment requires unanimous jury fact-finding as to each of

the required elements, and also a unanimous recommendation by the jury to impose

the death penalty. Hurst v. State, 202 So. 3d at 53-59. The Court also noted that

even if the jury unanimously finds that each of the required elements is satisfied,

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the jury is not required to recommend the death penalty and the judge is not required

to sentence the defendant to death. Id. at 57-58.

Appellant’s jury was never asked to make unanimous findings of fact as to

any of the required elements. Instead, after being instructed that its decision was

advisory, and that the ultimate responsibility for imposing a death sentence rested

with the judge, the jury rendered a non-unanimous, generalized recommendation

that the judge sentence Appellant to death. The record does not reveal whether

Appellant’s jurors unanimously agreed that any particular aggravating factor had

been proven beyond a reasonable doubt, or unanimously agreed that the aggravators

were sufficient for death, or unanimously agreed that the aggravators outweighed

the mitigation. But the record is clear that Appellant’s jurors were not unanimous

as to whether the death penalty should even be recommended to the court.

Appellant’s pre-Hurst jury recommended the death penalty by a vote of 8-4.

This Court’s precedent makes clear that Hurst errors are not harmless where the

defendant’s pre-Hurst jury recommended death by a non-unanimous vote. Dubose

v. State, 210 So. 3d 641, 657 (Fla. 2017) (“[I]n cases where the jury makes a nonunanimous recommendation of death, the Hurst error is not harmless.”). This Court

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has declined to apply the harmless error doctrine in every case where the pre-Hurst

jury’s recommendation was not unanimous. 2

To the extent any of the aggravators applied to Appellant were based on prior

convictions, the judge’s finding of such aggravators does not render the Hurst error

harmless. Even if the jury would have found the same aggravators, Florida law does

not authorize death sentences based on the mere existence of an aggravator. As

noted above, Florida law requires fact-finding as to both the existence of aggravators

and the “sufficiency” of the particular aggravators to warrant imposition of the death

penalty. There is no way to conclude whether the jury would have made the same

sufficiency determination as the judge. That is why this Court has consistently

rejected the idea that a judge’s finding of prior-conviction aggravators is relevant in

the harmless-error analysis of Hurst claims, and has granted Hurst relief despite the

presence of such aggravators. See, e.g., Franklin v. State, 209 So. 3d 1241, 1248

(Fla. 2016) (rejecting “the State’s contention that Franklin’s prior convictions for

other violent felonies insulate Franklin’s death sentence from Ring and Hurst”).3

See, e.g., Bailey v. Jones, 225 So. 3d 776, 777 (Fla. 2017) (11-1 jury vote); Hertz

v. Jones, 218 So. 3d 428, 431-32 (Fla. 2017) (10-2 jury vote); Hernandez v. Jones,

217 So. 3d 1032, 1033 (Fla. 2017) (11-1 jury vote); Card v. Jones, 219 So. 3d 47,

48 (Fla. 2017) (11-1 jury vote); McMillian v. State, 214 So. 3d 1274, 1289 (Fla.

2017) (10-2 jury vote).

Moreover, although this Court’s state-law precedent is sufficient to resolve any

harmless-error inquiry in this case, the United States Constitution would also

prohibit a denial of relief based on the harmless error doctrine because any attempt

to discern what a jury in a constitutional proceeding would have decided—based

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II.

This Court’s “retroactivity cutoff” at Ring is unconstitutional and should

not be applied to Appellant’s post-Apprendi death sentence

Beginning with Mosley v. State, 209 So. 3d 1248 (Fla. 2016), this Court has

applied Hurst retroactively as a matter of state law and granted relief in dozens of

collateral-review cases where the defendant’s sentence became final after Ring. But

the Court has created a state-law cutoff at the date Ring was decided—June 24,

2002—to deny relief in dozens of other collateral-review cases.

Appellant’s death sentence became final during the two-year period between

Apprendi and Ring. The Court has never specifically addressed this “Apprendi gap”

in its state-law retroactivity precedent, not even in Hitchcock v. State, No. SC17445, 2017 WL 3431500 (Fla. Aug. 10, 2017). Moreover, the Court has not addressed

the denial of Hurst retroactivity to post-Apprendi death sentences (or any pre-Ring

sentences) as a matter of federal law.

The Ring-based retroactivity cutoff violates the United States Constitution and

should not be applied to deny Appellant the same Hurst relief being granted in scores

of materially indistinguishable collateral-review cases, particularly given that his

sentence became final after Apprendi, which was the constitutional basis for both

solely on the pre-Hurst jury’s advisory recommendation—would violate the Sixth

and Eighth Amendments. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 328-29

(1985) (explaining that a jury’s belief about its role in death sentencing can

materially affect its decision-making); Sullivan v. Louisiana, 508 U.S. 275, 279-80

(1993) (foreclosing application of the harmless-error doctrine to deny relief based

on jury decisions not comporting with Sixth Amendment requirements).

011a

Ring and Hurst. Denying Appellant Hurst retroactivity because his death sentence

became final after Apprendi in 2001, while affording retroactivity to similarlysituated defendants who were sentenced (or resentenced) between 2002 and 2016,

would violate the Eighth and Fourteenth Amendments’ prohibition against arbitrary

and capricious imposition of the death penalty, as well as the Fourteenth

Amendment’s guarantee of equal protection and due process.

This Court’s Ring-based retroactivity cutoff is unconstitutional

as applied to post-Apprendi death sentences because Apprendi was

the constitutional basis for both Ring and Hurst

This Court’s Ring-based retroactivity cutoff is unconstitutional as applied to

Appellant’s post-Apprendi death sentence because the rule announced in Apprendi

was the constitutional basis for both Ring and Hurst. It was Apprendi, not Ring,

which first explained that the Sixth Amendment requires that any finding that

increases a defendant’s maximum sentence is an element of the offense that must be

found by a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at 490. Indeed,

as the United States Supreme Court stated in Hurst, Ring applied Apprendi’s analysis

to conclude that Mr. Ring’s death sentence violated the Sixth Amendment. See 136

S. Ct. at 621. Just as Ring applied Apprendi’s principles to Arizona’s capital

sentencing scheme, Hurst applied Apprendi’s principles to Florida’s scheme.

In Hurst, the Court repeatedly stated that Florida’s scheme was incompatible

with “Apprendi’s rule,” of which Ring was an application. 136 S. Ct. at 621. In

012a

overruling its pre-Apprendi precedent approving of Florida’s scheme—Spaziano v.

Florida, 468 U.S. 447 (1984), and Hildwin v. Florida, 490 U.S. 638 (1989)—Hurst

stated that those decisions were “irreconcilable with Apprendi,” and drew an analogy

to Ring’s overruling of pre-Apprendi precedent approving of Arizona’s scheme—

Walton v. Arizona, 497 U.S. 639 (1990)—which also could not “survive the

reasoning of Apprendi.” Hurst, 136 S. Ct. at 623. Thus, both Ring and Hurst make

clear that their operative constitutional holdings derived directly from Apprendi.

This Court has consistently understood that the Sixth Amendment rule applied

in Ring and Hurst derived from Apprendi. In Mosley, this Court observed that Ring

was an application of Apprendi. See 209 So. 3d at 1279-80 (explaining that in Ring

the Court “applied its reasoning from Apprendi.”). This was not a new observation;

over many years, this Court acknowledged that Ring merely applied the Apprendi

rule, and that Ring broke no new ground of its own. See, e.g., Johnson v. State, 904

So. 2d 400, 405-06 (Fla. 2005) (explaining that “Ring was not a sudden or

unforeseeable development in constitutional law; rather, it was an evolutionary

refinement in capital jurisprudence,” in that “[t]he Supreme Court merely applied

the reasoning of another case, Apprendi.”) (internal quotation omitted).

Notably, in the period between Apprendi and Ring, this Court rejected

challenges to Florida’s capital sentencing scheme under Apprendi not because the

Court did not yet believe Apprendi was applicable in the death penalty context, but

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instead, because the United States Supreme Court had upheld Florida’s death penalty

against constitutional challenge notwithstanding Apprendi. See, e.g., Mills v. Moore,

786 So. 2d 532 (Fla. 2001). This Court rejected challenges to Florida’s deathsentencing scheme on the same basis after Apprendi as it did after Ring: the United

States Supreme Court had approved of Florida’s scheme. Compare Mills, 786 So.

2d at 532 (holding that Apprendi did not apply because Florida’s scheme had been

upheld by the United States Supreme Court), with Bottoson v. Moore, 833 So. 2d

693 (Fla. 2002) (holding that Ring did not apply because Florida’s scheme had

previously been upheld by the United States Supreme Court and citing Mills), and

King v. Moore, 831 So. 2d 143 (Fla. 2002) (same).

In light of Apprendi’s fundamental importance to both Ring and Hurst, it

would violate the federal constitutional prohibition against the arbitrary and

capricious imposition of the death penalty, as well as the constitutional guarantees

of equal protection and due process, to extend Hurst retroactivity to 14 years of postRing death sentences while denying Hurst retroactivity to the small number of

individuals like Appellant whose death sentences were finalized in the two years

between Apprendi and Ring. Moreover, as discussed below, federal law prohibits a

retroactivity “cutoff” at Ring, and requires that the Hurst decisions apply

retroactively to all cases on collateral review, including post-Apprendi cases.

014a

This Court’s retroactivity cutoff violates the Eighth and

Fourteenth Amendments’ prohibition against arbitrary and

capricious imposition of the death penalty

This Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition of the death

penalty. The death penalty cannot “be imposed under sentencing procedures that

create[] a substantial risk that it would be inflicted in an arbitrary or capricious

manner.” Gregg v. Georgia, 428 U.S. 153, 188 (1976); see also Furman v. Georgia,

408 U.S. 238, 310 (1972) (“[T]he Eighth and Fourteenth Amendments cannot

tolerate the infliction of a sentence of death under legal systems that permit this

unique penalty to be so wantonly and so freakishly imposed.”) (Stewart, J.,

concurring). In other words, the death penalty cannot be imposed in a way that is

comparable to being “struck by lightning.” Furman, 408 U.S. at 308.

Experience has already shown the arbitrary results inherent in this Court’s

application of the Ring-based retroactivity cutoff. The date of a particular death

sentence’s finality on direct appeal in relation to the June 24, 2002 decision in

Ring—and thus whether this Court has held Hurst retroactive based on its brightline cutoff—has at times depended on whether there were delays in transmitting the

record on appeal to this Court for the direct appeal; whether direct appeal counsel

sought extensions of time to file a brief; whether a case overlapped with this Court’s

summer recess; how long the assigned Justice of this Court took to submit the

015a

opinion for release; whether an extension was sought for a rehearing motion and

whether such a motion was filed; whether there was a scrivener’s error necessitating

issuance of a corrected opinion; whether counsel chose to file a petition for a writ of

certiorari in the United States Supreme Court or sought an extension to file such a

petition; and how long a certiorari petition remained pending in the Supreme Court.

In one striking example, this Court affirmed Gary Bowles’s and James Card’s

unrelated death sentences in separate opinions that were issued on the same day,

October 11, 2001. Bowles v. State, 804 So. 2d 1173 (Fla. 2001); Card v. State, 803

So. 2d 613 (Fla. 2001). Both inmates petitioned for a writ of certiorari in the United

States Supreme Court. Mr. Card’s sentence became final four (4) days after Ring

was decided—on June 28, 2002—when his certiorari petition was denied. Card v.

Florida, 536 U.S. 963 (2002). Mr. Bowles’s sentence, however, became final seven

(7) days before Ring was decided—on June 17, 2002—when his certiorari petition

was denied. Bowles v. Florida, 536 U.S. 930 (2002). This Court recently granted

Hurst relief to Mr. Card, ruling that Hurst was retroactive because his sentence

became final after the Ring cutoff. See Card, 219 So. 3d at 47. Mr. Bowles, on the

other hand, whose case was decided on direct appeal on the same day as Mr. Card’s,

and who filed his certiorari petition in the Supreme Court after Mr. Card, now finds

himself on the pre-Ring side of this Court’s current retroactivity cutoff.

016a

Other arbitrary factors affecting whether a defendant receives Hurst relief

under this Court’s date-of-Ring-based retroactivity approach include whether a

resentencing was granted. Under the Court’s current approach, “older” cases dating

back to the 1980s with a post-Ring resentencing are subject to Hurst, while other

less “old” cases are not. See, e.g., Johnson v. State, 205 So. 3d 1285, 1285 (granting

Hurst relief to a defendant whose crime occurred in 1981 but was granted relief on

a third successive post-conviction motion in 2010, years after the Ring decision);

Card, 219 So. 3d at 47 (granting Hurst relief to a defendant whose crime occurred

in 1981 but was afforded relief on a second successive post-conviction motion in

2002—just four days after Ring was decided); cf. Calloway v. State, 210 So. 3d 1160

(Fla. 2017) (granting Hurst relief in a case where the crime occurred in the late

1990s, but interlocutory appeals resulted in a 10-year delay before the trial). Under

this Court’s approach, a defendant who was originally sentenced to death before

Appellant, but who was later resentenced to death after Ring, would receive Hurst

relief and Appellant would not.

Moreover, under the Court’s current rule, some litigants whose Ring claims

were wrongly rejected on the merits during the 2002-2016 period will be denied the

benefit of Hurst because the Court addressed the issue in a post-conviction rather

than a direct appeal posture. See, e.g., Miller v. State, 926 So. 2d 1243, 1259 (Fla.

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2006); Nixon v. State, 932 So. 2d 1009, 1024 (Fla. 2006); Bates v. State, 3 So. 3d

1091, 1106 n.14 (Fla. 2009); Bradley v. State, 33 So. 3d 664, 670 n.6 (Fla. 2010).4

This Court’s retroactivity cutoff violates the Fourteenth

Amendment’s guarantee of equal protection and due process

This Court’s retroactivity cutoff violates the Fourteenth Amendment’s

guarantee of equal protection and due process. As an equal protection matter, the

cutoff treats death-sentenced prisoners in the same posture—on collateral review—

differently without “some ground of difference that rationally explains the different

treatment.” Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). When two classes are

created to receive different treatment by a state actor like this Court, the question is

whether there is a rational basis for the different treatment. Id.; see also McLaughlin

v. Florida, 379 U.S. 184, 191 (1964). The Fourteenth Amendment requires that

distinctions in state criminal laws that impinge upon fundamental rights be strictly

scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Capital

Even if this Court were to maintain its unconstitutional retroactivity “cutoff” at

Ring, individuals who preserved the substance of the Hurst decisions before Hurst,

such as Appellant, should receive the retroactive benefit of Hurst under this Court’s

“fundamental fairness” doctrine, which the Court has previously applied in other

contexts, see, e.g., James v. State, 615 So. 2d 668, 669 (Fla. 1993), and which the

Court has applied once in the Hurst context, see Mosley, 209 So. 3d at 1274, but

inexplicably never addressed since. Justice Lewis recently endorsed this

“preservation” approach in Hitchcock. See 2017 WL 3431500, at *2 (Lewis, J.,

concurring) (stating that the Court should “simply entertain Hurst claims for those

defendants who properly presented and preserved the substance of the issue, even

before Ring arrived.”). Appellant urges that the Court allow him to brief this aspect

of his case in an untruncated fashion.

018a

defendants have a fundamental right to a reliable determination of their sentences.

See Lockett v. Ohio, 438 U.S. 586, 604 (1978). When a state draws a line between

defendants who will receive the benefit of the rules designed to enhance the quality

of decision-making by a penalty-phase jury, and those who will not, the state’s

justification for that line must satisfy strict scrutiny. Far from meeting strict scrutiny,

this Court’s Hurst retroactivity cutoff lacks even a rational connection to any

legitimate state interest. See Dep’t of Agric. v. Moreno, 413 U.S. 528, 533 (1973).

As a due process matter, denying Hurst retroactivity to “pre-Ring” defendants

like Appellant violates the Fourteenth Amendment because once a state requires

certain sentencing procedures, it creates Fourteenth Amendment life and liberty

interests in those procedures. See, e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985)

(due process interest in state-created right to direct appeal); Hicks, 447 U.S. at 346

(liberty interest in state-created sentencing procedures); Ford v. Wainwright, 477

U.S. 399, 427-31 (1986) (O’Connor, J., concurring) (liberty interest in meaningful

state competency proceedings); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,

288-89 (1998) (O’Connor, J., with Souter, Ginsburg, & Breyer, JJ., concurring) (life

interest in state-created right to capital clemency proceedings).

Although the right to the particular procedure is established by state law, the

violation of the life and liberty interest it creates is governed by federal constitutional

law. See Hicks, 447 U.S. at 347; Ford, 477 U.S. at 399, 428-29; Evitts, 469 U.S. at

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393 (state procedures employed “as ‘an integral part of the . . . system for finally

adjudicating the guilt or innocence of a defendant’” must comport with due process).

Defendants have “a substantial and legitimate expectation that [they] will be

deprived of [their] liberty only to the extent determined by the jury in the exercise

of its discretion . . . and that liberty interest is one that the Fourteenth Amendment

preserves against arbitrary deprivation by the State.” Hicks, 447 U.S. at 347. Courts

have found in a variety of contexts that state-created death penalty procedures vest

in a capital defendant life and liberty interests that are protected by due process. See.

e.g., Ohio Adult Parole Auth., 523 U.S. at 272; Ford, 477 U.S. at 427-31. In Hicks,

the Supreme Court held that the trial court’s failure to instruct the jury that it had the

option to impose an alternative sentence violated the state-created liberty interest

(and federal due process) in having the jury select his sentence from the full range

of alternatives available under state law. 477 U.S. at 343.

III.

Because the Hurst decisions announced substantive constitutional rules,

the Supremacy Clause of the United States Constitution requires state

courts to apply those rules retroactively to all cases on collateral review

The United States Supreme Court held in Montgomery v. Louisiana, 136 S.

Ct. 718, 731-32 (2016), that the Supremacy Clause of the Constitution requires state

courts to apply “substantive” constitutional rules retroactively as a matter of federal

constitutional law, notwithstanding any separate state-law retroactivity analysis. Id.

at 728-29 (“[W]hen a new substantive rule of constitutional law controls the outcome

020a

of a case, the Constitution requires state collateral review courts to give retroactive

effect to that rule.”) (emphasis added). Thus, Montgomery held, “[w]here state

collateral review proceedings permit prisoners to challenge the lawfulness of their

confinement, States cannot refuse to give retroactive effect to a substantive

constitutional right that determines the outcome of that challenge.” Id. at 731-32.

Importantly, Montgomery found the rule announced in Miller v. Alabama, 567

U.S. 460 (2012) (holding that imposition of mandatory sentences of life without

parole on juveniles violates the Eighth Amendment), substantive even though the

Miller rule had “a procedural component.” Id. at 734. The Montgomery Court

explained that “[t]here are instances in which a substantive change in the law must

be attended by a procedure that enables a prisoner to show that he falls within a

category of persons whom the law may no longer punish,” id. at 735, and that the

necessary procedures do not “transform substantive rules into procedural ones,” id.

The Hurst decisions announced substantive rules that must be

applied retroactively to Appellant under the Supremacy Clause

The Hurst decisions announced substantive rules that this Court must apply

retroactively to Appellant under the Supremacy Clause. First, a Sixth Amendment

rule was established requiring that a jury find as fact beyond a reasonable doubt: (1)

each aggravating circumstance; (2) that those aggravators together are “sufficient”

to justify imposition of the death penalty; and (3) that those aggravators together

outweigh the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Such

021a

findings are manifestly substantive. See Montgomery, 136 S. Ct. at 734 (holding

that the decision whether a juvenile is a person “whose crimes reflect the transient

immaturity of youth” is a substantive, not procedural, rule). As in Montgomery,

these requirements amounted to an “instance[] in which a substantive change in the

law must be attended by a procedure that enables a prisoner to show that he falls

within a category of persons whom the law may no longer punish.” Id. at 735.

Second, an Eighth Amendment rule was established that requires those three

beyond-a-reasonable-doubt findings to be made unanimously by the jury. The

substantive nature of the unanimity rule is apparent from this Court’s explanation in

Hurst v. State that unanimity (1) is necessary to ensure compliance with the

constitutional requirement that the death penalty be applied narrowly to the worst

offenders, and (2) ensures that the sentencing determination “expresses the values

of the community as they currently relate to the imposition of the death penalty.”

202 So. 3d at 60-61. The function of the unanimity rule is to ensure that Florida’s

death-sentencing scheme complies with the Eighth Amendment and to “achieve the

important goal of bringing [Florida’s] capital sentencing laws into harmony with the

direction of the society reflected in [the majority of death penalty] states and with

federal law.” Id. The rule is therefore substantive as a matter of federal retroactivity

law. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“[T]his Court has

determined whether a new rule is substantive or procedural by considering the

022a

function of the rule”). This is true even though the rule’s subject concerns the

method by which a jury makes its decision. See Montgomery, 136 S. Ct. at 735

(noting that state’s ability to determine method of enforcing constitutional rule does

not convert rule from substantive to procedural).

The Sixth Amendment requirement that each element of a Florida death

sentence must be found beyond a reasonable doubt, and the Eighth Amendment

requirement of jury unanimity in fact-finding, are substantive constitutional rules as

a matter of federal law because they place certain murders “beyond the State’s power

to punish,” Welch, 136 S. Ct. at 1265, with a sentence of death. Following the Hurst

decisions, “[e]ven the use of impeccable factfinding procedures could not legitimate

a sentence based on” the judge-sentencing scheme. Id. The “unanimous finding of

aggravating factors and [of] the facts that are sufficient to impose death, as well as

the unanimous finding that they outweigh the mitigating circumstances, all serve to

help narrow the class of murderers subject to capital punishment,” Hurst, 202 So.

3d at 60 (emphasis added), i.e., the new law by necessity places certain individuals

beyond the state’s power to impose a death sentence. Thus, a substantive rule, rather

than a procedural rule, resulted from the Hurst decisions. See Welch, 136 S. Ct. at

1264-65 (a substantive rule “alters . . . the class of persons that the law punishes.”).

Hurst retroactivity is not undermined by Summerlin, 542 U.S. at 364, where

the United States Supreme Court held that Ring was not retroactive in a federal

023a

habeas case. Summerlin did not review a statute, like Florida’s, that required the

jury not only to conduct the fact-finding regarding the aggravators, but also as to

whether the aggravators were sufficient to impose death and whether death was an

appropriate sentence. Summerlin acknowledged that if the Court itself “[made] a

certain fact essential to the death penalty . . . [the change] would be substantive.”

542 U.S. at 354. Such a change occurred in Hurst where, for the first time, the Court

found it unconstitutional for a judge alone to find that “sufficient aggravating factors

exist and [t]hat there are insufficient mitigating circumstances to outweigh the

aggravating circumstances.” 136 S. Ct. at 622 (internal citation omitted).

Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard in addition to the jury trial right, and the United States Supreme Court

has always regarded proof-beyond-a-reasonable-doubt decisions as substantive.

See, e.g., Ivan V. v. City of New York, 407 U.S. 203, 205 (1972); Powell v. Delaware,

153 A.3d 69 (Del. 2016) (holding Hurst retroactive under Delaware’s state Teaguelike retroactivity doctrine and distinguishing Summerlin on the ground that

Summerlin “only addressed the misallocation of fact-finding responsibility (judge

versus jury) and not . . . the applicable burden of proof.”). 5

Lambrix v. Sec’y, No. 17-14413, 2017 WL 4416205 (11th Cir. Oct. 5, 2017), does

not negate Appellant’s arguments. First, Lambrix was decided in the context of the

current federal habeas statute, which dramatically curtails review: “A state court’s

decision rises to the level of an unreasonable application of federal law only where

the ruling is objectively unreasonable, not merely wrong; even clear error will not

024a

This Court has an obligation to address Appellant’s federal

retroactivity arguments

Because this Court is bound by the federal constitution, it has the obligation

to address Appellant’s federal retroactivity arguments. See Testa v. Katt, 330 U.S.

386, 392-93 (1947) (state courts must entertain federal claims in the absence of a

“valid excuse”); Martin v. Hunter’s Lessee, 14 U.S. 304, 340-42 (1816). Addressing

those claims meaningfully requires full briefing and oral argument. The federal

constitutional issues were raised in Hitchcock, but this Court ignored them.

Dismissing this appeal based on Hitchcock would compound that error.

CONCLUSION

This Court should hold that the Hurst decisions must be applied retroactively

to Appellant’s post-Apprendi death sentence, vacate Appellant’s death sentence, and

remand to the circuit court for a new penalty phase or imposition of a life sentence.

suffice.” Id. at *8 (internal quotation marks omitted). In contrast, this Court’s

application of federal constitutional protections is not circumscribed, as this Court

noted in the Hurst context in Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016) (“[W]e

hold that the Supreme Court’s decision in Hurst v. Florida requires that all critical

findings necessary before the trial court may consider imposing a sentence of death

must be found unanimously by the jury . . . . We also hold . . . under the Eighth

Amendment to the United States Constitution, that in order for the trial court to

impose a sentence of death, the jury’s recommended sentence must be unanimous”).

Second, Lambrix dealt with an idiosyncratic issue—the “retroactivity” of Florida’s

new capital sentencing statute. Lambrix did not argue, as Appellant does here, for

the retroactivity of the constitutional rules arising from the Hurst decisions. Third,

the Eleventh Circuit did not address the specific arguments about federal

retroactivity that are raised here. Fourth, almost needless to say, an Eleventh Circuit

panel decision has no precedential value in this forum.

025a

Respectfully submitted,

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar. No.: 0270040

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301

billy_nolas@fd.org

(850) 942-8818

Florida Bar No.: 00806821

Counsel for Appellant

CERTIFICATE OF SERVICE

I hereby certify that on May 28, 2018, the foregoing was electronically served

via

the

e-portal

Assistant

Attorney

General

Lisa

Hopkins

lisa.hopkins@myfloridalegal.com and capapp@myfloridalegal.com.

/s/ Billy H. Nolas

Billy H. Nolas

026a

Filing # 73316022 E-Filed 06/08/2018 03:43:58 PM

IN THE SUPREME COURT OF FLORIDA

STEPHEN TODD BOOKER,

Appellant,

CASE NO. SC18-541

L.T. NO. 1991-CF-008144

DEATH PENALTY CASE

RECEIVED, 06/08/2018 03:48:26 PM, Clerk, Supreme Court

STATE OF FLORIDA,

Appellee.

____________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE FOURTH JUDICIAL CIRCUIT,

IN AND FOR DUVAL COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

PAMELA JO BONDI

ATTORNEY GENERAL

LISA A. HOPKINS

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 99459

The Capitol, PL-01

Tallahassee, Florida 32311

Telephone: (850) 414-3300

Facsimile: (850) 414-0997

Lisa.Hopkins@myfloridalegal.com

Counsel for Appellee

027a

TABLE OF CONTENTS

TABLE OF CONTENTS............................................. ii

TABLE OF AUTHORITIES......................................... iii

STATEMENT OF THE CASE AND FACTS................................ 1

OBJECTION TO ORAL ARGUMENT..................................... 3

SUMMARY OF THE ARGUMENT........................................ 4

ARGUMENT....................................................... 4

CONCLUSION.................................................... 11

CERTIFICATE OF SERVICE........................................ 12

CERTIFICATE OF FONT COMPLIANCE................................ 12

028a

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000).................... 9

Archer v. Florida, 519 U.S. 876 (1996)......................... 9

Archer v. Jones, 2017 WL 1034409 (Fla. Mar. 17, 2017).......... 9

Asay v. Florida, 502 U.S. 895 (1991)........................... 9

Asay v. State, 224 So. 3d 695 (Fla. 2017)..................... 11

Asay v. State, 210 So. 3d 1 (Fla. 2016)..................... 3, 5

Bogle v. Florida, 516 U.S. 978 (1995)......................... 10

Bogle v. State, 213 So. 3d 833 (Fla. 2017).................... 10

Booker v. Dugger, 922 F.2d 633 (11th Cir. 1991)................ 2

Booker v. Florida, 454 U.S. 957, 102 S.Ct. 493 (1981).......... 1

Booker v. Florida, 532 U.S. 1033 (2001)........................ 2

Booker v. Jones, 235 So. 3d 298 (Fla. 2018)................. 4, 5

Booker v. State, 397 So. 2d 910 (Fla. 1981).................... 1

Booker v. State, 520 So. 2d 246 (Fla. 1988).................... 1

Booker v. State, 773 So. 2d 1079 (Fla. 2000)................ 1, 2

Brunner Enters., Inc. v. Dep’t of Revenue, 452 So. 2d 550 (Fla.

1984) ........................................................ 5

Cherry v. Florida, 494 U.S. 1090 (1990)........................ 9

Cherry v. Jones, 2017 WL 1033693 (Fla. Mar. 17, 2017).......... 9

Danforth v. Minnesota, 522 U.S. 264 (2008)..................... 5

Davis v. Florida, 524 U.S. 930 (1998)......................... 10

Davis v. State, 2017 WL 656307 (Fla. Feb. 17, 2017)........... 10

Dobbert v. Florida, 432 U.S. 282 (1977)........................ 8

Finney v. State, 660 So. 2d 674 (Fla. 1995).................... 6

Floyd v. State, 497 So. 2d 1211 (Fla. 1986).................... 6

Gaskin v. Florida, 510 U.S. 925 (1993)........................ 10

Gaskin v. State, 218 So. 3d 399 (Fla. Jan. 19, 2017).......... 10

Geralds v. Florida, 519 U.S. 891 (1996)....................... 10

iii

029a

Geralds v. Jones, 2017 WL 944236 (Fla. Mar. 10, 2017)......... 10

Griffith v. Kentucky, 479 U.S. 314 (1987)...................... 8

Hamilton v. Florida, 524 U.S. 956 (1998)...................... 10

Hamilton v. Jones, 2017 WL 836807 (Fla. Mar. 3, 2017)......... 10

Hartley v. Florida, 522 U.S. 825 (1997)....................... 10

Hartley v. Jones, 2017 WL 944232 (Fla. Mar. 10, 2017)......... 10

Hitchcock v. Dugger, 481 U.S. 393 (1987)....................... 1

Hitchcock v. State, 226 So. 3d 216 (Fla. 2017)................. 3

Hitchcock v. State, 531 U.S. 1040 (2000)....................... 9

Hurst v. Florida, 136 S.Ct. 616 (2016)......................... 3

Hurst v. State, 202 So. 3d 40 (Fla. 2016)...................... 5

Ivan V. v. City of New York, 407 U.S. 203 (1972)............... 6

Johnson v. State, 904 So. 2d 400 (Fla. 2005)................... 5

Jones v. Florida, 515 U.S. 1147 (1995)........................ 10

Jones v. Jones, 2017 WL 1034410 (Fla. Mar. 17, 2017)........... 9

Jones v. State, 231 So. 3d 374 (Fla. 2017)..................... 9

Lambrix v. Florida, 138 S.Ct. 312 (Oct. 5, 2017)............... 7

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

2017) ..................................................... 7, 8

Lambrix v. State, 217 So. 3d 977 (Fla. 2017).................. 10

Lambrix v. State, 227 So. 3d 112 (Fla. 2017).................. 11

Lukehart v. Florida, 533 U.S. 934 (2001)................... 9, 10

Lukehart v. Jones, 2017 WL 1033691 (Fla. Mar. 17, 2017).... 9, 10

Marshall v. Florida, 508 U.S. 915 (1993)....................... 9

Marshall v. Jones, 226 So. 3d 211 (Mem) (Fla. 2017)............ 9

Oats v. Florida, 474 U.S. 865 (1985)........................... 9

Oats v. Jones, 220 So. 3d 1127 (Fla. 2017)..................... 9

Penry v. Lynaugh, 492 U.S. 302 (1989).......................... 8

Powell v. Delaware, 153 A.3d 69 (Del. 2016).................... 6

Rauf v. State, 145 A.3d 430 (Del. 2016)........................ 6

Ring v. Arizona, 536 U.S. 584 (2002)........................... 5

Rodriguez v. Florida, 510 U.S. 830 (1993)...................... 9

030a

Rodriguez v. State, 219 So. 3d 751 (Fla. 2017)................. 9

Schriro v. Summerlin, 542 U.S. 348 (2004)...................... 7

Smith v. State, 598 So. 2d 1063 (Fla. 1992).................... 8

State v. Owen, 696 So. 2d 715 (Fla. 1997)...................... 4

Stein v. Florida, 513 U.S. 834 (1994)......................... 10

Stein v. Jones, 2017 WL 836806 (Fla. Mar. 3, 2017)............ 10

Suggs v. Florida, 514 U.S. 1083 (1995)......................... 9

Suggs v. Jones, 2017 WL 1033680 (Fla. Mar. 17, 2017)........... 9

Teague v. Lane, 489 U.S. 288 (1989)............................ 5

Wainwright v. Florida, 523 U.S. 1127 (1998)................... 10

Wainwright v. State, 2017 WL 394509 (Fla. Jan. 30, 2017)...... 10

Willacy v. Florida, 522 U.S. 970 (1997)........................ 9

Willacy v. Jones, 2017 WL 1033679 (Fla. Mar. 17, 2017)......... 9

Witt v. State, 387 So. 2d 922 (Fla. 1980)...................... 5

Zack v. Florida, 531 U.S. 858 (2000)........................... 9

Zack v. State, 228 So. 3d 41 (Fla. 2017)....................... 9

Zakrzewski v. Florida, 525 U.S. 1126 (1999).................... 9

Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017)............... 9

Zeigler v. State, 580 So. 2d 127 (Fla. 1991)................... 6

031a

STATEMENT OF THE CASE AND FACTS

Appellant, Stephen Todd Booker, was convicted of first-degree

murder, sexual battery, and burglary, and sentenced to death.

Booker v. State, 397 So. 2d 910 (Fla. 1981). After the penalty

phase the jury recommended death by a nine-to-three vote. The trial

court followed the jury’s recommendation, sentencing Appellant to

death. The trial court found no mitigating circumstances and three

aggravating circumstances: 1) previously convicted of a felony

involving the use of threat of violence to another; 2) committed

the murder during the commission of a sexual battery and burglary;

and 3) heinous, atrocious, and cruel. See Booker v. State, 773 So.

2d 1079, 1082 n.1 (Fla. 2000).

Appellant’s judgment and sentence of death was affirmed on

appeal by the Florida Supreme Court. Booker, 397 So. 2d 910.

Appellant filed a petition for writ of certiorari in the United

States Supreme Court which the Court denied. Booker v. Florida,

454 U.S. 957, 102 S.Ct. 493 (1981).

Subsequently, Appellant filed numerous proceedings in state

and federal courts. In particular, Appellant filed a petition for

writ of habeas corpus which the Florida Supreme Court found that

any error in light of the United States Supreme Court’s 1987

decision in Hitchcock v. Dugger, 481 U.S. 393 (1987), was harmless.

The Florida Supreme Court upheld Appellant’s sentence. Booker v.

State, 520 So. 2d 246, 247-49 (Fla. 1988). However, the Eleventh

032a

Circuit found that the Hitchcock error was not harmless and the

case was remanded for resentencing. Booker v. Dugger, 922 F.2d

633, 634 (11th Cir. 1991).

A new penalty phase hearing was conducted in March 1998. The

jury voted eight-to-four for death. The trial court, following the

jury’s recommendation, sentenced Appellant to death. The trial

court

found

four

aggravating

circumstances:

committed

the

felony while he was under sentence of imprisonment; 2) previously

convicted of a violent felony; 3) committed the capital felony

while engaged in the commission of a sexual battery and burglary;

and 4) heinous, atrocious, and cruel. The trial court found two

statutory mitigators: 1) committed while under the influence of

extreme

mental

emotional

disturbances

and

capacity

appreciate the criminality of his conduct or to conform his conduct

to the requirements of the law was substantially impaired. The

trial court found nine nonstatutory mitigating circumstances.

Booker, 773 So. 2d at 1086. Appellant filed a petition for writ of

certiorari that was denied by the United States Supreme Court on

May 14, 2001. Booker v. Florida, 532 U.S. 1033 (2001).

Appellant filed a motion for postconviction relief which was

denied by the trial court and affirmed by the Florida Supreme

Court. Booker v. State, 969 So. 2d 186 (Fla. 2007). On June 24,

2016, Appellant represented by Billy Nolas, filed a successive

motion raising a claim based on the United States Supreme Court’s

033a

recent decision in Hurst v. Florida, 136 S.Ct. 616 (2016). The

trial

court

appointed

attorney

Ann

Finnell

lead

capital

collateral counsel and the capital habeas unit of the public

defender’s office as co-counsel. Attorney Ann Finnell subsequently

adopted

the

successive

motion

filed

June

24,

2016.

The

successive motion was denied.

On June 27, 2017, Appellant filed with this Court a petition

for habeas corpus. On July 18, 2017, this Court stayed the petition

pending the disposition of Hitchcock. On August 10, 2017, this

Court

affirmed

the

conviction

and

sentence

Hitchcock

accordance with this Court’s decision in Asay. Hitchcock v. State,

226 So. 3d 216, 217 (Fla. 2017); Asay v. State, 210 So. 3d 1 (Fla.

2016). On September 27, 2017, this Court ordered the parties to

show cause “why the habeas petition should not be denied in light

of the decision in Hitchcock v. State, SC17-445.” On January 30,

2018, this Court, after briefs were filed by the parties, held

that Appellant is not entitled to relief under Hurst, as his case

was final prior to the decision in Ring v. Arizona, 536 U.S. 584

(2002). On March 8, 2018, the postconviction court, in accordance

with the decision by this Court, denied Appellant relief under

Hurst. Appellant, on April 9, 2018, filed this appeal. On May 7,

2018, this Court ordered the parties to show cause “why the trial

court’s order should not be affirmed in light of this Court’s

034a

decision in Hitchcock v. State, SC17-445.” This is Appellee’s

Answer to Appellant’s Response.

OBJECTION TO ORAL ARGUMENT

Appellee objects to Appellant’s request for oral argument. In

the briefing schedule, this Court ordered the parties to respond

to a limited issue that has been decided by this Court in this

case, as well as other cases. As such, oral arguments would not

serve any purpose other than to delay the proceedings.

SUMMARY OF THE ARGUMENT

The

lower

court

properly

summarily

denied

Appellant’s

successive motion for postconviction relief. Appellant has failed

to show cause as to why his case should be excluded from this

Court’s precedent in Asay as reaffirmed by Hitchcock. Because

Appellant’s judgment and sentence were final prior to the decision

in Ring, Hurst is not retroactive to him.

ARGUMENT

This Court has already determined that Appellant is not

entitled to relief under Hurst v. State in Booker v. Jones, 235

So.

298

(Fla.

2018).

“Generally,

under

the doctrine of

the law of the case, ‘all questions of law which have been decided

by the highest appellate court become the law of the case which

must be followed in subsequent proceedings, both in the lower and

appellate courts.’” State v. Owen, 696 So. 2d 715, 720 (Fla. 1997).

Citing Brunner Enters., Inc. v. Dep’t of Revenue, 452 So. 2d 550,

035a

552 (Fla. 1984). This Court has already heard the arguments made

by Appellant and they were rejected. Booker, 235 So. 3d 298. As

such, this Court’s prior ruling that Appellant should not get

relief under Hurst v. State and Hitchcock is controlling precedent

and Appellant should be denied relief.

Asay,

this

Court

held

that

Hurst

State

not

retroactive to any case in which the death sentence was final prior

to the June 24, 2002, decision in Ring. Asay, 210 So. 3d at 22;

Hurst v. State, 202 So. 3d 40 (Fla. 2016); Ring, 536 U.S. 584.

The judgment in Asay became final October 7, 1991, and thus Asay

was not eligible for any relief under Hurst. Asay, 210 So. 3d at

Asay,

this

Court

discussed

the

appropriate

test

for

applying retroactivity to Hurst. Asay, 210 So. 3d at 15-16. This

Court applied the Witt analysis for retroactivity under state law,

“which provides more expansive retroactivity standards than those

adopted in Teague,” which enumerates the federal retroactivity

standards. Id. (emphasis in original), quoting Johnson v. State,

904 So. 2d 400, 409 (Fla. 2005); Witt v. State, 387 So. 2d 922

(Fla. 1980); Teague v. Lane, 489 U.S. 288 (1989); see also Danforth

v. Minnesota, 552 U.S. 264, 280-81 (2008) (allowing states to adopt

a retroactivity test that is broader than Teague).

Appellant relies upon Ivan V. and Powell for the premise that

Hurst should be retroactive under Teague as a substantive change.

036a

(Response at 19); Ivan V. v. City of New York, 407 U.S. 203, 205

(1972); Powell v. Delaware, 153 A.3d 69 (Del. 2016). Appellant

argues that Hurst “addressed the proof-beyond-a-reasonable-doubt

standard.” (Response at 19). However, the standard of proof for

proving aggravating factors in Florida has been beyond a reasonable

doubt, long before Hurst was decided. See Floyd v. State, 497 So.

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

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

The Delaware Court in Powell agreed: “neither Ring nor Hurst

involved

Due

Process

Clause

violation

caused

the

unconstitutional use of a lower burden of proof.” Powell, 153 A.3d

at 74. The Delaware Supreme Court used this fact to distinguish

Delaware’s “watershed ruling” in Rauf which was the basis for

Delaware to find that retroactivity applied to Powell under Teague,

from Ring and Hurst. Powell, 153 A.3d at 74; Rauf v. State, 145

A.3d 430 (Del. 2016). Thus, Powell applies to Delaware cases and

distinguishes Hurst and Ring under Delaware law.

Further,

despite

Appellant’s

claim

that

Hurst

created

substantive change requiring federal retroactivity, in Schriro,

the Supreme Court determined that Ring was a procedural rule and

did not create a substantive constitutional change in the law

because it only “altered the range of permissible methods for

determining whether a defendant’s conduct is punishable by death,

requiring that a jury rather than a judge find the essential facts

037a

bearing on punishment.” Schriro v. Summerlin, 542 U.S. 348, 353

(2004). Ring did not alter the “range of conduct or the class of

persons that the law punishes.” Id. Thus, Ring “announced a new

procedural rule that does not apply retroactively to cases already

final on direct review.” Id. at 358. Since the Supreme Court held

that Ring did not create a substantive constitutional rule and is

not retroactive, Hurst is also not a substantive constitutional

rule, nor is it retroactive under federal law.

The Eleventh Circuit has rejected the argument that Hurst is

retroactive under federal law, stating: “[t]he Supreme Court has

held that Ring does not apply retroactively to cases on collateral

review. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (holding

that Ring does not apply retroactively under federal law to deathpenalty cases already final on direct review.).” Lambrix v. Sec’y,

Fla. Dep’t of Corr., 872 F.3d 1170, 1182 (11th Cir. 2017), cert.

denied, Lambrix v. Florida, 138 S.Ct. 312 (2017). Further, the

Eleventh Circuit held that this Court’s ruling, that Hurst did not

retroactively apply to Lambrix, whose judgment was final in 1986,

“is fully in accord with the U.S. Supreme Court’s precedent in

Ring and Schriro.” Lambrix, 872 F.3d at 1182. The Eleventh Circuit

also rejected the statutory retroactivity argument stating

jurists of reason would not find this

proposition debatable: the Florida court’s

rejection

Lambrix’s

constitutionalstatutory claim was not contrary to, or an

038a

unreasonable application of, the holding of a

Supreme Court decision.

Id. at 1183; see also Dobbert v. Florida, 432 U.S. 282, 301 (1977).

Additionally, with retroactivity, there is usually a cutoff

date to provide for finality in appellate processing. Penry v.

Lynaugh, 492 U.S. 302, 314 (1989) (holding finality concerns in

retroactivity are applicable in the capital context). In Griffith,

the Supreme Court held “that a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes a ‘clear

break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328

(1987); see also Smith v. State, 598 So. 2d 1063, 1065 (Fla. 1992).

Under this “pipeline” concept, only those still pending direct

review would receive the benefit of relief from Hurst error. The

fact that this Court has drawn the line at the decision date in

Ring

instead

appellants.

Thus,

the

this

decision

date

Court’s

Hurst,

retroactivity

benefits

cutoff

does

not

violate the Fourteenth Amendment’s guarantee of equal protection

and due process.

In Asay, this Court discussed Apprendi’s role in developing

the Court’s decisions in Ring and Hurst. Asay, 210 So. 3d at 1119. However, “the Supreme Court distinguished capital cases from

its holding in Apprendi.” Id. at 19; citing Apprendi v. New Jersey,

039a

530 U.S. 466, 496-97 (2000) (“this Court has previously considered

and rejected the argument that the principles guiding our decision

today render invalid state capital sentencing schemes . . .”).

Because Apprendi does not apply to capital cases, it should not be

used as the cutoff date for Hurst retroactivity.

After Asay, this Court continuously adhered to using the Ring

decision date as the cutoff point for retroactivity. Thus far,

this Court has chosen not to extend Hurst v. State to 23 cases,

including Asay, based solely on the fact that the judgments were

finalized prior to the decision in Ring.1 Further, this Court

See Asay, 210 So. 3d at 8, 22 (sentence final in 1991; see Asay

v. Florida, 502 U.S. 895 (1991)); Jones v. State, 231 So. 3d 374,

376 (Fla. 2017); Hitchcock, 2017 WL 3431500(sentence final in 2000;

see Hitchcock v. State, 531 U.S. 1040 (2000)); Zack v. State, 228

So. 3d 41, 47-48 (Fla. 2017)(sentence final in 2000; see Zack v.

Florida, 531 U.S. 858 (2000)); Zakrzewski v. Jones, 221 So. 3d

1159 (Fla. 2017)(sentence final in 1999; see Zakrzewski v. Florida,

525 U.S. 1126 (1999)); Oats v. Jones, 220 So. 3d 1127, 1129 (Fla.

2017)(sentence final in 1985; see Oats v. Florida, 474 U.S. 865

(1985)); Marshall v. Jones, 226 So. 3d 211 (Mem) (Fla.

2017)(sentence final in 1993; see Marshall v. Florida, 508 U.S.

915 (1993)); Rodriguez v. State, 219 So. 3d 751, 760 (Fla.

2017)(sentence final in 1993; see Rodriguez v. Florida, 510 U.S.

830 (1993)); Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla.

Mar. 17, 2017)(sentence final in 1997; see Willacy v. Florida, 522

U.S. 970 (1997)); Suggs v. Jones, No. SC16-1066, 2017 WL 1033680,

*1 (Fla. Mar. 17, 2017)(sentence final in 1995; see Suggs v.

Florida, 514 U.S. 1083 (1995)); Lukehart v. Jones, No. SC16-1225,

2017 WL 1033691, *1 (Fla. Mar. 17, 2017)(sentence final 2001; see

Lukehart v. Florida, 533 U.S. 934 (2001)); Cherry v. Jones, No.

SC16-694, 2017 WL 1033693, *1 (Fla. Mar. 17, 2017)(sentence final

in 1990; see Cherry v. Florida, 494 U.S. 1090 (1990)); Archer v.

Jones, No. SC16-2111, 2017 WL 1034409, *1 (Fla. Mar. 17,

2017)(sentence final in 1996; see Archer v. Florida, 519 U.S. 876

(1996)); Jones v. Jones, No. SC16-607, 2017 WL 1034410 (Fla. Mar.

17, 2017)(sentence final in 1995; see Jones v. Florida, 515 U.S.

040a

declined to retroactively apply Hurst to Lukehart because his

sentence became final prior to Ring. Lukehart v. Jones, No. SC161255, 2017 WL 1033691, *1 (Fla. Mar. 17, 2017).

Lukehart became

final June 25, 2001, after the June 26, 2000, decision in Apprendi,

but before Ring. Lukehart v. Florida, 533 U.S. 934 (2001).

Thus,

despite Appellant’s claim that this Court has never specifically

addressed this “Apprendi gap,” this Court has addressed the issue

and declined to extend retroactivity to post-Apprendi/pre-Ring

cases. (Response at 1).

On August 10, 2017, in Hitchcock, this Court reaffirmed the

decision in Asay stating

[a]lthough Hitchcock references various constitutional

provisions as a basis for arguments that Hurst v.

State should entitle him to a new sentencing proceeding,

these are nothing more than arguments that Hurst v.

State should be applied retroactively to his sentence,

1147 (1995)); Hartley v. Jones, No. SC16-1359, 2017 WL 944232, *1

(Fla. Mar. 10, 2017)(sentence final in 1997; see Hartley v.

Florida, 522 U.S. 825 (1997)); Geralds v. Jones, No. SC16-659,

2017 WL 944236, *1 (Fla. Mar. 10, 2017) (sentence final in 1996;

see Geralds v. Florida, 519 U.S. 891 (1996)); Lambrix v. State,

217 So. 3d 977, 989 (Fla. Mar. 9, 2017)(sentence final in 1986);

Stein v. Jones, No. SC16-621, 2017 WL 836806 (Fla. Mar. 3,

2017)(sentence final in 1994; see Stein v. Florida, 513 U.S. 834

(1994)); Hamilton v. Jones, No. SC16-984, 2017 WL 836807 (Fla.

Mar. 3, 2017)(sentence final in 1998; see Hamilton v. Florida, 524

U.S. 956 (1998)); Davis v. State, No. SC16-264, 2017 WL 656307

(Fla. Feb. 17, 2017)(sentence final in 1998; see Davis v. Florida,

524 U.S. 930 (1998)); Bogle v. State, 213 So. 3d 833, 855 (Fla.

2017)(sentence final in 1995; see Bogle v. Florida, 516 U.S. 978

(1995)); Wainwright v. State, No. SC15-2280, 2017 WL 394509 (Fla.

Jan. 30, 2017)(sentence final in 1998; see Wainwright v. Florida,

523 U.S. 1127 (1998)); Gaskin v. State, 218 So. 3d 399, 400 (Fla.

2017)(sentence final in 1993; see Gaskin v. Florida, 510 U.S. 925

(1993)).

041a

which became final prior to Ring. As such, these

arguments

were

rejected

when

decided Asay.

Accordingly, we affirm the circuit court's order

summarily denying Hitchcock's successive postconviction

motion pursuant to Asay.

Hitchcock, 226 So. 3d at 217; see also Asay v. State, 224 So. 3d

695, 703 (Fla. 2017) (rejecting the claim that Chapter 2017-1,

Laws of Florida, “creates a substantive right to a life sentence

unless

jury

unanimously

recommends

otherwise”);

Lambrix

State, 227 So. 3d 112, 113 (Fla. 2017) (rejecting arguments based

the

Eighth

Amendment,

denial

due

process

and

equal

protection, and a substantive right based on new legislation).

Here,

just

Hitchcock,

Appellant

raises

various

constitutional provisions to argue that Hurst v. State should be

retroactively

reaffirmed

applied

Hitchcock,

him.

However,

Hurst

just

State

does

Asay,

not

apply

retroactively to Appellant. This case became final on May 14, 2001,

which is prior to the June 24, 2002, decision in Ring. As such,

Hurst v. State is not retroactive to this case. Thus, this appeal

should be denied.

Appellant has demonstrated no cause that this Court should

review his case. This Court’s rulings in Asay and Hitchcock apply

to Appellant. Because Appellant’s judgment and sentence were final

prior to the decision in Ring, Hurst is not retroactive to him.

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CONCLUSION

In conclusion, as a matter of law, Appellant is not entitled

to Hurst relief, and Appellee respectfully requests that this

Honorable Court affirm the postconviction court’s order denying

Appellant relief under Hurst.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/ Lisa A. Hopkins

Assistant Attorney General

Florida Bar No. 99459

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399

Telephone: (850)414-3336

Facsimile: (850)414-0997

capapp@myfloridalegal.com [and]

lisa.hopkins@myfloridalegal.com

COUNSEL FOR APPELLEE

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 8th day of June, 2018, I

electronically filed the foregoing with the Clerk of the Court by

using the Florida Courts E-Portal Filing System which will send a

notice of electronic filing to the following: Billy Nolas, counsel

for

Appellant,

billy_nolas@fd.org

and

Ann

Finnell

afinnell@fmnlawyers.com.

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of the type used in

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

/s/ Lisa A. Hopkins

COUNSEL FOR APPELLEE

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Filing # 73417518 E-Filed 06/12/2018 10:49:57 AM

Nos. SC18-541

IN THE

Supreme Court of Florida

___________________________________________________________

STEPHEN TODD BOOKER,

Appellant,

RECEIVED, 06/12/2018 10:53:27 AM, Clerk, Supreme Court

STATE OF FLORIDA,

Appellee.

____________________________________________________

APPELLANT’S REPLY IN SUPPORT OF

RESPONSE TO ORDER TO SHOW CAUSE

_____________________________________________________

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar No.: 0270040

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 00806821

Counsel for Appellant

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TABLE OF CONTENTS

RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT...........1

ARGUMENT...........................................................................................................1

The State is incorrect in its assertion that the law of the case doctrine precludes

relief on Mr. Booker’s Hurst claim ................................................................. 1

II.

The State is incorrect in suggesting that Hitchcock and prior cases

addressed federal retroactivity in the Hurst context.........................................1

III.

The State’s argument regarding the constitutionality of denying Hurst

retroactivity to post-Apprendi death sentences is meritless..............................6

IV.

The State’s cursory response to Mr. Booker’s more general federal

retroactivity arguments regarding the Ring cutoff should also be

rejected............................................................................................................7

The State abandons any “harmless error” arguments.....................................10

CONCLUSION......................................................................................................10

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RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT

Mr. Booker renews his requests that the Court permit untruncated briefing.

ARGUMENT

The State is incorrect in its assertion that the law of the case doctrine

precludes relief on Mr. Booker’s Hurst claim

The State incorrectly asserts that a prior ruling in Mr. Booker’s case precludes

this Court from granting relief on his Hurst claim now under the law of the case

doctrine, State’s Resp. at 4-5. This Court has made clear that this is not how the law

of the case doctrine works, however. The doctrine does “require[] that questions of

law actually decided on appeal must govern the case in the same court and the trial

court, through all subsequent stages of the proceedings.” Florida Dep’t of Transp.

v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). But it “is more limited and more flexible

in scope” than res judicata, and as a result, “even as to those issues actually decided,

the law of the case doctrine . . . provides that an appellate court has the power to

reconsider and correct an erroneous ruling that has become the law of the case . . . .”

Id. at 105-06. As explained by Mr. Booker’s response to the show cause order and

the arguments contained herein, any denial of Hurst relief to Mr. Booker, a postApprendi appellant, was in error, and this Court should exercise its power to correct

that error.

II.

The State is incorrect in suggesting that Hitchcock and prior cases

addressed federal retroactivity in the Hurst context

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The State is incorrect in suggesting that Hitchcock v. State, 226 So. 3d 216

(Fla. 2017), and prior cases addressed whether federal constitutional law requires

Hurst to be applied retroactively to the small number of Florida death sentences,

including Mr. Booker’s, that became “final” on direct appeal during the two-year

period between the decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Ring v. Arizona, 536 U.S. 584 (2002). See State’s Resp. at 8-11. In fact, Hitchcock

did not specifically address the “Apprendi gap” or any of Mr. Booker’s federal

retroactivity arguments at all. See Booker’s Resp. at 6-20.

This Court’s opinion in Hitchcock did not even state that Mr. Hitchcock’s

death sentence became final between Apprendi and Ring, let alone specifically

address the current federal constitutional arguments. Hitchcock did not address

whether the federal Constitution permits a retroactivity “cutoff” that affords Hurst

relief to defendants sentenced after the 2002 decision in Ring while denying Hurst

relief to defendants sentenced before Ring but after the 2000 decision in Apprendi.

Instead, Hitchcock relied exclusively on the Court’s state-law reasoning in Asay v.

State, 210 So. 3d 1 (Fla. 2016), which did not involve a post-Apprendi sentence. As

the State acknowledges, the reasoning in Asay rested entirely on the state

retroactivity law first articulated in Witt v. State, 387 So. 2d 922 (Fla. 1980). See

State’s Resp. at 5 (“In Asay . . . . [t]his Court applied the Witt analysis for

retroactivity under state law.”). Asay’s exclusive reliance on state law is evident

048a

from the Asay opinion itself. See 210 So. 3d at 16 (“To apply a newly announced

rule of law to a case that is already final at the time of the announcement, this Court

must conduct a retroactivity analysis pursuant to the dictates of Witt.”).

Asay did not address whether federal law required the Hurst decisions to be

applied retroactively in post-Apprendi death sentences like Mr. Booker’s, and did

not address the federal retroactivity arguments raised in Mr. Booker’s response to

the order to show cause. Namely, Asay did not address whether it would violate the

Eighth and Fourteenth Amendments to draw a Hurst retroactivity “cutoff” at Ring,

rather than Apprendi, in light of the fact that Apprendi was the constitutional basis

for both Ring and Hurst. Neither did Asay address more generally whether a

retroactivity cutoff drawn at Ring violates the Eighth Amendment’s prohibition

against arbitrary and capricious imposition of the death penalty, or the Fourteenth

Amendment’s Equal Protection and Due Process Clauses. Nor did Asay address

whether the Hurst decisions are “substantive” within the meaning of federal law,

such that the Supremacy Clause of the Constitution requires state courts to apply the

decisions retroactively under Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Hitchcock, in relying totally on Asay, also did not address Mr. Booker’s “postApprendi” and other federal retroactivity arguments. See Hitchcock, 226 So. 3d at

217 (“We affirm because we agree with the circuit court that our decision in Asay

forecloses relief.”); id. (“Accordingly, we affirm the circuit court’s order summarily

049a

denying Hitchcock’s successive postconviction motion pursuant to Asay.”). The

State attempts to highlight the conclusory sentence in Hitchcock that reads:

“Although Hitchcock references various constitutional provisions as a basis for

arguments that Hurst v. State should entitle him to a new sentencing proceeding,

these are nothing more than arguments that Hurst v. State should be applied

retroactively to his sentence, which became final prior to Ring.” State’s Resp. at 1011 (citing Hitchcock, 226 So. 3d at 217) (emphasis added). But the Hitchcock

Court’s reference to “constitutional provisions” cannot be read to address Mr.

Booker’s federal arguments, as the very next sentence reads: “As such, these

arguments were rejected when we decided Asay.” Hitchcock, 226 So. 3d at 217. As

explained above, Asay was premised entirely on state retroactivity law.

During the nearly eight months between this Court’s decisions in Asay and

Hitchcock, numerous Hurst defendants, including those sentenced between

Apprendi and Ring, raised federal retroactivity arguments in this Court and the

circuit courts, explaining that Asay had not resolved those federal matters in its

exclusively-state-law analysis, and imploring the courts to explicitly address federal

law. Those defendants, as Mr. Booker did here, made federal arguments under the

Eighth and Fourteenth Amendments and Montgomery. If this Court had intended to

put those arguments to rest in Hitchcock—including whether a retroactivity cutoff

at Ring is unconstitutional as applied to post-Apprendi defendants—it could have

050a

done so, but the Hitchcock Court declined to do so. Hitchcock does not even mention

the small number of death sentences that became final between Apprendi and Ring,

the Eighth Amendment’s prohibition against arbitrary and capriciousness, or the

Fourteenth Amendment’s Equal Protection and Due Process Clauses. Nor does

Hitchcock cite Montgomery or address whether the Hurst rules are “substantive.”

These matters all remain open questions that this Court should address.

The State also relies on this Court’s decision in Lukehart v. Jones, No. SC161255, 2017 WL 1033691, at *1 (Fla. Mar. 17, 2017), to suggest that this Court

already “specifically addressed” the post-Apprendi cases. State’s Resp. at 9-10.

However, Lukehart was a habeas petition filed in July 2016, before this Court even

addressed Hurst retroactivity in Asay and Mosley. It could not have addressed the

unconstitutionality of a retroactivity test that had not yet been adopted. Perhaps for

that reason, the petition in Lukehart did not raise any form of Apprendi-based

argument and is not in any way comparable to the arguments being made by Mr.

Booker now.

To the extent the State suggests that Mr. Booker’s federal arguments have

been addressed in other cases, those decisions did not involve post-Apprendi death

sentences and, in any event, are not applicable here. For instance, the Eleventh

Circuit’s decision in Lambrix v. Sec’y, 872 F.3d 1170 (11th Cir. 2017), does not deal

with a post-Apprendi case, is not precedential in this Court, and was decided in the

051a

context of the federal habeas statute. Moreover, Lambrix dealt primarily with an

idiosyncratic issue—the “retroactivity” of Florida’s new capital sentencing statute—

and did not focus squarely on the retroactivity of the constitutional rules arising from

the Hurst decisions.

Similar idiosyncratic presentations and “pre-Apprendi”

postures also render inapplicable to Mr. Booker this Court’s active-death-warrant

decisions in Asay v. State, 224 So. 3d 695 (Fla. 2017), Lambrix v. State, 227 So. 3d

112 (Fla. 2017), and Hannon v. State, 228 So. 3d 505 (Fla. 2017). There are real,

unresolved issues here. Mr. Booker urges this Court to address them.

III.

The State’s argument regarding the constitutionality of denying Hurst

retroactivity to post-Apprendi sentences is meritless

The State’s brief references to Mr. Booker’s arguments regarding the federal

constitutionality of drawing a Hurst retroactivity cutoff at Ring, given that Apprendi

is the constitutional basis for both Ring and Hurst, are unpersuasive. The State

acknowledges that Mr. Booker’s death sentence became final on May 14, 2001, see

State’s Resp. at 2, after Apprendi, and also recognizes “Apprendi’s role in

developing the Court’s decisions in Ring and Hurst,” id. at 8. But confronted with

Mr. Booker’s argument that a Hurst retroactivity cutoff, if there must be a cutoff,

should be drawn at Apprendi, not Ring, the State offers only the superficial assertion:

“Apprendi does not apply to capital cases.” Id.

The State’s argument is meritless. As Mr. Booker explained, a Ring-based

cutoff cannot be squared with federal constitutional requirements, particularly in

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cases with post-Apprendi sentences. The State’s contention that “Apprendi does not

apply to capital cases” is belied by the Ring and Hurst decisions. Indeed, as the

United States Supreme Court stated in Hurst, Ring applied Apprendi’s analysis to

conclude that Mr. Ring’s death sentence violated the Sixth Amendment. See 136 S.

Ct. at 621.

In Hurst, the Court repeatedly stated that Florida’s scheme was

incompatible with “Apprendi’s rule,” of which Ring was an application. 136 S. Ct.

at 621. Both Ring and Hurst make clear that their operative constitutional holdings

derived directly from Apprendi.

And this Court in Mosley v. State recently

reaffirmed that Ring was an application of Apprendi. See 209 So. 3d 1248, 1279-80

(Fla. 2016) (stating that in Ring the Court “applied its reasoning from Apprendi”).

There are only 22 prisoners in Florida in a non-waiver, non-unanimous jury,

post-Apprendi posture. In light of Apprendi’s fundamental importance to Ring and

Hurst, it would violate the federal constitutional prohibition against arbitrary and

capricious death sentencing, and the guarantees of equal protection and due process,

to extend Hurst retroactivity to 14 years of post-Ring death sentences while denying

retroactivity to the small number of non-unanimous-recommendation sentences, like

Mr. Booker’s, that were finalized in the two years between Apprendi and Ring.

IV.

The State’s cursory response to Mr. Booker’s more general federal

retroactivity arguments regarding the Ring cutoff should also be rejected

The State fails to substantively engage most of Mr. Booker’s more general

federal retroactivity arguments regarding the Ring cutoff. The State does not even

053a

mention or address Mr. Booker’s argument that a retroactivity cutoff at Ring violates

the Eighth Amendment’s prohibition against arbitrary and capricious imposition of

the death penalty. See Booker’s Resp. at 10-12. The State has therefore abandoned

any arguments on this issue. Cf. Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011)

(“[A]n issue not raised in an initial brief is deemed abandoned”).

The State offers only a cursory response to Mr. Booker’s arguments under the

Fourteenth Amendment. According to the State, a Ring-based cutoff does not violate

the Equal Protection and Due Process Clauses any more than a traditional rule that

provides for only prospective application of new constitutional rules. See State’s

Resp. at 8. The State assumes that “partial” retroactivity is constitutional because it

“benefits more appellants,” no matter where the line is drawn.

Id. at 6. Notably,

however, the State fails to provide an example of any previous constitutional ruling

that has been given only “partial” retroactive effect, and does not engage in any

specific due process or equal protection analysis.

The State’s failure to address Mr. Booker’s Eighth Amendment arguments

and cursory treatment of his Fourteenth Amendment arguments is telling. A Ring

cutoff injects into Florida’s death penalty jurisprudence an intolerable level of

arbitrariness and capriciousness. It also denies equal protection and due process to a

degree not present in typical circumstances where retroactivity is withheld based on

the pragmatic necessity to evolve constitutional protections prospectively.

054a

retroactivity cutoff at Ring inaugurates a kind and degree of capriciousness that far

exceeds the level justified by normal non-retroactivity jurisprudence.

The State’s remaining arguments can be dispensed with briefly. The State

cites Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for the proposition that the

Supreme Court’s ruling that Ring is not retroactive in a federal habeas proceeding

means that Hurst is not retroactive in any proceeding. See State’s Resp. at 6-7. But

as Mr. Booker explained in his earlier response, see Booker’s Resp. at 18-19, the

Arizona statute at issue in Ring and Summerlin did not require, as Florida’s statute

did, factfinding regarding both the aggravators and their “sufficiency” for the death

penalty. Summerlin acknowledged that if the Court itself “[made] a certain fact

essential to the death penalty . . . [the change] would be substantive.” 542 U.S. at

354. Such a change occurred with the Hurst decisions. They recognized for the first

time that it is unconstitutional for a judge alone to make a finding of fact concerning

the “sufficiency” of the aggravation.

Moreover, unlike Ring, Hurst was grounded on the beyond-a-reasonabledoubt standard. The State unpersuasively attempts to distinguish Ivan V. v. City of

New York, 407 U.S. 203 (1972). See State’s Resp. at 5-6. Even assuming, as the

State suggests, that Florida’s scheme formerly incorporated the beyond-areasonable-doubt standard, the standard was misapplied to factfinding by the trial

judge, not findings made by the jury. The Hurst decisions held that the jury must

055a

make the beyond-a-reasonable-doubt findings that subject a defendant to a death

sentence. Indeed, a federal judge in Florida, citing Ivan, has already observed the

distinction between Summerlin and Hurst because of the beyond-a-reasonable-doubt

standard. See Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May 27, 2016)

(contrasting Hurst to Ring and Summerlin because the latter decisions “did not

address the requirement for proof beyond a reasonable doubt,” and “[t]he Supreme

Court has held a proof-beyond-a-reasonable-doubt decision retroactive”).

The State’s citation to Powell, see State’s Resp. at 5-6, is particularly odd

considering that the Delaware Supreme Court in Powell applied a retroactivity test

that mirrors the federal retroactivity test and held that Hurst should be applied

retroactively in Delaware. See and Powell v. Delaware, 153 A.3d 69, 75-76 (Del.

2016). If anything, Powell supports Mr. Booker’s arguments.

The State abandons any “harmless error” arguments

The State abandons any argument that the Hurst error in Mr. Booker’s case

was harmless by failing to reference harmless error in the State’s response. See

Hoskins, 75 So. 3d at 257. The Hurst error in this case is not harmless in light of the

advisory jury’s non-unanimous recommendation to impose the death penalty.

CONCLUSION

The Court should hold that federal law requires the Hurst decisions to be

applied retroactively to Mr. Booker’s post-Apprendi death sentence and grant relief.

056a

Respectfully submitted,

Ann Finnell

Finnell, McGuinness,

Nezami & Andux, P.A.

2114 Oak Street

Jacksonville, Florida 32204

afinnell@fmnlawyers.com

(904) 791-1101

Florida Bar No.: 270040

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

CERTIFICATE OF SERVICE

I certify that on June 12, 2018, the foregoing was served via the e-portal to

Assistant Attorney General Lisa Hopkins at capapp@myfloridalegal.com and

lisa.hopkins@myfloridalegal.com, and Ann Finnell at afinnell@fmnlawyers.com.

/s/ Billy H. Nolas

Billy H. Nolas

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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.