Opposition Brief — Harry Jones, Petitioner v. Florida

NO. 18-7428

IN THE SUPREME COURT OF THE UNITED STATES

HARRY JONES,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

Janine D. Robinson

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

II.

Capital Case

Questions Presented

Whether this Court should grant certiorari review of the Florida Supreme

Court's decision that Hurst v. Florida and Hurst v. State do not apply

retroactively, where (1) the decision is based on adequate independent state

grounds; (2) the issue presents no conflict between the decisions of other state

courts of last resort or federal courts of appeal; (3) it does not conflict with this

Court’s precedent; and (4) no unresolved federal question is otherwise

presented.

Whether this Court should grant certiorari review of the Florida Supreme

Court’s rejection of Jones’ claims under Caldwell v. Mississippi, where (1) his

death sentence does not violate Caldwell, the Fifth, Sixth, Eighth and

Fourteenth Amendments; (2) the jury was not misled about its sentencing role,

nor was the jury’s sense of responsibility diminished; (8) the issue presents no

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

courts of appeal; (4) it does not conflict with this Court’s precedent; and (5) no

unresolved federal question is otherwise presented.

TABLE OF CONTENTS

PAGE(S)

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

Table of Contents 00.0.2... ececscceeeesseeeceseneceeseaeeesesneesccueesenatecssnueeeeesuseeeseaaeeessasseseaseaesseeees ll

Table of Citations and Authorities ............cecscessssesseceseceeseeesseeesenecessaesessseseonseesseessaeees iv

Opinion Below .............ccccccccccccsccescesccesesssssneseeeeececcusneesseeecseeseeeseseneeceeesncccscsseasussasesseenes 1

JULISCICCION .........ceeeeceecsnececesnsseceeessnecessaneeeessecesenseesenscesensaeeessaeeeeseaaceeesssaseeeeanseeeensaeessnaes 1

Constitutional Provisions Involved 000.0... :ecssceesseeeseesneessacecsseecesneeessneceseeesaeeesaneeseaes 2

Statement of the Case and Procedural History ............ccccccccseeseccccceeeessssssscssssessssssseneees 3

Reasons for Denying the Writ.................csscsscesesccccesesseaseeecaseceseseeneesnecneccesnsnsnseseueseneeeeees 7

TISSUE Doce eeeeeeeneeessneceseeeceaceessnecsueeseaeesseeseacesesseesaeessaaeeaeeseeseessseeeseesesneeenses 8

WHETHER THIS COURT SHOULD GRANT REVIEW OF THE FLORIDA

SUPREME COURTS HOLDING THAT HURST DID NOT APPLY

RETROACTIVELY TO JONES AND DOES NOT VIOLATE THE EIGHTH

AMENDMENT.

There is no Basis for Certiorari Review of the Florida Supreme Court’s

Denial of Retroactive Application of Hurst to Petitioner .............c.:c0ccsceeeees 8

Hurst is Not Retroactive Under Federal Law Because it Invoked a

Procedural Change, Not a Substantive Change ................cccccsseesesesneeeeneees 17

Florida’s Amended Death Penalty Statute is Not Retroactive and Does

Not Invalidate Any Prior Conviction. ................cccccccccseessssceccececesevsescevcessees 21

TISSUE IL... ieee ceccsesssssnssscceccecccceccessssnnsceeceececsuesscacecacceaceescescesseevensnnseneaneas 28

WHETHER THIS COURT SHOULD GRANT REVIEW OF THE FLORIDA

SUPREME COURT'S DECISION THAT JONES’ SENTENCE DOES NOT

VIOLATE CALDWELL V. MISSISSIPPI OR THE EIGHTH AMENDMENT.

li

Jones’ Death Sentence Comports with Caldwell As the Jury Was

Not Misled About Its Role, Was Informed that Their Advisory

Recommendation Would be Given “Great Weight” by the Trial Court,

and Its Sense of Responsibility Was Not Diminished ......................ece eee 29

The Petition Does Not Present an Unresolved Federal Question

and the Florida Supreme Court’s Decision Does Not Conflict With

Any Federal or Appellate Court or Other State Supreme Court ............... 34

COnClUSION ...............cccccccccecescesssssenessscscsnenceeseccecceecsssssnceceatcessaeessesuenscrecsaceaaeeceseseeseeesers 37

Certificate of Service ...............::::csscessccsscccecceccecesecsscseccacssssecseesecseeeaaceasecseecceeseeseneneessens 38

iii

TABLE OF CITATIONS AND AUTHORITIES

Almendarez-Torres v. United States, 523 U.S. 224 (1998)......ccccccccccsscccssssesessecsseeesees 10

Apodaca v. Oregon, 406 U.S. 404 (1972) .....ecccccceccecssssscsscsscsecsecsecsecssesssesecsseseeenseceece 26

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........ccccccsccsccsssssscsesseseeesesssessenssessesesens 15

Asay v. Florida, 138 S. Ct. 41 (2017) ......cccccsessesssesseseesesssansessesnseeeneasseenesnsnesseneassesnees 6

Asay v. State, 210 So. 8d 1 (Fla. 2016) .....cccccccccccccsccssecssssssssssssssssscssecseecnsesseess passim

Atkins v. Virginia, 586 U.S. 804 (2002)........ccccccccscssccssssssssssscsscsccssscsecesscseeessseeesasees 20

Belcher v. Sec'y, Fla. Dept. of Corr., 427 Fed. Appx. 692 (11th Cir. 2011) ......0.000... 36

Blackwell v. State, 79 So. 731 (Fla. 1918) .....ccececccessesscccsseccsescccececececeesscecessecserseeenees 32

Bowling v. Parker, 344 F.3d 487 (6th Cir. 2008) oo...c.cccccecccccccsscsesssereeseesessesseeees 36

Branch v. Florida, 138 S. Ct. 1164 (2018) wo..cecccccccccccssccsscscccsseccsscssesssesseeesessseees 9,14

Branch v. State, 234 So. 3d 548 (Fla. 2018) ......cccccccscseccsseccessccsesseeseceesnceceeceesseeeece 9,14

Braxton v. United States, 500 U.S. 344 (1991) wo... eccececsccsecesececseccccsececeescescesceeseees 34

Caldwell v. Mississippi, 472 U.S. 320 (1985) ...cccceccsccssscessessesscseeceesecseeeseenseanes passim

Cardinale v. Louisiana, 394 U.S. 437 (1969) ......cccsccccesccccsccccecccencecsscceeesseceessecsscceess 34

Danforth v. Minnesota, 552 U.S. 264 (2008) ........ceccesesssseccsssccsseseeccencceseceseccesaceess 9,12

Davis v. Singletary, 119 F.3d 1471 (11th Cir. 1997) occ eececceesesceesceeseeseeeees 35,36

Dobbert v. Florida, 432 U.S. 282 (1977) .......ssssscessesecseseseseereassesesseaeeeseseeeeseeeeeseas 16,17

Dugger v. Adams, 489 U.S. 401 (1989) oo... eeseseesessseseeeeseneeteseseseeseseeeeeseneateeeeeas 29,36

Eisenstadt v. Baird, 405 U.S. 438 (1972) .......cecsessessessseescseeseeeeseeneassesseaeeasseaneasaeseenees 16

lv

F. &. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) 0... cccccsccccssccecescesceesscers 16

Fiore v. White, 531 U.S. 225 (2001) 0... cece seeeeseseeeeseeseeseseeseneaeeveaeeeeneeseaseneaeaees 26,27

Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., 67 So. 3d. 187 (Fla.

QOL) occ esececesseseeeseeseecsncsesceenesesssesacsesecsesesenesesesneacacsaceeseaecusseaeaeeesueaeseaeeneatseeesseetaeeees 22

Fleenor v. Anderson, 171 F.3d 1096 (7th Cir. 1999) .......ccccecccscccccceeeseesessecssceeeeceasenens 36

Florida v. Hurst, 137 S. Ct. 2161 (2017)... cc cceseccsecsecceesceescssecsecscececeseccceseceseeesscenecees 6

Floyd v. State, 497 So. 2d 1211 (Fla. 1986) ......ccccccsccccscsscsssscssssessssssscsssaseassarsaeeseeees 24

Fox Film Corp. v. Muller, 296 U.S. 207 (1985) ....cccccccccsssscssssscssesesssssssesssnessesesees 34

Franklin v. Florida, 139 S. Ct. 479 (2018) w.cccccccccccscssssscssccssssssscsesesssceeseccesceseseeeceesneeess 9

Franklin v. State, 236 So. 3d 989 (Fla. 2018) ........cccccccccscccscecceececccessccessesecesnececsesaes 9

Furman v. Georgia, 408 U.S. 238 (1972) ....cccccccscsssessssscessessssscssseseessensseeeesaeees 16,17,20

Griffith v. Kentucky, 479 U.S. 814 (1987) ..ccccecscccsesscccscssesssssesssessssecssteeseees 14,15

Grim v. Florida, 139 S. Ct. 480 (2018) ........eecsccsessccesccecsececscccseececscecsateccseesaeeeeanecs 9

Grim v. State, 244 So. 3d 147 (Fla. 2018) ......cccccecscccsccecssccsccecceccccsscccsascesacessscsecensece 9

Guardado v. Florida, 139 S. Ct. 477 (2018) .......cecceescesscssecsescessecceccecscessesessesuceeeseceeseees 9

Guardado v. State, 238 So. 3d 162 (Fla. 2018) .......ccccccccsccecccesscecsccccsssecsssccesscessscccssasece 9

Hannon v. Florida, 138 S. Ct. 441 (2017) 0... e.csesessseseeseseeseceeseeeeeaeensaesesseeeeaceeeeeaeeenes 14

Hannon v. State, 228 So. 3d 505 (Fla. 2017)... .ceeececscecccececesecsscceseeseseececsenceeaceeeaees 14

Harris v. Alabama, 513 U.S. 504 (1995)... esseseesseseceseeseseeeeseseneeeseeneeeeneeeneeneeeseasees 19

Hitchcock v. Florida, 188 S. Ct. 513 (2017) w......eccccecseccceecececceecceeeceseeeeeeeseneess 6,7,8,9,14

Hitchcock v. State, 226 So. 3d 216 (Fla. 2017)................ veveececssececeuseeevsneeeeess 6,7,8,9,14

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

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

In re Coley, 871 F.3d 455 (6th Cir. 2017) .....cceccccccsccesesscssesscsecesesssesssaccassacsersenateeens 18

In re Jones, 847 F.3d 1293 (10th Cir, 2017) ....ccceccecessecscsccecssssscceesccecessceeceeececeaceeee 18

In re Winship, 397 U.S. 358 (1970)......cccccccecscsscsscsssssssssssssssssssssssssssssssscsassseseeessavars 26,27

Jenkins v. Hutton, 137 S. Ct. 1769 (2017) oo... ceecccsccssccesccescceseceesccsesceesceesescenscesees 10

Johnson v. Louisiana, 406 U.S. 356 (1972) ...ccccccscecccsscssesessesssssssccsscesscecseceececeeseeeeeee 26

Johnson v. New Jersey, 384 U.S. 719 (1966) ......cececccscsececcssssessesscsccsscessecesceceeceneeeees 12

Johnson v. State, 904 So. 2d 400 (Fla. 2005) ...........cccscccsccseccescecesceseccessceeceesecesesceeess 13

Johnston v. Florida, 139 S. Ct. 481 (2018) ..ececccccccccsscsscsscsssscsscsscssssessessevssecsaseeaseaes 9

Johnston v. Singletary, 162 F.3d 630 (11th Cir. 1998) ......cc.ccceceeeeeeeeeeseceeeceaseeeeeeee 36

Johnston v. State, 246 So. 3d 266 (Fla. 2018) ......ccccccccccscccccccsseccesssecssccesssecsececsuecesscece 9

Jones v. Florida, 515 U.S. 1147 (1995) cee cecccccssscceescececccceccccecsecsacccssssecssucesecsnscesenees 4

Jones v. Jones, SC16-607, 2017 WL 1034410 (Fla. Mar. 17, 2017) .........cccccecececeeeeeeeee 6

Jones v. Sec’y, Fla. Dept. of Corr., 187 S. Ct. 2245 (2017) .ccccceccccecscesscssscsssesssseeeseeees 5

Jones v. Sec’y, Fla. Dept. of Corr., 834 F.3d 1299 (11th Cir. 2016) 0... eee 5

Jones v. State, 256 So. 3d 801 (Fla. 2018) 0... cecceccssceeccsseccescesecsesseseeaceaeeees passim

Jones v. State, 53 So. 3d 230 (Fla. 2010) o......eeeceeeccesccessececcsecccseceescesccsececsscsacerecsaes 5,7

Jones v. State, 648 So. 2d 669 (Fla. 1994) ......ecececcccccccccecceccccessesscesessessecsscsuesseeens 3,10

Jones v. State, 998 So. 2d 578 (Fla. 2008) .......cccccccccesssesesesscesceceeccessceseecsesencesereaees 4,7

Kacamar v. Florida, 138 S. Ct. 1973 (2018)...........cccccccsccecsececceceesecsessecessecessessseceusecenes 35

vi

Kaczmar v. State, 228 So. 8d 1 (Fla. 2017) ..cccccccccccccccsscsssssssssesssecssscseseesessssseseneres 35

Kansas v. Carr, 1386 S. Ct. 638 (2016) ....eccecceecesececcceecceescececcecscecseccecsecsecssecececasescers 10

Kansas v. Marsh, 548 U.S. 163 (2006) .0.....ccccceccecccceceeecececeeeccesecesecsececseecenceccecsceenee 25

Lambrix v. Florida, 188 S. Ct. 312 (2017) .0....ecceeceescccececcesecccececeececececececeacesseecescess 9,14

Lambrix v. Jones, 136 S. Ct. 812 (2017) .....ccccccsecccssscsceseccssceeecseeceessaceseeeaseevseeseneeees 11

Lambrix v. Sec’y, Fla. Dept. of Corr., 872 F.3d 1170 (11th Cir. 2017) ............... passim

Lambrix v. State, 227 So. 3d 112 (Fla. 2017) .........cesesecesseseseeeseeseeesesesseseeeeeaessseeseess 9,14

Linkletter v. Walker, 381 U.S. 618 (1965) ..........ccscssseseeeceseesessceeesateneaeeneseceeaeeneaenees 12

Michigan v. Long, 463 U.S. 1032 (1988).......0.cccccsccsscesescseescsssssesscssseececseesecsecsevees 11,34

Middleton v. Florida, 138 S. Ct. 829 (2018) ........eesesesessesessessesneassssseeseeseeeeseeneeseeneeees 35

Middleton v. State, 220 So. 3d 1152 (Fla. 2017) ......eeceecessesssseceseeseeeesesescseeseneeaeeeeseees 35

Miles v. United States, 103 U.S. 304 (1880) .00........ccccccceccccecceececcecescecessecseccesssecencecees 24

Miller v. Alabama, 567 U.S. 460 (2012) ooo... cece cccceesecceesncecenccececcecereeecececceeeueceesscerees 17

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) 0... ceeceecccecceseceesccesncessceeecenss 17,18

Mosley v. State, 209 So. 8d 1248 (Fla. 2016) .........ccccccccccccsceesessseseesesceseeeseeees 11,12,13

Parker v. Dugger, 498 U.S. 808 (1991) .....ccccccceceecesscscecsccessssecseseeeceececseeceasvereeaeeeees 24

Penry v. Lynaugh, 492 U.S. 802 (1989) .....ccccccccccccccceccsecessccecscesessecssasensensesssens 15,17

Peterka v. Florida, 139 S. Ct. 181 (2018) o...ceececccecccsecccecceeccesecceseccseceeececececaceesececerees 9

Peterka v. State, 237 So. 3d. 903 (Fla. 2018) o.o....ceccccccsscccsecccescccecesececceceescesesceetsceesecees 9

Philmore v. Florida, 189 S. Ct. 478 (2018) w..cccccccsecscccsecccesscececccesstecesececeeseeessecsseees 9,35

Philmore v. State, 234 So. 3d 567 (Fla. 2018) wo...eeccccscccseccecccsecececccescecscececceuesseees 9,35

vil

Provenzano v. Singletary, 148 F.3d 13827 (11th Cir. 1998) oo... ec eeeeseeeeeeeeeeeeees 36

Pulley v. Harris, 465 U.S. 44 (1984) .oo.ccccccccccccsssecsscsecssscesceeseesesceeesecseeseceusessensansaess 20

Reynolds v. Florida, 139 S. Ct. 27 (2018) oo....eceeceeeesceeccceseceesecesacesenceseceseceaeees 28,32,35

Reynolds v. State, 251 So. 3d 811 (Fla. 2018) oo... ceeseeescesecceeseeeseeeeeee 7,28,29,30,35

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

Rockford Life Ins. Co. v. Ill. Dept. of Revenue, 482 U.S. 182 (1987) .......ccccscceeceeseeeee 28

Romano v. Oklahoma, 512 U.S. 1 (1994) oo. ccceeeccccecccessecsececeseseceesesenseesseseees 29, 35,36

Roper v. Simmons, 543 U.S. 551 (2005) .......esccessessesesseesesseseseesssesteseseesssneaneneneans 20,24

Schriro v. Summerlin, 542 U.S. 348 (2004) 0... cecccsccsesscessesecessecsesecesssecesceeseeneass 11,12

Smith v. State, 598 So. 2d 1063 (Fla. 1992) oo... ceeeccsescccssesscssecsecssceseceesececeeeeeeeeees 14

State v. Mason, 153 Ohio St. 3d 476 (Ohio 2018) .........cccccsccccsescencccccecessccsccesscssececeeees 10

Stovall v. Denno, 388 U.S. 293 (1967) .o.....esesssssessssessssessessseneaeeueseeeeseaeeesetsaeeesseeecenees 12

Tanzi v. Florida, 139 S. Ct. 478 (2018) ......esccsessessesseseeeatsaceseneeseseesessneenesseeaseeeaeeneeees 9

Tanzi v. State, 251 So. 3d 805 (Fla. 2018) ........cccsesccsssscsssesssescseenssecsessessassnssnsenseesaees 9

Teague v. Lane, 489 U.S. 288 (1989) oo... ceesecseesseeeeseceseesesesseseeneaeeeeseaeeneneensens 12,13,26

Truehill v. Florida, 138 S. Ct. 3 (2017) .....sessecsesssesessesseceseesseseesenesseaeeseesseeeenneaseeeaee 35

Truehill v. State, 211 So. 3d 980 (Fla. 2017) 0... ecsssecssseseceeseceseeseeesseneeseseeaeeenereesenes 35

Tuilaepa v. California, 512 U.S. 967 (1994) oo. eseseseeseeeeseseeeneaenecneaeeneeteeeneens 25

United States v. Johnston, 268 U.S. 220 (1925) .........cccccccccssccecceccsecessscecesssecsssseeecseees 29

United States v. Sampson, 486 F.3d 18 (1st Cir. 2007) 0.0... ceceeeeceeeeceeeseeees 10

Walls v. Florida, 139 S. Ct. 185 (2018) .......ccecccccescesecccsecccceeccceecccceeccecsscecsaucecsesececences 35

Walls v. State, 238 So. 3d 96 (Fla. 2018) .........cccccccccsccsccccessccccssssccsecccesssecesusceseeesssecees 35

Williams v. State, 595 So. 2d 936 (Fla. 1992) .......c...cccccceccceccccecsccesssseceescesssecensecesseeess 33

Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008) o.oo... ceeccescccceescceeeeccesecccesecerceeees 36

Witt v. State, 387 So. 2d 922 (Fla. 1980) ........ccseceesseseseseceeteeceseseseeteeeees 11,12,13,17,21

Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017) .0........:ccccccccccceccceescceescececceseseeeeaeeesees 18

Zeigler v. State, 580 So. 2d 127 (Fla. 1991)... cc ccc scssccsscsssssssesecsessssesssseeeseees 24

Other Authorities

28 U.S.C. § L257 ooo cccccccccesccecesseeececseneeeessneeessneecescecescacecsseeeesesaeeeesessneeseeseeecesaseeeeenseaes 1

Fla. Stat. § Q20.V4 0 ooo.ecceecescccccscccsssssssscscscssssssscsesvsesesecseecsceveuacacavacscevsceeeesecsese passim

Ind. Code § 85-50-2-9(@) .o.e.ececcccccccccccccccccccccesscceececeeececeecececececceeessecceececuesssseessessesecsuerss 36

Senate Bill Analysis and Fiscal Impact Statement, SB 280, Feb. 21, 2017 .............. 22

Sup. Ct. R. LO... ccccccscccesssssssessssssssessesneesssneesesnessessssesesasecscceecececsaccceceeecaeseeececeesaees 1

Sup. Ct. R. 14... ceccccssccccccesseeeeeeeeseessesnnaseeseececesssessscaeesseeeesesssasseasaacsnseeceeccsceeeceseasssseeees 1

1x

IN THE SUPREME COURT OF THE UNITED STATES

NO. 18-7428

HARRY JONES, Petitioner,

Vv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s decision petitioned for review appears as Jones

v. State, 256 So. 3d 801 (Fla. 2018).

JURISDICTION

This Court’s jurisdiction to review the final judgment of the Florida Supreme

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

decision in this case is based on independent state grounds, does not implicate an

important or unsettled question of federal law, does not conflict with another state

court of last resort or a United States court of appeals, and does not conflict with

relevant decisions of this Court. Therefore, this Court should decline to exercise

jurisdiction as no unresolved federal question is raised. Sup. Ct. R. 10, 14(g)@).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a grand jury, except in

cases arising in the land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without just

compensation.

The Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein

the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation: to be confronted with the witnesses against him:

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.

The Eighth Amendment to the United States Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution, section one:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law: nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioner Harry Jones was charged with first-degree murder, robbery, and

grand theft of a motor vehicle in July 1991. The facts of the case are set forth in his

direct appeal, Jones v. State, 648 So. 2d 669 (Fla. 1994) (rehearing denied). In sum,

the victim, George Young, was at a liquor store when Jones entered the store with a

friend, Timothy Hollis, who was intoxicated. Hollis appeared to get sick and Jones

took him to the restroom. The victim later helped Jones take Hollis outside and then

offered to drive the men home in Young’s vehicle. Approximately one hour later,

Young’s truck was involved in an accident, with Jones as the only occupant. Young’s

body was found five days later, a victim of fresh-water drowning in an area witnesses

stated Jones was previously seen. Jd. at 672-738.

Jones’ first trial resulted in a hung jury and mistrial but, was found guilty as

charged in the second trial. Jones, 648 So. 2d at 672. The trial court sentenced Jones

to death following the jury’s recommendation of a death sentence by a 10-2 vote.

Three aggravating factors (“aggravators”) were found: (1) Jones was previously

convicted of a prior violent felony; (2) the murder was committed while Jones was

engaged in the commission of a robbery; and (8) the murder was especially heinous,

atrocious, or cruel (HAC). /d. at 673; nn. 1, 2. The trial court found one statutory

mitigating circumstance (“mitigator”), that Jones’ capacity to appreciate the

criminality of his conduct or to conform this conduct to the requirements of law was

substantially impaired; and two nonstatutory mitigators (Jones suffered from a

traumatic childhood and had the love and support of his family). Jd. at 673. The

Florida Supreme Court affirmed Jones’ conviction and death sentence on November

10, 1994. Jd. (rehearing denied). His conviction and sentence became final when this

Court denied certiorari. Jones v. Florida, 515 U.S. 1147 (1995).

Jones filed his initial motion for postconviction relief in 1997, but amended it

five years later, in 2003. Jones v. State, 998 So. 2d 573 (Fla. 2008) (rehearing denied).

Following an evidentiary hearing in 2004 on several of Jones’ postconviction claims,

the trial court denied his motion, which was upheld on appeal by the Florida Supreme

Court. Jd. at 579, 589.

Jones’ original state habeas petition filed in 2007 claimed (1) Florida’s capital

sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002);

and (2) Florida’s standard penalty phase jury instructions shifted the burden of proof

and diluted the jury’s responsibility by labeling their sentencing verdict “advisory”

and violative of the Sixth Amendment. Jones, 998 So. 2d at 589. The Florida

Supreme Court denied the petition holding that Ring did not retroactively apply to

Jones’ conviction and death sentence, which occurred seven years prior to Ring. Id.

Regarding Florida’s penalty phase jury instructions and Jones’ claim of “burden

shifting,” the Florida Supreme Court held that the claim was both procedurally

barred and without merit. Jd. Finally, as to Jones’ challenge that the jury’s

responsibilities were diluted, the Florida Supreme Court found this claim was not

only to be procedurally barred, but substantively rejected it stating, “[wle have

consistently held that the standard penalty phase jury instructions fully advise the

jury of the importance of its role, correctly state the law, do not denigrate the role of

the jury, and do not violate Caldwell v. Mississippi, 472 U.S. 320 (1985)... .” Jd. at

590.

In 2005 and 2007, Jones filed supplemental and successive postconviction

motions challenging his conviction and sentence alleging newly discovered evidence

and due process rights violation regarding the trial court’s adoption of a State

proposed order. The trial court summarily denied Jones’ motions as untimely and

without merit. Jones v. State, 583 So. 3d 230 (Fla. 2010). The Florida Supreme Court

affirmed summary denial of the motions on the merits. Jd.

In 2011, Jones filed an amended federal habeas petition with the United States

District Court, Northern District of Florida raising ineffective assistance of counsel

claims. Jones v. Sec’y, Fla. Dept. of Corr., 834 F.3d 1299, 1305 (11th Cir. 2016). The

District Court denied the petition and the United States Court of Appeals, Eleventh

Circuit affirmed. /d. at 1323; Order Denying Petition October 1, 2013, 4:09-cv-0054-

RH-CAS, cert. denied, Jones v. Sec’y, Fla. Dept. of Corr., 137 S. Ct. 2245 (2017).

In 2016, Jones filed a successive habeas petition with the Florida Supreme

Court following this Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016) (“Hurst

v. Florida’). Jones v. State, 256 So. 3d 801 (Fla. 2018). Jones argued the trial judge,

rather than the jury made sufficient findings of aggravating circumstances. In Hurst

v. Florida, this Court held that Florida’s capital sentencing scheme was

unconstitutional pursuant to Aings determination that the Sixth Amendment

requires a jury to find the existence of an aggravating circumstance which qualifies

a defendant for a sentence of death. On remand in Hurst v. State, the Florida

Supreme Court held that in capital cases, the jury must unanimously and expressly

find that the aggravating factors were proven beyond a reasonable doubt,

unanimously find that the aggravating factors are sufficient to impose death,

unanimously find that the aggravating factors outweigh the mitigating

circumstances, and unanimously recommend a sentence of death. Hurst v. State, 202

So. 3d 40 (Fla. 2016), cert. denied, Florida v. Hurst, 137 8. Ct. 2161 (2017).

Jones’ habeas petition was denied on March 17, 2017, based on Asay v. State,

210 So. 3d 1, 22 (Fla. 2016) (holding Hurst does not apply retroactively to cases which

became final prior to Ring), cert. denied, Asay v. Florida, 138 S. Ct. 41 (2017). See

Jones v. Jones, SC16-607, 2017 WL 1034410 (Fla. Mar. 17, 2017).

While his successive state habeas petition was pending, Jones filed a

successive postconviction motion in the trial court raising Hursfrelated issues.

Jones, 256 So. 3d at 802. The trial judge summarily denied the motion after the

Florida Supreme Court denied the habeas petition and Jones appealed. Jd.

During pendency of the appeal, the Florida Supreme Court ordered briefing by

both parties addressing why the trial court’s order denying Jones’ Hurs¢ claims

should not be affirmed in light of its recent decision in Hitchcock v. State, 226 So. 3d

216 (Fla. 2017), cert. denied, Hitchcock v. Florida, 138 S. Ct. 513 (2017), as well as

briefing on non- Hurst issues. Jones, 256 So. 3d at 802. After reviewing each party’s

response, the Florida Supreme Court denied all relief in Jones’ case, holding,

In Hitchcock, we held that “our decision in [Asay] forecloses relief

under Hurst for defendants whose convictions and sentences were final

prior to [Ring]. . . . Thus, because his sentence became final prior to

Ring, Jones is not entitled to Hurst relief. .. . Jones’s claim that his

death sentence violates [Caldwell and the Eighth Amendment is

foreclosed by our recent decision in Reynolds v. State, 251 So. 3d 811,

82548 [sic] ([Fla.] 2018), in which we held that “a Caldwell claim based

on the rights announced in Hurst and Hurst v. Florida cannot be used

to retroactively invalidate the jury instructions that were proper at the

time under Florida law.”

Id.1 It is this decision by the Florida Supreme Court upon which the instant Petition

is based. This is the State’s Brief in Opposition.

REASONS FOR DENYING THE WRIT

Jones seeks certiorari review of the Florida Supreme Court’s decision affirming

the trial court’s denial of his successive motion for postconviction relief and petition

for writ of habeas corpus. The Petition is based on Jones’ death sentence which

became final pre- ing and seeks this Court’s intervention for denial of retroactive

application of Hurst v. Florida and Hurst v. State. Jones claims violations of the Fifth

Amendment’s guarantee of fundamental fairness; the Sixth Amendment’s guarantee

that requisite statutory facts are found prior to the imposition of a death sentence;

the Eighth Amendment’s prohibition against arbitrary and capricious imposition of

1 Jones raised the newly discovered evidence claim regarding state witness Kevin Prim in his

postconviction motions and petitions dating back to 2008. This claim was consistently rejected by the

trial court and on appeal, including the opinion which is the basis of this Petition. See Jones, 998 So.

2d at 578, n. 2; Jones, 53 So. 3d at 230. However, the Petition omits any discussion of this claim.

7

the death penalty through Florida’s partial retroactivity analysis; and the Fourteenth

Amendment’s guarantee of equal protection. Petition at 13-26. However, Florida’s

retroactivity analysis is undisputedly a matter of state law and its retroactive

application of Hurst to only post: Ring cases does not violate the Fifth, Sixth, Eighth,

or Fourteenth Amendment. Second, Jones seeks review of his sentence as violative

of Caldwell, alleging that the jury was misled and its role diminished. These issues

have no merit and do not warrant review.

ISSUE I

WHETHER THIS COURT SHOULD GRANT REVIEW OF THE

FLORIDA SUPREME COURT’S HOLDING THAT HURST DID NOT

APPLY RETROACTIVELY TO JONES AND DOES NOT VIOLATE

THE EIGHTH AMENDMENT.

There is no Basis for Certiorari Review of the Florida Supreme Court’s

Denial of Retroactive Application of Hurst to Petitioner.

Jones seeks certiorari review of the Florida Supreme Court’s decision holding

that Hurst v. State is not retroactive and did not violate the Eighth Amendment,

based on its precedent in Eitchcock, “because [Jones’] sentence became final prior to

Ring.” Jones, 256 So. 3d at 802. However, the issue of partial retroactivity is solely

a matter of state law and the Florida Supreme Court’s decision is based upon

adequate state grounds. This Court does not review decisions that are based solely

on state law. No constitutional violations exist where Florida’s retroactive

application of Hurst applies to only post-Ring cases. This Court directly held that

states are free to have their own tests for retroactivity which provide more relief and

include partial retroactivity. Danforth v. Minnesota, 552 U.S. 264 (2008) (recognizing

that a state court’s retroactivity determination is a matter of state law). The Florida

Supreme Court’s decision does not conflict with this Court’s jurisprudence on

retroactivity, nor with any other state court of last review, and is not in conflict with

any federal appellate court. Thus, Jones’ request for certiorari review should be

denied.?

Aside from the question of retroactivity, certiorari would be inappropriate

because there is no underlying federal constitutional error. Hurst v. Florida did not

address the process of weighing the aggravating and mitigating circumstances or

suggest that the jury must conduct the weighing process to satisfy the Sixth

Amendment.

Jones became eligible for a death sentence by virtue of his previous conviction

for an unrelated violent felony, as well as “the automatic application of the ‘during

the course of a felony’ aggravator” under Florida Statutes § 921.141(5)(b) in the

2 This Court has repeatedly denied certiorari to review the Florida Supreme Court’s retroactivity

decisions following the issuance of Hurst v. State. See, e.g., Hitchcock v. State, 226 So. 3d 216 (Fla.

2017), cert. denied, Hitchcock v. Florida, 1388 S. Ct. 513 (2017); Lambrix v. State, 227 So. 3d 112, 113

(Fla. 2017), cert. denied, Lambrix v. Florida, 138 S. Ct. 312 (2017); Branch v. State, 234 So. 3d 548,

549 (Fla. 2018), cert. denied, Branch v. Florida, 138 S. Ct. 1164 (2018); Jones v. State, 234 So. 3d 545

(Fla. 2018), cert. denied, Jones v. Florida, 138 S. Ct. 2686 (2018); Peterka v. State, 237 So. 3d 903 (Fla.

2018), cert. denied, Peterka v. Florida, 139 8. Ct. 181 (2018); Johnston v. State, 246 So. 3d 266 (Fla.

2018), cert. denied, Johnston v. Florida, 139 S. Ct. 481 (2018); Grim v. State, 244 So. 3d 147 (Fla. 2018),

cert. denied, Grim v. Florida, 139 S. Ct. 480 (2018); Franklin v. State, 236 So. 3d 989 (Fla. 2018), cert.

denied, Franklin v. Florida, 139 8. Ct. 479 (2018); Philmore v. State, 234 So. 3d 567 (Fla. 2018), cert.

denied, Philmore v. Florida, 139 S. Ct. 478 (2018); Tanzi v. State, 251 So. 3d 805 (Fla. 2018), cert.

denied, Tanzi v. Florida, 139 S. Ct. 478 (2018); and Guardado v. State, 238 So. 3d 162 (Fla. 2018), cert.

denied, Guardado v. Florida, 139 S. Ct. 477 (2018).

9

instant case. Jones, 648 So. 2d at 673, nn. 1, 2. The unanimous verdict by Jones’ jury

establishing his guilt of this contemporaneous crime (robbery), an aggravator under

well-established Florida law, was clearly sufficient to meet the Sixth Amendment’s

fact-finding requirement. See Jenkins v. Hutton, 137 S. Ct. 1769, 1772 (2017) (noting

that the jury’s findings that defendant engaged in a course of conduct designed to kill

multiple people and that he committed kidnapping in the course of aggravated

murder rendered him eligible for the death penalty); Kansas v. 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 question is “mostly a question of mercy”). See also State v. Mason, 153

Ohio St. 3d 476, 483, 485 (Ohio 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 fact-finding process subject

to the Sixth Amendment.”); 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.”). Jones’ previous violent felony conviction further satisfied the Sixth

Amendment requirements in accordance with Almendarez-Torres v. United States,

523 U.S. 224 (1998). Thus, there was no Hurst v. Florida error in this case.

Additionally, Hurst is not retroactive under federal law. “Ring announced a

new procedural rule that does not apply retroactively to cases already final on direct

10

review.” Schriro v. Summerlin, 542 U.S. 348, 358 (2004). Since Hurstis an extension

of Ring, it is also not retroactive under federal law. Hurst, 136 S. Ct. at 622 (“As with

Ring, a judge increased Hurst’s authorized punishment based on her own factfinding.

In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment.”); see

also Lambrix v. Sec’y, Fla. Dept. of Corr., 872 F.3d 1170, 1182 (11th Cir. 2017) (“No

U.S. Supreme Court decision holds that its Hurst decision is retroactively

applicable.”), cert. denied, Lambrix v. Jones, 138 8. Ct. 312 (2017).

This Court does not review state court decisions that are based on adequate

and independent state grounds. See Michigan v. Long, 468 U.S. 1032, 1040 (1983)

(“Respect for the independence of state courts, as well as avoidance of rendering

advisory opinions, have been the cornerstones of this Court's refusal to decide cases

where there is an adequate and independent state ground.”). Since Hurst is not

retroactive under federal law, the retroactive application of Hurst is solely based on

a state test for retroactivity. Because the retroactive application of Hurstis based on

adequate and independent state grounds, certiorari review should be denied.

The Florida Supreme Court first analyzed the retroactive application of Hurst

in Mosley v. State, 209 So. 3d 1248, 1276-83 (Fla. 2016), and Asay, 210 So. 3d at 15-

22. In Mosley, the Florida Supreme Court held that Hurst is retroactive to cases

which became final after the June 24, 2002, decision in Ring. Mosley, 209 So. 3d at

1283. In determining whether Hurst should be retroactively applied to Mosley, the

Florida Supreme Court conducted a Witt analysis which sets forth the state-based

11

test for retroactivity. Witt v. State, 387 So. 2d 922, 926 (Fla. 1980) (determining

whether a new rule should be applied retroactively by analyzing the purpose of the

new rule, extent of reliance on the old rule, and the effect of retroactive application

on the administration of justice) (citing Stovall v. Denno, 388 U.S. 293, 297 (1967);

Linkletter v. Walker, 381 U.S. 618 (1965)). The same day the Florida Supreme Court

decided Mosley, it held in Asay that Hurst does not apply retroactively to cases which

became final prior to Ring. Asay, 210 So. 3d at 22.

Since “finality of state convictions is a state interest, not a federal one,” states

are permitted to implement standards for retroactivity that grant “relief to a broader

class of individuals than is required by Teague,” which provides the federal test for

retroactivity. Danforth, 552 U.S. at 280-81 (emphasis in original); Teague v. Lane,

489 U.S. 288 (1989); see also Johnson v. New Jersey, 384 U.S. 719, 733 (1966) (“Of

course, States are still entirely free to effectuate under their own law stricter

standards than those we have laid down and to apply those standards in a boarder

range of cases than is required by this [Court].”).

As Hing and by extension Hurst, have been held not to be retroactive under

federal law, Florida has implemented a test which provides relief to a broader class

of individuals by applying a Witt analysis, instead of Teague, for determining the

retroactivity of Hurst. See Schriro, 542 U.S. at 258 (holding that “Ring announced a

new procedural rule that does not apply retroactively to cases already final on direct

review”); see also Lambrix, 872 F.3d at 1182-83.

12

The Florida Supreme Court determined that all three Witt factors weighed in

favor of retroactive application of Hurst to cases which became final post- Ring.

Mosley, 209 So. 3d at 1276-83. The Court concluded that “defendants who were

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

Ringshould not be penalized for the United States Supreme Court’s delay in explicitly

making this determination.”? /d. at 1283. Thus, the Florida Supreme Court held

Hurst to be retroactive to Mosley, whose case became final in 2009, which is post-

Ring. Id.

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

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

pre-Aing. Mosley, 209 So. 3d at 1283. The Court specifically noted that Witt

“provides more expansive retroactivity standards than those adopted in Teague.”

Asay, 210 So. 3d at 15 (emphasis in original), quoting, Johnson v. State, 904 So. 2d

400, 409 (Fla. 2005). However, the Court determined that prongs two and three of

the Witt test, reliance on the old rule and effect on the administration of justice,

weighed heavily against the retroactive application of Hurst to pre-Ring cases. Id. at

20-22. Relating to reliance on the old rule, the Court noted “the State of Florida in

prosecuting these crimes, and the families of the victims, had extensively relied on

3 Under this rationale, it would not make sense to grant relief only to those who raise Ring claims in

the 14 years between Hing and Hurst, as this would encourage frivolous claims in the hope that

subsequent vindication could provide a basis of relief for a future change in the law. Nor should a

defendant who failed to raise a claim that appeared to be well settled against him/her be punished for

not raising what he/she believed to be a frivolous claim.

13

the constitutionality of Florida’s death penalty scheme based on the decisions of the

United States Supreme Court. This factor weighs heavily against retroactive

application of Hurst v. Florida to this pre- Ring case.” Jd. at 20. Relating to the effect

on the administration of justice, the Court noted that resentencing is expensive and

time consuming and that the interests of finality weighed heavily against retroactive

application. /d. at 21-22. Thus, the Florida Supreme Court held that Hurst was not

retroactive to Asay since the judgment and sentence became final in 1991, pre- Ring.

Id. at 8, 20.

Since Asay, the Florida Supreme Court has continued to apply Hurst

retroactively to all post-Aing cases and declined to apply Hurst retroactively to all

pre-Ringcases. See e.g., Hitchcock, supra; Lambrix v. State, 227 So. 3d 112, 113 (Fla.

2017), cert. denied, Lambrix v. Florida, 138 S. Ct. 312 (2017); Hannon v. State, 228

So. 3d 505, 513 (Fla. 2017), cert. denied, Hannon v. Florida, 138 S. Ct. 441 (2017);

Branch v. State, 234 So. 3d 548, 549 (Fla. 2018), cert. denied, Branch v. Florida, 138

S. Ct. 1164 (2018). This distinction among cases which were final pre- Ring versus

cases which were final post- Hing, is neither arbitrary nor capricious.

In the traditional sense, new rules are applied retroactively only to cases which

are not yet final. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“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”); Smith v. State, 598 So.

14

2d 1063, 1066 (Fla. 1992) (applying Griffith to Florida defendants); Penry v. Lynaugh,

492 U.S. 302, 314 (1989) (holding finality concerns in retroactivity are applicable in

the capital context). Under this “pipeline” concept, Hurst would only apply to the

cases which were not yet final on the date of the decision in Hurst. This type of

traditional retroactivity can depend on a score of random factors having nothing to

do with the offender or the offense, such as trial scheduling and docketing on appeal.

Even under the “pipeline” concept, cases whose direct appeal were decided on

the same day might have their judgment and sentence become final on either side of

the line for retroactivity. Additionally, under the “pipeline” concept, “old” cases where

the judgment and/or sentence has been overturned will receive the benefit of new law

as they are no longer final. Yet, this Court recognizes this type of traditional

retroactivity as proper and not violative of the Eighth or Fourteenth Amendment.

The only difference between this more traditional type of retroactivity and the

retroactivity implemented by the Florida Supreme Court is that it stems from the

date of the decision in fing, rather than from the Hurst decision date. In moving the

line of retroactive application back to Ring,4 the Florida Supreme Court reasoned that

since Florida’s death penalty sentencing scheme should have been recognized as

unconstitutional upon the issuance of the decision in Ring, defendants should not be

penalized for time that it took for this determination to be made official in Hurst.

4 Though Apprendi served as a precursor to fing, this Court distinguished capital cases from its

holding in Apprendi and thus Hingis the appropriate demarcation for retroactive application to capital

cases. Asay, 210 So. 3d at 19; Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).

15

The Florida Supreme Court has demonstrated “some ground of difference that

rationally explains the different treatment” between pre-Aing and post- Ring cases.

Eisenstadt v. Baird, 405 U.S. 488, 447 (1972); see also F. S. Royster Guano Co. v.

Virginia, 253 U.S. 412, 415 (1920) (To satisfy the requirements of the Fourteenth

Amendment, “classification must be reasonable, not arbitrary, and must rest upon

some ground of difference having a fair and substantial relation to the object of the

legislation, so that all persons similarly circumstanced shall be treated alike.”).

Unquestionably, extending relief to more individual defendants who would not

receive the benefit of a new rule because their cases were already final when Hurst

was decided, does not violate the Eighth or Fourteenth Amendment. Thus, just like

the more traditional application of retroactivity, the Aing based cutoff for the

retroactive application of Hurst is not in violation of the Eighth or Fourteenth

Amendment.

Jones argues that the Florida Supreme Court is being unfair in selectively

applying Hurst to “similarly situated” defendants, namely those who “were free of the

shackles of finality.” (Petition at 16). However, in the wake of Furman v. Georgia,

408 U.S. 238 (1972), similar Equal Protection claims were rejected. See also Lambrix,

872 F.3d at 1183; Dobbert v. Florida, 432 U.S. 282, 301 (1977). These claims were

based on the two-category division of pre- Furman cases; those who were subject to

the new statute because they had not yet been tried and those whose cases were

commuted because they were already final. Dobbert, 432 U.S. at 288, 301. This Court

16

held that defendants who had yet to be tried and sentenced were “not similarly

situated to those whose sentences were commuted. He was neither tried nor

sentenced prior to Furman, as were they... .” /d. at 301.

Just as with the categorization of cases after Furman, post- Hurst, “Florida

obviously had to draw the line at some point.” Dobbert, 432 U.S. at 301. As such,

Jones is not similarly situated to those who are receiving a new sentencing phase

pursuant to Hurst as his judgment was final pre- Ring. The Florida Supreme Court’s

determination of the retroactive application of Hurst under Wittis based on adequate

and independent state grounds and is not violative of federal law or this Court’s

precedent. Thus, certiorari review should be denied.

Hurst is Not Retroactive Under Federal Law Because it Invoked

a Procedural Change, Not a Substantive Change.

Jones also argues that Hurst provided a substantive change in the law, rather

than a procedural change and therefore should be afforded full retroactive application

under federal law. In support, Jones analogizes Hurst to this Court’s holding in

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and commentary on Miller v.

Alabama, 567 U.S. 460, n. 4 (2012) (prohibition on mandatory life sentences without

parole for juvenile offenders announced a new substantive rule). Petition at 25-26.

In Montgomery, this Court found the change was substantive because “it

rendered life without parole an unconstitutional penalty for ‘a class of defendants

because of their status.” Montgomery, 136 S. Ct. at 734, quoting Penry, 492 U.S. at

330; Summerlin, 542 U.S. at 352. The change was found to be retroactive because

17

the rule “necessarily carrlies] a significant risk that a defendant ... faces a

punishment that the law cannot impose upon him.” Jd. Unlike Montgomery,

however, Hurst did not “conflatel | a procedural requirement necessary to implement

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

the defendant’s culpability.” Jd. at 734-35, quoting, Summerlin, 542 U.S. at 353

(emphasis in original). Thus, Hurst is distinguishable from Montgomery.

Hurst, like Ring, was a procedural change, not substantive one. See

Summerlin, 542 U.S. at 358 (“Ring announced a new procedural rule that does not

apply retroactively to cases already final on direct review.”). Like Ring, Hurst is not

retroactive under federal law. See also Lambrix, 872 F.3d at 1182, supra; Ybarra v.

Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017) (holding that “Hurst does not apply

retroactively to cases on collateral review”); In re Coley, 871 F.3d 455, 457 (6th Cir.

2017) (noting that this Court had not made Hurst retroactive to cases on collateral

review); Jn re Jones, 847 F.3d 1298, 1295 (10th Cir. 2017) (‘the Supreme Court has

not held that Hurst announced a substantive rule”).

Unlike the change in Montgomery, Hurst is procedural. In Hurst the same

class of defendants committing the same range of conduct face the same punishment.

Further, unlike the now unavailable penalty in Montgomery, the death penalty can

still be imposed under the law after Hurst. Instead, Hurst, like Ring, merely “altered

the range of permissible methods for determining whether a defendant’s conduct is

punishable by death, requiring that a jury rather than a judge find the essential facts.

18

bearing on punishment.” Summerlin, 542 U.S. at 353. Thus, Hurst is a procedural

change and not retroactive under federal law.

Jones argues that the Florida Supreme Court’s imposition of the unanimity

requirement in Hurst v. State causes all non-unanimous verdicts to be violative of

the Eighth Amendment and that “evolving standards of decency” and “enhanced

reliability and confidence in the result” necessitate unanimous recommendations in

all death penalty cases. Petition at 21-23. On the contrary, the Florida Supreme

Court’s imposition of the unanimity requirements in Hurst v. State is purely a matter

of state law, is not a substantive change, and did not cause death sentences imposed

pre- Ring to be in violation of the Eighth Amendment.

To the extent Jones suggests that jury sentencing is now required under

federal law, this is not the case. See Ring, 536 U.S. at 612 (Scalia, J., concurring)

(“[Tloday’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 “imposling] a capital

sentence”). This Court has not mandated jury sentencing in a capital case and such

a holding would require reading a mandate into the Constitution that is simply not

there. The Constitution provides a right to trial by jury, not to sentencing by jury.

The Eighth Amendment requires capital punishment to be limited “to those

who commit a ‘narrow category of the most serious crimes’ and whose extreme

19

233

culpability makes them ‘the most deserving of execution.” Roper v. Simmons, 543

U.S. 551, 568 (2005), quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002). As such,

the death penalty is limited to a specific category of crimes and “States must give

narrow and precise definition to the aggravating factors that can result in a capital

sentence.” /d. In finding Florida’s death penalty unconstitutional, this Court did not

invalidate Florida’s statutory scheme based on Eighth Amendment narrowing

concerns. Implicit in the holding of Hurst v. Florida was that Florida’s statutory

scheme sufficiently narrowed and was in compliance with the Eighth Amendment.

However, many states also add protections that go above and beyond the

requirements of the Eighth Amendment. Often times, these additional state-based

requirements are forward-looking in anticipation of evolving standards of decency to

ensure that their capital sentencing schemes will remain constitutionally valid in the

future. These additional protections are based on adequate and independent state

grounds. For example, after this Court's Furman decision, many states redrafted

their capital sentencing statutes adding a statutory requirement to review whether

a capital “sentence is disproportionate to that imposed in similar cases” to “avoid

arbitrary and inconsistent results.” Pulley v. Harris, 465 U.S. 37, 44 (1984); Furman,

408 U.S. 238. As this Court noted, “[plroportionality review was considered to be an

additional safeguard against arbitrarily imposed death sentences, but we certainly

did not hold that comparative review was constitutionally required.” Pulley, 465 U.S.

at 50.

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