Opposition Brief — Paul William Scott, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

CASE NO. 18-7569

IN THE SUPREME COURT OF THE UNITED STATES

PAUL SCOTT,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

ASHLEY MOODY

Attorney General

Tallahassee, Florida

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

CELIA TERENZIO

Chief Assistant Attorney General

Office of the Attorney General

1515 N Flagler Dr. Suite 900

West Palm Beach, Florida 33401

Telephone: (561) 268-5315

Celia.Terenzio@myfloridalegal.com

[Capital Case]

QUESTION PRESENTED FOR REVIEW

Whether this Court should grant certiorari review where the

Florida Supreme Court denied a claim related to the relative culpability

of two co-defendants which is based on an adequate independent state

ground, the issue presents no conflict between the decisions of other

state courts of last resort or federal courts of appeal, it does not conflict

with this Court’s precedent, and, does not otherwise raise an important

federal question.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW... cciceccccccscseeenecsseeesesssseeensseseseseneens i

TABLE OF CONTENTS 1... cccccsesscscessssssssccscsessseesssssnecssaesssesssssasessseeesensaensnsosenes il

TABLE OF CITATIONS 20... cceceesccscsseesceeesseeeeseesseseeeesseeeseseeesesseesesseessneeaseees iii

| CITATION TO OPINION BELOW .......cccsccsccesssessessevesescssasessseeeesseeessneeeecerensseeens 1

JURISDICTION .0..cccsceccceessessseessseeessseevssesensssessesssseuscseasssnssessasesonseaseseeseseeaenaes ]

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... 2

STATEMENT OF THE CASE 0.0... cccesccesccsseeseseseessscesessesseeesssarsssseesssessesseessaasoes 2

REASONS FOR DENYING THE WRIT .......cccccccscsseeeseccceeseeseneeesseeeessseneenenes 14

CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE THE FLORIDA SUPREME COURT'S

DECISION IS BASED ON AN INDEPENDENT AND

ADEQUATE STATE GROUND; DOES NOT

PRESENT AN IMPORTANT OR UNSETTLED

QUESTION OF FEDERAL LAW; NOR DOES IT

CONFLICT WITH ANY DECISION OF ANOTHER

STATE SUPREME COURT

CONCLUSION ...... ee eecccccesteessesesssccesssscnsscsscesenseseesssssseessecseesssseeeseeauenssessnsesseuees 26

CERTIFICATE OF SERVICE .........cccesscscscescssseeseenesesssseesesseeesseeesesseeeensesesneeseseees 28

ii

TABLE OF CITATIONS

Page(s)

Cases

Adams v. Robertson,

520 U.S. 83 (1997) ...ccccccceccssssccssseccsececsseceesseesseaeessnaeeeseessaeesnacesecsensesseneeseseeeseenesas 15

Anderson v. State,

841 So. 2d 390 (Fla. 2003)..........ccccsccssccscesssesrecsecsaeeeecsceeseeseresseteneesenesseeeseeeneseeseas 18

Armour & Co. v. Lambdin,

154 Fla. 86, 16 S0.2d 805 (1944)... cee cscssscesssseeeesseesseeeseeesaceesseceeeeesseeseaeeaaeeens 12

Atkins v. Virginia,

536 U.S. 304 (2002) .......cesecscecsssscecssecesscecenecesssesssseeesacesseesenaeeeseauerseuseeesenerss 16, 19

Booker v. State,

441 So. 2d 148 (Fla. 1983)... cccscsseceseecseeesesseeeesesseseeesesseasesseeseeeeesseeseneenteees 19

Brady v. Maryland,

373 U.S. 83 (1963)... ccscssccesssecssseceeeessceecaeeeeeesscesaeeeceesseeenaeeeaeeesneeenseeensesenaenans 10,11

Correll v. State,

184 S0.3d 478 (2015)... eeeesscecsseecsaceeneecseeesseseaseeseessceesseseaeeesseeseseeseceesenseeeesees 25

Duest v. State,

855 So. 2d 33 (Fla. 2003)... eeccesseeseeesseeeseeescesesceeseceaeseseeseeaeeeeeeeseeeesaeeseeseees 18

Florida v. Powell,

559 U.S. 50 (2010)... ceccesscessssrecssncesssccessneessseessseseseessaaeesseeeseeacens duseeseceeseesaneees 17

Furman yv. Georgia,

408 U.S. 238 (1972) ....eeceeccccccesseesesceeecseeseecsaeesseceeecnaseaecesseeeseeessesenseeesseseaeeeaeeenees 17

Gregg v. Georgia,

428 U.S. 153 (1976)... ececcccccsceesecceeeeeeccecseceeaeeseeeneceeaseaeeenseeeaeeseseeeeaeeesnaeenseenaeesaes 20

Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn.,

426 U.S. 482 (1976)... eeeccssecsseceeesessceenscessseeseeesseeesceeeesesaeccaeerseseceeesseeesneeens 15,23

Hughes v. Johnson,

191 F.3d 607 (Sth Cir. 1999)... cccccccssecseenssceesneeseesseeesaeeseeeeneceeeeeeseeeeeesseeeneees 21

Jeffries v. State,

222 So. 3d 538 (Fla. 2017)... ccsscsscessccenscesccessceesesesesssneceaseecececsaserseeenseeees 13,14

Johnson v. New Jersey,

384 U.S. 719 (1966)... .csccccsccsssccstccssecesseeseceesceceeessesssessnseeseeeesseeseeesseeseseesarsseeees 23

Krawczuk v. Secretary, Florida Dept. of Corrections,

2015 WL 4645838, (U.S.D.C., M.D. FL 2015)... .cccccccsscsssccesceessseessnseesseseeenees 26

iii

Krawczuk v. State,

92 So. 3d 195 (Fla. 2012)... ceesssscsscceesseeesseceessecesscceeneeesaceeeseeeessaeesseauecesaeeeseensess 19

Lewis v. Jeffers,

A497 U.S. 764 (1990) oo... eee cccesesneecseeeesseeceaeeeaeeseesaeeeseessceenseseeetenceeseeeessaeeeaeseaetenees 17

McCleskey v. Kemp,

481 U.S. 279 (1987) oc ececcccccceesssseeessnceecaesesoeeeseaeesssceeseessneeeeesessaeesesenensnenees 20, 26

McCloud v. State,

208 So. 3d 668 (Fla. 2016)... ceccccecscestecseeeeseeeeecseesseceeseesesesseeeeneees 13, 14,15, 24

McCray v. State,

71 So. 3d 848 (Fla. 2011)... eee eeecceceeeseeeseeeseeesneseeeeceeeseeeseeeeeaeeeeeeeeaneeeneaeees 19

McGehee v. Norris,

588 F.3d 1185 (8th Cir. 2009)... eee ceeccceesseeesseesssncessseesnseesssseeseeseesessaeessensaes 21

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

659 Fed. Appx. 974 (11th Cir. 2016)... ee eeeeescsesseeceesseeceeeeeeceeseeesaeeneseneeeeens 22

Messer v. State,

439 So. 2d 875 (Fla. 1983)... ceeeccensessecenscesecessceseseeseeeeeeesseeseeeeseneesseetseesesseess 19

Miller v. State,

42 So. 3d 204 (Fla. 2010)... ecccssesessseseecsaessacsearseseesseesseeseeeesnecesseesenseesasensess 19

Mines v. State,

390 So. 2d 332 (Fla. 1980)... eeeceeccscesseeeseceeeeseeseneeeseeenseeeesseeeessaeesssaaeessaeeenaeessaes 4

Patton v. State,

878 So. 2d 368 (Fla. 2004)... eeceesseesscescseeseseeeesseeesieesssecseaaecesseaeeeseeeesneessanes 19

Proffitt v. Florida,

A428 U.S. 242 (1976) ...ccccecccssscesceeesceesseeeeseeesneesecesseesaeecaeecneeesseesaeeseaeessaeessaeeseeseeees 18

Pulley v. Harris,

465 U.S. 37 (1984) oc ccccecceesecseeeeeceecaeeeeeesecesaeeeeenseeceeseseteseesnaeseenens 17, 20, 21, 22

Roper v. Simmons,

543 U.S. 551 (2005) oo... eeesceessseeeeeceeeenseeeseeececeeessaceesseeseneeeesaeesssaeeesaueessensenses 15, 16

Scott v. State,

634 So. 2d 1062 (Fla. 1993)... cccsesceesseeseeseceeseceseseseesseeesaeeeseeseaeeesseeees 1,9, 10

Scott Singletary,

38 F.3d 1547 (11th Cir. 1994). cecsseseseecscceeeesessecesseceeseeeseeeeeeesrssteeeness ]

Scott v. Dugger,

686 F. Supp. 1488 (U.S.D.C. S.D. FL 1988) 00... ccseesseeseceeeeeeeeseeeeaeeneaeesaeeaaes 7

Scott v. Dugger,

891 S. 2d 800 (11th Cir. 1989)... eee ceseeseeescceaeesseeseeeenseeseaeeseeesseessesseeseess 8

Scott v. Jones,

2018 WL 1677542 (Fla. April 6, 2018) oo... eee eeessceseceeseseeteseeesaeseseeeeatensetenessaes 1

Scott v. Singletary,

891 F.2d 800 (11th Cir, 1989)... cesssceccseeeseccesceesesseeesseessseceseaeesensaesenateoeees 1

Scott v. State,

411 So. 2d 866 (Fla. 1982)... cesccsssscesseeesceesseesseeseeeesseeeseessanesaseeseeneaes 1,2, 5,12

Scott v. State,

513 S0.2d 653 (Fla. 1987)... ccessescssssseeceseesseeeeesecceesseeeseeeseeesseesaneeseeseseaeeenee Passim

Scott v. State,

46 So. 3d 529 (Fla. 2009).........ccescccccssecccsssecessececnsceessecesscesseseceseeesseeesessneseneeees 1,12

Scott v. State,

419 So. 2d 1058 (Fla. 1982) 0.0... eceessecceseesceesseeeaeeeseeesseeeseeesaeseacesseensseeeeaeeeneneneees 1

Scott v. State,

A33 So. 2d 974 (Fla. 1983)..cccscscssssssssscsesessssessssesessssesssesesssscsessessessssseseeesseseenesees 1

Scott v. State,

464 So. 2d 1171 (Fla. 1985).........cceeessccssseesseceeeceesscesnecssaeessaseeseeeesenauesseeeesueeesees 1

Scott v. State,

657 So. 2d 1129 (Fla. 1995)... eeessscesssseesecceeseeesssceesseeeeseeeesseeeeseeeeseeessees 1,5, 10

Scott v. State,

717 So. 2d 908 (Fla. 1998)... eeeeccceeessseceseceeeeceeseseesseceessaceeeeeeseeeeesseeeeesetens 1,11

Silagy v. Peters,

905 F.2d 986 (7th Cir. 1990)... ee eecesseccscsceesesessecsnsceesseessseeessseesssseeeesseeeeanees 21

Sorola v. Texas,

A493 U.S. 1005 (1989)... ceccccssceesssccetesceeeesacecsceeeesaecsensessseeeeneeeeeaeesessaeeteneeessaees 26

State v. Cobb,

234 Conn. 735 (Comm. 1995)... cccsssccssseccsssrecssecessacesssceesseesesseesseaeeeseeeeeeensesensess 22

State v. Dixon,

283 So. 2d 1 (Fla. 1973)... .eceescssscsseceesscceesceeceeseesesceeaeessecesecceaeessecesaaeesseeeasesees 18

Terry v. State,

668 So. 2d 954 (Fla. 1996).........ccccccsscccsssreessnccesceesseeessnecesseeeseeeeseneesseeeeseeeeesseetens 18

Thomas v. State,

374 So. 2d 508 (Fla. 1979)... ceseccstcessnscesesescesseesesesetessecenseeeessescaaeeeseeeeaseeeeeees 4

Tillman v. State,

591 So. 2d 167 (Fla. 1991)... ee eccceesseeeseeeeeeceseeeseeesenesseeeeneeeeeesseeseneeeseeeenesensenss 18

United States v. Barrett,

496 F.3d 1079 (1Oth Cir. 2007)... ee eseeeeseceessceeeseeeeeceeeeceeesaceessneeessaneeseaeeenseees 22

United States v. Hammer,

226 F.3d 229 (3rd Cir. 2000) 0... eceeesscessneeseececeeeeeeeeeeseneesaeeeeeeseeeesaeesecseeneeseees 20

United States v. Higgs,

353 F.3d 281 (4th Cir. 2003)... cece esccesseeseeesseeseeeeeeecseesseeeseaseneesseeeenseeereeenees 21

United States v. Mitchell,

502 F.3d 931 (9th Cir. 2007)...csssesessssessssesssssesessssessssseesssseesssen

Urbin v. State,

714 So. 2d 411 (Fla. 1998)... cee ccseeecesesseeceensesesseesseeenees

Valle v. State,

70 S0.3d 530 (2011) ccccsssesessseesssssessssssesssstsssssetessssesssssetessnsesssen

Wheeler v. Simpson,

852 F.3d 509 (6th Cir. 2017)... cee seeeeessceeessssesseeesseeeeesseesesees

Yacob v. State,

136 So. 3d 539 (Fla. 2014)... ees ceseecesteseesssenseeesssresseneeees

Statutes

28 U.S.C. § 1257 ..ccscccscccssccsssecssseccseccsuscsssceeesssecesuaeeseaceeseeesenees

Fla. Const. art. 1, § 17 .occ..cccccccccccccssssncceeeesssssneceeseeeesnsseeeeeeesenneeees

Fla. Stat. § 921.141(6) 0... eee cessccsscseessseeseseeesseceenessseessnseeneesaae

Rules

Fla. R. App. P. 9.142(a)(5) scescsssssessssseecssseesssseesssesesssseessssueessseeessn

Other Authorities

28 C.J.S., Election of Remedies § 2.0... ceeeeecessseceesseeceessteeees

Sup.Ct.R 14()G) ..ccceecscsecssscecsseecsenecesesssseescssseesssesessesseseesseesens

Sup.CteR. 10 ccescccsscsssscessssevessssesssssesesssssssssussssssecsssseessseseesssesesseses

Vi

CITATION TO OPINION BELOW

The decision of the Florida Supreme Court appears as Scott v. Jones, Case No.

SC17-2045, 2018 WL 1677542 (Fla. April 6, 2018). The Florida Supreme Court’s

direct appeal decision appears at Scott v. State, 411 So. 2d 866 (Fla. 1982). The

Florida Supreme Court’s post-conviction decisions appear as follows: Scott v. State,

419 So. 2d 1058 (Fla. 1982); Scott v. State, 433 So. 2d 974 (Fla. 1983); Scott v.

State, 464 So. 2d 1171 (Fla. 1985); Scott v. State, 513 So.2d 653 (Fla. 1987) Scott

v. State, 634 So. 2d 1062 (Fla. 1993); Scott v. State, 657 So. 2d 1129 (Fla. 1995);

Scott v. State, 717 So. 2d 908 (Fla. 1998); Scott v. State, 46 So. 3d 529 (Fla. 2009);

The Eleventh Circuit Court of Appeals’ affirmance of the denial of Petitioner’s

federal habeas petitions appear as Scott v. Singletary, 891 F.2d 800 (11th Cir. 1989);

Scott Singletary, 38 F.3d 1547 (11" Cir. 1994).

JURISDICTION

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

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

Court’s decision in this case is based on an adequate and independent state ground,

this Court should decline to exercise jurisdiction as no federal question is raised.

Sup. Ct. R. 14(g)(i). Additionally, the Florida Supreme Court’s decision 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. Sup. Ct. R. 10. No compelling reasons

exist in this case and this Petition for a writ of certiorari should be denied. Sup. Ct.

R. 10.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fifth Amendment; Eighth Amendment; Fourteenth Amendment.

STATEMENT OF THE CASE AND FACTS

Paul Scott’s conviction for the first-degree murder of James Alessi was upheld

on appeal thirty-seven years ago. Scott v. State, 411 So. 2d 866 (Fla. 1982). Since

then, there have been nine additional published opinions from the Florida Supreme

Court, one published opinion from the federal district court of the Southern District

of Florida, and two published opinions from the Eleventh Circuit Court of Appeals.

The facts of the crime were recounted by the Florida Supreme Court on direct appeal

and they are as follows:

On the evening of the murder, Scott and his co-perpetrator,

Richard Kondian, told Charles Soutullo of their plan to rob

and to kill Alessi and asked him to join them. Soutullo

declined the invitation. Later that evening, Alessi picked up

2

Scott and Kondian. At approximately 11 p. m. they arrived

at Alessi's father's home where the victim borrowed his

father's station wagon and obtained a patio umbrella from his

father. They then drove off in the victim's car and in his

father's car. The patio umbrella was later found in the victim's

backyard.

The next morning the victim's nude body, which

was covered with blood, was discovered in his home. His

hands and feet were tightly bound with electrical cord and

telephone wire. He had been brutally beaten about his

head, chest, and arms. He had sustained six blows to the

head with a blunt instrument, one of which was so severe

that it had caused a compressed fracture of the skull. The

head injuries were the cause of his death. There were many

signs of a violent struggle by the victim in his attempt to

get away from his assailants. Throughout the house were

broken articles and bloodstains on the walls, furniture,

curtains, and floors. Scott's fingerprints were found on

various items throughout the victim's home, including

the neck of a broken vase and the bloodstained knife

on the sofa which apparently had been used to cut the

electrical cords used to tie the victim.

After bludgeoning the victim to death, Scott and

Kondian rummaged through the house. The same night as

the murder and as a part of their intended scheme to rob

and to kill Alessi, they went to the victim's flower shop

with a key and took most of the gold in the shop. They also

took the victim's car. Scott was found a month later in

Sacramento, California. He had in his possession

various items of jewelry, including a golden bear

charm. The victim wore a golden bear charm, and

there was one in his shop the day he was killed.

Although Scott was indicted for the premeditated

beating death of Alessi, the State, in addition to proceeding

on the theory of premeditated murder, also sought to prove

felony murder.

Scott challenges his conviction of first-degree

murder on several grounds, none of which we find to be

meritorious. Initially, he argues that the evidence

presented by the State was not sufficient to prove him

guilty beyond a reasonable doubt and that the evidence

does not exclude a reasonable hypothesis of innocence.

We disagree and hold there is substantial, competent

evidence in the record to sustain Scott's conviction. Scott

and Kondian made a definite statement preceding the

murder of their plans to rob and to kill Alessi. The

victim's father identified Scott as one of the two men

who had been with his son late on the evening of his

death. The patio umbrella they had picked up was found

the next morning at the victim's home, evidencing that the

three had gone there later that evening. Scott's

fingerprints were found throughout the house in places

reasonably consistent only with the conclusion that he

had committed the homicide. Items of gold jewelry

were found in Scott's motel room in Sacramento,

California, including a golden bear charm like the one

that was taken from the victim's shop the day of his

murder. Also, a gold bracelet like the one taken from the

victim's shop was found in the possession of Kondian's

girlfriend. Viewing all the evidence presented at trial, we

conclude that the evidence is inconsistent with any

reasonable hypothesis of innocence. See Thomas v. State,

374 So. 2d 508 (Fla. 1979), cert. denied, 445 U.S. 972, 100

S. Ct. 1666, 64 L. Ed. 2d 249 (1980).

Scott also contends that the evidence does not

support a finding of premeditation nor does it prove

robbery or burglary. The manner in which the victim was

murdered in itself evidences premeditation. There was a

long bloody chase throughout the house, the victim was

badly beaten, his hands and feet were tied while he was

still alive, and he was struck on the head six times with

a blunt instrument. The evidence was clearly sufficient

to establish premeditation. See Mines v. State, 390 So. 2d

4

332 (Fla. 1980), cert. denied, 451 U.S. 916, 101 S. Ct.

1994, 68 L. Ed. 2d 308 (1981). We likewise reject Scott's

contention regarding lack of proof of the robbery and

burglary.

411 So. 2d at 867. (emphasis added). Scott’s defense at trial was that the codefendant, Richard Kondian, was the major participant in the murder and Scott’s

role was minor. In fact, Scott argued at trial that he ran out of the house before the

victim was robbed and killed. (ROA 1355-1356, 1370). See also Scott v. State, 513

So.2d 653, 654 (Fla. 1987); Scott v. State, 657 So. 2d 1129, 1130 (Fla. 1995). The

jury, the sentencing court and the Florida Supreme Court all rejected this defense. In

fact, the Florida Supreme Court noted the following:

Scott's fingerprints were found throughout the house in places

reasonably consistent only with the conclusion that he had committed

the homicide.

Id. Since his direct appeal, Scott has presented a constitutional challenge regarding

the relative culpability between himself and the co-defendant! multiple times. In

1987 Scott filed a motion for postconviction relief alleging numerous claims of

ineffective assistance of counsel. At the evidentiary hearing regarding this claim,

Scott argued that trial counsel should have presented a “defense of others” theory

1 Richard Kondian, Scott’s eighteen-year old co-defendant, pled guilty to seconddegree murder and received a forty-five-year sentence.

5

rather than the defense that Kondian was the major participant.?_ The theory goes

that Scott came to Kondian’s defense after the victim made unexpected and

uninvited homosexual advances to Kondian which resulted in the violent struggle

that cost Alessi his life. Scott, 513 So. 2d at 655. The Florida Supreme Court

rejected the ineffective assistance of counsel claim by pointing out the glaring

inconsistency between the defense presented at trial and one the advanced in the

collateral proceedings;

Moreover, Kondian's story to the Rhode Island

police completely contradicted defense counsel's theory

that Kondian did the killing. Indeed, Kondian told police

that Scott had dealt the majority of the blows suffered

by Alessi and that his own role in the struggle had been

minimal. Based on the facts in this record, a "defense

of others" theory and a theory that Kondian primarily

was responsible for the murder could not have been

asserted at the same trial. Thus, even if Kondian's

testimony had been available, we would have to decide

whether counsel was ineffective in failing to pursue one

theory of defense rather than the other.

Id. (emphasis added). The Court also noted that any claim that Scott was acting in

defense of Kondian due to the alleged rape was completely inconsistent with the

2 In support of that theory, Kondian testified at the evidentiary hearing that he and

Scott were Alessi’s home to buy drugs when Alessi “attacked” Kondian. Scott came

to his rescue. Both defendants left the house together. Kondian has never explicitly

admitted being a major participant in the actual beating. (PCR 4211-4255).

6

physical evidence.*? The Court explained as follows:

We cannot view this choice as anything but a

strategic one, especially in light of medical evidence

indicating that Alessi had been beaten and killed after he

had been bound with the electrical cord.

Id.

Scott then sought relief in federal court. The United States District Court for

the Southern District of Florida made it perfectly clear in 1988 in its denial of federal

habeas relief that Scott was a major participant to this murder. The court found as

follows:

[The] description of Alessi’s murder unquestionably

establishes that Scott played a major role in the beating death of

Alessi. Indeed, without Scott’s help Alessi probably would have

escaped Kondian’s attack. Furthermore, Scott displayed a reckless

disregard for Alessi’s life by battering him across the head and

back with a vase and chair, and then tying him to a chair.

Scott v. Dugger, 686 F. Supp. 1488 (U.S.D.C. S.D. FL 1988) (emphasis added). The

Eleventh Circuit similarly rejected Defendant’s ineffective assistance claims by

pointing out the inconsistencies between Defendant’s multiple versions of events.

In the clemency hearing, appellant testified that Kondian

deliberately engaged in sex with Alessi so that appellant could

rummage through the house for things to steal. Appellant now argues,

3 In addition to the numerous theories developed over the years, Scott admitted at a

clemency hearing that he and Kondian intentionally planned for Kondian to have

sex with the victim while Scott went through the house looking for items to steal.

Scott v. State, 513 So. 2d at 655.

however, that his lawyer should have presented a “defense of others”

theory. Such a defense would contradict appellant’s clemency

testimony and present a theory that Alessi attempted to rape Kondian

and that appellant came to Kondian’s aid. The defense theory would

also assert that, after successfully interrupting the rape attempt,

appellant left the house while Alessi was still alive. Obviously,

appellant’s clemency hearing testimony proved such a defense false.

Thus, appellant’s lawyer could not have rendered ineffective assistance

by failing or refusing to present a false defense.

Scott v. Dugger, 891 S. 2d 800, 803, 805 (11™ Cir. 1989).

Scott returned to state court and filed multiple successive collateral challenges

to his capital sentence, all based on the alleged disparate treatment between Kondian

and himself. In 1992, he filed a successive motion for postconviction relief alleging

as follows:

In this appeal, Scott alleges that: 1) the circuit court

erred by summarily denying his second rule 3.850 motion

without conducting an evidentiary hearing or attaching

those portions of the record that refute his claims; 2) newly

discovered evidence establishes that Scott was innocent of

first-degree murder; 3) newly discovered evidence of

Scott's codefendant's 45-year sentence renders Scott's

sentence disproportionate, and that other newly

discovered evidence negates the aggravating factors found

by the trial court and establishes additional mitigating

factors; 4) he was erroneously denied an opportunity to

present exculpatory evidence to the jury due to either

prosecutorial misconduct or the ineffectiveness of defense

counsel; 5) he was denied the effective assistance of

counsel; 6) the prosecutor improperly argued inapplicable

aggravating factors; and 7) his sentence was

unconstitutionally founded on arbitrary, capricious, and

8

impermissible evidence because the state emphasized

nonstatutory aggravating factors during the penalty phase

proceeding.

Scott's claims I through V are based on the

following allegedly new evidence: 1) the affidavit signed

by Scott's codefendant, Richard Kondian, which

acknowledges Kondian's and Scott's violent struggle with

the victim and asserts that Scott did not intend to murder

the victim; 2) the affidavit of one of the State's witnesses,

Charles Soutullo, in which he recants his testimony at trial

that Scott had told him that he (Scott) planned to rob the

victim; 3) the fact that Kondian told Rhode Island police

that he had cut his finger on a broken bottle during the

struggle with the victim; 4) Kondian's forty-five-year

sentence, imposed after Scott's conviction and sentence

pursuant to a negotiated plea; and 5) Scott's trial and

postconviction counsel rendered ineffective assistance by

failing to investigate the facts stated above and by failing

to raise them at trial or in postconviction proceedings.

Scott v. Dugger, 634 So. 2d 1062, 1064 (Fla. 1993). In rejecting relief, the Florida

Supreme Court again relied on the evidence which completely refuted any claim that

Scott did not participate in the fatal and brutal beating of Alessi. The Court noted:

Last, none of the affidavits submitted with the

instant rule 3.850 motion exonerates Scott. Kondian's

affidavit and his statements at his plea hearing

acknowledge that Scott participated in the savage

beating of the victim. The only allegation beneficial to

Scott in Kondian's affidavit is Kondian's statement that

Scott never intended to kill the victim. We note that the

evidence establishes that the victim died from multiple

blows to the head that he received after he had been

bound hand and foot. Looking at the entire record of all

9

three proceedings before this Court, we find that the

evidence asserted as new in these proceedings is not newly

discovered evidence.

Id. 634 So. 2d at 1064. (emphasis added).

Scott filed a third motion for postconviction relief alleging numerous

instances of prosecutorial misconduct in violation of Brady v. Maryland, 373 U.S.

83 (1963). The specific allegations were as follows:

Principally, he contends that the State violated the

principles of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963), by not disclosing: (1) a

statement by Dexter Coffin, a cellmate of Scott's

codefendant Richard Kondian, in which Coffin states he

told a police officer that Kondian admitted killing the

victim; (2) a statement by Robert Dixon, in which Dixon

states he told a police officer that Kondian was angry with

Scott for running out on him at the murder scene; and (3)

a medical examiner's photograph that suggested that

Kondian had struck the fatal blow by hitting Alessi on the

head with a champagne bottle. Scott claims that, in light

of this newly discovered evidence, we should revisit our

ruling in Scott v. Dugger, 634 So. 2d 1062 (Fla. 1993), and

grant a new sentencing hearing.

Scott v. State, 657 So. 2d 1129, 1130 (Fla. 1995). Following an evidentiary hearing,

the Florida Supreme Court again denied all relief finding:

Finally, Scott claims that the trial court erred in

excluding certain evidence from the evidentiary hearing.

As noted above, this Court remanded this case for an

evidentiary hearing on Scott's Brady claims, which

10

included the claim that the State had failed to disclose a

medical examiner's photo showing a bloody circle that

could have supported Scott's claim that Kondian struck the

fatal blow by hitting Alessi on the head with a champagne

bottle. During the evidentiary hearing on January 23, trial

prosecutor Selvig testified that he had disclosed the photo,

and the record sustained his averments. In light of this

proof, the court granted the State's motion to exclude any

further testimony relating solely to the materiality of the

photo under Brady. Scott contends that this was error

because trial counsel's failure to present a material photo

could give rise to an ineffectiveness claim. We disagree.

This Court remanded this case solely for resolution of the

Brady claims, not for resolution of an ineffectiveness

claim. We find no abuse of discretion.

Scott v. State, 717 So. 2d 908, 912-913 (Fla. 1998).

Eight years later, Scott filed a motion for DNA to establish whether his blood

was found at the scene. The trial court summarily denied the motion given the fact

that the motion was legally insufficient, and any “favorable” results would not have

led to reasonable probability of exoneration or a lesser sentence. Once again in

rejecting yet another variation on the same claim, the Florida Supreme Court found

as follows:

In the instant case, the presence or absence of Scott's blood at the

crime scene has no bearing on whether he committed the crime because

Scott's presence at Mr. Alessi's home is not in question. Consequently,

even if DNA testing revealed that Scott's blood was not at the scene, it

would not tend to establish his innocence or prove that he did not strike

the victim. See Galloway, 802 So.2d at 1175.

Furthermore, Scott never advanced the theory that he was not

11

present in the victim's home. In fact, the opposite is true. In his initial

brief, Scott stated that he admitted being present for an altercation

between himself, the codefendant, and the victim. He also “defended

against the murder charges by attempting to blame Kondian for the

actual murder and minimize his own involvement.” Scott, 513 So.2d at

654. And, in an earlier 3.850 motion, he even claimed his counsel was

ineffective for failing to present a defense of others theory. Id. at 654-

55. What Scott has attempted to allege is that he was not present for the

actual murder. However, given that Scott has admitted he was

involved in an altercation with the victim, Scott cannot reasonably

show how the absence of his blood would give rise to a reasonable

probability that he did not commit the crime.

Alternatively, Scott asserts that if the DNA test revealed that his

blood was at the scene it would lend support to his theory that he acted

in defense of Kondian. First, as we have previously held, Scott cannot

simultaneously allege two competing theories, namely that Kondian

was responsible for the murder and Scott's involvement was minimal

and that Scott acted in defense of Kondian. See id.; see also Armour &

Co. v. Lambdin, 154 Fla. 86, 16 So.2d 805, 809 (1944) (“[A] suitor is

not permitted to invoke the aid of the Courts upon contradictory

principles or theories.” (emphasis in original) (quoting 28 C.J.S.,

Election of Remedies § 2)). Second, this theory is unpersuasive because

the presence of Scott's blood at the scene lends nothing to the theory

that he acted in defense of Kondian. Rather, if Scott's blood was

detected, it would only confirm that he was present-a point not in

dispute. Third, Scott's theory that he killed Alessi while defending

Kondian is contradicted by the evidence. The doctor in this case

testified that

*534 the victim was still alive when his hands and feet were

bound. There remained no reason to pursue the beating.... The

subsequent blows to the head were fatal and the entire episode can only

reflect there being imposed upon the victim a high degree of pain with

little indifference to, or even the enjoyment of the suffering of the

victim. It was pitiless and totally unnecessary...

Scott, 411 So.2d at 869 (quoting trial court's sentencing order).

Given that Alessi was bound before he was killed, Scott cannot possibly

show that he killed Alessi in defense of Kondian.

12

Scott v. State, 46 So. 3d 529, 533-34 (Fla. 2009) (emphasis added).

Scott filed a state Petition for Writ of Habeas Corpus in 2017, again alleging

that his co-defendant’s sentence renders his death sentence disproportionate and

unconstitutional. To overcome the explicit and multiple rejections of this claim,

Scott relied on a recent case from the Florida Supreme Court wherein the Court

granted relief to a capital defendant based on disparate treatment of his co-defendant.

See McCloud v. State, 208 So. 3d 668 (Fla. 2016) (determining that jury finding that

co-defendant was the actual killer along with same finding by trial court warranted

relief based on disparate treatment). Scott alleged that McCloud is a change in

Florida law on which he was entitled to rely. The Florida Supreme in an order,

rejected this claim pursuant to Jeffries v. State, 222 So. 3d 538 (Fla. 2017)

(reaffirming long standing precedent preceding McCloud that a co-defendant’s

conviction to lesser offence after plea deal does not implicate a claim of disparate

treatment).

In this Petition, Scott seeks certiorari review of that order.

13

REASONS FOR DENYING THE WRIT

CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE THE FLORIDA SUPREME COURT'S

DECISION IS BASED ON AN INDEPENDENT AND

ADEQUATE STATE GROUND; IT DOES NOT

PRESENT AN IMPORTANT OR UNSETTLED

QUESTION OF FEDERAL LAW; NOR DOES IT

CONFLICT WITH ANY DECISION OF ANOTHER

STATE SUPREME COURT

Petitioner, Paul Scott, is seeking federal review of his capital sentence

claiming that it is a violation of the Eighth Amendment because his co-defendant,

whom he alleges was equally or more culpable than himself, received a forty-fiveyear sentence. Although he makes a perfunctory reference to the 8" Amendment,

this constitutional challenge is premised solely on state law. Scott claims that a

recent Florida Supreme Court case, McCloud v. State, 208 So. 3d 668 (Fla. 2016),

has established a “new substantive constitutional right” in Florida to which he is now

entitled. Pet at 8. In denying relief, the Florida Supreme Court determined that the

facts herein were completely distinguishable from those of McCloud, and instead,

the Court found the recent case of Jeffries v. State, 222 So. 3" 538 (Fla. 2017) to be

controlling. The Court reaffirmed long standing precedent that a co-defendant’s

conviction to a lesser crime pursuant to a plea deal does not implicate a claim of

disparate treatment between co-defendants. See Pet. App. 1

In this petition, Scott invites this Court to reconcile the “confusion” allegedly

14

created by the Florida Supreme Court’s rulings in these two cases, urging this Court

to provide “clarity” and rectify the Florida Supreme Court’s “mistake.” Scott’s

argument is frivolous as certiorari review cannot be premised on this basis as this

Court is bound by the Florida Supreme Court’s interpretation of state law. See

Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn. 426 U.S. 482, 488

(1976) (reaffirming edict that USSC is bound to accept interpretation of state law

from the state’s highest court). The state asserts that for this reason alone, review

must be denied. *

Additionally, the relative proportionality review under attack herein is not a

requirement of the Eighth Amendment, and therefore there is no federal question

presented. Instead the Florida Supreme Court’s proportionality review is based on

adequate and independent state ground and therefore review is not warranted. The

Eighth Amendment requires capital punishment to be limited “to those who commit

2 Additionally, the issue presented below was based on state law, specifically

the recent case of McCloud v. State, 208 So.3d 608 (Fla. 2016). Therefore, the

federal constitutional challenge under the Eighth Amendment was not fairly

presented and therefore review is precluded. See Adams v. Robertson, 520 U.S. 83,

87-88 (1997) (discussing the various ways a petitioner may properly present an issue

to a lower court and dismissing the writ of certiorari as improvidently granted

because the issue was not presented to the state supreme court).

15

a ‘narrow category of the most serious crimes’ and whose extreme 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 “[s]tates must give narrow and

precise definition to the aggravating factors that can result in a capital sentence.”

Roper, 543 U.S. at 568. The State of Florida has a list of sixteen aggravating factors

enumerated in the statute. Fla. Stat. § 921.141(6). These aggravating factors have

been deemed sufficient to impose the death penalty by virtue of their inclusion in the

statute. Any one of these aggravating factors is sufficient to cause a defendant to be

eligible to receive a sentence of death. In Petitioner’s case, four aggravating factors

were proven. Because at least one of these enumerated aggravating factors has been

proven beyond a reasonable doubt, Eighth Amendment concerns have been satisfied.

Many states also add protections that go above and beyond the requirements

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

forward looking in anticipation of evolving standards of decency and to ensure that

their capital sentencing schemes will remain constitutionally valid in the future.

Because these are additional safeguards that are premised on the principles of, but

not necessitated by the Eighth Amendment, they are state requirements and based

on adequate and independent state grounds. This Court does not review state court

16

decisions that are based on adequate and independent state grounds. See Long, 463

U.S. at 1040 (“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.”). “If the

state court decision indicates clearly and expressly that it is alternatively based on

bona fide separate, adequate, and independent grounds, [this Court], of course, will

not undertake to review the decision.” Florida v. Powell, 559 U.S. 50, 57 (2010)

(quoting Long, 463 U.S. at 1041).

One such additional safeguard added by many states is a proportionality

review conducted on direct appeal. In the wake of Furman, many states in redrafting

their capital sentencing statutes added 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

v. Georgia, 408 U.S. 238 (1972). As this Court said, “[p]roportionality 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.”

Harris, 465 U.S. at 50; see also Lewis v. Jeffers, 497 U.S. 764, 779 (1990) (noting

that “proportionality review is not constitutionally required”). As such, both

proportionality review and its subset of analyzing the relative culpability of co-

17

defendants are matters of state law. Yacob v. State, 136 So. 3d 539, 546 (Fla. 2014)

(holding that while a review of proportionality is not required by the Eighth

Amendment, it is required by Florida’s death penalty statute as interpreted by Dixon)

(citing State v. Dixon, 283 So. 2d 1, 10 (Fla. 1973)).

Florida’s “proportionality review flows from Florida’s capital punishment

statute...” as well as arising “in part by necessary implication from the mandatory,

exclusive jurisdiction [the Florida Supreme] Court has over death appeals.” Yacob,

136 So. 3d at 546 (citing Dixon, 283 So. 2d at 10); Tillman vy. State, 591 So. 2d 167,

169 (Fla. 1991); see also Fla. R. App. P. 9.142(a)(5). The “Florida statute has a

provision designed to assure that the death penalty will not be imposed on a

capriciously selected group of convicted defendants. The Supreme Court of Florida

reviews each death sentence to ensure that similar results are reached in similar

cases.” Proffitt v. Florida, 428 U.S. 242, 258 (1976). In reviewing proportionality

as a product of Florida specific law, the Florida Supreme Court looks to many

factors.

In deciding whether death is a proportionate penalty, the Court

conducts a comprehensive analysis to determine “whether the crime

falls within the category of both the most aggravated and the least

mitigated of murders, thereby assuring uniformity in the application of

the sentence.” Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)

(citations omitted). Accordingly, this Court considers the totality of the

circumstances and compares the present case with other similar capital

cases. See Duest v. State, 855 So. 2d 33, 47 (Fla. 2003) (quoting Terry

18

v. State, 668 So. 2d 954, 965 (Fla. 1996)). This consideration entails “a

qualitative review by this Court of the underlying basis for each

aggravator and mitigator rather than a quantitative analysis.” Urbin v.

State, 714 So. 2d 411, 416 (Fla. 1998). “In reviewing the sentence for

proportionality, this Court accepts the jury's recommendation and the

trial court's weighing of the aggravating and mitigating evidence.”

Miller v. State, 42 So. 3d 204, 229 (Fla. 2010), cert. denied, [Miller v.

Florida, 562 U.S. 1151] (2011).

McCray v. State, 71 So. 3d 848, 880-81 (Fla. 2011). The Court also explained that it

does such a review in every case regardless of whether that review is reflected in the

opinion because it is an integral part of the process. See Booker v. State, 441 So. 2d

148, 153 (Fla. 1983); (citing Messer v. State, 439 So. 2d 875, 878-79 (Fla. 1983));

see also Patton v. State, 878 So. 2d 368, 380-81 (Fla. 2004); Krawczuk v. State, 92

So. 3d 195, 208-09 (Fla. 2012). This state-based proportionality review serves as an

additional check on arbitrariness to ensure the narrowing requirements established

by Florida law comply with the Eighth Amendment and are, in practice, fully

narrowing capital punishment only for defendants who, based on their crimes and

aggravating circumstances, are “most deserving of execution.” Atkins, 536 U.S. at

319. Therefore, the Florida Supreme Court’s proportionality review is not required

by the United States Constitution and is instead a product of adequate and

independent state grounds.

Further, “[t]he opportunities for discretionary leniency under state law does

19

not render the capital sentences imposed arbitrary and capricious.” McCleskey v.

Kemp, 481 U.S. 279, 307 (1987). So long as a capital sentence was imposed under

sentencing procedures that focus discretion “on the particularized nature of the crime

and the particularized characteristics of the individual defendant,” there is a

presumption that the “death sentence was not ‘wantonly and freakishly’ imposed,

and thus that the sentence is not disproportionate within any recognized meaning

under the Eighth Amendment.” Jd. (quoting Gregg v. Georgia, 428 U.S. 153, 206-

07 (1976). Because this Court has held that the Eighth Amendment does not require

proportionality review and any such review provides greater protection for

defendants, the Florida Supreme Court’s conducting of a proportionality review and

relative culpability analysis in Petitioner’s case does not conflict with this Court’s

Eighth Amendment jurisprudence. Thus, certiorari review should be denied.

Additionally, Florida’s proportionality review is not in conflict with any other

state court of last review, nor it is in conflict with any federal appellate court, or in

conflict with this Court’s Eighth Amendment jurisprudence. Following this Court’s

decision in Harris, the federal appellate courts have consistently held that

proportionality review and relative culpability review are not required by the Eighth

Amendment. Harris, 465 U.S. at 50; see United States v. Hammer, 226 F.3d 229,

237 (3rd Cir. 2000), cert. denied, Hammer v. United States, 532 U.S. 959 (2001)

20

(nothing that proportionality review is “not constitutionally necessary”); United

States v. Higgs, 353 F.3d 281, 321 (4th Cir. 2003), cert. denied, Higgs v. United

States, 543 U.S. 999 (2004) (rejecting the claim that the Federal Death Penalty Act

(FDPA) violates the Eighth Amendment because it does not require proportionality

review); Hughes v. Johnson, 191 F.3d 607, 622 (Sth Cir. 1999), cert. denied, 528

U.S. 1145 (2000) (noting that “the state appellate court is not required to conduct

such a comparative proportionality review,” citing Harris); Wheeler v. Simpson, 852

F.3d 509, 520 (6th Cir. 2017), cert. denied, Wheeler v. White, 138 S. Ct. 357 (2017)

(noting there is “no federal constitutional requirement that a state appellate court

conduct a comparative proportionality review”); Silagy v. Peters, 905 F.2d 986,

1000 (7th Cir. 1990), cert. denied, 498 U.S. 1110 (1991) (noting that though “many

states provide for proportionality review in their statutes,” Harris “concluded that

such a review is not constitutionally mandated”); McGehee v. Norris, 588 F.3d 1185,

1199 (8th Cir. 2009), cert. denied, McGehee v. Hobbs, 562 U.S. 1224 (2011) (noting

that Harris held “that the Constitution does not require courts to consider whether a

punishment is disproportionate to the punishment imposed on others convicted of

the same crime”); United States v. Mitchell, 502 F.3d 931, 980 (9th Cir. 2007), cert.

denied, Mitchell v. United States, 553 U.S. 1094 (2008) (Harris “squarely rejected

the claim that the Constitution requires proportionality review in death sentences”);

21

United States v. Barrett, 496 F.3d 1079, 1109 (10th Cir. 2007), cert. denied, Barrett

v. United States, 552 U.S. 1260 (2008) (citing Harris for the premise that “the Eighth

Amendment does not require state courts to conduct proportionality review of a

death sentence”); Mendoza vy. Sec’y, Fla. Dept. of Corr., 659 Fed. Appx. 974, 981

(11th Cir. 2016) (noting “there is no constitutional right to Proffitt-style appellate

review”). The federal appellate courts are uniform in holding that the federal

constitution, as described in Harris, does not require proportionality review.

As for the individual states, approximately “nineteen of the thirty-six states

that provide for capital punishment continue to require comparative proportionality

review by statute.” Timothy V. Kaufman-Osborn, Proportionality Review and the

Death Penalty, 29-3 Just. Sys. J. 257, 259 (2008). Each state that conducts a

proportionality review does so based on different state law principles, none of which

are violative of federal law, but are instead additional precautions that go above and

beyond the requirements of the federal constitution. In determining whether a

sentence is excessive or disproportionate to the penalty imposed in similar cases,

some states compare the case at hand to other cases where a capital felony has been

charged. Other states compare the case to other cases in which the sentence is death.

See, e.g., State v. Cobb, 234 Conn. 735, 958 n.18 (Conn. 1995) (offering a

consolidated comparative analysis of state-based proportionality review). Though

22

proportionality reviews are slightly different from state to state, they are not in

conflict with each other. Because states that perform a proportionality review are

going beyond what is required by the federal constitution, they are free to enact any

additional protective measures that they feel are appropriate for criminal appellants

in that state. See, e.g., 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

we have laid down and to apply those standards in a boarder range of cases than is

required by this [Court].”). As noted elsewhere, the alleged conflict upon which

Scott relies for review is the alleged internal conflict under Florida law. That does

not provide a basis for review and therefore cert review must be denied. Hortinville,

supra.

Even if Scott could overcome all the jurisdictional deficiencies to his claim,

this is not the appropriate case for this Court to answer any question regarding the

Eight Amendment and the relative culpability of co-defendants. Every court to

address relative culpability has found Scott to be the major participant in the beating

death of the victim. Furthermore Kondian, who was only 18 years old at the time of

the crime, received a forty-five-year sentence not because of a jury recommendation

or the trial judge’s determination based on a weighing of aggravating and mitigating

circumstances, but because prosecutorial discretion took the death penalty off the

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