Opposition Brief — Tavares J. Wright, Petitioner v. Florida

DOCKET NO. 18-8653

IN THE SUPREME COURT OF THE UNITED STATES

TAVARES J. WRIGHT,

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

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

STEPHEN D. AKE

Senior Assistant Attorney General

Office of the Attorney General

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607

Telephone: (813) 287-7910

capapp@myfloridalegal.com [and]

stephen.ake@myfloridalegal.com

COUNSEL FOR RESPONDENT

In late 2004, a jury convicted Tavares Wright, Petitioner,

of two counts of first-degree murder, two counts of armed

kidnapping, two counts of robbery with a firearm, and one count

of carjacking with a firearm. Prior to sentencing, Petitioner

claimed that he was intellectually disabled and ineligible for

the death penalty. After hearing testimony from mental health

_experts, the trial court found that Petitioner did not meet the

first prong of Florida’s statutory definition of intellectual

disability by establishing that he had “significant subaverage

general intellectual functioning” based on Petitioner’s

performance on standardized intelligence tests administered when

he was a child and again as an adult.! Petitioner did not

challenge this ruling on appeal. See Wright v. State, 19 So. 3d

277 (Fla. 2009).

During his postconviction proceedings, Petitioner again

raised claims relating to his alleged intellectual disability.

The state postconviction court conducted an evidentiary hearing

on Petitioner’s claims, and following this Court’s decision in

Hall v. Florida, 572 U.S. 701 (2014), the Florida Supreme Court

remanded the case to the state court to conduct an additional

hearing. Following the additional hearing, the postconviction

court found that Petitioner failed to establish by clear and

1 Petitioner’s full scale IQ scores ranged from 75-82.

i

convincing evidence that he was intellectually disabled, and the

Florida Supreme Court affirmed the ruling on appeal. Wright v.

State, 213 So. 3d 881 (Fla. 2017) (hereafter “Wright I”).

Petitioner filed a petition for writ of certiorari and this

Court granted certiorari, vacated the judgment, and remanded the

case to the Florida Supreme Court for further consideration in

light of this Court’s recent decision in Moore v. Texas,

U.S. , 137 S. Ct. 1039 (2017). Wright v. Florida, 138 S. Ct.

360 (2017). On remand, the Florida Supreme Court held that Moore

did not affect its prior finding that Wright failed to establish

that he was intellectually disabled. Wright v. State, 256 So. 3d

766 (Fla. 2018) (hereafter “Wright II”). Petitioner now seeks

certiorari review of Wright II which gives rise to the following

question:

ii

QUESTION PRESENTED FOR REVIEW

Whether this Court should grant certiorari review of

the Florida Supreme Court’s fact-based decision that

Petitioner failed to establish intellectual disability

as a bar to execution where both the state

postconviction court and the Florida Supreme Court

applied current medical standards when = analyzing

Petitioner’s claim and followed the dictates of this

Court’s decision in Moore?

iii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .......2. ccc cee ree ee eee te ee ce eee iii

TABLE OF CONTENTS 2. ce wc ce ec cee te eee tere cer eee e een ere eee cene iv

TABLE OF CITATIONS 2... cc ccc ce te ee ee ee ee ee ee eee Vv

CITATION TO OPINIONS BELOW 2... ccc ee cee we ee ee ee re terre ee eee 1

STATEMENT OF JURISDICTION 2... cen cece ee eee eee ee eee ee 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .........02000. 2

STATEMENT OF THE CASE AND FACTS 2. ccc cee ee ee wee ee eee 3

REASONS FOR DENYING THE WRIT 2... 2. ccc ee cee eee eee ee ee 20

There is no basis for certiorari review of the Florida

Supreme Court’s fact-based decision finding that

Wright failed to meet his burden of proof of

establishing intellectual disability as the court

correctly applied this Court’s precedent to the

disputed facts and found that Wright did not have

significantly subaverage intellectual functioning and

deficits in his adaptive behavior.

CONCLUSION . 2. ccc ccc ww we ete ew ee meee e ee wee nee ee eee ee 37

iv

TABLE OF CITATIONS

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) Lc cece ce eee eee eee 3, 6, 22, 24

General Talking Pictures Corp. v. Western Elec. Co.,

304 U.S. 175 (1924) cove ccc ccc ccc ce wee ee ee ee et nee ee ees 21

Hall v. Florida,

572 U.S. TOL (2014) cece ec ce cc ce ew ecw ee tee ees passim

Hill v. State,

921 So. 2d 579 (Fla.),

cert. denied, 546 U.S. 1219 (2006) ...... 2. ee es 5

Moore v. Texas,

137 S. Ct. 1039 (2017) ..... ccc ccc eee ee ee ee ee twee passim

Moore v. Texas,

139 S. Ct. 666 (2019) Lee eee tc ew te eee 33, 34

Phillips v. State,

984 So. 2d 503 (Fla. 2008) ........ ccc eee ee ce etn 6

Rice v. Sioux City Mem’1 Park Cemetery, Inc.,

349 U.S. 70 (1955) cece ec cee ccc ec ce ee eee eee eee ences 35

Rockford Life Insurance Co. v. Illinois Dep’t of Revenue,

482 U.S. 182 (1987) .. ccc ccc cc ee ee wee ee eee ne ete e cence 21

United States v. Johnston,

268 U.S. 220 (1925) occ cece eee ee eee cece eect eee 21, 35

Wright v. Florida,

138 S. Ct. 360 (2017) .. cece cece cee ee ete ee eee ii, 1, 14

Wright v. State,

19 So. 3d 277 (Fla. 2009) ..... cee ec cee eee ee tees i, 3, 4

Wright v. State,

213 So. 3d 881 (Fla. 2017) wee eee cc ccc cee eee ee ees passim

Wright v. State,

256 So. 3d 766 (Fla. 2018) woe ccc ccc ec cc eee eee ees passim

Other Authorities

§ 921.137(1), Fla. Stat. (2013) ... eee eee eee ee ee eee 6, 23

§ 921.137(4), Fla. Stat. (2013) .... ec ee cee eee 6

§ 921.137, Fla. Stat. (2017) ... cece ccc ce eee eee cee 16

28 U.S.C. § 1257 (a) wc. cece ccc ce ee ee ee tenet eee ee eens 2

American Association on Intellectual and Developmental

Disabilities, Intellectual Disability: Definition, Classification,

and Systems of Supports 5 (llth ed. 2010) ........... 6, 9, 17, 33

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 37 (5th ed. 2013) ............. 9, 17

Sup. Ct. Re. 10 .. eee ec ee ee ee ee tweet wa ee eee eee es 21

vi

CITATION TO OPINIONS BELOW

On March 16, 2017, the Florida Supreme Court released a

revised opinion, following Petitioner’s motion for rehearing,

and affirmed the postconviction court’s rejection of Wright’s

claim that he was intellectually disabled. Wright v. State, 213

So. 3d 881 (Fla. 2017) (“Wright I”). Petitioner filed a petition

for writ of certiorari, and this Court granted certiorari,

vacated the judgment, and remanded the case to the Florida

Supreme Court for further consideration in light of Moore v.

Texas, U.S. , 137 S. Ct. 1039 (2017), which was decided

approximately two weeks after Wright I. See Wright v. Florida,

138 S. Ct. 360 (2017).

On September 27, 2008, the Florida Supreme Court issued

Wright v. State, 256 So. 3d 766 (Fla. 2018) (“Wright II”), and

held that Moore did not require a different result because there

was substantial, competent evidence to support the

postconviction court’s finding that Wright failed to establish

that he suffered from significant subaverage intellectual

functioning and concurrent deficits in adaptive functioning.

Petitioner filed a motion for rehearing and for clarification,

and on November 1, 2018, the Florida Supreme Court denied the

motion and issued a corrected opinion. Petitioner requested from

this Court, and was granted, an extension to file the instant

petition until March 31, 2019. Petitioner timely filed his

petition on March 28, 2019.

STATEMENT OF JURISDICTION

Petitioner asserts that this Court’s jurisdiction is based

upon 28 U.S.C. § 1257(a). Respondent agrees that that statutory

provision sets out the scope of this Court’s certiorari

jurisdiction, but submits that this case is inappropriate for

the exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the

applicable constitutional and statutory provisions involved.

STATEMENT OF THE CASE AND FACTS

Petitioner, Tavares J. Wright, was charged on May 11, 2000,

in a seven-count indictment with armed carjacking, two counts of

armed kidnapping, two counts of robbery with a firearm, and two

counts of first-degree premeditated murder. See Wright v. State,

19 So. 3d 277, 283-89 (Fla. 2009) (setting forth the extensive

factual history of the multi-day crime spree committed by Wright

culminating in the instant murders). A jury convicted Wright on

all counts. After Wright knowingly, intelligently, and

voluntarily waived the right to have a penalty phase jury, the

trial court conducted a penalty phase hearing.

At the sentencing hearing, one of Wright’s two retained

mental health experts, Dr. Alan Waldman, testified regarding

mitigation evidence and opined that Wright might be

intellectually disabled.2 Wright’s counsel thereafter filed a

motion to bar the imposition of the death penalty based on

Florida statutory law and Atkins v. Virginia, 536 U.S. 304

(2002). Prior to sentencing Wright, the trial court conducted a

hearing on his alleged intellectual disability. After hearing

testimony from two court-appointed expert witnesses, Drs.

William Kremper and Joel Freid, that Wright was not

2 Dr. Joseph Sesta, Wright’s other mental health expert,

testified that Wright had a full-scale IQ of 77 and was not

intellectually disabled.

intellectually disabled given his full-scale IQ scores of 82 and

75, the court issued an order finding that Wright did not meet

Florida’s statutory definition of intellectual disability.

On October 12, 2005, the trial court entered its sentencing

order and found four aggravating circumstances, three statutory

mitigating circumstances, and several nonstatutory mitigating

circumstances. The court imposed a death sentence for each count

of first-degree murder and life sentences for each of the five

noncapital felonies, all to run consecutively. The court further

reiterated that Wright was not intellectually disabled. Wright

v. State, 19 So. 3d 277, 290-91 (Fla. 2009). On direct appeal to

the Florida Supreme Court, Wright did not challenge the trial

court’s ruling rejecting his intellectual disability claim. The

Florida Supreme Court affirmed Wright’s convictions and death

sentences. Wright v. State, 19 So. 3d 277 (Fla. 2009).

Wright filed a motion for postconviction relief in state

court and raised numerous ineffective assistance of counsel

claims, including an allegation that his trial counsel was

ineffective when litigating Wright’s intellectual disability

claim at trial. The state postconviction court granted Wright an

evidentiary hearing on his claim, and ultimately denied his

motion. Wright appealed this ruling to the Florida Supreme

Court, and while the appeal was pending, this Court issued its

decision in Hall v. Florida, 572 U.S. 701 (2014). Wright

thereafter requested that the Florida Supreme Court relinquish

jurisdiction so that he could again litigate a renewed motion to

bar the imposition of the death penalty based on Wright’s

alleged intellectual disability. Over the State’s objection that

the issue of Wright’s alleged intellectual disability was

procedurally barred,? the Florida Supreme Court relinquished

jurisdiction and Wright returned to the trial court and

presented further evidence in support of his intellectual

disability claim.

The postconviction court conducted the intellectual

disability hearing in early 2015 and heard testimony from lay

witnesses, Wright’s two trial attorneys, and mental health

experts. After hearing the testimony and reviewing the entire

record, including Wright’s extensive trial testimony, the court

issued an order denying Wright’s renewed motion to bar the

imposition of the death penalty. The postconviction court made

specific findings that Wright failed to prove the elements of an

intellectual disability claim as his IQ scores, ranging between

75 and 82, did not demonstrate that he had = significant

3 As noted, Wright raised the issue of intellectual disability in

2005 at the time of his trial and was found not to be

intellectually disabled. Wright did not challenge that ruling on

direct appeal. As such, under Florida law his renewed motion was

procedurally barred. See Hill v. State, 921 So. 2d 579, 584

(Fla.), cert. denied, 546 U.S. 1219 (2006).

5

subaverage general intellectual functioning and Wright failed to

establish that he currently suffers from deficits in his

adaptive behavior.?

On appeal, the Florida Supreme Court agreed that Wright

failed to meet his burden of proof on the elements of his

intellectual disability claim. The court specifically noted

that, although Florida statutory law provides for a clear and

convincing burden of proof, see § 921.137(4), Fla. Stat. (2013),

Wright failed to even establish his claim by the lesser

preponderance of the evidence standard. Wright I, 213 So. 3d at

896-97 & n.3 (Fla. 2017).

4 The postconviction court correctly observed that Florida

Statutes, section 921.137(1) defines intellectual disability as

Significant subaverage general intellectual functioning existing

concurrently with “deficits in adaptive behavior,” whereas the

United States Supreme Court, Florida Supreme Court, and clinical

definitions have defined intellectual disability as requiring

“significant” limitations in adaptive behavior. See Atkins v.

Virginia, 536 U.S. 304, 308 n.3 (2002) (setting forth

definitions from the American Association of Mental Retardation

and the American Psychiatric Association both requiring

“significant” or “substantial” limitations in adaptive

behavior); Phillips v. State, 984 So. 2d 503, 511 (Fla. 2008)

(“To be diagnosed mentally retarded, Phillips must show

‘significant limitations in adaptive functioning in at least two

of the following skill areas: communication, self-care, home

living, social/interpersonal skills, use of community resources,

self-direction, functional academic’ skills, work, leisure,

health, and safety.’”) (quoting Rodriguez v. State, 919 So. 2d

at 1252, 1266 (Fla. 2005)); American Association on Intellectual

and Developmental Disabilities (AAIDD - 11th ed.) (defining

intellectual disability as “a disability characterized by

significant limitations both in intellectual functioning and in

adaptive behavior as expressed in conceptual, social, and

practical adaptive skills, that originates before age 18”).

6

In rejecting Wright’s intellectual disability claim, the

Florida Supreme Court noted that Wright failed to establish that

he had significantly subaverage general intellectual functioning

or that he suffers from concurrent deficits in his adaptive

functioning. The Florida Supreme Court recognized that in Hall,

this Court “invalidated Florida’s interpretation of its statute

as establishing a strict IQ test score cutoff of 70,” and

determined that “IQ scores are best evaluated as a range, taking

into account the standard error of measurement (SEM) and other

factors that can affect the accuracy of the score.” Wright I,

213 So. 3d at 895-97 (quoting extensively from Hall).

The court noted that Wright had taken nine 10 tests, seven

of which were non-abbreviated tests, and had scored 75 or above

on all of them, including a full scale of 82. Id. (stating that

“every single IQ test that Wright took reported a score of 75 or

above, five points above the threshold of 70 utilized under

Florida law”). Even after adjusting Wright’s scores to account

for the SEM as required by Hall, the court found that Wright had

failed to demonstrate by a preponderance of the evidence that he

suffered from significantly subaverage general intellectual

functioning. The court noted that even the defense expert

acknowledged that Wright’s full scale score of 82 “was valid and

free of any practice effect concerns.” Id. at 897-98. Like the

postconviction court who heard the differing opinions of the

mental health experts, the Florida Supreme Court credited the

State expert’s opinion that Wright’s range of 10 scores

established that he did not suffer from significantly subaverage

intellectual functioning. The State’s expert, Dr. Gamache, had

concerns regarding Wright malingering on his IQ tests and not

putting forth full effort, and opined that I0Q tests are

performance-based and “one can malinger and fake a low IQ, [but]

one cannot fake a higher IQ.” Wright I, 213 Seo. 3d at 898. Thus,

given Wright’s consistent scores above the threshold for a

determination of intellectual disability, even when factoring in

the SEM as required by Hall, the Florida Supreme Court found

that Wright had failed to carry his burden of proof regarding

the subaverage intellectual functioning prong. Id.

In addition to failing to establish that Wright suffered

from significantly subaverage intellectual functioning, the

Florida Supreme Court also determined that Wright failed to

establish that he had current deficits in his adaptive

functioning. In making this determination, the court stated that

the experts’ and lay witnesses’ testimony at the evidentiary

hearing, and the resulting credibility determinations, along

with Wright’s own actions and testimony at trial, all refuted

his claim of deficits in adaptive functioning. The court

thoroughly examined the testimony from the State’s mental health

expert who opined that Wright did not have sufficient deficits

in any of the three accepted broad categories of adaptive

functioning: conceptual skills, social/interpersonal skills, and

practical skills.° Wright I, 213 So. 3d at 899-900.

Dr. Gamache opined that, in regard to conceptual skills,

Wright had some deficits in reading and writing, but these were

attributable to other factors like lack of education, a learning

disability, and a low socioeconomic status. Wright I, 213 So. 3d

at 899. However, Dr. Gamache opined that Wright did not have

deficits in the area of conceptual skills consistent with the

level necessary for a finding of intellectual disability. Dr.

Gamache based this conclusion on observations made of Wright,

including that Wright:

(1) rewrites draft blog entries in his own words; (2)

fully communicates with other prisoners and prison

staff; (3) listens to others and takes advice, as

evidenced by his brief period requesting Kosher meals;

(4) understands numbers and time; (5) knows the time

allocated for prison activities; (6) manages his

prison canteen fund and pays attention to his monthly

statements; (7) managed his own funds as an adolescent

to buy necessities; (8) conducted basic transactions

before he was incarcerated; (9) was attentive to time

5 Dr. Gamache, as well as the defense’s mental health expert, Dr.

Mary Kasper, both noted that the American Psychiatric

Association’s Fifth Edition of the Diagnostic and Statistical

Manual of Mental Disorders (DSM-5) and the American Association

of Intellectual and Developmental Disabilities (AATDD-11)

clinical manual categorized adaptive behavior into these three

broad categories.

and number issues during the examination; (10)

identifies his attorneys by name and estimates the

amount of time they have represented him; (11) knows

the difference between legal mail and regular mail in

the prison system; (12) understands that he needs his

attorneys because he has no legal training; (13) is

receptive to the suggestions of his attorneys; (14)

wants his attorneys to prove that he did not commit

the crimes for which he was convicted; (15) knows that

he was sentenced to death and understands the

reasoning for his sentence; and (16) has performed

some work on his case.

Both the State’s expert and the defense’s expert agreed

that Wright does not have concurrent deficits in the other two

categories of practical skills or social skills. Wright I, 213

So. 3d at 899-901. The defense’s expert, Dr. Mary Kasper, opined

that Wright was intellectually disabled given his IQ scores and

current deficits in a single area, conceptual skills. In

determining that Wright had deficits in his conceptual skills,

Dr. Kasper relied extensively on her administration of the

Adaptive Behavior and Assessment Scales (ABAS-II) which she

personally filled out based on interviews she conducted with

numerous people who knew Wright at various times during his

life. Dr. Kasper acknowledged on cross-examination, however,

that her opinion was based on an improper administration of the

10

ABAS-II.® Id. at 900 (gratuitously characterizing Dr. Kasper’s

administration of the ABAS-II as, “at best, unorthodox” and

causing the Florida Supreme Court to give “great pause” to the

validity of her testing).

In addition to the differing mental health experts’

opinions on Wright’s alleged deficits in adaptive functioning,

the state courts also looked at other evidence when concluding

that Wright did not have deficits in his adaptive functioning.

The Florida Supreme Court considered the lay witnesses’

testimony from the evidentiary hearings, as well as Wright’s own

statements and conduct at trial. The Florida Supreme Court

noted:

Moreover, we need not limit ourselves to expert

testimony alone to conclude that Wright does not have

concurrent deficits in adaptive functioning. Wright

gave extensive testimony during trial, where he told a

coherent narrative of his version of the events. He

testified at length and was not generally aided by

leading questions. Furthermore, following his

testimony, he endured a strong cross-examination by

the State in which he demonstrated a clear

6 Dr. Gamache explained that Dr. Kasper’s administration of the

ABAS-II test was improper because she personally compiled

numerous people’s responses into a single test result. Dr.

Kasper acknowledged that her retrospective approach of speaking

to numerous people and filling out the ABAS-II results herself

was “much more difficult” than the normal administration of the

test to a single individual or caretaker. Additionally, Dr.

Gamache explained that the ABAS-II test was not scientifically

valid for these purposes as peer-reviewed literature explained

that the test is very susceptible to misrepresentation as the

person answering the test questions can very easily make it look

like the subject is impaired.

11

understanding and unwavering invocation of his Fifth

Amendment right against self-incrimination with regard

to certain uncharged offenses he was repeatedly

questioned about. Moreover, the record demonstrates

multiple times that Wright assessed the performance of

his counsel across all three of his trials, sometimes

expressing dissatisfaction with their inability to

elicit certain evidence that had been elicited during

a previous trial. In addition, during an extensive

colloquy, the trial court judge questioned Wright

concerning his waiver of an advisory penalty phase

jury and Wright appeared to understand all of the

ramifications of such a waiver, a waiver we affirmed

on direct appeal. Thus, competent, substantial

evidence supports the postconviction court’s

determination that Wright’s testimony during trial and

interactions with the trial court refute his alleged

deficits in adaptive functioning.

Furthermore, competent, substantial evidence supports

the postconviction court’s determination that the

facts underlying Wright’s convictions refute deficits

in adaptive functioning. First, the trial court found

that Wright committed the murder in a cold,

calculated, and premeditated manner. See Phillips, 984

So. 2d at 512 (“The actions required to satisfy the

CCP aggravator are not indicative of mental

retardation.”). Specifically, the trial court found,

and we affirmed, the findings that Wright had killed

his victims execution style. Second, the complexity of

the crime spree reflects someone who is likely not

intellectually disabled. In addition, the State

presented testimony from Aaron Silas, who drove the

car during the Longfellow Boulevard drive-by shooting

and testified that Wright instructed him to turn the

car around after spotting his victim, someone Wright

previously knew.

The State also placed into evidence a transcript of a

taped interview with a detective who interviewed

Wright following his arrest and presented the

detective as a witness. The interview is inconsistent

with an intellectually disabled defendant. Wright

admitted to running away from the police because he

had marijuana in his possession, to discarding the

marijuana, and to knowing that possession of marijuana

12

was a crime. Wright was also questioned during the

interview about the box of bullets he was carrying, to

which he responded, “I think they was .380 bullets,”

and that he was holding the bullets for a friend.

Then, when informed a .380 caliber handgun was found

nearby, Wright denied knowledge of the gun.

Furthermore, while it was the detective’s practice to

inquire about mental illnesses when he suspected it

may be a concern, he did not feel the need to ask

Wright whether he had been diagnosed with any mental

illnesses.

Finally, the lay witness testimony from people who

know Wright does not dissuade us from concluding that

Wright cannot demonstrate concurrent deficits even by

a preponderance of the evidence. Although Wright’s

witnesses testified to general issues, they all

ultimately made concessions that suggest Wright lacks

concurrent deficits in adaptive functioning. For

instance, Wright’s cousin conceded that Wright: (1)

had a fast-paced job selecting items for shelving at a

grocery store that Wright eventually learned to do on

his own, albeit not fluidly; (2) has improved somewhat

with regard to grammar and punctuation; (3) writes him

cards from prison for the holidays and his birthday;

(4) reads the Bible; (5) occasionally calls him on the

phone; and (6) has the capacity to learn. Similarly,

Wright’s aunt conceded that Wright: (1) did not appear

to have problems understanding her; (2) did not appear

to have problems getting along with other people; (3)

was always clean when she saw him; and (4) sent her

cards and letters from jail on holidays like Mother’s

Day, Christmas, Thanksgiving, Easter, and sometimes

her birthday.

Furthermore, the State presented the testimony of

Samuel Pitts’s sisters, Sandrea Allen, Darletha Jones,

and Vontrese Anderson, the latter of whom Wright dated

for two to three weeks. All three testified that they

had known Wright, Wright never had trouble

understanding them, and they never had trouble

understanding him. All three also testified to having

observed Wright ride the city bus to varying degrees.

Vontrese also testified that Wright would follow her

around after they had ended their relationship, and

that even though he was advised by law enforcement to

13

end that activity, he would continue to follow her

anyway. She believed Wright knew he was not supposed

to follow her, but chose to follow her regardless.

Vontrese added that Wright had memorized her phone

number and that she received five or fewer jail calls

from Wright, but she did not answer them, and that she

had received a letter from the jail that appeared to

be written by Wright.

Wright I, 213 So. 3d at 900-02 (footnote omitted). Thus, because

the Florida Supreme Court agreed with the postconviction court

that Wright failed to establish by a preponderance of the

evidence the first two prongs for a determination of

intellectual disability, the court determined that Wright was

not categorially ineligible for execution.

Following the release of the Florida Supreme Court’s

opinion on November 23, 2016, Wright moved for rehearing. On

March 16, 2017, the Florida Supreme Court granted the motion for

rehearing and issued its revised opinion. Wright v. State, 213

So. 3d 881 (Fla. 2017). On April 3, 2017, the Florida Supreme

Court issued its mandate. Petitioner filed a petition for writ

of certiorari with this Court, and on October 16, 2017, this

Court granted certiorari, vacated the judgment, and remanded the

case to the Florida Supreme Court for further consideration in

light of this Court’s recent decision in Moore v. Texas,

U.S. , 137 S. Ct. 1039 (2017). Wright v. Florida, 138 S. Ct.

360 (2017).

14

On remand, the Florida Supreme Court found that Moore did

not alter its prior decision that Wright failed to establish

intellectual disability. Wright v. State, 256 So. 3d 766 (Fla.

2018) (Wright II). The court held that Wright did not establish

significant subaverage general intellectual functioning as

evidenced by his range of IQ scores and noted that Moore did

“not substantially change the law with regard to consideration

of intelligence or IQ for the purposes of an ID determination.?”

Id. at 770-72 (“As it pertains to the intelligence prong of the

ID test, Moore generally embodies a simple affirmation of the

principles announced in Hall. Following Hall, the Supreme Court

again stated that when a defendant establishes an IQ score range

-adjusted for the SEM - ‘at or below 70,’ then a court must

7 In separate concurring opinions, numerous justices expressed

the opinion that the consideration of Wright’s adaptive

functioning was unnecessary in the instant case because Wright’s

range of IQ scores, even when adjusted for the SEM, did not

establish a claim of intellectual disability. In Justice

Labarga’s concurring opinion, joined by Chief Justice Canady and

Justice Polston, Justice Labarga noted that Moore did not alter

the general proposition that “where a defendant has failed to

establish any one of the three prongs of intellectual disability

determination by clear and convincing evidence, ‘the defendant

will not be found to be intellectually disabled.’” See id. at

778-79 (Labarga, J., concurring) (quoting Williams v. State, 226

So. 3d 758, 768 (Fla. 2017), cert. denied, 138 S. Ct. 2574, 201

L. Ed. 2d 297 (2018)); id. at 779-80 (Lawson, J., concurring)

(stating that Moore only addressed adaptive behavior because the

defendant had met his burden of establishing the first prong

related to general intellectual functioning, whereas in the

instant case, Wright’s failure to establish significantly

subaverage general intelligence ends the inquiry).

15

‘move on to consider [the defendant’s] adaptive functioning.’”)

(quoting Moore, 137 S. Ct. at 1049). As the court discussed at

length in Wright I and Wright II, Petitioner’s IQ scores ranged

from a low of 75 to a high score of 82, and even when adjusted

for the SEM as required by Hall and Moore, there was competent,

substantial evidence to support the lower court’s finding that

Wright failed to satisfy his burden of establishing

significantly subaverage intelligence. Specifically, the court

noted that “[n]leither Hall nor Moore require a significantly

subaverage finding when [only] one of many IQ scores falls into

the ID range.” Wright II, 256 So. 3d at 772 (emphasis added).

In addition to concluding that Moore did not affect its

prior determination that Wright failed to establish significant

subaverage intellectual functioning, the Wright II court also

determined that Moore did not alter its finding with regard to

Wright’s alleged deficits in adaptive functioning. The court

observed that Florida’s statutory definition of intellectual

disability requires a defendant to establish significantly

subaverage intellectual functioning “existing concurrently with

deficits in adaptive behavior.” § 921.137, Fla. Stat. (2017).

The court recognized that Florida’s statutory definitions were

similar to the current medical consensus regarding intellectual

disability. Wright II, 256 So. 3d at 770-71 & n.2 (citing the

16

definitions contained in the American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders 37 (5th

ed. 2013) (hereinafter DSM-5), and the American Association on

Intellectual and Developmental Disabilities, Intellectual

Disability: Definition, Classification, and Systems of Supports

5 (llth ed. 2010) (hereinafter AAIDD-11). The court noted that

the current medical standards divide adaptive functioning into

three broad categories: conceptual, social, and practical. Id.

at 773 (citing DSM-5 at 37; AAIDD-11 at 43).

In addressing Wright’s adaptive functioning, the court

correctly noted that “only one domain is at issue here: the

conceptual. Both experts testified at the renewed ID

determination hearing - including Wright’s own expert - that

Wright has no deficits in the social and practical domains that

rise to the level of an ID determination.” Wright II, 256 So. 3d

at 774 (quoting Wright I, 213 So. 3d at 900). The court

proceeded to analyze Wright’s adaptive functioning in light of

this Court’s pronouncements in Moore:

The record in this case demonstrates that the

postconviction court and the medical experts below

relied on current medical standards. Even the State’s

expert, Dr. Gamache, used current medical expertise to

inform his testimony. Moreover, the postconviction

court demonstrated a willingness to engage with the

clinical manuals and understand how they fit together

with the case law. Unlike Moore, this Court did not

reject the postconviction court’s reliance on current

medical standards. Compare Moore, 137 S. Ct. at 1045-

17

47, with Wright, 213 So. 3d at 899-902. Instead, we

accepted the findings and affirmed the postconviction

court’s determination that Wright does not qualify as

an ID defendant who cannot be executed. Wright, 213

So. 3d at 902. In doing. so, current medical

understanding served as the basis for the rejection of

Wright’s claim, which differentiates this case from

Moore where the CCA relied on outdated medical

standards and lay perceptions of ID. See Moore, 137 S.

Ct. at 1050-51. Furthermore, we did not rely on ID

risk factors as a foundation to counter an ID

determination. See generally Wright, 213 So. 3d at

899-902; see Moore, 137 S. Ct. at 1051. Therefore, the

only remaining basis from Moore that could even

remotely entitle Wright to relief was an alleged

overemphasis on adaptive strengths and improper focus

on prison conduct. Moore, 137 S. Ct. at 1050.

Wright II, 256 So. 3d at 775-76.

Although the Florida Supreme Court noted the difficulty in

discerning where “Moore drew the tenuous line of ‘overemphasis’

on adaptive strengths,” id. at 776, the court found that it had

not overemphasized Wright’s strengths in violation of Moore or

current medical standards. While the court recognized that it

had discussed Wright’s strengths and behavior in prison in

Wright I, “the crux” of its decision focused on the competing

testimony of the mental health experts rather than a focus on

Wright’s behavior in prison. Wright II, 256 So. 3d at 777

(noting that “[bloth experts agreed that Wright does not have

sufficient deficits in the practical or social domains”).

Notably, the court did not “detrimentally rely on strengths that

Wright developed in prison” to justify its decision that Wright

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did not have deficits in the conceptual domain, but rather,

relied on the lower court’s factual findings and credibility

determinations when comparing the competing testimony from the

medical experts. Id. at 777-78. In making this determination,

the court relied on Wright’s adaptive behavior prior to his

incarceration, as well as the facts of the crime and Wright’s

extensive testimony and statements made during his trial

proceedings. Id. at 778. The court concluded by noting that

Wright’s position was “less about Moore than it is a mere

reassertion that his expert, Dr. Kasper, was more reliable than

the State’s, Dr. Gamache;” a contention that was not supported

by the lower court’s factual findings. Id.; see also id. at 782-

83 (Pariente, J., concurring).

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REASONS FOR DENYING THE WRIT

There is no basis for certiorari review of the Florida

Supreme Court’s fact-based decision finding that

Wright failed to meet his burden of procf of

establishing intellectual disability as the court

correctly applied this Court’s precedent to the

disputed facts and found that Wright did not have

significantly subaverage intellectual functioning and

deficits in his adaptive behavior.

Wright claims in his petition that the Florida Supreme

Court “disregarded this Court’s standards in Moore I, Hall, and

Atkins by erroneously analyzing the first two prongs of Wright’s

intellectual disability claim.” Petition at 13. Contrary to

Petitioner’s assertion, the Florida Supreme Court reviewed the

record and properly analyzed Petitioner’s claim in accordance

with current medical standards and this Court’s precedent and

determined that there was credible evidence to support the

postconviction court’s finding that Wright failed to establish

significantly subaverage intellectual functioning and deficits

in his adaptive behavior. As the Florida Supreme Court has

repeatedly noted, Wright’s claim is less about the legal

analysis than it is a mere disagreement with the factual

findings and credibility determinations made by the

postconviction court when weighing the experts’ and lay

witnesses’ testimony, as well as the facts of the underlying

crime and Wright’s testimony and involvement at the trial. See

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Wright I, 213 So. 3d at 898-99; Wright II, 256 So. 3d at 778,

782-83. As such, Wright has failed to offer any persuasive basis

for this Court to grant certiorari review.

This Court has noted that certiorari review is limited to

those situations where there is a conflict in the law or where

an important, unsettled federal constitutional question is

presented. Rockford Life Insurance Co. v. Illinois Dep’t of

Revenue, 482 U.S. 182, 184 n.3 (1987) (cases that have not

divided the courts or presented important, unsettled questions

of federal law usually do not merit certiorari review).

Furthermore, this Court does not grant certiorari for the

purposes of reviewing evidence or reassessing factual disputes.

See United States v. Johnston, 268 U.S. 220, 227 (1925) (“We do

not grant a certiorari to review evidence and discuss specific

facts.”); General Talking Pictures Corp. v. Western Elec. Co.,

304 U.S. 175, 178 (1924) (stating that Court will not grant writ

to review evidence or the inferences drawn from it). The instant

petition does not satisfy any of the requirements for certiorari

review and should therefore be denied. See Sup. Ct. R. 10.

After this Court vacated Wright I and remanded the case to

the Florida Supreme Court for reconsideration in light of Moore

v. Texas, 581 U.S. _—, #137 S. Ct. 1039 (2017), the Florida

Supreme Court reengaged in a detailed analysis of Wright’s

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intellectual disability claim and concluded that Moore did not

require the court to change its original conclusion. While

recognizing that Moore focused primarily on the adaptive

behavior prong of an intellectual disability claim, the Florida

Supreme Court found that Wright failed to carry his burden of

establishing intellectual disability under Florida law because

he did not establish: (1) significantly subaverage intellectual

functioning (2) existing concurrently with deficits in adaptive

behavior. In reaching this conclusion, the court properly

analyzed Wright’s claim under this Court’s precedent and found

that competent, substantial evidence supported the

postconviction court’s findings rejecting Wright’s intellectual

disability claim.

This Court held in Atkins v. Virginia, 536 U.S. 304, 317

(2002), that the Eighth Amendment’s prohibition against cruel

and unusual punishment bars the execution of an intellectually

disabled defendant, but left to the States “the task of

developing appropriate ways” to identify intellectually disabled

defendants and to enforce this constitutional protection. Under

Florida law, a defendant claiming intellectual disability must

establish by clear and convincing evidence that he has

significantly subaverage general intellectual functioning

existing concurrently with deficits in adaptive behavior and

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manifested during the period from conception to age 18.8 See §

921.137(1), Fla. Stat. (2013).

The term “significantly subaverage general

intellectual functioning,” for the purpose of this

section, means performance that is two or more

standard deviations from the mean score on a

standardized intelligence test specified in the rules

of the Agency for Persons with Disabilities. The term

“adaptive behavior,” for the purpose of this

definition, means the effectiveness or degree with

which an individual meets the standards of personal

independence and social responsibility expected of his

or her age, cultural group, and community.

Id. In Petitioner’s case, both the postconviction court and the

Florida Supreme Court followed this Court’s precedent and

current clinical standards in determining that Wright failed to

establish that he had significantly subaverage general

intellectual functioning or current deficits in his adaptive

behavior.

A. The Florida Supreme Court’s determination that

Wright failed to establish significantly subaverage

general intellectual functioning is consistent with

Hall and Moore and based on _ substantial, competent

evidence.

In Hall v. Florida, 572 U.S. 701, 710 (2014), this Court

noted that “the medical community defines intellectual

disability according to three criteria: significantly subaverage

intellectual functioning, deficits in adaptive functioning (the

inability to learn basic skills and adjust behavior to changing

8 The third prong is not at issue in Wright’s case.

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