Opposition Brief — Kevin Foster, Petitioner v. Florida

CASE NO. 18-9252

IN THE SUPREME COURT OF THE UNITED STATES

KEVIN FOSTER,

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 of Florida

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Florida Bar No. 158541

*Counsel of Record

LISA MARTIN

Assistant Attorney General

Florida Bar No. 72138

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Carolyn.Snurkowski@myfloridalegal.com

Lisa.Martin@myfloridalegal.com

E-Service: capapp@myfloridalegal.com

Counsel for Respondent

[CAPITAL CASE]

QUESTION PRESENTED FOR REVIEW

Whether this Court should grant certiorari review where the Florida Supreme

Court’s denial of relief, pursuant to Hurst v. Florida and Hurst v. State, is based on

adequate independent state grounds and the issue presents no conflict between the

decisions of other state courts of last resort or federal courts of appeal, does not

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

federal question?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW uu... cecsssseseeessecesesees Error! Bookmark not defined.

Whether this Court should grant certiorari review where the Florida Supreme

Court’s denial of relief, pursuant to Hurst v. Florida and Hurst v. State, is based on

adequate independent state grounds and the issue presents no conflict between the

decisions of other state courts of last resort or federal courts of appeal, does not

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

federal QUeStiON? ..........ccseccccsssestecsecetsessessesesseesesesaesenssssessecaseaueeseessacesscetsaeseaeessecsaesaneeneesaese i

TABLE OF CONTENTS...........0. deseesnseceneeceveceessasaevsceesseeesseeseseeeesaseecsuseesneeseeeasecessecassereseeeeesseeates ii

TABLE OF CITATIONS oe. ceeeeececceeeseeceeeeeescecececeecsneaesoeserseneeseseesaseeseeeaseeesacensneesennesseeaesaneees iti

CITATION TO OPINION BELOW... ccessescsescecesseesnescesesecseeesecceaesenesecesecesasecesaneseseceneenees 1

JURISDICTION 00. eecceeccsscescesseeesesneeescanecsseesseaseesseeseseeeeaseeeceeseesuseesnaseaseaseesesseasnseeseaseesseneges 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... eccsccsssecseeeeeseeeees 1

STATEMENT OF THE CASE AND FACTS ......cccssssscsseenssesseeseonsnssssesnsnsoessesseasesssseceeseaseasecees 2

REASON FOR DENYING THE WRIT)... csccssssssesssessoseeesensseseessesessnsssesesseseetsereesseeseeereeseteres 5

As a matter of state law, the Florida Supreme Court correctly determined that

Petitioner is not entitled to relief pursuant to Hurst v. Florida and Hurst v. State. ........... 5

CONCLUSION... ecceececcsseceeceseeeeseecersnesneecceseeaesseeseesaeesecscseasacsaeseessesasesceseaeneeeseteaseacenseeaeseesaseas 17

CERTIFICATE OF SERVICE .......cceccescesseeccessescseeesenseceneeecseeseassensaeseeeanseceseaesaesaeeasnecesateetsansaeees 18

ii

TABLE OF CITATIONS

Cases

Apodaca v. Oregon,

406 U.S. 404 (1972). eee cece ssceesececeeeseeesseeceseeesseessseesseeseseesoceesoeeesauenseseesseessenseveneeennensaeeseaees 11

Asay v. State,

210 So. 3d 1 (Fla. 2016),

cert. denied, 138 S. Ct. 41 (2017)... cescssecssseecessncesesseesesceeeessoesesacesesaeeeeeesseteressensersseeees 12, 13

Asay v. State,

224 So. 3d 695 (Fla. 2017)... eeceesceessccsceeeneesceeeseesaseeseeseeseseaeecceeseeseeeseeessesessesseaecsassseseesenes 8,9

Branch v. State,

234 So. 3d 548 (Fla. 2018),

cert. denied, 138 S. Ct. 1164 (2018)... cecccceccssceeessteeeseecseenceeceneneesecsneeeecesaeeaeeaseeeeeateas 10, 13

Cardinale v. Louisiana,

394 U.S. 437 (1969)... .cccssscssscscccssesensecseceneesesuseseseesneenseccasenesseesesseesesseeeneeesecsaseneseneatens 10, 14

Chapman vy. California,

386 US. 18 (1967)... .cccccccssccssceseseesesacesceesnsessesesseeseseesaseceetaneeseeneceeeeseeseseeesseesseeeseeeeneneesonsess 16

Cole v. State,

234 So. 3d 644 (Fla.),

cert. denied, 138 S. Ct. 2657 (2018) ........cceccssssecsseeeeseceeseeeceeeesceseseeeseetcaseeseeeesecaneeeaneesaneeseeeeaes 10

Coleman v. Thompson,

501 U.S. 722 (1991). eee eceeeeeeeeneeeeeeceneeeenescssesessessssacsecsneesssesesceessenecceseesseseseeaeasscaeeassenseesesegee 5

Ellerbee v. State,

87 So. 3d 730 (Fla. 2012) .....ccccscccscccssssesssseessneccseeesececsessanessaceessecssesssasenseesessnacensaeesseeensetensetes 12

Florida v. Powell,

559 U.S. 50 (2010)... eccsscscssssessscesscessresseceseeseessessaeesnsestessssseseeceseeeesensescesneussseeeaseseeeaeseeees 14

Foster v. State,

132 So. 3d 40 (Fla. 2013) .........ccescessceessseescessceseeeneeeseeeecesaeeesseeeeneeeeeeseaeeasensneeeneeeneceeaeesaneaneseaeeaes 2

Foster v. State,

235 So. 3d 294 (Fla. 2018) ........cccccccsssssseessseeccsseeessneesecseesessoeseesseessonseecseseeesssarenssseneeesees 3, 6, 7,9

Foster v. State,

258 So. 3d 1248 (Fla. 2018) ..... eee eeeeeeeeeeteee sectesceesceseeeeasessenecedenecesseeenseceeeeenateauensaee 1,4, 14

Foster v. State,

778 So. 2d 906 (Fla. 2000) .........cesecccessseesseeessseessseeseseescessccesseeeseeescnesseeseessseesseeessnererseeses passim

Fox Film Corp. v. Muller,

296 U.S. 207 (1935).....cccccsccssssssesssscsccessecsaessesesenseeseceaseacensaescensesassesseseeceeaeeessadsseseesenseeeteases 5, 14

Hannon v. State,

228 So. 3d 505 (Fla.), .

cert. denied, 138 S. Ct. 441 (2017)... ccsscccsessseecesseeessscecsssceesseeeesseeeesssuscessnseensseeeenesaees 8, 10, 13

Harris v. Alabama,

513 U.S. 504 (1995)... cesscsscssesseeseresseecesceeecseeecsueessueesensessueeeessceesseeesseuessreessenseseueseenseneesereess 15

Hendrix v. State,

136 So. 3d 1122 (Fla. 2014) oo. csccescssecsscessecesececsnecessessaeessseesseecsaecseeeceaeeseaenecseeceeesenssees 9

Herb v. Pitcairn,

324 U.S. 117 (1945)... eecccccsccessssceessesecesseecesensseseseesaeaeaeeaseaensensaeeneesscsaacesaeesseesaeeeceecaeeaaeeaeeaes 10

Hitchcock v. State,

226 So. 3d 216 (Fla. 2017),

cert. denied, 138 S. Ct. 513 (2017) ...c.cccccscccssessscssssseesssssccsecesssscceaceseseseessecssnesseseseeesasenees 10, 13.

Hughes v. State,

901 So. 2d 837 (Fla. 2005) ......cssccssssecsseesscessessecsessstscecseesecscesessaesaesesseesseseeessuseeesecsassnseeesaneaes 15

Hunter v. State,

29 So. 3d 256 (Fla. 2008) .........ceseccececeesceesecesseesseceseenseeaeeceeseesseseacencescsecseseneesanesensessecsateeeeeeoues 6

Hurst v. Florida,

136 S. Ct. 616 (2016)... ccccccessseecsseeeessssneeeessaeenscaeeessaeeeseneeessnaesessaseesnaseeeaeeeasaueeseaseaeens passim

Hurst v. State,

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

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

Jackson v. State,

237 So. 3d 905 (Fla.),

cert. denied, 139 8, Ct. 193 (2018) .......ccesssccsseeecseeecseeesseeesenseneessscesseeecseessaeeesausesenesesseesenecssaees 10

Johnson v. Louisiana,

406 U.S. 356 (1972)........... aueancuaenecsacanessaavenccaaasaceadansaasausecs.eseasanassssaasatacssussssnaucesessssonseressonnes 11

Jones v. State,

234 So. 3d 545 (Fla.),

cert. denied, 138 S. Ct. 2686 (2018)........cccsccsssccsssecesseccsecsesseeeseseesseecsneesertecsetessteceseeeeteeeseers 10

Lambrix v. Sec’y, Fla. Dep’t. of Corr.,

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

cert. denied, 138 S. Ct. 217 (2017)... cessecsccsssneeecsestessceeecsnncevscenseeseeesssesesseeeeessneeesassnetesseeesesss 13

iv

Lambrix v. State,

227 So. 3d 112 (Fla.),

cert. denied, 138 S. Ct. 312 (2017) cei eeceeseesseeeeecesseeeeeeeeeeseeeeesaeeeeeeaceneeesteessneveneeseesees 8, 10, 13

McCleskey v. Zant,

499 U.S. 467 (1991)... .cccceccsssessncseessscessecseecssesseeesseteeessnseesnecenseseeesseeaeseaeeeacenecenececeseetesennereute 8

Michigan v. Long,

463 U.S. 1032 (1983)... eesecesseeeeseeeeeeeeseeesaneeseeesnneassseessnsesessneseesaecesnesenesasseneeeseensens 5, 10, 14

Mosley v. State,

209 So. 3d 1248 (Fla. 2016) .0......eeeesecccsseeecceeeceeseeesseecaneseecseessesecessssesesseceneeessedeuseeaeenees 6, 11, 12

Perry v. State,

210 So. 3d 630 (Fla. 2016) oc ccscccssecesseesseeseeesssesevssseessesessoedssseesseseeesesseessesessnseeuseasenees 6

Rhoades v. State,

233 P.3d 61 (2010)........cccccsscssrcsssessessssessesseesseessneeseeeseesssessuesenesersseeseussensvauseseesersseessnssaeseneenasens 15

Ring v. Arizona,

536 U.S, 584 (2002)... cesccsceseccesseesceeseeceeseeeseeecseeseteccereeeeaseeesseeseeeacereneenseeeseeesenneeatente passim

Rockford Life Insurance Co. v. Illinois Department of Revenue,

482 U.S. 182 (1987)......ccccccccsscccsceseeesscetecsseececeeaeeesseecenecaeeaaeesecceseeeceeseseseaaceecesseceaeseaeeseeeeseecaneaes 5

Rodriguez v. Jones,

2018 WL 1673423 (Fla. Apr. 6, 2018) oo... eeceeeseesceseeceetecceseeeenecanenseeceeeeseesseesaetseeeseeecnensneesaes 8

Schriro v. Summerlin,

542 U.S. 348 (2004)... ceecesseseccesceesceneteecesceseneeessneecesessecnseseeeseassaesaceaesneaseoeeesseeaseneeeatenane 11, 16

Sochor v. Florida,

504 U.S. 527 (1992)... .cccccscccssecsseescsessseecseecesseesassneesaeeesseseaeeseaeessaceeseeesnaeeesaceeseeesaesecnersneeeeasens 10

Street v. New York,

394 U.S. 576 (1969)......cccccsccssecstesssessecseessseseeesseeesceesseessesseeeseseseesseesesesessscessueeseseseeseeeseresserssneess 10

Taylor v. State,

246 So. 3d 231 (Fla. 2018) oo... eecseeseeseeeeeeesseeeseesenseseeneaeeaseasesatecsaeeaseseseaseseeeneseeeeseeceeaeeaseeese 8

Teague v. Lane,

489 U.S. 288 (1989)... eccccsceeeseeesseeeceessneesseseesseessseessansscenseeeseseasseeasseeesecsssseeeenseeseeesseeeeenees 13

Thomas v. Jones,

2018 WL 3198373 (Fla. June 29, 2018) .........ceecsssesseeseseeeeesseeseeseesnesesseesaeessesseeeesenssueeaseeeesnsesnss 8

Witt v. State,

387 So. 2d 922 (1980)... ccccccsssseeesssecsseeeessneeccessneesecsaeeeeneesensaeeeesceeseeconseeeeaneessneenseena 11, 12, 13

Ybarra v. Filson,

869 F.3d 1016 (Oth Cir. 2017) oo... ee eeceseceseeereeeeeesecesteeeseeeeeseeeseeasecsecseseneaseaseameessuenseseesenassuges 13

Other Authorities

28 U.S.C. § 2244 (D)(1) on. eceeceeecseeeeeeseeeeceesersesesesseeeesaceesseeaseeeasseessneasseecesseeesaeeseeessesseensasenaeseas 8

28 U.S.C. § 2244(b)(2) oo. eeccscscssssceseeccesesseseeseessseesseecesesaseacassceneesesseeacaccenseesseeassaceaseesceessaseesnsaesoes 8

Ch. § 2016-13, (2016), Fla. Laws ......cc.sccssecsssseesesseescnnesoneesseesneesaseenesseuseesensesnesesessessessensenes 3, 6, 8

Ch. § 2017-1, (2017), Fla. Laws .0......ccceccsscescssceesseececeeeceaceseeesaeeceseececnaesseseseneassnececaateanenaseee passim

Fla. R. Crim, P. 3.851 ...cccceccccscesssecesseceeseecesseeecseecesseacaeesnessessecasseeesseesesecseesecsnesaseaseeseeeessusnneaseees 7,8

Fla. R. Crim. P. 3.85 1(A)(1) .ceceeccssesceseecsereeeseceesecceesereseeaeesecesevesseesessessseeseseeseaeseseesessesssesseesasaes 7

Fla. R. Crim. P. 3.851(d)(2) .....esececsseceesesceeceeesesesseaneccenseneceenseeaneccasecesseceesenesnaceseacessansoessesseesaaes 4,7

Fla. R. Crim. P. 3.85 1(€)(2) ......scssssesssecssseceeeecessseeseseeecsecaneessssecsnescsnsecsseeeseneesseeeseseceesessesersseseeveaseaes 9

Sup. Ct. Rule 10.0... ..ccccccssessessscessecssesseessceseeecscencenseesseesnaecsaeeneeescesaaeesneseaseaseneeensaseasanesesassaeeesasnens 5

vi

CITATION TO OPINION BELOW

The opinion of the Florida Supreme Court is reported at Foster v. State, 258 So. 3d 1248

(Fla. 2018).

JURISDICTION

The judgment of the Florida Supreme Court was entered on December 6, 2018, and the

mandate issued January 18, 2019. Petitioner invokes the jurisdiction of this Court based upon 28

U.S.C. § 1257(a) and 2101(d). Respondent agrees that this statutory provision sets out the scope

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

this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the applicable constitutional and

~

statutory provisions involved.

STATEMENT OF THE CASE AND FACTS

In 1998, Petitioner Kevin Don Foster was convicted of the first-degree murder of Mark

Schwebes and sentenced to death. On April 30, 1996, Foster, as the leader of the group “Lords of

Chaos”, decided to vandalize Riverdale High School and set its auditorium on fire; however, they

were interrupted when a Riverdale teacher, Mark Schwebes, confronted them in the auditorium.

Foster v. State, 778 So. 2d 906, 909-12 (Fla. 2000). Upon consultation with the group, Foster

decided to go to Schwebes’ home and kill him: Schwebes succumbed to the multiple gunshot

wounds inflicted by Foster. Id.

After the Florida Supreme Court issued its opinion affirming Foster’s judgment and death

sentence, Foster filed a motion for rehearing. The Florida Supreme Court denied the motion for

rehearing on January 22, 2001. Foster did not seek certiorari review in this Court, so his conviction

and sentence became final 90 days after the denial of his motion for rehearing, on April 22, 2001.

On September 27, 2001, Foster filed his initial postconviction motion, and filed an

amended motion in 2010. (PCR-1. 57-123, 1171-1320). Eventually, in 2011, the state

postconviction conducted an evidentiary hearing on Foster’s postconviction claims, and on July 6,

2011, issued an order denying relief. (PCR-1. 3674-3728). Foster appealed, and the Florida

Supreme Court affirmed the denial of relief. Foster v. State, 132 So. 3d 40 (Fla. 2013).

Foster also sought federal habeas corpus relief by filing a petition for writ of habeas corpus

with the United States District Court Middle District of Florida. After the State filed a response in

federal court to the habeas petition, Foster moved to stay the federal proceedings pending the

United States Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016). The federal

court initially denied the motion to stay, but subsequently granted a motion to stay filed by Foster

while he litigated a successive postconviction motion in state court.

On February 18, 2016, Foster filed a successive postconviction motion seeking relief

pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016). The State responded and argued that the motion

should be summarily denied because Foster’s successive motion was untimely as this Court had

not held that Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert denied, 137 S. Ct. 2161 (2017) was

retroactive. On April 21, 2016, the state postconviction court denied the motion as “premature and

insufficient,” without prejudice to file another motion after the Florida Supreme Court determined

whether Hurst was retroactive.

On January 12, 2017, Foster filed a second successive postconviction motion again seeking

relief based on Hurst. In his motion, Foster presented numerous Hurst-based claims and

specifically argued that chapter 2016-13, Laws of Florida (revising Florida Statutes, section

921.141, to require a 10-2 jury recommendation for death), mandated that his death sentence be

vacated. On April 27, 2017, the state postconviction court denied Foster’s successive motion.

Foster moved for a rehearing and argued that the enactment of chapter 2017-1 required that the

court revisit its prior ruling. (PCR-2. 366-87). The state postconviction denied the rehearing and

specifically rejected Foster’s argument that the enactment of chapter 2017-1 required that his death

sentence be vacated. Foster appealed to the Florida Supreme Court, and on January 29, 2018, the

Florida Supreme Court affirmed the lower court’s denial of relief. See Foster v. State, 235 So. 3d

294 (Fla. 2018) (noting that Hurst does not apply retroactively to Foster’s sentence of death).

On February 2, 2018,' Foster filed his third successive motion, totaling 68 pages, raising

two claims: (1) a challenge to his death sentence based on the enactment of chapter 2017-1; and

(2) a claim under the Eighth Amendment that his death sentence constitutes cruel and unusual

punishment because he was 18 years old at the time of the murder and had not yet reached cognitive

maturity. Although the state postconviction court noted that Foster’s two claims were time barred

and meritless, the court nevertheless struck the motion “without prejudice for Defendant to refile

a successive 3.851 motion within the page limit, if he can do so in good faith.” Two months after

the court struck Foster’s 68-paged motion, Foster’s counsel filed a “fourth” motion and repackaged

the same exact two claims and arguments into two separate documents to avoid the 25-page limit

imposed by Florida Rule of Criminal Procedure 3.851(d)(2). The state postconviction court

summarily denied Foster’s motion as untimely, procedurally barred, and meritless. Foster appealed

the denial to the Florida Supreme Court, which affirmed the state postconviction court’s denial of

relief on December 6, 2018. Foster v. State, 258 So. 3d 1248 (Fla. 2018).

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

! Foster filed his third motion only two days after the Florida Supreme Court affirmed the lower

court’s denial of his previous successive motion based on Hurst. Once Foster had another pending

state motion, he argued in federal court that the court should continue to stay his federal habeas

proceedings while he litigated his state court claims. On June 5, 2018, the federal court lifted the

stay, and Foster immediately filed another motion seeking to stay his case pending the outcome of

his state appeal.

REASON FOR DENYING THE WRIT

As a matter of state law, the Florida Supreme Court correctly

determined that Petitioner is not entitled to relief pursuant to Hurst v.

Florida and Hurst v. State.

Petitioner Foster’s conviction and resulting death sentence for the first-degree murder of

Mark Schwebes became final in 2001. Foster v. State, 778 So. 2d 906 (Fla. 2000). His conviction

and death sentence have withstood nearly twenty years of challenges since that time. Petitioner’s

instant petition asserts that he is entitled to a resentencing because the State failed to prove the

elements of “capital first-degree murder”. The Florida Supreme Court decided that relief was not

warranted due to a procedural bar; the court then alternatively addressed Foster’s claim to clarify

the nonexistance of the crime of “capital first-degree murder” in the State of Florida. Certiorari

review should be denied because the issue below was decided on the basis of state law and this

case does not present a fairly debatable or important unsettled question of constitutional law for

this Court’s review. See Sup. Ct. Rule 10 and Rockford Life Insurance Co. v. Illinois Department

of Revenue, 482 U.S. 182, 184, n.3 (1987). As no compelling reason for review has been offered

by Foster, certiorari should be denied.

This Court has repeatedly recognized that where a state court judgment rests on non-federal

grounds, where the non-federal grounds are an adequate basis for the ruling independent of the

federal grounds, “our jurisdiction fails.” Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935);

Coleman v. Thompson, 501 U.S. 722, 729 (1991); Michigan v. Long, 463 U.S. 1032, 1038, 1041-

42 (1983). In this case, the claim presented was rejected in state court based upon well settled state

procedural rules. The Florida Supreme Court found the claim raised by Petitioner, in his successive

motion for postconviction relief, to be procedurally barred from review as the issue had already

been decided. The court stated: “As we have previously held, because Foster's death sentence

5

became final before the United States Supreme Court decided Ring, it is subject to the retroactivity

holdings in Asay and Hitchcock.” Foster v. State, 778 So. 2d 1248, 1251 (Fla. 2018); see also

Foster v. State, 235 So. 3d 294, 295 (Fla. 2018) (“[W]e conclude that Foster is not entitled to relief.

Foster was sentenced to death following a jury's recommendation for death by a vote of nine to

three, and his sentence of death became final in 2001. Foster v. State, 778 So. 2d 906, 912 (Fla.

2000). Thus, Hurst does not apply retroactively to Foster's sentence of death. See Hitchcock, 226

So. 3d at 217”).

A. Foster’s claim is untimely and procedurally barred.

Under Florida law, successive motions for postconviction relief are subject to well

established limitations. As noted by the Florida Supreme Court in Hunter v. State, 29 So. 3d 256,

267 (Fla. 2008):

Claims raised in prior postconviction proceedings cannot be relitigated in a

subsequent postconviction motion unless the movant can demonstrate that the

grounds for relief were not known and could not have been known at the time of

the earlier proceeding. See Wright v. State, 857 So. 2d 861, 868 (Fla. 2003). Rule

3.851 requires motions filed beyond the time limitations to specifically allege that

the facts on which the claim is predicated were unknown or could not have been

ascertained by the exercise of due diligence. Fla. R. Crim. P. 3.851(d)(2)(A).

Furthermore, the rule requires successive motions to articulate the reasons why a

claim was not raised previously and why the evidence used in support of the claim

was not previously available. Fla. R. Crim. P. 3:851(e)(2)(B), (e)(2)(C)(iv).

In his second successive motion for postconviction relief filed in January, 2017, Foster

alleged that he was entitled to relief from his death sentence based on Hurst v. Florida, 136 S. Ct.

616 (2016), Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017), Mosley

v. State, 209 So. 3d 1248 (Fla. 2016), Perry v. State, 210 So. 3d 630 (Fla. 2016), and the enactment

of chapter 2016-13, Laws of Florida. After the state postconviction court denied this motion, Foster

moved for rehearing and claimed that the court had to revisit its ruling in light of the enactment of

6

chapter 2017-1, effective March 13, 2017. The state postconviction court denied the motion for

rehearing finding that “[i]n the absence of the Florida Supreme Court finding this statute applies

retroactively to cases in which a defendant has already been sentenced, the enactment of the statute

has no bearing on Defendant’s case.” Foster appealed this ruling, and the Florida Supreme Court

affirmed the lower court’s denial of relief. Foster v. State, 235 So. 3d 294 (Fla. 2018).

Foster thereafter returned to the state postconviction court and filed another successive

motion, once again based on Hurst and raised a claim that the enactment of chapter 2017-1, Laws

of Florida, required the court to vacate his death sentence. The state postconviction court

summarily denied the claim and found it untimely, procedurally barred, and without merit. The

Florida Supreme Court correctly affirmed the state postconviction court’s denial of relief.

Foster’s claim based on Hurst and the enactment of chapter 2017-1, Laws of Florida, was

untimely under Florida Rule of Criminal Procedure 3.851. Pursuant to rule 3.851(d)(1), a motion

to vacate judgment of conviction and sentence of death must be filed within the one year of the

judgment and sentence becoming final. Foster’s motion was filed long after his sentence became

final in 2001. Therefore, the only way for his motion to be considered timely, is if any one of the

following exceptions were properly alleged in his motion:

(A) _ the facts on which the claim is predicated were unknown to the movant or

the movant’s attorney and could not have been ascertained by the exercise of due

diligence, or

(B) _ the fundamental constitutional right asserted was not established within the

period provided for in subdivision (d)(1) and has been held to apply retroactively,

(C) postconviction counsel, through neglect, failed to file the motion.

Fla. R. Crim. P. 3.851(d)(2).

None of these exceptions applied in Foster’s case. The Florida Supreme Court has held, on

numerous occasions, chapter 2017-1, Laws of Florida, did not create a substantive right that must

be applied retroactively. See Hannon v. State, 228 So. 3d 505, 513 (Fla.) (rejecting Hannon’s Hurst

claims and denying his challenge based on chapter 2017-1, Laws of Florida), cert. denied, 138 S.

Ct. 441 (2017); Asay v. State, 224 So. 3d 695 (Fla. 2017) (denying Asay’s habeas petition based

on chapter 2017-1, Laws of Florida, because Asay “has not presented a novel claim for this Court’s

consideration”); Lambrix v. State, 227 So. 3d 112, 113 (Fla.) (denying claim based on chapter

2017-1 based on prior precedent), cert. denied, 138 S. Ct. 312 (2017); Taylor v. State, 246 So. 3d

231, 240 (Fla. 2018) (finding that postconviction court did not abuse its discretion when denying

Taylor’s request to amend his successive motion to add a meritless claim under chapter 2017-1 as

the statute did not create a substantive right that must be applied retroactively); Rodriguez v. Jones,

2018 WL 1673423 (Fla. Apr. 6, 2018); Thomas v. Jones, 2018 WL 3198373 (Fla. June 29, 2018).

Therefore, Foster’s claim was filed well beyond the time allowed under Rule 3.851. Such time

limitations are common amongst the states and recognize a state’s significant interest in finality.”

See e.g. McCleskey v. Zant, 499 U.S. 467, 491 (1991) (rejecting a capital defendant’s successive

pleading, noting the importance of finality and the heavy burden that successive collateral review

places on the system).

In addition to Foster’s claim being untimely under rule 3.851, the claim was also

procedurally barred. Foster had previously raised this same Hurst-based claim, then under the

guise of the enactment of chapter 2016-13, Laws of Florida, in his second successive

postconviction motion. After the state postconviction court summarily denied the motion, Foster

2 Notably, the rules governing federal habeas petitions and attempts to file successive habeas

petitions provide similar limitations. See 28 U.S.C. § 2244(b)(1) and (b)(2).

8

argued in a motion for rehearing that the recent enactment of chapter 2017-1 required the court to

reconsider its ruling. The state postconviction court denied the rehearing and noted that chapter

2017-1 did not require the court to alter its ruling. On appeal, the Florida Supreme Court affirmed

the lower court’s denial of relief. Foster v. State, 235 So. 3d 294 (Fla. 2018). Because Foster’s

Hurst claim has already been litigated, state law precludes re-litigation of this claim under the

doctrines of law-of-the-case and collateral estoppel. Under Florida law, “[c]laims raised and

rejected in prior postconviction proceedings are procedurally barred from being relitigated in a

successive motion.” Hendrix v. State, 136 So. 3d 1122, 1125 (Fla. 2014); see also Asay, 224 So.

3d at 703 (rejecting an identical argument as Foster currently makes and noting that “[d]espite

Asay’s contention that this claim is based purely on chapter 2017-1, but for the title and the jury

vote requirement, this claim is identical to Asay’s previous claim [under chapter 2016-13]”); Fla.

R. Crim. P. 3.851(e)(2) (stating that “[a] claim raised in a successive motion shall be dismissed if

the trial court finds that it fails to allege new or different grounds for relief and the prior

determination was on the merits.”). Even if the specific challenge to chapter 2017-1 had not been

denied on the merits, Foster’s claim would still be procedurally barred because Chapter 2017-1

merely codifies Hurst, and Foster’s previous motion was denied because Hurst is not applicable

to his death sentence.

The Florida Supreme Court affirmed the denial of relief on procedural grounds: “[a]s we

have previously held, because Foster's death sentence became final before the United States

Supreme Court decided Ring, it is subject to the retroactivity holdings in Asay and Hitchcock.”

Foster v. State, 778 So. 2d 1248, 1251 (Fla. 2018); see also Foster v. State, 235 So. 3d 294, 295

(Fla. 2018). Petitioner ignores the Florida Supreme Court’s rejection of this claim as barred and

presents his claim as if it was decided solely on the merits. However, this Court may not disregard

the jurisdictional bar. As this Court has long recognized, jurisdiction does not lie to review

decisions from state courts that rest on adequate and independent state law grounds. Sochor v.

Florida, 504 U.S. 527, 533 (1992); Herb v. Pitcairn, 324 U.S. 117, 125 (1945) (“This Court from

the time of its foundation has adhered to the principle that it will not review judgments of state

courts that rest on adequate and independent state grounds”). The issue presented in the petition is

solely a matter of state law over which this Court lacks jurisdiction. If a state court’s decision rests

on state law that is independent of federal constitutional law, this Court will not review that

decision. Michigan v. Long, 463 U.S. 1032, 1041 (1983).

As any federal claim addressed or discussed by this Court on certiorari review would

amount to nothing more than an advisory opinion, this Court lacks jurisdiction and this claim must

be denied. See Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that this Court has

no jurisdiction to review a state court decision on certiorari review unless a federal question was

raised and decided in the state court below); see also Street v. New York, 394 U.S. 576, 581-82

(1969) (same).

B. Hurst is not retroactive to Foster.*

3 This Court has consistently 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.), cert. denied, 138 S. Ct. 513 (2017); Lambrix v. State, 227 So. 3d 112, 113 (Fla.), cert.

denied, 138 S. Ct. 312 (2017); Hannon v. State, 228 So. 3d 505, 513 (Fla.), cert. denied, 138 S. Ct.

441 (2017); Branch v. State, 234 So. 3d 548, 549 (Fla.), cert. denied, 138 S. Ct. 1164 (2018); Cole

v. State, 234 So. 3d 644, 645 (Fla.), cert. denied, 138 S. Ct. 2657 (2018); Jones v. State, 234 So.

3d 545 (Fla.), cert. denied, 138 S. Ct. 2686 (2018); Jackson v. State, 237 So. 3d 905 (Fla.), cert.

denied, 139 8. Ct. 193 (2018).

10

The Florida Supreme Court’s holding in Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert.

denied, 137 S. Ct. 2161 (2017), followed this Court’s ruling in Hurst v. Florida, 136 8S. Ct. 616

(2016), in requiring that aggravating circumstances be found by a jury beyond a reasonable doubt

before a death sentence may be imposed. However, this Court “has not ruled on whether unanimity

is required” in capital cases. Hurst, 202 So. 3d at 59; see also Ring v. Arizona, 536 U.S. 584, 612

(2002) (Scalia, J., concurring) (“[T]oday’s judgment has nothing to do with jury sentencing. What

today’s decision says is that the jury must find the existence of the fact that an aggravating factor

existed.”) (emphasis in original); Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana,

406 U.S. 356 (1972). As this Court noted, “holding that because [a State] has made a certain fact

essential to the death penalty, that fact must be found by a jury, is not the same as this Court’s

making a certain fact essential to the death penalty. The former was a procedural holding; the latter

would be substantive.” Schriro v. Summerlin, 542 U.S. 348, 354 (2004). Thus, Hurst v. State’s

requirement that the jury make specific factual findings before the imposition of the death penalty

is procedural. The Florida court then expanded this Court’s ruling, requiring in addition that

“before the trial judge may consider imposing a sentence of death, the jury in a capital case must

unanimously and expressly find all the aggravating factors that 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 at 57.

The Florida Supreme Court determined that all three Witt v. State, 387 So. 2d 922 (1980)

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

11

based on a statute that was actually rendered unconstitutional by Ring should not be penalized for

the United States Supreme Court’s delay in explicitly making this determination.” Id. 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 v. State, 210 So. 3d 1, 22 (Fla. 2016), cert.

denied, 138 S. Ct. 41 (2017), the Florida Supreme Court held that Hurst is not retroactive to any

case in which the death sentence was final pre-Ring. 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)). 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. Asay, 210 So. 2d at 20-22. As related to the 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 the constitutionality of Florida’s death penalty scheme based on the decisions of the United

‘ Of course, the gap between this Court’s rulings in Ring and Hurst may be fairly explained by the

fact that the Florida Supreme Court properly recognized, in the State’s view, that a prior violent

felony or contemporaneous felony conviction took the case out of the purview of Ring. See

Ellerbee v. State, 87 So. 3d 730, 747 (Fla. 2012) (““This Court has consistently held that a defendant

is not entitled to relief under Ring if he is convicted of murder committed during the commission

of a felony, or otherwise where the jury of necessity has unanimously made the findings of fact

that support an aggravator.”) (string citations omitted). Hurst v. Florida presented this Court with

a rare “pure” Ring case, that is a case where there was no aggravator supported either by a

contemporaneous felony conviction or prior violent felony. Accordingly, this Court’s opinion in

Hurst v. Florida should have been read by the Florida Supreme Court following remand as a

straight forward application of Ring under the facts presented. However, a majority of the Florida

Supreme Court interpreted this Court’s decision in Hurst v. Florida to include weighing and

selection of the defendant’s sentence, thereby causing an unnecessarily dramatic and costly impact

to the State’s capital sentencing system.

12

States Supreme Court. This factor weighs heavily against retroactive application of Hurst v.

Florida to this pre-Ring case.” Id. at 20. As related 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. Jd. at 21-22. Thus, the Florida Supreme Court held

that Hurst was not retroactive to Asay since his 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-Ring cases and declined to apply Hurst retroactively to all pre-Ring cases. See Hitchcock v.

State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017); Lambrix y. State, 227 So.

3d 112, 113 (Fla. 2017), cert. denied, 138 8. Ct. 312 (2017); Hannon v. State, 228 So. 3d 505, 513

(Fla. 2017), cert. denied, 138 S. Ct. 441 (2017); Branch v. State, 234 So. 3d 548, 549 (Fla. 2018),

cert. denied, 138 8. Ct. 1164 (2018). This distinction between cases which were final pre-Ring

versus cases which were final post-Ring is neither arbitrary nor capricious.>

The Florida Supreme Court’s determination of the retroactive application of Hurst under

the state law Witt standard is based on adequate and independent state grounds and is not violative

of federal law or this Court’s precedent. This Court has repeatedly recognized that where a state

court judgment rests on non-federal grounds, where the non-federal grounds are an adequate basis

for the ruling independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v. Muller,

> Federal courts have had little trouble determining that Hurst v. Florida, like Ring, is not

retroactive at all under Teague v. Lane, 489 U.S. 288 (1989). See Lambrix v. Sec’y, Fla. Dep’t of

Corr., 851 F.3d 1158, 1165 n.2 (11th Cir.), cert. denied, 138 8. Ct. 217 (2017); (“under federal

law Hurst, like Ring, is not retroactively applicable on collateral review”), Ybarra v. Filson, 869

F.3d 1016, 1032-33 (9th Cir. 2017) (denying permission to file a successive habeas petition raising

a Hurst v. Florida claim concluding that Hurst v. Florida did not apply retroactively).

13

296 U.S. 207, 210 (1935); see also Michigan v. Long, 463 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.”); Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that this Court has

no jurisdiction to review a state court decision on certiorari review unless a federal question was

raised and decided in the state court below). If a state court’s decision is based on separate state

law, this Court.“of course, will not undertake to review the decision.” Florida v. Powell, 559 U.S.

50, 57 (2010); Long, 463 U.S. at 1041. Because the Florida Supreme Court’s retroactive

application of Hurst in Petitioner’s case, whose sentence was final pre-Ring, is based on adequate

and independent state grounds, certiorari review should be denied.

C. There is no crime of “capital first-degree murder” in the State of Florida.

Petitioner’s argument that his sentence somehow violates the Eighth Amendment and Due

Process is plainly meritless. Based on recent changes to the law following the Florida Supreme

Court’s decision in Hurst, Petitioner claims that the jury did not find all the elements required to

convict him of “capital first-degree murder”. However, in Florida, there is no capital first-degree

murder; rather, first-degree murder is a capital felony, a crime in which a sentence of death is a

possible, but not certain, result. Foster, 258 So. 3d at 1252. In Florida, the elements of first-degree

murder are unanimously found by a jury. Therefore, the Florida Supreme Court correctly noted

that Foster’s jury did unanimously find all of the elements to convict him of the capital felony of

first-degree murder. Foster, 258 So. 3d at 1252.

To the extent Petitioner 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) (“[T]oday’s judgment has

14

nothing to do with jury sentencing. What today’s decision says is that the jury must find the

existence of the fact that an aggravating factor existed.”) (emphasis in original); Harris v.

Alabama, 513 U.S. 504, 515 (1995) (holding that the Constitution does not prohibit the trial judge

from “impos[ing] a capital sentence”). No case from this Court has 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.

Petitioner’s argument is no more than an attempt to circumvent the Florida Supreme

Court’s retroactivity cutoff at the date Ring was decided. The arguments advanced by Petitioner

are underpinned by the idea that chapter 2017-1 must be applied to all cases retroactively.

However, as discussed above, Florida’s retroactivity decision, which is based on state law, is

beyond the scope of this court’s jurisdiction. Moreover, Petitioner’s death sentence is neither unfair

nor unreliable because the judge imposed the sentence in accordance with the law existing at the

time of his trial. Petitioner cannot establish that his sentencing procedure was less accurate than

future sentencing procedures employing the new standards announced in Hurst v. State, 202 So.

3d 40 (Fla. 2016). Certainly, other than speculation, Petitioner has neither identified nor

established any particular lack of reliability in the proceedings used to impose his death sentence.

See Hughes v. State, 901 So. 2d 837, 844 (Fla. 2005) (holding that Apprendi v. New Jersey, 530

U.S. 466 (2000) is not retroactive and noting that “neither the accuracy of convictions nor of

sentences imposed and final before Apprendi issued is seriously impugned”); Rhoades v. State,

233 P.3d 61, 70-71 (2010) (holding that Ring is not retroactive after conducting its own

independent Teague analysis and observing, as this Court did in Summerlin, that there is debate as

to whether juries or judges are the better fact-finders and that it could not say “confidently” that

15

judicial factfinding “seriously diminishes accuracy”). Just like Ring did not enhance the fairness

or efficiency of death penalty procedures, neither does Hurst. As this Court has explained, “for

every argument why juries are more accurate factfinders, there is another why they are less

accurate.” Schriro v. Summerlin, 542 U.S. 348, 356 (2004). Thus, because the accuracy of

Petitioner’s death sentence is not at issue, fairness does not demand Hurst relief.

Certiorari review would be inappropriate in this case because, assuming for a moment any

Hurst error can be discerned from this record, such error would be harmless. Hurst errors are

subject to harmless error analysis. See Hurst v. Florida, 136 S. Ct. at 624; see also Chapman v.

California, 386 U.S. 18, 23-24 (1967). Here, the aggravating circumstances found by the trial

court® and affirmed by the Florida Supreme Court on appeal were established by overwhelming

evidence. Finally, based on adequate and independent state grounds, the Florida Supreme Court

does not recognize the crime of “capital first-degree murder” in the State of Florida; therefore, this

Court should deny certiorari to review this state law claim.

6 1) For Schwebes' murder the court found Foster committed the murder in a cold, calculated, and

premeditated manner without any pretense of moral or legal justification, and the murder was

committed to avoid arrest. Foster, 778 So. 2d at 912 (Fla. 2000).

16

CONCLUSION

Based on the foregoing, Respondent respectfully requests that this Court deny the petition

for writ of certiorari.

Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

=

[inter A

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

*Counsel of Record

LISA MARTIN ,

Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Carolyn.Snurkowski@myfloridalegal.com

Lisa.Martin@myfloridalegal.com

E-Service: capapp@myfloridalegal.com

Counsel for Respondent

17