Opposition Brief — Manuel Antonio Rodriguez, Petitioner v. Florida

NO. 18-9270

IN THE SUPREME COURT OF THE UNITED STATES

MANUEL RODRIGUEZ,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Brian H. Zack

Assistant Attorney General

Florida Bar No. 1000416

Office of the Attorney General

1 SE Third Avenue, Suite 900

Miami, Florida 33131

Telephone: (805)-377-5441

Facsimile: (305)-377-5655

capapp@myfloridalegal.com

Carolyn.Snurkowski@myfloridalegal.com

Brian.Zack@myfloridalegal.com

COUNSEL FOR RESPONDENT

Capital Case

Question Presented

Petitioner, Manuel Rodriguez, was found guilty of three counts of firstdegree murder and armed robbery. The jury unanimously

recommended a sentence of death for each of the murders. Petitioner's

unanimous sentence of death was finalized on October 2, 2000.

Following this Court’s decision in Hurst v. Florida, the Florida Supreme

Court decided Hurst v. State. Hurst v. Florida, 136 S. Ct. 616 (2016);

Hurst v. State, 202 So. 3d 40 (Fla. 2016). There the Florida Supreme

Court explained that for a defendant to be sentenced to death, the jury

must find all the aggravating circumstances outweighed the mitigating

circumstances and unanimously vote that the defendant receive the

death penalty. Following Hurst v. State, the Supreme Court decided

Asay v. State and Mosley v. State, which created a bright line

retroactivity test where defendants whose sentences of death were

finalized prior to this Court’s 2002 Ring v. Arizona decision would not

receive retroactive relief. Asay v. State, 210 So. 3d 1 (Fla. 2016), cert.

denied, 138 S. Ct. 41 (2017); Mosley v. State, 209 So. 3d 1248 (Fla. 2016);

Ring v. Arizona, 536 U.S. 584 (2002). Petitioner’s case falls in this

category of pre-Aing defendants. Thereafter, the Florida Supreme Court

enacted Florida Statue section 921.141, which requires that the only

element that needs to be proven beyond a reasonable doubt is that the

jury find at least one aggravating circumstance. Following the

enactment of section 921.141, in Foster v. State, the Florida Supreme

Court indicated that first-degree murder is a capital felony that is

sentenced by death only following a conviction of guilt for first-degree

murder, and after the court conducts a sentencing phase procedure.

Petitioner sought postconviction relief through the Florida Supreme

Court but was denied relief. Petitioner’s petition seeking certiorari

review gives rise to the following question presented:

Whether this Court should deny certiorari to review the Florida

Supreme Court’s ruling on the elements of sentencing required in Foster

v. State, through the retroactive cases of Hurst v. Florida and Hurst v.

State, where the issue of sentencing elements and retroactivity was

decided as an issue of state law in a decision that does not conflict with

any of this Court’s precedent and which does not present a significant or

unsettled issue of constitutional law worth certiorari review.

Table of Contents

Question Presented .............cccccssssseseeeeececccececcecccccececeuscsaceceeceeeseuausaeseeesceceeceseseeneageaneneoes i

Table of Contents .0..........cccccccccceceeeseeeeeeeeeeeeeneenecceneeeceeeeceesesauaneaaceaacacenaceaaauanseeeeeeseessesees rT

Table of Citations .............:c:cccccccceceeecceecceceeeneeneaneceeceaenaaaasaaecsncenaessseececesesseaaasaessgaeesseses ili

Opinion Below ...........ccccccsssssscceccnsseecccscuscssseeeccccscuueaseseseceeeseeeeaesseceneueesescecacaseceecenseusanens 1

J UTISCACCION «0.0... ccc ecee cee ccecceceec cece eeseeeeeceeceeceeceeceeececeneceecauaneceucesceeaeeasssseeeeeceseseasseeeesagsenseess 1

Statement of the Case and Facts.........ccccccccccccccssssssssssssssneessecesesesccececceecesseeeseesensssseeees 2

Reasons for Denying the WYiit..............:::ccccccccccssssesececcecseceeesaeeccecensceeseeeeacueeaeeenseucneneeees 8

Certiorari review should be denied because (1) Petitioner’s claims are procedurally

barred and do not conflict with any decisions of this Court or involve an important,

unsettled question of federal law in addition to being matters of state law; (2) the

Florida Supreme Court’s ruling on the retroactivity of Hurst v. Florida and Hurst

v. State, which relies on state law to provide that the Hurstcases are not retroactive

to defendants whose death sentences were final when this Court decided Fing v.

Arizona, does not violate the Eighth or Fourteenth Amendments; and (3) the only

mandatory element that needs to be found by a unanimous jury is that at least one

APLTAVALINE CITCUMSTANCE CXISE............c.ccececceccccesssseecccccceenscuaescececesacecccsencessccccsseeeeeacs 8

Petitioner’s Claims are Procedurally Barred ..................ccccccscssecescsesssccenesssenscess 8

Florida’s Partial Retroactivity Analysis ..................cccsesssecccceseeseccecesseececeeeeeenes 11

Elements of Florida’s Murder Statute and Sentencing Requirements ........... 16

Conclusion .00........cccccceeeeeeeeneeseneeseeeeneancaeneececeeeecessusesanceneanseseessesseaeesaeesaeessesssseeeesssaeseeees 23

Certificate of Service ............::cscccsesesesseeccececeseesessscessneeneneeeeeeeeesseaessdetsseeaeescnsneaeeeeeneasens 24

i

Table of Citations

Statutes

§ 782.04, Fla. Stat. (2018) o..c.ccccccccccccccscescceccsscsscesssecessesssessssseseusessseesseseesssusessseeseseuses 7

§ 921.141(1), Fla. Stat. (2017) .......ccccccccccesecsesessessesscsccscsscsecsesessuseuseesesseuseuseusecaesesseneens 7

§ 921.141(2)(a), Fla. Stat. (2017) ....ccccccccccscssesesscscsssscssceessssscssesesecsecesesesseessesscasessesees 21

§ 921.141(2)(b)1., Fla. Stat. (QOV7) ooo. cccccccescscsseccssssesssscecsecsesssueseersessevsusecsees 19, 21

§ 921.141(2)(b)2., Fla. Stat. (2017) oo. cece ccscecscccescsscsecsesseecseesessesssesseseeseaeees 21

§ 921.141(2)(b)2.a.-c., Fla. Stat. (2017) .......ccccccsscsscsecsesscesescsecscseusessscsscessecsessecensanes 20

§ 921.141, Fla. Stat. (2017) ...c.ccccccccccsssscssescssssessesesessessescsesseseseescapenesccsessesecaesseaserensceens 9

QB U.S.C. § 1257 a) ce ceeeeeceesescesceceseseecoseeevecesceseesecsecsecsecsecsacsecsacsecseaueaceeseeaeseassaeeaeseees 1

Rules

Fla. R. Crim. P. 3.851 (d)(1)(B) oo... eceeescccesesesseseessescsesessescscsesesscsesesacseseaeseeesseneeasaeseers 3

Sup. Ct. R. 10... ccccccscsscsesssesesssesscceseesessescscsesesesesesseesesssesscseasseseecsesesssseesseeneaseeesacenses 2,8

Sup. Ct. R. 18.1... ccccccccccseanesssessseeccecceeceeeececeaseeceaaeeansaseceaeeeaaeaueesseceessecesaseaneeneenes 1

Sup. Ct. R. 14(g)G) occ cc cccscssccssccsssessccssessecseccsecssecsussnecsssessesssseassussseaseusceesscnssersssesseaaes 2

Federal Cases

Alleyne v. United States, 570 U.S. 99 (20138) ......eececcececeessesscceseessesesseseseeesenecseeee 17, 19

Almendarez-Torres v. United States, 523 U.S. 224 (1998)......c:.cccccsccssssccesseseceeeeeeeaeee 17

Apprendi v. New Jersey, 5380 U.S. 466 (2000) .........scccceccssesseseeseceecsseesesesserseseeneaes 12,17

Cardinale v. Louisiana, 394 U.S. 437 (1969)..........ccccccccsscsccccssecsccccccecsessststccceeesseesececs 10

Crawford v. Washington, 541 U.S. 36 (2004) ....ccsccsssessesssesesssessessevssestestesseseestestesteseees 11

Dantorth v. Minnesota, 552 U.S. 264 (2008) .......ccscscsscccsesssssesscsesssseesecsesesenssceesessenees 10

Dorsey v. United States, 567 U.S. 260 (2012) .....0.ccccceccccesscsecescsseeeesesessssecseccesetuecees 12

Florida v. Powell, 559 U.S. 50 (2010) ........ccccccscssesssssssessesesscsscseesceecsecsscesesecaeeseseeseesess 11

Fox Film Corp. v. Muller, 296 U.S. 207 (1985) .......ccccccecccsssssssssessecsssesssesesseeesseesensens 10

Griffith v. Kentucky, 479 U.S. 814 (1987) ....ccccccccccscccsscsesscessssesseessseeseseeessesesaeesseeens 12

Hurst v. Florida, 186 S. Ct. 616 (2016)..........ccccceccsssecsesecsssesessessescseessessseeaseaeees 4, 14, 16

Jenkins v. Hutton, 137 S. Ct. 1769 (2017) .....cccccsssccsssessesssseseeseseseseeeeeesseeneees 17, 21, 22

Johnson v. United States, 135 S. Ct. 2551 (2015) ......ceee ce eeceeceeceessseesseesesensseeee 13

Kansas v. Carr, 136 S. Ct. 633 (2016) oo... eeeeeeccesscceeesccceesseccecserevesseneeeeeesees 16, 17, 19

Michigan v. Long, 463 U.S. 1032 (1988) ....c.cccccscscsscesecesessesesecsecsesececseeeeeceeseeeceees 10, 11

Ring v. Arizona, 536 U.S. 584 (2002) ......ccccccccscssssssssscsssscsssesscssesssssesssesssassenseaseeees 6, 12

Rockford Life Insurance Co. v. Illinois Dept. of Revenue, 482 U.S. 182 (1987)........... 8

Rodriguez v. Buss, No. 10-22692-CIV, 2011 WL 1827899, *1 (S.D. Fla. May 12,

DOLL) oo eeeeeecsesceseseseseseseesseeeesesescarseseseceavevacacacacseeseeseseeseueasaeacatacaeeseasacseeaeeeesseeseneneeeneueetes 4

Rodriguez v. Sec’y, Florida Dept. of Corr., 756 F.3d 1277 (11th Cir. 2014), cert.

denied, 185 S. Ct. 1707 (2015)... cesecececssceceeseeetsesessesesecseeveacsacsesucseeeeeeseanseearereeeseeeeecees 4

Schriro v. Summerlin, 542 U.S. 348 (2004)... cecccccccssscccesecnccesenseescseccceecssecneeevens 12, 14

Street v. New York, 394 U.S. 576 (1969) ......c.sccessessseeeeeeeeees sessesesessessseseseeesueneseee 11

Teague v. Lane, 489 U.S. 288 (1989) .....cccccccccccsssesscsesssesssescusessessenssensceessenssesens 11, 12

United States v. Abney, 812 F.3d 1079 (D.C. Cir. 2016) oo... ceeceesseeessseeseeeeeees 12

United States v. O’Brien, 560 U.S. 218 (2010)... ..cccsccscsssscsscccsscessssscsesseseseseceoseees 18

United States v. Purkey, 428 F.3d 738 (8th Cir. 2005) o........ ccc esecee eee ceneteeeseees 18

United States v. Sampson, 486 F.3d 13 (1st Cir, 2007)... ccececceccseessceeeeceeseeeeeees 18

Waldrop v. Comm’r, Alabama Dept. of Corr., 711 F. App’x 900 (11th Cir. 2017)...... 18

Welch v. United States, 186 S. Ct. 1257 (2016) oe ceccsccescescsessssesesseeeeseesesseseesseseaees 13

Whorton v. Bockting, 549 U.S. 406 (2007) ......ccccccsccssssssessesscssesessesssseseessessesseseneeeensees 11

State Cases

Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017) 0.00.0... 6, 15

Ault v. State, 53 So. 83d. 175 (Fla. 2010)... eseseseesessseeseesseseseseeeenseseeeseeceseesseanaeatseaees 19

Branch v. State, 234 So. 3d 548 (Fla. 2018), cert. denied, 138 S. Ct. 1164 (2018) ...11,

16

Coday v. State, 946 So. 2d 988 (Fla. 2006) ........cccccccesscssssesccssscessssscescsscesseeesssaveesssenees 20

Cole v. State, 234 So. 3d 644 (Fla. 2018), cert. denied, 138 S. Ct. 2657 (2018)......... 16

Davis v. State, 207 So. 3d 142 (Fla. 2016)... ceceeeecccessesecssecsnceesecceecseceesesceseeesecenss 22

lv

Foster v. State, 258 So. 3d 1248 (Fla. 2018) .........cccccscsscssecsessessesseseesseseeaees 6, 7, 20, 21

Hannon v. State, 228 So. 3d 505 (Fla. 2017), cert. denied, 138 S. Ct. 441 (2017) ....11,

16

Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 512 (2017) ...4,

6, 15, 16

Hunter v. State, 29 So. 3d 256 (Fla. 2008) ........cssssssssssesseseeneerecssseesssessenesesesseenesenseeseees 8

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

Jackson v. State, 237 So. 3d 905 (Fla. 2018), cert. denied, 139 S. Ct. 193 (2018) .....16

Jones v. State, 234 So. 3d 545 (Fla. 2018), cert. denied, 138 S. Ct. 2686 (2018) ....... 16

Lambrix v. State, 227 So. 3d 112 (Fla. 2017), cert. denied, 138 S. Ct. 312 (2017) ...11,

16

McGirth v. State, 209 So. 3d 1146 (Fla. 2017) oo... ceceecececeseseseseeseeeseeeseeeeseeeseesesesesesess 18

Mosley v. State, 209 So. 3d 1248 (Fla. 2016)..........ecccccessesccesseeceeeeseeseecsesceeseesseesnees 6, 15

Reynolds v. State, 251 So. 3d 811 (Fla. 2018) ........cccccescssesssesescsesesesssecsseeseseseseseeecases 22

Rodriguez v. State, 237 So. 3d 918 (Fla. 2018), cert. denied, 139 S. Ct. 209 (2018)5, 9

Rodriguez v. State, 260 So. 8d 146 (Fla. 2018) .0.......cccccecccscecseceseeessesesessseeeesesseees 1,5

Rodriguez v. State, 39 So. 3d 275 (Fla. 2010) o.oo... cecccccssecscseccsesesscccsecececeecseceeaaeeseee 4

Rodriguez v. State, 753 So. 2d 29 (Fla. 2000), cert. denied, 531 U.S. 859 (2000) 2, 3, 8

State v. Gales, 658 N.W.2d 604 (Neb. 2008) ........:ccccscessssssesesesesssssessseeeesseeseeeseeeseseeeees 18

State v. Mason, 153 Ohio St. 3d 476 (Ohio 2018) uo... cececccccccseseecsesesseesesseeessseeeees 17

Witt v. State, 387 So. 2d 922 (Fla. 1980) .......c.ccesecsscsesesecseseesesessssseseeesesesesesesesseseseees 10

Zakrzweski v. State, 254 So. 3d 324 (2018), cert. denied, No. 18-8090, 2019 WL

2078132, at *1 (May 18, 2019) oo... ceccesesseseceeceeesesesesseenseseecseseseseseseneeetseetesseseeseens 17

Other Authorities

BLACK’S LAW DICTIONARY (10th ed. 2014) .....c..cccccccceescssessessessesseseeeeesseseeseseaeeseeseecssens 18

IN THE SUPREME COURT OF THE UNITED STATES

NO. 18-9270

MANUEL RODRIGUEZ,

Petitioner,

Vv.

STATE OF FLORIDA,

Hespondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

Opinion Below

The decision of the Florida Supreme Court appears as Rodriguez v. State, 260

So. 3d 146 (Fla. 2018).

Jurisdiction

The Florida Supreme Court issued its opinion affirming the summary denial

of Petitioner’s successive postconviction motion for relief on December 13, 2018.

Rodriguez v. State, 260 So. 3d 146 (Fla. 2018). Petitioner’s “Petition for Writ of

Certiorari” was docketed in this Court on May 13, 2019. The Petition is timely filed

before this Court. Sup. Ct. R. 13.1.

Pursuant to 28 U.S.C. § 1257(a), this Court has jurisdiction to review the

decision of the Florida Supreme Court. However, Respondent submits that this Court

should not exercise its jurisdiction as Petitioner fails to raise a novel question of

federal law. The Florida Supreme Court’s decision was based on independent and

adequate state grounds and Petitioner has not raised a question of federal law. Sup.

Ct. R. 14(g)G). Additionally, because the Florida Supreme Court’s decision does not

conflict with the decision of another United States court of appeals, another state

court of last resort, or with relevant decisions of this Court, this Petition should be

denied. Sup. Ct. R. 10.

Statement of the Case and Facts

Petitioner, Manuel Rodriguez, was convicted of three counts of first-degree

murder and one count of armed burglary. Rodriguez v. State, 753 So. 2d 29, 33 (Fla.

2000), cert. denied, 531 U.S. 859 (2000). The facts established that in December 1984,

Petitioner and co-defendant Luis Rodriguez committed the robbery of Bea Joseph,

Sam Joseph, and Genevieve Abraham at the apartment of the Josephs. Jd. at 33-34.

During the robbery, Petitioner shot and killer Sam and Bea Joseph with his own gun

and ordered Luis Rodriguez to kill Genevieve Abraham with a gun found in the

Josesphs’ bedroom. /d. at 34. In 1992, Rafael Lopez, Luis Rodriguez’s brother-in-law

provided the police with information about the murders and led to Petitioner's

questioning and arrest. Jd. at 34. At his jury trial, the jury found Petitioner guilty

on all counts. Jd. at 35.

During the penalty phase, the State presented evidence that Petitioner had

seventy-one prior violent felony convictions (the contemporaneous murders in the

case at bar, twenty-three convictions of armed robbery, seventeen convictions of

armed kidnapping, eight convictions of aggravated assault with a firearm, and the

remaining number of convictions for carrying a concealed weapon and possession of

a firearm by a convicted felon). Jd. The jury unanimously recommended the death

penalty for Petitioner for each of the murders. /d.

The trial court found the following aggravating factors applied to Petitioner:

(1) the murder was committed while Petitioner was under a sentence of

imprisonment; (2) Petitioner had previously been convicted of violent felonies; (3) the

murder was committed during an armed robbery: (4) the murder was committed to

avoid arrest; (5) the murder was committed for pecuniary gain; and (6) the murder

was cold, calculated, and premeditated. Jd. The trial court did not find any statutory

mitigation. Jd. However, the trial court found the following nonstatutory mitigating

circumstance applied: Petitioner was mentally ill, had a history of drug abuse and

drug psychosis, and he was a good brother, loving father, and caring son. /d.

The trial court weighed the aggravating factors against the mitigating factors

and sentenced Petitioner to death. Jd On appeal, the Florida Supreme Court

affirmed Petitioner’s sentence of death. /d. at 48. Petitioner filed a petition for writ

of certiorari to this Court, which was denied in 2000. Jd., cert. dented, 531 U.S. 859

(2000). Under Florida Rule of Criminal Procedure 3.851(d)(1)(B), Petitioner’s

sentence of death became final on October 2, 2000, following this Court’s denial of the

petition for writ of certiorari. Rodriguez, 753 So. 2d at 48; Fla. R. Crim. P.

3.851(d)(1)(B).

Petitioner continued seeking relief from his conviction and sentence through

postconviction litigation. Rodriguez v. State, 39 So. 3d 275 (Fla. 2010) (affirming

denial of first motion for postconviction relief); Rodriguez v. Buss, No. 10-22692-ClV,

2011 WL 1827899, *1 (S.D. Fla. May 12, 2011) (denying petition for writ of habeas

corpus relating to ineffective assistance of counsel, failure to disclose evidence, and

prosecutorial misconduct); Rodriguez v. Sec’y, Florida Dept. of Corr., 756 F.3d 1277

(11th Cir. 2014) (affirming denial of petition for writ of habeas corpus), cert. denied,

135 S. Ct. 1707 (2015).

On January 10, 2017, Petitioner filed another successive motion for

postconviction relief raising claims pursuant to Hurst v. Florida, 186 S. Ct. 616

(2016), as interpreted in Hurst v. State, 202 So. 3d 40 (Fla. 2016). The lower court

allowed Petitioner to submit supplemental briefing on April 6, 2017. There,

Petitioner advocated for relief under Hurst v. State even where the jury unanimously

recommended death. On May 5, 2017, the postconviction court denied Petitioner's

successive motion for postconviction relief. On June 29, 2017, Petitioner appealed

the postconviction court’s decision to the Florida Supreme Court, and on July 12,

2017, the Florida Supreme Court stayed Petitioner’s appeal pending the outcome of

Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 512 (2017).

After the Florida Supreme Court decided Hitchcock, it issued an order to show

cause on September 25, 2017, directing Petitioner to show why Aitchcock should not

be dispositive to his case. Following briefing, the Florida Supreme Court affirmed

the lower court’s denial of relief, finding that Hurst v. State does not apply

retroactively to his death sentence that became final in 2000. Rodriguez v. State, 237

So. 3d 918 (Fla. 2018), cert. denied, 139 S. Ct. 209 (2018).

On March 13, 2018, Petitioner filed a successive postconviction motion in the

circuit court raising due process violations based on Hurst v. State and the revised

enactment of Chapter 2017-1. He claimed these changes in the law provided him a

substantive right, that existed since the enactment of Florida Statutes section

921.141, to the unanimous jury fact finding before the death sentence is imposed. On

April 30, 2018, the circuit court denied his motion. On May 25, 2018, the circuit court

denied rehearing.

On August 27, 2018, Petitioner filed its response to the Florida Supreme

Court’s Show Cause Order showing why the trial court’s order should not be affirmed

in light of Hitchcock v. State. Rodriguez, 260 So. 3d at 147. The Florida Supreme

Court again denied Hurst relief. Jd. at 146; see also Rodriguez, 237 So. 3d at 918

(denying Petitioner’s claim of Hurst relief). The Florida Supreme Court held that

Petitioner’s claim was procedurally barred, lacked merit, and that Chapter 2017-1

was not applicable to Petitioner because his three unanimous sentences of death were

finalized in 2000. Jd. Petitioner filed his Petition in this Court from the Florida

Supreme Court’s decision.

The Florida Supreme Court’s holding in Hurst v. State, followed this Court’s

ruling in Hurst v. Florida, in requiring that aggravating circumstances be found by a

jury beyond a reasonable doubt before a death sentence may be imposed. 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, 202 So. 3d at 57.1

Following Hurst v. State, the Florida Supreme Court decided Mosley v. State,

which held that defendants whose sentence(s) of death were finalized after Ring v.

Arizona, are entitled to Hurst v. State relief. Mosley v. State, 209 So. 3d 1248, 1283

(Fla. 2016) ; Ring v. Arizona, 536 U.S. 584 (2002) . On the same day, the Florida

Supreme Court decided Asay v. State,2 which held that defendants whose sentences

of death were finalized prior to Ring v. Arizona were not entitled to Hurst v. State

relief. Asay v. State, 210 So. 3d 1, 17-22 (Fla. 2016), cert. denied, 138 S.Ct. 41 (2017).

In Hitchcock, the Florida Supreme Court reaffirmed its previous holding in

Asay, in which it held that Hurst v. Florida, as interpreted by Hurst v. State, is not

retroactive to defendants whose death sentences were final when this Court decided

Ring. Hitchcock, 226 So. 3d at 217.

In Foster v. State, 258 So. 8d 1248, 1251 (Fla. 2018), the Florida Supreme

Court recognized that there is no crime titled “capital first-degree murder.” Instead,

Florida prohibits first-degree murder, codified under Florida Statute section 782.04,

1 The dissent observed that “[nleither the Sixth Amendment nor Hurst v. Florida

requires a jury to determine the sufficiency of the aggravation, the weight of the

aggravation relative to any mitigating circumstances, or whether a death sentence

should be imposed.” Hurst, 202 So. 3d at 82 (Canady, J., dissenting).

2 The Florida Supreme Court is currently reconsidering its retroactivity

determination in Asay in Owen v. State, No. SC18-810,__ So. 3d ___"_ (Fla. ).

6

which is by definition a capital felony punishable by death. Foster v. State, 258 So.

3d. at 1251-52; § 782.04, Fla. Stat. (2018). A jury must adjudicate a defendant guilty

of first-murder before a court must conduct a separate proceeding to determine

whether the defendant shall be sentenced to life imprisonment or the death penalty

pursuant to section 921.141(1). Foster, 258 So. 3d at 1252; § 921.141(1), Fla. Stat.

(2017). The court held that these statutes “that the Hurst v. State penalty phase

findings are not elements of the capital felony of first-degree murder” but findings

that a jury must make before a court can impose a sentence of death. Foster. 258 So.

3d at 1252.

This is the State’s brief in opposition.

Reasons for Denying the Writ

Certiorari review should be denied because (1) Petitioner’s claims are

procedurally barred and do not conflict with any decisions of this Court

or involve an important, unsettled question of federal law in addition to

being matters of state law; (2) the Florida Supreme Court’s ruling on the

retroactivity of Hurst v. Florida and Hurst v. State, which relies on state

law to provide that the Hurst cases are not retroactive to defendants

whose death sentences were final when this Court decided Ring v.

Arizona, does not violate the Eighth or Fourteenth Amendments; and

(3) the only mandatory element that needs to be found by a unanimous

jury is that at least one aggravating circumstance exist.

Petitioner Rodriguez's conviction and resulting death sentence for the firstdegree murders of Bea Joseph, Sam Joseph, and Genevieve Abraham became final in

2000. Rodriguez v. State, 753 So. 2d 29, 33 (Fla. 2000), cert. denied, 531 U.S. 859

(2000). 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.

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. R. 10; Rockford

Life Insurance Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 184, n.3 (1987). As

Petitioner has offered no compelling reason for review, certiorari should be denied.

Petitioner's Claims are 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)Gv).

The Florida Supreme Court concluded that the issue of the retroactivity of its

decision in Hurst v. State was procedurally barred. All of Petitioner’s claims were

procedurally barred because he has raised the same retroactivity issue in previous

postconviction motions, which the Florida Supreme Court has denied.

He argues Florida Statute section 921.141 provide substantive rights that

always existed since its enactment in 1972. Section 921.141 was revised in March

2017. § 921.141, Fla. Stat. (2017). Petitioner filed a Rule 3.851 motion for

postconviction relief claiming Hurst v. State relief, which was denied by the Florida

Supreme Court and denied certiorari by this court. Rodriguez v. State, 237 So. 3d

918 (Fla. 2018), cert. denied, 139 S. Ct. 209 (2018). As section 921.141 codified Hurst

v. State, many other death penalty defendants took advantage of the opportunity to

ask the lower courts for leave to amend their successive motions based on the new

law. Accordingly, Petitioner could have made this argument in his first Hurst v. State

based petition for a writ of certiorari and fails to demonstrate how the grounds for

relief were not known and could not have been known at the time of his prior petition

for a writ of certiorari.

Petitioner seeks review of the Florida Supreme Court’s decision, which held

that his claim on appeal was procedurally barred because it concerned the same

question in his prior postconviction claim as to whether Hurst v. State could be

retroactively applied.

This Court should not grant review of an issue that is procedurally barred by

the law-of-the-case doctrine. This Court has held that, in general, a state court’s

retroactivity determinations are a matter of state law, not federal constitutional law.

Danforth v. Minnesota, 552 U.S. 264 (2008). State courts may fashion their own

retroactivity tests, including partial retroactivity tests. A state supreme court is

welcome to employ a partial retroactivity approach without violating the federal

constitution under Danforth.

The state retroactivity doctrine employed by the Florida Supreme Court did

not violate federal retroactivity standards. The Florida Supreme Court’s expansion

of Hurst v. Florida in Hurst v. State is applicable only to defendants in Florida, and,

consequently, subject to retroactivity analysis under state law as set forth in Witt v.

State, 387 So. 2d 922 (Fla. 1980). 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); Michigan v.

Long, 463 U.S. 1032, 1038 (1983); see also 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

10

court below); Street v. New York, 394 U.S. 576, 581-82 (1969) (same). Ifa 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.

Accordingly, certiorari should be denied.?

This Court does not grant review of procedurally barred claims. Opposing

counsel fails to cite a case where this Court has granted review of an underlying issue

of retroactivity where that underlying issue was barred by the law-of-the-case

doctrine. Because Petitioner has already raised this claim previously, review should

be denied on the basis of the procedural bar alone.

Florida’s Partial Retroactivity Analysis

New rules of law, such as the rule announced in Hurst v. Florida, do not

normally apply to cases that are final. See Whorton v. Bockting, 549 U.S. 406, 416

(2007) (explaining the normal rule of non-retroactivity and holding the decision in

Crawford v. Washington, 541 U.S. 36 (2004), was not retroactive). Additionally, the

general rule is one of nonretroactivity for cases on collateral review, with narrow

exceptions. See Teague v. Lane, 489 U.S. 288, 307 (1989) (observing that there were

only two narrow exceptions to the general rule of nonretroactivity for cases on

collateral review). Furthermore, certain matters are not retroactive at all.

Hurst v. Florida was based on this Court’s holding in Ring v. Arizona, 536 U.S.

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

retroactivity decisions following the issuance of Hurst v. State. See, e.g., Lambrix v.

State, 227 So. 3d 112 (Fla. 2017), cert. denied, 138 S. Ct. 312 (2017); Hannon v. State,

228 So. 3d 505 (Fla. 2017), cert. denied, 138 S. Ct. 441 (2017); Branch v. State, 234

So. 3d 548 (Fla. 2018), cert. denied, 138 S. Ct. 1164 (2018).

11

584 (2002), which in turn was based on Apprendi v. New Jersey, 530 U.S. 466 (2000).

This Court has held that “Aing announced a new procedural rule that does not apply

retroactively to cases already final on direct review.” Schriro v. Summerlin, 542 U.S.

348, 352 (2004).

In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), this Court held “that a new

rule for the conduct of criminal prosecutions is to be applied retroactively to all cases,

state or federal, pending direct review or not yet final, with no exception for cases in

which the new rule constitutes a ‘clear break’ with the past.” Under this “pipeline”

concept, only those cases still pending direct review would receive the benefit from

alleged Hurst error. Retroactivity under Griffith depends on the date of the finality

of the direct appeal. The test for retroactivity in Teague also depends upon a specific

date. TYeague, 489 U.S. at 310. That is, if a case is final on direct review, the

defendant will not receive the benefit of the new rule unless one of the exceptions

announced in Teague applies. /d. Again, the date of finality is the critical date-based

test under Teague.

Moreover, this Court has given partial retroactive effect to a change in the

penal law. In Dorsey v. United States, 567 U.S. 260 (2012), this Court held the Fair

Sentencing Act to be partially retroactive in that it would apply to those offenders

who committed offenses prior to the effective date of the act but who were sentenced

after that date. See United States v. Abney, 812 F.3d 1079, 1097-98 (D.C. Cir. 2016)

(noting that prior to its decision in Dorsey, this Court had never held any change in

a criminal penalty to be partially retroactive).

12

The Welch v. United States, 136 S. Ct. 1257 (2016), decision supports the

determination that the new Hurst rule is procedural:

A rule is substantive rather than procedural if it alters the range of

conduct or the class of persons that the law punishes.” ScAriro, 542 U.S.

at 353, 124 S. Ct. 2519. “This includes decisions that narrow the scope

of a criminal statute by interpreting its terms, as well as constitutional

determinations that place particular conduct or persons covered by the

statute beyond the State’s power to punish.” /d., at 351-352, 124 S. Ct.

2519 (citation omitted); see Montgomery, supra, at ----, 186 S. Ct. at 728.

Procedural rules, by contrast, “regulate only the manner of determining

the defendant’s culpability.” Schriro, 542 U.S., at 358, 124 S. Ct. 2519.

Such rules alter “the range of permissible methods for determining

whether a defendant’s conduct is punishable.” Jbid. “They do not produce

a class of persons convicted of conduct the law does not make criminal,

but merely raise the possibility that someone convicted with use of the

invalidated procedure might have been acquitted otherwise.” /d., at 352,

1248S. Ct. 2519.

Welch, 136 S. Ct. at 1264-65. The Welch Court found that the rule in JoAnson v.

United States, 135 S. Ct. 2551 (2015), which “changed the substantive reach of the

Armed Career Criminal Act,” was a substantive, rather than procedural, change

because it altered the class of people affected by the law. Welch, 136 S. Ct. at 1265.

In explaining how the rule in Johnson was not procedural, the Welch Court stated,

“filt did not, for example, ‘allocate decision making authority’ between judge and jury,

rbhid., or regulate the evidence that the court could consider in making its decision.”

Welch, 136 S. Ct. at 1265 (citation omitted).

Here, the new rule announced in Hurst v. State allocated the decision-making

authority to determine capital sentencing from the judge to the jury, which is

precisely how the Welch Court defined a procedural change. Hurst, 202 So. 3d at 57-

59. Based on this Court’s precedent, there can be no doubt that the Hurst v. State

13

rule is a procedural rule. Aside from the separate issue of retroactivity under state

law, there is no conflict among courts applying Hurst v. State under the United States

Constitution.

Florida was not required to grant retroactive application of Hurst v. Florida to

all death sentenced murderers regardless of the date their convictions and sentences

became final. This Court’s ruling in Hurst v. Florida was a narrow one: “Florida’s

sentencing scheme, which required the judge alone to find the existence of an

aggravating circumstance, is ... unconstitutional.” MAurst v. Florida, 136 S. Ct. at

624 (emphasis added). However, Hurst, like Ring, was a procedural change, not a

substantive one. See Summerlin, 542 U.S. at 358 (“Ring announced a new procedural

rule that does not apply retroactively to cases already final on direct review.”). In

response, Florida adopted new procedural requirements that, among other things,

mandated that all factual findings necessary to impose death be found by a

unanimous jury. The Florida Supreme Court’s interpretation of Hurst v. Florida in

Hurst v. State greatly expanded that procedural rule. Nevertheless, it remained a

procedural rule and not a “definition” of Florida’s death penalty statute. The range

of conduct punished by death in Florida remains the same.

The Florida Supreme Court’s holding in Hurst v. State followed this Court’s

holding in Hurst v. Florida in requiring that aggravating circumstances be found by

a jury beyond a reasonable doubt. Hurst, 202 So. 3d at 49-50. The Florida court then

found that as a matter of state law, “before the trial judge may consider imposing a

sentence of death, the jury in a capital case must unanimously and expressly find all

14

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.” Jd. at 57. In Asay v. State, the Florida

Supreme Court ruled that Hurst v. State, is not retroactive to any case in which the

death sentence was final prior to the June 24, 2002, decision in Ring. Asay, 210 So.

3d at 22. The judgment in Asay became final October 7, 1991, and thus the defendant

was not eligible for any relief under Hurst v. State. Id. at 8; see also Mosley, 209 So.

3d at 1272-73 (holding that Hurst v. State applies retroactively to defendants whose

sentences were not yet final when this Court issued Ring).

The Florida Supreme Court reaffirmed its decision denying all retroactive

relief to cases that were final before Ringin Hitchcock. Hitchcock, 226 So. 3d at 217

(stating “our decision in Asay forecloses relief’). The court rejected Eighth

Amendment, equal protection, and due process challenges as applied to Asay. The

court explained that although Hitchcock referenced “various constitutional provisions

as a basis for arguments that Hurst v. State’ entitled him to a new sentencing

proceeding, “these are nothing more than arguments that Hurst v. State should be

applied retroactively.” Jd. at 217.

Petitioner’s case falls under the group of cases that were pre-fing. This Court

has denied certiorari review to various capital cases that the Florida Supreme Court

denied relief on the basis of its partial retroactivity analysis following the issue of

Hurst v. State. See, e.g., Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied,

15

138 S. Ct. 513 (2017); Lambrix v. State, 227 So. 3d 112 (Fla. 2017) (denying Eighth

Amendment, due process, and equal protection challenges to partial retroactivity

citing Asay and Hitchcock), cert. denied, 138 S. Ct. 312 (2017); Hannon v. State, 228

So. 3d 505, 513 (Fla. 2017) (finding that the court has “consistently held that Hurst

v. State is not retroactive prior to June 24, 2002), cert. denied, 138 S. Ct. 441 (2017);

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

Cole v. State, 234 So. 3d 644, 645 (Fla. 2018) (holding that Hurst v. State does not

apply retroactively to Cole because his sentence of death was finalized in 1998), cert.

denied, 138 S. Ct. 2657 (2018); Jones v. State, 234 So. 3d 545 (Fla. 2018), cert. denied,

138 S. Ct. 2686 (2018); Jackson v. State, 237 So. 3d 905 (Fla. 2018), cert. denied, 139

S. Ct. 193 (2018).

Elements of Florida’s Murder Statute and Sentencing Requirements

Hurst v. Florida was a Sixth Amendment case which applied Aing to Florida’s

sentencing scheme, reiterating that a jury, not a judge, must find the existence of an

aggravating factor to make a defendant eligible for the death penalty. Hurst v.

Florida, 136 S. Ct. at 624. Hurst v. Florida did not address the process of weighing

the aggravating and mitigating circumstances or suggest that the jury must conduct

the weighing process to satisfy the Sixth Amendment. In Kansas v. Carr, 136 S. Ct.

633 (2016), decided eight days after this Court issued Hurst v. Florida, this Court

emphasized:

Whether mitigation exists, however, is largely a judgment call (or

perhaps a value call); what one jury might consider mitigating another

might not. And of course, the ultimate question whether mitigating

circumstances outweigh aggravating circumstances is mostly a question

of mercy-the quality of which, as we know, is not strained. It would

16

mean nothing, we think, to tell the jury that defendants must deserve

mercy beyond a reasonable doubt, or must more-likely-than-not deserve

it....In the last analysis, jurors will accord mercy if they do not, which

is what our case law is designed to achieve.

Carr, 1368S. Ct. at 642. Therefore, Petitioner fails to present a constitutional question

which would warrant certiorari review.*

Petitioner’s contemporaneous conviction for armed robbery and his prior felony

convictions established beyond a reasonable doubt the existence of two aggravating

factors. See Apprendi, 530 U.S. at 490; Alleyne v. United States, 570 U.S. 99, 111 n.1

(2013) (recognizing the “narrow exception . . . for the fact of a prior conviction” set

forth in Almendarez-Torres v. United States, 523 U.S. 224 (1998)); see also Jenkins

v. Hutton, 137 S. Ct. 1769, 1772 (2017) (noting that the jury’s findings that defendant

engaged in a course of conduct designed to kill multiple people and that he committed

kidnapping in the course of aggravated murder rendered him eligible for the death

penalty). This Court’s ruling in Hurst v. Florida did not change the recidivism

exception articulated in Apprendi and Ring.

Lower courts have almost uniformly held that a judge may perform the

“weighing” of factors to arrive at an appropriate sentence without violating the Sixth

Amendment.' The findings required by the Florida Supreme Court following remand

4This Court has recently denied certiorari review in a similar case regarding a Foster

type claim. See Zakrzweski v. State, 254 So. 3d 324 (2018), cert. denied, No. 18-8090,

2019 WL 2078132, at *1 (May 13, 2019).

5 State v. Mason, 153 Ohio St. 3d 476, 483, 485 (Ohio 2018) (“Nearly every court that

has considered the issue has held that the Sixth Amendment is applicable to only the

fact-bound eligibility decision concerning an offender’s guilt of the principle offense

and any aggravating circumstances” and that “weighing is not a factfinding process

subject to the Sixth Amendment.”) (string citation omitted); United States v.

17

in Hurst v. State involving the weighing and selection of a defendant’s sentence are

not required by the Sixth Amendment. See, e.g., McGirth v. State, 209 So. 3d 1146,

1164 (Fla. 2017).

Opposing counsel insists that the Florida Supreme Court’s requiring these

additional jury findings in Hurst v. State means that all those additional findings,

beyond the one aggravating factor, automatically become elements of capital murder.

This is not true.

Elements are facts proven by the prosecution beyond a reasonable doubt that

increase or aggravate the penalty. That is the dictionary definition of an element and

the constitutional definition of an element. BLACK’S LAW DICTIONARY (10th ed. 2014)

(elements of crime); United States v. O’Brien, 560 U.S. 218, 224 (2010) (contrasting

elements of a crime which are facts that the prosecution must prove to a jury beyond

a reasonable doubt with sentencing factors which may be found by a judge by a

preponderance of the evidence).

Neither Hurst v. Florida nor Hurst v. State created any new factors that a jury

Sampson, 486 F.3d 18, 32 (1st Cir. 2007) (“As other courts have recognized, the

requisite weighing constitutes a process, not a fact to be found.”); United States v.

Purkey, 428 F.3d 738, 750 (8th Cir. 2005) (characterizing the weighing process as

“the lens through which the jury must focus the facts that it has found” to reach its

individualized determination); Waldrop v. Comm’r, Alabama Dept. of Corr., 711 F.

App’x 900, 923 (11th Cir. 2017) (unpublished) (rejecting Hurst claim and explaining

“Alabama requires the existence of only one aggravating circumstance in order for a

defendant to be death-eligible, and in Mr. Waldrop’s case the jury found the existence

of a qualifying aggravator beyond a reasonable doubt when it returned its guilty

verdict.”) (citation omitted); State v. Gales, 658 N.W.2d 604, 628-29 (Neb. 2003)

(“[Wle do not read either Apprendi or Ring to require that the determination of

mitigating circumstances, the balancing function, or proportionality review to be

undertaken by a jury”).

18

needed to find to sentence a defendant to death. It is only facts that increase or

aggravate a sentence that are elements that the jury must find beyond a reasonable

doubt according to this Court’s Sixth Amendment jurisprudence. Ad/eyne, 570 U.S.

at 103 (holding that any fact that increases the mandatory minimum sentence for a

crime is an element that must be found by the jury). Section 921.141(2)(b)1. makes

this sufficiently clear, stating:

The jury shall return findings identifying each aggravating factor found

to exist. A finding that an aggravating factor exists must be unanimous.

If the jury:

1. Does not unanimously find at least one aggravating factor, the

defendant is ineligible for a sentence of death.

§ 921.141(2)(b)1., Fla. Stat. (2017).

The Florida Supreme Court may mandate that the jury make additional

findings regarding mitigating circumstances and weighing, but that does not turn

either mitigating circumstances or weighing of circumstances into elements.

Mitigation and weighing of the aggravating and mitigating circumstances are not

facts at all. Carr, 136 S. Ct. at 642 (explaining that aggravating factors are “purely

factual determinations,” but that mitigating circumstances, while often having a

factual component, are “largely a judgment call (or perhaps a value call)” and

weighing is mostly “a question of mercy”). Mitigating circumstances, which must be

found before any weighing can be done, are not elements because mitigation is proven

by the defense and at a much lower standard of proof than the elements. Ault v.

State, 53 So. 3d 175, 186 (Fla. 2010) (noting that mitigating circumstances are proven

at the “greater weight of the evidence” standard of proof (quoting Coday v. State, 946

19

So. 2d 988, 1003 (Fla. 2006)). If a mitigating circumstance applies it only decreases

the penalty.

Additionally, it is not true as a matter of Florida law that the additional

findings beyond the aggravating factors are elements. The Florida Supreme Court

recently held that the additional findings are not elements. Foster, 258 So. 3d at

1251-53 (rejecting a due process and Eighth Amendment argument that the

additional findings required by Florida’s new death penalty statute were elements

and specifically holding the additional jury findings required “are not elements of the

capital felony of first-degree murder”). On the contrary, they are findings that a jury

must make: “(1) before a court can impose the death penalty for first-degree murder,

and (2) only after a conviction or adjudication of guilty for first-degree murder has

occurred.” Jd. Section 921.141 further makes clear that these findings are

recommendations that are based on the jury’s weighing of the facts in each case. §

921.141(2)(b)2.a.-c., Fla. Stat. (2017). They are not required to be found by proof

beyond a reasonable doubt.

Opposing counsel’s definition of elements of capital murder is also directly

contrary to the actual text of Florida’s new death penalty statute. Florida’s new death

penalty statute provides that a defendant becomes eligible for a death sentence upon

a conviction for first-degree murder and the finding of “at least one aggravating

factor.” § 921.141(2)(a), Fla. Stat. (2017) (providing “After hearing all of the evidence

presented regarding aggravating factors and mitigating circumstances, the jury shall

deliberate and determine if the state has proven, beyond a reasonable doubt, the

20

existence of at least one aggravating factor set forth in subsection (6).”). The statute

additionally provides that if the jury, “unanimously finds at least one aggravating

factor, the defendant is eligible for a sentence of death.” § 921.141(2)(b)2., Fla. Stat.

(2017). However, if the jury, “does not unanimously find at least one aggravating

factor, the defendant is ineligible for a sentence of death.” § 921.141(2)(b)1., Fla. Stat.

(2017) (emphasis added). A jury’s finding of “at least one aggravating factor” makes

the defendant eligible for death. § 921.141(2)(a), Fla. Stat. (2017). Aggravating

factors are the only elements necessary to be proven beyond a reasonable doubt. None

of the additional findings® listed in Foster are elements. Foster, 258 So. 3d at 1251.

Last, Petitioner’s claim that he is entitled to a new penalty phase since he did

not receive a unanimous jury finding of an aggravator is meritless based on this

Court’s decision in Jenkins v. Hutton, 137 S. Ct. 1769 (2017). In Jenkins, the

defendant’s death sentence was affirmed as constitutional because the jury already

found aggravators making him eligible of the death penalty during the guilt phase of

the trial. /d. at 1772. Specifically, the jury found the defendant “engaged in a course

of conduct involving the attempt to kill two or more persons and that [he] murdered

Mitchell while committing, attempting to commit or fleeing immediately after

kidnapping.” Jd. at 1770. This Court held that the jury found an aggravating

6 The four other findings are: “(2) identify all aggravating factors that it unanimously

finds beyond a reasonable doubt; (3) unanimously determine whether sufficient

aggravating factors exist to impose a sentence of death; (4) determine whether any

mitigating circumstances exist and unanimously determine whether the aggravating

factors outweigh those mitigating circumstances; and (5) unanimously determine

that the defendant should be sentenced to death.” Foster, 258 So. 3d at 1251.

21

circumstance in the guilt phase of his trial by finding these factors. Jd. at 1772.

Here, Petitioner’s three contemporaneous murder convictions during the

course of armed burglary were the necessary aggravators to make him eligible for the

death penalty. Petitioner’s jury returned guilty verdicts for all three victims in his

guilt phase. Like Jenkins, the jury’s unanimous findings of statutory aggravating

factors at Petitioner’s guilt phase made him eligible for the death penalty. Since these

aggravators were found by Petitioner’s jury during his guilt phase, Petitioner’s claim

should be denied on these grounds.

Moreover, Petitioner's jury returned unanimous recommendations for the

death penalty. Arguendo, even if Petitioner’s case was final after 2002, making

retroactivity a possibility, he still would not receive the benefit of a new sentencing

under Hurst v. State or section 921.141 claims. Since he received a unanimous

recommendation for death it follows that a under the harmless error analysis, a

rational jury would have unanimously found there were sufficient aggravators to

outweigh the mitigating factors, beyond a reasonable doubt. See e.g, Reynolds v.

State, 251 So. 3d 811, 815 (Fla. 2018) (“We have been abundantly clear that there is

a critical distinction between unanimous and nonunanimous jury recommendations

as they pertain to Hurst v. State error); Davis v. State, 207 So. 3d 142, 175 (Fla. 2016)

(“We conclude that the State can sustain its burden of demonstrating that any Hurst

v. Florida error was harmless beyond a reasonable doubt. Here, the jury unanimously

found all of the necessary facts for the imposition of death sentences by virtue of its

unanimous recommendations.”). Accordingly, this Court should deny the petition.

22

Conclusion

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GRNERAL OF FLORIDA

Wa

Carolyn M. Snurkowski*

Associate Deputy Attorney General

*Counsel of Record

tk L >

Brian H. Zack

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

CAPITAL APPEALS

SUNTRUST INTERNATIONAL CENTER

1 SE Third Avenue, Suite 900

Miami, Florida 33131

Telephone: (805) 377-5441

Facsimile: (305) 377-5655

capapp@myfloridalegal.com

Carolyn.Snurkowski@myfloridalegal.com

Brian.Zack@myfloridalegal.com

COUNSEL FOR RESPONDENT

23