Opposition Brief — Michael Lee Robinson, Petitioner v. Florida

CASE NO. 18-9363

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL LEE ROBINSON

Petitioner,

Vv.

STATE OF FLORIDA

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

ASHLEY MOODY

ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar #158541

*Counsel of Record

Carolyn.Snurkowski@myfloridalegal.com

capapp@mpyfloridalegal.com

Doris Meacham

Assistant Attorney General

Florida Bar #63265

Office of the Attorney General

444 Seabreeze Blvd. Suite 500

Daytona Beach, Florida 32118

(386)238-4990

doris. meacham@myfloridalegal.com

CapApp@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

Whether this Court should grant review of a decision of the Florida

Supreme Court holding that the petitioner waived any right to relief

based on Hurst v. State, 202 So.3d 40 (Fla. 2016), by waiving his right

to a jury during the penalty phase?

TABLE OF CONTENTS

Contents

QUESTIONS PRESENTED FOR REVIEW............ccscscccsssscccesessscesssceeessnsesssneessenes i

TABLE OF CONTENTS 1... ccccccesscesessscccesssscesssnscesessensecesseeeecsseceseseueecessesenssanenaes il

TABLE OF AUTHORITIES. ......... ccc ceccccccceeesseeceeeeeeenssseneeseeessssuaeeeeesssaseeeesesaeeees ill

CITATION TO OPINION BELOW 00.0.0... ccccesssscsssseecessssseccesssnccecssncessseeesssenessees ]

STATEMENT OF JURISDICTION .......... cc cesccccssstcecesssseeeeserececeessacersseeeeseceeeesneeess 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... 1

STATEMENT OF CASE AND FACTS... ceccsessscccesesscceeesssneeeesenescecsacesesneesenaees 1

REASONS FOR DENYING THE WRIT 1.0... ceeeseccssceessseecssseesssnssssnesseeesneeees 8

THERE IS NO BASIS FOR CERTIORARI REVIEW OF THE FLORIDA

SUPREME COURT’S RULING THAT A VALID WAIVER OF A PENALTY

PHASE JURY IS ALSO AN EFFECTIVE WAIVER OF ANY RIGHT TO

RELIEF UNDER HURST V. STATE, 202 So.3d 40 (Fla. 2016), BECAUSE

THERE IS NO CONFLICT BETWEEN STATE COURTS OF LAST RESORT

OR UNITED STATES COURTS OF APPEAL NOR DOES THE CASE

PRESENT AN IMPORTANT UNSETTLED QUESTION OF FEDERAL LAW.

I. Petitioner waived his right to a penalty phase jury. ...........ccccsssssscessseesteeeeees 9

II. The Florida Supreme Court’s ruling that a valid waiver of a penalty phase

jury is also an effective waiver of any right to relief under Hurst v. State does

not violate the United Stated Constitution. .............cccsscssscssseessesseeessesseeees 13

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

and Hurst v. State, which relied 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 Eight Amendment’s

Prohibition against arbitrary and capricious capital punishment and the

Fourteenth Amendment’s guarantee of Equal Protection. ..............:ccc008 23

CONCLUSION 0... cccccesseessseccsssesssecesssaecesseesseeeseeesceeeeessoeeesssceeseaeessuseesoeeesnateas 32

il

TABLE OF AUTHORITIES

CASES

Page(s)

Apprendi v. New Jersey,

530 U.S. 466 (2000) oo. eee secsseeeessscesseeeceseeeseeesseesesseseseseesssseeessseseesneeesats 14, 32

Asay v. State,

210 So.3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017).............. 24, 25, 30, 31

Blakely v. Washington,

S42 U.S. 296 (2004)... eccesccesseesseesseessseeeeeescessaeeseesssasessssesseeesneseseenses 11, 14, 18

Brady v. United States,

397 U.S. 742 (1970)... esecsscsseseeccsseeeseeeseeeeneseseesseeesseeessecesacesaeeseaecsarecsaeesaes 12,19

Branch yv. State,

234 So.3d 548 (Fla. 2018), cert. denied, 138 S. Ct. 1164 (2018)............ leateseeneaes 31

Brant v. State,

197 S0.3d 1051 (Fla. 2016)... cccesscssessecseecseessesseessecsseeecsseesssesseenseeaeesseesneess 12

Brown v. State,

428 So. 2d 369 (Fla. Sth DCA 1983)... cescssssessesesecessseesssessssesseeesecesasesaeesseenes 4

Butler v. McKellar,

494 U.S. 407 (1990)... eeeeeeccsecsccesesscceesseessseeessacessesesseaeeceseseesseesesaeesesseesueesensensess 26

Cardinale v. Louisiana,

394 U.S. 437 (1969) 0... eecsesseesseseseeeeeeeaensneesseesseesseessseesseeesaeesaeesseacseeseresensees 10

Class v. United States,

138 S. Ct. 798 (2018) wo. esceceseccnteeseeesseccesceseessesstanesseeessseseseessseessnsnseessaeesaees 21

Cole v. State,

234 So.3d 644 (Fla. 2018), cert. denied, 138 S. Ct. 2657 (2018).........scccccssseeees 31

Covington v. State,

228 So.3d 49 (Fla. 2017), cert. denied, 138 S.Ct. 1394 (2018)..........cccssceeseeesees 12

Crawford v. Washington,

S41 U.S. 36 (2004)... ee eecccceseseseessesessessecesseeceesseeseseeseeecsnsessneesseseneusesseesseeeensess 26

Danforth v. Minnesota,

552 U.S. 264 (2008)... ce ccesesseecsscessseesncesseecssesseessseessesesseessnsecssecesseeseeensecesseons 25

Davis v. State,

207 S0.3d 177 (Fla. 2016)........cccsesssesssscssccssccsscsssesseeeeseresseecessecsseesseeeseresseeseeass 12

Dessaure v. State,

891 So. 2d 455 (Fla. 2004)... eccsccsceesecsacssecseceneesseeseecsssesseesssessessaseseesseeneeens 6

Dorsey v. United States,

567 U.S. 260 (2012)... ee eeeccesseessceeesecsaneeseeessseseessnsesssscesueesseeceseeceesenseseseusvanenss 27

ili

Engquist v. Oregon Dep’t of Agric.,

553 U.S. 591 (2008)... cccssssecesssseceessseeeesssnseesssaseesssessecsseceeeanseescesseaseceesesenens 29

Farr v. State,

621 So. 2d 1368 (Fla. 1993)... eecssccssseessnecsseeevsecscssessesseesessesusssescesesceuscssaaeces 3

Florida v. Powell,

559 U.S. 50 (2010)... cccccssccccssssssccssscceccessseccsseescesseescsseuscsescceusscsseasesecuseeetaeeeceas 11

Fox Film Corp. v. Muller,

296 U.S. 207 (1935)... cescsccceesscecsseecsssecsseessssecsssecsssesesaeeeseeesenseecesecssussceussosenacs 10

Gore v. State,

552 So. 2d 1185 (Fla. 5th DCA 1989) 0.0... cesccsscesseeesscesseeeeseecseeeesssesssssssscsesnsass 4

Griffith v. Kentucky,

A479 U.S. 314 (1987) ....ccccccssssccccsssssseessseccesseeecesseeeesscuecevsesusacecusaessssusencenens 26, 27

Halbert v. Michigan, ,

545 U.S. 605 (2005)... eecccsscecsssecsssecesssssesaeensssecsesscesseeesseecseseeseesesecsenssserees 16,17

Hamblen v. State,

527 So. 2d 800 (Fla. 1988).........ccccccessccsssssesseeceseccesseessceuseseesuscateusseusnscausesesesesaeees 3

Hannon v. State,

228 So.3d 505 (Fla. 2017), cert. denied, 138 S. Ct. 441 (2017)........ceesseeeseeees 31

Hitchcock v. State,

226 So.3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017).........ecessceseeees 31

Hunt v. State,

613 So. 2d 893 (Fla. 1992)... iccccssccssscesscescecsesececsesssessseesensessceesscsssessessussesscnues 4

Hurst v. Florida,

135. S. Ct. 1531 (2015)... ee ccccssseesssccsssnecsssscsseecsssecessesceseeeseseeusssesscseessneesecnens 8

Hurst v. Florida,

136 S. Ct. 616 (2016)... eee eccecseecsecssseeseessssssesecsessssessssessaeessneesaeenseesaes passim

Hurst v. State,

202 S0.3d 40 (Fla. 2016)........cccccsscsscssccssscsssssecssssssecssesesesseseeesssccersessscasessecess passim

Johnson v. Singletary,

695 So. 2d 263 (Fla. 1996)... ccsscccsssecssssessseessneecsseesseeeessessseseesssseessssssecsssesucees 6

Jones v. State,

234 So.3d 545 (Fla. 2018), cert. denied, 138 S. Ct. 2686 (2018)........ccececeeeees 31

Jones v. United States,

527 U.S. 373 (1999)... cecscsccccsssscseesssscecsssecesseesssceessscenssssseussescsssasesscsusesecsesesees 28

Kaczmar v. State,

228 So.3d 1 (Fla. 2017), cert. denied, 138 S. Ct. 1973 (2018)........:cscesesceeereeees 31

Knight v. State,

211 So.3d 1 (Fla. 2016)... .cccscccsssessssscssesesneesscesssseuecssusessccsssesesessssesseessesecseass 12

Koon v. Dugger,

619 So. 2d 246 (Fla. 1993).........ccsccscssscsssscssecsssesseccsscssscessescsesesssevsceseseesenseeenseaes 2

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

872 F.3d 1170 (11th Cir. 2017) oo... ccc ccccccsssecssccessccsssscssesessseeesessssssssesssensseees 30

Lambrix v. State,

227 So.3d 112 (Fla. 2017), cert. denied, 138 S. Ct. 312 (2017).......cccsscsseseees 31

Lewis v. Wheeler,

609 F.3d 291 (4th Cir. 2010) oo... cesscccsstecsscesseeeesseecsseesseeescetsecssesessnesessaecesses 12

Lopez v. State,

536 So. 2d 226 (Fla. 1988)... cccccscssssecsstsccsccssseesesseeesecesseccsseeeessseescesenecsesenueeees 4

McCleskey v. Kemp,

A481 U.S. 279 (1987)... ccecccccsscccsssssecsseeesseecssseccsssesssnecsensecsaseseaeeseseeecesueeseseeceseeenes 30

McMann vy. Richardson,

397 U.S. 759 (1970).....cccccccsssccccssssscccccsscccessesesssnssesssassesssseeesssaeeeeessssneeeessaees 19, 20

Michigan v. Long,

463 U.S. 1032 (1983)... .cccscccessssccsssscsssecssssecsssesesesecssusesseecsseesesseesensceescseesesseetens 10

Mosley v. State,

209 S0.3d 1248 (Fla. 2016)... ..ccssccssecssseecssscessecesssecsaseessesesseeeeseseeeeeseesessees 7,24

Mullens v. State,

197 So.3d 16 (Fla. 2016), cert. denied, 137 S. Ct. 672 (2017).........c:csccee passim

Nordlinger v. Hahn,

S05 U.S. 1 (1992) i.e ccccsssssecsssssseccessssuecssssesscsssceeessseceesseeeesseeeeeecenseeescessseesecenses 29

Patton v. United States,

281 U.S. 276 (1930)... eee scccessseeessecesseeeccenecssnsesseeesssseesseeesseeceeesesssaseeessaesesneeens 11

Penry v. Lynaugh,

492 U.S. 302 (1989)... ceccssccccsssssnecesssnscessseeccsssseeeeesseeccsseecesseeeesesseseeensesseeneecaes 26

Porter v. Crosby,

840 So. 2d 981 (Fla. 2003)..........cccscccssssessseessecsscessssccssseceseeesseeeesssseecesseeceseeeesseeens 6

Porter v. State,

564 So. 2d 1060 (Fla. 1990)... ecsssccsssecsssecsesesssnseceseceseeessseteeeeseeeessesesssesesenens 4

Quince v. State,

233 So.3d 1017 (Fla. 2018), cert. denied, 139 S. Ct. 165 (2018).........ccsseseeeeeees 13

Ring v. Arizona,

536 U.S. 584 (2002)... eesccsesscecsseccssstscesesesssssesnecsseeeeseseseeenssseeeeeseesnesees 6, 11, 24

Robinson v. State,

761 So. 2d 269 (Fla. 1999), cert. denied, 529 U.S. 1057 (2000)........... 3, 4, 15, 16

Robinson v. State,

913 So. 2d 514 (Fla. 2005)... ecssscccsnsecssecessnecsserecseessseesesseeeeesstessseeeesseeens 5,6

Robinson v. State,

260 So.3d 1011 (Fla. 2018)... ccc sesccsssssccessseccessseeecesesevssseeessesseneeeuees 1,7, 8,9

Robinson v. State,

684 So. 2d 175 (Fla. 1996)... cccsscccsssecsstcessecsseeessesesseeesstessseeseesseeeseseecsaes 3, 5,9

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

A482 U.S. 182 (1987)... eescessecssceeseceesesesseeesseeeseesesessseesseesseessueeseesesteessseeseeseaees 9, 22

Rodgers v. State,

242 So.3d 276 (Fla. 2018), cert. denied, 139 S. Ct. 592 (2018)..........cescceeee 13, 20

Saffle v. Parks,

AQD4 U.S. 484 (1990) eee eececeecsseecssceessessscessceesacesceseesssecsaesseeesseeseeeeeeesseeesseees 26

Schiro v. Summerlin,

542 U.S. 348 (2004)... eeeccsnccsseeeesncesseecssecseneesnecsssessusssseessessaeeeseessnseesneeesasessees 26

Shepard v. United States,

544 U.S. 13 (2005) noc cceccsseccsceesscecsccecsseesseceeaecescessnecssecssesessessueessseeseeesseeeseees 14

Singer v. United States,

380 U.S. 24 (1965)... eee ccecesecssseessccessneesseeessceseeeessessaeesaseeseesseeesseeeseeens 11, 12, 14

Spencer vy. State,

842 So. 2d 52 (Fla. 2003)... eesscesseeesneeeees boceeeceeescesaeeeseeeeaeenscenaesenaetenneesseeenacs 6,9

State v. Murdaugh,

97 P.3d 844 (ATiZ. 2004)... eee ecsccssceessecssceessecssrseescesseessscssseeseeesesessseeesseessneesees 12

Street v. New York,

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

Teague v. Lane,

A489 U.S. 288 (1989)... esscecsncesscessesesseesececseessssesseesensssaessceesseeseausessseesseeeness 25

Teague v. Lane,

498 U.S. 288 (1989)... eccssecsseeesseeesseeeseeesseeesecsssccseessessssesseeeseseeeseeesaeeesenecsens 26

Twilegar y. State,

228 So.3d 550 (Fla. 2017), cert. denied, 138 S. Ct. 2578 (2018)..........cc000 12,15

United States v. Abney,

812 F.3d 1079 (D.C. Cir. 2016)... ccsecescessccesscesscesscessesseecessessnesseeeesnteseeess 27

United States v. Booker,

543 U.S. 220 (2005)... saeeeduosceesaneessoessauessscenstseauanescenssessecessesenaessseansesnnecoatessaes 20

United States v. Cardenas,

230 Fed. Appx. 933 (11th Cir. 2007)... eesccsssesstesseecersecsessseeesesesseeesseeesssensaes 20

United States v. Mezzanatto,

513 U.S. 196 (1995) ee ecccececsseeeseeeesaeseseeesaeesseeessessacesseesssessesesaeseseeeesnesesseeaeees 14

United States v. Ruiz,

536 U.S. 622 (2002)... essessccsseceneeesseecscesseesssecsneesseecsnesscesseeesseeesaeecsaeeeseeesaees 20

United States v. Sahlin,

399 F.3d 27 (Ist Cir. 2005) oo... eecccesescsecescessecesaceeeesssaesssessssesseessaeessseceeeeeeeees 20

Whorton v. Bockting,

549 U.S. 406 (2007)... ee cccsssscceneesseeceenesseeensessneeesscessessesesseesseesseeessneeesenessaeess 26

Witt v. State,

387 So. 2d 922 (Fla. 1980), cert. denied, 449 U.S. 1067 (1980)...........ceceeeeeeee 25

vi

Young v. United States,

124 F.3d 794 (7th Cir. 1997) oo cccccceccccsssessscesscssecenseesssessecessecseeseesssessnnesesseess 20

Zack v. State,

228 So.3d 41 (Fla. 2017), cert. denied, 138 S. Ct. 2653 (2018).........cssccsceeeeees 31

Statutes

Florida State Stat. § 921.141(2) (1980)... ccccsscssssesssseessseessseeessstecseteessscesseceeeees 17

Florida State Stat. § 921.141(5)(e) (1995) oo... ecesccccsssssesscsssessssssesscssecsecsresseeesenees 2

18 ULS.C. § 1201 (a)... eeesssececssecsscsssecesssecssceccsssssecssecseecssueeseecnseccseensecensecsseenenes 19

28 U.S.C. § 1257 veeeeccccsssssscccssessececsscsccsscnscesseccesaaseecssusceesesscecuuansseusascscseesessssessaes 1

Rules

ULS. Sup. Ct. R. 10 woe cecssecsssecsssscssseecssseeessssecssesceseseseececseescsssesersesesseseneans 8, 22

Vii

CITATION TO OPINION BELOW

The decision of the Florida Supreme Court is reported at Robinson v. State,

260 So.3d 1011 (Fla. 2018).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on December 20,

2018. This Court’s jurisdiction to review the final judgment of the Florida Supreme

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

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

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

Sup. Ct. R. 14(g)(i).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner's statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT OF CASE AND FACTS

On July 26, 1994, Jane Silvia was reported missing by her co-workers when

she failed to show up for work. On August 8, 1994, Robinson’s mother called the

police, and told them that Robinson confessed to her that he killed Ms. Silvia, who

was romantically involved with Robinson. Officers responded to Robinson’s

residence, and observed two large blood stains on the carpet. Officers spoke with a

witness who advised them that Robinson confessed to killing someone and disposing

of the body. Robinson was subsequently arrested on unrelated charges. While in

custody, Robinson advised police officers that he killed Ms. Silvia and buried her

remains. Robinson later escorted police to the location where Ms. Silvia was buried.

Robinson was indicted on August 22, 1994 for the first-degree murder of Ms. Silvia.

The following facts are drawn from the Florida Supreme Court’s opinion

affirming Robinson’s direct appeal:

On January 23, 1995, appellant pled guilty to the first-degree murder of

Jane Silvia. Prior to the plea colloquy, appellant's counsel explained

that appellant did not wish to proceed to trial, did not wish to present

any defense, did not want his attorneys to file any motions on his behalf,

and did not want to present any mitigation at the penalty phase.

Appellant expressed that he desired to die and was “seeking the death

penalty in this case.”

On March 30, 1995, appellant waived his right to a penalty phase jury

and the cause proceeded to sentencing before the trial court. The State

called as its sole witness Detective David Griffin, who was the lead

homicide investigator in the case and had taken two taped statements

from appellant. At the penalty phase, Detective Griffin played the

second taped interview in which appellant admitted to killing Jane

Silvia. Relying on Koon v. Dugger, 619 So. 2d 246 (Fla.1993), the

defense proffered mitigating evidence which it had received from a

psychologist, Dr. Berland, and appellant's mother. The State also

presented brief testimony from the victim's brother who told the court

that Robinson “destroyed my family.” In addition to the evidence

presented at the hearing, the court directed that a presentence

investigation be conducted as to the circumstances of the crime and the

defendant's background. A presentence report was subsequently

completed and filed with the court.

On April 12, 1995, the trial court sentenced appellant to death. The

court found three aggravating circumstances: (1) the capital felony was

committed for the purpose of avoiding or preventing a lawful arrest, see

§ 921.141(5)(e), Fla. Stat. (1995); (2) the capital felony was committed

2

for pecuniary gain, see id. § 921.141(5)(f); and (3) the capital felony

was committed in a cold, calculated, and premeditated manner without

any pretense of moral or legal justification, see id. § 921.141(5)(i). The

court concluded that the aggravating circumstances could not be

outweighed by any potential mitigating circumstances and sentenced

appellant to death.

Robinson v. State, 684 So. 2d 175, 176 (Fla. 1996).

On direct appeal,’ the Florida Supreme Court vacated Robinson’s death

sentence and ordered a new penalty phase proceeding, finding that the trial judge

was required to weigh and consider mitigating evidence even though Mr. Robinson

had requested the death penalty and asked that no mitigating factors be considered.

Id. at 180. The remand opinion also specified that the new penalty phase proceeding

was to be held “before the judge alone .. . .” Jd. Upon remand, Robinson attempted

to withdraw his plea, but counsel’s oral motion to this effect was denied. After a

second penalty phase hearing’, the trial court again imposed the death penalty on

' These claims were: (1) the trial court erred by not considering valid mitigation in

violation of Farr v. State, 621 So. 2d 1368 (Fla. 1993); (2) the trial court erred in

finding that the pecuniary gain aggravator was proven beyond a reasonable doubt;

(3) the trial court erred in finding that the avoid-arrest aggravator was proven beyond

a reasonable doubt; (4) the trial court erred in finding that the cold, calculated, and

premeditated aggravator was proven beyond a reasonable doubt; and (5) this Court

should recede from Hamblen v. State, 527 So. 2d 800 (Fla. 1988).

* The State presented the same testimony during the second penalty phase as it had

in the first, and the defense presented extensive testimony regarding Robinson’s

mental health, chronic drug use, and difficult childhood. Robinson v. State

(Robinson ID, 761 So. 2d 269, 271-72 (Fla. 1999). At no point did Robinson

attempt to withdraw his prior waiver of a penalty-phase jury; indeed, the record

reflects that he told the trial court he was “really comfortable with the fact that the

3

August 15, 1997. On his second direct appeal, Robinson argued that the trial court

erred in denying his counsel's oral motion to withdraw his guilty plea. The Florida

Supreme Court affirmed, holding:

In order to show cause why the plea should be withdrawn, mere

allegations are not enough; the defense must offer proof that the plea

was not voluntarily and intelligently entered. See Gore v. State, 552 So.

2d 1185, 1186 (Fla. 5th DCA 1989); Brown v. State, 428 So. 2d 369,

371 (Fla. 5th DCA 1983) (“[M]ere naked allegations contained in a

motion to withdraw, unsupported by any proof, can never constitute a

basis for withdrawal of a plea.”). Further, on appeal from the denial of

the motion to withdraw the plea, the burden rests on the defendant to

show the trial court abused its discretion in denying the defendant's

motion. See Hunt v. State, 613 So. 2d 893, 896 (Fla.1992); Porter v.

State, 564 So. 2d 1060, 1063 (Fla.1990) (quoting Lopez v. State, 536

So. 2d 226, 228 (Fla.1988)).

At the new penalty phase proceeding, Robinson's counsel orally moved

to withdraw Robinson's guilty plea on the ground that “Robinson was

not able to form an intelligent waiver of his rights.” No further

explanation was offered as to why Robinson could not form an

intelligent waiver. The trial judge denied the motion, stating, “I can

remember the plea, where he told us why he did what he did and he

appeared very confident to me.” Robinson did not move for rehearing

or attempt to further argue to the court reasons why his initial plea was

not intelligently made.

We find no error in the trial court's denial of Robinson's motion. Indeed,

the record conclusively refutes Robinson's claim that he was unable to

form an intelligent waiver of his right to a trial.

Robinson v. State, 761 So. 2d 269, (Fla. 1999), cert. denied, 529 U.S. 1057 (2000).

state supreme court remanded [the case] back without a jury again the second time.”

The trial court found the same three aggravating factors as it had during the first

penalty phase. Jd. at 272-73.

On October 3, 2001, Robinson filed a motion for postconviction relief, raising

seventeen claims, which was denied by the trial court after an evidentiary hearing.

Robinson v. State (Robinson III), 913 So. 2d 514, 518 (Fla. 2005). Of these claims,

Robinson argued his trial counsel was ineffective for failing to properly inform him

of his right to a jury trial and for failing to assert Robinson’s desire to have a jury

determine his sentence. /d. at 523. The postconviction court denied the motion, and

the Florida Supreme Court affirmed that denial. Jd. at 517. The Florida Supreme

Court explained that during the second penalty phase Robinson’s trial counsel was

“following this Court’s express mandate” that resentencing would proceed without

a jury. Jd. at 523; see Robinson I, 684 So. 2d at 180 (remanding for a second penalty

phase “before the judge alone”). The Florida Supreme Court also held this claim was

procedurally barred because it could have been raised either in a motion for rehearing

in Robinson I or on direct appeal from the second penalty-phase hearing in which

the circuit court re-imposed a sentence of death, but it was not. Robinson ITI, 913 So.

2d at 523 n.8.

Robinson II also addressed a petition for writ of habeas corpus Robinson filed

in the Florida Supreme Court while his motion for postconviction relief was pending.

In his petition, Robinson argued that the Florida Supreme Court erred in Robinson I

by remanding for a new penalty phase before the trial judge alone, that appellate

counsel was ineffective for failing to raise that issue with the Court, and that his

death sentence was unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).

Robinson IIT, 913 So. 2d at 528. The Florida Supreme denied the petition for writ of

habeas corpus. /d. In denying the petition, the Florida Supreme Court stated:

Robinson claims that this Court erred in precluding Robinson

from seeking a penalty phase jury. We reject this claim on the merits.

Further, however, this claim is procedurally barred because it was also

raised in the 3.850 proceeding. See Porter v. Crosby, 840 So. 2d 981,

984 (Fla. 2003) ( “[C]laims raised in a habeas petition which petitioner

has raised in prior proceedings and which have been previously decided

on the merits in those proceedings are procedurally barred in the habeas

petition.”).

Robinson also claims that appellate counsel was ineffective for

failing to raise this issue on direct appeal. However, appellate counsel

cannot be deemed ineffective for failing to raise a meritless issue. See

Johnson v. Singletary, 695 So. 2d 263, 266 (Fla. 1996). In light of this

Court’s decision that the new penalty phase was to be before the judge

alone, appellate counsel had no reason to challenge whether this Court

had considered the nature of the proceedings to be conducted on

remand. Cf Spencer v. State, 842 So. 2d 52, 70 (Fla. 2003) (denying

habeas claim that this Court's order on remand was ambiguous as to

whether a new jury should be impaneled where remand specifically

directed “reconsideration of the death sentence by the judge”).

Robinson argues further that he is entitled to relief under Ring.

However, this claim is foreclosed because we have previously

determined that Robinson lawfully waived the right to a penalty phase

jury. See Dessaure v. State, 891 So. 2d 455, 471-72 (Fla. 2004).

Robinson vy. State, 913 So. 2d 514, 528 (Fla. 2005).

Following his unsuccessful state court litigation, Robinson filed a federal writ

of habeas corpus to the United States Circuit Court for the Middle District of Florida.

Robinson v. Secretary Department of Corrections, District Court Case No. 6:05-cv-

01808-JA-KRS. The District Court denied his habeas petition on November 26,

2008. He filed a timely Notice of Appeal and Certificate of Appealability before the

United States Court of Appeals for the Eleventh Circuit on May 6, 2009, which was

subsequently denied.

Robinson attempted to resurrect his claims after this Court issued Hurst v.

Florida, 136 S. Ct. 616 (2016) and the Florida Supreme Court issued Hurst v. State,

202 So.3d 40 (Fla. 2016) and Mosley v. State, 209 So.3d 1248 (Fla. 2016). Robinson

filed a successive motion for post-conviction relief seeking to set aside his death

sentence and receive a new penalty phase, or, in the alternative, a life sentence. After

the postconviction court denied relief, the Florida Supreme Court ordered the parties

to files briefs “addressing why the lower court’s order should not be affirmed based

on this Court’s precedent in Mullens v. State, 197 So.3d 16 (Fla. 2016), cert. denied,

137 S. Ct. 672 (2017). The Florida Supreme Court denied Hurst relief on

September 20, 2018. Robinson v. State, 260 So.3d 1011 (Fla. 2018). Robinson filed

the instant petition on May 17, 2019. This is the State’s brief in opposition.

REASONS FOR DENYING THE WRIT

THERE IS NO BASIS FOR CERTIORARI REVIEW OF THE

FLORIDA SUPREME COURT’S RULING THAT A VALID

WAIVER OF A PENALTY PHASE JURY IS ALSO AN

EFFECTIVE WAIVER OF ANY RIGHT TO RELIEF UNDER

HURST V. STATE, 202 So.3d 40 (Fla. 2016), BECAUSE

THERE IS NO CONFLICT BETWEEN STATE COURTS OF

LAST RESORT OR UNITED STATES COURTS OF APPEAL

NOR DOES THE CASE PRESENT AN IMPORTANT

UNSETTLED QUESTION OF FEDERAL LAW.

Petitioner requests that this Court review the Florida Supreme Court’s opinion

affirming his death sentence, arguing that he is entitled to relief under this Court’s

decision in Hurst v. Florida, 135 8. Ct. 1531 (2015), even though he waived his right

to a penalty phase jury. Petitioner contends that his waiver was not knowing,

voluntary, and intelligent because at the time of his waiver, the Sixth Amendment

right to unanimous jury factfinding on aggravating circumstances did not exist in

Florida and therefore he cannot have waived such “nonexistent” right. The Petition

further alleges that the Florida Supreme Court’s refusal to retroactively apply Hurst

to pre-Ring cases is in violation of the Eighth Amendment’s prohibition against

arbitrary and capricious imposition of the death penalty and the Fourteenth

Amendment’s guarantee of equal protection.

Robinson does not provide any "compelling" reason for this Court to review

his case. U.S. Sup. Ct. R. 10. Indeed, Robinson cannot cite to any decision from this

or any appellate court that conflicts with the Florida Supreme Court's decision in

Robinson v. State, 260 So.3d 1011 (Fla. 2018), in which the court determined that

Robinson was not entitled to relief under Hurst v. State because (1) his valid waiver

of a penalty phase jury also served as an effective waiver of any right to relief under

Hurst v. State, and (2) under Florida Law Hurst was not retroactive to his death

sentence which became final more than two years before Ring was decided. Cases

that do not divide the federal or state courts or that do not present important,

unsettled questions of federal law usually do not merit certiorari review. Rockford

Life Insurance Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 184, n.3 (1987). No

conflict or unsettled question of federal law is presented in the instant petition. The

petition for writ of certiorari should be denied.

I. Petitioner waived his right to a penalty phase jury.

A. Petitioner’s claim that he never waived his right to a penalty jury

was procedurally barred from review in state court.

Petitioner appears to seek review of the Florida Supreme Court’s rejection of

his claim that he never waived his right to a penalty jury. However, the Florida

Supreme Court expressly found this claim untimely and procedurally barred from

review.’ Robinson v. State, 260 So.3d 1011 (Fla. 2018). (“Even if Hurst were to

3 This untimely and procedurally barred claim is also meritless. The error found on

direct appeal by the Florida Supreme Court dealt with the trial court’s error in failing

to weigh and consider mitigating evidence even though Robinson had requested the

death penalty and asked that no mitigating factors be considered. The case was

remanded “to the trial court to conduct a new penalty phase hearing before the judge

alone”. Consequently, the judge reweighed all of the aggravation and mitigation.

9

apply to Robinson’s sentence, the present claim regarding his right to a penaltyphase jury is procedurally barred because it “could and should have been raised on

direct appeal.”). To the extent Petitioner seeks review of that decision here, he is

asking this Court to accept his case to review the Florida Supreme Court’s

application of Florida’s procedural and time limits on post-conviction applications.

This is no federal constitutional violation; certiorari review by this Court would

involve nothing more than an examination of Florida’s application of its own state

law with regard to procedural bar.

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 court below); Street v. New

York, 394 U.S. 576, 581-82 (1969) (same). If a state court’s decision is based on

Robinson, 684 So. 2d at 180. Accordingly, it was not error for the Florida Supreme

Court to order a remand for reweighing and resentencing by the trial court. See Cf

Spencer v. State, 842 So. 2d 52, 70 (Fla. 2003) (denying habeas claim that this

Court's order on remand was ambiguous as to whether a new jury should be

impaneled where remand specifically directed “reconsideration of the death sentence

by the judge’).

10

separate state law, this Court “of course, will not undertake to review the decision.”

Florida v. Powell, 559 U.S. 50, 57 (2010). Accordingly, certiorari should be denied.

B. The Florida Supreme Court properly applied Mullens vy. State, 197

So.3d 16 (Fla. 2016) to deny Robinson’s Hurst claim.

The Florida Supreme Court relied on its precedent regarding the waiver of a

penalty phase jury established in Mullens v. State, 197 So.3d 16, 38-40 (Fla. 2016),

cert. denied, 137 S. Ct. 672 (2017), to deny the Hurst claim in this case. In Mullens,

the Florida Supreme Court rejected a Hurst claim in a case where the defendant had

waived his penalty phase jury. The Florida Supreme Court noted that Mullens

waived his right to a penalty phase jury. /d. at 20. The Florida Supreme Court

concluded that, in light of the fact that Mullens waived his right to a jury, his

argument that his sentence must be commuted to life imprisonment failed. /d. at 38.

The Florida Supreme Court, relying on this Court's caselaw, explained that nothing

prevents a defendant from waiving his right to a jury and that even "a defendant who

stands trial may consent to judicial factfinding as to sentence enhancements." Jd. at

38 (quoting Blakely v. Washington, 542 U.S. 296, 310 (2004)).

The Florida Supreme Court noted that this Court has long "recognized that

defendants may entirely waive their right to a jury trial." Jd. at 38 (citing Singer v.

United States, 380 U.S. 24, 32-35 (1965); and Patton v. United States, 281 U.S. 276,

308 (1930)). The Florida Supreme Court also relied on a number of cases from other

1]

state supreme courts, as well as a Fourth Circuit case, holding that Ring v. Arizona,

536 U.S. 584 (2002), did not invalidate a prior waiver of a jury. Jd. at 38-39 (citing

other state cases and Lewis v. Wheeler, 609 F.3d 291, 309 (4th Cir. 2010)). The court

explained that a "subsequent change in the law regarding the right to jury sentencing

did not render that initial waiver involuntary." /d. at 39 (citing State v. Murdaugh,

97 P.3d 844, 853 (Ariz. 2004) (citing Brady v. United States, 397 U.S. 742 (1970)).

The Florida Supreme Court noted that the trial court conducted a thorough colloquy

before permitting Mullens to waive the penalty phase jury. Jd. at 39. The court

observed that accepting such an argument would "encourage capital defendants to

abuse the judicial process" by waiving the right to jury sentencing and claiming

reversible error upon a judicial sentence of death. /d. at 40. The court wrote that

Mullens cannot "subvert the right to jury factfinding by waiving that right and then

suggesting that a subsequent development in the law has fundamentally undermined

his sentence." Jd. The Florida Supreme Court denied Hurst relief based on the

waiver.

The Florida Supreme Court has followed its Mullens precedent in several

other capital cases where the defendant waived his penalty phase jury to reject Hurst

claims, just as it did in this case. See e.g., Brant v. State, 197 So.3d 1051, 1079 (Fla.

2016); Knight v. State, 211 So.3d 1, n. 2 (Fla. 2016); Davis v. State, 207 So.3d 177,

212 (Fla. 2016); Covington v. State, 228 So.3d 49, 69 (Fla. 2017), cert. denied, 138

12

S. Ct. 1294 (2018); Twilegar v. State, 228 So.3d 550 (Fla. 2017), cert. denied, 138

S. Ct. 2578 (2018); Quince v. State, 233 So.3d 1017 (Fla. 2018), cert. denied, 139

S. Ct. 165 (2018); Rodgers v. State, 242 So.3d 276 (Fla. 2018), cert. denied, 139 S.

Ct. 592 (2018). This Court has denied petitions for writ of certiorari in all of these

cases. Review should be denied in this case as well.

II. The Florida Supreme Court’s ruling that a valid waiver of a penalty

phase jury is also an effective waiver of any right to relief under Hurst

v. State does not violate the United States Constitution.

No conflict or unsettled question of federal law is presented in Robinson’s

petition. Instead, he seeks certiorari review of the Florida Supreme Court’s factbased determination regarding the validity of his knowing and voluntary waiver of

a penalty phase jury. He asserts that his waiver was invalid because Florida has made

procedural changes that did not exist at the time of his waiver. Specifically,

Robinson argues that his waiver was not knowing, voluntary, and intelligent because

at the time of his waiver, the Sixth Amendment right to unanimous jury factfinding

on aggravating circumstances did not exist in Florida and therefore he cannot have

waived such “nonexistent” right. The Florida Supreme Court has determined,

however, that the changes in question do not apply to a defendant who waived his

right to jury fact-finding, a determination that does not rise to the level of a federal

constitutional violation.

13

A. A defendant may not claim a waiver is “unknowing” based on future

changes in the law under the Florida Supreme Court’s precedent.

1. Robinson waived all jury involvement—constitutionally mandated or

not—in determining his penalty.

A capital defendant may waive his Sixth Amendment right to a jury trial.

Blakely v. Washington, 542 U.S. 296, 300 (2004) (explaining that nothing prevents

a defendant from waiving his right under Apprendi v. New Jersey, 530 U.S. 466

(2000), and when "a defendant pleads guilty, the State is free to seek judicial

sentence enhancements so long as the defendant either stipulates to the relevant facts

or consents to judicial factfinding") (emphasis added); United States v. Mezzanatto,

513 U.S. 196, 201 (1995) ("A criminal defendant may knowingly and voluntarily

waive many of the most fundamental protections afforded by the

Constitution" citing numerous constitutional waiver cases); Singer v. United States,

380 U.S. 24. 34 (1965) (holding a defendant can waive his right to a jury trial and

employ a bench trial instead with the consent of the judge and the prosecutor). When

a capital defendant waives a penalty phase jury, he is consenting to judicial

factfinding regarding his sentence.

A defendant who waives a jury trial has waived his Sixth Amendment right to

a jury trial, which is the basis for Hurst v. Florida and Hurst IT in the first place. Cf

Shepard v. United States, 544 U.S. 13, 16 (2005) (noting that sentencing a defendant

based on facts that the defendant assented to during the plea colloquy does not

14

violate Apprendi).

2. Robinson knowingly, voluntarily, and intelligently waived a penalty

phase jury.

Despite his argument to the contrary, the Florida Supreme Court found

Robinson knowingly, voluntarily, and intelligently waived a penalty phase jury and

Florida’s own precedent precluded a grant of relief. Twilegar v. State, 228 So.3d 550

(Fla. 2017). See also Mullens v. State, 197 So. 3d 16, 38-40 (Fla. 2016), cert. denied,

137 S. Ct. 672 (2017). In 1995, Robinson pled guilty to the first-degree murder of

Jane Silvia. During the plea colloquy, Robinson specifically expressed his desire to

“seek the death penalty in this case” and defense counsel explained to the court that

Robinson did not want to present any mitigating evidence in his defense. Robinson

waived his right to a jury and the cause proceeded to sentencing. On April 12, 1995,

the trial court sentenced appellant to death. Robinson v. State, 761 So. 2d 269, 270

(Fla. 1999). The record reflects that Robinson's plea was only accepted after an

extensive inquiry. At the plea colloquy, the trial court asked Robinson whether he

intended to plead guilty to first-degree murder and informed Robinson that the only

possible sentences upon conviction for first-degree murder were death and life in

prison. The trial court then questioned Robinson extensively about his background

and the factual circumstances of the murder. Robinson explained to the trial court

that he would rather be punished by death than sentenced to life in prison. Further,

defense counsel notified the court that Robinson had been examined by medical

15

experts and it was their opinion that Robinson was competent to proceed. In addition,

both defense counsel and the State questioned Robinson to make sure that he

understood that defense counsel had investigated mitigating evidence and that

counsel was prepared to present such evidence on his behalf. Robinson stated that

he understood but that he did not want to present any mitigating evidence. Finally,

the state attorney told Robinson that he intended to seek the death penalty in this

case. The record thus indicates that Robinson voluntarily and intelligently waived

his right to a trial. Robinson v. State, 761 So. 2d 269, 274-75 (Fla. 1999).

3. The right announced in Hurst was not a new right that did not previously

exist.

Robinson’s cites to Halbert v. Michigan, 545 U.S. 605 (2005) in support of

his proposition that at the time he waived the penalty phase jury, he had no

recognized Sixth Amendment right to binding jury findings that he could elect to

forego. The decision in Halbert is inapplicable to his case. Halbert is

distinguishable because it involved the prohibition of the appointment of counsel to

indigent defendants who pleaded guilty or no contendere. This Court noted that

when Halbert entered his plea, he had no recognized right to appointed counsel that

he could elect to forgo. Jd. at 623. The waiver in Halbert was an implicit waiver of

appellate counsel that flowed from his plea rather than an explicit waiver to have a

jury participate in sentencing as is the case with Robinson, who emphatically did not

16

want a jury penalty phase. Furthermore, Halbert was not informed that his plea

would result in a complete denial of appointed appellate counsel whereas Robinson

was told by the trial court that his waiver would prevent him from appealing the

issue. Robinson was fully aware of what he was doing when he knowingly waived

the right to have a jury take part in any of the sentencing procedure. The Hurst

decision does not change the fact that Robinson did not want a jury present for the

penalty phase.

Moreover, as the dissent in Halbert points out, this Court’s cryptic statement

implying that rights that are “not recognized” cannot be waived “cannot possibly

mean that only rights that have been explicitly and uniformly recognized by statute

or case law may be waived.” Halbert, 545 U.S. at 640 (Thomas, J. dissenting).

Instead, defendants can and do waive rights whose existence is unsettled. Id.

Robinson’s argument is premised on the notion that the “right” announced in

Hurst is one that did not previously exist, as in Halbert. However, that is not the

case, because Robinson always possessed the right to have a jury render an advisory

recommendation as to what the appropriate sentence should be in his case. See §

921.141(2), Fla. Stat. (1980) (requiring the jury to render an advisory sentence based

upon whether sufficient aggravating circumstances exist to justify imposition of the

death penalty). Thus, the right announced in Hurst was not a new right that did not

previously exist. Instead, Hurst reflected a mere change in procedure, and held that

17

a defendant could not be sentenced to death based upon a judge’s factfinding alone.

See Hurst, 136 S. Ct. at 624 (holding Florida’s death sentencing scheme

unconstitutional, because it allowed the judge alone to find the existence of an

aggravating circumstance).

B. The Florida Supreme Court’s decision comports with this Court’s

precedents.

1. Robinson’s waiver is a sufficient bar to Hurst relief, regardless of any

future changes in the law, under both the Florida Supreme Court and

this Court’s precedent.

If this Court were to accept review, the resolution of the case would turn upon

whether the state court correctly interpreted the facts surrounding Robinson’s

waiver. In other words, this case is strongly fact-based and does not implicate any

broad questions of constitutional law that have not already been resolved long ago.

See, e.g., Blakely v. Washington, 542 U.S. 296, 309 (2004) (Sixth Amendment right

to jury fact finding is waivable). Indeed, the question raised by Robinson may only

be resolved by assessing the correctness of the trial court’s factual findings.

Accordingly, certiorari review is inappropriate here.

2. Subsequent developments in the law, that modify or expand an

established right, do not render prior waivers involuntary.

Even if for arguments sake, it was believed that Robinson acted only because

he did not know he was entitled to unanimity, this does not mandate a conclusion

that his waiver was invalid. Subsequent changes in the law do not render a prior

18

waiver invalid. As this Court has explained, a defendant who waives a proceeding

or right does so under the current law, and those waivers remain valid regardless of

later developments in the law.

A defendant who voluntarily waives his Sixth Amendment right to jury trial

is bound by his choice, even where his decision was made in reliance on a procedural

rule later found to be unconstitutional. In Brady v. United States, 397 U.S. 742

(1970) the defendant was charged under a federal law (18 U.S.C. § 1201(a)) that

authorized a death sentence if the jury recommended it. Because § 1201(a) gave the

judge no authority to impose death in the absence of a jury’s specific findings, it

naturally encouraged defendants to waive jury trial, and Brady did exactly that- he

waived his Sixth Amendment right to a jury and entered a plea. One year later, after

this Court struck down § 1201(a) as unconstitutional, Brady sought to withdraw his

plea and argued that his waiver could not have been voluntary under the

circumstances. This Court disagreed—the record showed that Brady might have had

other, unrelated reasons for entering a waiver, and Brady’s voluntary waiver of a

constitutional right was consistent with the law in effect at the time. Such a plea,

“does not become vulnerable because later judicial decisions indicate that the plea

rested on a faulty premise.” Jd. at 757.

Similarly, in McMann v. Richardson, 397 U.S. 759, 773-74 (1970), the

defendant argued that his plea was involuntary when a new decision regarding

19

coerced confessions was issued by this Court. This Court rejected the argument that

subsequent changes in the law rendered an earlier plea involuntary and explained

that when a defendant waives his right to a jury trial “he does so under the law then

existing.” Jd. at 774. This Court observed that, regardless of whether a defendant

might have “pleaded differently” had the later decided cases been the law at the time

of the plea, “he is bound by his plea.” Jd. This Court noted the damage that would

be wrought on the finality of pleas if courts permitted later changes in the law to be

a basis for claiming a plea was involuntary. Id. See also United States v. Ruiz, 536

U.S. 622, 630 (2002) (stating that “the Constitution, in respect to a defendant’s

awareness of relevant circumstances, does not require complete knowledge of the

relevant circumstances, but permits a court to accept a guilty plea, with its

accompanying waiver of various constitutional rights, despite various forms of

misapprehension under which a defendant might labor” including a defendant’s

failure “to anticipate a change in the law regarding relevant punishments”).

A defendant may not claim a waiver is “unknowing” based on future changes

in the law under the Florida Supreme Court’s precedent. Mullens, 197 So.3d at 16;

Rodgers v. State, 242 So.3d 276 (Fla. 2018) (holding that the Hurst decisions do not

apply to defendants, like Rodgers, who waive a penalty phase jury). This Court has

rejected it as well. McMann v. Richardson, 397 U.S. 759, 773-74 (1970). The

20

validity of a waiver is not dependent on subsequent changes in the law.*

Opposing counsel’s reliance on Class v. United States, 138 S. Ct. 798 (2018)

is also misplaced. This Court in Class held that a defendant’s negotiated guilty pleas

did not, by itself, bar a defendant from challenging the constitutionality of the statute

of conviction in the direct appeal. Class, 138 S. Ct. at 803. Class entered a written

negotiated plea that did not contain an appellate waiver provision. Jd. at 802, 807.

The issue in Class was what type of issues does a defendant implicitly waive on

appeal simply by pleading guilty. Jd at 805 (emphasis added). The Court concluded

that Class had neither expressly or implicitly waived his right to appeal his

constitutional claims. /d. at 807. But, here, Robinson explicitly waived the right to a

penalty phase jury after an on-the-record colloquy regarding that exact right. The

* The federal appellate courts naturally follow the logic of Richardson regarding

pleas. United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (stating the possibility

of a favorable change in the law occurring after a plea agreement is "one of the

normal risks that accompanies a guilty plea"); United States v. Lockett, 406 F.3d207,

214 (3rd Cir. 2005) (observing that "the possibility of a favorable change in the law

occurring after a plea agreement is merely one of the risks that accompanies a guilty

plea"); United States v. Cardenas, 230 Fed. Appx. 933, 935 (11th Cir. 2007)

(rejecting a claim that the plea was rendered involuntary due to this Court's later

decision in United States v. Booker, 543 U.S. 220 (2005), explaining that a guilty

plea is not invalidated by a later change in the law citing Brady). As the Seventh

Circuit explained, if the law allowed the defendant to get off scot free in the event

an argument later is shown to be a winner, then every plea would become a

conditional plea, with the (unstated) condition that the defendant obtains the benefit

of favorable legal developments, while the prosecutor is stuck with the original

bargain no matter what happens later. Young v. United States, 124 F.3d 794, 798 (7th

Cir. 1997).

21

waiver in this case was an explicit waiver of that particular right. Class does not

apply to cases involving explicit waivers of particular rights.

3. No conflict or unsettled question of federal law is presented in the

instant petition.

The waiver of the penalty phase jury remains valid in the wake of Hurst and

consequently, Robinson’s waiver was not rendered involuntary due to the

subsequent decision in Hurst. Here, Robinson waived the right to a sentencing jury

and requested that the trial judge decide the appropriate sentence in his case. Like

the situation in Mullens and Rodgers, Robinson should not be able to subvert the

right to jury factfinding by knowingly waiving that right and then, twenty-one years

later, complain that subsequent developments in the law have undermined his

sentence. Robinson’s explicit waiver of a penalty phase jury is a waiver of his pretrial Ring (and, by extension, Hurst) claim.

Robinson does not provide any compelling reason for this Court to review his

case. U.S. Sup. Ct. R. 10. Cases that do not divide the federal or state courts or that

do not present important, unsettled questions of federal law usually do not merit

certiorari review. Rockford Life Insurance Co. v. Illinois Dept. of Revenue, 482 U.S.

182, 184, n.3 (1987). He challenges only the application of this Court’s wellestablished principles to the Florida Supreme Court’s decision. As Robinson does

not demonstrate any compelling reasons for this Court to exercise its certiorari

jurisdiction under Rule 10, this Court should deny the petition.

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