Petition for Writ of Certiorari — Charles L. Trice, Petitioner v. Mark S. Inch, Secretary, Florida Department of Corrections, et al.

No.

INTHE

Supreme Court of the United States

OCTOBER TERM, 2018

CHARLES L. TRICE,

Petitioner,

v.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAM MALLORY KENT

Counsel for Petitioner Trice

Florida Bar No. 0260738

24 North Market Street, Suite 300

Jacksonville, Florida 32202

904-398-8000

904-348-3124 FAX

kent@williamkent.com Email

Question Presented

The Florida Post-conviction Court Unreasonably Applied Griffith

v. Kentucky, 479 U.S. 314,107 S. Ct. 708 (1987), in Determining That

Trice's Convictions Were Final When the Florida Supreme Court

Issued Weiand v. State, 732 So. 2d 1044 (Fla.1999), Thereby Failing

to Apply Weiand to Trice's Case, and the Eleventh Circuit has

Created a Conflict in the Circuits in Finding that the Florida

Supreme Court's Decision in Weiand Interpreting the Right to Selfdefense Did Not Apply a Constitutional Rule Because the Right to

Self-Defense is a Fundamental Constitutional Right.

2

List of Parties and Corporate Disclosure Statement

Charles L. Trice, Petitioner.

Secretary, Florida Department of Corrections, Respondent.

3

Table of Contents

Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

List of Parties and Corporate Disclosure Statement ........................ J,

Table of Contents ................................................... 1

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Q

Opinion below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.

Jurisdiction ....................................................... lQ

Constitutional Provisions, Statutes,

Treaties, Ordinances, and Regulations Involved. . . . . . . . . . . . . . . . . . . . . 1Q

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l!

I. State Trial Proceedings ............................................ l!

A. Murder and Trial Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l!

B. Castle Doctrine Jury Instruction .................................... li

C. Verdict and Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ll

D. Direct Appeal ................................................... ll

E. 1999 Weiand Modifies 1982 Bobbitt Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II. State Post-conviction Proceedings

Rule 3 .850 Motion and Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . !§

III. Federal Habeas Proceedings ....................................... 11

4

IV. Eleventh Circuit Decision ........................................ ll

Reasons for Granting the Writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

The Florida Post-conviction Court Unreasonably Applied Griffith v. Kentucky, 479

U.S. 314, 107 S. Ct. 708 (1987), in Determining That Trice's Convictions

Were Final When the Florida Supreme Court Issued Weiand v. State, 732 So.

2d 1044 (Fla. 1999), Thereby Failing to Apply Weiand to Trice's Case, and

the Eleventh Circuit has Created a Conflict in the Circuits in Finding that the

Florida Supreme Court's Decision in Weiand Interpreting the Right to Selfdefense Did Not Apply a Constitutional Rule Because the Right to SelfDefense is a Fundamental Constitutional Right. . . . . . . . . . . . . . . . . . . . . . 20

Unreasonable Application of Griffith v. Kentucky

Creating a Conflict in the Circuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Self-defense is a Fundamental Right Guaranteed by Due Process . . . . . . . . . . . . 21

Self-defense is a Component of the Right to Bear Arms

under the Second Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The Right to Self-defense is a Constitutional Right

Retained by the People Under the Ninth Amendment ................ 27

The Eleventh Circuit Erred in Failing to Vew Weiand as the Announcement

of a Constitutional Rule, which Under Griffith v. Kentucky

Trice was Entitled to Have Applied to His Pending Appeal ............ 29

If Not Plenary Review Then a GVR.................................... 30

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.l

5

Table of Citations

Cases

Alden v. Maine, 527 U.S. 706, 715, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Clemmons v. Delo, 177 F.3d 680,685 (8th Cir. 1999) .................. ll, 23

Collinsv. City ofHarker Heights, Texas,503 U.S.115, 125,112 S. Ct.1061, 117L.

Ed. 2d 261 ( 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008) ...... 25, 26

Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708 (1987) ......... 11, 11-20, 29

Martin v. Ohio, 480 U.S. 228, 233-234, 107 S. Ct. 1098 (1987) ............ 24

McDonald v. City of Chicago, 561 U.S. 742, 767, 130 S. Ct. 3020 (2010) ..... 26

Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013 (1996) ............... 23, 24

Moore v. City ofEast Cleveland, 431 U.S. 494, 503, 97 S. Ct. 193 2, 52 L. Ed. 2d 531

( 1977) ........................................................... 22

Mountain States legal Found. v.Hodel, 799F.2d 1423, 1428n.8(10thCir.1986)(en

bane) . ........................................................... 23

Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S. Ct. 149, 82 L. Ed. 288 (1937)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) .... 22

Sloan v. Gramley, 215 F.3d 1330 (7th Cir. 2000) ......................... 23

State v. Bobbitt, 415 So. 2d 724, 724-26 (Fla. 1982).................... .Ll., 14

6

State v. Buckner, 180 W. Va. 457,377 S.E.2d 139, 142-43, (W. Va. 1988) ..... 23

State v. Hull, 2014 Wash. App. LEXIS 3152 (Wash. Ct. App., Dec. 18, 2014) . . 29

State v. Workman, 35 W. Va. 367, 14 S.E. 9 (1891) ....................... 23

Taylor v. Withrow, 288 F.3d 846, 851 (6th Cir. 2002) ..................... 22

Town of Canton v. Madden, 120 Mo. App. 404, 96 S.W. 699, 700 (1906) ..... 27

Trice v. Florida, 527 U.S. 1043, 119 S. Ct. 2410 (1999) ................... 14

Trice v. Secretary, Florida Department of Corrections, et al., _Fed. Appx. _ ,

2019 U.S. App. LEXIS 7339, 2019 WL 1200050 (11th Cir. 2019) ............ 2

Trice v. State, 719 So. 2d 17 (Fla. Dist. Ct. App. 1998) . . . . . . . . . . . . . . . . . . . . 14

Trice v. State, 729 So. 2d 396 (Fla. 1999) (table) ......................... 14

Washington v. G/ucksberg, 521 U.S. 702, 117 S. Ct. 2258, 117 S. Ct. 2302 (1997)

................................................................. 22

Weiand v. State, 732 So. 2d 1044 (Fla. 1999) ................ 11., 14, 16-20, 29

Statutes

28 u.s.c. § 1254 .................................................. lQ

28 u.s.c. § 2254 ............................................... 11., 17

Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 ................. 23

Rules

Florida Rule of Criminal Procedure, Rule 3.850 .......................... 16

7

Constitutional Provisions

Due Process and Equal Protection Clauses of the Fourteenth Amendment .... 10,

21-23, 29

Ninth Amendment to the United States Constitution ............. 10, ll, 27, 29

Second Amendment of the United States Constitution ......... 10, .fl, 25, 27, 29

Other Authorities

1 William Blackstone, Commentaries *136, *139-40) ..................... 25

Declaration of Independence ......................................... 27

Eugene Gressman, et al., Supreme Court Practice 344-45 (9th ed. 2007) . . . . . . 30

Eugene Volokh, State Constitutional Rights ofSelf-Defense and Defense of Property,

11 Tex. Rev. L. & Pol. 399, at 401-07 (2007) ........................... 28

Nicholas J. Johnson, Self-Defense?, 2 J.L. Econ. & Pol'y 187, 195 (2006) ..... 29

8

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

CHARLES L. TRICE,

Petitioner

V.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For the Eleventh Circuit

Petition for a Writ of Certiorari

The Petitioner, CHARLES L. TRICE, respectfully prays that a writ ofcertiorari

be issued to review the decision of the United States Court of Appeals for the

Eleventh Circuit in this case.

Opinion below

The unreported opinion of the United States Court of Appeals for the Eleventh

Circuit, Trice v. Secretary, Florida Department of Corrections, et al. is found at

_Fed. Appx. _ , 2019 U.S. App. LEXIS 7339, 2019 WL 1200050 (11th Cir.

9

2019).

Jurisdiction

The United States Court of Appeals for the Eleventh Circuit rendered its

judgment on March 13, 2019. The jurisdiction of this Court is timely invoked under

28 u.s.c. § 1254.

Constitutional Provisions, Statutes,

Treaties, Ordinances, and Regulations Involved

The Due Process and Equal Protection Clauses of the Fourteenth Amendment

to the United States Constitution provide:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

The Second Amendment of the United States Constitution provides:

A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.

The Ninth Amendment to the United States Constitution provides:

The enumeration in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by the people.

10

Statement of the Case

Charles L. Trice ("Trice"), a Florida state prisoner, appealed the federal district

court's denial of his 28 U.S.C. § 2254 federal habeas corpus petition challenging his

Florida state convictions and life sentence for first-degree murder, violation of a

domestic violence injunction, and burglary with assault. The Eleventh Circuit Court

of Appeals granted a certificate of appealability ("COA") on one issue: whether the

state post-conviction court unreasonably applied Griffith v. Kentucky, 419 U.S. 314,

107 S. Ct. 708 (1987), in determining that Trice's convictions were final when the

Florida Supreme Court issued Weiand v. State, 732 So. 2d 1044 (Fla. 1999), and in

failing to apply Weiand to his case. The Eleventh Circuit affirmed the district court

in an unpublished opinion.

I. State Trial Proceedings

A. Murder and Trial Evidence

In 1994, a grand jury indicted Trice, who was a Florida Highway Patrol

Trooper, on charges of first-degree murder, violation of a domestic violence

injunction, and burglary with assault, all in connection with the killing of his

estranged wife, Darla Trice. At his jury trial, it was undisputed that Trice shot and

killed Darla with his .357 revolver at their marital residence. At trial, Trice testified,

however, that he shot Darla in self-defense after she unexpectedly stabbed him in the

11

chest with a knife and to prevent her from stabbing him again.

According to Trice's version of the events, after he told Darla that he was not

going to give her back the Corvette, she walked away. Trice then went into the office

closet to get some supplies for work. While looking in the closet, Trice heard

something behind him, turned around, and Darla stabbed him with a knife in the

chest. His legs got weak and he dropped to his knees on the closet floor. Darla was

standing at the edge of the doorway, yelling and screaming at him. Darla said that she

should have killed him a long time ago. Trice turned to stand up and saw his handgun

on the closet shelf. He grabbed the gun to scare Darla, but she came at him again, and

he had no choice but to shoot her.

B. Castle Doctrine Jury Instruction

Maintaining that he acted in self-defense, Trice persisted in his explanation

throughout the trial. As relevant to this appeal, Trice requested a jury instruction on

self-defense, including the following instruction, which is commonly referred to as

the "castle doctrine" or the privilege ofnon-retreat from the home. Under Florida law,

as an exception to the duty-to-retreat rule, the castle doctrine provides that a

defendant has no duty to retreat when attacked in his home:

If the defendant was attacked in his own home or on his own premises,

he had no duty to retreat and had the lawful right to stand his ground and

meet force with force, even to the extent of using force likely to cause

12

death or great bodily harm, if it was necessary to prevent death or great

bodily harm to himself.

Although Trice was not residing in the marital home at the time, he contended

that he had a superior legal right to his office, where the shooting occurred, and thus

the instruction was proper.

The state trial court refused to give the castle doctrine instruction because both

Trice and Darla had the legal right to occupy the office at the time of the shooting. In

so ruling, the state trial court relied on State v. Bobbitt, 415 So. 2d 724, 724-26 (Fla.

1982), in which the Florida Supreme Court held that when an assailant and the victim

are legal occupants of the same home and neither has the legal right to eject the other,

the "castle doctrine" does not apply.

C. Verdict and Sentence

On June 27, 1995, after hearing testimony from more than 40 witnesses over

the course of six days, the jury found Trice guilty on all counts. The state trial court

sentenced Trice to life imprisonment for first-degree murder, time served for violating

the domestic violence injunction, and a consecutive life sentence for burglary with

assault.

D. Direct Appeal

On direct appeal, Trice raised several issues of trial error, but did not challenge

13

the state trial court's exclusion of the castle doctrine instruction. The Florida Second

District Court ofAppeal ("Second DCA") affirmed Trice's convictions and sentences

and the Florida Supreme Court denied review. See Trice v. State, 719 So. 2d 17 (Fla.

Dist. Ct. App. 1998); Trice v. State, 729 So. 2d 396 (Fla. 1999) (table). Trice's

petition for a writ of certiorari with the U.S. Supreme Court was denied on June 24,

1999. Trice v. Florida, 527 U.S. 1043, 119 S. Ct. 2410 (1999).

E. 1999 Weiand Modifies 1982 Bobbitt Rule

Meanwhile, on March 11, 1999, the Florida Supreme Court issued its decision

in Weiand v. State, which resulted in a substantive change in Florida law regarding

the castle doctrine. 732 So. 2d I 044 (Fla. 1999). In Weiand, the Florida Supreme

Court considered whether the privilege of non-retreat from the home should apply

where a defendant wife killed her co-occupant husband in self-defense, after being

physically abused and threatened by him. Id. at 1048. There, the evidence showed that

the wife suffered from "battered woman's syndrome" and shot her husband during a

violent argument, despite having apparent opportunities to leave their apartment that

night instead. Id. at 1048.

Expressly reconsidering its contrary rule in Bobbitt, the Florida Supreme Court

held that "there is no duty to retreat from the residence before resorting to deadly

force against a co-occupant or invitee if necessary to prevent death or great bodily

14

harm, although there is a limited duty to retreat within the residence to the extent

reasonably possible." Id. at 1051-58. The Florida Supreme Court noted that imposing

a duty to retreat from the home may adversely impact victims of domestic violence,

and its decision was an evolution of the common law consistent with the evolution

of Florida's public policy. Id. at I 053-55.

In its decision, the Florida Supreme Court also adopted an interim standard jury

instruction for its new rule:

If the defendant was attacked in [his/her] own home, or on [his/her] own

premises, by a co-occupant [or any other person lawfully on the

premises] [he/she] had a duty to retreat to the extent reasonably possible

without increasing [his/her] own danger of death or great bodily harm.

However, the defendant was not required to flee [his/her] home and had

the lawful right to stand [his/her] ground and meet force with force even

to the extent of using force likely to cause death or great bodily harm if

it was necessary to prevent death or great bodily harm to

[himself/herself].

Id. at 1057. It explained that where the non-retreat instruction is applicable, the trial

court's jury instructions are incomplete and misleading if the new instruction is not

given. Id. at 1056. Lastly, the Florida Supreme Court directed that its opinion and jury

instruction was applicable to all future cases and all cases that were then pending on

direct review or not yet final, but was not retroactively applicable to convictions that

already were final. Id.

15

II. State Post-conviction Proceedings

Rule 3.8SO Motion and Appeal

In 2001, Trice filed a motion for post-conviction relief under Florida Rule of

Criminal Procedure 3.850. Among other things, Trice argued that after the date ofhis

verdict, the Florida Supreme Court revised the castle doctrine in Weiand, such that

he had no duty to retreat after being stabbed by co-occupant Darla. Trice contended

that the trial court's jury instruction was thus erroneous under the current state of the

law, which deprived him of federal due process under the Constitution. The state

post-conviction court summarily denied this claim, concluding that Trice was not

entitled to relief under Weiand because his case already was final when the Florida

Supreme Court issued that decision.

Trice appealed, arguing that his case was not final when Weiand was issued.

Rather, his conviction became final only on June 24, 1999, when the U.S. Supreme

Court denied his petition for a writ of certiorari, and was therefore still pending on

March 11, 1999, when the Florida Supreme Court decided Weiand. Accordingly,

Trice contended that the rule announced in Weiand, that he had no duty to retreat,

applied to him and he should be retried with the appropriate jury instructions.

In response, the state conceded Trice's convictions were not final prior to the

issuance of Weiand. However, it argued that Trice was not entitled to benefit from the

16

modified jury instruction proposed by Weiand because the issue was not preserved

by a contemporaneous objection at trial, and Trice's trial counsel could not be

ineffective for failing to anticipate a change in the law. The Second DCA affirmed

without a written opinion and denied rehearing.

III. Federal Habeas Proceedings

Thereafter, in June 2011, Trice filed a counseled § 2254 petition raising several

claims, including that the state post-conviction court improperly denied his request

to apply Weiand to his case because it erroneously concluded that his case was final

when the decision issued. Trice maintained that the substantial change in Florida law

regarding the duty to retreat should apply to his case. As such, Trice argued that the

state court's denial of this claim violated his federal due process and equal protection

rights and was contrary to well-established federal law as determined by the U.S.

Supreme Court. As to the latter point, Trice contended that the state court's denial of

this claim was contrary to Griffith v. Kentucky, 479 U.S. at 322-23, 328, 107 S. Ct.

at 713, 716, in which the Supreme Court held that newly declared constitutional rules

of criminal procedure must apply retroactively to all criminal cases pending on direct

review in state or federal courts.

The district court denied Trice's§ 2254 petition. In relevant part, the district

court concluded that, although Trice's case was not final when Weiand was issued,

17

Weiand's privilege of non-retreat was inapplicable to him because he was no longer

a co-occupant of the residence with Darla at the time of the shooting. Rather, Trice

had been barred from the home by a domestic violence injunction that prohibited him

from entering the residence, except through the exterior door into the office. Because,

as the jury found, Trice violated the domestic violence injunction when he entered the

house, the district court concluded that Trice was a trespasser in the residence, not a

co-occupant. The district court concluded, therefore, that any reliance on Weiand by

Trice as a co-occupant would necessarily fail. Finally, the district court noted that

because Trice neither objected based on Weiand at trial, nor raised the issue on direct

appeal, he could not benefit from the change in law.

Trice appealed. The Eleventh Circuit granted a COA as to whether the state

post-conviction court unreasonably applied Griffith v. Kentucky in determining that

Trice's case was final when the Florida Supreme Court issued Weiand and in failing

to apply Weiand to his case.

IV. Eleventh Circuit Decision

The Eleventh Circuit reasoned that in Griffith, the Supreme Court announced

that "a new rule for the conduct of criminal prosecutions is to be applied retroactively

to all cases, state or federal, pending on direct review or not yet final." Griffith, 479

U.S. at 328, 107 S. Ct. at 708. The Eleventh Circuit concluded that a reading of that

18

sentence alone would seem to indicate that Trice does have a claim for federal habeas

relief. However, the Eleventh Circuit found that there is an explicit limitation to

Griffith's holding-it only applies to new federal constitutional rules. The Eleventh

Circuit concluded that this Court ultimately held that the "failure to apply a newly

declared constitutional rule to criminal cases pending on direct review violates basic

norms of constitutional adjudication." Id. at 322, I 07 S. Ct. at 713 (emphasis added

by Eleventh Circuit).

We therefore conclude that, while Griffith requires retroactive

application of new constitutional rules of criminal procedure to cases

pending on direct appeal, it does not require retroactive application of

new state substantive law to non-final state convictions. See id. And in

Weiand, the Florida Supreme Court only announced a change in state

criminal law-broadening the castle doctrine defense under Florida law.

Weiand, 732 So. 2d at 1048. Because Griffith does not extend to such

state law changes, the case has no application here.

Slip opinion at p. 18.

19

Reasons for Granting the Writ

The Florida Post-conviction Court Unreasonably Applied Griffith

v. Kentucky, 479 U.S. 314, 107 S. Ct. 708 (1987), in Determining That

Trice's Convictions Were Final When the Florida Supreme Court

Issued Weiand v. State, 732 So. 2d 1044 (Fla. 1999), Thereby Failing

to Apply Weiand to Trice's Case, and the Eleventh Circuit has

Created a Conflict in the Circuits in Finding that the Florida

Supreme Court's Decision in Weiand Interpreting the Right to Selfdefense Did Not Apply a Constitutional Rule Because the Right to

Self-Defense is a Fundamental Constitutional Right.

Unreasonable Application of Griffith v. Kentucky

Creating a Conflict in the Circuits

The Eleventh Circuit refused to find that Griffith v. Kentucky required the

Florida post-conviction court to grant Trice the benefit of the Weiand decision,

because the Eleventh Circuit found that Weiand did not involve the application of a

constitutional rule ofprocedure, and Griffith only applies to constitutional rules. The

Eleventh Circuit failed to see that the application of the right of self-defense, which

Weiand announced, is a constitutional rule, because self-defense is a fundamental

constitutional right. Therefore the application of that right in Weiand was the

application of a constitutional rule to which Trice was entitled under Griffith v.

Kentucky, and the State post-conviction court's determination that Griffith v.

Kentucky did not entitle Trice to the benefit of the Weiand decision, was contrary to

clearly established Federal law, as determined by this Court, and involved an

20

unreasonable application of clearly established Federal law, as determined by this

Court.

The right of self-defense is one of the most fundamental constitutional rights

protected by the Due Process clause of the Fourteenth Amendment, by the Ninth

Amendment's reservation of unenumerated rights and implicit in the Second

Amendment's protection of the right to bear arms.

In concluding that the Weiand self-defense decision did not announce a

constitutional rule, the Eleventh Circuit created an implicit conflict in the circuits,

because three other circuits have held that the right to self-defense is a constitutional

right guaranteed by due process. See Taylor v. Withrow, 288 F.3d 846, 851 (6th Cir.

2002), Sloan v. Gramley, 215 F.3d 1330 (7th Cir. 2000), and Clemmons v. Delo, 177

F.3d 680, 685 (8th Cir. 1999).

Self-defense is a Fundamental Right Guaranteed by Due Process

The Due Process clause of the Fourteenth Amendment provides:

... nor shall any State deprive any person of life, liberty, or property,

without due process of law.

This Court has said of the Due Process clause of the Fourteenth Amendment:

[T]the Due Process Clause guarantees more than fair process, and the

'liberty' it protects includes more than the absence of physical restraint.

The Clause also provides heightened protection against governmental

21

interference with certain fundamental rights and liberty interests.

Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 117 S. Ct. 2302 ( 1997)

(citations omitted).

In Glucksberg, the Court described the two primary features of

substantive-due-process analysis:

First, we have regularly observed that the Due Process Clause

specially protects those fundamental rights and liberties which are,

objectively, "deeply rooted in this Nation's history and tradition," and

"implicit in the concept of ordered liberty," such that "neither liberty nor

justice would exist if they were sacrificed." Second, we have required

in substantive-due-process cases a "careful description" of the asserted

fundamental liberty interest. Our Nation's history, legal traditions, and

practices thus provide the crucial "guideposts for responsible

decisionmaking," that direct and restrain our exposition of the Due

Process Clause.

Id. at 720-21 (citations omitted) (quoting Moore v. City ofEast Cleveland, 431 U.S.

494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977) (plurality opinion); Palko v.

Connecticut, 302 U.S. 319,325,326, 58 S. Ct. 149, 82 L. Ed. 288 (1937); Reno v.

Flores, 507 U.S. 292,302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993); Collins v. City

of Harker Heights, Texas, 503 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261

(1992)).

Several Circuits have found the right to self-defense to be guaranteed by due

process. In Taylor v. Withrow, 288 F.3d 846, 851 (6th Cir. 2002), the Sixth Circuit

22

Court of Appeals held that "the right of a defendant in a criminal trial to assert

self-defense is [a] fundamental right[ ], and [the] failure to instruct a jury on

self-defense when the instruction has been requested and there is sufficient evidence

to support such a charge violates a criminal defendant's rights under the due process

clause." It noted that "[o ]ther Courts of Appeals have already reached the same

conclusion." Id. at 852 (citing Sloan v. Gramley, 215 F.3d 1330 (7th Cir. 2000);

Clemmons v. Delo, 177 F.3d 680,685 (8th Cir. 1999)). 1

The same result was reached in a very early West Virginia case, State v.

Workman, 35 W. Va. 367, 14 S.E. 9 (1891), adhered to in State v. Buckner, 180 W.

Va. 457, 377 S.E.2d 139, 142-43, (W. Va. 1988). Workman found that a

constitutional right to self-defense was guaranteed by both the Due Process clause of

the Fourteenth Amendment to the United States Constitution and article III, section

lofthe West Virginia Constitution.

Finally, the four-member plurality in Montana v. Egelhoff, 518 U.S. 37, 116 S.

Ct. 2013 (1996), authored by Justice Scalia, suggested that a right to self-defense is

fundamental. Egelhoff reversed the Montana Supreme Court, which had held that

The 10th Circuit in Mountain States Legal Found. v. Hodel, 799 F.2d 1423,

1428 n.8 (10th Cir. 1986) (en bane), observed that the Endangered Species Act

("ESA"), 16 U.S.C. §§ 1531-1544, and regulations under the act, include an

exemption for personal self-defense.

1

23

instructing a jury that it could not consider a defendant's intoxicated condition in

determining his mental state violated the defendant's right to due process, relying in

part on Martin v. Ohio, 480 U.S. 228, 233-234, 107 S. Ct. 1098 (1987). In Martin v.

Ohio this Court had suggested it would be problematic if a jury weighing the State's

proof in a murder case was instructed that self-defense evidence could not be

considered:

It would be quite different if the jury had been instructed that

self-defense evidence could not be considered in determining whether

there was a reasonable doubt about the State's case, i. e., that

self-defense evidence must be put aside for all purposes unless it

satisfied the preponderance standard. Such an instruction would relieve

the State of its burden and plainly run afoul of [In re] Winship's

mandate. The instructions in this case ... are adequate to convey to the

jury that all of the evidence, including the evidence going to

self-defense, must be considered in deciding whether there was a

reasonable doubt about the sufficiency of the State's proof of the

elements of the crime.

In explaining why the Montana court placed unwarranted reliance on that

passage from Martin, Justice Scalia observed:

This passage [from Martin] can be explained in various ways-e.g., as

an assertion that the right to have a jury consider self-defense evidence

(unlike the right to have a jury consider evidence of voluntary

intoxication) is fundamental, a proposition that the historical record

may support.

Egelhoff, 518 U.S. at 56 (emphasis added).

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Self-defense is a Component of the Right to Bear Arms

under the Second Amendment

In District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008), this

Court decided for the first time that the Second Amendment to the United States

Constitution protects an individual right to keep and bear arms. Justice Scalia's

opinion for the majority set forth a detailed historical argument that concern for the

right to individual self-defense was the most important and longstanding basis on

which the right to bear arms was regarded as fundamental. He cited Blackstone,

among many others:

By the time of the founding, the right to have arms had become

fundamental for English subjects. Blackstone, whose works, we have

said "constituted the preeminent authority on English law for the

founding generation," cited the arms provision of the Bill of Rights as

one of the fundamental rights of Englishmen. His description of it

cannot possibly be thought to tie it to militia or military service. It was,

he said, "the natural right ofresistance and self-preservation," and "the

right of having and using arms for self-preservation and defence."

554 U.S. at 593-94 (emphasis added) (citations omitted) (quoting Alden v. Maine, 521

U.S. 706, 715, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999); 1 William Blackstone,

Commentaries *136, * 139-40). The opinion explained why the absence of a textual

reference to self-defense in the Second Amendment was unimportant:

The debate with respect to the right to keep and bear arms, as with other

guarantees in the Bill of Rights, was not over whether it was desirable

(all agreed that it was) but over whether it needed to be codified in the

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Constitution. During the 1788 ratification debates, the fear that the

federal government would disarm the people in order to impose rule

through a standing army or select militia was pervasive in Anti federalist

rhetoric .

... It is therefore entirely sensible that the Second Amendment's

prefatory clause announces the purpose for which the right was codified:

to prevent elimination of the militia. The prefatory clause does not

suggest that preserving the militia was the only reason Americans

valued the ancient right; most undoubtedly thought it even more

important for self-defense and hunting. But the threat that the new

Federal Government would destroy the citizens' militia by taking away

their arms was the reason that right-unlike some other English

rights-was codified in a written Constitution.

Id. at 598-99 (emphasis added). The majority opinion also observed that the fact that

seven of nine state constitutional protections for the right to bear arms enacted

immediately after 1789, unequivocally protected an individual citizen's right to

self-defense was "strong evidence that that is how the founding generation conceived

of the right." Id. at 603.

In McDonald v. City of Chicago, 561 U.S. 742, 767, 130 S. Ct. 3020 (2010),

the Court held that the Second Amendment right applies to the States by virtue of the

Fourteenth Amendment. It reiterated that "[s]elf-defense is a basic right, recognized

by many legal systems from ancient times to the present day, and the Heller Court

held that individual self-defense is 'the central component' of the Second Amendment

right." Id. at 744 (quoting Heller, 554 U.S. at 599).

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Others have read constitutional guarantees of a right to bear arms as implicitly

guaranteeing a right to self-defense, however. As observed in Town of Canton v.

Madden, 120 Mo. App. 404, 96 S.W. 699, 700 (1906):

[I]fthe citizen has reserved to himself the right to bear arms in defense

of his home, person or property, he also has reserved the right to

effectuate that privilege by employing such arms under the established

limitations ofthe law, when a proper occasion presents itself and renders

such employment imperative in order to give life and vigor to this

natural right, for the right to bear arms in defense of one's property, his

home or his person, would amount to naught if the right to use such

arms, under proper circumstances, were denied.

The Second Amendment implicitly guarantees a right to self-defense and must

be read as establishing that self defense is an unenumerated right retained by the

people under the Ninth Amendment.

The Right to Self-defense is a Constitutional Right

Retained by the People Under the Ninth Amendment

The Declaration of Independence began with the famous words "We hold

these truths to be self-evident, that all men are created equal, that they are endowed

by their Creator with certain unalienable Rights, that among these are Life, Liberty

and the pursuit of Happiness. "

The defense of liberty is inherent in this basic right and is protected by the

Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be

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construed to deny or disparage others retained by the people.

The historical record establishes that the right of self-defense was understood

by the founding fathers to be a natural right. Samuel Adams began The Rights of the

Colonists: The Report of Correspondence to the Boston Town Meeting, Nov. 20,

I 772, with a list of natural rights which were self-evidently true:

Among the natural rights of the Colonists are these: First, a right to life;

Secondly, to liberty; Thirdly, to property; together with the right to

support and defend them in the best manner they can. These are evident

branches of, rather than deductions from, the duty of self-preservation,

commonly called the first law of nature.

Id. at 407).

Professor Eugene Volokh in State Constitutional Rights of Self-Defense and

Defense of Property, 11 Tex. Rev. L. & Pol. 399, at401-07 (2007) (reproducing state

constitutional protections), found that twenty-one states chose to expressly identify

the right to defend life and liberty, and to protect property, as a natural or inalienable

right and included them as such in their state constitutions. 2

One recent scholar has characterized self-defense as something that "ought to

be one of the first things protected under the Ninth Amendment [to the U.S.

Professor Volokh also cites writings of Blackstone, George Tucker (a leading

early American commentator), and Thomas Cooley (a constitutional law commentator

of the late 1800s) that characterize the right to self-defense as a natural right. Id. at

416.

2

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Constitution]," Nicholas J. Johnson, Self-Defense?, 2 J.L. Econ. & Pol'y 187, 195

(2006).

Justice Scalia in Heller outlined the historical record for the right to bear arms

and that record which was the basis for the Heller decision itself established the

historical record in support of the natural right to self-defense. It follows from the

historical evidence that the fundamental right to self-defense is a right retained under

the Ninth Amendment as a right not expressly enumerated in the Constitution. 3

The Eleventh Circuit Erred in Failing to Vew Weiand as the Announcement

of a Constitutional Rule, which Under Griffith v. Kentucky

Trice was Entitled to Have Applied to His Pending Appeal

Under any of these three possible sources of the constitutional right-the Due

Process clause, the Second Amendment or the Ninth Amendment - it is clear that the

right to individual self-defense enjoys constitutional protection. Therefore the

Florida Supreme Court's announcement of the rule in Weiand was the application of

a constitutional right. Therefore, under Griffith v. Kentucky Trice was entitled to the

application of Weiand to his case which was not yet final on direct review at the time

Weiand was announced.

The arguments presented in this petition have been freely adapted from State

v. Hull, 2014 Wash. App. LEXIS 3152 (Wash. Ct. App., Dec. 18, 2014).

3

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If Not Plenary Review Then a GVR

If this Court does not find Trice's case appropriate for plenary review, then

Trice respectfully requests the Court consider a summary reversal. A summary

reversal has been described as the "kind of reversal order [that] usually reflects the

feeling of a majority of the Court that the lower court result is so clearly erroneous,

particularly ifthere is a controlling Supreme Court precedent to the contrary, that full

briefing and argument would be a waste of time." Eugene Gressman, et al., Supreme

Court Practice 344-45 (9th ed. 2007) The Eleventh Circuit's decision that Weiand did

not apply a constitutional rule was manifestly wrong. Therefore, as an alternative to

plenary review, Trice would request the Court consider granting certiorari, vacating

the decision of the Eleventh Circuit and remanding the case for further consideration

in light of Heller and the Circuit cases with which the Eleventh Circuit is in implicit

conflict.

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Conclusion

Petitioner-Appellant Charles L. Trice respectfully requests this honorable Court

grant this petition and vacate the judgment of the Eleventh Circuit Court of Appeals.

Respectfully submitted,

KENT & McFARLAND

ATTORNEYS AT LAW

s/ William Mallory Kent

William Mallory Kent

Florida Bar No. 0260738

24 North Market Street, Suite 300

Jacksonville, Florida 32202

(904) 398-8000, (904) 348-3124 FAX

kent@williamkent.com

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