Opposition Brief — Charles Grover Brant, Petitioner v. Florida

No. 19-8845

In the

Supreme Court of the United States

_______________

CHARLES GROVER BRANT,

v.

STATE OF FLORIDA,

_______________

Petitioner,

Respondent.

On Petition For A Writ Of Certiorari To The

Florida Supreme Court

_______________

BRIEF IN OPPOSITION

_______________

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

amit.agarwal@

myfloridalegal.com

ASHLEY MOODY

Attorney General of

Florida

AMIT AGARWAL

Solicitor General

* Counsel of Record

JEFFREY PAUL DESOUSA

Deputy Solicitor General

Counsel for Respondent

i

CAPITAL CASE

__________

QUESTION PRESENTED

Florida law bars a prisoner from relitigating an

issue that was decided in one of his prior state

postconviction cases. In Petitioner’s first state

postconviction case, he argued that his waiver of a

penalty-phase jury does not preclude him from

obtaining relief under Hurst v. Florida, 136 S. Ct. 616

(2016). But the Florida Supreme Court found the

waiver dispositive and denied relief. In this successive

state postconviction case, Petitioner again seeks

Hurst relief, but the Florida Supreme Court held that

his claim is procedurally barred.

The question presented is:

Whether the Florida Supreme Court erred in

concluding that Petitioner’s request for Hurst relief is

barred under state law.

ii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

TABLE OF AUTHORITIES ...................................... iii

STATEMENT ..............................................................1

REASONS FOR DENYING THE PETITION ..........12

I.

This Court lacks jurisdiction because the

decision below rests on an independent and

adequate state ground ....................................12

II. This case presents no question that

warrants review ..............................................13

A. The question whether Petitioner’s

waiver of a penalty-phase jury is valid

as to Hurst is not before the Court ........... 13

B. In any event, the waiver question is not

certworthy .......................................................... 15

III. Petitioner is not entitled to Hurst relief .........19

CONCLUSION ..........................................................22

iii

TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) ..................................................2

Asay v. State,

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

Brady v. United States,

397 U.S. 742 (1970) ................................................16

Brant v. State,

197 So. 3d 1051 (Fla. 2016) ........................... passim

Brant v. State,

21 So. 3d 1276 (Fla. 2009) ............................. passim

Brant v. State,

284 So. 3d 398 (Fla. 2019) ......................... 10, 11, 13

Coleman v. Thompson,

501 U.S. 722 (1991) ................................................12

Covington v. State,

228 So. 3d 49 (Fla. 2017) .......................................19

Durley v. Mayo,

351 U.S. 277 (1956) ................................................13

Halbert v. Michigan,

545 U.S. 605 (2005) .............................. 15, 17, 18, 19

iv

Hildwin v. Florida,

490 U.S. 638 (1989) ..................................................1

Hurst v. Florida,

136 S. Ct. 616 (2016)...................................... 1, 2, 21

Hurst v. State,

202 So. 3d 40 (Fla. 2016) .......................................10

Hutchinson v. State,

243 So. 3d 880 (Fla. 2018) ............................... 10, 19

Iowa v. Tovar,

541 U.S. 77 (2004) ..................................................18

Knight v. Fla. Dep’t of Corr.,

936 F.3d 1322 (11th Cir. 2019)..............................14

McKinney v. Arizona,

140 S. Ct. 702 (2020).............................. 3, 13, 19, 21

McMann v. Richardson,

397 U.S. 759 (1970) ................................................16

Moran v. Burbine,

475 U.S. 412 (1986) ................................................20

Mosley v. State,

209 So. 3d 1248 (Fla. 2016) ..................... 3, 9, 13, 21

Mullens v. State,

197 So. 3d 16 (Fla. 2016) ............................. 3, 10, 20

v

Owen v. State,

___ So. 3d ___, 2020 WL 3456746 (Fla. June 25,

2020) .......................................................................14

Proffitt v. Florida,

428 U.S. 242 (1976) ..................................................1

Quince v. State,

233 So. 3d 1017 (Fla. 2018) ...................................19

Ring v. Arizona,

536 U.S. 584 (2002) ..................................................2

Rodgers v. State,

242 So. 3d 276 (Fla. 2018) .....................................19

Schriro v. Summerlin,

542 U.S. 348 (2004) ..................................................3

Sochor v. Florida,

504 U.S. 527 (1992) ............................................ 1, 12

Spaziano v. Florida,

468 U.S. 447 (1984) ..................................................1

State v. McBride,

848 So. 2d 287 (Fla. 2003) .....................................11

State v. Poole,

297 So. 3d 487, 2020 WL 3116597 (Fla. 2020)......15

Teague v. Lane,

489 U.S. 288 (1989) ..................................................3

vi

Twilegar v. State,

228 So. 3d 550 (Fla. 2017) .....................................19

United States v. Ruiz,

536 U.S. 622 (2002) ................................................16

Statutes

28 U.S.C. § 1257 ........................................................14

Rules

Sup. Ct. R. 10 .............................................................15

1

STATEMENT

1. When Petitioner Charles Brant was sentenced

to death in 2007, a defendant convicted of a capital

crime in Florida could be sentenced to death only if

the trial court found at least one statutorily

enumerated

aggravating

circumstance

and

determined that the defendant’s aggravating

circumstances

outweighed

his

mitigating

circumstances. See Spaziano v. Florida, 468 U.S. 447,

451-52 & n.4 (1984), overruled by Hurst v. Florida, 136

S. Ct. 616 (2016). A sentencing jury would render an

advisory verdict—which the trial court would “accord

deference”—but the court would make the ultimate

sentencing determination. See Sochor v. Florida, 504

U.S. 527, 533 (1992) (“[Under Florida’s regime,] the

trial judge does not render wholly independent

judgment, but must accord deference to the jury’s

recommendation.”); Spaziano, 468 U.S. at 451-52.

This Court upheld that regime as constitutional

multiple times, including under the Sixth

Amendment. See Hildwin v. Florida, 490 U.S. 638,

640-41 (1989). Florida’s hybrid regime, the Court

concluded, was not just constitutionally sound—it

afforded capital defendants the benefits flowing from

jury involvement while still retaining the protections

associated with judicial sentencing. See, e.g., Proffitt

v. Florida, 428 U.S. 242, 252 (1976) (plurality op.)

(“[I]t would appear that judicial sentencing should

lead, if anything, to even greater consistency in the

imposition . . . of capital punishment, since a trial

judge is more experienced in sentencing than a jury,

2

and therefore is better able to impose a sentence

similar to those imposed in analogous cases.”).

Later, in Apprendi v. New Jersey, this Court held

that, “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt,” even if

a state characterizes the facts as “sentencing factors.”

530 U.S. 466, 490-91 (2000) (quotation marks

omitted). Ring v. Arizona extended Apprendi to

findings on the “aggravating factors” necessary to

impose a death sentence under Arizona’s capital

sentencing scheme, holding that “the Sixth

Amendment requires that [the factors] be found by a

jury” because they “operate as ‘the functional

equivalent of an element of a greater offense.’” 536

U.S. 584, 609 (2002) (quoting Apprendi, 530 U.S. at

494 n.19).

Neither Apprendi nor Ring overruled Hildwin, but

in 2016, this Court granted certiorari in Hurst “to

resolve whether Florida’s capital sentencing scheme

violate[d] the Sixth Amendment in light of Ring.” 136

S. Ct. at 621. The Court answered that question

affirmatively, concluding that the scheme was

unconstitutional because it did not require a jury to

find a defendant’s aggravating circumstances. Id. at

621-22. The Court therefore overruled its pre-Ring

decisions upholding Florida’s scheme “to the extent

they allow[ed] a sentencing judge to find an

aggravating circumstance . . . that is necessary for

imposition of the death penalty.” Id. at 624.

3

2. In the years since Ring and Hurst, this Court

has held that neither decision applies retroactively.

McKinney v. Arizona, 140 S. Ct. 702, 708 (2020) (“Ring

and Hurst do not apply retroactively on collateral

review.”); Schriro v. Summerlin, 542 U.S. 348, 358

(2004).

Under Florida law, however, Hurst applies

retroactively in some cases because Florida’s

retroactivity test uses “completely different factors”

than the federal retroactivity test—the “much

narrower Teague [v. Lane, 489 U.S. 288 (1989)] test.”

See Asay v. State, 210 So. 3d 1, 15 (Fla. 2016). In

Mosley v. State, the Florida Supreme Court held that

under Florida’s test, Hurst should generally apply to

prisoners whose sentences became final after Ring.

See 209 So. 3d 1248, 1274 (Fla. 2016). “Applying Hurst

retroactively” to those prisoners, the court concluded,

“supports basic tenets of fundamental fairness,” and

“it is fundamental fairness that underlies” Florida’s

test. Id. at 1283.

Yet Hurst does not apply to all such prisoners

under Florida law; the Florida Supreme Court held in

Mullens v. State that Hurst does not apply to prisoners

who waived their right to a penalty-phase jury. See

197 So. 3d 16, 39-40 (Fla. 2016).

3. Petitioner’s death sentence became final in

2009, before Hurst but after Ring. See Brant v. State,

21 So. 3d 1276, 1277 (Fla. 2009). At his trial, he

waived his right to a penalty-phase jury. Id.

4

In 2004, Petitioner raped and strangled his

neighbor, Sara Radfar. Id.; Sentencing Order at 5-6

(included in App. G as Ex. 2). He went to her home

and asked her if he could take pictures of her tile floor

for his portfolio (he had installed the floor). Brant, 21

So. 3d at 1278. After she let him in, he grabbed her,

dragged her into a bedroom, and raped her while she

screamed for help. See id.; Sentencing Order at 5, 2627. He stuffed a sock in her mouth to silence her and

then choked and suffocated her. Brant, 21 So. 3d at

1278. When Petitioner thought she was dead, he

looked around her house. Id. Radfar regained

consciousness at some point and ran to the front door,

but Petitioner dragged her back into the bedroom and

again choked and suffocated her. Id. She kept

breathing, though, so Petitioner took her to the

bathroom and threw her in the tub, where he

strangled her with a stocking, a dog leash, and an

electrical cord. Id. Afterward, he left her dead body in

the tub, cleaned up her home, changed his clothes, and

then drove her car around. See id.

Petitioner eventually confessed to police and

pleaded guilty to first-degree murder, sexual battery,

kidnapping, grand theft of a motor vehicle, and

burglary with assault or battery. Id. at 1277; Brant v.

State, 197 So. 3d 1051, 1057 (Fla. 2016). By pleading

guilty, he bypassed a guilt-phase proceeding, which

would have scrutinized the details of his crimes. See

Brant, 21 So. 3d at 1277.

At the start of his penalty phase, Petitioner

wanted to proceed before a jury, so the parties

5

conducted jury selection. Tr. 1652. 1 On the second day

of selection, a few jurors commented on Petitioner’s

guilt and the heinousness of his crimes; others noted

that they agreed with the comments; and one

remarked that he would “put [Petitioner] to death,”

which elicited laughter from several other jurors. Id.

at 1803, 1816-17, 1830-32, 1952, 1954. At that point,

Petitioner indicated that he was unsure whether he

still wanted a jury trial, and he asked the court to give

him a day to decide whether “to go jury or nonjury.”

Id. at 1954-62. In the meantime, Petitioner asked the

court to strike the jury panel, which it did. Id. at 1965.

The next day, Petitioner told the court that he no

longer wanted a jury trial. See App. E at 2. He wanted

to waive his right to a jury and instead have the court

make all sentencing determinations. Id.

Before accepting the waiver, the court engaged in

a lengthy colloquy with Petitioner:

Court

[A]s you know, you pled guilty to these various

offenses. And as you saw in the last two days the

[next step is] to seat a jury of 12 people to hear

evidence in aggravation . . . and evidence in

mitigation.

And as I know your lawyers have told you[,]

under the law, what would happen is those 12

jurors would get some instructions from me.

1 “Tr.” refers to Petitioner’s trial transcripts.

6

Then they’d go back to deliberate then they

would come back with some recommendation.

If it turns out that recommendation were life

imprisonment, although the statute says that I

would still have the legal right to impose a death

sentence, as a practical matter under the

current status of the law, as decided by the

Supreme Court, it’s highly unlikely that I could

or would do that. . . .

But if we do impanel a jury, as you heard me say

many times yesterday to the panel, if they

gave—if they came back with a recommendation

of death, then it would fall upon me to really

reweigh and reconsider all the evidence . . . .

And one of the factors I’d have to consider is

their recommendation . . . . And the law provides

that I would have to give that great weight. . . .

Now, your lawyers I know told you, and the

statute provides that at this stage of the

proceedings, if you want it, I must impose a jury

to hear all what I just described. You have an

absolute statutory right to . . . a jury

recommendation on this question [or,

alternatively] have the evidence presented to

one person, myself. And I would do that . . .

weighing, and then I would be the one to decide;

and there would be no jury recommendation one

way or the other. . . .

7

Can you tell me in your own words what it is you

want to do, how do you want to proceed[?]

Petitioner

I want your recommendation.

I’m sorry?

Court

Petitioner

I just—I don’t want a jury.

Court

You do not want a jury? You’re absolutely

certain of that?

Yes.

Petitioner

App. E at 5-8.

Next, the court asked Petitioner a series of

questions to assess whether he was “capable and

competent to make [the waiver] decision.” Id. at 1012. After Petitioner satisfied the court, the court

conducted another colloquy with him:

Court

[Y]ou understand that . . . this choice is yours

and yours alone. . . . This choice of having a jury

hear this evidence and then making a

recommendation. . . . You understand that?

8

Yes, sir.

Petitioner

Court

But you know, once you’ve waived it and once

we begin, I don’t think there’s any provision in

the law which would allow you to say, I changed

my mind; I want to have a jury here. . . . You’re

absolutely certain this is what you want to do?

Yes, sir.

Petitioner

App. E at 12-13. The court then accepted Petitioner’s

waiver. Id. at 15.

The penalty phase lasted three days. Brant, 21 So.

3d at 1277. Petitioner presented a broader range of

mitigation evidence than he would have in a jury

proceeding—he did not intend to present evidence of

remorse to a jury, but he decided to do so once “[h]e

went nonjury.” Tr. 364-65; see also id. at 1197-98 (trial

court noting that Petitioner argued remorse as a

mitigating circumstance).

Based on the evidence, the trial court found two

aggravating circumstances: Petitioner’s murder of

Radfar was heinous, atrocious, or cruel; and he killed

her during a sexual battery. Brant, 21 So. 3d at 1283.

The court determined that both aggravators were

entitled to great weight and that they outweighed the

mitigating circumstances. Id.; Sentencing Order at

43. As a result, the court sentenced Petitioner to death

for the murder; life in prison for the sexual battery,

9

kidnapping, and burglary; and five years’

imprisonment for stealing Radfar’s car. Brant, 21 So.

3d at 1283.

On appeal, Petitioner argued only that his death

sentence is disproportionate. Id. at 1283-84. He raised

no claim that he is entitled to relief under Ring, even

though Florida capital defendants routinely did so

before Hurst. Id.; Mosley, 209 So. 3d at 1275 (“For

fourteen years after Ring, until the United States

Supreme Court decided Hurst v. Florida, Florida’s

capital defendants attempted to seek relief based

on Ring, both in this Court and the United States

Supreme Court.”). The Florida Supreme Court

affirmed in 2009, Brant, 21 So. 3d at 1277, and

Petitioner did not seek review in this Court.

3. Petitioner filed his first state postconviction

motion in 2011. Brant, 197 So. 3d at 1062-63. The trial

court denied all his claims, and he appealed to the

Florida Supreme Court. Id. This Court decided Hurst

while the appeal was pending, so Petitioner sought

leave to file a supplemental brief raising a Hurst

claim. Id. at 1079. The Florida Supreme Court

granted the request. Id.

In his supplemental brief, Petitioner argued that

he is entitled to Hurst relief even though he waived a

penalty-phase jury because his waiver cannot be

considered a knowing and voluntary waiver of the

Sixth Amendment right recognized in Hurst. Supp.

Init. Br. 3-5, Brant v. State, No. SC14-2278 (Fla. Mar.

1, 2016).

10

The Florida Supreme Court unanimously rejected

Petitioner’s request for Hurst relief, finding his waiver

dispositive. Brant, 197 So. 3d at 1079. A defendant,

the court stated, “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.” Id. (quoting

Mullens, 197 So. 3d at 40); see also Hutchinson v.

State, 243 So. 3d 880, 883 (Fla. 2018) (“In both

Mullens and Brant, this Court found that the

defendants’ waivers were knowingly, intelligently,

and voluntarily made based on their colloquies, even

though those waivers were made with the advice of

counsel based on pre-Hurst law.”).

Petitioner did not seek review in this Court.

4. In 2017, Petitioner filed the state postconviction

motion at issue here. Brant v. State, 284 So. 3d 398,

399 (Fla. 2019). He again claimed that he is entitled

to Hurst relief and that his waiver does not bar relief

because it is not valid as to Hurst. Postconviction Mot.

at 9-13, App. G. The Florida Supreme Court’s decision

in his prior case, he added, does not foreclose his

request for relief because in that case, his claim was

based on the Sixth Amendment right recognized in

Hurst, whereas he now seeks relief based on a Florida

Supreme Court decision holding that under Hurst, the

Eighth Amendment requires “a unanimous jury

verdict recommending a death sentence.” Id. at 6-7

(relying on Hurst v. State, 202 So. 3d 40 (Fla. 2016)).

In the State’s response to Petitioner’s motion, it

argued that the law-of-the-case doctrine, collateral

11

estoppel, and res judicata bar his claim. State Resp.

at 5-6, Brant v. State, No. 2004-CF-12631 (Fla. Cir. Ct.

Jan. 29, 2018). In Florida, those doctrines prohibit a

prisoner from relitigating a claim or issue that has

already been decided in a postconviction case. Id.

(citing State v. McBride, 848 So. 2d 287, 289-91 (Fla.

2003)). Therefore, the doctrines bar Petitioner from

relitigating the Florida Supreme Court’s conclusion

that his waiver forecloses Hurst relief. Id. The State

also argued, in the alternative, that Petitioner’s claim

fails on the merits. Id. at 6-9.

The trial court agreed with the State, holding that

Petitioner’s claim is procedurally barred and lacks

merit. App. B at 4-5.

The Florida Supreme Court affirmed, again

unanimously. Brant, 284 So. 3d at 400. It held that

Petitioner’s Hurst “claim is procedurally barred to the

extent that it was raised in his earlier postconviction

appeal.” Id. at 399 (citing Brant, 197 So. 3d at 1079,

the part of the court’s earlier decision addressing

Petitioner’s waiver). The court then noted that the

claim “additionally fails on the merits.” Id. Petitioner,

the court reiterated, “is among those defendants who

validly waived the right to a penalty phase jury.” Id.

at 400 (again citing earlier decision).

12

REASONS FOR DENYING THE PETITION

I.

This Court lacks jurisdiction because the

decision below rests on an independent

and adequate state ground.

“In the context of direct review of a state court

judgment,

the

independent

and

adequate

state ground doctrine is jurisdictional.” Coleman v.

Thompson, 501 U.S. 722, 729 (1991). It applies when

a “state law determination” is “sufficient to support” a

state court judgment. Id. The determination need not

be the only basis for the judgment—it just needs to be

sufficient to sustain the judgment. Sochor, 504 U.S. at

533-34 (applying the doctrine where the Florida

Supreme Court held both that the prisoner’s claim

lacked merit and that it was procedurally barred

under state law).

The decision below rests on an independent and

adequate state law determination. The Florida

Supreme Court rejected Petitioner’s Hurst claim not

only on the merits but also “on [an] alternative state

ground”—the law-of-the-case doctrine, collateral

estoppel, and res judicata. See id. The State argued

below that, under those doctrines, Petitioner’s Hurst

claim is foreclosed by the Florida Supreme Court’s

prior ruling that his waiver precludes him from

obtaining Hurst relief. And both the trial court and

the Florida Supreme Court agreed, with the Florida

Supreme Court expressly holding that Petitioner’s

claim is “procedurally barred to the extent it was

raised in his earlier postconviction appeal.” Brant, 284

13

So. 3d at 399; App. B at 4-5. The independent and

adequate state ground doctrine therefore applies. See

Durley v. Mayo, 351 U.S. 277, 284 (1956) (applying the

doctrine where the Florida Supreme Court appeared

to “have rested its denial of the [prisoner’s] petition”

on res judicata grounds).

II.

This case presents no question that

warrants review.

A. The question whether Petitioner’s

waiver of a penalty-phase jury is valid

as to Hurst is not before the Court.

This case does not present the question whether

Petitioner knowingly and voluntarily waived his

rights under Hurst, because he never had any rights

under Hurst to waive. Whether a defendant has a

federal constitutional right is necessarily a question

antecedent to whether he has validly waived the

right—a defendant cannot waive a right that he never

had in the first place. And Petitioner has never had

any rights under Hurst: Hurst does not apply to him

because his sentence was already final when Hurst

was decided. See McKinney, 140 S. Ct. at 708 (Hurst

does not apply retroactively).

Nor can Petitioner argue that the question is

before the Court because Hurst applies to him under

Florida law. The Florida Supreme Court has held

that, under Florida’s retroactivity test, Hurst

generally applies to death sentences that became final

after Ring. Mosley, 209 So. 3d at 1274. But the court

has also held that a prisoner whose sentence became

14

final after Ring but who “waived the right to a

penalty-phase jury is not entitled to relief under

Hurst.” Brant, 197 So. 3d at 1079. Federal law does

not give Petitioner the right to pick and choose only

those parts of Florida’s retroactivity jurisprudence

that are favorable to him, and this Court should not

second-guess the extent to which a state court makes

a new right retroactively applicable under state law.

See 28 U.S.C. § 1257(a). 2

But even if Hurst applied retroactively to

Petitioner, this case would not present the question

whether his waiver is valid as to Hurst because he

does not seek to vindicate any Hurst rights. Although

Petitioner references the right to jury factfinding

recognized in Hurst, his claim for relief is based on a

different right: the “right to a unanimous [jury]

determination for death.” Pet. 11; Postconviction Mot.

at 6-8, App. G (explaining that Petitioner’s claim is

What

is

more,

Florida’s

retroactivity

jurisprudence is in flux. The Florida Supreme Court

has expressed an interest in revisiting its ruling that

Hurst applies retroactively to some defendants. See

Briefing Order, Owen v. State, No. SC18-810 (Fla.

Apr. 24, 2019) (sua sponte directing parties to brief

the issue). The court did not ultimately address the

issue in Owen, see Owen v. State, ___ So. 3d ___, 2020

WL 3456746 (Fla. June 25, 2020), but “[t]he uncertain

fate of Florida’s current retroactivity doctrine”

undercuts any claim by Petitioner that this Court

should rely on state law to reach the waiver question,

see Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1332

n.3 (11th Cir. 2019).

2

15

based on an Eighth Amendment right to a

“unanimous jury verdict recommending a death

sentence”). Hurst did not recognize such a right.

Indeed, Petitioner does not even claim that it did; he

relies not on Hurst but on the Florida Supreme

Court’s now-defunct decision in Hurst v. State. Pet. 7;

State v. Poole, 297 So. 3d 487, 2020 WL 3116597, at

*12 (Fla. 2020) (“[We] erred in Hurst v. State when we

held that the Eighth Amendment requires a

unanimous jury recommendation of death.”). Because

Petitioner does not allege a violation of a right

recognized in Hurst, whether his waiver is valid as to

such a right is irrelevant.

B. In any event, the waiver question is not

certworthy.

There is no “compelling reason” to consider the

question whether a defendant who waived a penaltyphase jury pre-Hurst can still obtain Hurst relief. See

Sup. Ct. R. 10. Petitioner has identified no split among

the lower courts over the question; instead, he has

asserted only that the decision below conflicts with

Halbert v. Michigan, 545 U.S. 605 (2005) because

under Halbert, a defendant can never validly waive a

right that has not yet been recognized. Pet. 9-10. But

no conflict exists; Halbert announced no such rule. It

did not purport to dispense with the well-settled

principle that guilty pleas and other waivers are valid

as long as they are made knowingly and intelligently

16

“in light of the then applicable law.” See Brady v.

United States, 397 U.S. 742, 757 (1970).

In Brady, McMann v. Richardson, 397 U.S. 759

(1970), and United States v. Ruiz, 536 U.S. 622 (2002),

this Court held that future developments

undermining the premise for a plea have no bearing

on whether the defendant knowingly and intelligently

entered the plea. When a defendant enters a plea, he

waives rights that might be recognized later.

In Brady, for example, this Court held that when

the defendant pleaded guilty, he waived a not-yetrecognized right to a particular type of jury trial. The

defendant pleaded guilty under a statute which

provided that he could receive the death penalty if he

went to trial but not if he pleaded guilty. 397 U.S. at

743, 756. A few years later, this Court struck down

that part of the statute, finding it unconstitutional

because it “made the risk of death the price of a jury

trial.” Id. at 745-46. Thereafter, defendants had a

right to a trial that did not present a risk of death. See

id. at 745-46, 756. According to the defendant in

Brady, the Court’s recognition of that right rendered

his plea invalid. Id. at 756-57. His plea was not

intelligently made, he argued, because he was

unaware that he had a right to proceed to trial without

risking death. See id. This Court disagreed. Id. at 757.

It concluded that the plea was valid because it was

“intelligently made in light of then applicable law.” Id.

(“[A] voluntary plea of guilty intelligently made in

light of the then applicable law does not become

17

vulnerable because later judicial decisions indicate

that the plea rested on a faulty premise.”).

Halbert did not discard that longstanding rule.

There, Michigan argued that the defendant waived

his “right to appointed counsel for first-level appellate

review . . . by entering a plea of nolo contendere.” 545

U.S. at 623. Petitioner claims that this Court rejected

that argument solely because the defendant had no

right to appointed counsel when he pleaded, and

therefore, the Court broke from Brady and its progeny

and established a new categorical rule that

defendants can never waive a not-yet-recognized

right. See Pet. 9-10. But Petitioner misconstrues the

decision. This Court’s analysis did not turn solely on

the status of the defendant’s right to appointed

counsel. The specific circumstances surrounding his

plea were relevant. See Halbert, 545 U.S. at 623-24.

During the defendant’s plea colloquy, the trial

court misled him about the consequences of pleading

nolo contendere. Id. at 614. Under Michigan law,

pleading nolo contendere precluded the defendant

from accessing appointed appellate counsel, yet the

trial court suggested otherwise, indicating that he

might be able to access counsel even if he entered such

a plea. Id. (“The court . . . advised [the defendant] of

certain instances in which, although the appeal would

not be as of right, the court . . . ‘must’ or ‘may’ appoint

appellate counsel. The court did not tell [the

18

defendant], however, that it could not appoint counsel

in . . . [his] case.”).

This Court’s analysis turned in part on that

misleading colloquy. See id. at 623-24. The Court held

that the defendant did not knowingly and intelligently

waive his right to appointed appellate counsel because

(1) at the time of his plea, he “had no recognized right

to appointed appellate counsel that he could elect to

forgo” and (2) the trial court “did not tell [him], simply

and directly, that in his case, there would be no access

to appointed counsel.” Id. (citing Brady and Iowa v.

Tovar, 541 U.S. 77 (2004)).

Thus, the Court not only considered the

defendant’s knowledge of his then-existing rights but

also cited Brady approvingly. It did not break from

Brady and its progeny and broadly hold that

defendants can never waive not-yet-recognized rights.

In claiming otherwise, Petitioner asks this Court

to conclude that Halbert, in just a couple sentences,

adopted a rule that would “wreak havoc” on state and

federal criminal proceedings. See Halbert, 545 U.S. at

641 n.2 (Thomas, J., dissenting). As Justice Thomas

(joined by Chief Justice Rehnquist and Justice Scalia)

explained in his Halbert dissent, the majority could

not “possibly [have] mean[t] that only rights that have

been explicitly and uniformly recognized by statute or

case law may be waived,” because if so, the majority

opinion would “outlaw all conditional waivers (ones in

which a defendant agrees that, if he has such a right,

he waives it).” Id. at 640. Such a rule, moreover, would

sow confusion because it is unclear “which sources of

19

law” would need “to be considered in deciding whether

a right is not recognized.” Id. at 641 n.2 (quotation

marks omitted).

In short, Petitioner’s broad reading of Halbert is

misguided, and this case presents no conflict

warranting review.

Indeed, this Court has repeatedly denied petitions

where the defendant waived a penalty-phase jury but

later sought Hurst relief, and Petitioner identifies no

change in circumstance that makes review now

appropriate. See Covington v. State, 228 So. 3d 49, 69

(Fla. 2017), cert. denied, Covington v. Florida, 138 S.

Ct. 1294 (2018); Twilegar v. State, 228 So. 3d 550, 551

(Fla. 2017), cert. denied, Twilegar v. Florida, 138 S.

Ct. 2578 (2018); Quince v. State, 233 So. 3d 1017, 1018

(Fla. 2018), cert. denied, Quince v. Florida, 139 S. Ct.

165 (2018); Hutchinson v. State, 243 So. 3d 880, 883

(Fla. 2018), cert. denied, Hutchinson v. Florida, 139 S.

Ct. 261 (2018); Rodgers v. State, 242 So. 3d 276, 27677 (Fla. 2018), cert. denied, Rodgers v. Florida, 139 S.

Ct. 592 (2018).

III.

Petitioner is not entitled to Hurst relief.

For several reasons, the Florida Supreme Court

correctly denied Petitioner Hurst relief.

1. Petitioner is not, as a matter of federal law,

entitled to any Hurst relief because the Sixth

Amendment right that this Court recognized in Hurst

does not apply retroactively to him. See McKinney,

140 S. Ct. at 708. Similarly, the Florida Supreme

20

Court has held that Petitioner is not entitled to Hurst

relief as a matter of state law. Brant, 197 So. 3d at

1079.

2. Even if Hurst applied retroactively, Petitioner’s

waiver precludes him from attacking his sentence on

Sixth Amendment grounds. When Petitioner waived a

jury, he knew he was “fully forfeit[ing] [his] right to a

jury trial.” See Mullens, 197 So. 3d at 39. He had “a

full awareness of both the nature” of his right to a jury

“and the consequences of [his] decision to abandon”

the right. See Moran v. Burbine, 475 U.S. 412, 421

(1986) (describing the standard for whether a waiver

is knowing and intelligent). Petitioner unequivocally

and expressly waived the right after participating in

two days of jury selection and after the trial court

explained to him (1) the role of the jury in penaltyphase proceedings, (2) that if he waived his right to a

jury, he would not be able to revive the right later, and

(3) that waiving the right meant that the trial court

alone would make all sentencing determinations. App.

E at 5-8, 13-15.

In fact, Petitioner’s decision to forgo a jury was not

just knowing and intelligent but strategic. He decided

that he did not want a jury to have any role in his

sentencing after several jurors indicated that they

would sentence him harshly, notwithstanding the

trial court’s decision to strike the original jury panel.

See App. E at 2; Tr. 1965. Having made a strategic

decision to avoid a jury, Petitioner cannot now argue

that his sentence violates the Sixth Amendment

because a jury did not have a sufficient role. See

Mullens, 197 So. 3d at 39 (“[W]here defendants have

21

strategically chosen to proceed before a judge alone in

order to avoid a death sentence, their jury waivers

have been upheld.”).

At the very least, Petitioner’s waiver is dispositive

as to the specific Sixth Amendment right recognized

in Hurst. First, in 2007, when Petitioner waived a

jury, he and other Florida capital defendants were on

notice that a right to jury factfinding might exist.

According to Petitioner, “Hurst followed Ring,” and in

2007, Ring had already been decided and defendants

were routinely raising Ring claims. Pet. 7; Mosley, 209

So. 3d at 1275. Second, it is clear from the record that

Petitioner would have waived a jury even if Hurst had

already been decided at the time of his trial. Petitioner

balked at advisory jury findings because of his

concerns about jurors’ views of him. He certainly

would not have proceeded before a jury if their

findings on aggravating circumstances were binding,

as is the case under Hurst.

3. Finally, even if Hurst applied retroactively to

Petitioner and even if he could bypass his waiver, he

still would not be entitled to relief because any Hurst

error was harmless. See Hurst, 136 S. Ct. at 624

(noting that harmless-error analysis applies to Hurst

violations). Had a jury been charged with finding

aggravating circumstances, they plainly would have

found “at least one.” See McKinney, 140 S. Ct. at 705.

They would have found that Petitioner murdered

Radfar “while engaged in the commission of a sexual

battery”—just as the trial court did. See Brant, 21 So.

3d at 1283. Petitioner admitted to police that he raped

Radfar during the murder, police found his semen in

22

her vagina, he pleaded guilty to sexual battery, and

the factual proffer for his plea explained that he raped

Radfar just before choking her to death. See id. at

1278; Sentencing Order at 5-6, 16-17.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

amit.agarwal@

myfloridalegal.com

August 26, 2020

AMIT AGARWAL

Solicitor General

* Counsel of Record

JEFFREY PAUL DESOUSA

Deputy Solicitor General