Opposition Brief — Jeremiah M. Rodgers, Petitioner v. Florida

CAPITAL CASE

No. 20-5117

Int ,

Supreme Court of the Gnited States

JEREMIAH (“JENNA”) RODGERS, Petitioner,

v.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

Attorney General of Florida

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

*Counsel of Record

CHARMAINE M. MILLSAPS

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY

GENERAL

CAPITAL APPEALS

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3584

capapp@myfloridalegal.com

CAPITAL CASE

QUESTION PRESENTED

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

Supreme Court rejecting a claim of newly discovered evidence of gender

dysphoria as untimely under state law in state successive postconviction

litigation.

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED ........... 0.0000. eee eee ene i

TABLE OF CONTENTS .... 2.0.0... cc ee eee eee eee e ees li

TABLE OF AUTHORITIES .............. 0000.0. 0c ccc cece eens ili

OPINION BELOW............0. 0.00 ccc eee eee nee eees viii

JURISDICTION. .. 0.00... ce eee eee een eens 1

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

STATEMENT OF THE CASE AND PROCEDURAL HISTORY. ............... 2

REASONS FOR DENYING THE WRIT.......... 00.0000. ccc ccc ee ees 8

ISSUE 2... cee eee eee eee nee eae 8

WHETHER THIS COURT SHOULD GRANT REVIEW OF

A DECISION OF THE FLORIDA SUPREME COURT

REJECTING A CLAIM OF NEWLY DISCOVERED

EVIDENCE OF GENDER DYSPHORIA AS UNTIMELY

UNDER STATE LAW IN STATE SUCCESSIVE

POSTCONVICTION LITIGATION.

The Florida Supreme Court’s decision in this case .......... 9

Issues are solely a matter of state law ................... 11

No conflict with this Court’s jurisprudence ............... 15

No conflict with the federal circuit courts or

state courts of last resort........0.0.0....0 0000 cece ee eaee 20

Misapplication of a proper rule oflaw ................... 22

Poor vehicle/advisory opinion ......................0005 23

CONCLUSION... 2... ee ee cece eevee ee neeeeeeees 28

ii

TABLE OF AUTHORITIES

CASES PAGE(S)

Almendarez-Torres v. United States,

523 U.S. 224 (1998)... eee ee eee 24,25,26,27

Apprendi v. New Jersey,

530 U.S. 466 (2000) ... 0... ee eee eee eens 24,26

Brady v. United States,

397 U.S. 742 (1970) 00. ee ee eee ne eee een eens 26

Brant v. State, 284 So.3d 398 (Fla. 2019),

pet. for cert. filed June 29, 2020, Brant v. Florida, No. 19-8845 ............... 14

Braxton v. United States,

500 U.S. 344 (1991) 20. cc ee teen eee eee eae 20

Covington v. State,

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

cert. denied, Covington v. Florida, 138 S.Ct. 1294 (2018) .................... 14

Danforth v. Minnesota,

552 U.S. 264 (2008) ... 6. eee ee eee e eens 13

District Attorney’s Office for Third Judicial District v. Osborne,

557 U.S. 52 (2009)... eee cece ee eee eens 15

Durocher v. Singletary,

623 So.2d 482 (Fla. 1993)... 0. ee ee eee ee eee 5,6,7

Enter. Irrigation Dist. v. Farmers Mut. Canal Co.,

243 U.S. 157 (1917) 00 eee eee een ence eee n eens 11

Felker v. Turpin,

518 U.S. 651 (1996)... ee ce eee ee tee ence nee 15

Fox Film Corporation v. Muller,

296 U.S. 207 (1935) . 0. eee eee eee e eee 11

Garcia v. Bravo,

181 Fed. Appx. 725 (10th Cir. 2006)... 2.0.0.0... 0. ccc eee eee 21

Gary v. Warden, Ga. Diagnostic Prison,

686 F.3d 1261 (11th Cir. 2012)... 0... 0 cc ce eee 19

Garza v. Idaho,

189 S.Ct. 788 (2019)... cee tenn e enue eens 17-19

ili

Halbert v. Michigan,

545 U.S. G05 (2005)... 0. eee ccc ccc eee ec eeceeeeuseueeceeees 6,18,19

Herb v. Pitcairn,

324 U.S. 117 (1945) oo. ccc ccc cece cece ceenseuseucectenteveees 23

Hurst v. Florida,

136 S.Ct. 616 (2016)... ce ee cece eee passim

Hurst v. State,

202 So.3d 40 (Fla. 2016)... ce eee eens passim

Hutchinson v. State,

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

cert. denied, Hutchinson v. Florida, 139 S.Ct. 261 (2018) .................-.. 14

Jimenez v. State,

997 So.2d 1056 (Fla. 2008)... 2... ee ee eee tenn eees 9,11,16

Johnson v. United States,

544 U.S. 295 (2005) 2. ce eee eee eens 8,15-17,22,25

Johnson v. Williams,

568 U.S. 289 (2013)... ee eee ence teen nees 11

Jones v. State,

709 So.2d 512 (Fla. 1998)... 0... c cc ccc ccc cece cece cece cusevecueevees 10

Knight v. Fla. Dep’t of Corr.,

936 F.3d 13822 (11th Cir. 2019) ..... 0.00. eens 13

Lawrence v. State,

846 So.2d 440 (Fla. 2003)... 0. 0c ccc cc ccc cece ccc ccccceeeeeceeeeeeeenes 2,3

Lawrence v. Staie,

969 So.2d 294 (Fla. 2007). 2... e ene ens 3

Lynch v. State,

254 So.3d 312 (Fla. 2018),

cert. denied, Lynch v. Florida, 139 S. Ct. 1266 (2019) ...................0065 14

McKinney v. Arizona,

140 S.Ct. 702 (2020)... 6.6 ee eens 12,138,24,25,27

McMann. v. Richardson,

397 U.S. 759 (1970) 20. nee eee ee eens 19

Michigan v. Long,

463 U.S. 1032 (1983) 0... eee cena 11,12,14,23

iv

Miles v. Dorsey,

61 F.3d 1459 (10th Cir. 1995)... ee eee 21

Mosley v. State,

209 So.3d 1248 (Fla. 2016)....... 0.00 c ccc cccccecucecuceeceeececucuceeas 13

Mullens v. Staite,

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

cert. denied, Mullens v. Florida, 137 S.Ct. 672 (2017) (No. 16-6773) ....... 6,13,14

People v. Rhoades,

753 N.E.2d 537 (Ill. App. Ct. 2001)... 0.0... eee eens 14

Peretz v. United States,

501 U.S. 923 (1991) 20. ee ee eee teen eee eees 18

Quince v. State,

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

cert. dented, Quince v. Florida, 189 S.Ct. 165 (2018) .... 2.2.0.0. ... 0.000002 ee 14

Ring v. Arizona,

536 U.S: 584 (2002) ........... 2.0.0.0. 2 eee ee eee ee eee eee eee 24,25

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

cert. denied, Robinson v. Florida, 140 S.Ct. 152 (2019) ................ 00008 14

Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,

482 U.S. 182 (1987) .. 0.6 ee eee eee eee ee eees 20

Rodgers v. Florida,

549 U.S. 1080 (2006) ... 2... eee eens 4

Rodgers v. Florida,

189 8.Ct. 592 (2018)... 2. eee tees 6,14,17,19

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

8:15-cv-00507-RH (N.D. Fla.) 2.0.0.0 eee eee cee 5

Rodgers v. State,

934 So.2d 1207 (Fla. 2006)... 0.0. eee 2,3,4,21

Rodgers v. State,

3 So.3d 1127 (Fla. 2009)... 0... eee ees 2,4,16,18,21,24

Rodgers v. State,

104 So.3d 1087 (Fla. 2012). 2... 0. ee ee ees 5,17,18,21

Rodgers v. State,

242 So.3d 276 (Fla. 2018)... ..... 20... 0.000 ec ee eee 6,13,14,17

Rodgers v. State,

288 So.3d 1038 (Fla. 2019)... 2.00... 6 eee eee passim

Roe v. Flores-Ortega,

528 U.S. 470 (2000)... ce ee eee cece eee eee 17

Schriro v. Summerlin,

542 U.S. 348 (2004) 2. eee cece eee eee eeeee 24

Sessions v. Dimaya,

138 S.Ct. 1204 (2018)... ee eee eee eee eeeee 26

Smith v. State,

___§o0.3d___, 2020 WL 10572438 (Fla. Mar. 5, 2020)........................ 12

State v. Piper,

709 N.W.2d 783 (S.D. 2006)... 0. ete eee eee 14

State v. Poole,

___So.8d__, 2020 WL 3116597 (Fla. Jan. 23, 2020) ...........0.0....0...4.. 12

The Whiskey Cases,

99 U.S, 594 (1878) 2. ec ec cece eee e ec eee eee e eens 26

Tolan v. Cotton,

572 U.S. 650 (2014) 2... ce ccc nce cece nceeeeueeuecuntcuceceunens 22

Twilegar v. State,

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

cert. denied, Twilegar v. Florida, 138 S.Ct. 2578 (2018) ..................... 14

United States v. Rodgers,

No. 3:98CR00073-002 (N.D. Fla. 1999)... 2.0. ce ens 24

Witt v. State,

387 So.2d 922 (1980) . 2. ec ee ee ee eee ee een eee ens 13

Wood v. Staite,

209 So.3d 1217 (Fla. 2017)... 2. eee ee cence ees 3

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VIII ........ 2.00000. ee ec ee ence ee eee 1

U.S. Const. Amend. XIV ... 0... 0. ee cee eee nee eenees 1

vi

STATUTES

18 U.S.C. § 8599. eee nee eee eens 19

28 U.S.C. § 1257.00 ce eee eee e eee eens 1,11

28 U.S.C. § 2101). 0c tenet nee ene enes 1

28 UIS.C. § 2255... ene eeenas 15,1624

RULES

Fla. R. Crim. P. 3.851(d)(1) oe ete 5,9,11,16

Fla. R. Crim P. 3.8510) ... 2.0... 20. tenes 5,18

Sup. Ct. R. 10... eee eee ee eeees 14,20,21

Sup. Ct. R. 18.8.0... 00.0. eee eee e eee eeaee 1

OTHER AUTHORITIES

American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders - Sthed. .. 0... eee ee eee eee eee eens 22,25

vii

Int

Supreme Court of the GAnited States

No. 20-5117

JEREMIAH (“JENNA”) RODGERS, Petitioner,

Uv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Rodgers v. State, 288 So.3d

1038 (Fla. 2019).

vili

JURISDICTION

On February 12, 2019, Rodgers, represented by the Capital Habeas Unit of the

Office of the Federal Public Defender of the Northern District of Florida (CHU-N), filed

a notice of appeal from the trial court’s summary denial of a successive postconviction

motion in the Florida Supreme Court. On November 21, 2019, the Florida Supreme

Court affirmed the trial court’s summary denial of the successive postconviction

motion. Rodgers v. State, 288 So.3d 1038 (Fla. 2019) (SC19-241)." On December 6,

2019, Rodgers filed a motion for rehearing. On February 11, 2020, the Florida

Supreme Court denied the rehearing. On July 10, 2020, Rodgers filed a petition for a

writ of certiorari in this Court. The petition was timely. See Sup. Ct. R. 13.3; 28 U.S.C.

§ 210 1(d).? Petitioner asserts jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

While opposing counsel relies on the Eighth Amendment and the Fourteenth

Amendment in the petition, neither of those constitutional provisions applies because,

as will be explained in greater detail, the issues being raised in the petition are solely

matters of state law. No federal constitutional provision is at issue.

1 The Florida Supreme Court’s docketing is available online under case number

SC19-241.

? This Court, in response to the COVID-19 outbreak, extended the deadline to

timely file a petition from 90 days to 150 days.

1

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Rodgers and the co-perpetrator, Lawrence, are serial killers. In the words of the

Florida Supreme Court, Rodgers and Lawrence “coldly decided to murder” the victim

in this capital case “solely for the depravity of the act.” Rodgers v. State, 3 So.3d 1127,

1134 (Fla. 2009).

Facts of the case

On March 29, 1998, Lawrence and Rodgers were driving around Santa Rosa

County, Florida, looking to find somebody to shoot and kill. Lawrence v. State, 846

So.2d 440, 443 n.3 (Fla. 2003). After Lawrence pulled his truck off to a secluded area

near the Smitherman’s property, Rodgers got out of the truck with a Lorcin .380

handgun. Id. at n.3. The elderly victim, Leighton Smitherman, was sitting in a chair

inside his house in the living room watching a movie with his wife and adult daughter.

Id. Rodgers shot Smitherman through a window hitting the victim in his back.

Rodgers returned to the truck and they drove away. A bullet casing from the Lorcin

.880 handgun was found outside the house. Rodgers, a few weeks later, used the same

handgun to shoot the teenage victim in the capital case in the back of her head. Jd.;

Rodgers v. State, 984 So.2d 1207, 1210 (Fla. 2006). Rodgers gave a tape-recorded

confession to the attempted murder of Smitherman to law enforcement. Rodgers, 934

So.2d at 1210 (noting the May 138, 1998, tape-recorded confession to the Smitherman

attempted murder).

Then, ten days after the attempted murder, on April 9, 1998, Lawrence and

Rodgers murdered Lawrence’s cousin. The three of them, Lawrence, Rodgers, and

Lawrence’s cousin, Justin Livingston, were riding around in Lawrence’s truck smoking

marijuana. Lawrence, 846 So.2d at 443 n.3. After arriving at a remote location at the

Navy’s Spencer Field, all three got out of the truck. Jd. at n.3. Both Rodgers and

Lawrence surreptitiously retrieved knives from the toolbox of the truck. Rodgers

stabbed the victim twice in the chest area and then attempted to strangle him. Id.

While Justin Livingston was laying down, wounded and pleading for mercy, Lawrence

stabbed him in the back multiple times killing him. Jd.; see also Lawrence v. State, 969

So.2d 294, 298 n.1 (Fla. 2007).

Then approximately four weeks after the murder of Lawrence’s cousin, on May

7, 1998, Rodgers and Lawrence murdered again, this time killing a teenage girl named

Jennifer Robinson. Rodgers, 934 So.2d at 1209-10. Rodgers pretended to be taking

Jennifer on a date after picking her up at her home and meeting her mother. Jd. at

1209. After getting the underage victim drunk on Everclear, they both had sex with

her. Jd. at 1210. Rodgers then shot her in the back of her head. fd. Lawrence cut off

her calf muscle to take as a trophy which was later found in Lawrence’s freezer. Wood

v. State, 209 So.3d 1217, 1236 (Fla. 2017) (discussing the facts of this murder for

purposes of proportionality review). Rodgers took photographs of the victim’s body

including a photograph of Lawrence holding her severed foot. Lawrence, 846'So.2d at

443. They both covered her body with debris. Rodgers, 934 So.2d at 1210. Rodgers

showed the photographs of the victim’s body to two other people. Id. at 1209. When the

deputies arrested Rodgers two days later in another county, Rodgers had the murder

weapon. Id. While at first denying any involvement, Rodgers, a few days later,

confessed to shooting Jennifer Robinson. Jd. at 1209-10. Rodgers also testified at the

second penalty phase admitting to shooting her. (RR Vol. 3 279). On cross, Rodgers

again admitted several times to being the actual shooter in this case. (RR Vol. 3 315,

316).

These were three separate incidents that occurred over the course of six weeks.

The prior state attempted murder conviction and the prior federal murder conviction

were used to establish the prior violent felony aggravating factor in the capital case.

Rodgers v. State, 3 So.3d 1127, 1130, 1133 (Fla. 2009) (noting the state trial court had

found two aggravating factors: 1) the prior violent felony based on the prior attempted

murder and the prior murder; and 2) the murder was committed in a cold, calculated,

and premeditated manner (CCP)).

Procedural history of the capital case

On July 24, 2000, Rodgers entered a plea of guilty as a principal to the

first-degree murder of Jennifer Robinson; conspiracy to commit murder; giving alcohol

to a minor; and abusing a human corpse. Rodgers, 934 So.2d at 1210. The Florida

Supreme Court affirmed the convictions but remanded for a new penalty phase. Jd. at

1221-22.

Rodgers filed a petition for writ of certiorari in this Court regarding the

convictions. On December 4, 2006, this Court denied the petition. Rodgers v. Florida,

549 U.S. 1080 (2006) (No. 06-6858).

At the second penalty phase, Rodgers waived the right to a penalty phase jury.

Rodgers v. State, 3 So.3d 1127, 1130 (Fla. 2009). There was no jury recommendation

due to the waiver. Rodgers testified at the bench penalty phase. Rodgers admitted to

being the one who shot Jennifer Robinson. (RR Vol. 3 279). On cross, Rodgers again

admitted several times to being the actual shooter. (RR Vol. 3 315, 316). The State also

cross-examined Rodgers regarding the details of both prior convictions as well.

Rodgers, 3 So.3d at 1130. The trial court found two aggravating circumstances: 1) the

prior violent felony and 2) CCP. Id. at 1133. The Florida Supreme Court affirmed the

death sentence. Id.

The Florida Supreme Court issued its opinion on February 5, 2009. Rodgers did

not file a petition for writ of certiorari in this Court regarding the death sentence. So,

the death sentence became final on Thursday, May 7, 2009.

On July 5, 2010, during the state postconviction proceedings, before the in itial

state postconviction motion was filed, Rodgers wrote a letter to Judge Rusmussen

seeking to waive both the statutory right to postconviction counsel and all

postconviction proceedings. On April 6, 2011, the trial court held a hearing to conduct

a personal on-the-record waiver colloquy regarding postconviction proceedings as

required by state law. Fla. R. Crim. P. 3.851(); Durocher v. Singletary, 623 So.2d 482,

485 (Fla. 1993) (requiring trial courts to evaluate defendants to determine if they

understand the consequences of waiving collateral counsel and proceedings). On April

20, 2011, the state postconviction court entered a written order finding Rodgers

competent and concluding the waiver was voluntary.

The order was appealed to the Florida Supreme Court in a mandatory fast-track

appeal required by Florida’s rule of court governing Durocher postconviction waivers.

Fla. R. Crim. P. 3.851(4)(8). On October 17, 2012, the Florida Supreme Court affirmed

the trial court’s order finding Rodgers competent to discharge postconviction counsel

and waive postconviction proceedings. Rodgers v. State, 104 So.38d 1087 (Fla. 2012)

(SC11-1401).

On November 11, 2015, the federal district court appointed the Capital Habeas

Unit of the Office of the Federal Defender of the Northern District of Florida (CHU-N),

as federal habeas counsel to represent Rodgers in federal court. Rodgers v. Sec’y, Fla.

Dep’ of Corr., 3:15-cv-00507-RH (N.D. Fla.). As of this date, however, the CHU-N has

not filed a federal habeas petition in federal court. The federal district court

authorized the CHU-N to appear in state court to litigate a Hurst claim, despite the

waiver of state postconviction counsel and waiver of all state postconviction

proceedings.

On January 11, 2017, Rodgers, represented by the CHU-N, filed a successive

rule 3.851 motion for postconviction relief in the state trial court raising a claim based

on Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst v. Florida), and Hurst v. State, 202

So.3d 40 (Fla. 2016) (Hurst v. State), in the state court. On February 14, 2017, the

State filed an answer to the successive postconviction motion arguing that Rodgers

waived any right to Hurst relief twice over by waiving the penalty phase jury and by

waiving postconviction proceedings. On May 2, 2017, the trial court summarily denied

the successive motion.

Rodgers appealed the denial of the successive postconviction motion to the

Florida Supreme Court. The Florida Supreme Court held that Hurst v. State does not

apply to defendants, like Rodgers, who waive a penalty phase jury, relying on their

prior decision in Mullens v. State, 197 So.3d 16, 38-40 (Fla. 2016). See Rodgers v. State,

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

Rodgers then filed a petition for a writ of certiorari in this Court from the

Florida Supreme Court’s decision. In that petition, Rodgers argued that the waiver of

the penalty phase jury was involuntary asserting that a defendant cannot waive an

unknown and unestablished right, relying on Halbert v. Michigan, 545 U.S. 605 (2005).

On December 3, 2018, this Court denied the petition. Rodgers v. Florida, 189 S.Ct. 592

(2018) (No. 18-113).

The day after this Court denied that petition, on December 4, 2018, Rodgers,

represented by federal habeas counsel, the CHU-N, filed yet another successive

postconviction motion in the state trial court arguing that the waivers were

involuntary due to gender dysphoria. The 2018 successive state postconviction motion

raised a claim of newly discovered evidence of gender dysphoria asserting the condition

rendered the pleas and waivers involuntary. On December 21, 2018, the State filed a

motion to dismiss the successive postconviction motion due to the Durocher waiver and,

in the alternative, an answer. On January 4, 2019, federal habeas counsel filed a

response. On January 18, 2019, the state trial court summarily denied the successive

postconviction motion.

Rodgers appealed the summary denial of the successive postconviction motion

to the Florida Supreme Court. The State filed a motion to dismiss the entire appeal

due to the Durocher waiver and the law-of-the-case doctrine, which the Florida

Supreme Court denied. On November 21, 2019, the Florida Supreme Court affirmed

the trial court’s denial of the successive postconviction motion. Rodgers v. State, 288

So.3d 1088 (Fla. 2019) (SC19-241). On December 6, 2019, Rodgers filed a motion for

rehearing. On February 11, 2020, the Florida Supreme Court denied the rehearing.

On July 10, 2020, Rodgers, represented by federal habeas counsel, the CHU-N,

filed a petition for a writ of certiorari in this Court.

REASONS FOR DENYING THE WRIT

ISSUE I

WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION

OF THE FLORIDA SUPREME COURT REJECTING A CLAIM OF

NEWLY DISCOVERED EVIDENCE OF GENDER DYSPHORIA AS

UNTIMELY UNDER STATE LAW IN STATE SUCCESSIVE

POSTCONVICTION LITIGATION.

Petitioner Rodgers seeks review of the Florida Supreme Court’s decision holding

that the claim of newly discovered evidence of gender dysphoria, which was raised in

a successive postconviction motion filed in state court, was untimely under state law.

There is no federal question being raised in the petition. Both the procedural issue of

the timeliness of the successive postconviction motion filed in state court, as well as the

underlying substantive issue of the application of the Florida Supreme Court’s decision

in Hurst v. State, 202 So.3d 40 (Fla. 2016), to this case, are matters solely of state law.

Because the petition presents issues that do not raise any federal questions, this Court

lacks jurisdiction to grant the petition. Moreover, there is no conflict between this

Court’s jurisprudence regarding time limitations or waivers and the Florida Supreme

Court’s decision finding the successive postconviction motion to be untimely. Rodgers

cites no case from this Court holding, or even hinting, that time limitations on

successive postconviction motions filed in state court violate federal law. There

certainly is no conflict with this Court’s decision in Johnson v. United States, 544 U.S.

295 (2005). Nor is there any conflict between the federal circuit courts or state courts

of last resort and the Florida Supreme Court’s decision. Rodgers cites no federal circuit

court case or state supreme court case holding that time limitations on successive

postconviction motions filed in state court violate federal law. Nor is misapplication

a basis for review. The Florida Supreme Court’s application of a state rule of court to

this case was correct as a matter of state law. Furthermore, this case is a poor vehicle

to address the issue of voluntariness of either the waiver of the penalty phase jury or

or the waiver of the state postconviction proceedings because regardless of the waivers,

Rodgers’ death sentence remains valid under this Court’s decision in Hurst v. Florida,

136 S.Ct. 616 (2016), on two separate grounds. Any opinion on the issue of the waivers

would be advisory. Review should be denied.

The Florida Supreme Court’s decision in this case

Rodgers appealed the state trial court’s summary denial of the successive

postconviction motion raising the claim of newly discovered evidence of incompetency

due to gender dysphoria to the Florida Supreme Court. The Florida Supreme Court

rejected the claim concluding that the “new” diagnosis of gender dysphoria was not, in

fact, new and alternatively, even if the diagnosis was viewed as new, the claim was

untimely under state law. Rodgers v. State, 288 So.3d 1038 (Fla. 2019).

The Florida Supreme Court first explained that for a claim of newly discovered

evidence to be considered timely, the claim was “required to have been filed within one

year of the date upon which the claim became discoverable through due diligence.”

Rodgers, 288 So.3d at 1089. The Florida Supreme Court cited a Florida case and a

Florida rule of court in support of that statement. Jd. (citing Jimenez v. State, 997

So.2d 1056, 1064 (Fla. 2008), and Fla. R. Crim. P. 3.851(d)(1)-(2)). The Florida

Supreme Court timed the one year as starting from some point between the date of the

psychiatrist’s evaluation of Rodgers in 2016 and the filing of the prior state

postconviction motion in early 2017. Jd. at 1039. The Florida Supreme Court noted,

however, that the current successive postconviction motion had not been filed until

nearly two years later on December 4, 2018. The Florida Supreme Court reasoned that

because Rodgers knew of the diagnosis of gender dysphoria in 2016 but had not filed

the claim until late in 2018, the successive postconviction motion was not timely. And

therefore, the claim of newly discovered evidence was “time-barred.” Id.

Alternatively, the Florida Supreme Court concluded that even without the time

bar, the summary denial was proper because the evidence at issue was “not newly

discovered.” Rodgers, 288 So.3d at 1039. The Florida Supreme Court explained that,

under state law, to prevail on a newly discovered evidence claim, two requirements

must be met: 1) the evidence must not have been known by the trial court, the party,

or counsel at the time of trial, and it must appear that the defendant or defense counsel

could not have known of it by the use of diligence; and 2) the newly discovered evidence

must be of such a nature that it would probably produce an acquittal on retrial. Id.

(citing Jones v. State, 709 So.2d 512, 521 (Fla. 1998) (Jones I). The Florida Supreme

Court concluded that in this case, the first prong of Jones IJ regarding the evidence not

having been known at the time of the trial, “ends the inquiry” because the essence of

the evidence was known at the time of the pleas and the waivers. Rodgers, 288 So.3d

at 1040. The Florida Supreme Court reasoned that Rodgers’ symptoms that are now

attributed to gender dysphoria, such as severe depression, self-mutilation, and suicide

attempts, were all known at the time of the pleas and waivers and therefore were not

newly discovered evidence at all. The Florida Supreme Court reasoned that the

“medical community’s subsequent assignment of a name to the cause of known

symptoms is not newly discovered evidence.” Jd.

The Florida Supreme Court further concluded, even if the diagnosis could be

viewed as newly discovered evidence, Rodgers was not diligent as required by Jones IT

because Rodgers waited until 2018 to raise the claim, despite knowing about the

diagnosis in 2016. Rodgers, 288 So.3d at 1040. The Florida Supreme Court affirmed

the lower court’s summary denial of the successive postconviction as “time-barred and,

in any event, not based upon newly discovered evidence.” Id. The Florida Supreme

Court stated that “because Rodgers validly waived postconviction proceedings and

counsel, future filings should not be made on Rodgers’ behalf in the circuit court

10

without first seeking leave from the circuit court and explaining how the appointment

of counsel and the proposed filing are authorized in light of Rodgers’ valid waiver.” Id.

Issues are solely a matter of state law

This Court lacks jurisdiction over cases that do not present federal questions.

28 U.S.C. § 1257; Johnson v. Williams, 568 U.S. 289, 309 (2013) (Scalia, J., concurring)

(noting that 28 U.S.C. § 1257 imposes a federal-question requirement as a condition

of this Court’s appellate jurisdiction). In Michigan v. Long, 463 U.S. 1032 (1983), this

Court explained that it lacks jurisdiction over a case if a state court’s decision rests

upon two grounds, one of which is a state law ground and the other is a federal ground

if the state law ground is independent of the federal ground and adequate itself to

support the judgment. Jd. at 1038 n.4 (quoting Fox Film Corp. v. Muller, 296 U.S. 207,

210 (1935)). Provided the state law is not “interwoven” with federal law, this Court’s

jurisdiction “fails.” Id. (citing Enter. Irrigation Dist. v. Farmers Mut. Canal Co., 248

U.S. 157, 164 (1917)).

The two issues being raised in the petition are not interwoven with federal law.

Rather, the issues are purely issues of state law. Whether a successive postconviction

motion filed in state court is timely or not is solely a matter of state law. And the

underlying substantive claim based on the Florida Supreme Court’s decision in Hurst

v. State, 202 So.3d 40 (Fla. 2016), is also a matter of state law. There is no federal

question presented in the petition.

The timeliness of state postconviction motions filed in state court is a matter of

state law, not a matter of federal law. The Florida Supreme Court in this case relied

on a Florida case and a Florida court rule of court to determine the claim was

untimely. Rodgers, 288 So.3d at 1039 (citing Jimenez v. State, 997 So.2d 1056, 1064

(Fla. 2008), and Fla. R. Crim. P. 3.851(d)(1)-(2)). The Florida Supreme Court did not

11

cite or discuss federal law at any point in its determination of timeliness. So, the state

law in the Florida Supreme Court’s decision was not interwoven with any federal law.

The procedural issue of timeliness is purely a matter of state law and therefore, under

Long, this Court lacks jurisdiction.

The underlying substantive issue in the case regarding the Florida Supreme

Court’s decision in Hurst v. State is also purely a matter of state law. Fundamentally,

Rodgers is arguing that gender dysphoria rendered both the waiver of the penalty

phase jury at the resentencing and the waiver of postconviction proceedings

involuntary and therefore, Hurst v. State should be applied to this case, regardless of

the waivers. Rodgers, 288 So.3d at 1039 (describing the claim). But whether Rodgers

is entitled to any relief based on the Florida Supreme Court’s decision in Hurst v. State,

as opposed to any relief based on this Court’s decision in Hurst v. Florida, is also a

matter of state law. Federal habeas counsel’s entire theory as to why Rodgers is

entitled to a third penalty phase depends on the unique aspects of Hurst v. State as

well as on the retroactivity of Hurst v. State and its exceptions. But all of that is a

matter of state law.®

While this Court recently held that Hurst v. Florida is not retroactive, the

Florida Supreme Court has held that their decision in Hurst v. State is partially

retroactive. McKinney v. Arizona, 140 S.Ct. 702, 708 (2020) (stating that Hurst v.

? The Florida Supreme Court recently receded from Hurst v. State “except to the

extent that it held that a jury must unanimously find the existence of a statutory

aggravating circumstance beyond a reasonable doubt.” State v. Poole, ___— So.3d ____,

2020 WL 3116597 (Fla. Jan. 23, 2020) (SC18-245). The Florida Supreme Court’s

decision in State v. Poole closely follows this Court’s decisions in Hurst v. Florida and

McKinney v. Arizona, 140 S.Ct. 702 (2020). Only one aggravating factor is required for

a defendant to be eligible for the death penalty under Florida law. State v. Poole, 2020

WL 3116597 at *11,*15. Rodgers would not be entitled to a third penalty phase under

State v. Poole due to the prior convictions including the prior federal murder conviction.

Smith v. State, So.38d___,__, 2020 WL 1057243, *6 (Fla. Mar. 5, 2020) (rejecting

a Hurst v. State claim due to the prior convictions citing State v. Poole).

12

Florida does not apply retroactively on collateral review); Mosley v. State, 209 So.3d

1248, 1276-83 (Fla. 2016) (using the state retroactivity test of Witt v. State, 387 So.2d

922 (1980), to determine the retroactivity of Hurst v. State). Rodgers’ death sentence

became final in 2009, which was many years before this Court’s decision in Hurst v.

Florida in 2016. So, this Court’s decision in Hurst v. Florida does not apply at all.

Rodgers is not entitled to any relief in any federal court under McKinney.

The retroactivity of the Florida Supreme Court’s decision in Hurst v. State,

however, is a matter of state law. Danforth v. Minnesota, 552 U.S. 264, 282 (2008). As

the Eleventh Circuit recently observed regarding the retroactivity of Hurst v. State,

state-law retroactivity determinations have “no significance in federal court.” Knight

v. Fla. Dep’t of Corr., 936 F.3d 1322, 1332-33 (11th Cir. 2019) (explaining that “Florida

may make its own choice about the retroactivity of a given case as a matter of state

law” and that Florida “has its own retroactivity standard”), pet. for cert. filed April 23,

2020 (No. 19-8341). The Eleventh Circuit in Knight followed federal retroactivity

principles noting the obligation of federal courts “to apply federal retroactivity

standards.” Id. at 1334. Federal law does not give Rodgers the right to pick and choose

those aspects of the Florida Supreme Court's state retroactivity determinations that

are favorable.

Under Florida law, Rodgers was not entitled to any relief due to a state law

exception to Hurst v. State that applies when a capital defendant waives the penalty

phase jury. The Florida Supreme Court refused to grant Rodgers a third penalty phase

due to the waiver of the penalty phase jury in this case. Rodgers v. State, 242 So.3d 276

(Fla. 2018) (stating that the Florida Supreme Court has “consistently” held that Hurst

does not apply to defendants, like Rodgers, who waive a penalty phase jury citing

Mullens v. State, 197 So.3d 16 (Fla. 2016)). The Florida Supreme Court created an

exception to their Hurst v. State decision for capital defendants who waive their

13

penalty phase juries in Mullens. But the Mullens exception is also a matter of state

law. The Florida Supreme Court did not cite any federal case in support of its

reasoning in Mullens. Instead, the Florida Supreme Court in Mullens cited a South

Dakota case and an Illinois case. Mullens, 197 So.3d at 40 (citing State v. Piper, 709

N.W.2d 783, 808 (S.D. 2006), and People v. Rhoades, 753 N.E.2d 537, 543 (IIL. App. Ct.

2001)). The reasoning of the Florida Supreme Court in Mullens was not interwoven

with federal law. Moreover, this Court has repeatedly denied review of Florida capital

cases involving the Mullens exception including in Mullens itself as well as in Rodgers’

prior petition. Mullens v. State, 197 So.3d 16, 40 (Fla. 2016), cert. denied, Mullens v.

Florida, 137 S.Ct. 672 (2017) (No. 16-6773); Rodgers v. State, 242 So.3d 276, 276-77

(Fla. 2018), cert. denied, Rodgers v. Florida, 139 8.Ct. 592 (2018) (No. 18-113).4 The

Mullens exception is also a matter of state law.

The substantive issue of Hurst v. State and its retroactivity as well as its

exceptions are all purely matters of state law. Under Long, this Court also lacks

jurisdiction over the substantive issue of Hurst v. State and its exceptions.

Both the procedural issue of the untimeliness of the successive postconviction

claim and the underlying substantive issue of Hurst v. State being presented in the

petition are solely matters of state law. There is no federal question presented in the

petition. So, this Court lacks jurisdiction over this case.

‘ See e.g., Covington v. State, 228 So.3d 49, 69 (Fla. 2017), cert. denied,

Covington v. Florida, 138 S.Ct. 1294 (2018) (No. 17-7400); Twilegar v. State, 228 So.3d

550 (Fla. 2017), cert. denied, Twilegar v. Florida, 138 S.Ct. 2578 (2018) (No. 17-8236);

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

165 (2018) (No. 17-9401); Hutchinson v. State, 243 So.3d 880 (Fla. 2018), cert. denied,

Hutchinson v. Florida, 139 8.Ct. 261 (2018) (No. 19-5377); Lynch v. State, 254 So.3d

312, 322 (Fla. 2018), cert. denied, Lynch v. Florida, 139 8. Ct. 1266 (2019) (No. 18-

7118); Robinson v. State, 260 So.3d 1011, 1015-16 (Fla. 2018), cert. denied, Robinson

v. Florida, 140 S.Ct. 152 (2019) (No. 18-9363); see also Brant v. State, 284 So.3d 398,

399-400 (Fla. 2019), pet. for cert. filed June 29, 2020, Brant v. Florida, No. 19-8845.

14

No conflict with this Court’s jurisprudence

There is no conflict between this Court’s jurisprudence and the Florida Supreme

Court’s decision holding the state successive postconviction motion was untimely. Sup.

Ct. R. 10(c) (listing conflict with this Court as a consideration in the decision to grant

review). This Court has never recognized a federal constitutional right to state

postconviction proceedings, much less recognized a federal constitutional right to state

successive postconviction proceedings. And this Court certainly has never held, or even

hinted, that state courts could not put reasonable time limitations on state

postconviction proceedings. To the contrary, this Court has upheld time limitations in

related contexts. Felker v. Turpin, 518 U.S. 651, 664 (1996) (upholding, in a capital

case, a one-year time limitation on federal habeas review); Dist. Attorney's Office for

Third Judicial Dist. v. Osborne, 557 U.S. 52, 70 (2009) (holding that Alaska’s

postconviction DNA test procedures, which required the claim be diligently pursued,

did not violate the federal due process clause). So, even if there was a federal

constitutional right to state postconviction litigation, it would not prevent the state

courts from requiring that postconviction claims be brought in a timely manner. There

is no federal constitutional right to untimely successive postconviction proceedings in

state court.

This Court has certainly not expressed any constitutional concerns with the

reasonable time limitations and diligence requirements in federal habeas litigation.

This Court read the federal habeas one-year limitation period on new claims in 28

U.S.C. § 2255((4), as requiring due diligence. In Johnson v. United States, 544 U.S.

295 (2005), this Court held that the vacating of two Georgia state convictions that had

been used to enhance a federal sentence restarted the clock to timely file a federal

habeas petition under § 2255(H(4), but that the petitioner was not diligent. The

Johnson Court concluded that § 2255(f)(4) applied and would permit a habeas

15

petitioner to file a timely federal habeas petition if the petition was filed within a year

of the prior conviction being vacated by the state court. But the Johnson Court

explained that § 2255(f)(4) only applies if the habeas petitioner “has shown due

diligence.” Jd. at 302. This Court then determined that Johnson had not been diligent

in challenging his state prior convictions in state court because he waited over three

years from his federal sentencing to file the challenges to the prior convictions in state

court. fd. at 311. This Court found that Johnson waiting over 21 months after the

federal sentence was final to go into state court was unreasonable and noted that

Johnson offered no explanation for that delay. Jd. This Court concluded: “Johnson fell

far short of reasonable diligence in challenging the state conviction.” Jd. This Court

emphasized the habeas statute’s “clear policy calls for promptness.” Jd. This Court

thought that time limitations and a diligence requirement regarding new claims were

necessary to prevent turning federal courts into “a forum for difficult and

time-consuming reexaminations of stale state proceedings.” Id. at 303.

Here, the Florida Supreme Court relied on their prior caselaw interpreting an

state rule of court, rule 3.851(d), that is roughly equivalent to § 2255(f), to determine

that the successive postconviction motion was untimely because Rodgers had not been

diligent. Rodgers, 288 So.3d at 1039 (citing Jimenez v. State, 997 So.2d 1056, 1064 (Fla.

2008), and Fla. R. Crim. P. 3.851(d)(1)-(2)). The Florida Supreme Court in this case did

exactly what this Court in Johnson did regarding diligence. The Florida Supreme

Court may interpret a state criminal rule as mandating promptness, just as this Court

interpreted the federal habeas statute as mandating “promptness.” Johnson, 544 U.S.

at 311. And Rodgers’ petition is an attempt to do exactly what this Court in Johnson

warned against, which is turning this Court into a “forum” for “reexamining” a “stale”

claim regarding a waiver of a penalty phase jury found to be voluntary by the Florida

Supreme Court over a decade ago, in 2009, as well as reexamining a waiver of

16

postconviction proceedings found to be voluntary by the Florida Supreme Court years

ago, in 2012. Rodgers, 3 So.3d at 1131-33 (rejecting a challenge to Rodgers’ competency

to waive the penalty phase jury at the resentencing); Rodgers, 242 So.3d 276 (Fla.

2018) (rejecting a second challenge to the waiver of the penalty phase jury at the

resentencing); Rodgers v. State, 104 So.3d 1087 (Fla. 2012) (finding waiver of state

postconviction proceedings and state postconviction counsel to be voluntary). Rodgers’

attacks on the waivers are not only “stale” attacks, they are repetitious attacks.

Rodgers v. Florida, 139 S.Ct. 592 (2018) (No. 18-113) (denying review of a similar

issue).

There is no conflict between this Court’s decision in Johnson and the Florida

Supreme Court’s decision in this case. To the contrary, the Florida Supreme Court’s

decision in this case closely tracks this Court’s decision in Johnson.

Federal habeas counsel attempts to create conflict with this Court’s decision in

Garza v. Idaho, 139 8.Ct. 738 (2019), but fails. Pet. at 36. There is no conflict between

Garza and the Florida Supreme Court’s decision that the successive postconviction

claim was untimely. In Garza, this Court held trial counsel’s performance was

deficient for not filing a notice of appeal, despite the defendant telling counsel that he

wanted to appeal, and that prejudice from that failure would be presumed. Id. at 742.

Garza was an ineffective assistance of counsel case, not a voluntariness of a waiver

case, much less a timeliness of a successive state postconviction motion case. Indeed,

the main issue in Garza was whether prejudice would be presumed pursuant to Roe v.

Flores-Ortega, 528 U.S. 470 (2000), in spite of the generic appellate waiver in Garza’s

written plea agreement.

Federal habeas counsel focuses on the statements in Garza concerning appellate

waivers. Pet. at 37. The Garza Court stated that “no appeal waiver serves as an

absolute bar to all appellate claims” and then explained that the scope of the waiver

17

depends on the exact language of the waiver which often leaves “many types of claims

unwaived.” Garza, 139 S.Ct. at 744. The waivers at issue in this case were not generic

waivers. Both the waiver of the penalty phase jury and the waiver of postconviction

proceedings in this case were entered into after on-the-record colloquies and both

waivers were then affirmed as voluntarily by the Florida Supreme Court. Rodgers v.

State, 3 So.38d 1127, 1131-33 (Fla. 2009) (affirming the waiver of the penalty phase

jury); Rodgers v. State, 104 So.3d 1087 (Fla. 2012) (SC11-1401) (affirming the waiver

of postconviction proceeding as voluntary). The Garza Court also stated that “all

jurisdictions appear to treat at least some claims as unwaivable” and then gave as an

example the issue of the voluntariness of the waiver itself. Jd. at 745. But that

language is not a constitutional holding; rather, it is merely an observation about

standard practice in courts. And Florida follows that standard practice regarding

allowing appeals of the voluntariness of the waiver itself and did so in this case.

Florida’s rules of court provide for a mandatory, automatic, and fast-track appeal of

any waiver of state postconviction proceedings. Fla. R. Crim. P. 3.851()(8); Rodgers v.

State, 104 So.3d 1087 (Fla. 2012) (SC11-1401) (affirming the waiver of postconviciton

proceedings as voluntary in the mandatory appeal). What federal habeas counsel is

seeking is not the right to attack the voluntariness of a waiver once but the right to

repeatedly attack the voluntariness of a waiver but Garza has nothing to say on that

subject. Garza simply has nothing to say regarding the validity of either of the waivers

at issue in this case and even less to say regarding timeliness of a state successive

postconviction motion. There is no conflict with Garza.

Federal habeas counsel seems to be reading Garza as an implied constitutional

prohibition on waivers of future claims. Pet. at 37-39 (citing Halbert v. Michigan, 545

U.S. 605 (2005)). But this Court has repeatedly observed that a criminal defendant

may waive even the most fundamental of constitutional rights. Peretz v. United States,

18

501 U.S. 923, 986 (1991) (stating the “most basic rights” of criminal defendants are

subject to waiver citing cases). And, as this Court has explained, subsequent

developments in the law, that modify or expand an established right, such as the

established state statutory right to a penalty phase jury and established right to state

postconviction proceedings, do not render prior waivers of those rights involuntary.

McMann v. Richardson, 397 U.S. 759, 773-74 (1970) (explaining that when a

defendant waives a right he does so under the law that exists at the time of the

waiver). Additionally, the Halbert attack on the waivers is the same attack that

federal habeas counsel raised in their prior petition filed in this Court, which this

Court denied. Rodgers v. Florida, 139 S.Ct. 592 (2018) (No. 18-113). There is no

conflict with this Court’s statements in Garza regarding waivers and the Florida

8 . . 5

Supreme Court’s decision in this case.

> Federal habeas counsel also invokes Garza to attack the Florida Supreme

Court’s ruling regarding the waiver of state postconviction proceedings precluding any

future filings in state court.. The Florida Supreme Court noted that because Rodgers

waived postconviction proceedings as well as state postconviction counsel, no further

pleadings should be filed in the state trial court “without first seeking leave from the

circuit court and explaining how the appointment of counsel and the proposed filing are

authorized in light of Rodgers’ valid waiver.” Rodgers, 288 So.3d at 1040.

But such a claim is not ripe. Federal habeas counsel has not been prevented

from filing anything in state court yet. The State filed a motion to dismiss the entire

appeal in this case due to the waiver of postconviction proceedings but the Florida

Supreme Court denied that motion. In fact, opposing counsel has been allowed to file

two successive postconviction motions in state court and appeal both of those motions

to the Florida Supreme Court and then seek review of both those motions in this Court,

despite the 2012 waiver of postconviction proceedings.

Furthermore, federal habeas counsel should not be appearing in state court at

all. The federal statute that provides federal habeas counsel to state capital

defendants, 18 U.S.C. § 3599, should not be used to undermine a valid waiver of state

postconviction counsel and state postconviction proceedings, as it is being used by

federal habeas counsel to do in this case. Gary v. Warden, Ga. Diagnostic Prison, 686

F.3d 1261,1278 (11th Cir. 2012) (denying § 3599 funding for state court postconviction

DNA litigation and noting the “sound policy reasons” why federal habeas counsel

should not appear in state court litigation including the “troubling federalism

concerns” raised by such “federal interference” with state criminal prosecutions).

19

There is no conflict between this Court’s jurisprudence regarding time

limitations in the postconviction setting or this Court’s jurisprudence regarding

waivers and the Florida Supreme Court’s decision in this case. |

No conflict with the federal circuit courts or state courts of last resort

There is also no conflict between the decision of any federal appellate court or

any state supreme court and the Florida Supreme Court decision in this case. As this

Court has observed, a principal purpose for certiorari jurisdiction “is to resolve conflicts

among the United States courts of appeals and state courts concerning the meaning

of provisions of federal law.” Braxton v. United States, 500 U.S. 344, 347 (1991); see

also Sup. Ct. R. 10(b) (listing conflict among federal appellate courts and state supreme

courts as a consideration in the decision to grant review). Issues that have not divided

the courts or are not important questions of federal law do not merit this Court’s

attention. Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184 n.3 (1987).

In the absence of such conflict, certiorari is rarely warranted.

Rodgers cites to no decision of any federal circuit court or state court of last

resort that has held that time limitations on successive postconviction motions filed in

state court violate the Eighth Amendment, which is the provision federal habeas

counsel relies upon in the petition. Nor has Rodgers cited to any case holding that

gender dysphoria necessarily renders pleas or any other type of waivers involuntary.

Gender dysphoria and its related depression do not automatically render a person

Federal habeas counsel, despite being appointed nearly five years ago by the federal

district court, has yet to file a federal habeas petition. Instead, federal habeas counsel

has repeatedly appeared in state court in violation of the waiver. Federal habeas

counsel should not be permitted to appear in state court at all, much less to file what

would be a third successive postconviction motion in state court. Indeed, this Court

should also prohibit federal habeas counsel from filing any future petitions seeking

review of state postconviction proceedings in this Court. Two petitions attacking the

same waivers is enough.

20

incompetent to stand trial, to enter a plea, or to waive rights. Rodgers’ own expert in

the 2017 and 2018 successive postconviction motions, Dr. Kessel, explained that gender

dysphoria leads to depression. But even major depression does not necessarily

invalidate a waiver. Garcia v. Bravo, 181 Fed. Appx. 725, 730 n.2 (10th Cir. 2006)

(observing that major depression does not show that a plea was involuntary citing

Miles v. Dorsey, 61 F.3d 1459, 1470 (10th Cir. 1995)). There is no conflict with the

Tenth Circuit's caselaw. Moreover, the Florida Supreme Court’s decision in this case

focused on the untimeliness of the claim, not its merits. The Florida Supreme Court

found the claim was untimely and that the diagnosis was not new, so, the Florida

Supreme Court never reached the issue of the effect of the diagnosis.

Additionally, Rodgers has repeatedly been found to be competent in both state

and federal court. The federal court found Rodgers to be competent to enter a plea to

the federal murder charges. Rodgers was also found competent to plead guilty in state

court and the Florida Supreme Court affirmed that finding in the first appeal. Rodgers,

934 So.2d at 1210. Years later, Rodgers was again found competent to waive the right

to a penalty phase jury at the second penalty phase in state court. Rodgers, 3 So.3d at

1132-33. And then, years after that, Rodgers was found competent a third time in

state court during the waiver of postconviction proceedings. Rodgers v. State, 104S0.3d

1087 (Fla. 2012). Rodgers was examined many times over the years by numerous

different mental health experts and not one of them found Rodgers to be incompetent.

There is no conflict between the Florida Supreme Court’s decision and that of

any federal circuit court of appeals or that of any state court of last resort. Because

there is no conflict among the lower appellate courts, review in this Court should be

denied.

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