Petition for Writ of Certiorari — John D. Freeman, Petitioner v. Florida

No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

JOHN FREEMAN,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

THIS IS A CAPITAL CASE

STACY R. BIGGART

Counsel of Record

DAWN B. MACREADY

CANDACE RECHTMANN

Capital Collateral Regional Counsel –

Northern Region

1004 DeSoto Park Drive

Tallahassee, Florida 32301

(850) 487-0922

Stacy.Biggart@ccrc-north.org

CAPITAL CASE

QUESTIONS PRESENTED

1.

Whether Florida’s postconviction procedures governing intellectual

disability claims fail to vindicate defendants’ substantive Eighth

Amendment rights, such that it constitutes a violation of due process?

2.

Whether this Court’s decision in Hall v. Florida, 134 S. Ct. 1986 (2014),

announced a new substantive rule, such that it must be applied

retroactively by state courts under Montgomery v. Louisiana, 136 S. Ct. 718

(2016).

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................ i

TABLE OF CONTENTS .................................................................................................ii

TABLE OF AUTHORITIES .......................................................................................... iv

PARTIES TO THE PROCEEDINGS ............................................................................. 1

DECISION BELOW ........................................................................................................ 1

JURISDICTION .............................................................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED ......................................................... 2

INTRODUCTION ........................................................................................................... 2

STATEMENT OF THE CASE ........................................................................................ 7

A.

Trial, Conviction, and Death Sentence....................................................... 7

B.

Initial State and Federal Collateral Proceedings ...................................... 9

C.

Successive Post Conviction Proceedings .................................................. 10

D.

Atkins/Hall Litigation and Decision Below.............................................. 10

REASONS FOR GRANTING THE WRIT ................................................................... 14

I.A.

Petitioner has Been Denied Due Process ............................................... 14

I.B.

There is No Adequate State Bar ............................................................ 22

II.

Certiorari is Warranted to Resolve a Split Over Whether Hall

Applies Retroactively to Cases on Collateral Review…………………….27

A. Overview of Opinions that have found Hall applies Retroactively on

Collateral Review……………………………………………….………….27

B. Overview of Opinions that have found Hall is not Retroactively

Applicable on Postconviction Review……………………….………….30

III.

The Florida Supreme Court’s Decision Below Violates Montgomery v.

Louisiana, 136 S. Ct. 718 (2016)............................................................. 32

CONCLUSION………………………………………………………………………………..40

ii

INDEX TO APPENDIX

Exhibit 1 — Florida Supreme Court Opinion Below (August 13, 2020) ...................... 1

iii

TABLE OF AUTHORITIES

Cases:

Atkins v. Virginia, 536 U.S. 304 (2002) .................................................... passim

Am. Ry. Express Co. v. Levee, 263 U.S. 19 (1923)............................................. 26

Beard v. Kindler, 558 U.S. 53 (2009) ........................................................... 23-25

Bouie v. City of Columbia, 378 U.S. 347 (1964) ............................................... 22

Bousley v. United States, 523 U.S. 614 (1998) ................................................. 37

In re Bowles, 935 F.3d 1210 (11th Cir. 2019) ................................................... 31

Bowles v. Florida, 140 S. Ct. 2589 (2019) ........................................................ 20

Brinkerhoff-Faris Tr. & Sav. Co. v. Hill, 281 U.S. 673 (1930) ................... 16-18

Chaidez v. United States, 568 U.S. 342 (2013) ................................................ 34

Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005) .............................................. 35

Cherry v. State, 781 So. 2d 1040 (Fla. 2000) .................................................... 11

Cherry v. State, 959 So. 2d 702 (Fla. 2007)....................................................... 11

Davis v. Wechsler, 263 U.S. 22 (1923) ............................................................... 26

Dist. Attorney's Office v. Osborne, 557 U.S. 52 (2009) ..................................... 16

Dye v. Hofbauer, 546 U.S. 1 (2005) ................................................................... 22

Ford v. Georgia, 498 U.S. 411 (1991) ................................................................ 25

Ford v. Wainwright, 477 U.S. 399 (1986) .................................................... 18-20

Freeman v. Atty. Gen., 536 F.3d 1225 (11th Cir. 2008) ................................... 10

Freeman v. Florida, 501 U.S. 1259 (1991) ......................................................... 8

Freeman v. Florida, 541 U.S. 1010 (2004) ......................................................... 9

Freeman v. McCollum, 555 U.S. 1110 (2009) .................................................. 10

Freeman v. McDonough, No. 3:03-CV-668-J-32 (M.D. Fla. 2006) .................. 10

Freeman v. State, 547 So. 2d 125 (Fla. 1989) .................................................... 8

Freeman v. State, 563 So. 2d 73 (Fla. 1990) ...................................................... 8

Freeman v. State, 761 So. 2d 1055 (Fla. 2000) ................................................... 9

Freeman v. State, 858 So. 2d 319 (Fla. 2003) ..................................................... 9

Freeman v. State, 300 So. 3d 591 (Fla. 2020) ......................................... 6, 14, 38

iv

Fuentes v. Shevin, 407 U.S. 67 (1972) ............................................................... 16

Fuller v. Alaska, 393 U.S. 80 (1968) ................................................................ 34

Furman v. Georgia, 408 U.S. 238 (1972) ..................................................... 35-36

Goodwin v. Steele, 814 F.3d 901 (8th Cir. 2014) ........................................ 31, 39

Griffith v. Kentucky, 479 U.S. 314 (1987) ......................................................... 34

Hall v. Florida, 134 S. Ct. 1986 (2014) ..................................................... passim

Hall v. State, 403 So. 2d 1321 (Fla. 1981) ....................................................... 33

Hall v. State, 109 So. 3d 704 (Fla. 2012) ......................................................... 33

Hall v. State, 201 So. 3d 628 (Fla. 2016) ......................................................... 40

Harris v. Sharp, 941 F.3d 962, 982-83 (10th Cir. 2019) ................................. 29

In re Henry, 757 F.3d 1151 (11th Cir. 2014) ................................................ 30-31

Henry v. Mississippi, 379 U.S. 443 (1965) ........................................................ 23

Hurst v. Florida, 136 S. Ct. 616 (2016) ............................................................. 14

Jenkins v. Comm’r, Ala. Dep’t of Corr., 936 F.3d 1252 (11th Cir. 2019) ........ 31

Johnson v. Lee, 136 S. Ct. 1802 (2016) ............................................................. 25

Johnston v. State, 960 So. 2d 757 (Fla. 2006) .................................................. 12

Jones v. State, 966 So.2d 319 (Fla. 2007) ......................................................... 12

Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301 (11th Cir. 2015) ......... 27, 31

Kindler v. Horn, 642 F.3d 398 (3d Cir. 2011) .............................................. 25-26

Mathews v. Eldridge, 424 U.S. 319 (1976)........................................................ 15

Medina v. California, 505 U.S. 437 (1992) ................................................. 15, 21

Miller v. Alabama, 567 U.S. 460 (2012) ................................................ 31, 38, 39

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ...................................... passim

Moore v. Texas, 137 S. Ct. 1039 (2017) ............................................................ 35

In re Morgan, 713 F.3d 1365 (11th Cir. 2013) .................................................. 30

Nelson v. Colorado, 137 S. Ct. 1249 (2017) ...................................................... 15

Nixon v. State, 2 So. 3d 137 (Fla. 2009) ........................................................... 12

Panetti v. Quarterman, 551 U.S. 930 (2007) ................................................... 20

Payne v. State, 493 S.W.3d 478 (Tenn. 2016) ............................................ 27, 31

In re Payne, 722 F. App’x 534 (6th Cir. 2018) ........................................... 27, 32

v

Penry v. Lynaugh, 492 U.S. 302 (1989) ............................................................. 32

Phillips v. State, 299 So. 3d 1013 (Fla. 2020) .......................................... passim

Rogers v. State of Alabama, 192 U.S. 226 (1904) ............................................. 26

Schriro v. Summerlin, 542 U.S. 348 (2004) ................................................ 34, 38

Smith v. Digmon, 434 U.S. 332, 333 (1978) ..................................................... 22

Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019) .............................................. 27

Street v. New York, 394 U.S. 576 (1969) .......................................................... 22

Ex parte Siebold, 100 U.S. 371 (1879) ............................................................. 33

Smith v. Sharp, 935 F.3d 1064 (10th Cir. 2019) .................................. 26, 28-29

State v. Barwick, No. 86-940, 2003 WL 26118942 (Fla. 14th Cir. Ct. Sep. 16,

2003) .................................................................................................................. 12

State v. Herring, 76 So. 3d 891 (Fla. 2011) ...................................................... 11

State v. Jones, No. F90-50143, 2006 WL 5837898 (Fla. 11th Cir. Ct. Feb. 24,

2006) .................................................................................................................. 12

State v. Thompson, No. F1976-03350, 2004 WL 7340335 (Fla. 11th Cir. Ct.

Dec. 17, 2004) .................................................................................................... 12

Teague v. Lane, 489 U.S. 288 (1989) ......................................................... passim

Walker v. Martin, 562 U.S. 307 (2011) ............................................................. 24

Walls v. State, 213 So. 3d 340 (Fla. 2016), corrected op. (May 4, 2017) .. passim

Ward v. Love County, 253 U. S. 17 (1920) ........................................................ 26

Welch v. United States, 136 S. Ct. 1257 (2016) ........................................... 35-38

White v. Commonwealth, 500 S.W.3d 208 (Ky. 2016) ...................................... 27

Williams v. Kelley, 838 F.3d 464 (8th Cir. 2017) ............................................. 27

Williams v. United States, 401 U.S. 667 (1971) .............................................. 34

Wolff v. McDonnell, 418 U.S. 539 (1974) .......................................................... 16

Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018) ...................................... 28

Young v. Ragen, 337 U.S. 235 (1949) ............................................................... 21

Zack v. State, 911 So. 2d 1190, 1201 (Fla. 2005) ............................................. 11

vi

Statutes:

28 U.S.C. § 1257 ................................................................................................... 1

Fla. Stat. § 921.137 ....................................................................................... 10-11

Fla. Stat. § 916.106 ............................................................................................ 11

Fla. Stat. § 393.063 ............................................................................................ 11

Rules:

Fla. R. Crim. P. 3.203 ................................................................................ passim

Fla. R.. Crim. P. 3.851 ............................................................................... passim

vii

IN THE

Supreme Court of the United States

___________________________________________________________

JOHN FREEMAN,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

Petitioner, JOHN FREEMAN, a death-sentenced Florida prisoner, was the

appellant in the Florida Supreme Court. Respondent, the State of Florida, was the

appellee below. Petitioner invokes this Court’s jurisdiction to grant the Petition for

Writ of Certiorari to the Florida Supreme Court on the basis of 28 U.S.C. § 1257(a).

The Florida Supreme Court issued an opinion denying relief on August 13, 2020,

reported at 300 So. 3d 591 (Fla. 2020). See Exhibit 1 of the Appendix.

1

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment provides, in relevant part:

[N]or 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.

INTRODUCTION

Petitioner suffers from an intellectual disability. His risk factors for

intellectual disability started early. He was born in Georgia in 1963. His biological

father, George Jewell, abandoned the family shortly after Petitioner’s birth.

Petitioner and his siblings, Robert and Danette (Elizabeth), were then raised by his

mother, Mary Rigdon Freeman, and his stepfather, Charles Freeman.

Charles was violent and abusive. He would tie Petitioner to the bed or take

him to the woods and beat him with a 2x4 until he was bloody. Charles also beat

Petitioner with belts, switches, and his fists—he would beat Petitioner on the head

to the point of unconsciousness. Petitioner would be seen with bruises and marks on

his body. Sometimes, Petitioner was so badly beaten that he could not walk properly

or dress for gym class.

His stepfather’s abuse was not the only source of Petitioner’s childhood head

injuries. As a toddler, a car backed over Petitioner’s head. He had tire tracks

imprinted on his head from the weight of the car. He also fell off his bike, striking his

head and ending up unconscious.

2

As a child, Petitioner spent most of his time alone. He had no outside activities

and was not involved in any clubs or organizations. In school, he sat in the corner of

the classroom and did not learn. His intellectual disability manifested as early as first

grade, where he did poorly. By second grade, he continued falling behind. His teacher

commented that “John is very quiet and withdrawn” and “progresses slowly.” His

report card is empty in the “reading level” line.

In third grade, his teacher wrote “John’s progress is slow. His work is all below

grade level.”

Petitioner’s report card for fourth grade continues to highlight that he had

problems. His work was all below grade level. The report card states “below” in the

“reading level” line.

Throughout these grades, his attendance was excellent, highlighting that his

academic difficulties are explained by his underlying impaired intelligence, not by an

attendance issue. Petitioner sat in the corner, unable to learn. He did not achieve

literacy.

In fourth grade in 1973, Petitioner was evaluated by School Psychology

Services. The report states that as he was “presented with more difficult tasks, [he]

was reluctant to admit he did not know the correct response. On several occasions

John made no response at all and sat silently until another task was presented.” The

report states he was: “reading orally at the fifth month [level] of kindergarten.” The

report recommended special education classes.

But the special education classes did not help. In the fifth grade, Petitioner

3

was absent only four days, but still failed four classes. He was reported as “below” in

his “reading level.” Teacher comments indicate that his progress was slow, even

though this year was his first opportunity to attend a special education class.

In sixth grade, Petitioner had only five absences. He remained “below” in his

“reading levels and did not achieve.” He also did poorly in the seventh grade.

The next year, Petitioner went to Georgia to live with his biological father. He

was observed hiding from the school bus when it pulled up to take him to school. Later

that year, in September of 1976, he was charged with criminal damage to property

for shooting at pigs with an air rifle and was given probation.

In 1977, Petitioner was charged with committing a burglary with his brother

and another male. He was committed to the Department of Youth Services and sent

to the Youthful Services Training School followed by the Hillsborough Family Group

Home. He was furloughed on July 30, 1977.

School records resume for the school year 1977-78, when Petitioner was in the

eighth grade. He failed all classes. He ran away from home, and eventually was sent

to the notorious Dozier School for Boys in Marianna, Florida.

Petitioner was retained in tenth grade, the 1978-79 school year. A non-judicial

counseling report states that “he was interested in taking up a trade but when John

realized that he had to perform academically he could not cope with school and

dropped out.”

Petitioner was charged with possession of stolen property on August 8, 1979.

Consistent with a pattern of being easily led into trouble, the post-sentence

4

investigation noted the “defendant was involved with another individual and an adult

who was also on Florida Probation at the time, one Lonnie Lee Langford.” A predisposition report indicated “John appears to be drifting, as far as school and

community concern [sic]. He has lost interest in schooling because of not being able

to perform academically. He has no outside activities other than associating with

adult male offenders. John does not [sic] have self confident [sic] and violated the law

to be accepted by friends.”

Even as an adult, Petitioner’s capacity for independent, fully-functioning adult

living was limited. He was illiterate, not participating in the community, and in need

of vocational training. He was a follower, and his contacts with the criminal justice

system involved others. Over the next six years, he would be in and out of custody,

with a history reflective of his inability to maintain even simple release terms, such

as reporting. Petitioner could not maintain a bank account or credit card, did not vote

or participate in community functions or use community resources, did not own

property, and did easy to follow, menial work. His friends and family describe him as

slow, immature, and easily manipulated. Even with assistance, Petitioner struggled

to function outside of an institutional setting.

Despite his rife history of deficits—and this Court’s holding in Atkins v.

Virginia, 536 U.S. 304 (2002), that the execution of intellectually disabled individuals

violates the Eighth Amendment—Petitioner was precluded from litigating his claim

of intellectual disability because Florida utilized a strict cutoff rule that required an

individual to have an IQ score of 70 or below in order to raise a meritorious claim of

5

intellectual disability. It was not until this Court decided Hall v. Florida, 134 S. Ct.

1986 (2014), and deemed Florida’s “rigid rule” unconstitutional that Florida

defendants, like Petitioner, could raise a claim of intellectual disability with IQ scores

above Florida’s pre-Hall cutoff. In Walls v. State, 213 So. 3d 340 (Fla. 2016), corrected

op. (May 4, 2017), the Florida Supreme Court found that Hall applies retroactively.

The Florida Supreme Court noted that “[p]rior to the decision in Hall, a Florida

defendant with an IQ score above 70 could not be deemed intellectually disabled.”

Walls, 213 So. 3d at 345. As a result, the Walls Court held that under state law, “Hall

warrants retroactive application as a development of fundamental significance that

places beyond the State of Florida the power to impose a certain sentence—the

sentence of death for individuals within a broader range of IQ scores than before.” Id.

at 346. The Walls decision enabled Petitioner to finally pursue a good-faith claim of

intellectual disability.

Petitioner filed a successive Rule 3.851 motion within one year of the Florida

Supreme Court’s decision in Walls.1 Petitioner proffered unrebutted expert and lay

evidence that he is intellectually disabled within the meaning of Hall.

The circuit court summarily denied Petitioner’s claim of intellectual disability

on procedural grounds without addressing the merits of Petitioner’s claim. The

Florida Supreme Court upheld the lower court’s denial of relief on August 13, 2020,

but on somewhat different procedural grounds from the circuit court. Freeman v.

State, 300 So. 3d 591 (Fla. 2020). The Florida Supreme Court based its decision on

Petitioner’s amended successive Rule 3.851 motion was filed on January 19, 2018, and

related back to his motion filed October 19, 2017.

1

6

Phillips v. State, 299 So. 3d 1013 (Fla. 2020), a case decided one month earlier, in

which the court receded from Walls and held that federal law does not require the

retroactive application of Hall to defendants on collateral review. The Florida

Supreme Court raised the issue of retroactivity sua sponte, and did not allow

Petitioner to brief the issue of whether Walls should be overruled.

With the Phillips decision, the Florida Supreme Court continues to be an

outlier in Eighth Amendment jurisprudence, making it impossible for intellectually

disabled defendants on death row to receive Hall relief.

STATEMENT OF THE CASE

A.

Trial, Conviction, and Death Sentence

On November 11, 1986, Petitioner was arrested and charged with burglary and

the aggravated battery of Leonard Collier (hereinafter referred to as the “Collier

case”) which occurred that same day. (R2. 1-4). On December 4, 1986, Petitioner was

indicted for burglary and first-degree murder of Mr. Collier. (R2. 12-14).

On November 26, 1986, and while still in custody from his arrest in the Collier

case, Petitioner was charged with burglary and the murder of Alvin Epps (hereinafter

referred to as the “Epps case”) which occurred on October 20, 1986. (R1. 1-2). On April

23, 1987, Petitioner was indicted for burglary, armed robbery, and the first-degree

murder of Mr. Epps. (R1. 143-45).

The Epps case went to trial first, and on October 9, 1987, Petitioner was found

guilty of first-degree felony murder, burglary with an assault, and robbery with a

deadly weapon. (R1. 399-401). After the penalty phase, the jury recommended a life

7

sentence on October 13, 1987. (R1. 441). However, on December 11, 1987, the trial

court overrode the jury and imposed a death sentence. (R1. 568). On direct appeal,

the Florida Supreme Court affirmed Petitioner’s convictions, but vacated the

sentence of death and remanded to the trial court for the imposition of a life sentence.

Freeman v. State, 547 So. 2d 125 (Fla. 1989).

While the Epps case was pending on direct appeal, and while Petitioner’s death

sentence for the Epps case was still intact, the State moved forward with the trial of

the Collier case. Petitioner was found guilty of first-degree felony murder and

burglary with assault on September 15, 1988. (R2. 182-83). The “advisory” jury

recommended a death sentence by a vote of 9 to 3 on September 16, 1988. (R2. 216).

On November 2, 1988, the trial court sentenced Petitioner to death. (R2. 252-56).2 On

direct appeal, the Florida Supreme Court affirmed Petitioner’s convictions and death

sentence for the Collier case. Freeman v. State, 563 So. 2d 73 (Fla. 1990). This Court

denied certiorari on June 28, 1991. Freeman v. Florida, 501 U.S. 1259 (1991).

A death warrant was signed by then-Governor Lawton Chiles on March 12,

1992. (SC60-73299). On April 7, 1992, Petitioner filed a Petition for Extraordinary

Relief and for a Writ of Habeas Corpus, containing a single claim in reference to the

In its sentencing order, the trial court found three aggravating circumstances: (1)

Petitioner had previously been convicted of the crimes of first-degree murder, armed robbery,

and burglary to a dwelling with an assault, all of which had been committed just three weeks

before the killing of Collier; (2) the murder occurred while Petitioner was committing a

burglary to a dwelling; and (3) the murder was committed for pecuniary gain. The judge found

the second and third aggravating factors merged into one. Although the judge did not find

any statutory mitigators, he found the following nonstatutory mitigation: (1) Petitioner was

of low intelligence; (2) he had been abused by his stepfather; (3) he possessed some artistic

ability; and (4) he enjoyed playing with children. (R2. 257-60).

2

8

penalty phase jury instructions, as well as a request for stay of execution. (SC6079651). On April 10, 1992, the Florida Supreme Court granted a stay of execution,

giving Petitioner an opportunity to file a motion for postconviction relief with the trial

court. (SC60-79651).

B.

Initial State and Federal Collateral Proceedings

Petitioner thereafter proceeded in postconviction as to the Collier case only.3

He filed his initial Rule 3.850 motion for postconviction relief on June 29, 1992, and

then filed an amended Rule 3.850 motion on October 26, 1994. (PCR1. 12-147; 178318). On July 29, 1996, the circuit court summarily denied all claims without an

evidentiary hearing. (PCR1. 424-34). Petitioner appealed to the Florida Supreme

Court. The Florida Supreme Court affirmed in part, but remanded for an evidentiary

hearing on claims of ineffective assistance of counsel. Petitioner also had filed an

Amended Petition for Writ of Habeas Corpus on November 2, 1998. The habeas

petition was denied by the Florida Supreme Court in its consolidated opinion.

Freeman v. State, 761 So. 2d 1055 (Fla. 2000).

After an evidentiary hearing, the circuit court entered an order denying relief

on July 24, 2001. (PCR2. 155-67). On appeal, the Florida Supreme Court affirmed the

circuit court’s denial of postconviction relief. Freeman v. State, 858 So. 2d 319 (Fla.

2003).4 This Court denied certiorari on April 26, 2004. Freeman v. Florida, 541 U.S.

1010 (2004).

Since Petitioner received a life sentence in the Epps case, he was not appointed

postconviction counsel and did not file any motions for postconviction relief in that case.

4

Petitioner raised the following two issues on appeal: (1) whether trial counsel was

ineffective in the guilt phase for failing to object to the State’s alleged improper reliance on

3

9

On December 29, 2004, Petitioner filed a petition for writ of habeas corpus in

the United States District Court for the Middle District of Florida. The district court

denied the petition. Freeman v. McDonough, No. 3:03-CV-668-J-32 (M.D. Fla. 2006).

Subsequently, the United States Court of Appeals for the Eleventh Circuit concluded

that the district court properly denied Petitioner’s habeas petition. Freeman v. Atty.

Gen., 536 F.3d 1225 (11th Cir. 2008). This Court denied certiorari on January 12,

2009. Freeman v. McCollum, 555 U.S. 1110 (2009).

C.

Successive State Postconviction Proceedings

Between June 16, 2009, and July 30, 2013, Petitioner litigated postconviction

motions concerning DNA testing that are unrelated to the questions presented in this

petition. (PCR3. 585-90).

D.

Atkins/Hall Litigation and Postconviction Decision Below

On June 20, 2002, this Court decided Atkins v. Virginia, 536 U.S. 304 (2002).

Although this Court was explicit in Atkins about the prohibition on execution of the

intellectually disabled, this Court’s decision “left ‘to the State the task of developing

appropriate ways to enforce the constitutional restriction.’” Hall, 572 U.S. at 719

(quoting Atkins, 536 U.S. at 317). Because Atkins left the implementation of the

constitutional restriction up to the states, litigants in Florida were constrained by

Florida’s statutory definition of intellectual disability in pursuing claims.

Florida’s statutory definition of intellectual disability in Section 921.137,

Florida Statutes (2001) required that an individual’s IQ score be “two or more

racial factors in seeking the death penalty; and (2) whether trial counsel was ineffective in

the penalty phase for failing to present evidence in mitigation.

10

standard deviations from the mean score on a standardized intelligence test,” to

qualify him as intellectually disabled. See Cherry v. State, 959 So. 2d 702, 712-13 (Fla.

2007) (interpreting the “clear” language of the 2001 statute).5 Two standard

deviations from the mean is an IQ score of 70. See Hall, 472 U.S. at 711 (“The

standard deviation on an IQ test is approximately 15 points, and so two standard

deviations is approximately 30 points. Thus a test taker who performs ‘two or more

standard deviations from the mean’ will score approximately 30 points below the

mean on an IQ test, i.e., a score of approximately 70 points.”) (quoting § 921.137(1),

Fla. Stat. (2013)).

The Florida Supreme Court and lower courts interpreted the 2001 statute to

require individuals asserting an intellectual disability claim to have an IQ score of 70

or below. Cherry, 959 So. 2d at 712-14 (rejecting argument that courts should take

margin of error into account and finding that statute required “strict cutoff” of IQ

score of 70); Zack v. State, 911 So. 2d 1190, 1201 (Fla. 2005) (“Under Florida law, one

of the criteria to determine if a person is mentally retarded is that he or she has an

IQ of 70 or below.”) (citing Cherry v. State, 781 So. 2d 1040, 1044–45 (Fla. 2000)

(accepting expert testimony that in order to be found retarded, an individual must

The definition of “mentally retarded” as it relates to the death penalty was defined by

statute prior to the Atkins decision. See § 916.106(12), Fla. Stat. (2001) (defining retardation);

§ 393.063, Fla. Stat. (2001) (same). This preexisting definition was carried over to Section

921.137, Florida Statutes—enacted just one year prior to Atkins—which prohibited the

execution of the mentally retarded, although this law did not apply to defendants already

sentenced. See § 921.137(1), Fla. Stat. (2001); Ch. 2001-202, Laws of Fla.; see Zack v. State,

911 So. 2d 1190, 1201 (Fla. 2005) (referencing Section 916.106(12)). The definition of mental

retardation in Florida Rule of Criminal Procedure 3.203(b) mirrors the statutory definition.

See State v. Herring, 76 So. 3d 891, 895 (Fla. 2011).

5

11

score 70 or below on standardized intelligence test)); State v. Herring, 76 So. 3d 891,

895 (Fla. 2011) (“Despite various challenges to the application of a bright-line IQ

cutoff as it relates to the first prong of the mental retardation standard, this Court

has consistently and explicitly held that in order to prove exemption from execution

under section 921.137 and rule 3.203, a defendant must establish an IQ of 70 or

below.”); Nixon v. State, 2 So. 3d 137, 142 (Fla. 2009) (“We have consistently

interpreted this definition to require a defendant seeking exemption from execution

to establish he has an IQ of 70 or below.”); Jones v. State, 966 So.2d 319, 329 (Fla.

2007) (“[U]nder the plain language of the statute, ‘significantly subaverage general

intellectual functioning’ correlates with an IQ of 70 or below.”); Johnston v. State, 960

So. 2d 757, 760 (Fla. 2006) (finding that trial court committed no error in only

considering the first prong of 3.203 because Johnston failed to score 70 or below on

IQ test; adaptive functioning test was therefore unnecessary); State v. Jones, No. F9050143, 2006 WL 5837898 (Fla. 11th Cir. Ct. Feb. 24, 2006) (“Jones does not meet the

statutory requirements to be defined as mentally retarded. His I.Q. has consistently

been tested as above 70. Based on that alone, he is not mentally retarded.”); State v.

Thompson, No. F1976-03350, 2004 WL 7340335, at *4 (Fla. 11th Cir. Ct. Dec. 17,

2004) (“[Defendant] had an IQ of 75 in 1958 and that every IQ test taken during his

school years was 74-75. Hence he does not fall under the definition of mentally

retarded.”); State v. Barwick, No. 86-940, 2003 WL 26118942 (Fla. 14th Cir. Ct. Sep.

16, 2003) (noting that both sides agreed the law requires an IQ of 70 or lower).

In 2004, the Florida Supreme Court promulgated Fla. R. Crim. P. 3.203. See

12

Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate

Procedure, 875 So. 3d 563 (Mem) (Fla. 2004) (hereinafter “Amendments”). With

respect to those defendants whose initial postconviction motions had already been

ruled on, the rule provided:

If a death sentenced prisoner has filed a motion for postconviction relief,

the motion has been ruled on by the circuit court, and that ruling is final

on or before October 1, 2004, the prisoner may raise a claim under this

rule in a successive rule 3.851 motion filed within 60 days after October

1, 2004.

Fla. R. Crim. P. 3.203(d)(4)(F) (2004). The rule provided the same deadline for

defendants in various stages of postconviction. See Fla. R. Crim. P. 3.203(d)(4)(C)-(E).

Petitioner’s counsel did not file an intellectual disability claim before the expiration

of the time frame in subsection (d)(4)(F). Petitioner did not meet Florida’s strict IQ

cutoff score of 70 necessary to raise a meritorious Atkins claim in the State of Florida.

In 2014, this Court decided Hall v. Florida, which invalidated Florida’s brightline IQ score cutoff of 70 and found Florida’s statutory scheme for the determination

of intellectual disability, as interpreted by Florida courts, unconstitutional. See Hall,

572 U.S. at 724. Thereafter, on October 20, 2016, the Florida Supreme Court decided

Walls v. State, 213 So. 3d 340. The Florida Supreme Court noted that “[p]rior to the

decision in Hall, a Florida defendant with an IQ score above 70 could not be deemed

intellectually disabled.” Walls, 213 So. 3d at 345. The Walls Court held that under

state law, “Hall warrants retroactive application as a development of fundamental

significance that places beyond the State of Florida the power to impose a certain

sentence—the sentence of death for individuals within a broader range of IQ scores

13

than before.” Id. at 346.

On October 19, 2017, Petitioner filed a second successive Rule 3.851 motion for

postconviction relief, primarily based upon this Court’s decisions in Hurst v. Florida

and Hall v. Florida.6 (PCR3. 626-45). A successive amended Rule 3.851 motion was

filed on January 19, 2018. (PCR3. 697-734).7 The circuit court initially granted an

evidentiary hearing on Petitioner’s intellectual disability claim, but later vacated the

order and summarily denied Petitioner’s amended successive motion for

postconviction relief. (PCR3. 761-64; 909-14).

Petitioner appealed to the Florida Supreme Court. The Florida Supreme Court

affirmed the circuit court’s denial, citing to Phillips v. State, 299 So. 3d 1013 (Fla.

2020), which overruled Walls and held that federal law does not require the

retroactive application of Hall. Freeman v. State, 300 So. 3d 591 (Fla. 2020).

REASONS FOR GRANTING THE WRIT

I.A.

Petitioner has been Denied Due Process.

The procedural mechanism provided in Florida to raise an Eighth Amendment

intellectual disability claims on postconviction review is fundamentally inadequate

to vindicate Petitioner’s substantive Eighth Amendment rights. These procedures are

inconsistent with the Eighth Amendment’s prohibition against arbitrary and

capricious imposition of the death penalty and the Fourteenth Amendment’s

guarantee of due process and equal protection. These procedures violate fundamental

Hurst v. Florida, 136 S. Ct. 616 (2016); Hall v. Florida, 134 S. Ct. 1986 (2014).

The postconviction court granted the State’s motion to strike the motion filed on October

19, 2017, because the Assistant Attorney General claimed to have not received it via the eportal. This resulted in the filing of the amended motion for Petitioner on January 19, 2018.

6

7

14

fairness and offend a longstanding principle of justice essential to due process itself:

a meaningful opportunity to be heard.

Atkins was decided on June 20, 2002. In 2003, the Florida Supreme Court

proposed a rule providing the procedures for a defendant wishing to raise an Atkins

intellectual disability claim, which was adopted and went into effect October 1, 2004.

As mentioned above, the rule announced that, for defendants who needed to

raise an intellectual disability claim through a successive postconviction motion, the

defendants had 60 days from the effective date of rule to raise their claims. In other

words, Florida offered postconviction defendants from October 1, 2004 to November

30, 2004 to raise such a claim. See Fla. R. Crim. P. 3.203(d)(4)(C), (E)-(F). If the

defendants failed to raise an intellectual disability claim in this 60-day window, the

issue was declared waived. Fla. R. Crim. P. 3.203(f).

Medina v. California, 505 U.S. 437 (1992), “provide[s] the appropriate

framework for assessing the validity of state procedural rules” that “are part of the

criminal process.” See Nelson v. Colorado, 137 S. Ct. 1249, 1255 (2017). The Medina

test concerns, for example, rules governing “the allocation of burdens of proof and the

type of evidence qualifying as admissible.” Id.8 The question under Medina is whether

Florida’s procedures for barring Atkins/Hall postconviction claims (i) “offends some

The Mathews test is the “general approach for testing challenged state procedures under a

due process claim.” Medina v. California, 505 U.S. 437, 444 (1992). The Matthews test has

three prongs: (A) the private interest affected; (B) risk of erroneous deprivation of that

interest through the procedures used; and (C) governmental interest at stake. Mathews v.

Eldridge, 424 U.S. 319, 335 (1976); 75 Acres, LLC v. Miami-Dade Cty., Fla., 338 F.3d 1288,

1294 (11th Cir. 2003). This Court adopted a different due process test for challenges to state

criminal procedures. Medina, 505 U.S. at 444-46. Nevertheless, the factors outlined by

Matthews are still a useful guide. See id. at 453. (O’Connor, J., concurring).

8

15

principle of justice so rooted in the traditions and conscience of our people as to be

ranked as fundamental,” or (ii) “transgresses any recognized principle of fundamental

fairness in operation.” Dist. Attorney's Office v. Osborne, 557 U.S. 52, 69 (2009)

(applying Medina due process test to state law governing procedures for

postconviction relief). “Federal courts may upset a State’s postconviction relief

procedures only if they are fundamentally inadequate to vindicate the substantive

rights provided.” Id.

The Florida Supreme Court denied petitioner due process of law “in its primary

sense of an opportunity to be heard and to defend its substantive right.” BrinkerhoffFaris Tr. & Sav. Co. v. Hill, 281 U.S. 673, 678 (1930). Constitutional due process

requires an opportunity to be heard “at a meaningful time and in a meaningful

manner.” Fuentes v. Shevin, 407 U.S. 67 (1972) (striking down Florida replevin

statutes as constitutionally defective for failing to provide hearings at a meaningful

time).9 This Court has long recognized that forcing litigants to pursue futile courses

of action does not translate into meaningful due process. Brinkerhoff-Faris, in which

the plaintiff asserted a violation of his constitutional right to equal protection, is

relevant in terms of this Court’s analysis of the plaintiff’s frustrated efforts in

bringing the claim forward:

It is plain that the practical effect of the judgment of the Missouri court

is to deprive the plaintiff of property without affording it at any time an

opportunity to be heard in its defense. The plaintiff asserted an invasion

Due process cases dealing with deprivation of property are frequently used to inform due

process requirements in other contexts. See Wolff v. McDonnell, 418 U.S. 539, 557–58 (1974).

9

16

of its substantive right under the federal Constitution to equality of

treatment. . . .

[I]t would have been entirely futile for the plaintiff to apply to the

commission. That body [the state tax commission] had persistently

refused to entertain such applications; and the Supreme Court of the

state had supported it in its refusal. Thus, until June 29, 1929, when the

opinion in the case at bar was delivered, the tax commission could not,

because of the rule of the Laclede Case, grant the relief to which the

plaintiff was entitled on the facts alleged. After June 29, 1929, the

commission could not grant such relief to this plaintiff because, under

the decision of the court in this case, the time in which the commission

could act had long expired. Obviously, therefore, at no time did the state

provide to the plaintiff an administrative remedy against the alleged

illegal tax; and in invoking the appropriate judicial remedy, the plaintiff

did not omit to comply with any existing condition precedent.

Brinkerhoff-Faris Tr. & Sav. Co. v. Hill, 281 U.S. 673, 679 (1930).

Similarly, until May 27, 2014, Florida courts had consistently refused to grant

relief on intellectual disability claims if the defendant did not have an IQ score of 70

or below. See supra sources cited pp. 11-12. Additionally, the 2004 rule required

counsel to certify that reasonable grounds existed to believe their client was

intellectually disabled and include a statement certifying that that counsel had filed

the motion in good faith. Amendments; Fla. R. Crim. P. 3.203(d)(4)(A) (2004). Until

Hall was decided, counsel could not, with the required good faith certification, file a

postconviction motion raising intellectual disability as a bar to execution if the

defendant had an IQ above 70. By the time the Hall case was decided (and then,

Walls), the brief 60-day window to raise this claim had long since expired. At no point

in time has there been a real opportunity provided for Petitioner to pursue his claim.

This Court found in Brinkerhoff that the state judgment violated the plaintiff’s

right to due process when the state court refused to hear the plaintiff’s claim on the

17

basis that “the plaintiff did not first seek an administrative remedy which, in fact

was never available and which is not now open to it.” Brinkerhoff, 281 U.S. at 45354. In this Court’s view, the claim “was raised at the first opportunity.” Id. Just as

here, Petitioner raised his intellectual disability claim at the first meaningful

opportunity made available under the law after Hall was decided. However, the

Florida Supreme Court and lower tribunal denied Mr. Freeman the opportunity to

present evidence of his intellectual disability on the basis that he did not previously

pursue a course which was, in reality, not available to him then, and is not available

now. “Whether acting through its judiciary or through its Legislature, a state may

not deprive a person of all existing remedies for the enforcement of a right, which the

state has no power to destroy, unless there is, or was, afforded to him some real

opportunity to protect it.” Id.

In the context of the prohibition on the execution of insane individuals, this

Court had occasion to evaluate the adequacy of Florida’s procedures for determining

a prisoner’s sanity before execution, and ultimately found that Florida’s mechanisms

failed to “achieve even the minimal degree of reliability required for the protection of

any constitutional interest . . . .” Ford v. Wainwright, 477 U.S. 399, 411–14 (1986)

(determining if Florida’s factfinding procedure was inadequate to afford a full and

fair hearing, such that federal evidentiary hearing would be required under § 2254).

Noting that the prisoner’s sanity is a “predicate” to his “lawful execution,” and citing

the long-standing principle that due process requires, at minimum, an opportunity to

be heard, the Court found that “any procedure” that “precludes the prisoner or his

18

counsel from presenting material relevant to his sanity or bars consideration of that

material by the factfinder is necessarily inadequate.” Id. (emphasis added).

Although the condemned prisoner does not enjoy the same presumptions

accorded a defendant who has yet to be convicted or sentenced, he has

not lost the protection of the Constitution altogether; if the Constitution

renders the fact or timing of his execution contingent upon

establishment of a further fact, then that fact must be determined with

the high regard for truth that befits a decision affecting the life or death

of a human being. Thus, the ascertainment of a prisoner’s sanity as a

predicate to lawful execution calls for no less stringent standards than

those demanded in any other aspect of a capital proceeding. . . . That

need is greater still because the ultimate decision will turn on the

finding of a single fact, not on a range of equitable considerations.

Cf. Woodson v. North Carolina, supra, 428 U.S., at 304, 96 S.Ct., at

2991. In light of these concerns, the procedures employed in petitioner's

case do not fare well.

. . . Notwithstanding this Court's longstanding pronouncement that

“[t]he fundamental requisite of due process of law is the opportunity to

be heard,” Grannis v. Ordean, [234 U.S. 385, 394 (1914)], state practice

does not permit any material relevant to the ultimate decision to be

submitted on behalf of the prisoner facing execution. . . . [C]onsistent

with the heightened concern for fairness and accuracy that has

characterized our review of the process requisite to the taking of a

human life, we believe that any procedure that precludes the prisoner

or his counsel from presenting material relevant to his sanity or bars

consideration of that material by the factfinder is necessarily

inadequate. “[T]he minimum assurance that the life-and-death guess

will be a truly informed guess requires respect for the basic ingredient

of due process, namely, an opportunity to be allowed to substantiate a

claim before it is rejected.” Solesbee v. Balkcom, supra, 339 U.S., at 23,

70 S.Ct., at 464 (Frankfurter, J., dissenting).

Id. The adequacy of a state procedure which impedes the courts from hearing

evidence of the defendant’s insanity—when the Constitution makes the legality of his

execution contingent on such a fact—is strongly paralleled here. Florida has blocked

19

multiple defendants, such as Petitioner, from even presenting material relevant to

the issue of their intellectual disability on the grounds that they had passively waived

the claim back in 2004. Persons with IQ scores in the 70-75 range did not have a

meaningful opportunity to present their intellectual disability claims during the twomonth window made available in 2004. Yet, the Florida Supreme Court now faults

these petitioners and their counsel for failing to violate state procedures and failing

to file frivolous claims—the type of waste of judicial resources that courts normally

disparage. See Bowles v. Florida, 140 S. Ct. 2589 (2019) (Sotomayor, J., respecting

denial of certiorari). Because the mental capacity of the defendant is a “predicate to

[his] lawful execution,” any procedure that would prevent a full hearing on this issue

before his execution is necessarily inadequate. See Ford, 477 U.S. at 411–14

(emphasis added).

The narrower holding in Justice Powell’s concurrence describes the minimum

procedures a State must provide to a person raising a claim of insanity as a bar to his

execution. Because of the shared common law background, these minimal procedures

apply with as much force to the intellectually disabled. See Ford, 477 U.S. at 406-408

(reviewing common law history barring execution of those who lack mental capacity:

the mentally retarded and insane).

Once a prisoner seeking a stay of execution has made ‘a substantial

threshold showing of insanity,’ the protection afforded by procedural due

process includes a ‘fair hearing’ in accord with fundamental fairness.

This protection means a prisoner must be accorded an ‘opportunity to be

heard,’ though ‘a constitutionally acceptable procedure may be far less

formal than a trial.’

Panetti v. Quarterman, 551 U.S. 930, 949, 952 (2007) (internal citations omitted)

20

(finding that the state court failed to provide petitioner with a constitutionally

adequate opportunity to be heard).

The significance of Hall with respect to these due process requirements is that

it demonstrates Florida has failed to meet these minimum procedures. Florida forced

defendants to meet an overly strict standard in order to make a threshold showing of

intellectual disability. Because Florida courts viewed a 70-or-below IQ score as an

absolute requirement, the courts could and would decline to hear the remaining

evidence (the fair hearing). Hall, 572 U.S. at 704 (“Florida law defines intellectual

disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is

deemed to have an IQ above 70, all further exploration of intellectual disability is

foreclosed. This rigid rule . . . is unconstitutional.”). Between the now-invalidated

procedures as outlined in Hall and Florida’s Rule 3.203 (2004) being used to bar

consideration of present-day Atkins/Hall claims, one cannot say that Petitioner was

ever afforded a meaningful opportunity to be heard on his intellectual disability claim

in state court. Florida has tightly shut the door to any consideration of this federal

claim, and this violates due process. Young v. Ragen, 337 U.S. 235, 238 (1949) (“[I]t

is not simply a question of state procedure when a state court of last resort closes the

door to any consideration of a claim of denial of a federal right.”).

The Florida procedure (i) offends a “principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental,” and (ii)

transgresses a “recognized principle of fundamental fairness in operation” by

invoking state procedure to deny the basic ingredient of due process: an opportunity

21

to substantiate his claim before it is denied. Medina, 505 U.S. at 445. To this day, no

state court has allowed Petitioner a hearing on or considered the evidence of

petitioner’s intellectual disability. The current procedure is “fundamentally

inadequate” to vindicate the Eighth Amendment bar against the execution of

mentally disabled defendants, violating the Fourteenth Amendment.

I.B.

There is No Adequate State Bar.

The fact that Florida’s postconviction procedures dealing with Eighth

Amendment intellectual disability claims are inadequate is significant not only

because it constitutes a due process violation in and of itself, but because a state

procedure which is violative of due process could not serve as an adequate state bar

to this Court’s review. See generally, Bouie v. City of Columbia, 378 U.S. 347, 354

(1964) (noting a “basic due process concept” inherent in holding that an unforeseeable

or unsupported decision on a question of state procedure does not constitute an

adequate ground); 16B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 4025 (3d ed. 2020). However, the procedural mechanism that the Florida

courts invoked to bar consideration of Petitioner’s claim—and that which the State

will likely raise—is inadequate for more than one reason.

As an initial matter, the terminology used by the state courts should be

clarified. The circuit court conflated waiver—which was avoided according to Rule

3.203 (2004) by timely raising an intellectual disability claim back in 2004—with

timeliness of the 3.851 motion itself under Rule 3.851(d)(2)(B). Persons who raised a

Hall claim within one year of Walls were, at the time of filing, fully in compliance

22

with 3.851(d)(2)(B)10 but did not necessarily meet the preservation requirement/had

waived the issue according to Rule 3.203(f) (2004).

As stated, the Florida Supreme Court affirmed the circuit court’s decision on

slightly different procedural grounds. The Florida Supreme Court found that

Petitioner’s intellectual disability claim was “untimely,” but unlike the circuit court,

the Florida Supreme Court relied on the Phillips decision which indicates the Court

reasoned the Phillips decision invalidated Petitioner’s pathway though the (d)(2)(B)

gate.11 However, the Florida Supreme Court also agreed that Petitioner should have

raised his intellectual disability claim in 2004, during the 60-day window. This points

to the passive “waiver” of the claim in Rule 3.203(f) (2004). This rule is inadequate.

“The adequate state ground doctrine cannot be applied without consideration

of the purposes it is designed to serve,” that is, to show “respect for state courts and

avoid rendering advisory opinions.” Beard v. Kindler, 558 U.S. 53, 63 (2009)

(Kennedy, J., Concurring). “[A] litigant’s procedural defaults in state proceedings do

not prevent vindication of his federal rights unless the State's insistence on

compliance with its procedural rule serves a legitimate state interest.” Henry v.

Mississippi, 379 U.S. 443, 447-48 (1965) (“In every case we must inquire whether the

enforcement of a procedural forfeiture serves such a state interest. If it does not, the

state procedural rule ought not be permitted to bar vindication of important federal

rights.”); Kindler, 558 U.S. at 64 (Kennedy, J., concurring) (noting this Court’s

See Hamilton v. State, 236 So. 3d 276, 278 (Fla. 2018); Dixon v. State, 730 So.2d 265, 267

(Fla. 1999).

11

The time bar of Rule 3.851(d)(2)(B) is not an independent bar because it turns on the

retroactivity of Hall, the second question presented.

10

23

mindfulness “of the danger that novel state procedural requirements will be imposed

for the purpose of evading compliance with a federal standard”).

Atkins was decided on June 20, 2002. In 2003, the Florida Supreme Court

proposed a rule providing the procedures for a defendant wishing to raise an Atkins

intellectual disability claim, which was adopted and went into effect October 1, 2004.

Amendments. Florida offered defendants from October 1, 2004 to November 30, 2004

to raise such a claim. See Fla. R. Crim. P. 3.203(d)(4)(C), (E)-(F). If the defendants

failed to raise an Atkins claim in the two-month window following the rule’s effective

date, the claim was declared waived. Fla. R. Crim. P. 3.203(f).

In order to be an “adequate” state rule, it must be “firmly established and

regularly followed.” Kindler, 558 U.S. at 60. The forced waiver rule at issue in this

case is not the type of well-known procedural rule that applies generally to 3.851

motions. The rule at issue was promulgated swiftly and in response to Atkins. The

Florida Supreme Court offered defendants an immediate, 60-day window to raise any

Eighth Amendment intellectual disability claims on postconviction appeal. That

window has never been renewed. This waiver rule applied to Eighth Amendment

intellectual disability claims specifically, and existed for but a brief period of time in

Florida history. See In re Amendments to the Fla. Rules of Criminal Procedure, 26 So.

3d 534, 536 (Fla. 2009) (removing obsolete Atkins regulations).

This is a far cry from the type of “firmly established and regularly followed”

procedural rules that are recognized as adequate. C.f. Walker v. Martin, 562 U.S. 307,

312 (2011) (finding California’s timeliness rule to be “firmly established” in its case

24

law based on trilogy of 1990’s California Supreme Court cases outlining the California

timeliness rule); Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016) (finding procedural rule

which is “longstanding, oft-cited, and shared by habeas courts across the Nation” to

be adequate state bar). The relatively swift enactment of the provisions of Rule 3.203

(2004), its limited purpose, and its short-lived nature show that the procedure at issue

is simply not a “firmly established” rule.

In Beard v. Kindler, this Court ultimately remanded on the question of

whether the Pennsylvania courts applied a new procedural rule which, as the

petitioner contended, could not provide an adequate state ground. Kindler, 558 U.S.

at 62. On remand, the Third Circuit Court Appeals agreed with petitioner, finding

that the state procedural rule was “novel,” and therefore inadequate. Kindler v. Horn,

642 F.3d 398, 404-05 (3d Cir. 2011). The Third Circuit rejected the Commonwealth’s

argument that a state procedural rule can be adequate even if it is new; the Third

Circuit emphasized that a new state procedural rule, by definition, cannot meet the

“firmly established and regularly followed” standard. Id.

This Court has explicitly stated that the state procedural bar must be firmly

established and regularly followed “by the time as of which it is to be applied.” Ford

v. Georgia, 498 U.S. 411, 424 (1991) (emphasis added). There are two potential points

of application. At the point of application to Petitioner’s motion, this rule was already

repealed, and therefore could not be “firmly established.” The bizarre fact that the

Florida courts were compelled to apply a rule that was no longer in effect to

Petitioner’s postconviction motion in order to bar his claims highlights the infirmity

25

of the rule. On the other hand, if the rule’s point of application was the time period

between October 1 and November 30, 2004, then the rule was certainly “novel” or

“new” upon its immediate application, and therefore inadequate—comparable to the

rule in Kindler v. Horn, 642 F.3d 398, 404-05 (3d Cir. 2011).

This Court should inquire into whether Florida’s rule 3.203 (2004), mandating

that intellectually disabled defendants are deemed to have automatically waived

their Atkins claims if they did not raise them an immediate two-month window of

time following the rule’s effective date, is a firmly established, regularly followed rule

of procedure that serves a legitimate state interest—or, whether its design merely

“give[s] color” to this Eighth Amendment categorical ban while allowing Florida to

avoid meaningful enforcement of it. Rogers v. State of Alabama, 192 U.S. 226, 230

(1904). “It is a necessary and well settled rule that the exercise of jurisdiction by this

court to protect constitutional rights cannot be declined when it is plain that the fair

result of a decision is to deny the rights.” Id.; Davis v. Wechsler, 263 U.S. 22, 24 (1923)

(“The state courts may deal with that as they think proper in local matters but they

cannot treat it as defeating a plain assertion of Federal right. The principle is general

and necessary.”) (citing Ward v. Love County, 253 U. S. 17, 22 (1920)); Am. Ry.

Express Co. v. Levee, 263 U.S. 19, 21 (1923); see also Kindler, 558 U.S., at 65

(Kennedy, J., concurring). Because this rule was not firmly established at the point

of its application, it cannot serve as an adequate state bar.

26

II.

Certiorari is Warranted to Resolve a Split Over Whether Hall

Applies Retroactively to Cases on Collateral Review.

The decision below deepens a split among the lower courts. In the Tenth

Circuit, Hall applies retroactively on collateral review. See Smith v. Sharp, 935 F.3d

1064, 1083-85 (10th Cir. 2019). But in the Sixth, Eighth, and Eleventh Circuits, it

does not. See, e.g., In re Payne, 722 F. App’x 534, 538 (6th Cir. 2018); Williams v.

Kelley, 838 F.3d 464, 474 (8th Cir. 2017) (per curiam); Kilgore v. Sec’y, Fla. Dep’t of

Corr., 805 F.3d 1301, 1314-15 (11th Cir. 2015).

State courts, too, are divided on this issue with regard to Hall. Compare White

v. Commonwealth, 500 S.W.3d 208 (Ky. 2016), abrogated in part on other grounds by

Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018), with Phillips v. State, 299 So.

3d 1013 (Fla. 2020), and Payne v. State, 493 S.W.3d 478 (Tenn. 2016).

This case presents an excellent vehicle to resolve this split because the

question of whether Hall applies retroactively is dispositive of Petitioner’s right to

relief from his death sentence. This question also has significant implications for

death-row inmates nationwide. The Court should grant certiorari to answer it.

A.

Overview of Opinions that have found Hall applies

Retroactively on Collateral Review.

Two courts—the Supreme Court of Kentucky and the Tenth Circuit—have held

that Hall applies to collateral review.

The Supreme Court of Kentucky found that Hall applies retroactively on

collateral review. See White v. Commonwealth, 500 S.W.3d 208, 214-15 (Ky. 2016). In

White, the trial court denied an Atkins claim governed by a state statute that, like

the Florida statute at issue in Hall, barred execution of an intellectually disabled

27

person only if his or her IQ score was below 70, not accounting for the margin of error.

Id. at 211 (citing Ky. Rev. Stat. §§ 532.10, 532.140). The Supreme Court of Kentucky

held that Hall applied retroactively under Teague’s exception for new “substantive”

rules. Id. at 214-15. Describing Hall as a “sea change,” the court concluded that Hall

established a new substantive rule for purposes of Teague because it imposed a

“restriction on the State’s power to take the life of individuals suffering from

intellectual disabilities.” Id. (quotation marks omitted). The court then remanded the

case for further proceedings on the issue of whether White was intellectually disabled.

Id. at 216-47.12

The Tenth Circuit found that Hall did not create a new rule of constitutional

law, but was rather the mere application of “settled” law that applies on collateral

review. Smith, 935 F.3d at 1083-85 (noting that a person can avail herself of a settled

rule on collateral review, and “the Supreme Court's post-Atkins jurisprudence has

expressly confirmed that its reliance on the clinical standards endorsed in Atkins

constitutes a mere application of that case”).

The Hall Court expressly noted that Atkins guided its decision. Hall, 572 U.S.

at 720-21. The Hall Court noted that Atkins “twice cited definitions of intellectual

disability which, by their express terms, rejected a strict IQ test score cutoff at 70.”

Hall, 572 U.S. at 719. The Hall Court also countered the State’s reliance on the fact

that Atkins instructed states to find appropriate ways to enforce the rule—“[i]f the

In White, the Kentucky Supreme Court only went so far as to direct trial courts in

Kentucky to consider an IQ test’s margin of error, but did not declare the relevant statute

unconstitutional; in Woodall, the Kentucky Supreme Court struck down the relevant statute

that White had tenuously upheld. Woodall v. Commonwealth, 563 S.W.3d 1, 4-7 (Ky. 2018).

12

28

States were to have complete autonomy to define intellectual disability as they

wished, the Court's decision in Atkins could become a nullity, and the Eighth

Amendment’s protection of human dignity would not become a reality.” Id. at 720.

And, “immediately after the Court declared that it left ‘to the States the task of

developing appropriate ways to enforce the constitutional restriction,’ the Court

stated in an accompanying footnote that ‘[t]he [state] statutory definitions of mental

retardation are not identical, but generally conform to the clinical definitions.’ ” Id.

at 719. These statements support that Hall applies on collateral review because it is

a clarification of Atkins.

Applying Hall’s holding that intellectual disability determinations must be

informed by the medical community’s existing clinical standards to the case before it,

the Tenth Circuit concluded that no reasonable factfinder could disagree that the

petitioner was intellectually disabled. Smith, 935 F.3d at 1085-88. It therefore

remanded with instructions to vacate the petitioner’s death sentence. Id. at 1092.

Since Smith, the Tenth Circuit has continued to follow this approach. In Harris

v. Sharp, 941 F.3d 962, 982-83 (10th Cir. 2019), a postconviction case, the court

explained that whether the petitioner had been prejudiced by his counsel’s failure to

raise an Atkins claim during a state-court hearing pre-Hall depended on whether the

hearing would have likely shown the petitioner to be intellectually disabled “under

the existing clinical definitions applied through expert testimony.” Id. (quoting

Smith, 935 F.3d at 1077). Harris’s language regarding the role of “existing clinical

29

definitions”—an unmistakable reference to the holding of Hall—confirms the Tenth

Circuit’s position that Hall applies retroactively on collateral review. See id.

Although the Eleventh Circuit decided that Hall did not apply to collateral

review, the dissenting judge in In re Henry pointed out the “important procedural

context” of the Hall decision, namely, “Hall was decided in the collateral review

context.” In re Henry, 757 F.3d 1151, 1164-65 (11th Cir. 2014) (Martin, J., dissenting).

As the dissent noted, “[i]t would be passing strange, and contrary to everything the

Supreme Court has told us about retroactivity, if the rule in Hall only applied to Mr.

Hall’s collateral review proceedings and not to other defendants’ collateral review

proceedings.” Henry, 757 F.3d at 1167.

B.

Overview of Opinions that have found Hall is not

Retroactively Applicable to Postconviction Review.

The Sixth, Eighth, and Eleventh Circuits, as well as the Tennessee Supreme

Court and the Florida Supreme Court, have refused to apply Hall retroactively on

collateral review. As a result, in these jurisdictions, a person whose conviction became

final before Hall can still be executed by the State even if he or she is intellectually

disabled under the medical community’s prevailing clinical standards.

Shortly after Hall was decided, the Eleventh Circuit held that Hall did not

announce a new rule that was retroactively applicable on collateral review. See In re

Henry, 757 F.3d 1151, 1158-59 (11th Cir. 2014) (addressing application to file second

or successive § 2254 petition). In the majority’s view, Hall “did indeed announce a

new rule of constitutional law,” but did not affect the class of individuals ineligible

for the death penalty and thus did not create a new “substantive” rule. Id. at 1158,

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1161. The panel also analogized to circuit precedent holding that the rule from Miller

v. Alabama, 567 U.S. 460 (2012), was not substantive. Henry, 757 F.3d at 1161 (citing

In re Morgan, 713 F.3d 1365, 1368 (11th Cir. 2013)).

The circuit precedent that the Henry majority relied on was abrogated by this

Court in 2016. See Montgomery, 136 S. Ct. at 734 (holding that the rule from Miller

is substantive and applies retroactively). The Eleventh Circuit has nevertheless

consistently adhered to its decision in Henry and declined to give Hall retroactive

effect. See, e.g., Jenkins v. Comm’r, Ala. Dep’t of Corr., 936 F.3d 1252, 1275 (11th Cir.

2019); In re Bowles, 935 F.3d 1210, 1219-20 (11th Cir. 2019); Kilgore v. Sec’y, Fla.

Dep’t of Corr., 805 F.3d 1301, 1314-15 (11th Cir. 2015).

As discussed, the dissent in Henry believed Hall was an old rule. Henry, 757

F.3d at 1164-65 (Martin, J., dissenting). Although the petitioner in Henry would

nevertheless fail to meet § 2244(b) if so, the Hall decision must “apply retroactively,

to the extent it merely represents an application or clarification of the Atkins

decision.” Id. The dissent further reasoned that, even if Hall were “new” law, it would

follow that Hall was substantive and still apply to collateral review. Id. at 1167-68.

Like the Eleventh Circuit, the Eighth Circuit has held that Hall does not apply

retroactively on collateral review. It first addressed the retroactivity of Hall in

Goodwin v. Steele, 814 F.3d 901 (8th Cir. 2014) (per curiam). Relying heavily on the

Eleventh Circuit’s decision in Henry, the Goodwin court concluded that Hall merely

created an opportunity to present certain evidence of intellectual disability, rather

31

than changing the class of individuals ineligible for the death penalty, and that it is

therefore procedural. Id. at 904.

In a pair of related state and federal cases involving the same death-row

inmate, the Tennessee Supreme Court and the Sixth Circuit also adopted this

position. The Tennessee Supreme Court refused to apply Hall retroactively on

collateral review. Payne v. State, 493 S.W.3d 478, 489-91 (Tenn. 2016) (denying relief

because the United States Supreme Court has not ruled that Hall is to be applied

retroactively to cases on collateral review). In Payne’s federal habeas proceedings, the

Sixth Circuit agreed. In re Payne, 722 F. App’x 534, 538 (6th Cir. 2018) (“Even if we

assume, without deciding, that Hall and Moore announce new rules of constitutional

law, Payne has not shown that these decisions apply retroactively.”).

The lower courts have clearly divided on the retroactivity of Hall. This split is

unlikely to resolve itself, as courts on both sides have now cemented their positions

in repeat holdings across multiple cases within their respective jurisdictions. This

Court should resolve this split now.

III.

The Florida Supreme Court’s Decision Below

Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Violates

This Court should grant certiorari because the position adopted by the Florida

Supreme Court is wrong and violates Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Hall is a “substantive” decision of constitutional law and applies on collateral review.

Rules that prohibit a certain category of punishment for a class of defendants

because of their status or offense are substantive in nature. Penry v. Lynaugh, 492

U.S. 302, 330 (1989). In Montgomery v. Louisiana, this Court held “when a new

32

substantive rule of constitutional law controls the outcome of a case, the Constitution

requires state collateral review courts to give retroactive effect to that rule.”

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). States cannot deny retroactive effect

to decisions that announce substantive/watershed procedural rules because that

would violate the Supremacy Clause. Id. at 730-31 (“[A court] has no authority to

leave in place a conviction or sentence that violates a substantive rule, regardless of

whether the conviction or sentence became final before the rule was announced.”). A

sentence imposed in violation of such law is not just erroneous, but contrary to law

and, as a result, void. See Ex parte Siebold, 100 U.S. 371, 376 (1879).

First, the Florida Supreme Court ignored Hall’s important procedural context.

Hall itself was decided on postconviction review. Mr. Hall’s conviction and sentence

were affirmed by the Florida Supreme Court on direct appeal in 1981. Hall v. State,

403 So. 2d 1321 (Fla. 1981). Mr. Hall had gone through at least two rounds of state

postconviction proceedings when he filed a motion for Atkins relief in 2004. See Hall

v. State, 109 So. 3d 704, 706-07 (Fla. 2012) (outlining procedural history).

The purpose of adopting the Teague framework was to remedy the disparate

treatment of similarly situated defendants that was engendered by the previous

standard. See Teague v. Lane, 489 U.S. 288, 299-305 (1989) (noting that the Linkletter

standard had led to dissatisfying, inconsistent results). “[E]venhanded justice” was

the animating principle behind this new framework. See Teague, 489 U.S. at 315

(“Were we to recognize the new rule urged by petitioner in this case, we would have

to give petitioner the benefit of that new rule even though it would not be applied

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retroactively to others similarly situated. . . . [T]he harm caused by the failure to treat

similarly situated defendants alike cannot be exaggerated . . . .”); Griffith v. Kentucky,

479 U.S. 314, 322-23 (1987) (“[S]elective application of new rules violates the

principle of treating similarly situated defendants the same.”); Williams v. United

States, 401 U.S. 667, 679 (1971) (Harlan, J., dissenting); Fuller v. Alaska, 393 U.S.

80, 82 (1968) (Douglas, J., dissenting). This Court said that retroactivity should be

“properly treated as a threshold question,” because “once a new rule is applied to the

defendant in the case announcing the rule, evenhanded justice requires that it be

applied retroactively to all who are similarly situated.” Id. Hall must apply to Mr.

Hall and “all others similarly situated,” i.e., defendants on collateral review. Id.

In Hall, this Court did not address retroactivity as a threshold question, which

indicates that retroactivity was not an issue that would bar reaching the merits either

because (1) this Court was merely applying settled precedent (an “old” rule) on

postconviction review, or (2) this Court was applying a rule which was “not subject to

[Teague’s] bar” against retroactive application. See Chaidez v. United States, 568 U.S.

342, 347 (2013) (“[W]hen we apply a settled rule may a person avail herself of the

decision on collateral review.”); Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (“We

have sometimes referred to rules of this latter type [decisions which place particular

conduct or persons covered by the statute beyond the State’s power to punish] as

falling under an exception to Teague’s bar on retroactive application of procedural

rules . . . . they are more accurately characterized as substantive rules not subject to

34

the bar.”). The rule of Hall fits into the latter type of decisions referred to in Shriro.13

At a minimum, this Court signaled that Hall should be applied on postconviction

review.14 The Florida Supreme Court wrongly disregarded Hall’s postconviction

context and interpreted Hall in such a way as to only give it prospective effect. As

outlined below, the Florida Supreme Court’s decision violates Montgomery v.

Louisiana because Hall is substantive law.

Whether a constitutional rule is substantive or procedural “does not depend on

whether the underlying constitutional guarantee is characterized as procedural or

substantive,” but rather whether “the new rule itself has a procedural function or a

substantive function,” i.e., whether the new rule alters only the procedures used

obtain the conviction, or alters instead the class of persons the law punishes. Welch

v. United States, 136 S. Ct. 1257, 1266 (2016).

Due Process, Equal Protection, and Cruel and Unusual Punishment Clause

considerations are, like in numerous other capital cases, intertwined. See Furman v.

Georgia, 408 U.S. 238, 240-49 (1972) (Douglas, J., concurring) (discussing how the

Eighth Amendment concerns not only the severity of punishments but with selective

It is not unheard of for retroactivity to be decided by implication by the rule being

announced in a postconviction posture. “[M]any times retroactivity is decided by implication

rather than explicitly, as was the case in Gideon, where relief was granted in a postconviction

habeas proceeding . . . .” Chandler v. Crosby, 916 So. 2d 728, 737-38 (Fla. 2005) (Anstead, J.,

concurring) (noting this Court applied Gideon in ten other collateral proceedings).

14

The petitioner in Moore v. Texas also came before this Court on postconviction review.

Moore v. Texas, 137 S. Ct. 1039, 1044 (2017). This Court found that the Texas Court of

Criminal Appeals (“CCA”) improperly used a seven-factor test to determine intellectual

disability—several factors of which were “invention[s] of the CCA” drawn from neither the

medical community’s information nor this Court’s precedent. Id. Texas, like Florida, had

disregarded current medical standards. Id. at 1048-53.

13

35

or irregular application of harsh penalties).15 It can be fairly said that Hall concerned

not only the substantive Eighth Amendment guarantee of Atkins, but what process

is due to intellectually disabled defendants in the context of asserting that Eighth

Amendment right against execution. See supra pp. 20-21. Even so, this Court has said

that a rule is substantive or procedural with respect to Teague based on the function

of the rule, not its underlying constitutional source. Welch, 136 S. Ct. at 1265

(rejecting amicus’ argument that case announced “procedural” rule because decision

was based on procedural due process). Thus, the mere fact that Hall was concerned

with process does not mean that the emerging rule is procedural. Id. In this respect,

the Florida Supreme Court has made the same mistake that amicus did in Welch, by

failing to distinguish the procedural concerns upholding the decision from the

functional effect of the rule. Id.

This Court has further indicated that in determining the functional effect of a

rule in cases where statutory language has been struck down, it is useful to look at

the function of the statute. See Welch, 136 S. Ct. at 1266, 1268 (reasoning that a

decision that strikes down a procedural statute would be a procedural decision; a

decision striking down substantive statute would be substantive in effect). Hall found

that the Florida statute defining “intellectual disability” was unconstitutional as

applied. It is evident that the effect of the Hall decision is substantive in nature

because the purpose of the statute is to define who is “intellectually disabled” and

therefore exempt from execution. The effect of invalidating this section is substantive

15 “[W]e are aided also by a second principle inherent in the Clause—that the State must not

arbitrarily inflict a severe punishment. . . .” Id. at 274 (Brennan, J., concurring).

36

because it alters the definition of “intellectually disabled” persons, who are placed

beyond the State’s power to punish, even if the reasons for holding this statutory

definition to be unconstitutional could be characterized as procedural.16

The Florida Supreme Court in Phillips gave too much consideration to the fact

that

the

execution

of

intellectually

disabled

defendants

was

already

unconstitutional—essentially faulting Hall for not announcing a brand-new category

of protected individuals—instead of addressing the decision’s functional effect. See

Phillips, 299 So. 3d at 1019-22 (stating that intellectually disabled persons with IQ

scores above 70 are “not a distinct class from intellectually disabled persons with IQ

scores of 70 or below”). However, this Court has acknowledged rules to be substantive

when an existing class of defendants, or range of punishments, is merely altered; for

example, decisions which “narrow the scope of a criminal statute” qualify as

substantive because the range of persons affected by the statutory provision has been

altered. See Welch, 136 S. Ct. at 1265 (emphasis added); Bousley v. United States, 523

U.S. 614, 620 (1998). A change to the class—like expansion of a protected class, or

narrowing of the class subject to punishment—is still substantive law.

This Court has said that when the Constitution prohibits a particular form of

punishment for a class of persons, “an affected prisoner receives a procedure through

which he can show that he belongs to the protected class.” See Montgomery, 136 S.

Ct. at 735. But “[t]hose procedural requirements do not, of course, transform

16 There is no difference for Teague purposes whether it is a case of unconstitutional statutory

“interpretation” or statutory “invalidation.” Welch, 136 S. Ct. at 1267-68 (rejecting argument

that statutory construction cases are different than statutory invalidation cases).

37

substantive rules into procedural ones.” Id. Miller v. Alabama, 567 U.S. 460 (2012),

altered the class of individuals that the law could punish by prohibiting life without

parole for juvenile offenders, though the case itself contained procedural components.

Id. Likewise, Hall announced a substantive rule because in effect it expanded a class

of individuals who could not be executed, though it involved procedural components.

Lastly, this Court signaled to lower courts that Hall was substantive by

inserting the definition of a substantive rule in the very first paragraph of Hall, in

which this Court declared Florida’s strict IQ cutoff rule to be unconstitutional.

Compare Hall, 572 U.S. at 704 (“This rigid rule, the Court now holds, creates an

unacceptable risk that persons with intellectual disability will be executed, and thus

is unconstitutional.”), with Schriro v. Summerlin, 542 U.S. 348, 352 (2004)

(substantive rules carry a “significant risk . . . that a defendant . . . faces a punishment

that the law cannot impose upon him”).

This brings the discussion back to Montgomery v. Louisiana, 136 S. Ct. 718

(2016). State courts must give retroactive effect to substantive rules. Id. at 729. “[If]

the Constitution establishes a rule and requires that the rule have retroactive

application, then a state court’s refusal to give the rule retroactive effect is reviewable

by this Court.” Id. at 727. The Florida Supreme Court held that Petitioner’s claim

was barred based on its earlier decision that Hall does not have retroactive effect on

collateral review. Freeman v. State, 300 So. 3d 591, 594 (Fla. 2020) (citing Phillips v.

State, 299 So. 3d 1013 (Fla. 2020)).17 Thus, just as the Louisiana state court’s decision

17 Fla. R. Crim. P. 3.851(d)(2)(B) allows a state prisoner to bring a 3.851 motion outside of the

initial time period to bring such motion if he alleges a (1) “fundamental constitutional right”

38

that Miller did not apply to postconviction proceedings was reviewable, the Florida

Supreme Court’s decision is reviewable here. Montgomery, 136 S. Ct. at 732

(“[Petitioner] alleges that Miller announced a substantive constitutional rule and that

the Louisiana Supreme Court erred by failing to recognize its retroactive effect. This

Court has jurisdiction to review that determination.”).

This Court should grant certiorari because the Florida Supreme Court

continues to bar consideration of intellectual disability claims for death-sentenced

defendants based on a flawed interpretation of federal retroactivity law. Phillips v.

State, 299 So. 3d 1013, 1022 (Fla. 2020) (finding that federal law does not require

retroactive application of Hall). The questions presented in this case are important

and have profound consequences for many individuals on death row and the States

that have sentenced them.

Moreover, until the split is resolved, there will continue to be an “unfortunate

disparity in the treatment of similarly situated defendants on collateral review.”

Teague, 489 U.S. at 305 (plurality opinion). Some intellectually disabled persons who,

for example, have an IQ score of 72 are entitled to relief, but others are sent to the

execution chamber. Compare Hall v. State, 201 So. 3d 628, 632-638 (Fla. 2016) (on

remand finding that Mr. Hall is intellectually disabled and vacating death sentence),

with Goodwin v. Steele, 814 F.3d 901, 904-05 (8th Cir. 2014) (denying certificate of

appealability and motion to stay next-day execution of person with IQ score of 72 on

not established within the initial time period and which (2) “has been held to apply

retroactively.” Fla. R. Crim. P. 3.851(d)(2)(B). The time bar of Rule 3.851(d)(2)(B) is no

independent state bar because it turns on the retroactivity of Hall, the question presented.

39

the basis that Hall is non-retroactive). Such disparities should not be allowed to

persist, particularly when they involve matters of such grave consequence.

CONCLUSION

For the foregoing reasons, the Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

/s/ Stacy R. Biggart

STACY R. BIGGART

Counsel of Record

DAWN B. MACREADY

CANDACE RECHTMANN

Capital Collateral Regional Counsel –

Northern Region

1004 DeSoto Park Drive

Tallahassee, Florida 32301

(850) 487-0922

Stacy.Biggart@ccrc-north.org

JANUARY 2021

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