Reply Brief — John D. Freeman, Petitioner v. Florida

Supreme Court briefApr 29, 2021

Ask Donna

What actually matters in this document.

Text

No. 20-6879

IN THE

Supreme Court of the United States

___________________________________________________________

JOHN FREEMAN,

Petitioner,

STATE OF FLORIDA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

REPLY BRIEF FOR PETITIONER

______________________________________________________________

THIS IS A CAPITAL CASE

DAWN B. MACREADY - Counsel of Record

CANDACE RECHTMANN

Capital Collateral Regional Counsel –

Northern Region

1004 DeSoto Park Drive

Tallahassee, Florida 32301

(850) 487-0922

Dawn.Macready@ccrc-north.org

Candace.Rechtmann@ccrc-north.org

TABLE OF CONTENTS

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

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

REPLY BRIEF FOR PETITIONER .............................................................................. 1

A. Due Process Issue - First Question Presented ............................................. 1

1. Comparison to Ordinary Timeliness Rule is Misleading .................... 1

2. Bowles v. State and State's Comparison to Federal

Cause-and-Prejudice Standard ................................................................ 2

3. Florida Cases ........................................................................................ 5

4. Due Process Argument Raised Below.................................................. 9

5. Discussion of IQ Tests ....................................................................... 11

6. Note on Ford v. Wainwright .............................................................. 12

B. Whether Hall is Substantive Law - Second Question Presented ............... 13

1. Procedural Default/Waiver Argument............................................... 13

2. Significance of Hall as a Collateral Review Case ............................. 13

3. State Argues Circuit Split Not Worthy of Review ............................ 14

4. Hall is Substantive Law..................................................................... 14

CONCLUSION............................................................................................................. 15

TABLE OF AUTHORITIES

Cases:

Blanco v. State, 249 So. 3d 536 (Fla. 2018) ................................................................ 10

Bowles v. State, 276 So. 3d 791 (Fla. 2019) .............................................................. 2-3

Bowles v. Florida, 140 S. Ct. 2589 (2019) .................................................................... 2

In re Bowles, 935 F.3d 1210 (11th Cir. 2019) .............................................................. 4

In re Cathey, 857 F.3d 221, 229 (5th Cir. 2017) ........................................................... 4

Cherry v. State, No. 86–4473 (Fla. 7th Cir. Ct. Oct. 14, 2005) .................................... 7

Cherry v. State, 959 So.2d 702 (Fla. 2007) ................................................................. 6-7

Dye v. Hofbauer, 546 U.S. 1 (2005) ............................................................................. 10

Engle v. Isaac, 456 U.S. 107 (1982) ........................................................................... 2-3

Ford v. Wainwright, 477 U.S. 399 (1986) .................................................................. 12

Hall v. Florida, 572 U.S. 701 (2014) ...................................................................passim

Harvey v. State, 260 So. 3d 906 (Fla. 2018). ............................................................... 10

In re Johnson, 935 F.3d 284 (5th Cir. 2019) ................................................................. 4

Jones v. State, No. 1990-CF-50143 (Fla. 11th Cir. Ct. Jan. 14, 2004). ........................ 8

Jones v. State, 966 So. 2d 319 (Fla. 2007) .................................................................... 9

Kimbrough v. State, 886 So. 2d 965 (Fla. 2004) .......................................................... 6

Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................ 13

Medina v. California, 505 U.S. 437 (1992) ................................................................... 1

Montgomery v. Louisiana, 577 U.S. 190 (2016) .......................................................... 15

Panetti v. Quarterman, 551 U.S. 930 (2007) .............................................................. 12

Reed v. Ross, 468 U.S. 1 (1984) ..................................................................................... 3

Rodriguez v. State, 250 So. 3d 616 (Fla. 2016) .......................................................... 10

Ross v. Reed, 704 F.2d 705 (4th Cir. 1983) .................................................................. 3

Rust v. Sullivan, 500 U.S. 173 (1991) .......................................................................... 7

iii

Smith v. Digmon, 434 U.S. 332 (1978) ........................................................................ 11

State v. Barwick, No. 86-940, 2003 WL 26118942 (Fla. 14th Cir. Ct. Sep. 16, 2003) . 8

State v. Jones, No. 1990-CF-50143, 2006 WL 5837898 (Fla. 11th Cir. Ct. Feb. 24,

2006) ............................................................................................................................... 9

State v. Thompson, No. F1976-03350, 2004 WL 7340335 (Fla. 11th Cir. Ct. Dec. 17,

2004) ............................................................................................................................... 9

Street v. New York, 394 U.S. 576 (1969) ..................................................................... 11

Teague v. Lane, 489 U.S. 288 (1989) ........................................................................... 14

Welch v. United States, 136 S. Ct. 1257 (2016)........................................................... 15

Wilkerson v. Whitley, 28 F.3d 498 (5th Cir. 1994) ...................................................... 13

Zack v. State, No. 96-CF-2517 (Fla. 1st Cir. Ct. July 15, 2003)................................... 7

Zack v. State, 911 So. 2d 1190, 1201 (Fla. 2005) ....................................................... 5-6

Statutes:

§ 921.137, Fla. Stat. ............................................................................................. 6, 8, 15

28 U.S.C. § 2244 .......................................................................................................... 4-5

REPLY BRIEF FOR PETITIONER

A. Due Process Issue - First Question Presented

1. Comparison to Ordinary Timeliness Rule is Misleading

The State argues that the Medina test1 cannot be met because there is “nothing

fundamentally inadequate about a time bar to postconviction relief.” A.B. at 8. To be

sure, there is nothing wrong with the general concept of time bars. The due process

claim at issue is not being brought against the postconviction time bar at play—

Florida Rule of Criminal Procedure 3.851(d)(2)(B).

Although the State acknowledges that Rule 3.203 (2004) is the rule being

challenged under Medina, the State fails to engage with the offending elements of

Rule 3.203 and explain why they are not violative of due process: the one-time

opportunity for intellectual disability claims to be raised on postconviction; the

egregiously narrow window that was given; and, most importantly, the automatic

waiver of all intellectual disability claims otherwise. Fla. R. Crim. P. 3.203 (2004).

Although this rule does contain a time component, in that sixteen years ago it a set a

60-day window for all postconviction defendants to claim that they are barred from

execution by reason of intellectual disability, it is simply misleading to compare this

rule with a normal postconviction time requirement, like that of Rule 3.851(d).

To avoid confusion, it is more appropriate to think of Rule 3.203 in terms of

procedural default, preservation, or waiver. For one thing, the rule itself refers to

“waiver” if the claim is not raised by November 30, 2004, and, moreover, Rule 3.203

is not an ordinary “time bar” at all. Rather, it is a unique procedural bar crafted by

the Florida Supreme Court (“FSC”) just for intellectual disability claims.

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

2. Bowles v. State and State’s Comparison to Federal Cause-andPrejudice Standard

In a perfect demonstration of how this rule prohibits defendants from litigating

intellectual disability claims, the State argues that Petitioner’s due process claim

fails because the FSC has found there is no “perceived futility” exception to Rule 3.203

(2004), relying on Bowles v. State, 276 So. 3d 791, 794-75 (Fla. 2019), cert. denied sub

nom. Bowles v. Florida, 140 S. Ct. 2589 (2019). Defendant Bowles, who had IQ scores

of 74, 80, and 83, did not raise an intellectual disability claim in 2004. Id. at 793-95.

Bowles argued that there was “good cause” for his failure to raise an intellectual

disability claim back then; however, the FSC found that Bowles’ failure to raise an

intellectual disability claim in 2004 cannot be excused based on the “perceived futility

of his claim.” Id.

The fact that the “futility” of raising an intellectual disability claim in 2004 is

insufficient to excuse Bowles’ procedural default is not the argument the State thinks

it is. The Bowles decision does not demonstrate that Florida’s procedure comports

with due process. It shows the opposite. Because of Rule 3.203, Defendant Bowles

truly has no way of bringing his claim forward—so too for Petitioner Freeman. That

no defendant in Bowles’ or Freeman’s position can litigate their intellectual disability

claim is critical to demonstrating that this procedure violates due process.2

In line with the Bowles decision, the State argues that “[d]efendants must

diligently pursue all arguably colorable claims, no matter their views on the

likelihood that the state court will find them meritorious.” A.B. at 10. The State uses

the federal cause-and-prejudice standard as an example of this principle, pointing out

2 Justice Sotomayor had cause to comment on this very case in 2019: “[T]he Florida Supreme Court

has turned away prisoners seeking to vindicate this retroactive constitutional rule for the first time,

by requiring them to have brought their Hall claims in 2004—a full decade before Hall itself was

decided.” Bowles v. Florida, 140 S. Ct. 2589 (2019) (Sotomayor, J., respecting denial of cert). “This

Kafkaesque procedural rule is at odds with another Florida rule requiring counsel raising an

intellectual-disability claim to have a ‘good faith’ basis to believe that a death-sentenced client is

intellectually disabled (presumably under the limited definition of intellectual disability that Florida

had then imposed).” Id.

that a defendant’s decision to forgo a claim because it is futile or unlikely to succeed

does not constitute “cause.” Id. (citing Engle v. Isaac, 456 U.S. 107 (1982)). However,

if one is to draw comparisons to the federal cause-and-prejudice standard, the

appropriate comparison is not to the intentional bypass of a futile claim as discussed

in Engle v. Isaac, but to a novel claim, as discussed in Reed v. Ross, 468 U.S. 1 (1984).

“Engle v. Isaac left open the question whether the novelty of a constitutional issue at

the time of a state-court proceeding could, as a general matter, give rise to cause for

defense counsel’s failure to raise the issue in accordance with applicable state

procedures. . . . [W]e answer that question in the affirmative.” Reed v. Ross, 468 U.S.

1, 13 (1984). “Counsel’s failure to raise a claim for which there was no reasonable

basis in existing law does not seriously implicate any of the concerns that might

otherwise require deference to a State’s procedural bar.” Id. at 15.

“[I]f we were to hold that the novelty of a constitutional question does not give

rise to cause for counsel’s failure to raise it, we might actually disrupt state-court

proceedings by encouraging defense counsel to include any and all remotely plausible

constitutional claims that could, some day, gain recognition.” Id. “If novelty were

never cause, counsel . . . would be obliged to raise and argue every conceivable

constitutional claim, no matter how far fetched, in order to preserve a right for postconviction relief upon some future, unforeseen development in the law.” Ross v. Reed,

704 F.2d 705, 708 (4th Cir. 1983).

This is precisely the absurd burden that the State and FSC foists on Freeman,

Bowles, and other defendants—the FSC held that, to preserve his claim, Bowles

should have mounted a constitutional challenge to Florida’s standards for

determining intellectual disability, Bowles, 276 So. 3d at 794-95, even though such a

challenge by its very terms would violate the rule that applied to all such claims, see

Fla. R. Crim. P. 3.203(a) (2004) (“This rule applies in all first-degree murder cases in

which the state attorney has not waived the death penalty on the record and the

defendant’s mental retardation becomes an issue.”) (emphasis added); R.

3.203(d)(4)(A) (2004) (requiring motion to “contain a certification by counsel that the

motion is made in good faith and on reasonable grounds to believe that the prisoner

is mentally retarded”).3

When a defendant lacked any reasonable basis in then-existing law to raise a

claim, the defendant has adequate “cause” to excuse the procedural default. As

discussed in the next subsection, Petitioner has been unable to find a single case prior

to this Court’s decision in Hall in which any Florida court either interpreted

intellectual disability to take the SEM into account or suggested that Florida’s strict

IQ cutoff was unconstitutional, and the State does not present one, either.

The State also appears to draw comparisons to the successive federal habeas

motion standard as support for the principle that defendants must file claims any

way even if they are unprecedented and futile, citing In re Bowles, 935 F.3d 1210,

1217 n.2 (11th Cir. 2019). A.B. at 10. Bowles pointed to two cases in which the Fifth

Circuit determined that an Atkins claim was “previously unavailable” to the

petitioners within the meaning of § 2244(b)(2)(A) because the claims would have been

meritless under Texas’s rigid IQ cutoff that existed at the time. See In re Cathey, 857

F.3d 221, 229 (5th Cir. 2017); In re Johnson, 935 F.3d 284, 293 (5th Cir. 2019).4

Stating that it “was not bound by the decisions of our sister circuits,” the Eleventh

Circuit rejected the Fifth Circuit’s interpretation of § 2244(b)(2)(A) and concluded

3 Rule 3.203, entitled “Defendant’s Mental Retardation as a Bar to Imposition of the Death Penalty,”

applied to all death-penalty cases in which mental retardation became an issue. Fla. R. Crim. P.

3.203(a) (2004). Therefore, for all but those who were quite recently sentenced to death, Rule 3.203

governed how Atkins/intellectual disability claims must be raised, ordering that (1) they “shall” be

raised in a successive Rule 3.851 motion and (2) also requiring that those motions contain the

reasonable-grounds certificate. See Fla. R. Crim. P. 3.203(d)(4)(A)-(F) (2004).

4 In Cathey, the State argued there is “no support for excusing the failure to properly raise an available

claim simply because the claim is meritless.” Cathey, 857 F.3d 221 at 232. The Fifth Circuit disagreed,

finding that the State “assumes the conclusion: that claims are ‘available’ despite being meritless. We

think a claim must have some possibility of merit to be considered available.” Id.

that “[t]here is no futility exception to the AEDPA’s restrictions on second and

successive petitions.” Id.

To the extent that the State relies on the Eleventh Circuit’s reasoning to

bolster the general proposition that defendants should file unprecedented claims on

the chance that they might someday be recognized, the Eleventh Circuit’s

disagreement with the Fifth Circuit on this point underscores that there is not even

a consensus as to this interpretation of § 2244(b)(2)(A).

The State further argues that Hall himself was able to file a Rule 3.203 motion

in 2004, and that Petitioner “could have and should have brought the same claim” in

2004. A.B. at 11. However, this is not true. Hall was in a very different position—Hall

had received nine evaluations with IQ scores ranging from 60 to 80. Hall v. Florida,

572 U.S. 701, 707 (2014). Thus, Hall had at least some scores below 70 that allowed

him reasonable grounds to file an intellectual disability claim in 2004.5

The Bowles line of cases demonstrate that the Florida courts have tightly shut

the door to any consideration of Petitioner’s intellectual disability claim, maintaining

that defendants who did not have the necessary IQ scores should have preserved their

claim in 2004 by arguing that the definition of mental retardation was

unconstitutional, which (1) would have been a novel claim, and (2) more importantly,

would have violated Florida’s own rules of procedure. It is unreasonable to expect

that these defendants could have found a way to preserve their claims in 2004. It is

also quite evident that there is no way for such defendants to bring their claims now.

3. Florida Cases

The State asserts that Zack v. State was the first case to “construe” intellectual

disability to require an IQ score of 70 or lower. A.B. at 2, 11. Zack did not go out of its

5 Hall v. Florida, 572 U.S. 701, 707 (2014) (“Hall had received nine IQ evaluations in 40 years, with

scores ranging from 60 to 80 . . . .”); Hall v. State, 109 So. 3d 704, 710 (Fla. 2012) (circuit court refused

to admit report that Hall’s IQ was 69). Hall’s challenge to the strict IQ cutoff was first raised on appeal

to the FSC based on the circuit court’s reasons for declining to find Hall mentally retarded.

way to explain why a score of 70 was the cutoff. Zack’s matter-of-fact reference to the

70-point cutoff does reflect the prevailing understanding in Florida of what mental

retardation meant. However, this can also be seen in Kimbrough v. State, a case in

which the defendant argued his trial attorneys were ineffective for deciding against

calling two mental health experts. Kimbrough v. State, 886 So. 2d 965 (Fla. June 24,

2004). Trial counsel decided against putting Dr. Berland on the stand because the

doctor’s intelligence testing gave Kimbrough an IQ of 94. Id. at 971. This score was

far too high to be helpful—“[Trial counsel] was aware that the cutoff for mental

retardation was seventy and that seventy-six reflected a low IQ.” Id. The FSC agreed

that counsel’s decision not to call Dr. Berland was reasonable. Id. at 980. The FSC’s

matter-of-fact observation of a 70-point “cutoff for mental retardation” in June of 2004

reflects the then-prevailing understanding in Florida.

The State asserts that because § 921.137 “could be interpreted” “on its face” to

take the SEM into account, citing Hall, there was no legitimate reason to believe that

“a claim based [on] an above-70 IQ score would fail.” A.B. at 11-12. The State

misappropriates Hall’s words to reconstruct an inaccurate picture of what the Florida

legal landscape looked like in the past.

Neither Cherry (2007), nor Zack (2005), nor Hall (2012) established a new or

different definition of mental retardation in Florida. After the passing of the 2001

statute and Atkins in 2002, it took until the mid to late 2000’s for litigation around

intellectual disability to reach a boil. However, these cases should not be mistaken as

decisions establishing a “first” definition of mental retardation. The FSC, over the

years, merely reiterated the “plain” language of the statute. Cherry v. State, 959 So.2d

702, 712-13 (Fla. 2007) (agreeing with circuit judge’s reasoning that the plain

language of the statute does not reference the SEM or use the word “approximately”).

It was not until 2014 that this Court declared this definition unconstitutional,

forcing a different reading of the statute. Because this Court found that the statute

on its face could be fairly read to take the SEM into account, Hall found that the

statute was only unconstitutional as applied, not facially invalid. See Rust v.

Sullivan, 500 U.S. 173, 190 (1991) (when there is a choice “between two possible

interpretations of a statute, by one of which it would be unconstitutional and by the

other valid, our plain duty is to adopt that which will save the Act”). In other words,

a constitutional reading prevailed over the “plain” language of the statute. This is as

it should be; however, until this Court declared the literal or plain reading of the

statute unconstitutional, the fact is that this “plain” reading was the accepted reading

in Florida. No Florida court had interpreted or even hinted otherwise.

Moreover, circuit court cases display this generally accepted understanding of

the meaning of significantly subaverage intellectual functioning well before the FSC

addressed that issue head-on in Cherry (2007).6 Not a single case can be found that

expresses an opinion to the contrary. Circuit courts that had an opportunity to rule

on Atkins intellectual disability issues 2004 or earlier observed that the first prong of

retardation required a 70-point IQ score or lower.7

In Zack, the circuit court entered a final order on July 15, 2003 denying all

relief, including Zack’s Atkins claim. The circuit court wrote:

A review of the expert trial testimony on this issue shows that not one

expert found Defendant’s I.Q. to be near the statutory figure, 70, which

would be required to establish mental retardation. Because Defendant

is not mentally retarded as defined by Fla. Stat. 921.137, he is not

entitled to the Eighth Amendment protections afforded mentally

retarded persons who may face the Death Penalty.

Final Order on First Amended Motion to Vacate, Set Aside or Correct Sentence

Pursuant to Fl. R. Crim. P. 3.850 or 3.851, Zack v. State, No. 96-CF-2517 (Fla. 1st

6 In Florida, death penalty cases are appealed directly from the circuit court to the Florida Supreme

Court. There are no intermediate appellate opinions.

7 There are circuit court cases decided in 2005 or later that contribute to the circuit consensus on this

issue; however, in response to the State’s argument, Petitioner focuses on describing cases decided

around 2004 or earlier. E.g., Cherry v. State, No. 86–4473 (Fla. 7th Cir. Ct. Oct. 14, 2005) (“Neither

Rule nor statute reference the standard error measurement or use the word ‘approximately.’ ”).

Cir. Ct. July 15, 2003) (emphasis added).

In Barwick, Barwick brought a claim that he was mentally retarded and

therefore barred from execution in August of 2002. At the Huff hearing, counsel

argued that they were prepared to present evidence that Barwick had scored an I.Q.

of 75 on the most recent IQ testing models. The State argued that an I.Q. test of at

least 70 was needed under the statute and that, furthermore, Mr. Barwick’s previous

IQ tests had been much higher. On September 16, 2003, the circuit court wrote: “Both

sides agreed that . . . one prong of the test requires an IQ of 70 or lower. The record

in this case indicates that the Defendant had an IQ of 90-103. Far above that which

is required to fall within the statutory definition for the first prong of the test.” State

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

the claim was denied without an evidentiary hearing to present evidence of Barwick’s

75-point IQ score.

In Jones, Jones filed a second successive postconviction motion alleging mental

retardation on October 14, 2003. See Motion to Vacate, Jones v. State, No. 1990-CF50143, 2003 WL 25754442 (Fla. 11th Cir. Oct. 14, 2003). The circuit court issued an

order denying the claim, without an evidentiary hearing, on January 14, 2004. The

court found the claim to be conclusively refuted by the record, in part because his IQ

scores were consistently above the level for retardation (Jones’ scores were 72, 70, 67,

72, and 75). See Order, Jones v. State, No. 1990-CF-50143 (Fla. 11th Cir. Ct. Jan. 14,

2004). Because Jones’ scores are within the SEM, a finding that he still did not meet

the first prong for mental retardation indicates the circuit court viewed an IQ score

of 70 as a strict threshold.8

While pending on appeal, the FSC temporarily relinquished jurisdiction because of the newly

promulgated Rule 3.203 with instructions to the lower court to conduct a hearing. The circuit court

issued a second order reiterating that it found Jones was not mentally retarded. State v. Jones, No.

1990-CF-50143, 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.”). The FSC affirmed: “Jones first argues that the

In Thompson, Thompson filed a successive motion to vacate on November 15,

2001 (amended August 9, 2004). The circuit court noted there were delays in resolving

the motion due to a number of incidents, including three hurricanes. The circuit court

wrote: “By definition, someone with an IQ level of 70 or below would be mentally

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

Dec. 17, 2004).

4. Due Process Argument Raised Below

The State argues that Petitioner “never raised it [the due process argument]

below.” A.B. at 14. This is untrue. Petitioner argued to the circuit court that the

procedural bar violates “the rights of individuals like Mr. Freeman by depriving him

of due process guarantees of notice and an opportunity to be heard . . . [and creates]

an unconstitutional risk of arbitrary and capricious imposition of the death penalty .

. . .” Response to Order to Show Cause at 7-8, No. 1986-CF-11599 (Fla. 4th Cir. July

2, 2019). “That Mr. Freeman could potentially suffer the ultimate loss—his life—

because he failed to meet a procedural requirement, when he could not have been on

notice that he was eligible for relief, violates his due process rights.” Id. at 10.9

The circuit court acknowledged that Petitioner claimed a due process violation,

but that it was not free to stray from controlling FSC precedent stating that

Petitioner needed to preserve his claim in 2004. “Defendant argues that . . . Rodriguez

trial court erred in concluding that because his IQ was consistently above 70, he did not meet the first

prong of the mental retardation definition. Jones claims that mental retardation may be diagnosed in

individuals with IQs between 70 and 75 when they exhibit significant deficits in adaptive behavior.

First, we already have found the trial court’s determination that Jones is not deficient in adaptive

functioning to be supported by competent, substantial evidence. Insofar as this involves the application

of Florida’s statute, we find this claim also fails under the plain language of the statute.” Jones v.

State, 966 So. 2d 319, 329 (Fla. May 24, 2007) (SC04-726).

9 Petitioner also argued that, because he could not have raised a meritorious intellectual disability

claim until Halls and then Walls was decided, he should be excused under Rule 3.203(f) for “good

cause.” (This argument was condemned by decisions like Bowles.)

and Blanco in this manner both violates his due process rights and ‘create[s] an

unconstitutional risk of imposition of the death penalty on intellectually disabled

persons.’ Defendant urges this Court not to follow Rodriguez and Blanco, something

this Court is not free to do.” Order at 4-5, No. 1986-CF-11599 (Fla. 4th Cir. Aug. 14,

2019). Finding no way to distinguish Petitioner’s case from Rodriguez, Blanco,

Harvey, and Bowles,10 the circuit court wrote the “fact is that, in order to preserve a

postconviction claim of intellectual disability as a bar to execution, a defendant must

have made the claim [in 2004].” Id.

In his initial brief to the FSC, Petitioner again raised the claim that Florida’s

procedural bar violated due process:

Justice Sotomayor’s comment aptly describes Florida’s procedural bar

which requires intellectually disabled defendants to have filed a

frivolous and meritless claim nearly fifteen years ago—before they were

on notice that they were potentially in a class of persons that could be

entitled to Atkins-based relief—in order to get the retroactive benefit of

Hall guaranteed by Walls. This Court’s procedural bar violates the

principles of fundamental fairness articulated by this Court in James v.

State, 615 So. 2d 668, 669 (Fla. 1993) and is inconsistent with the Eighth

Amendment’s prohibition against the arbitrary and capricious

imposition of the death penalty and the Fourteenth Amendment’s

guarantee of due process and equal protection.

Appellant’s Initial Brief at 31, 37-40, Freeman v. State, No. SC19-1532 (Fla. Dec. 24,

2019). The FSC did not address Petitioner’s due process argument in its opinion.

However, the failure of a state appellate court to pass on a federal claim squarely

presented to it does not impinge this Court’s review. See Street v. New York, 394 U.S.

576, 583 (1969); Dye v. Hofbauer, 546 U.S. 1, 3-4 (2005) (“Failure of a state appellate

court to mention a federal claim does not mean the claim was not presented to it.”);

Smith v. Digmon, 434 U.S. 332, 333 (1978) (noting there is no failure to exhaust

simply because “a state appellate court chooses to ignore in its opinion a federal

Rodriguez v. State, 250 So. 3d 616 (Fla. 2016); Blanco v. State, 249 So. 3d 536 (Fla. 2018); Harvey v.

State, 260 So. 3d 906 (Fla. 2018).

constitutional claim squarely raised in petitioner’s brief . . . .”).

5. Discussion of IQ Tests

The State’s argument that Mr. Freeman should remain married to the results

of tests administered in 198711 and 1992 shows how Florida’s procedure for raising

intellectual disability claims was built around a misleading idea of how IQ tests work.

As discussed in Hall, the persistent flaw in Florida’s approach to mental retardation

is that it views an IQ score as final conclusion of a defendant’s intellectual capacity

while “refusing to recognize that the score is, on its own terms, imprecise.” Hall, 572

U.S. at 712. “An IQ score is an approximation, not a final and infallible assessment

of intellectual functioning.” Id. at 722.

The state’s assumption that a defendant, if he was mentally retarded, would

have already had the “right score” at the “right time” (a relatively arbitrary point in

time) is reflected in the Bowles line of cases. The way that this procedural default

rule was designed is in conflict with the correct medical understanding that an IQ

score is inherently “imprecise” and thus a defendant might easily receive different

scores over time and over the course of different tests. For example, Hall himself had

received nine IQ scores ranging from as low as 60 to as high as 80.

The two tests done on Petitioner in 1987 and 1992 are based on out of date

models—the current science says Petitioner has a full-scale IQ of 72. Dr. Barry

Crown, who administered the WAIS-IV in 2017 to Petitioner, found that Petitioner

“has significantly sub-average and impaired intellectual functioning, consistent with

a diagnosis of intellectual disability. Upon review of his history, I have also concluded

that Mr. Freeman has significant adaptive deficits, and that his intellectual and

adaptive deficits originated prior to 18. Mr. Freeman meets the criteria for a diagnosis

of intellectual disability, and I make that diagnosis.”

11 The WAIS-R test administered by Dr. Legum was in 1987, not 1988, which resulted in a score of 83.

6. Note on Ford v. Wainwright

In response to the State’s note on Ford v. Wainwright, 477 U.S. 399 (1986),

Justice Powell agreed with the plurality opinion that the procedures in that case

failed to comport with due process. The additional significance of Justice Powell’s

concurrence in Ford is that it set “the minimum procedures a State must provide to

a prisoner” regarding a claim of insanity:

Justice Powell’s opinion states the relevant standard as follows. 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.

Panetti v. Quarterman, 551 U.S. 930, 948 (2007). These minimum procedures apply

with as much force to the intellectual disability context. The threshold showing of

intellectual disability was met when Petitioner filed a motion in 2017 alleging that

Dr. Barry Crown, who administered the WAIS-IV in 2017, diagnosed Petitioner as

intellectually disabled and found Petitioner had a full-scale IQ of 72. After this

threshold showing, Petitioner should have been given a ‘fair hearing’ on the issue,

but was denied any hearing. Thus, a comparison to the minimum requirements

outlined in Ford demonstrate that Florida’s procedures for raising intellectual

disability claims as a bar to execution fall short of due process.

The State simply argues that Petitioner “had the chance to present evidence of

intellectual disability” in 2004 and that the State did provide a fair opportunity to be

heard in 2004; however, this defense is merely a repackaging of the procedural default

argument. A.B. at 14.

Because Florida’s postconviction procedures for raising an intellectual

disability claim as a bar to execution fail to comport with due process and fail to

vindicate Petitioner’s Eighth Amendment rights, this Court should grant certiorari

to review this question.

B. Whether Hall is Substantive Law – Second Question Presented

1. Procedural Default/Waiver Argument

The State asserts there is an independent and adequate state bar, arguing that

this Court should not reach the second Question Presented because it is procedurally

barred by Rule 3.203(d)(4). A.B. at 15. Petitioner has already explained in the

certiorari petition why this procedural rule does not present an adequate state bar.

See Pet. at 22-26.12

2. Significance of Hall as a Collateral Review Case

In response to the fact that Hall (2014) was decided on collateral review, the

State argues that this Court’s silence means this fact carries “no precedential effect.”

A.B. at 23. The first footnote cited by the State applies to unaddressed jurisdictional

defects. Lewis v. Casey, 518 U.S. 343, 353 n.2 (1996) (noting that “standing was

neither challenged nor discussed in that case,” and “the existence of unaddressed

jurisdictional defects has no precedential effect”) (emphasis added). The second

footnote cited by the State is a reference to the extremely specific question of whether

a decision of this Court laying down the retroactivity framework is itself retroactive.13

The State contends the “procedural context in which Hall was decided” does

not carry any significance with respect to retroactivity. A.B. at 24. The State argues

that it is not “this Court’s practice to decide retroactivity by implication,” and that

this Court typically “decides the merits of a constitutional claim first, followed by a

Rule 3.851(d)(2)(B) (the time bar) is intertwined with the second Question Presented, and is

therefore not an independent bar to this Court’s review.

13 The question was whether Griffith v. Kentucky, deciding that new rules are to be applied to cases

pending on direct review/not yet final, was itself a retroactive decision. Wilkerson pointed out that in

the “five cases where the issue of the retroactivity of Griffith has come up, the courts applied Griffith

retroactively,” but the Fifth Circuit found that the courts’ “silence is best viewed as a failure to address

or decide the issue” and in the absence of a reasoned analysis as to why Griffith should apply

retroactively, the Fifth Circuit found these cases “unpersuasive.” Wilkerson v. Whitley, 28 F.3d 498,

506 n.12 (5th Cir. 1994). The fact that the Fifth Circuit afforded little weight to cases in which the

courts did not explain their reasoning has little to do with whether the Hall’s postconviction procedural

context carries significance with respect to the Teague framework.

different case deciding whether its holding is retroactive.” Id.

While it is true that this often happens in this order, it does not follow that this

is any reason to disregard Hall’s procedural context. The procedural context of Hall

is important because in Teague, this Court announced that it would not proceed to

the merits of a postconviction claim unless the rule to be applied could be applied

retroactively to all defendants on collateral review:

We therefore hold that, implicit in the retroactivity approach we adopt

today, is the principle that habeas corpus cannot be used as a vehicle to

create new constitutional rules of criminal procedure unless those rules

would be applied retroactively to all defendants on collateral review

through one of the two exceptions we have articulated. Because a

decision extending the fair cross section requirement to the petit jury

would not be applied retroactively to cases on collateral review under

the approach we adopt today, we do not address petitioner's claim.

Teague v. Lane, 489 U.S. 288, 316 (1989) (emphasis in original). Because the Court

in Hall addressed the merits of the claim, despite being on collateral review, it

signifies that the rule “would be applied retroactively to all defendants on collateral

review” through one of the exceptions/exemptions to Teague.

3. State Argues Circuit Split Not Worthy of Review

The State’s arguments in Section II.B. of the Answer Brief overlap with those

raised in its brief for Lawrence v. Florida. The State misinterprets the significance of

several cases involved in the circuit split over Hall’s retroactive application.

In an effort to avoid repetitive briefing, Petitioner would direct the reader’s

attention to the Reply Brief submitted in Lawrence v. Florida (SC20-6307),

specifically Sections C, D, and E.

4. Hall is Substantive Law

The State argues that review is not warranted because the FSC was correct to

find that Hall is a new, procedural rule. The State argues that “Atkins protects every

individual who is intellectually disabled, while Hall simply prevents States from

using a particular procedure . . . .” A.B. at 24.14

The central arguments for Hall being substantive law were discussed in the

certiorari petition, and need not be reproduced here. However, it is worth noting that

the State does not adequately address the functional effect test described in Welch.

An emerging rule is substantive or procedural based on “the function of the rule,” not

the decision’s underlying reasoning. Welch v. United States, 136 S. Ct. 1257, 1265-68

(2016). The mere fact that Hall discussed or was concerned with procedure does not

mean that the effect of the Hall decision is “procedural.” Under the test set forth in

Welch, Hall could have been a self-professed procedural due process case, and the

emerging rule would still not be procedural. See id. (a decision striking down a

substantive statute—like one which governs punishment—is itself substantive

because the effect is “alter[ing] the . . . class of persons that the law punishes”). Hall

found that § 921.137, Florida Statutes was unconstitutional as applied. The function

of this statute is to define who is “intellectually disabled” and exempt from execution.

The State makes no argument that the purpose of this statute is “procedural.”

Because the statute at issue in Hall is substantive—it determines who can be subject

to the penalty of execution—the functional effect of the rule must be substantive.

CONCLUSION

The petition for writ of certiorari should be granted.

14 This argument is remarkably similar to that advanced by Louisiana in Montgomery (state “argues

that Miller is procedural because it did not place any punishment beyond the State’s power to impose”

“[i]nstead, it mandates only that a sentencer follow a certain process”). Montgomery v. Louisiana, 577

U.S. 190, 209-210 (2016). Louisiana argued that the decision was not substantive because a judge

could engage in the appropriate process and come to the same conclusion—they could still decide that

life without parole was the correct sentence for this defendant. Id. The punishment is not entirely

eliminated. Id. This is the same argument the State makes here. A trial judge in Florida could be

forced to engage in the appropriate process and still find that the death sentence is appropriate—they

could very well decide that the defendant is not intellectually disabled. Just as in Montgomery, the fact

that death could still be appropriate for some offenders does not mean that other defendants “have not

suffered the deprivation of a substantive right.” Id.

Respectfully submitted,

/s/ Dawn Macready

DAWN MACREADY

Counsel of Record