Petition for Writ of Certiorari — Tina LaSonya Brown, Petitioner v. Florida

CAPITAL CASE

___________________________________________________________

No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

TINA LASONYA BROWN,

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

______________________________________________________________

DAWN B. MACREADY

Counsel of Record

STACY R. BIGGART

Capital Collateral Regional Counsel –

Northern Region

1004 DeSoto Park Drive

Tallahassee, Florida 32301

(850) 487-0922

Dawn.Macready@ccrc-north.org

Stacy.Biggart@ccrc-north.org

CAPITAL CASE

QUESTIONS PRESENTED

ONE: Petitioner Tina Brown sought state postconviction relief from a 2012 death

sentence imposed under the procedure subsequently held unconstitutional in Hurst

v. Florida. The Florida Supreme Court denied relief, holding (a) that it is

constitutionally permissible to execute a death sentence based on a guilt-stage jury

finding of an element of first-degree murder which tracks any aggravating factor

required in order to make the first-degree murder death-eligible, and (b) that such a

finding needs not be actually made by a jury but can be imputed by an appellate court

to a guilt-phase jury verdict which must “have logically concluded” that the element

was found, and (c) that such a logical conclusion could be drawn even though the case

was submitted to the jury under alternative theories of guilt, only one of which

required such a finding. Does this procedure violate the Sixth, Eighth or Fourteenth

Amendments? (This question includes the subquestions (1) whether AlmendarezTorres v. United States remains good law in the wake of Hurst and Caldwell v.

Mississippi and, if so, (2) whether Mathis v. United States or Stromberg v. California

precludes the Florida Supreme Court’s finding-by-imputation procedure.)

TWO: Does the Eighth or the Fourteenth Amendment tolerate a death sentence

imposed through a process which denies the jury any responsible role in the selectionstage capital-sentencing decision? (This question includes the subquestions (1)

whether these amendments require that the ultimate choice between life and death

be made by a unanimous jury, or (2) if not, whether that choice must at least be made

by a plurality of a jury, or (3) if not, whether a jury must at least be given some

meaningful input into the life-or-death selection-stage decision.)

THREE: The procedure described in Question Presented ONE was announced by the

Florida Supreme Court in an opinion which overruled that Court’s earlier (2016)

implementation of Hurst v. Florida and revalidated death sentences which the 2016

ruling had held impermissible. Does this volte-face violate the guarantees of Article

I, § 10 or the Fourteenth Amendment’s due process prohibition of ex post facto

liability?

i

PARTIES TO THE PROCEEDINGS

Petitioner, Tina LaSonya Brown, a death-sentenced Florida prisoner, was the

appellant in the Florida Supreme Court.

Respondent, the State of Florida, was the appellee below.

There are no other parties to the proceeding.

LIST OF RELATED PROCEEDINGS

Florida Supreme Court

Brown v. State, Nos. SC19-704 & SC19-1419 (opinion and judgment issued August

27, 2020; order denying rehearing issued November 12, 2020; mandate issued

November 30, 2020). [Reported as Brown v. State, 304 So.3d 243 (Fla. August 27,

2020)].

United States District Court for the Northern District of Florida

Brown v. Sec’y, Fla. Dep’t. of Corr., No. 3:16-cv-99-RH (N.D. Fla.) (proceedings

stayed). Unreported.

Circuit Court of the First Judicial Circuit of Florida, in and for Escambia

County

State v. Brown, 172010CF001608XXXAXX (judgment entered April 5, 2019).

Unreported. [State v. Brown, 2019 WL 11234115 (Fla. 1st Cir. Ct. April 5, 2019)].

Supreme Court of the United States

Brown v. Florida, No. 14–6646: certiorari denied. [Reported as Brown v. Florida, 574

U.S. 1034 (December 1, 2014)].

Florida Supreme Court

Brown v. State, SC17-2166 Petition for Writ of Prohibition and Motion for Stay of

Proceedings, denied December 19, 2017. Unreported. [Brown v. State, 2017 WL

6493249 (Fla. December 19, 2017)].

ii

Florida Supreme Court

Brown v. State, SC16–358 Petition Seeking Review of Nonfinal Order in Death

Penalty Postconviction Proceeding denied without prejudice, June 24, 2016.

Unreported. [Brown v. State, 2016 WL 3474843 (Fla. June 24, 2016)].

Florida Supreme Court

Brown v. State, SC16–397 Petition for Writ of Prohibition denied June 24, 2016.

Unreported. [Brown v. State, 2016 WL 3459727 (Fla. June 24, 2016)].

Florida Supreme Court

Brown v. State, SC12-2159 (opinion and judgment issued May 15, 2014; order denying

rehearing issued July 8, 2014; mandate issued July 24, 2014).

[Reported as Brown v. State, 143 So.3d 392 (Fla. May 15, 2014)].

Circuit Court of the First Judicial Circuit of Florida, in and for, Escambia

County

State v. Brown, 172010CF001608XXXAXX (Fla. 1st Cir. Ct. judgment entered

September 28, 2012). Unreported. [State v. Brown, 2012 WL 13214557 (Fla. 1st Cir.

Ct. September 28, 2012)].

iii

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Parties to the Proceedings ............................................................................................. ii

List of Related Proceedings ........................................................................................... ii

Table of Contents .......................................................................................................... iv

List of Exhibits in the Appendix ................................................................................... v

Table of Authorities ...................................................................................................... vi

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional Provisions Involved ............................................................................... 1

Statement of the Case ................................................................................................... 2

A. Crime, Trial, Sentence, and Direct Appeal ........................................................... 2

B. The Present Postconviction Proceeding ............................................................... 5

How the Federal Questions Presented Were Raised and Passed on Below ............... 6

A. Hurst’s wake in Florida: From Hurst to Poole ..................................................... 6

B. Poole is applied to Ms. Brown ............................................................................... 10

Reasons for Granting the Writ ................................................................................... 13

A. Certiorari should be granted to determine whether the Sixth and Fourteenth

Amendments can tolerate Florida’s post-Poole practice of upholding a death

sentence unsupported by any responsible jury finding of the facts necessary to make

a defendant’s crime death-eligible ............................................................................ 13

B. Certiorari should be granted to consider whether Florida’s post-Poole scheme for

dealing with cases in which pre-Hurst trials produced a death sentence violates the

Eighth and Fourteenth Amendments ....................................................................... 20

iv

(1) The Eighth Amendment requires that the ultimate decision to impose a

sentence of death rather than life must be made by a unanimous jury ....... 23

(2) Alternatively, even if the Eighth Amendment did not require jury unanimity

in death sentencing, it would at least require a jury to make the ultimate

decision to impose a death sentence ............................................................... 25

(3) Alternatively, at a minimum the Eighth Amendment requires that a jury

have meaningful input into the capital-sentencing decision ........................ 26

C. Certiorari should be granted to consider whether Poole’s application to Ms.

Brown constitutes a federal ex post facto and due process violation ....................... 28

Conclusion .................................................................................................................. 30

LIST OF EXHIBITS IN THE APPENDIX

Exhibit 1 – Florida Supreme Court opinion below (August 27, 2020)......................... 1

Exhibit 2 – Florida Supreme Court order on rehearing (November 12, 2020) ......... 34

Exhibit 3 – Circuit Court order denying postconviction relief (April 5, 2019) .......... 36

Exhibit 4 – Role of the jury in capital sentencing in American death-penalty

jurisdictions other than Florida ........................................................... 147

Exhibit 5 – Sources of the data in Exhibit 4 ............................................................. 152

v

TABLE OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) ...................................................... 27

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ..................................passim

Anderson v. Florida, 140 S.Ct. 291 (2019) .................................................................. 11

Apprendi v. New Jersey, 530 U.S. 466 (2000) ......................................................passim

Asay v. State, 210 So.3d 1 (Fla. 2016) ..................................................................... 8, 11

Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................ 23, 25

Bearden v. Georgia, 461 U.S. 660 (1983) .................................................................... 12

Beck v. Alabama, 447 U.S. 625 (1980) .................................................................. 23, 25

Black v. United States, 561 U.S. 465 (2010) ............................................................... 15

Bosse v. Oklahoma, 137 S.Ct. 1 (2015)........................................................................ 12

Bouie v. City of Columbia, 378 U.S. 347 (1964) .......................................................... 28

Boyd v. State, 910 So.2d 167 (Fla. 2005) ..................................................................... 11

Boyd v. State, 291 So.3d 900 (Fla. 2020) ..................................................................... 11

Brown v. Florida, 574 U.S. 1034 (2014) ........................................................................ 5

Brown v. State, 143 So.3d 392 (Fla. May 15, 2014) .......................................... 2, 3, 4, 5

Brown v. State, 304 So.3d 243 (Fla. August 27, 2020) ........................................passim

Bush v. State, 295 So.3d 179 (Fla. 2020) .................................................................... 29

Byrd v. United States, 138 S.Ct. 1518 (2018) ............................................................. 12

Calder v. Bull, 3 U.S. 386 (1798) .......................................................................... 28, 29

Caldwell v. Mississippi, 472 U.S. 320 (1985) .......................................................passim

vi

Coker v. Georgia, 433 U.S. 584 (1977) ........................................................................ 25

Cummings v. Missouri, 71 U.S. 277 (1866) ................................................................ 29

Eddings v. Oklahoma, 455 U.S. 104 (1982) .......................................................... 22, 27

Enmund v. Florida, 458 U.S. 782 (1982) .............................................................. 23, 25

Franqui v. State, 301 So.3d 152 (Fla. 2020) ............................................................... 22

Godfrey v. Georgia, 446 U.S. 420 (1980) ............................................................... 20, 24

Hall v. Florida, 572 U.S. 701 (2014) ..................................................................... 25, 29

Harris v. Alabama, 513 U.S. 504 (1995) ..................................................................... 25

Hildwin v. Florida, 490 U.S. 638 (1989) ..................................................................... 18

Hurst v. Florida, 577 U.S. 92 (2016) ....................................................................passim

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

Jaramillo v. State, 417 So.2d 257 (Fla. 1982) ............................................................. 29

Jones v. United States, 526 U.S. 227 (1999) ............................................................... 16

Kennedy v. Louisiana, 554 U.S. 407 (2008) .......................................................... 20, 25

Kring v. Missouri, 107 U.S. 221 (1883) ....................................................................... 29

Lawrence v. State, 308 So.3d 544 (Fla. 2020) ............................................................. 29

Lott v. State, 695 So.2d 1239 (Fla. 1997) .................................................................... 11

Lott v. State, 303 So.3d 165 (Fla. 2020) ................................................................ 11, 22

Lindsey v. Washington, 301 U.S. 397 (1937) .............................................................. 28

Marks v. United States, 430 U.S. 188 (1977) .............................................................. 28

Maslenjak v. United States, 137 S.Ct. 1918 (2017) .................................................... 12

Mathis v. United States, 136 S.Ct. 2243 (2016) .............................................. 15, 16, 18

vii

McKinney v. Arizona, 140 S.Ct. 702 (2020) ................................................................ 22

Middleton v. Florida, 138 S.Ct. 829 (2018)................................................................. 11

Miller v. Florida, 482 U.S. 423 (1987) .................................................................. 28, 29

Mills v. Maryland, 486 U.S. 367 (1988) ...................................................................... 15

Mosley v. State, 209 So.3d 1248 (Fla. 2016) ...................................................... 8, 10, 20

Padilla v. Kentucky, 559 U.S. 356 (2010) ................................................................... 12

Penry v. Johnson, 532 U.S. 782 (2001)........................................................................ 25

Peugh v. United States, 569 U.S. 530 (2013) .............................................................. 28

Phillips v. State, 299 So.3d 1013 (Fla. 2020) .............................................................. 29

Philmore v. State, 234 So.3d 567 (Fla. 2018) .............................................................. 11

Ramos v. Louisiana, 140 S.Ct. 1390 (2020) ................................................................ 23

Randolph v. State, No. SC20-287, February 4, 2021.................................................. 11

Reed v. State, 297 So.3d 1291 (Fla. 2020) ................................................................... 22

Reynolds v. Florida, 139 S.Ct. 27 (2018)............................................................... 11, 26

Ring v. Arizona, 536 U.S. 584 (2002) ...................................................................passim

Roberts v. Louisiana, 428 U.S. 325 (1976) .................................................................. 23

Roe v. Flores-Ortega, 528 U.S. 470 (2000) .................................................................. 12

Rogers v. State, 285 So.3d 872, 891 (Fla. 2019) .......................................................... 29

Romano v. Oklahoma, 512 U.S. 1 (1994) .................................................................... 19

Roper v. Simmons, 543 U.S. 551 (2005) .......................................................... 22, 24, 26

Shepard v. United States, 544 U.S. 13 (2005) ................................................ 15, 16, 18

Spaziano v. Florida, 468 U.S. 447 (1984) ......................................................... 9, 18, 22

viii

Spencer v. State, 615 So.2d 688 (Fla. 1993) .................................................................. 4

State v. Brown, 2019 WL 11234115 (Fla. 1st Cir. Ct. April 5, 2019) ......................... 11

State v. Brown, 2012 WL 13214557 (Fla. 1st Cir. Ct. September 28, 2012) ............... 4

State v. Jackson, 2020 WL 6948842 (Fla. 2020) ......................................................... 20

State v. Okafor, 2020 WL 6948840 (Fla. 2020) ........................................................... 20

State v. Poole, 297 So.3d 487 (Fla. 2020) .............................................................passim

Stromberg v. California, 283 U.S. 359 (1931) ............................................................. 15

Sumner v. Shuman, 483 U.S. 66 (1987) ...................................................................... 24

Taylor v. United States, 495 U.S. 575 (1990) .............................................................. 16

Tharpe v. Sellers, 138 S.Ct. 545 (2018) ....................................................................... 12

Walls v. State, 213 So.3d 340 (Fla. 2016) .................................................................... 29

Walton v. Arizona, 497 U.S. 639 (1990) ...................................................................... 18

Weaver v. Graham, 450 U.S. 24 (1981) ....................................................................... 28

Williams v. North Carolina, 317 U.S. 287 (1942) ....................................................... 15

Woodson v. North Carolina, 428 U.S. 280 (1976) ................................................. 23, 27

Wright v. State, No. SC19-2123, January 7, 2021 ...................................................... 11

Yacob v. State, 136 So.3d 539 (Fla. 2014) ................................................................... 29

Yates v. United States, 354 U.S. 298 (1957)................................................................ 15

ix

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

Fla. Stat. Ann. § 782.04 ......................................................................................... 20, 21

Fla. Stat. Ann. § 921.141 ......................................................................................passim

Other authorities

Amsterdam, Note, The Void for Vagueness Doctrine in the Supreme Court,

109 U. PA. L. REV. 67 (1960) ........................................................................................ 28

Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical

Research on Deliberating Groups, 7 PSYCHOL. PUB. POL’Y & L. 622 (2001) ............... 24

Dennis J. Devine et al., Deliberation Quality: A Preliminary Examination

in Criminal Juries, 4 J. EMPIRICAL LEGAL STUD. 273 (2007) ..................................... 24

Freund, The Supreme Court and Civil Liberties, 4 VAND. L. REV. 533 (1951) .......... 28

Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1261

(2000) ............................................................................................................................ 24

REID HASTIE, et al., INSIDE THE JURY 115 (Harvard U. Press 1983) .......................... 24

Shari Seidman Diamond et al., Revisiting the Unanimity Requirement: The

Behavior of the Nonunanimous Civil Jury, 100 NW. U. L. REV. 201 (2006) .............. 24

Thomas Ward Frampton, The Jim Crow Jury, 71 VAND. L. REV. 1593 (2018) ......... 24

Valerie P. Hans, The Power of Twelve: The Impact of Jury Size and Unanimity

on Civil Jury Decision Making, 4 DEL. L. REV. 1 (2001) ............................................ 24

Valerie P. Hans, Deliberation and Dissent: 12 Angry Men Versus the Empirical

Reality of Juries, 82 CHI.-KENT L. REV. 579 (2007) .................................................... 24

x

OPINIONS BELOW

The opinion of the Florida Supreme Court is reported as Brown v. State, 304

So.3d 243 (Fla. 2020), and is attached in the Appendix as Exhibit 1. That court’s order

denying rehearing appears in 2020 WL 6609420 (Fla. 2020) and as Exhibit 2 in the

Appendix.

The order of the Circuit Court in and for Escambia County, Florida, in Case

No.172010CF001608XXXAXX, denying Ms. Brown’s Third Amended Motion to

Vacate Judgments of Conviction and Sentence is unreported and is attached in the

Appendix as Exhibit 3.

JURISDICTION

The judgment of the Florida Supreme Court was entered on August 27, 2020,

and rehearing was denied on November 12, 2020. This Court has jurisdiction under

28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides, in relevant part:

“In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury . . . .”

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 . . . .”

Article I, § 10 of the Constitution provides, in relevant part:

“No State shall . . . pass any . . . ex post facto Law . . . .”

1

STATEMENT OF THE CASE1

A.

Crime, Trial, Sentence, and Direct Appeal

On April 27, 2010, Petitioner Tina Brown was indicted for the kidnapping and

first-degree murder of Audreanna Zimmerman, committed in March of 2010. (R.1 2.) The prosecution subsequently dismissed the kidnapping charge (T. 9) and the

case went to trial on the murder charge alone.

Guilt-stage and penalty-stage

proceedings were conducted under the Florida procedure later held unconstitutional

in Hurst v. Florida.2

The prosecution’s evidence established a crime out of nightmare. As described

by the Florida Supreme Court on direct appeal:

“In March 2010, Tina Brown, Brown’s sixteen-year-old daughter Britnee

Miller, Heather Lee, and Audreanna Zimmerman lived in neighboring

trailers in an Escambia County mobile home park. The four women

were initially good friends, but their relationships – particularly

between Miller, Brown, and Zimmerman – were volatile and often

escalated to violence. . . .

“On March 24, 2010, Brown invited Zimmerman to her home under the

guise of rekindling their friendship. Before Zimmerman arrived, Brown,

Miller, Lee, and Miller’s thirteen-year-old friend, were inside the trailer.

Brown and Lee were in the kitchen, where Lee instructed Brown on the

proper use of a stun gun. Miller then pulled her friend aside and told

her, ‘we’re fixing to kill Audreanna [Zimmerman].’ Shortly after 9 p.m.,

Zimmerman entered the trailer. Brown waited several minutes and

then used the stun gun on Zimmerman multiple times. When

Zimmerman lost muscular control and fell to the floor, Brown continued

to use the stun gun on Zimmerman, who was screaming and crying for

help. Eventually, Brown pulled Zimmerman across the trailer into the

1 The abbreviation “T.” will be used to refer to Petitioner’s trial, and “R.” will be used to refer to the

record on appeal as compiled for Petitioner’s direct appeal, Brown v. State, 143 So.3d 392 (Fla. 2014).

The abbreviation “PCR.” will be used to refer to the postconviction record on appeal as compiled for

Petitioner’s state postconviction proceeding in Brown v. State, Nos. SC19-704 & SC19-1419, 304 So.3d

243 (Fla. 2020), 2020 WL 5048548 (Fla. Aug. 27, 2020).

2

Hurst v. Florida, 577 U.S. 92 (2016).

2

bathroom. Zimmerman continued to scream and cry for help, so Miller

struck Zimmerman in the face and Lee stuffed a sock into Zimmerman’s

mouth. Zimmerman was then forcibly escorted outside and forced into

the trunk of Brown’s vehicle. Brown, Miller, and Lee then entered the

vehicle and drove away.

“The women drove to a clearing in the woods about a mile and a half

from the trailer park. Brown exited the car and pulled Zimmerman out

of the trunk. Zimmerman attempted to flee, but stumbled in the

darkness and was caught by Brown and Miller. The two women

wrestled Zimmerman to the ground and simultaneously attacked her.

Brown used the stun gun again on Zimmerman as Miller beat her with

a crowbar. Brown and Miller then switched weapons and continued to

torture and beat Zimmerman. Miller eventually dropped the stun gun

and repeatedly punched Zimmerman. Brown returned to the car,

retrieved a can of gasoline from the trunk, and walked back toward the

beaten and prone, but still conscious, Zimmerman. Brown poured

gasoline on Zimmerman, retrieved a lighter from her pocket, set

Zimmerman on fire, and stood nearby to watch the screaming

Zimmerman burn. Lee testified that she was standing beside Miller,

who exuberantly jumped up and down and screamed, “Burn, bitch!

Burn!” After a few minutes, the three women returned to the car and

drove away. During the ride home, Miller said, “Mom, you’ve got to turn

around. I left my shoes and the taser.” Brown, however, refused to

return to the location of the event.

“Due to the extensive nature of Zimmerman’s burns, . . .[an] EMT

testified that he could not initially identify whether she was wearing

clothing. The EMT noticed that Zimmerman’s skin was falling off her

body, and he believed that over ninety percent of her body was burned.

She had severe head trauma, and her jaw was either broken or severely

dislocated. . . .

“Zimmerman was stabilized at a local hospital and then transferred to

the Burn Center at the University of South Alabama Hospital in Mobile,

Alabama, where she died sixteen days later.”3

The jury found Ms. Brown guilty as charged (R. 632 - 633; T. 742) and

recommended death by a vote of 12 to 0 (R. 648; T. 1126 - 1127). The trial judge then

3

Brown v. State, 143 So.3d 392, 395 - 396 (Fla. 2014).

3

made independent findings of circumstances in aggravation and mitigation;4 he

“concluded that the aggravating circumstances outweighed the mitigating

circumstances and noted that this case, ‘particularly because of the heinous,

atrocious, [or] cruel nature of the murder of Audreanna Zimmerman, falls into the

class of murders for which the death penalty is reserved’”5; and he elected to impose

a death sentence (R.897 - 909).

On direct appeal to the Florida Supreme Court, Ms. Brown contended, inter

alia, that the Florida capital-sentencing procedure through which she was sentenced

to die violated the Sixth Amendment as construed in Ring v. Arizona.6 The Florida

Two months after the jury’s penalty recommendation was received, the trial judge conducted a

sentencing hearing (R.897 - 909) pursuant to Spencer v. State, 615 So.2d 688 (Fla. 1993). He found

the following aggravating factors: (1) the crime was committed during a kidnapping; (2) it was

especially heinous, atrocious, or cruel (HAC); and (3) it was cold, calculated, and premeditated (CCP).

He found one statutory mitigator – no prior criminal history. He also found twenty-seven non-statutory

mitigators: Ms. Brown (1) was the child of a teenage mother (minimal weight); (2) was neglected by

both parents (some weight); (3) lost her childhood due to parental neglect (some weight); (4) was

abandoned by her mother (some weight); (5) had a history of family violence (some weight); (6) was

exposed to drugs during her adolescence (some weight); (7) suffered developmental damage due to her

parents’ use of and dependence on drugs (some weight); (8) was subjected to sexual violence inflicted

by her father; (some weight); (9) was betrayed by a trusted family member (i.e., her grandmother)

(some weight); (10) experienced corruptive community influences and exposure to a criminal lifestyle

(some weight); (11) experienced chaotic moves and transitions (little weight); (12) was a victim of

domestic violence during her adult life (some weight); (13) witnessed a violent homicide and served as

a State witness in a murder trial (little weight); (14) lost her family (her parental rights were

terminated for her two sons, and she has no relationship with her mother or father) (little weight);

(15) suffered repeated trauma throughout her life (little weight); (16) suffered from drug addiction

(little weight); (17) suffered from the long term effects of chronic cocaine use on her brain (some

weight); (18) was a productive citizen during periods of sobriety (little weight); (19) was living in

poverty at the time of the crime (minimal weight); (20) behaved well in jail (little weight); (21)

conducted a bible study program (little weight); (22) exhibited good courtroom behavior (little weight);

(23) has no possibility of parole (little weight); (24) showed remorse (some weight); (25) received a

different sentence than that of her co-defendants (some weight); (26) had no history of prior criminal

violence (moderate weight); and (27) was using cocaine on the day of the crime (moderate weight).

State v. Brown, Circuit Court in and for Escambia County, Florida, Case No. 1710CF001608-A,

Sentencing Order, September 28, 2012. See Brown v. State, 143 So.3d 392, 401 (Fla. 2014).

4

5

Brown v. State, 143 So.3d 392, 401 - 402 (Fla. 2014).

6

536 U.S. 584 (2002).

4

Supreme Court affirmed her conviction and sentence on May 15, 2014 (Brown v. State, 143

So.3d 392), and this Court denied certiorari on December 1, 2014 (Brown v. Florida, 574 U.S.

1034).

B.

The Present Postconviction Proceeding

Following earlier postconviction proceedings not currently relevant, Ms. Brown

filed the present Rule 3.851 motion – her Third Amended Motion to Vacate

Judgments of Conviction and Sentence – on May 1, 2017. (PCR. 1597 - 1862). Among

other claims, she argued that her death sentence violated the federal Sixth

Amendment by force of Hurst v. Florida.7 On April 5, 2019 the circuit court issued a

final order denying all claims. (PCR. 5204 - 5313.)

Ms. Brown appealed the circuit court’s ruling to the Florida Supreme Court

and simultaneously filed in that court a petition for writ of habeas corpus8. The

Florida Supreme Court issued an opinion denying relief on August 27, 2020 (Brown

v. State, 304 So.3d 243) and denied rehearing on November 12, 2020 (Brown v. State,

2020 WL 6609420).

7

577 U.S. 92 (2016).

8

The writ proceeding is not currently relevant.

5

HOW THE FEDERAL QUESTIONS PRESENTED WERE RAISED AND

PASSED ON BY THE COURTS BELOW

A.

Hurst’s wake in Florida: From Hurst to Poole

On January 12, 2016, in Hurst v. Florida, 577 U.S. 92, this Court invalidated

Florida’s capital-sentencing procedure which had been in effect (with minor,

presently irrelevant changes) since December 8, 1972.

On remand, the Florida

Supreme Court ordered that Timothy Hurst be given a new sentencing trial. Hurst

v. State, 202 So.3d 40 (Fla. 2016).9 It took the occasion for a fresh look at the State’s

statutory death-determining scheme in the light of Florida’s own constitution and

historic practices, and it undertook to correct two deficiencies that this Court had not

found it necessary to reach.

First, informed by Hurst v. Florida that “the Sixth Amendment right to a trial

by jury mandates that under Florida’s capital sentencing scheme, the jury . . . must

be the finder of every fact, and thus every element, necessary for the imposition of

the death penalty,”10 the court considered what exactly those facts are:

“These necessary facts include, of course, each aggravating factor

that the jury finds to have been proven beyond a reasonable doubt.

However, the imposition of a death sentence in Florida has in the past

required, and continues to require, additional factfinding that now must

be conducted by the jury. . . . [U]nder Florida law, ‘The death penalty

may be imposed only where sufficient aggravating circumstances exist

that outweigh mitigating circumstances.’ . . . Thus, before a sentence of

death may be considered by the trial court in Florida, the jury must find

the existence of the aggravating factors proven beyond a reasonable

9

Hurst v. State was decided by the Florida Supreme Court on October 14, 2016.

10

202 So.3d at 53.

6

doubt, that the aggravating factors are sufficient to impose death, and

that the aggravating factors outweigh the mitigating circumstances.” 11

Second, because “Florida has a longstanding history requiring unanimous jury

verdicts as to the elements of a crime,”12 the court concluded that “in addition to

unanimously finding the existence of any aggravating factor, the jury must also

unanimously find that the aggravating factors are sufficient for the imposition of

death and unanimously find that the aggravating factors outweigh the mitigation

before a sentence of death may be considered by the judge.”13

“Accordingly, we reiterate our holding that before the trial judge

may consider imposing a sentence of death, the jury in a capital case

must unanimously and expressly find all the aggravating factors that

were proven beyond a reasonable doubt, unanimously find that the

aggravating factors are sufficient to impose death, unanimously find

that the aggravating factors outweigh the mitigating circumstances,

and unanimously recommend a sentence of death.”14

“In requiring jury unanimity in these findings and in its final

recommendation if death is to be imposed, we are cognizant of

significant benefits that will further the administration of justice. . . .

‘[B]oth the defendant and society can place special confidence in a

unanimous verdict.’15

“We also note that the requirement of unanimity in capital jury

findings will help to ensure the heightened level of protection necessary

for a defendant who stands to lose his life as a penalty.”16

11

Id. (Florida Supreme Court’s emphasis).

12

Id. at 57. The history is detailed in id. at 55 - 57.

13

Id. at 54 (Florida Supreme Court’s emphasis).

15 Id. at 58.

16

Id. at 59.

7

The Florida Legislature subsequently incorporated these Hurst v. State

requirements into the State’s capital-sentencing statutes.

As amended effective

March 13, 2017, Fla. Stat. § 921.141 provides that a capital sentence may be imposed

only after a unanimous jury has found at least one aggravating circumstance and has

unanimously recommended a death sentence based upon findings that there exist

sufficient aggravating circumstances to warrant death and to outweigh any

mitigating circumstances found.

The Florida Supreme Court then addressed the question of the retroactive

application of the new federal and state constitutional rules to the State’s

approximately 380 condemned inmates.

Hurst v. Florida had followed Ring v.

Arizona17 (decided on June 24, 2002) in subjecting the capital-sentencing process to

the Sixth Amendment requirement of Apprendi v. New Jersey18

that all facts

necessary for criminal sentencing enhancement must be found by a jury. Applying

state retroactivity doctrines, the Florida Supreme Court held in Mosley v. State19 that

inmates whose death sentences were not yet final on June 24, 2002 were entitled to

resentencing under Hurst v. Florida and Hurst v. State.

It held in Asay v. State20

that inmates whose death sentences became final before June 24, 2002 were not

entitled to resentencing.

17

536 U.S. 584 (2002).

18

530 U.S. 466 (2000).

19

209 So.3d 1248 (Fla. 2016).

20

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

8

On January 23, 2020, a substantially reconstituted Florida Supreme Court

overruled Hurst v. State in State v. Poole, 297 So.3d 487.21 It held that a death

sentence could be imposed whenever a capital jury found any one or more statutorily

enumerated aggravating circumstances, either at the guilt-trial stage or at the

penalty-trial stage.

“Under the principles established in Apprendi, Ring, and Hurst v.

Florida, only one of the findings we identified in Hurst v. State – the

finding of the existence of an aggravating circumstance – qualifies as an

element, including for purposes of our state constitution. There is no

basis in state or federal law for treating as elements the additional

unanimous jury findings and recommendation that we mandated in

Hurst v. State.”22

Id. at 505. At the penalty-trial stage, the jury is to return an advisory verdict as to

sentence, but the ultimate life-or-death decision is left to the trial judge.23 This means

21 “[T]his Court erred in Hurst v. State and . . . we have concluded that we must partially recede from

our decision in that case.” 297 So.3d at 503. “This Court clearly erred in Hurst v. State by requiring

that the jury make any finding beyond the section 921.141(3)(a) eligibility finding of one or more

statutory aggravating circumstances.” 297 So.3d at 501. “The Hurst v. State requirement of a

unanimous jury recommendation similarly finds no support in Apprendi, Ring, or Hurst v. Florida.”

297 So.3d at 504. “Finally, we further erred in Hurst v. State when we held that the Eighth

Amendment requires a unanimous jury recommendation of death.” Id.

“Last, lest there be any doubt, we hold that our state constitution’s prohibition on cruel and unusual

punishment, article I, section 17, does not require a unanimous jury recommendation – or any jury

recommendation – before a death sentence can be imposed. The text of our constitution requires us to

construe the state cruel and unusual punishment provision in conformity with decisions of the

Supreme Court interpreting the Eighth Amendment. Binding Supreme Court precedent in Spaziano

holds that the Eighth Amendment does not require a jury’s favorable recommendation before a death

penalty can be imposed. See Spaziano, 468 U.S. at 464 - 465. Therefore, the same is true of article I,

section 17.” 297 So.3d at 505.

22

“Florida’s capital sentencing procedures begin with an evidentiary hearing at which the judge and

jury hear evidence relevant to the nature of the crime and the character of the defendant, including

statutory aggravating and mitigating circumstances. § 921.141(1), Fla. Stat. (2011). Next the jury

deliberates and renders an “advisory sentence” to the court. § 921.141(2), Fla. Stat. Finally,

“[n]otwithstanding the recommendation of a majority of the jury, the court, after weighing the

aggravating and mitigating circumstances,” must enter a sentence of life imprisonment or death.

§921.141(3), Fla. Stat. If the court imposes a sentence of death, it is required to issue written findings

“upon which the sentence of death is based as to the facts: (a) [t]hat sufficient aggravating

23

9

that in the case of any condemned inmate seeking Hurst-based relief from a death

sentence imposed before Poole, such relief becomes automatically barred if a jury at

the guilt stage had made any factual finding which coincided with one of the statutory

aggravators:

“The jury in Poole’s case unanimously found that, during the course of

the first-degree murder of Noah Scott, Poole committed the crimes of

attempted first-degree murder of White, sexual battery of White, armed

burglary, and armed robbery. Under this Court’s longstanding

precedent interpreting Ring v. Arizona and under a correct

understanding of Hurst v. Florida, this satisfied the requirement that a

jury unanimously find a statutory aggravating circumstance beyond a

reasonable doubt. . . . In light of our decision to recede from Hurst v.

State except to the extent it requires a jury unanimously to find the

existence of a statutory aggravating circumstance, we reverse the

portion of the trial court’s order vacating Poole’s death sentence.”

Poole v. State, 297 So.3d at 508.

B.

Poole is applied to Ms. Brown

Petitioner Tina Brown is under sentence of death for a murder committed in

2010. Her sentence was imposed in 2012 and falls into the Mosley cohort. The case

now before this Court arises from a third amended motion to vacate that sentence

under Florida’s postconviction Criminal Procedure Rule 3.851. The motion was filed

in the state circuit court in May of 2017 and denied there in April of 2019. It invoked

Hurst v. Florida, Hurst v. State, and Mosley in seeking a new sentencing hearing to

correct the constitutional deficiencies of Ms. Brown’s 2012 penalty trial, which

(everyone must agree) was conducted under the Florida’s pre-Hurst death-sentencing

circumstances exist as enumerated in subsection (5); and (b) [t]hat there are insufficient mitigating

circumstances to outweigh the aggravating circumstances.” 297 So.3d at 495 - 496 (footnote omitted).

10

procedure. The postconviction court of first instance denied relief on the theory that

the Hurst error was harmless in light of the jury’s 12-0 recommendation of death.24

Ms. Brown appealed and filed her brief in the Florida Supreme Court in 2019 relying

on the Sixth and Fourteenth Amendments as explicated in Hurst v. Florida and

Caldwell v. Mississippi, 472 U.S. 320 328 - 330 (1985), to challenge the notion that a

12-0 rec renders Hurst error harmless.25

With the stage set for an adjudication of the viability of that notion,26 the

Florida Supreme Court switched the playbill. Its August 27, 2020 decision in Ms.

State v. Brown, Circuit Court in and for Escambia County, Florida, Case No.2010-CF-1608A, Order

Denying Defendant’s Third Amended Motion to Vacate Judgments of Conviction and Sentence, April

5, 2019, pages 107 - 110. The court wrote that: “Additionally, the facts in this case – the victim was

repeatedly tased, bludgeoned with a crowbar, and set on fire, and yet still lived long enough to tell

persons who committed the crime – are so egregious that it supports the finding that any Hurst error

in this case was harmless.” Id. at 109 - 110.

24

25

Initial Brief of Appellant, Brown v. State, Case No. SC19-704, August 21, 2019, at pages 118 - 125.

As this Court well knows, the Florida Supreme Court has sometimes found that a 12-0 jury rec

sufficed to require the denial of retroactive Hurst relief. But that has not been the invariable rule (see,

e.g., Philmore v. State, 234 So.3d 567 (2018) (treating the 12-0 rec as merely one of three factors to be

considered in harmless-error analysis), and the opinion below does not rely in any part on the 12-0

theory, perhaps because that theory has been severely criticized by Justices of this Court. See, e.g.,

Middleton v. Florida, 138 S.Ct. 829 (2018) (Justice Sotomayor, joined by Justice Ginsburg and with

whom Justice Breyer agreed, dissenting from the denial of certiorari); Reynolds v. Florida, 139 S.Ct.

27, 29 (2018) (statement of Justice Breyer), 32 - 36 (Justice Sotomayor, dissenting from the denial of

certiorari); Anderson v. Florida, 140 S.Ct. 291 (2019) (Justice Sotomayor, dissenting from the denial

of certiorari). Similarly, in Boyd v. State, 291 So.3d 900, 901 (2020), and Lott v. State, 303 So.3d 165

(Fla. 2020), the Florida Supreme Court relied exclusively upon Poole’s recession from Hurst to deny

relief in 12-0 cases without reliance on the jury’s unanimous death rec (see Lott v. State, 695 So.2d

1239, 1241 (Fla. 1997); Boyd v. State, 910 So.2d 167, 176 (Fla. 2005)). This stands in sharp contrast to

the Florida Supreme Court’s continuing reliance on the non-retroactivity rule of Asay to reject Hurstbased claims in post-Poole cases where it might have relied on Poole. See, e.g., Wright v. State, No.

SC19-2123, January 7, 2021; Randolph v. State, No. SC20-287, February 4, 2021. Consequently, it is

now unclear both whether the pre-Poole 12-0 cases do or do not establish a categorical basis for finding

Hurst error harmless and whether or not the rule of those cases might continue to be applied in postPoole collateral proceedings. But these questions should have no bearing on the merit of the present

cert. petition in any event. This Court reviews lower court decisions on the basis of the rationale which

the lower court offers as the ground of its decision; it does not consider whether there are some lurking

alternative grounds on which the lower court might have reached the same decision but did not. This

is why it frequently reverses a lower-court decision and remands with an explicit statement that the

lower court is free to consider other grounds that might support its adhering to its previous result.

26

11

Brown’s case forbore any retroactivity analysis and rejected her Hurst-based claims

solely on authority of the supervening decision in Poole. See Brown v. State, 304 So.3d

243. Applying Poole’s new rule that any jury guilt-stage finding of facts that were

coincidental with a statutory aggravator precludes Hurst-based relief, it ruled as

follows:

“After the circuit court denied relief, we ‘recede[d] from Hurst v. State

except to the extent it requires a jury unanimously to find the existence

of a statutory aggravating circumstance beyond a reasonable doubt.’

State v. Poole . . . . Although the required jury finding does not exist in

Brown’s case, we agree with the circuit court that the error is harmless

beyond a reasonable doubt.

“At trial, the State argued that Brown was guilty of first-degree

murder under both premeditated and felony murder theories and

presented uncontroverted evidence that the capital felony was

committed while Brown was engaged, or was an accomplice, in the

commission of a kidnapping. Any jury that found, based on the State’s

presentation, that Brown was guilty of first-degree murder could not

have logically concluded that Brown was not also guilty of kidnapping,

whether as the primary aggressor or an accomplice. Accordingly, we

hold that, under the circumstances of this case, there is no reasonable

doubt that a ‘rational jury,’ properly instructed, would have found

beyond a reasonable doubt the existence of the statutory aggravating

circumstance that the capital murder was committed while Brown was

engaged in the commission of a kidnapping. . . . Because the existence

of a single statutory aggravating circumstance would render Brown

eligible for imposition of the death penalty, see Poole, . . . it is

unnecessary to address any of the other statutory aggravators found by

the trial court to conclude that the sentencing error in Brown’s case is

harmless. Accordingly, we affirm the circuit court’s denial.”

304 So.3d at 277 - 278.

E.g., Bearden v. Georgia, 461 U.S. 660 (1983); Roe v. Flores-Ortega, 528 U.S. 470, 478 - 481 (2000);

Padilla v. Kentucky, 559 U.S. 356 (2010); Bosse v. Oklahoma, 137 S.Ct. 1 (2015) (per curiam); Byrd v.

United States, 138 S.Ct. 1518 (2018); Maslenjak v. United States, 137 S.Ct. 1918 (2017); Tharpe v.

Sellers, 138 S.Ct. 545 (2018) (per curiam).

12

Ms. Brown’s motion for rehearing then raised all of the federal constitutional

objections to this ruling which are presented in the current petition for certiorari,

fleshing them out in essentially the same terms as the following REASONS section.27

REASONS FOR GRANTING THE WRIT

A.

Certiorari should be granted to determine whether the Sixth

and Fourteenth Amendments can tolerate Florida’s post-Poole

practice of upholding a death sentence unsupported by any

responsible jury finding of the facts necessary to make a

defendant’s crime death-eligible

Hurst v. Florida, 577 U.S. 92 (2016), invalidated Florida’s longstanding

capital-sentencing procedure because that procedure did “not require the jury to

make the critical findings necessary to impose the death penalty.” Id. at 622. As we

have noted above, the 2016 Florida Supreme Court in Hurst v. State correctly read

Hurst v. Florida as holding that “the Sixth Amendment right to a trial by jury

mandates that under Florida’s capital sentencing scheme, the jury . . . must be the

finder of every fact, and thus every element, necessary for the imposition of the death

penalty.” 202 So.3d at 53. In receding from Hurst v. State, the 2020 Florida Supreme

Court in Poole held retroactively that a death sentence could be upheld whenever a

capital jury had found any one or more statutorily enumerated aggravating

circumstances, either at the guilt-trial stage or at the penalty-trial stage. And in Ms.

Brown’s case that holding was extended to encompass an aggravating circumstance

never actually found by a jury at any stage but supplied constructively by appellate

exegesis of what “a ‘rational jury,’ properly instructed, would have found.”

27

Motion for Rehearing, Brown v. State, Case No. SC19-704, September 11, 2020, at pages 15 - 25.

13

The only way to square this holding with Hurst v. Florida is to assume that

Almendarez-Torres v. United States, 523 U.S. 224 (1998), survives Hurst and qualifies

Hurst’s Sixth Amendment command.

For two reasons, it does not; and for one

additional reason the application of Almendarez-Torres to Ms. Brown’s case

constitutes a peculiarly egregious Sixth Amendment violation.

(1)

We begin with this third reason. Exactly like Timothy Hurst, Tina

Brown now stands slated for execution on the sole ground of a death-eligibility

decision based on a factual finding made only by judges, not jurors. The jury in Ms.

Brown’s case never convicted her of any felony other than the first-degree murder of

Audreanna Zimmerman. Although indicted for kidnapping, Ms. Brown was never

tried on that charge. The suppositious felony conviction through which the Florida

Supreme Court brought Ms. Brown within Poole’s ambit is a creature of its own

making, inferred factually from appellate what-a-jury-would-have-found reasoning.

And that reasoning itself is wrong. If the prosecution’s first-degree murder

charge had been submitted to the guilt-stage jury solely on a kidnap-murder theory,

then it might be true that a guilty verdict by a rational jury would support an

inference that the jury found a kidnapping beyond a reasonable doubt. But as the

Florida Supreme Court itself concedes, “the State argued that Brown was guilty of

first-degree murder under both premeditated and felony murder theories”, 28 and the

Brown v. State, 304 So.3d at 278. The indictment cast the first-degree charge in the alternative.

(See T. 39.) The prosecution argued both theories independently in its closing to the jury. (T. 680 683.) “So what that means for you as the jurors is that either one or all of you may be convinced beyond

a reasonable doubt that this was a premeditated murder or one or all of you may be convinced beyond

a reasonable doubt that it was a felony murder. It doesn’t matter. As long as all of you agree that it

was first degree murder – murder, either felony or premeditated, you can convict Tina Brown. There’s

28

14

guilt-stage instructions told the jurors that they could return a first-degree murder

verdict based on either theory alone.29 This is quite simply the classic case in which

every precedent of this Court forbids an appellate court to attribute to a jury’s verdict

one of the two alternative findings upon which the jurors had been told that they

could rest a criminal conviction.30

In any event, the Florida Supreme Court’s post hoc fact-construction is plainly

at odds with the Sixth Amendment restrictions placed upon judicial fact-finding by

Mathis v. United States, 136 S.Ct. 2243 (2016), and Shepard v. United States, 544

U.S. 13 (2005) (plurality opinion).

“This Court has held that only a jury, and not a judge, may find facts

that increase a maximum penalty, except for the simple fact of a prior

conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). . .

. That means a judge cannot go beyond identifying the crime of

conviction to explore the manner in which the defendant committed that

offense. . . . He is prohibited from conducting such an inquiry himself;

and so too he is barred from making a disputed determination about

‘what the defendant and state judge must have understood as the factual

no place on the verdict form that makes you explain your answer or take a vote saying who voted for

premeditated or who voted for felony. It doesn’t matter as long as you all agree it’s first degree murder.

(T. 685 - 686.)

29

See T. 719 - 721.

“The verdict against the appellant was a general one. It did not specify the ground upon which it

rested. As there were three purposes set forth in the statute, and the jury was instructed that their

verdict might be given with respect to any one of them, independently considered, it is impossible to

say under which clause of the statute the conviction was obtained. If any one of these clauses, which

the state court has held to be separable, was invalid, it cannot be determined upon this record that the

appellant was not convicted under that clause.” Stromberg v. California, 283 U.S. 359, 367 - 368

(1931). See also, e.g., Williams v. North Carolina, 317 U.S. 287, 291 - 292 (1942) (“[W]e cannot

determine on this record that petitioners were not convicted on the other theory on which the case was

tried and submitted . . . . That is to say, the verdict of the jury for all we know may have been rendered

on that ground alone, since it did not specify the basis on which it rested. . . . To say that a general

verdict of guilty should be upheld though we cannot know that it did not rest on the invalid

constitutional ground on which the case was submitted to the jury, would be to countenance a

procedure which would cause a serious impairment of constitutional rights.”); Yates v. United States,

354 U.S. 298, 312 (1957); Mills v. Maryland, 486 U.S. 367, 376 (1988); Black v. United States, 561 U.S.

465, 470 (2010).

30

15

basis of the prior plea’ or ‘what the jury in a prior trial must have

accepted as the theory of the crime.’ . . . He can do no more, consistent

with the Sixth Amendment, than determine what crime, with what

elements, the defendant was convicted of.”

(Mathis, 136 S.Ct. at 2252.)31

To uphold a death sentence on the basis of a judicially imputed jury finding

also flies in the teeth of Caldwell v. Mississippi. The record of these proceedings

makes unmistakably clear that Ms. Brown’s jury never made a decisive

determination of the factual predicate upon which the Florida Supreme Court has

now retrospectively rested her death-eligibility. Prior to jury selection, the judge

instructed the potential jurors that the consequence of a first-degree murder verdict

would be simply that “the jury will then reconvene for the purpose of rendering an

advisory recommendation as to which sentence death or life imprisonment should be

31

See also Shepard, 544 U.S. at 25 - 26:

“[T]he sentencing judge considering the ACCA enhancement would (on the

Government’s view) make a disputed finding of fact about what the defendant and

state judge must have understood as the factual basis of the prior plea, and the dispute

raises the concern underlying Jones v. United States[, 526 U.S. 227 (1999)], and

Apprendi; the Sixth and Fourteenth Amendments guarantee a jury standing between

a defendant and the power of the State, and they guarantee a jury’s finding of any

disputed fact essential to increase the ceiling of a potential sentence. While the

disputed fact here can be described as a fact about a prior conviction, it is too far

removed from the conclusive significance of a prior judicial record, and too much like

the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly

authorizes a judge to resolve the dispute. The rule of reading statutes to avoid serious

risks of unconstitutionality . . . therefore counsels us to limit the scope of judicial

factfinding on the disputed generic character of a prior plea, just as Taylor constrained

judicial findings about the generic implication of a jury's verdict.”

And see id. at 28 (Justice Thomas, concurring):

“In my view, broadening the evidence judges may consider when finding facts

under Taylor [v. United States, 495 U.S. 575 (1990)] – by permitting sentencing courts

to look beyond charging papers, jury instructions, and plea agreements to an

assortment of other documents such as complaint applications and police reports –

would not give rise to constitutional doubt, as the plurality believes. . . . It would give

rise to constitutional error . . . .”

16

imposed.”32 The jurors were not told that the Florida Supreme Court would later

treat their guilt-stage verdict as a self-sufficient basis for consigning Tina Brown to

death. The judge’s guilt-stage instructions told the jury nothing more about the

potential sentencing consequences of a guilty verdict. At the penalty stage, the jury

was instructed that:

“The punishment for this crime is either death or life imprisonment

without the possibility of parole. The final decision as to which

punishment shall be imposed rests with the judge of this court, which in

this case is me. However, the law requires that you, the jury, render to

me an advisory sentence as to which punishment should be imposed

upon the defendant.”33

Sheltered by these instructions, the prosecutor was allowed to tell the jurors:

“Ultimately . . . , you’re going to render an advisory recommendation to

the Judge whether Tina Brown should be sentenced to death or life

imprisonment.

“This Honorable Judge will ultimately decide which punishment

to impose, but he must give your recommendation great weight.”34

So “[i]f you vote and recommend the death penalty for Tina Brown, her death would

not be on your hands.” (T.1070.)35

T. 77 - 78. “At that hearing, . . . [b]oth the State and the defendant will have an opportunity to

present arguments for and against the death penalty.” Id.

32

T. 751 (opening penalty-stage instructions, Penalty Stage Instruction 7.11.) See also T.1111 (final

penalty-stage instructions, Penalty Stage Instruction 7.11) (“As you have been told, the final decision

as to which punishment shall be imposed is the responsibility of the judge. In this case, as the trial

judge, that responsibility will fall on me. However, the law requires you to render an advisory sentence

as to which punishment should be imposed – life imprisonment without the possibility of parole or the

death penalty. ¶ Although the recommendation of the jury as to the penalty is advisory in nature and

is not binding, the jury recommendation must be given great weight and deference by the Court in

determining which sentence to impose.”)

33

34 T. 112.

Defense counsel similarly emphasized that the jury’s sentencing role was merely advisory. (T.215;

217; 224; 1101; 1103; 1104.) During penalty-stage closing, he argued that “what you’re about to do is

35

17

All in all, the Florida Supreme Court’s extension of Almendarez-Torres into

conflict with Mathis and Shepard, together with its disregard for Caldwell, leave Ms.

Brown’s death sentence with no foundation that could withstand this Court’s Sixth

and Fourteenth Amendment review.

(2)

But Ms. Brown’s case also presents an apt vehicle for the Court to

reconsider the Sixth Amendment viability of Almendarez-Torres itself if the Court

chooses to do so. There are strong reasons why it should.

Almendarez-Torres was a case about the construction of a federal statute and

legislative intent. It did discuss the Constitution in connection with a “constitutional

doubt” argument, but that discussion was primarily devoted to the Indictment Clause

of the Fifth Amendment.

The opinion’s single paragraph bearing on Sixth

Amendment caselaw comes in by way of analogy (see 523 U.S. at 547), and the analogy

is to three Sixth Amendment cases that have since been overruled: Walton v. Arizona,

497 U.S. 639 (1990); Hildwin v. Florida, 490 U.S. 638 (1989) (per curiam); and

Spaziano v. Florida, 468 U.S. 447 (1984). None of these cases survives Ring v.

Arizona, 536 U.S. 584 (2002), and Hurst v. Florida. Well before Poole, a majority of

this Court’s Justices had announced that Almendarez-Torres was no longer good

Sixth Amendment law, if it ever had been. See Shepard v. United States, 544 U.S. 13,

27 - 28 (2005) (Thomas, J., concurring in part and concurring in the judgment)

(“Almendarez-Torres . . . has been eroded by this Court’s subsequent Sixth

render … an advisory sentence or a recommendation. And the reason it’s called that is that you don’t

actually impose the final sentence on Tina Brown. Only the Judge can do that.” (T.1107.)

18

Amendment jurisprudence, and a majority of the Court now recognizes

that Almendarez-Torres was wrongly decided. See 523 U.S., at 248 - 249 . . . (SCALIA,

J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi,

supra, at 520 - 521. . . (THOMAS, J., concurring).”).

(3)

Almendarez-Torres

had

to

do

with

prior

convictions,

not

contemporaneous convictions. Almendarez-Torres is a case about recidivism: it aims

to spare the government from the need to retry and re-prove old criminal charges that

have been reduced to judgment. Its application to contemporaneous convictions in

Poole is an aberration. When all of the facts bearing upon a capital defendant’s

eligibility for death are litigated in a single case with no prior case to revisit, it is not

too much for the Sixth Amendment to demand that the jury in this single case make

a responsible determination of the existence vel non of those facts.

The operative word in that proposition is “responsible.” See Caldwell. Ms.

Brown’s jury and other juries in Florida capital cases tried before Hurst v. Florida

had no inkling that their guilt-stage verdict would suffice without more to make the

defendant death-eligible. See pages 15 - 17 supra. This Court has established that

the key to Caldwell’s applicability is whether instructions that diminish the jury’s

responsibility for the fatal consequences of its verdict are accurate or inaccurate

under local law.36 Here, Poole has made them retroactively inaccurate. The guilt-

See, e.g., Romano v. Oklahoma, 512 U.S. 1, 9 (1994): “[W]e have since read Caldwell as ‘relevant

only to certain types of comment – those that mislead the jury as to its role in the sentencing process

in a way that allows the jury to feel less responsible than it should for the sentencing decision.’ . . . .

Thus, ‘[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the

jury improperly described the role assigned to the jury by local law.’”

36

19

stage verdict of Ms. Brown’s jury (and other juries in her temporal cohort) which the

jury was led to believe would do no more than initiate a second, sentencing stage of

the trial have now – a decade later – been converted by Poole into an automatic,

stand-alone basis for death-eligibility. This has got to be all wrong under Hurst v.

Florida and Caldwell.

B.

Certiorari should be granted to consider whether Florida’s postPoole scheme for dealing with cases in which pre-Hurst trials

produced a death sentence violates the Eighth and Fourteenth

Amendments

By the terms of the Florida Supreme Court’s decision below, Ms. Brown will go

to her death without ever having had a responsible jury determination that death is

a fitting punishment for her. The same is true of all other unresolved37 Mosley-cohort

cases in which any factual element submitted to a jury as a possible theory of firstdegree murder mirrors a statutory aggravating circumstance – which, as a practical

matter, means virtually all first-degree felony-murder cases.38

This raises the

In cases in which a final order vacating a death sentence was entered by a trial court pursuant to

the Hurst precedents and was not appealed by the State within the statutorily prescribed appeal

deadline, the death sentence cannot be reinstated under Poole (State v. Jackson, 2020 WL 6948842

(Fla. 2020); and in cases in which a final judgment vacating a death sentence was entered by the

Florida Supreme Court itself pursuant to the Hurst precedents and the State failed to seek timely

rehearing, the death sentence cannot be reinstated under Poole (State v. Okafor, 2020 WL 6948840

(Fla. 2020)). The reason why Ms. Brown and similarly situated condemned inmates lose out in the

Hurst-relief lottery is that post-Hurst proceedings in their cases were delayed by various litigation

fortuities (local docket congestion; unavailability of defense counsel; COVID-19 problems) so that they

failed to get a formal order vacating their pre-Hurst death sentences as early as the 100-odd

condemned inmates covered by Jackson and Okafor. Their plight makes a mockery of the Eighth

Amendment principle “insist[ing] upon general rules that ensure consistency in determining who

receives a death sentence” (Kennedy v. Louisiana, 554 U.S. 407, 436 (2008)) – the rule that “if a State

wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law

in a manner that avoids the arbitrary and capricious infliction of the death penalty” (Godfrey v.

Georgia, 446 U.S. 420, 428 (1980)).

37

38 Fla. Stat. Ann. § 782.04 provides that the unlawful killing of a human being is first-degree murder:

20

fundamental question whether the Cruel and Unusual Punishments Clause of the

federal Eighth Amendment or the Due Process Clause of the Fourteenth Amendment

requires meaningful jury input into life-or-death sentencing judgments. The Poole

Court explicitly rejected an Eighth Amendment objection to its recession from Hurst

v. State on the ground that the Florida Constitution’s conformity clause obliged it to

1. When perpetrated from a premeditated design to effect the death of the person killed or any human

being;

2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

a. Trafficking offense prohibited by s. 893.135(1),

b. Arson,

c. Sexual battery,

d. Robbery,

e. Burglary,

f. Kidnapping,

g. Escape,

h. Aggravated child abuse,

i. Aggravated abuse of an elderly person or disabled adult,

j. Aircraft piracy,

k. Unlawful throwing, placing, or discharging of a destructive device or bomb,

l. Carjacking,

m. Home-invasion robbery,

n. Aggravated stalking,

o. Murder of another human being,

p. Resisting an officer with violence to his or her person,

q. Aggravated fleeing or eluding with serious bodily injury or death,

r. Felony that is an act of terrorism or is in furtherance of an act of terrorism, including a felony

under s. 775.30, s. 775.32, s. 775.33, s. 775.34, or s. 775.35, or

s. Human trafficking; or

which resulted in specified drug-distribution offenses by a person 18 or older.

Fla. Stat. Ann. § 921.141(6) lists 16 aggravating circumstances, any one of which renders a first-degree

murder convict death-eligible. These include:

“(b) The defendant was previously convicted of another capital felony or of a felony involving the use

or threat of violence to the person.

........

“(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the

commission of, or an attempt to commit, or flight after committing or attempting to commit, any:

robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting

in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping;

aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.”

........

“(f) The capital felony was committed for pecuniary gain.”

21

follow this Court’s Cruel-and-Unusual-Punishment precedents, and that those

precedents – specifically, Spaziano v. Florida, 468 U.S. 447 (1984) – foreclosed any

Eighth Amendment right to jury trial in capital sentencing.39 The question whether

this reading of the Eighth Amendment remains tenable in the light of today’s

nationwide capital-sentencing practice and of Spaziano’s obsolescence40 is thus

squarely presented by the Brown court’s reliance on Poole.

This Court could answer that question in the negative on any of three broader

or narrower grounds based upon the “standards of decency [that] have [now] evolved

. . . as expressed in legislative enactments and state practice” (Roper v. Simmons, 543

See note 22 supra. In post-Poole opinions relying on Poole to reject Sixth and Eighth Amendment

claims, the Florida Supreme Court has also taken comfort from McKinney v. Arizona, 140 S.Ct. 702,

707 (2020), which it reads as holding that “under Hurst v. Florida, ‘a jury must find the aggravating

circumstance that makes the defendant death eligible,’ but that a jury ‘is not constitutionally required

to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision

within the relevant sentencing range.’” Reed v. State, 297 So.3d 1291, 1292 (Fla. 2020). See also Lott

v. State, 303 So.3d 165, 166 (Fla. 2020); Franqui v. State, 301 So.3d 152, 155-156 (Fla. 2020). But

McKinney made no Eighth Amendment claim remotely resembling Ms. Brown’s. The only Eighth

Amendment arguments which McKinney advanced in this Court had to do with the Arizona Supreme

Court’s reweighing procedure. See Petition for a Writ of Certiorari in No. 18-1109 at pages 4 and 5:

“The Arizona Supreme Court’s decision to apply the law as it stood in 1996 when weighing the

mitigating and aggravating evidence in McKinney’s death penalty case in 2018 violated McKinney’s

Sixth, Eighth, and Fourteenth Amendment rights . . .” (page 4) and “[T]he Arizona Supreme Court

violated this Court’s decision in Eddings, and McKinney’s Sixth, Eighth, and Fourteenth Amendment

rights, by declining to remand McKinney’s case for resentencing in the trial court” (page 5). The

Court’s rejection of these claims took McKinney at his word: “The issue in this case is

narrow. McKinney contends that after the Ninth Circuit identified an Eddings error, the Arizona

Supreme Court could not itself reweigh the aggravating and mitigating circumstances. Rather,

according to McKinney, a jury must resentence him.” 140 S.Ct. at 706. The Florida Supreme Court’s

persistent reading of this Court’s decisions as categorically foreclosing any claim that the Eighth

Amendment requires jury participation in the selection stage of a State’s death-sentencing process

makes a grant of certiorari on Ms. Brown’s Eighth Amendment contentions all the more appropriate.

39

40

See Hurst v. Florida, 577 U.S. at 101 - 102.

22

U.S. 551, 563 (2005)), upon this Court’s own judgments41 regarding the crucial role of

the jury in criminal cases, and upon “the consequences that follow from saying what

we know to be true” (Ramos v. Louisiana, 140 S.Ct. 1390, 1395 (2020)).

(1)

The Eighth Amendment requires that the ultimate

decision to impose a sentence of death rather than life

must be made by a unanimous jury.

Capital-sentencing procedures which are inconsistent with the “evolving

standards of decency that mark the progress of a maturing society” (Atkins v.

Virginia, 536 U.S. 304, 312 (2002)), violate the Eighth Amendment (see Woodson v.

North Carolina, 428 U.S. 280 (1976), Roberts v. Louisiana, 428 U.S. 325, 332 - 333

(1976)), as do capital-sentencing procedures which are inconsistent with the

consensus of contemporary practice in the nation (Beck v. Alabama, 447 U.S. 625, 635

(1980)).

Under both of these paired principles, the Eighth Amendment today

requires a unanimous jury determination in favor of a death sentence before a State

may enforce that sentence.

The overwhelming consensus of American jurisdictions which authorize

capital punishment is that a death sentence should not be inflicted without a

unanimous jury decision that death is the appropriate punishment for each

individual defendant in consideration of his or her crime, character, circumstances,

and history.

Only Alabama, Florida, Montana and Nebraska now cling to the

“Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is

for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty”

under particular circumstances. Enmund v. Florida, 458 U.S. 782, 797 (1982).

41

23

contrary position42 – and Florida does so only retroactively as a result of the atavistic

Poole ruling, which is at odds with the Florida Legislature’s own judgment, rendered

in 2017, that a death sentence without unanimous jury approval is intolerable.

The Eighth Amendment stands to guarantee that the death penalty is reliably

inflicted only upon the most morally culpable subset of those persons who commit the

most serious homicides. See, e.g., Roper v. Simmons, 543 U.S. 551, 568, (2005);

Godfrey v. Georgia, 446 U.S. 420, 428 (1980). The essentially non-existent capitalsentencing role that Poole assigns to the jury is inconsistent with “the unique nature

of the death penalty and the heightened reliability demanded by the Eighth

Amendment in the determination whether the death penalty is appropriate in a

particular case.” Sumner v. Shuman, 483 U.S. 66, 72 (1987). Only a unanimous jury

verdict can supply the requisite assurance of reliability.43 The application of Poole to

confirm Ms. Brown’s death sentence deprives her of that assurance.

42

See pages 25 - 26 infra and Exhibits 4 and 5 in the Appendix.

A large body of empirical evidence demonstrates the reasons why unanimous juries better express

the reasoned moral judgment of the community than non-unanimous juries. A unanimity requirement

produces more thoroughgoing and deliberately reasoned decision-making. REID HASTIE et al., INSIDE

THE JURY 115, 164 - 165 (Harvard U. Press 1983); Shari Seidman Diamond et al., Revisiting the

Unanimity Requirement: The Behavior of the Nonunanimous Civil Jury, 100 NW. U. L. REV. 201 (2006);

Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups,

7 PSYCHOL. PUB. POL’Y & L. 622, 669 (2001); Valerie P. Hans, The Power of Twelve: The Impact of Jury

Size and Unanimity on Civil Jury Decision Making, 4 DEL. L. REV. 1, 24 - 25 (2001). It assures that

jurors who enjoy a majority position at the outset of deliberations and demographically will be obliged

to hear the opinions of minority jurors. Valerie P. Hans, Deliberation and Dissent: 12 Angry Men

Versus the Empirical Reality of Juries, 82 CHI.-KENT L. REV. 579, 587 (2007); Kim Taylor-Thompson,

Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1261, 1264 (2000). For example, “majority rule

may make it less likely that women’s voices will ever be heard.” Id. at 1300. And so with racial

minorities. See Thomas Ward Frampton, The Jim Crow Jury, 71 VAND. L. REV. 1593, 1599 (2018). It

lessens the likelihood of erroneous findings. HASTIE, supra, at 62, 81; Dennis J. Devine et al.,

Deliberation Quality: A Preliminary Examination in Criminal Juries, 4 J. EMPIRICAL LEGAL STUD. 273,

300 (2007); Taylor-Thompson, supra, at 1272. And although the ultimate life-or-death decision is less

constrained by fact-finding and legal guidance than is a guilt-phase verdict, it is neither fact-free nor

– in jurisdictions like Florida where statutory law provides lists of aggravating and mitigating

43

24

(2)

Alternatively, even if the Eighth Amendment did not

require jury unanimity in death sentencing, it would at

least require a jury to make the ultimate decision to

impose a death sentence.

At a minimum, the Eighth Amendment requires – as Justices Stevens and

Breyer have explained – that a jury make the ultimate decision to impose a death

sentence,

whether

unanimously

or

non-unanimously.

See,

e.g.,

Harris

v.

Alabama, 513 U.S. 504, 515 - 526 (1995) (Justice Stevens, dissenting); Ring, 536 U.S.

at 613 - 618 (Justice Breyer, concurring). Among the 29 American jurisdictions which

retained the death penalty at the time of the Florida Supreme Court’s decision in Ms.

Brown’s case, only three failed to recognize that such a requirement reflects the vital

role of the jury in ensuring a “reasoned moral response” (Penry v. Johnson, 532 U.S.

782, 797 (2001)) to the balance of aggravation and mitigation: – Montana and

Nebraska by statute and Florida in disregard of statute. This lopsided division of

legislative judgments regarding the necessity for a jury determination that death is

the appropriate sentence for each individual defendant convicted of a capital crime is

among the most extreme disproportions found in cases in which this Court has relied

upon a national legislative consensus to support the conclusion that a State’s

sentencing practice is at odds with evolving standards of decency. 44

circumstances and a weighing formula – rule-free.

Compare Beck v. Alabama, 447 U.S. 625 (1980) (only Alabama employed the practice at issue), and

Coker v. Georgia, 433 U.S. 584 (1977) (only three States employed the practice at issue), with Kennedy

v. Louisiana, 554 U.S. 407 (2008) (six States employed the practice at issue, some under more

restrictive conditions than Louisiana’s); and Enmund v. Florida, 458 U.S. 782 (1982) (eight States

employed the practice at issue); and Hall v. Florida, 572 U.S. 701 (2014) (somewhere between four and

nine States employed the practice at issue; the Court regarded the direction and consistency of

evolving practice significant and also noted that the 19 States that had abolished or suspended capital

punishment altogether were also to be considered among the bellwethers); and Atkins v. Virginia, 536

44

25

The Legislatures of twenty-seven of America’s 29 death-penalty jurisdictions

can’t be wrong in insisting that juries must make an individualized capitalsentencing

decision

after

considering

crime-specific

and

defendant-specific

circumstances in aggravation and mitigation. Some jurisdictions provide formulas

for jurors to use in weighing aggravation against mitigation; others ask the jury –

instead or in addition to employing a balancing formula – to vote yes or no on the

ultimate issue of life or death.45 But all understand that “[b]ecause juries are better

suited than judges to ‘express the conscience of the community on the ultimate

question of life or death,’ the Constitution demands that jurors make, and take

responsibility for, the ultimate decision to impose a death sentence.” Reynolds v.

Florida, 139 S.Ct. 27, 28 - 29 (2018) (Justice Breyer, statement respecting the denial

of certiorari).

(3)

Alternatively, at a minimum the Eighth Amendment

requires that a jury have meaningful input into the

capital-sentencing decision.

Poole cannot be squared with the Eighth Amendment because, even if jury

unanimity in capital sentencing is not a federal constitutional requirement, and even

if a jury need not make the ultimate decision to impose the death penalty, it is

U.S. 304 (2002) (18 States employed the practice at issue; 20 had abandoned it; the Court regarded

the direction and consistency of evolving practice significant); and Roper v. Simmons, 543 U.S. 551

(2005) (18 States employed the practice at issue; 20 death-penalty States had abandoned it; the Court

noted that the 12 States that had abolished capital punishment altogether were also to be considered

among the bellwethers).

Exhibit 4 in the Appendix infra summarizes the relevant procedures of the 29 jurisdictions other

than Florida that authorized capital punishment at the time of the decision below. Exhibit 5 identifies

the sources of the data in Exhibit 4.

45

26

manifestly required under the Eighth Amendment that a jury have some meaningful

input into a capital-sentencing decision. Meaningful jury input in death sentencing

is required to ensure that each individual decision to impose capital punishment

comports with prevailing moral standards. Woodson, 428 U.S. at 302 - 305.

The Eighth Amendment requires that “‘the sentence imposed at the penalty

stage should reflect a reasoned moral response to the defendant’s background,

character, and crime’” (Abdul-Kabir v. Quarterman, 550 U.S. 233, 252 (2007)

(internal citations omitted)), and “‘justice . . . requires . . . that there be taken into

account the circumstances of the offense together with the character and propensities

of the offender’” (Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)).

Whether the nature of the crime and the nature and background of a defendant

render her death-worthy requires a decision made by a jury which feels the weight of

its importance. Caldwell v. Mississippi, 472 U.S. 320, 328 - 30 (1985). Ms. Brown’s

jurors were led to believe that their only task was to decide her guilt or innocence,

and that the final sentencing decision rested solely with the judge. Now, decades

later, the Florida Supreme Court has abruptly converted the jury’s guilt-stage verdict

into a death warrant.46 The Eighth Amendment cannot possibly countenance this

legerdemain.

It is true, of course, that Ms. Brown’s jury did render a unanimous advisory recommendation of

death. But – even putting aside Caldwell problems (see pages 16 - 18 supra) – that recommendation

is not the basis upon which Ms. Brown is now slated to be killed. Her 2012 death sentence following

that recommendation was invalidated by Hurst v. Florida; its resurrection under Poole depends

entirely on the Florida Supreme Court’s attribution of an aggravation finding to the jury’s guilt-stage

verdict. See pages 11 - 12 supra.

46

27

C.

Certiorari should be granted to consider whether Poole’s

application to Ms. Brown constitutes a federal ex post facto and

due process violation

Article I, § 10 of the federal Constitution prohibits state ex post facto laws. See,

e.g., Weaver v. Graham, 450 U.S. 24 (1981); Lindsey v. Washington, 301 U.S. 397

(1937). Federal Due Process erects the same prohibition against state judicial action.

Bouie v. City of Columbia, 378 U.S. 347 (1964); and see Marks v. United States, 430

U.S. 188 (1977).

Bouie notes the thematic connection between the prohibition of ex post facto

liability and the doctrine of vagueness, citing Freund, The Supreme Court and Civil

Liberties, 4 VAND. L. REV. 533, 541 (1951), and Amsterdam, Note, 109 U. PA. L. REV.

67, 73 - 74, n. 34. It is true that one of the traditional concerns of both the ex post

facto clause and the void-for-vagueness precept – the danger of punishing an

individual for acts which s/he had no notice would be criminal – is inapplicable here.

But that is not the only concern of either doctrine. See Miller v. Florida, 482 U.S. 423,

429 - 430 (1987); Peugh v. United States, 569 U.S. 530, 544 (2013). Both doctrines also

stand to protect against malleable legal rules which “inject[ ] into the governmental

wheel so much free play that in the practical course of its operation it is likely to

function erratically – responsive to whim or discrimination . . . .” Amsterdam, supra,

at 90. It is a commonplace of ex post facto history that the prohibition was a response

to punishments exacted in England when one warring faction succeeded another and

proceeded to despoil the losers. See Calder v. Bull, 3 U.S. 386 (1798) (opinion of

Justice Chase). Protection against retroactive punishment resulting from regime

28

change47 was very much in the mind of the Framers when they included two ex post

facto clauses in the federal Constitution. See Cummings v. Missouri, 71 U.S. 277, 322

(1866).

“So much importance did the convention attach to . . . [the precept that “no

state shall pass any ex post facto law], that it is found twice in the constitution, – first

as a restraint upon the power of the general government, and afterwards as a

limitation upon the legislative power of the states.” Kring v. Missouri, 107 U.S. 221,

227 (1883).

In Calder, “Justice Chase explained that the reason the Ex Post

Facto Clauses were included in the Constitution was to assure that federal and state

legislatures were restrained from enacting arbitrary or vindictive legislation.” Miller

v. Florida, 482 U.S. 423, 429 (1987). No lesser restraint is imposed upon state judicial

action by the ex post facto component of federal Due Process. The question whether

Article I, § 10 and the Fourteenth Amendment permit Florida to consign Ms. Brown

to death under Poole’s retroactive recession from Hurst v. State warrants this Court’s

review on certiorari.

In addition to Poole, see Phillips v. State, 299 So.3d 1013 (Fla. 2020), overruling Walls v. State, 213

So.3d 340 (Fla. 2016), which had held Hall v. Florida, 572 U.S. 701 (2014), retroactive; Lawrence v.

State, 308 So.3d 544 (Fla. 2020), overruling Yacob v. State, 136 So.3d 539 (Fla. 2014), Rogers v. State,

285 So.3d 872, 891 (Fla. 2019), and cognate cases which had held that the Florida Supreme Court is

obliged to conduct proportionality review of death sentences to assure uniformity in capital

sentencing; Bush v. State, 295 So.3d 179 (Fla. 2020), overruling Jaramillo v. State, 417 So.2d 257 (Fla.

1982), and cognate cases which had held that “[a] special standard of review of the sufficiency of the

evidence applies where a conviction is wholly based on circumstantial evidence” (id. at 257).

47

29

CONCLUSION

Petitioner, Tina LaSonya Brown, requests that certiorari be granted.

Respectfully submitted,

/s/ Dawn B. Macready

DAWN B. MACREADY

Counsel of Record

STACY R. BIGGART

Capital Collateral Regional Counsel –

Northern Region

1004 DeSoto Park Drive

Tallahassee, Florida 32301

(850) 487-0922

Dawn.Macready@ccrc-north.org

Stacy.Biggart@ccrc-north.org

APRIL 2021

30