Opposition Brief — Tina LaSonya Brown, Petitioner v. Florida

NO. 20-7732

IN THE SUPREME COURT OF THE UNITED STATES

TINA LASONYA BROWN,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

Michael T. Kennett

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

Capital Case

QUESTIONS PRESENTED

ONE: Whether the Sixth Amendment prohibits harmless error analysis

in a case involving an error under Hurst v. Florida.

TWO: Whether the Eighth Amendment requires jury sentencing in

capital cases.

THREE: Whether, because the lower court receded from a decision that

misinterpreted this Court’s decision in Hurst v. Florida, Petitioner's

death sentence violates the Due Process Clause of the Fourteenth

Amendment.

TABLE OF CONTENTS

QUESTIONS PRESENTED 0.000... eee ee eceeeeeeceseeeeneeeeseneseseeeenneeeseesenseneaeesaneteesnaeens 1

TABLE OF CONTENTS 00... occa cece ssssseneeeeeenseneeseenessneceeseescaaceesesseeeesesseeeeeeeeees ra

TABLE OF CITATIONS ...... ee cceccccssceeecscseeesesneeesessansessceesssseesereseneensetesseneeeaeeenenees il

OPINION BELOW 000000. ccceesecceessceeesssceeeesesneeecensacenecsnseeesaneesesaueesesaaeseneesensaaeseensass 1

JURISDICTION 000 eee eceneeeeessceeeeeseaceesssaneesesaeesessaceeesaceeessaeeessaueseceeeesseeererees 1

STATEMENT OF THE CASE AND FACTS |... eeecseeeenneeteeeeeneeceeneseeseeseeeeteneeaes 2

REASONS FOR DENYING THE WRIT oo... ee eeeeeeeeceeeceeeeseceeseneessneecsensaneesesseees 4

I. The Florida Supreme Court’s Rejection of Petitioner's Hurst Claim on

the Basis of Harmlessness Does Not Conflict with any of this Court’s

Precedent or Present an Important or Unsettled Question for Review ........... 4

II. The Eighth Amendment Does Not Require Jury Sentencing.................... 22

III. Petitioner’s Death Sentence Does Not Violate Due Process....................- 24

CONCLUSION 00. occ cceccecccccececccceeeeeeseeceseeenscanaceeeeesenaaneceesesaaeeeecesssanseeeesssneesessansaaeaeees 27

TABLE OF CITATIONS

Cases

Alleyne v. United States, 570 U.S. 99 (2018) ....... cc cceesssssssessesssssssscssssesseeessssnseeeeneees 13

Almendarez-Torres, 523 U.S. 224 (1998) ...........cccccccccccceeceeesecceceeceeeseessenennesaueeeess passim

Apprendi v. New Jersey, 580 U.S. 466 (2000)...........:cccscccecsscessseeessseeesssseeeseeeesseeeeees 12

Barclay v. Florida, 463 U.S. 939 (1988) .....cccccceescessssecesceeceesecceesececcecsacscesceaeeeseeseeneees 22

Bartlett v. Stephenson, 535 U.S. 1301 (2002) 0.0... ccccccccccceneeeeenecesseeesaeeeesensenenenans 5

Beck v. Alabama, 447 U.S. 625 (1980).........ccccccccccsccceeceeeeeecessssessneeecceceeeeeeessseneeeeeesees 18

Bouie v. City of Columbia, 378 U.S. 347 (1964) .............ccccsccseeeseseessesseneseeeeneneeseees 24, 25

Brown v. Florida, 574 U.S. 1084 (2014) 2.0... eecccccceeseeeeeeeseeceeseeecseeceescsaeeeesseeeesseeeesssans 1

Brown v. State, 143 S0.3d 392 (Fla. 2014)... ceeesseescccceeceeessssssseesseeuenenees passim

Brown v. State, 304 So.3d 243 (Fla. 2020)........0 ccc eee cccesseeccesessssscceesssceeecsoeces passim

Calder v. Bull, 3 U.S. 386 (1798) ..........::::::ssssesssneeseccecceccsecseceeeseceeeeeceeancanseueeseccusensseana 26

Caldwell v. Mississippi, 472 U.S. 820 (1985) ..............ccccececseeeeeeeseeccceeaeseseaeeseeeees passim

Clemons v. Mississippi, 494 U.S. 788 (1990)... ee ececcccccccceesesesessecceuscessesceceeseces 10, 11

Davis v. State, 207 S0.3d 142 (Fla. 2016) 0... ccccccccssessssssssssseceeceeceeeeeesesseaeeeeeeeeees 26

Doe #1 v. Lee, No. 3:16-CV-02862, 2021 WL 428967 (M.D. Tenn. Feb. 8, 2021)....... 15

Dugger v. Adams, 489 U.S. 401 (1989) ............ cc cesssesesseeeeeeseeecesenseeseneecneceteasssensenseeees 16

Eddings v. Oklahoma, 455 U.S. 104 (1982) ............ccccccsccccseccecccccessseeceecceeeseeaeceees 10, 11

Enmund v. Florida, 458 U.S. 782 (1982)...........ccccccccccccsesseeceseseceecuseesesseseeeessscssssuseeeees 21

Feldman v. Thaler, 695 F.3d 372 (5th Cir, 2012)............ccccccessseceseceeesecseeeeeneeesseeeeeeees 18

Galindez v. State, 955 So.2d 517 (Fla. 2007)..........cccccseccccssneeceseeecesseeceessneeeesseeesseeeeeeeess 3

Griffin v. United States, 502 U.S. 46 (1991)... ii cceccccccccccccuscevceveeseeveuscusesecassusececanens 20

Harris v. Alabama, 518 U.S. 504 (1995) oo... cceceescessssssnececececceeeessseeeeeesecseueesauaces 23

Hedgpeth v. Pulido, 555 U.S. 57 (2008)............ccccccccsscsssssssscsscncseccscsscsssssssssesseeteeceenenes 20

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

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

Jones v. Florida, 189 S.Ct. 1841 (2019)... cece cececccceeecesceeesesscnecessecsacessceeensaaneseees 19

Jones v. State, 256 So.3d 801 (Fla. 2018) 2.0.0.2... .cccececcccceseececeeceeeeeeeeessesssnaeeeceenenseneaees 19

Jones v. United States, 526 U.S. 227 (1999)... cceseessenseessssseseceeeesessesseeseneseneeeees 14

Knight v. Fla. Dep’t of Corr., 141 S.Ct. 274 (2020)... ececceeccccceeceeseneeeceeseveuseeseans 5

Knight v. Fla. Dep’t of Corr., 936 F.3d 1322 (11th Cir. 2019)... eee e eee eee 5

Marks v. United States, 480 U.S. 188 (1977) .....cccccccccccccccceeceeeessessseneneeeeceeeesesanneesenres 24

Mathis v. United States, 186 S.Ct. 2243 (2016) ......ccccccccccccccccecccccceeeseneensaecuecaeeseneeeeenes 8

McKinney v. Arizona, 140 S.Ct. 702 (2020) 20.0... cc cece esceesscccnscccecesescceeeneesces passim

Middleton v. Florida, 138 S.Ct. 829 (2018) ...........c.ccccccccecececcesceceesecenseueascneeneaaaeseeeneess 19

Middleton v. State, 220 So.38d 1152 (Fla. 2017)...0......cccccescceesseseeeessseeeesseeeessneessneesens 19

Mosley v. State, 209 So.3d 1248 (Fla. 2016) 00.0.0... eccccccccccsssseceeccecaseecsnecscseseeeuseseaaes 3

Neder v. United States, 527 U.S. 1 (1999) ..........c.ccccccccesscsseeecececceesseescesceeseeees 4,6, 9, 10

Oregon v. Ice, 555 U.S. 160 (2009) ..............cccsecsessecsnsseseseuseescusececcccccaeeasensencescesensuseaneas 12

Philmore v. Florida, 139 S.Ct. 478 (2018) ............ccccccccessssseseeeesessesesecscseeeeesecessecsnssneees 19

Philmore v. State, 234 So.3d 567 (Fla. 2018) 0.00.2... cccceceseeeeeseneceeeeeeeeeseeeeessneeeeseneesseees 19

Reynolds v. Florida, 189 S. Ct. 2°77 (2018) ............cccccccccnssescevecesececnseceseeeseeeseaccnsesseeeneas 19

Reynolds v. State, 251 So.3d 811 (Fla. 2018)... cc cccceecececeeessececcesesesssssusscseeseeens 19

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

Rogers v. Tennessee, 5382 U.S. 451 (2001)... ccceseeseseesstensesecseesessesssesseseeeens 24, 25

Romano v. Oklahoma, 512 U.S. 1 (1994)... 0. cece ececeescceescescceeeeeceeneeseecees 15, 16, 18

Rose v. Locke, 423 U.S. 48 (1975).........cccccccccccccccseseessccseeceeceeasssssssseeseeseessasecssessssesseeeees 25

Rudolph v. United States, 370 U.S. 269 (1962)...............cccccessssseesseesessseesssseeceecsereeneees 22,

Sattazahn v. Pennsylvania, 537 U.S. 101 (2008) «0.00.0... eceecececcceeeeecussesceveeeeeseenenes 21

Schad v. Arizona, 501 U.S. 624 (1991) oo... ccccccccceeeseeseeneeteeesseeeescccseneeasstesesececeacs 6, 19

Vv

Schriro v. Summerlin, 542 U.S. 348 (2004)... ceccceeeesscsccesecsecceeesesecensueeeceeees 5

Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1 (2000).............. cc ceeeeeeeeee 19

Shepard v. United States, 544 U.S. 13 (2005)... cccccccccccccecceecsseceuceueeneeueueeeneauenes 8

State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) 0... eee ee eeseesecceeeseeseeeeeeeessneeerseeseeees 4

State v. Mason, 108 N.E.3d 56 (Ohio 2018)......... occ cccccccccenccececeeeseeeeeecesesscrseerseeees 26

State v. Poole, 297 So.3d 487 (Fla. 2020) 0... ceceecsccceesseeeeeeeesesececeeeeeeseeeeseesseneseeteeenaees 4

Street v. New York, 394 U.S. 576 (1969)..........cccccccccccecceececcceccecccecsecseeseessuucensaueaeeneeaneess 7

Stromberg v. California, 283 U.S. 359 (1981)... ec cceccceeeesseseenenseeceeasceeeeceseeseeseaaees 20

Taylor v. State, 246 So.3d 204 (Fla. 2018)............ cc ccesscccccccceeeceseccceescceeessteneueceseeeees 25

Teague v. Lane, 489 U.S. 288 (1989) ..........cssssscccccceccscesssceccecsecseaseeeeeccesscaesseaeesenseeeuenes 5

Tison v. Arizona, 481 U.S. 137 (1987) ..........ccccccccccccsscceesescseaccecceccccceeceeuecereuseasenseceuaees 21

Underwood v. Royal, 894 F.3d 1154 (10th Cir. 2018)... cecessessceceeeseseseeneeeees 26

United States v. Haymond, 139 S.Ct. 2869 (2019) 0... ecccccccccecsesessssessnneeeeseeseseees 12

United States v. Johnston, 268 U.S. 220 (1925) 0.0.0... ceceeeeeeeeeeeeseseessssscesevecsseseeeenees 5

Washington v. Recuenco, 548 U.S. 212 (2006)................ccccssssseesesseesseesesseessessssessseeeneeses 9

Other Authorities

28 U.S.C. § 1257 ooo ce eeenencceeenseeneeeeenenaeeeeeseesneeeeseesneeeeeeeeneenereseessnaceesessnaeceseseneanees 1

Carissa Byrne Hessick, William W. Berry III, Sixth Amendment Sentencing After

Hurst, 66 UCLA L. Rev. 448 (2019) .....csscescsscsessesssessessecsecsuesuessessessessucssessessssseeseeses 19

Fla. R. App. P. 9.880 .........0.....ccccccececcesceseesesecseeeseeseececeecsceseeeececceeceuscecausneeeseauauaesaeseenneaess 7

Fla. Stat. § 921.141 oc eeeesseeeseesseceeseesssseeseesscneeeeeeseeseaneeeseeseceeseeeeeseasesseneeaee 23

Jessica A. Roth, Alternative Elements, 59 UCLA L. Rev. 170 (2011)... 20

Sup. Ct. R. 10... cccecenceceeeeeeeseeeeseeseesceneceseeeeseeseeseeeceeeeceeeeeeeseeeseaceaeeeeeenaearesseneesas 1,2

Z

IN THE SUPREME COURT OF THE UNITED STATES

NO. 20-7732

TINA LASONYA BROWN,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

Petitioner challenges the Florida Supreme Court's decision to affirm the denial

of her motion for postconviction relief; that decision appears as Brown v. State, 304

So.3d 243 (Fla. 2020). The Florida Supreme Court’s direct appeal decision appears

as Brown v. State, 143 So.3d 392 (Fla. 2014), cert. denied, Brown v. Florida, 574 U.S.

1034 (2014).

JURISDICTION

This Court’s jurisdiction to review the final judgment of the Florida Supreme

Court is authorized by 28 U.S.C. § 1257. However, this Court should decline to

exercise jurisdiction in this case because the Florida Supreme Court’s decision does

not implicate an important or unsettled question of federal law, does not conflict with

another state court of last resort or a court of appeal of the United States, and does

not conflict with relevant decisions of this Court. Sup. Ct. R. 10. No compelling

reasons exist in this case and this Petition for a writ of certiorari should be denied.

Sup. Ct. R. 10.

STATEMENT OF THE CASE AND FACTS

By Petitioner’s own admission, the uncontroverted evidence “established a

uu

crime out of [a] nightmare.” Petition, p.2. Petitioner and her co-defendants (which

included Petitioner’s teenage daughter and another woman) lured the victim into

Petitioner's home, tased and beat the victim, dragged the victim to Petitioner's car,

drove the victim to a remote location, dragged the victim out of the car, chased down

the victim when she tried to escape, beat her with a crowbar, doused her with

gasoline, and lit her on fire. See Brown, 148 So.3d at 395-97; see also Brown, 304

So.3d at 251-53. The victim suffered severe head trauma, her jaw was either broken

or severely dislocated, and over ninety percent of her body was burned. Brown, 143

So.3d at 396. While the victim was burning alive, one of the co-defendants screamed

“Burn, bitch! Burn!” Jd. The victim initially survived her injuries and walked about

a third of a mile to a nearby residence. Jd. The victim identified Petitioner as one of

her attackers and asked the Emergency Medical Technician who treated her to

“protect her children.” Jd. at 396-97. The victim then died sixteen days later in a

hospital. Id. at 397.

A jury convicted Petitioner of first-degree murder and recommended a death

sentence by a unanimous vote. Brown, 143 So.3d at 397, 400. The trial court found

three statutory aggravating factors: (1) that the murder was committed in a cold,

calculated, and premeditated (CCP) manner without any pretense of moral or legal

justification; (2) that the murder was especially heinous, atrocious, and cruel (HAC);

and (3) that the murder was committed while the Petitioner was engaged in the

commission of a kidnapping. See id. at 405. On appeal, the Supreme Court of Florida

affirmed Petitioner’s conviction and sentence. Id. at 408.

Subsequently, Petitioner filed an initial motion for postconviction relief, which

included a claim for relief under Hurst v. Florida, 577 U.S. 92 (2016). See Brown, 304

So.3d at 256, 277. The trial court denied the motion. Jd. at 256. On appeal,

Petitioner’s challenge to the trial court’s denial of the motion for postconviction relief

included a challenge to the denial of the Hurst v. Florida claim. Id. Following state

law precedent! that applies Hurst v. Florida retroactively to cases that became final

after Ring v. Arizona, 536 U.S. 584 (2002), the Court examined the evidence and

found harmless any Sixth Amendment sentencing error in Petitioner’s case. See

Brown, 304 So.3d at 278:

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. Galindez v. State, 955 So.2d

517, 522 (Fla. 2007) (quoting Neder v. United States, 527 U.S. 1, 19

1 Petitioner concedes this point. See Petition, p.8 (“Applying state retroactivity doctrines, the Florida

Supreme Court held in [Mosley v. State, 209 So.3d 1248 (Fla. 2016),] 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, 202 So.3d 40 (Fla. 2016)].”).

3

(1999)); see also State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986).

Because the existence of a single statutory aggravating circumstance

would render Brown eligible for imposition of the death penalty, see

[State v. Poole, 297 So.3d 487, 501-03 (Fla. 2020)], 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.

Ultimately, the Supreme Court of Florida affirmed the denial of all of Petitioner’s

postconviction claims. Id. at 280.

REASONS FOR DENYING THE WRIT

I.

The Florida Supreme Court’s Rejection of Petitioner’s Hurst

Claim on the Basis of Harmlessness Does Not Conflict with any

of this Court’s Precedent or Present an Important or Unsettled

Question for Review

Petitioner asks this Court to address whether the Sixth Amendment prohibits

an appellate court from conducting harmless error analysis in a case involving an

alleged error under Hurst v. Florida. See Petition, p.13 (Characterizing the Supreme

Court of Florida’s harmless error analysis as “upholding a death sentence

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

defendant’s crime death-eligible.”); see also Hurst, 577 U.S. at 98-99 (Florida’s capital

sentencing scheme, under which an advisory jury makes a recommendation to a

judge, and the judge makes the critical findings needed for imposition of a death

sentence, violates the Sixth Amendment right to jury trial). Ostensibly, Petitioner

asserts conflict with this Court’s precedents; in reality, however, she seeks only a factbased review of the harmless error review conducted by the lower state court. The

correctness of the finding of harmlessness is a factual determination with no

4

implications beyond the parties involved in this case, mandating the denial of

certiorari review. See Bartlett v. Stephenson, 535 U.S. 1301, 13804 (2002) (issues with

few, if any, ramifications beyond the presenting case do not satisfy any of the criteria

for exercise of certiorari jurisdiction); United States v. Johnston, 268 U.S. 220, 227

(1925) (“We do not grant a certiorari to review evidence and discuss specific facts.”).

Moreover, the sufficiency of the Florida Supreme Court’s harmless error analysis is

established by a review of that opinion.

Before this Court even reaches the question of harmlessness, it would first

have to address the predicate question of retroactivity. Unacknowledged by

Petitioner, Hurst v. Florida does not apply retroactively to her case for two reasons:

first, Petitioner’s conviction became final before Hurst v. Florida was decided; and

second, Petitioner raised her Hurst claim in postconviction. See McKinney v. Arizona,

140 S.Ct. 702, 708 (2020):

The hurdle is that McKinney’s case became final on direct review in

1996, long before Ring [v. Arizona, 536 U.S. 584 (2002),] and Hurst[ v.

Florida, 577 U.S. 92 (2016)]. Ring and Hurst do not apply retroactively

on collateral review. See Schriro v. Summerlin, 542 U.S. 348, 358

(2004). Because this case comes to us on state collateral review, Ring

and Hurst do not apply.

Because Hurst v. Florida does not apply retroactively to Petitioner’s case under

federal law, any review of a state court’s harmless error analysis “would be a

prohibited and pointless exercise.” Knight v. Fla. Dep’t of Corr., 936 F.3d 1322, 1338

(11th Cir. 2019), cert. denied, Knight v. Fla. Dep’t of Corr., 141 S.Ct. 274 (2020):

Where, as here, Teague [v. Lane, 489 U.S. 288 (1989),] bars relief before

we reach the preliminary question of whether constitutional error

occurred at all, consideration of the secondary question of whether any

such error was harmless would be a prohibited and pointless exercise

for both the petitioner and this Court. We therefore cannot grant Knight

relief on his Hurst claim, whether or not it is cloaked in the garb of

harmless error.

Even if Hurst v. Florida were to apply, this Court has clearly held that

appellate courts can continue to conduct harmless error analyses in cases involving

Sixth Amendment violations like the one alleged in Petitioner’s case. See, e.g., Hurst,

577 U.S. at 102:

Finally, we do not reach the State’s assertion that any error was

harmless. See Neder v. United States, 527 U.S. 1, 18-19 (1999) (holding

that the failure to submit an uncontested element of an offense to a jury

may be harmless). This Court normally leaves it to state courts to

consider whether an error is harmless, and we see no reason to depart

from that pattern here. See Ring[ v. Arizona], 536 U.S.[ 584], 609, n.7

[(2002)].

By finding that a rational jury, properly instructed, would have found the fact

of kidnapping as an aggravating circumstance, the Supreme Court of Florida followed

this Court’s caselaw and conducted an appropriate harmless error analysis in

Petitioner’s case.

Petitioner’s Claim and Sub-Claims

In support of her overall argument under Question One, Petitioner raises

several claims and sub-claims: a Hurst claim; a sub-claim that Almendarez-Torres,

523 U.S. 224 (1998), is no longer good law; a Caldwell v. Mississippi, 472 U.S. 320

(1985), sub-claim; and an apparent sub-claim that Schad v. Arizona, 501 U.S. 624

(1991), is no longer good law. Respondent addresses each of these below.?

2 In her Initial Brief before the Supreme Court of Florida, Petitioner only challenged the denial of her

Hurst claim. See Initial Brief, p.118 (“There is no dispute that Ms. Brown’s death sentence was

obtained in violation of the United States Constitution for the reasons described in Hurst v.

6

Petitioner’s Hurst Claim

Petitioner claims that the Supreme Court of Florida, when it conducted a

harmless error analysis in her postconviction appeal, violated her Sixth Amendment

rights by finding a “suppositious” kidnapping felony that retroactively made her

eligible to receive a sentence of death. Petition, p.14; see also id. at 16 (“[The] jury

never made a decisive determination of the factual predicate which the Florida

Supreme Court has not retrospectively rested her death-eligibility.”).

According to Petitioner, the Court relied on harmless error analysis to

“constructively” find an aggravating circumstance based upon what the Court

believed “a ‘rational jury,’ properly instructed, would have found.” Petition, p.13,

quoting Brown, 304 So.3d at 278. Petitioner claims that, because no actual jury made

that finding, the Court’s suppositious finding violated the Sixth Amendment. See

Petition, p.14 (“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.”).

Florida....”). While Petitioner did raise a Caldwell sub-claim, it was different than the one she now

raises. See Initial Brief, p.124 (“[The] Court’s total reliance on the advisory jury’s recommendation [in

conducting its harmless error analysis under Hurst v. State] without considering the jury’s diminished

sense of responsibility for the death sentence violated Caldwell ... [because] no court can be certain

beyond a reasonable doubt that a jury would have made the same unanimous recommendation absent

the Hurst error.”) (emphasis in original); see also Petition, p.11 (“[Petitioner] 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 ... to challenge the notion that a 12-0

[sentencing recommendation from the jury] renders Hurst error harmless.”). Petitioner glosses over

this fact by asserting that her motion for rehearing “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.” Petition, p.13. Under state rules, however, a

motion for rehearing cannot raise issues or arguments that were not raised in the initial brief. See

Fla. R. App. P. 9.380(a)(2)(A). Therefore, Petitioner failed to present to the Supreme Court of Florida

any claim other than her Hurst claim. See Street v. New York, 394 U.S. 576 (1969).

7

In a larger sense, Petitioner condemns harmless error analysis as a “post hoc

fact-construction [that] is plainly at odds with the Sixth Amendment restrictions

placed upon judicial fact-finding....” Petition, p.15. In support of this

characterization, Petitioner relies on two cases from this Court that address what

facts, if any, a judge may infer from a prior conviction resulting from a guilty plea.

See id. at 15-16, quoting Mathis v. United States, 136 S.Ct. 2248, 2252 (2016), and

Shepard v. United States, 544 U.S. 13, 25-26 (2005). Neither case®+ supports

Petitioner's argument, however, because harmless error analysis relies upon evidence

actually presented to the jury in a particular case. Therefore, both Mathis and

Shepard remain inapposite.

Furthermore, Hurst v. Florida does not apply retroactively to Petitioner’s case

under federal law. See McKinney, 140 S.Ct. at 708. Even if Hurst were to apply,

Petitioner fails to recognize this Court has already held that Sixth Amendment

violations like the one alleged in her case remain subject to harmless error analysis

3 In Mathis, the parties agreed that the elements of Iowa’s burglary statute were broader than the

generic burglary definition under the Armed Career Criminal Act’s (ACCA) “violent felony” provision.

See Mathis, 186 S.Ct. at 2250. Whereas the generic burglary offense under the ACCA requires

unlawful entry into a “building or other structure,” Iowa’s burglary statute covers “any building,

structure, /or] land, water, or air vehicle.” Id. (emphasis in original) (citations omitted). Because a

guilty plea under Iowa’s burglary statute could encompass behavior not covered under the ACCA,

defendant's Iowa convictions could not support a 15-year mandatory minimum sentence. See id. at

2257 (“Because the elements of Iowa’s burglary law are broader than those of generic burglary,

Mathis’s convictions under that law cannot give rise to an ACCA sentence.”).

4 In Shepard, this Court addressed whether a sentencing court could look to police reports or complaint

applications to determine whether an earlier guilty plea admits, and therefore supports a conviction

for, generic burglary under the ACCA. Shepard, 544 U.S. 18. This Court answered that question in

the negative, holding that

enquiry under the ACCA to determine whether a plea of guilty to burglary defined by

a nongeneric statute necessarily admitted elements of the generic offense is limited to

the terms of the charging document, the terms of a plea agreement or transcript of

colloquy between judge and defendant in which the factual basis for the plea was

confirmed by the defendant, or to some comparable judicial record of this information.

Id. at 26.

8

on appeal. See, e.g., Washington v. Recuenco, 548 U.S. 212, 220 (2006) (prosecution’s

failure to prove the sentencing factor of “armed with a firearm” to the jury beyond a

reasonable doubt was a Sixth Amendment violation subject to harmless error

analysis on appeal); see also Ring, 536 U.S. at 609 n.7 (“We do not reach the State’s

assertion that any error was harmless because a pecuniary gain finding was implicit

in the jury’s guilty verdict. See Neder v. United States, 527 U.S. 1, 25 (1999) (this

Court ordinarily leaves it to lower courts to pass on the harmlessness of error in the

first instance).”).

Additionally, Petitioner fails to acknowledge that, in the Hurst decision itself,

this Court left it up to the state to decide whether any Sixth Amendment violation

qualifies as harmless in a particular case. See Hurst, 577 U.S. at 102:

Finally, we do not reach the State’s assertion that any error was

harmless. See Neder v. United States, 527 U.S. 1, 18-19 (1999) (holding

that the failure to submit an uncontested element of an offense to a jury

may be harmless). This Court normally leaves it to state courts to

consider whether an error is harmless, and we see no reason to depart

from that pattern here. See Ring[ v. Arizona], 5386 U.S.[ 584], 609, n.7

[(2002)].

That is exactly what the Supreme Court of Florida did in this case, concluding

that the evidence supported a finding by a rational jury that Petitioner committed a

kidnapping during the course of the murder. See Brown, 304 So.3d at 278. Even if

this Court disagrees with the Supreme Court of Florida’s assessment of the

kidnapping evidence, any Sixth Amendment sentencing error remains harmless as

the evidence of HAC was still overwhelming. See Brown, 143 So. 3d at 401-02 (“The

trial court 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.”). Indeed, Petitioner and

her co-defendants burned the victim alive. Id. at 396. Because all of the evidence

referenced by the Court was presented to the actual jury in Petitioner’s case, any

failure by the jury to find an aggravating circumstance was harmless under Neder.

Recently, this Court cited Ring and Hurst to reaffirm that, under the Sixth

Amendment, “a jury must find the aggravating circumstance that makes the

defendant death eligible.” McKinney, 140 S.Ct. at 707. In McKinney, this Court

addressed an Eighth Amendment claim based upon Eddings v. Oklahoma, 455 U.S.

104 (1982). See McKinney, 140 S.Ct. at 707. Specifically, the defendant claimed that

the sentencer in his capital trial committed an Eddings error by failing to consider

the mitigating impact of his post-traumatic stress disorder (PTSD). See id. at 706,

citing Eddings (“In Eddings, this Court held that a capital sentencer may not refuse

as a matter of law to consider relevant mitigating evidence.”). The defendant argued

that, in the wake of Ring and Hurst, a state appellate court could no longer correct

an Eddings error by conducting a Clemons reweighing — 1.e., an appellate court

judicially reweighing the aggravating factors and mitigating circumstances (which

now included the PTSD). Jd. at 706-07, citing Clemons v. Mississippi, 494 U.S. 738

(1990).

In reaching its decision, this Court analogized a Clemons reweighing to a

harmless error analysis. See McKinney, 140 S.Ct. at 706 (“The Court explained that

10

a Clemons reweighing is not a resentencing but instead is akin to harmless-error

review in that both may be conducted by an appellate court.”). Additionally, this

Court clearly and unequivocally rejected the defendant’s argument that “appellate

courts may no longer reweigh aggravating and mitigating circumstances in

determining whether to uphold a death sentence.” Jd. at 707. Furthermore, this

Court squarely rejected any argument that the Constitution requires a jury to weigh

aggravating factors and mitigating circumstances. See id. (“[I]n a capital sentencing

proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge)

is not constitutionally required to weigh the aggravating and mitigating

circumstances or to make the ultimate sentencing decision within the relevant

sentencing range.”). Ultimately, this Court confirmed the continued validity of

Clemons post-Hurst. See id. (“In short, a Clemons reweighing is a permissible remedy

for an Eddings error.”).

As the above cases clearly indicate, appellate courts can still conduct harmless

error analyses in cases involving Sixth Amendment violations — to include Hurst

violations in Florida. By finding that a rational jury, properly instructed, would have

found the fact of kidnapping as an aggravating circumstance, the Supreme Court of

Florida followed this Court’s caselaw and conducted an appropriate harmless error

analysis in Petitioner's case.

Petitioner’s Almendarez-Torres Sub-Claim

Petitioner argues that “the only way to square” the Supreme Court of Florida’s

harmless error analysis in Brown with the holding of Hurst v. Florida, “is to assume

11

that Almendarez-Torres ... survives Hurst....” Petition, p.14. According to Petitioner,

Alemendarez-Torres does not. Id.

Alternatively, Petitioner argues that the Supreme Court of Florida’s purported

application of Almendarez-Torres to a contemporaneous, as opposed to a prior, felony

conviction “is an aberration” that must be corrected. Petition, p.19. According to

Petitioner, a jury finding of a contemporaneous felony during the guilt phase should

not serve as the automatic finding of an aggravating factor for the penalty phase. See

Petition, p.10 (“[I]n 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....”) (emphasis added); see also id. at 12 (“Poole’s new rule

that any jury guilt-stage finding of facts that were coincidental with a statutory

aggravator precludes Hurst-based relief....”) (emphasis added).

In raising this sub-claim, Petitioner fails to acknowledge that, after Hurst was

decided, this Court reaffirmed its commitment to Almendarez-Torres. See United

States v. Haymond, 139 S.Ct. 2869, 2377 n.3 (2019), citing Apprendi v. New Jersey,

530 U.S. 466 (2000) (“The Court has recognized two narrow exceptions to Apprendi’s

general rule, neither of which is implicated here: Prosecutors need not prove to a jury

the fact of a defendant’s prior conviction, Almendarez-Torres v. United States, 523

U.S. 224 (1998), or facts that affect whether a defendant with multiple sentences

serves them concurrently or consecutively, Oregon v. Ice, 555 U.S. 160 (2009).”).

12

Additionally, Petitioner fails to recognize that the Almendarez-Torres

exception applies to prior convictions, not contemporaneous ones. See Ring, 536 U.S.

at 597 n.4 (2002) (“No aggravating circumstance related to past convictions in his

case; Ring therefore does not challenge Almendarez-Torres ... which held that the fact

of prior conviction may be found by the judge even if it increases the statutory

maximum sentence.”). Whether the conviction is prior or contemporaneous, no Sixth

Amendment error occurs because a jury has satisfied the fact-finding requirement.

See generally Ring, 536 U.S. at 612-13 (Scalia, J., concurring) (“Those States that

leave the ultimate life-or-death decision to the judge may continue to do so—by

requiring a prior jury finding of aggravating factor in the sentencing phase or, more

simply, by placing the aggravating-factor determination (where it logically belongs

anyway) in the guilt phase.”); Alleyne v. United States, 570 U.S. 99, 111 n.1 (2018),

citing Almendarez-Torres (prior convictions are “a narrow exception” to the Sixth

Amendment requirement that defendants have a right to have a jury find facts which

expose a defendant to a greater punishment).

Within the context of Almendarez-Torres, some might not see any meaningful

distinction between a prior conviction and contemporaneous one. In both scenarios,

jury fact-finding supports an increase in the maximum sentence — just at different

times. With a contemporaneous conviction, any Sixth Amendment requirement in

the penalty phase was satisfied by the jury verdict in the guilt phase; with a prior

conviction, any Sixth Amendment requirement in the present case was satisfied by

the verdict in the prior case (because the defendant either admitted to the facts or

13

because the jury verdict itself provides the necessary fact-finding). See generally

Jones v. United States, 526 U.S. 227, 249 (1999) (“(U]nlike virtually any other

consideration used to enlarge the possible penalty for an offense, and certainly unlike

the factor before us in this case, a prior conviction must itself have been established

through procedures satisfying the fair notice, reasonable doubt, and jury trial

guarantees.”). Under this view, and as to the fact of prior conviction only, the

previous jury essentially serves as a substitute for the present one.

Regardless of any distinction between prior convictions and contemporaneous

ones, however, Petitioner fails to recognize that the Supreme Court of Florida did not

rely on the Almendarez-Torres exception to find a “suppositious felony” conviction

that rendered any Hurst error harmless. In other words, the Court did not look to a

prior or contemporaneous felony conviction in order to show that no Sixth

Amendment error occurred. Rather, presuming that a Sixth Amendment violation

did occur because Hurst v. Florida was considered retroactive under state law, the

Court properly applied an evidence-based harmless error test and concluded that,

because of the “uncontroverted evidence that the capital felony was committed while

Brown was engaged, or was an accomplice, in the commission of a kidnapping,” any

Sixth Amendment error that did occur was nevertheless harmless. Brown, 304 So.3d

at 278.

Ultimately, Petitioner fails to acknowledge that Almendarez-Torres has no

application where, as here, an appellate court performs a harmless error analysis.

14

The harmless error analysis below does not conflict with any of this Court’s precedent;

nor does it present a conflict of opinion among lower appellate courts.

Petitioner’s Caldwell Sub-Claim

Petitioner claims that the harmless error analysis conducted by the Supreme

Court of Florida retroactively invalidated the jury instructions in her case, thereby

resulting in a Caldwell violation. See Petition, pp.16-17. According to Petitioner, an

ex post facto violation of Caldwell occurred because the jury instructions were

rendered inaccurate by a “thing done afterward” — i.e., the harmless error analysis

conducted during Petitioner’s postconviction appeal. See Doe #1 v. Lee, No. 3:16-CV-

02862, 2021 WL 428967, at *1 n.4 (M.D. Tenn. Feb. 8, 2021) (‘The Latin phrase ‘ex

post facto’ means ‘from a thing done afterward.”).

Arguing that the jury instructions “improperly described the role assigned to

the jury by local law,” Petitioner claims that the “guilt-stage verdict of [her] jury ...

[1] which the jury was led to believe would do no more than initiate a second,

sentencing state of the trial [2] has now — a decade later —- been converted ... into

an automatic, stand-alone basis for death eligibility.” Petition, p.19 n.36, quoting

Romano v. Oklahoma, 512 U.S. 1, 9 (1994); id. at 19-20. Essentially, Petitioner

_ argues that the instructions exaggerated the impact of the jury’s sentencing

recommendation on the judicial decision to impose a death sentence.

Again, this case would present an inappropriate vehicle to address

instructional error because Hurst is not retroactive under federal law. Further, in a

footnote under a separate heading, Petitioner acknowledges the jury's unanimous

15

sentencing recommendation. See Petition, p.27 n.46 (“It is true, of course, that Ms.

Brown’s jury did render a unanimous advisory recommendation of death.”). However,

Petitioner discredits the role of that recommendation in the sentencing process. See

id. (“[T]hat recommendation is not the basis upon which Ms. Brown is now slated to

be killed.”). Failing to acknowledge that Hurst v. Florida is not retroactive under

federal law, Petitioner asserts that “[h]ler 2012 death sentence following [the

unanimous jury] recommendation was invalidated by Hurst v. Florida....” Id.

According to Petitioner, that recommendation is gone; all that remains is her

conviction. Id. Hence, Petitioner argues that her death sentence is based solely upon

the jury verdict and the unconstitutional finding of an aggravating circumstance by

an appellate court.

In raising her Caldwell sub-claim, however, Petitioner fails to demonstrate

that the jury instructions “improperly described the role assigned to the jury by local

law.” Romano, 512 U.S. at 9, quoting Dugger v. Adams, 489 U.S. 401, 407 (1989)

(“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.”). The jury, as instructed,® did provide the trial court with a sentencing

recommendation. See Brown, 304 So.3d at 255, citing Brown, 143 So.3d at 400

(“Following the penalty-phase presentation, the jury unanimously recommended a

5 See Record on Appeal, Vol. XI, p.1111 (“[T]he 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 punishment to impose.”).

16

sentence of death.”). And the trial court, after receiving that recommendation, did

impose a death sentence. See id. (“Thereafter, the trial court followed the jury’s

recommendation and sentenced Brown to death, finding that the aggravating

circumstances outweighed the mitigating circumstances.”). Nothing in Petitioner’s

postconviction appeal changed any of that.

In arguing to the contrary, Petitioner fails to acknowledge the process that

produced the result she now challenges. Simplifying it for the sake of argument, that

process included four key steps. First, the jury unanimously found Petitioner guilty

of first-degree murder. See Brown, 143 So.3d at 400. Second, the jury unanimously

recommended a death sentence. Jd. Third, based upon the verdict and

recommendation, the trial court imposed the death penalty. Id. And fourth, based

upon its own harmless error analysis, the appellate court denied Petitioner’s

postconviction Hurst claim. See Brown, 304 So.3d at 278. Each step in the process

led to the next step, until the process concluded with step four. Without any of the

first three steps, the fourth step would have been impossible; and, no step in the

process erased any step that came before it. Because the first three steps were

necessary to the overall process, the appellate court’s harmless error analysis in step

four did not convert the verdict “into an automatic, stand-alone basis for death

eligibility”; nor did that analysis render the verdict, on its own, sufficient “to make

the defendant death-eligible.” To accept Petitioner’s argument would remove any

opportunity for harmless error analysis in any case involving a Hurst violation. But

see Hurst, 577 U.S. at 102.

17

Finally, Petitioner fails to explain how a purported exaggeration of the jury’s

role in the sentencing process could result in an Eighth Amendment violation under

Caldwell. An important point, Petitioner does not argue that the instructions, when

given, minimized the jury’s role in a way that manipulated the jury into

recommending a harsher sentence than it would have otherwise. See Romano, 512

U.S. at 9 (“The evidence at issue was neither false at the time it was admitted, nor

did it even pertain to the jury’s role in the sentencing process.”) (emphasis added); cf.

Feldman v. Thaler, 695 F.3d 372, 384 (5th Cir. 2012), citing Beck v. Alabama, 447

U.S. 625, 642-43 (1980) (Describing “the Beck dilemma—that a jury might be coerced

into returning an erroneous guilty verdict on a capital crime merely to avoid setting

the defendant free” when state law precludes an instruction on a lesser included

offense.). In other words, Petitioner does not argue that the jury was “led to believe

that responsibility for determining the appropriateness of a death sentence rest[ed]

not with the jury but with the appellate court which later review[ed] the case.”

Caldwell, 472 U.S. at 323. If anything, Petitioner argues the opposite — that the jury

was led to believe that it enjoyed greater responsibility for determining the

appropriateness of a death sentence than it actually possessed because, unknown to

the jury at the time the instructions were given, an appellate court would later

exercise that role exclusively. But this does not a Caldwell claim make. In

Petitioner’s case, nothing in the jury instructions minimized the jury’s sentencing role

18

in a way that manipulated the process to produce a harsher result.6 Therefore, no

Caldwell violation occurred.

Petitioner’s Schad Sub-Claim

Petitioner appears to argue that this Court’s decision in Schad is no longer

good law. See Petition, p.15 (“This is quite simply the classic case in which every

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

the two alternate findings upon which jurors had been told that they could rest a

criminal conviction.”); but see Schad, 501 U.S. at 629 (Conviction of first-degree

murder under instructions that did not require jury to agree on one of alternative

theories of premeditated and felony-murder did not deny due process; the moral

disparity between the theories did not bar treating them as alternative means to

satisfy mental element of single offense.).

As a general rule, this Court does not overrule itself sub silentio. See Shalala

v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not

normally overturn, or so dramatically limit, earlier authority sub silentio.”); see also

Carissa Byrne Hessick, William W. Berry III, Sixth Amendment Sentencing After

Hurst, 66 UCLA L. Rev. 448, 463 n.81 (2019) (“The Court does not require juror

unanimity on alternative elements, see Schad v. Arizona, 501 U.S. 624 (1991), and

although that rule has been criticized, see Jessica A. Roth, Alternative Elements, 59

6 This Court has repeatedly rejected certiorari review of Hurst induced Caldwell claims from Florida.

See, e.g., Jones v. State, 256 So.3d 801 (Fla. 2018), cert. denied, Jones v. Florida, 139 S.Ct. 1341 (2019)

(No. 18-7248); Reynolds v. State, 251 So.3d 811 (Fla. 2018), cert. denied, Reynolds v. Florida, 139 S.Ct.

27 (2018); Middleton. v. State, 220 So.3d 1152 (Fla. 2017), cert. denied, Middleton v. Florida, 138 S.Ct.

829 (2018); Philmore v. State, 234 So.3d 567 (Fla. 2018), cert. denied, Philmore v. Florida, 139 S.Ct.

478 (2018).

19

UCLA L. Rev. 170, 190 n.67 (2011) (collecting sources), there is no reason to think

that the Court would have overruled its previous case on point without mentioning

the issue at all.”).

Nevertheless, in a footnote, Petitioner relies upon two cases from this Court to

support her claim that a single jury verdict cannot support two, alternative theories

of conviction. See Petition, p.15 n.380, quoting Stromberg v. California, 283 U.S. 359,

367-68 (1931), and Williams v. North Carolina, 317 U.S. 287, 291-92 (1942); but see

Griffin v. United States, 502 U.S. 46, 53 (1991) (“This language, and the holding of

Stromberg, do not necessarily stand for anything more than the principle that, where

a provision of the Constitution forbids conviction on a particular ground, the

constitutional guarantee is violated by a general verdict that may have rested on that

ground.”); but see also Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (“An instructional

error arising in the context of multiple theories of guilt no more vitiates all the jury’s

findings than does omission or misstatement of an element of the offense when only

one theory is submitted.”) (emphasis in original).

Despite the clear inapplicability of either Stromberg or Williams, Petitioner

claims that the Supreme Court of Florida’s harmless error analysis improperly relied

upon evidence of kidnapping as an aggravating circumstance. According to

Petitioner, the Court could have relied on the evidence of kidnapping to support an

aggravating circumstance only if the State had pursued first-degree felony murder as

its exclusive theory of the case. See Petition, p.14 (“If the prosecution’s first-degree

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

20

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.”).

In making this argument, Petitioner appears to conflate kidnapping as an

element of first-degree felony murder with kidnapping as an aggravating

circumstance for first-degree murder (whether felony or premeditated). Absent any

Enmund‘/Tison®’ concerns (which are not present here), a conviction for first-degree

felony murder plus at least one aggravating circumstance or a conviction for firstdegree premeditated murder plus at least one aggravating circumstance would

render a defendant eligible to receive a death sentence. See generally Sattazahn v.

Pennsylvania, 537 U.S. 101, 112-13 (2008) (discussing murder plus at least one

aggravating circumstance); see also McKinney, 140 S.Ct. at 705 (“Under this Court’s

precedents, a defendant convicted of murder is eligible for a death sentence if at least

one aggravating circumstance is found.”).

In Petitioner's case, evidence of kidnapping played a role in the Court’s

harmless error analysis regarding the penalty phase. Because Petitioner’s guilt as to

first-degree murder is not in question, and because the Court viewed the evidence of

kidnapping in the context of an aggravating circumstance, any distinction between

felony murder and premeditated murder in the guilt phase remains wholly irrelevant.

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

8 Tison v. Arizona, 481 U.S. 137 (1987).

21

Ultimately, Petitioner failed to demonstrate that the Florida Supreme Court’s

harmless error review was inconsistent with any decision from this Court.

Consequently, granting review to reassess the lower court’s harmless error review

would have no impact beyond the interests of the parties to this case. See Rudolph v.

United Siates, 370 U.S. 269, 270 (1962) (recognizing that a certiorari petition

predicated on reviewing facts of importance only “to the litigants themselves” was an

inappropriate grounds to grant a writ). Furthermore, a review of the Florida

Supreme Court's opinion establishes the correctness of its harmlessness finding

under the facts of this case. See Barclay v. Florida, 463 U.S. 939, 958 (1983) (wherein

this Court recognized that the Florida Supreme Court does not apply its harmless

error analysis in an automatic or mechanical fashion, but rather upholds death

sentences on the basis of this analysis only when it actually finds that the error is

harmless).

II.

The Eighth Amendment Does Not Require Jury Sentencing

Petitioner asks this Court to address whether the Eighth Amendment requires

jury sentencing in capital cases. Just last year, however, this Court clearly answered

that question in the negative. See McKinney, 140 S.Ct. at 707 (“Under Ring and

Hurst, a jury must find the aggravating circumstance that makes the defendant

death eligible. But importantly, in a capital sentencing proceeding just as in an

ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally

required to weigh the aggravating and mitigating circumstances or to make the

22

ultimate sentencing decision within the relevant sentencing range.”). Therefore, this

Court need not revisit it.9

The Constitution provides a right to trial by jury, not to sentencing by jury.

See Ring, 536 U.S. at 612 (Scalia, J., concurring) (“[T]oday’s judgment has nothing to

do with jury sentencing. What today’s decision says is that the jury must find the

existence of the fact that an aggravating factor existed.”) (emphasis in original);

Harris v. Alabama, 513 U.S. 504, 515 (1995) (holding that the Constitution does not

prohibit the trial judge from “impos[ing] a capital sentence”). In any event,

Petitioner’s case would be a very poor vehicle to address this question because the

jury recommendation for death was unanimous and the evidence of aggravation is

overwhelming.

9 In Florida, the jury actively participates in both the eligibility and selection phases of the capital

sentencing process. While the finding of at least one aggravating factor beyond a reasonable doubt

concludes the jury’s role in the eligibility phase, it marks the beginning of the jury’s role in the selection

phase. See Poole, 297 So.3d at 502. In performing its role during the selection phase, the jury must

consider: “[w]hether sufficient aggravating factors exist”; and, “[w]hether aggravating factors exist

which outweigh the mitigating circumstances found to exist.” Fla. Stat. § 921.141(2)(b)2.a-b. After

considering whether sufficient aggravating factors exist and whether the aggravating factors outweigh

the mitigating circumstances, the jury must recommend to the trial court “whether the defendant shall

be sentenced to life imprisonment without the possibility of parole or to death.” Fla. Stat. §

921.141(2)(b)2. If the jury recommends death, then the trial court may impose either a death sentence

or a sentence of life imprisonment without the possibility of parole. Fla. Stat. § 921.141(8)(a)2. If,

however, the jury recommends a sentence of life without the possibility of parole, then the trial court

can only impose a life sentence. Fla. Stat. § 921.141(8)(a)1.

23

III.

Petitioner’s Death Sentence Does Not Violate Due Process

Petitioner asks this Court to address whether her death sentence violates the

Due Process Clause of the Fourteenth Amendment. See Petition, p.28 (Arguing that

application of a State court decision to Petitioner’s case “constitutes a federal ex post

facto and due process violation.”). Respondent does not address Petitioner’s Ex Post

Facto Clause argument because that Clause applies to legislative enactments, not

judicial decisions. See Rogers v. Tennessee, 532 U.S. 451, 456 (2001), quoting Marks

v. United States, 480 U.S. 188, 191 (1977) (“As the text of the [Ex Post Facto] Clause

makes clear, it ‘is a limitation upon the powers of the Legislature, and does not of its

own force apply to the Judicial Branch of government.”).

As to the Due Process Clause argument, Petitioner raises a Bouie claim — that

“an unforeseeable judicial enlargement of a criminal statute, applied retroactively,

operate[d] precisely like an ex post facto law” in her case. Bouie v. City of Columbia,

378 U.S. 347, 353 (1964). According to Petitioner, the Supreme Court of Florida

committed a Bouie violation when, in deciding Poole, it “retroactive[ly] rece[ded] from

Hurst v. State.” Petition, p.29. Petitioner characterized the holding of Poole as a

“volte-face” from the holding of Hurst v. State. Petition, p.1.

Unrecognized by Petitioner, Bouie does not apply to her case because this

Court’s decision protects against the “deprivation of the right of fair warning.” Bouie,

378 U.S. at 352 (“There can be no doubt that a deprivation of the right of fair warning

can result not only from vague statutory language but also from an unforeseeable and

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