Opposition Brief — Jonathan Huey Lawrence, Petitioner v. Florida

CAPITAL CASE

No. 20-8341

Int

Supreme Court af a Anited States

JONATHAN HUEY LAWRENCE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

ASHLEY MOODY

Attorney General of Florida

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

CHARMAINE M. MILLSAPS

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

CAPITAL APPEALS

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3300

capapp@myfloridalegal.com

CAPITAL CASE

QUESTIONS PRESENTED

I. Whether the Florida Supreme Court abolishing proportionality review

in capital cases, based on the state constitution, violates the Eighth

Amendment or Pulley v. Harris, 465 U.S. 37 (1984).

II. Whether the Florida Supreme Court abolishing proportionality

review in capital cases violates the Equal Protection Clause.

III. Whether the Florida Supreme Court abolishing proportionality

review in capital cases violates due process or Boute v. City of Columbia,

378 U.S. 347 (1964).

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED .............0 20.00.00 c cc eet eens i

TABLE OF CONTENTS ... 20.2... eee ee ene eens ii

TABLE OF AUTHORITIES .......0 0.0.0.0. ccc ene ee lv

OPINION BELOW.............0. 02. c ec eee nee eee eens 1

JURISDICTION. .. 2.2.0.0... cee e eee nane 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........... 2

STATEMENT OF THE CASE AND PROCEDURAL HISTORY................ 3

Facts of the murders ...... 2.2.2.0... ccc cece eee nee 3

Prior proceedings... 1.0.0... ee eee eee eee ene 4

Direct appeal of resentencing .......... 0.0... c eee ee eee eee eee eae 5

REASONS FOR DENYING THE WRIT.................202. 00 ccc e eee 6

ISSUE .. 2... cnet ence ene eees 6

WHETHER THE FLORIDA SUPREME COURT ABOLISHING

PROPORTIONALITY REVIEW IN CAPITAL CASES, BASED ON THE

STATE CONSTITUTION, VIOLATES THE EIGHTH AMENDMENT

OR PULLEY V. HARRIS, 465 U.S. 37 (1984).

The Florida Supreme Court’s decision ...............0 000000 cece 6

No conflict with this Court’s Eighth Amendment jurisprudence ...... 7

No conflict with other federal or state appellate courts.............. 9

Proportionality review in capital cases...............0.0 0.0000 e eee 12

ISSUE TL... ce ect eee eee een nes 16

WHETHER THE FLORIDA SUPREME COURT ABOLISHING

PROPORTIONALITY REVIEW IN CAPITAL CASES VIOLATES THE

EQUAL PROTECTION CLAUSE.

Issue was not properly raised below................... eee eee 16

No conflict with this Court’s equal protection jurisprudence ........ 18

i

No conflict with other federal or state appellate courts.............

Equal protection and proportionality review ...................5.

ISSUE TTD. 1 0. ee ee ee eee e eee eee eees

WHETHER THE FLORIDA SUPREME COURT ABOLISHING

PROPORTIONALITY REVIEW IN CAPITAL CASES VIOLATES DUE

PROCESS OR BOUIE V. CITY OF COLUMBIA, 378 U:S. 347 (1964).

The Florida Supreme Court’s decision .................00000000-

Not outcome determinative...........0 0.0.0.0... 00. ce eee eee eee ee

No conflict with this Court’s due process jurisprudence ............

No conflict with other federal or state appellate courts.............

Bouie and procedural changes in the law........................

CONCLUSION........................... eee eee ence eee

il

TABLE OF AUTHORITIES

CASES PAGE(S)

Adams v. Robertson,

520 U.S. 83 (1997) .. 0.6 eee cee eee ce cen enes 16,17

Adarand Constructors, Inc. v. Mineta,

534 U.S. 103 (2001)... eee ee eee eee ens 16

Allen v. Woodford,

395 F.3d 979 (9th Cir. 2005)... 2... ce ce ee eens 10

Atkins v. Parker,

472 U.S. 115 (1985) 2.0 cee ee ee nee e ee neee 27

Bouie v. City of Columbia,

378 U.S. 347 (1964) 20 eee eee eens 20,22-28

Bowling v. Parker,

344 F.3d 487 (6th Cir. 2008) .. 0.2... ce ce eee eee 18

Braxton v. United Siates,

500 U.S. 344 (1991) 2. eee eee eee e eee eeee 10,18

Bush v. Singletary,

99 F.3d 373 (11th Cir. 1996)... 0... cc ee teen eee 10

Cardinale v. Louisiana,

394 U.S. 437 (1969)... cence cence eee enue 16

Clemons v. Mississippi,

A494 U.S. 7388 (1990) ... 2.0. cee eee cece een cena 9

Cleveland v. Staite,

887 So.2d 362 (Fla. 5th DCA 2004). ........... 00000 cc ee eee 17

Cobb v. Thaler,

682 F.3d 364 (5th Cir. 2012)... 0. cee eee en eee 10

Copenhefer v. Horn,

696 F.3d 377 (8d Cir. 2012)... cece ee eens 10

Cook v. State,

792 So.2d 1197 (Fla. 2001). ... 000.00 ccc ee eee eens 17

Cutter v. Wilkinson,

544 U.S. 709 (2005)... ce eee eee e ence enes 16

Doty v. State,

313 So.3d 573 (Fla. 2020)... 0.0.0 cee eee ee eee ees 22

iv

Engquist v. Oregon Dept. of Agr.,

553 U.S. 591 (2008)... ce eee eee e eee eens 19

Fisher v. Angelone,

163 F.3d 835 (4th Cir. 1998)... ce eee eens 10

Fosier v. Delo,

39 F.3d 873 (8th Cir.1994) (en banc)... 2.22. ce eee 18

Foster v. Staite,

258 So.3d 1248 (Fla. 2018)... 2... ccc eee eee eee 13

Furman v. Georgia,

408 U.S. 238 (1972) o.oo ccc cence cece ces ececuseueeuecseues 7,9

Gonzalez v. Wong,

667 F.3d 965 (9th Cir. 2011)... 0.2 eee eee 26

Gregg v. Georgia,

428 U.S. 158 (1976) .. 02 ee eee eee ees 8,9,12,19

Herb v. Pitcairn,

324 U.S. 117 (1945) 2. eee ene eee eens 22

Hojan v. State,

307 So.3d 618 (Fla. 2020)... 0... ne ee ee eee eens 22

Hooks v. Branker,

348 Fed. Appx. 854 (4th Cir. 2009)... 0. eee 10

Howell v. Mississippt,

543 U.S. 440 (2005) 20 cc cc ce ee eee een eee eens 16

Hurst v. Florida,

577 U.S. 92 (2016) . 0. cece ee nee eee e teen neee 5,9

Hurst v. State,

202 So.3d 40 (Fla. 2016)... 0... cc ee eee eee passim

Jones v. Barnes,

463 U.S. 745 (1988)... ee ee eee eee eens 12

Jurek v. Texas,

A28 U.S. 262 (1976) oo. ec ceccece ec cn cece ueencuceseutenteneesens 8

Lawrence v. McNeil,

2010 WL 2890576 (N.D. Fla. July 21, 2010).......... 0.00.00 0.0.00 cee eee 4

Lawrence v. Sec'y, Fla. Dep’t of Corr.,

700 F.3d 464 (11th Cir. 2012)... 0.0. eee ee eae 5

Lawrence v. State,

846 So.2d 440 (Fla. 2003)... 02... eee 3,4,22,23

Lawrence v. State,

969 So.2d 294 (Fla. 2007). 2.0.0... ee eee eee eee eee 3,4

Lawrence v. State,

308 So.3d 544 (Fla. 2020). 2... ee eee eee passim

Lewis v. Jeffers,

497 U.S. 764 (1990) 2... cee ce eee ee eee e eet e eee 8

Lindsey v. Smith,

820 F.2d 1137 (11th Cir. 1987)... 2.0... cc cee eee 10

McClung v. Silliman,

6 Wheat. 598, 603, 5 L.Ed. 840 (1821) .. 0... 0. ee eee 22

McCoy v. Louisiana,

138 S. Ct. 1500 (2018) we Be BeBe BeBe Fe GH HG Ewe 12

McKinney v. Arizona,

140 S.Ct. 702 (2020)... eee eee cent eee e eens 9

Maynard v. Cartwright,

A86 U.S. 356 (1988)... eee cece cece cece cucucececucuceeeas 9

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

659 Fed. Appx. 974 (11th Cir. 2016)... ........ 0.0. ccc cece cecccceceueeuee 10

Metrish v. Lancaster,

569 U.S. 351 (2018) 2... ee eee eee eee 24, 25,26

Middleton v. Roper,

498 F.3d 812 (8th Cir. 2007) .. 0... cece aae 10

Murray v. Delo,

34 F.3d 1867 (8th Cir. 1994)... cc ee eee nen eee 18

Murray v. Giarratano,

492 U.S. 1 (1989) 2... ee eee ence teen eee e eee 8

Oyola v. State,

158 So.3d 504 (Fla. 2015)... 0... eee eee eee 13

Payne v. Tennessee,

501 U.S. 808 (1991)... ene eee ene e eee 21

Preston v. State,

528 So.2d 896 (Fla. 1988)... 0.0.00. eee eee eee eee 17

al

Proffitt v. Florida,

428 U.S. 242 (1976) 2. cc ee cee eee ee eee eens 8

Pulley v. Harris,

465 U.S. 37 (1984) 2.0. ee eee ee cee eee eaee passim

Ring v. Arizona,

536 ay S. 584 (2002) Le eee ee eee eee eee eee eee eee eee beeen eens 9,27

Robertson v. State,

143 So.3d 907 (Fla. 2014)... 0. ec ce eee eee eee eee 12

Robertson v. State,

187 So.3d 1207 (Fla. 2016)... cee ee eee ees 12

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

482 U.S. 182 (1987) .. 0... eee nee eee enae 10,18

Rodgers v. State,

3 So.3d 1127 (Fla. 2009)... 2... ce eee enue 19,23

Rogers v. Tennessee,

5382 U.S. 451 (2001) .. 0 eee eects 24,25,26,27

Schriro v. Summerlin,

542 U.S. 348 (2004) .. 0. cee nee eee ees 27

Silagy v. Peters,

905 F.2d 986 (7th Cir. 1990) ... 0... eee eee eae 10

Spencer v. State,

615 So.2d 688 (Fla. 1993)... 0... ee eee eee teens 13

State v. Wood,

580 S.W.3d 566 (Mo. 2019) (en banc),

cert. denied, Wood v. Missouri, 140 S.Ct. 2670 (2020) ...........0.......0006 11

Sweet v. Delo,

125 F.3d 1144 (8th Cir. 1997)... 0.0... ee eee eee 18

Texaco, Inc. v. Short,

454 U.S, 516 (1982) 2... ce eee eee eee eens 27

Thompson v. Parker,

867 F.3d 641 (6th Cir. 2017) .. 2... ce eee eae 10

Tuilaepa v. California,

512 U.S. 967 (1994) .. ce eee cee eee cece nee 9

United States v. Aquart,

912 F.3d 1 (2d Cir. 2018)... 0.0.0.0. eee eee 10,26

vil

United States v. Jones,

132 F.3d 232 (5th Cir. 1998) .... 0. eee 10,13,14

United States v. Moore,

543 F.3d 891 (7th Cir. 2008) 0... ee eee eee en eaee 19

United States v. Williams,

504 U.S. 36 (1992)... ee eee ence eee e eee 16

Vill. of Willowbrook v. Olech,

528 U.S. 562 (2000)... eee eee e ee nee e enna 18

Walker v. Sauvinet,

92 U.S. 90 (1875) 20 cc eee ee ee ee eens 17

Wheeler v. Stmpson,

852 F.3d 509 (éth Cir. QOLT) 0. ee ee eee cee ees 18

Yacob v. State,

136 So.3d 539 (Fla. 2014)... ec eee 20,21,23-25,28

Zant v. Stephens,

462 U.S. 862 (1988) 2... ec eee eee eens 7,9

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V... 2... eee een eens 2

U.S. Const. amend. VII... 0... ee eens 2

U.S. Const. amend. XIV... 2.2... eens 2

Art. I, § 9, Fla. Const... 0.0... cc eee eee eee e ees 21

Art. I, § 17, Fla. Const... 00... ee eee eee eee 5,6,25

Art. V, § 3(b)(1), Fla. Const... 0.0.00 eee eee ee eee 21

STATUTES

18 U.S.C. § 8591... ccc cece eee e ee cectevneeeveenses 10,26

28 U.S.C. § 1257(a). oo ccc cece nce eee eeceveeeeeueeesnsectenencnss 2

28 U.S.C. § 2101)... ccc cnc cece ccc eveeeeueeuevetneenenenes 2

§ 775.082(1)(a), Fla. Stat. (2020)... 2... eee eens 27

vill

§ 782.04(1)(a), Fla. Stat. (2020)... 0... cece cece cece eee cecuseuteas 13,27

§ 921.141, Fla. Stat. (2017)... 2... ee 13,14,21,24,27

Laws of Fla., ch. 2017-1, §1 2... 00. ee eee eee 13

RULES

Fla. R. App. P. 9.142(a)() 2... ee eee eee eee eee eee 21

Fla. R. App. P. 9.880(a) . 2... ce ee ce eee eee eee 17

Sup. Ct.R.10...... 0.0.2.2 nee eee nee 7,9,18,24

Sup. Ct. R. 13.8... 00 ee eee eee e eee ene e enn eens 2

1x

IN THE

SUPREME COURT OF THE UNITED STATES

No. 20-8341

JONATHAN HUEY LAWRENCE, Petitioner,

Uv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Lawrence v. State, 308 So.3d

544 (Fla. 2020) (SC18-2061).

JURISDICTION

On October 29, 2020, the Florida Supreme Court affirmed the death sentence

following a resentencing. On November 13, 2020, Lawrence filed a motion for

rehearing. The State filed a response to the rehearing. On December 31, 2020, the

Florida Supreme Court denied the rehearing. On May 27, 2021, Lawrence filed a

petition for a writ of certiorari in this Court. The petition was timely. See Sup. Ct. R.

13.3; 28 U.S.C. § 2101(d).' Jurisdiction exists pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution, which provides:

No person shall be... deprived of life, liberty, or property, without due process

of law...

U.S. Const. amend. V.

The Eighth Amendment to the United States Constitution, which provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

U.S. Const. amend. VIII.

The Fourteenth Amendment to the United States Constitution, section one, which

provides:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

' This Court extended the deadline to timely file a petition for writ of certiorari from 90 days to

150 days due to COVID-19. See Order of March 19, 2020.

2

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

The petition seeks review of a decision from the Florida Supreme Court affirming

a death sentence following a resentencing.

Facts of the murders

On March 29, 1998, approximately six weeks before the capital murder, Lawrence

and co-perpetrator Rodgers were driving around looking to find somebody to shoot and

kill. Lawrence v. State, 846 So.2d 440, 443 n.3 (Fla. 2003). Lawrence had illegally

purchased a Lorcin .380 handgun earlier. After Lawrence pulled the truck off to a

secluded area near the Smitherman’s property, Rodgers got out with the Lorcin

handgun. Jd. at n.3. The elderly victim, Mr. Leighton Smitherman, was sitting in his

living room watching a movie with his wife and adult daughter. Rodgers shot Mr.

Smitherman in the back through a window. Rodgers returned to the truck and

Lawrence drove away. A bullet casing from the Lorcin .380 handgun was found outside

the Smitherman residence. Rodgers later used the same Lorcin .380 handgun to shoot

the teenage victim in the capital case. Id.; see also Lawrence v. State, 969 So.2d 294,

298 n.1 (Fla. 2007) (describing the prior attempted murder where Rodgers shot “an

elderly victim who was quietly sitting in his living room watching television with his

family” in the back).

On April 9, 1998, approximately four weeks before the capital murder, Lawrence,

the co-perpetrator Rodgers, and Lawrence’s cousin, Justin Livingston, were riding

around in Lawrence’s truck smoking marijuana. Lawrence, 846 So.2d at 443 n.3. After

arriving at a remote location, all three exited the truck. Both Lawrence and Rodgers

surreptitiously retrieved knives from the toolbox of the truck. Rodgers first stabbed

the victim twice in the chest area and then attempted to strangle him. While his

cousin was laying facedown, wounded and pleading for mercy, Lawrence stabbed him

in the back multiple times killing him. /d.; see also Lawrence, 969 So.2d at 298 n.1

(describing the prior murder in which Lawrence and Rodgers “murdered Lawrence’s

cousin, Justin Livingston, by stabbing him repeatedly and attempting to strangle

him”). The murder of the cousin was a federal prosecution because it occurred on

Spencer Navy Field. The prior state attempted murder conviction and the prior federal

murder conviction were used to establish the prior violent felony aggravating factor in

the capital case.

On May 7, 1998, Lawrence and co-perpetrator Rodgers murdered a teenage girl,

Jennifer Robinson, following a detailed written plan which included a plan to

dismember her. Lawrence, 969 So.2d at 442-48; Lawrence v. State, 308 So.3d 544, 546

(Fla. 2020) (describing the facts of the capital murder). Rodgers shot the 18-year-old

victim in the back of the head. Lawrence, 969 So.2d at 442. Lawrence cut off her calf

muscle to take as a trophy and tissue consistent with human tissue was recovered from

Lawrence’s freezer. Lawrence confessed and led detectives to the victim’s body. Id. at

443.

On March 24, 2000, Lawrence entered a guilty plea to first-degree murder;

conspiracy to commit first-degree murder; giving alcoholic beverages to a person under

twenty-one; and abuse of a human corpse. Lawrence, 846 So.2d at 442; Lawrence, 308

So.3d at 546.

In 2003, the Florida Supreme Court affirmed the convictions and death sentence.

Lawrence v. State, 846 So.2d 440 (Fla. 2003). The Florida Supreme Court concluded

that Lawrence’s death sentence was proportional. Id. at 452-56.

Prior proceedings

Many years of litigation followed, including state postconviction and federal habeas

review. Lawrence v. State, 969 So.2d 294 (Fla. 2007); Lawrence v. McNeil, 2010 WL

2890576 (N.D. Fla. July 21, 2010); Lawrence v. Sec'y, Fla. Dep’t of Corr., 700 F.3d 464

(11th Cir. 2012).

In 2017, Lawrence, represented by state registry counsel, filed a successive motion

for postconviction relief in the state trial court raising three claims based on Hurst v.

Florida, 577 U.S. 92 (2016) (Hurst v. Florida), and Hurst v. State, 202 So.3d 40 (Fla.

2016) (Hurst v. State). On March 27, 2017, the state trial court granted the successive

postconviction motion and ordered a new penalty phase based on Hurst v. State.

In 2018, the state trial court conducted the resentencing. Lawrence waived a

penalty phase jury and the presentation of mitigation. So, the second penalty phase

was a bench resentencing. The resentencing judge entered a written sentencing order

sentencing Lawrence to death finding two aggravating factors: 1) prior violent felony

aggravator based on a federal murder conviction for the murder of Justin Livingston

and based on a state attempted murder conviction for the attempted murder of

Leighton Smitherman and 2) the murder was committed in a cold, calculated and

premediated manner (CCP), both of which it gave great weight.

Direct appeal of resentencing

On direct appeal from the resentencing, the Florida Supreme Court affirmed the

death sentence without conducting any proportionality review. Lawrence v. State, 308

So.3d 544, 552 (Fla. 2020). The Florida Supreme Court receded from its prior

precedent requiring proportionality review based on the state constitution. Id. at 548

(citing Art. I, § 17, Fla. Const.).

On May 27, 2021, Lawrence, represented by the Public Defender of the Second

Judicial Circuit of Florida, filed a petition for a writ of certiorari in this Court.

REASONS FOR DENYING THE PETITION

ISSUE I

WHETHER THE FLORIDA SUPREME COURT ABOLISHING

PROPORTIONALITY REVIEW IN CAPITAL CASES, BASED ON THE

STATE CONSTITUTION, VIOLATES THE EIGHTH AMENDMENT OR

PULLEY V. HARRIS, 465 U.S. 37 (1984).

Petitioner Lawrence asserts that the Florida Supreme Court’s decision in this case

abolishing proportionality review in capital cases, based on the state constitution,

violates the Eighth Amendment. Pet. at 5. There is no conflict between this Court’s

Eighth Amendment jurisprudence and the Florida Supreme Court's decision in this

case holding proportionality review is prohibited by the state constitution. This Court

in Pulley v. Harris, 465 U.S. 37 (1984), held that proportionality review of capital cases

was not constitutionally required. The Florida Supreme Court’s decision in this case

explicitly and repeatedly relied on this Court’s decision in Pulley v. Harris. The

Eighth Amendment does not require proportionality review, regardless of the number

of statutory aggravating factors in Florida’s death penalty statute. This Court should

deny review of this claim.

The Florida Supreme Court’s decision

On appeal from the Hurst resentencing, Lawrence argued that his death sentence

was disproportionate compared to other Florida capital cases. The Florida Supreme

Court declined to conduct proportionality review and affirmed his sentence of death.

Lawrence, 308 So.3d at 552. The Florida Supreme Court held that proportionality

review was prohibited by the state constitution. Id. at 548-52. The Florida Supreme

Court noted that Florida’s constitution has a conformity clause requiring Florida courts

to interpret the state prohibition against cruel and unusual punishment “in conformity

with decisions of the United States Supreme Court” interpreting the Eighth

Amendment. Jd. at 548 (citing Art. I, § 17, Fla. Const.). This state constitutional

6

provision meant the Florida Supreme Court had a state “constitutional obligation” to

follow this Court’s precedent regarding proportionality review. Id. at 550. The Florida

Supreme Court explained that its prior precedent requiring proportionality review was

erroneous and “must yield to our constitution.” Jd. at 548. The Florida Supreme Court

explicitly and repeatedly relied on this Court’s decision in Pulley v. Harris. Id. at 548,

550-51.

No conflict with this Court’s Eighth Amendment jurisprudence

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

this Court’s Eighth Amendment jurisprudence. Sup. Ct. R. 10(c) (listing conflict with

this Court as a consideration in the decision to grant review). This Court in Pulley v.

Harris, 465 U.S. 37, 50-51 (1984), held that proportionality review was not required

by the Eighth Amendment. Harris was convicted of a capital crime in a California

court and was sentenced to death. Jd. at 38. In his appeals to the California Supreme

Court and his federal habeas petition, Harris argued that California’s death penalty

statute violated the Eighth Amendment because the statute did not require that the

California Supreme Court compare his death sentence with the sentences imposed in

other similar capital cases. Id. at 39-40, 40-41 & n.2.

This Court first explained the difference between its traditional proportionality

analysis, which compared the sentence to the crime, and the type of proportionality

review Harris was seeking, which compared the sentence in a particular case to the

sentence imposed on others convicted of the same crime. Harris, 465 U.S. at 42-44.

Harris relied mainly on Furman v. Georgia, 408 U.S. 238 (1972), and Zant v. Stephens,

462 U.S. 862 (1983), to support his view that the constitution mandated proportionality

review in capital cases but this Court rejected his reading of both cases. Harris, 465

U.S. at 44-50. The Harris Court discussed numerous other capital cases noted the

emphasis on those cases was on “the constitutionally necessary narrowing function of

statutory aggravating circumstances.” Id. at 50. The Harris Court explained that

proportionality review was considered to be “an additional safeguard against

arbitrarily imposed death sentences,” but “we certainly did not hold that comparative

review was constitutionally required.” Jd. This Court concluded that there was “no

basis in our cases for holding” that proportionality review by an appellate court was

required in every capital case. Id. The Harris Court observed that to hold that the

Eighth Amendment mandates proportionality review would require the Court to

“effectively overrule” Jurek v. Texas, 428 U.S. 262 (1976), and “would substantially

depart from the sense of’ both Gregg v. Georgia, 428 U.S. 153, 187 (1976), and Proffitt

v. Florida, 428 U.S. 242 (1976). Harris, 465 U.S. at 51.

This Court noted that proportionality review in capital cases was required by

“numerous state statutes.” Harris, 465 U.S. at 43 & n.7. This Court also noted that in

the states whose death penalty statute did not require proportionality review, some

states, such as Florida, the appellate court performs proportionality review despite the

absence ofa statutory requirement, while in other states, such as California and Texas,

the appellate courts did not perform proportionality review. Id. at 44. In a footnote,

the Harris majority discussed the Florida Supreme Court’s proportionality review. Id.

at 46 n.8. This Court stated that, while some states provide proportionality review,

that “does not mean that such review is indispensable.” Id. at 45. See also Murray v.

Giarratano, 492 U.S. 1, 9 (1989); Lewis v. Jeffers, 497 U.S. 764, 779 (1990).

There is no conflict between this Court’s decision in Pulley v. Harris and the

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

repeatedly relied on Pulley v. Harris in its opinion in this case. Lawrence, 308 So.3d at

548, 550, 551.

Lawrence relies heavily upon Maynard v. Cartwright, 486 U.S. 356 (1988). Pet. at

10. But Maynard was a due process vagueness challenge to Oklahoma’s heinous,

atrocious, and cruel aggravating factor (HAC), not an Eighth Amendment

proportionality review case. Maynard certainly did not overrule Pulley v. Harris.

Indeed, the Maynard Court did not even cite Pulley v. Harris.

Furthermore, while Lawrence insists that Furman and Maynard establish the

principle that aggravating factors are “not enough, by itself, to warrant imposition of

the death penalty,” there is no such principle. Pet. at 11. In McKinney v. Arizona, 140

S.Ct. 702 (2020), this Court reaffirmed Clemons v. Mississippi, 494 U.S. 738 (1990).

McKinney argued that under Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v.

Florida, 577 U.S. 92 (2016), the jury was required to weigh the aggravation against the

mitigation. The McKinney Court rejected that argument explaining that the Sixth

Amendment only requires that the jury in a capital case find the one aggravator that

makes the defendant eligible for the death penalty, not that the jury perform the

weighing. Id. at 707. This Court stated that “a defendant convicted of murder is

eligible for a death sentence if at least one aggravating circumstance is found.” Id. at

705-06 (citing Tuilaepa v. California, 512 U.S. 967 (1994), Zant v. Stephens, 462 U.S.

862 (1983), and Gregg v. Georgia, 428 U.S. 153 (1976)). So, under the reasoning of

McKinney, an aggravating factor, by itself, is enough to warrant a death sentence.

There is no conflict between this Court’s Eighth Amendment jurisprudence and the

Florida Supreme Court’s decision in this case.

No conflict with other federal or state appellate courts

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

that of any federal appellate court or state court of last resort. Sup. Ct. R. 10(b) (listing

conflict among federal appellate courts and state supreme courts as a consideration in

the decision to grant review). As this Court has observed, a principal purpose for

certiorari jurisdiction “is to resolve conflicts among the United States courts of appeals

and state courts concerning the meaning of provisions of federal law.” Braxton v.

United States, 500 U.S. 344, 347 (1991). Issues that have not divided the courts or are

not important questions of federal law do not merit this Court’s. attention. Rockford

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

such conflict, certiorari is rarely warranted.

The federal circuit courts of appeals have rejected similar attacks on the Federal

Death Penalty Act (““FDPA”), which does not provide for proportionality review either.

18 U.S.C. § 3591; United States v. Aquart, 912 F.3d 1, 51-53 (2d Cir. 2018) (citing cases

from six other circuits); United States v. Jones, 132 F.3d 232, 240 (5th Cir. 1998)

(rejecting a constitutional attack on the FDPA based on a combination of lack of

proportionality and the prosecution being allowed to use and define nonstatutory

aggravation and concluding that the FDPA is not so lacking in other checks on

arbitrariness that it fails to pass constitutional muster for lack of proportionality

review).

Furthermore, the federal circuit courts recognize that proportionality review is not

constitutionally required and do not conduct any such review in § 2254 federal habeas

cases.”

Nor is there any conflict between the Florida Supreme Court’s decision in this case

and other state supreme courts. While many state supreme courts perform

proportionality review in capital cases, they do so as a matter of state law. Often,

2 Copenhefer v. Horn, 696 F.3d 377, 392 & n.5 (3d Cir. 2012); Hooks v. Branker, 348 Fed. Appx.

854, 864 (4th Cir. 2009); Fisher v. Angelone, 163 F.3d 835, 854-55 (4th Cir. 1998); Cobb v. Thaler, 682

F.3d 364, 381 (5th Cir. 2012); Thompson v. Parker, 867 F.3d 641, 653 (6th Cir. 2017); Silagy v. Peters,

905 F.2d 986, 1000 (7th Cir. 1990); Middleton v. Roper, 498 F.3d 812, 821 (8th Cir. 2007); Allen v.

Woodford, 395 F.3d 979, 1018 (9th Cir. 2005); Mendoza v. Sec’y, Fla. Dep’t of Corr., 659 Fed. Appx. 974,

981 & n.3 (11th Cir. 2016); Bush v. Singletary, 99 F.3d 373, 375 (11th Cir. 1996); Lindsey v. Smith, 820

F.2d 1137, 1154 (11th Cir. 1987).

10

proportionality review is explicitly mandated by the particular state’s death penalty

statute. Lawrence, 308 So.3d at 556 (Labarga, J., dissenting) (noting fourteen states

have death penalty statutes that require proportionality review in capital cases). For

example, Missouri's death penalty statute explicitly provides that the state supreme

court should determine whether “the sentence of death is excessive or disproportionate

to the penalty imposed in similar cases, considering both the crime, the strength of the

evidence and the defendant.” State v. Wood, 580 S.W.3d 566, 590 (Mo. 2019) (en banc)

(quoting Missouri’s statute, § 565.035.3(8)), cert. denied, Wood v. Missouri, 140 S.Ct.

2670 (2020). But Florida’s death penalty statute does not contain any equivalent

language. Lawrence, 308 So.3d at 549 (noting proportionality review is “not referenced

anywhere” in the text of Florida’s death penalty statute). That a state supreme court

performs proportionality review, as required by their respective state’s death penalty

statute, does not create conflict with a state supreme court that refuses to perform

proportionality review because the state’s constitution has a conformity clause. In both

situations, these state supreme courts are simply following their respective state laws.

There is no conflict between the Florida Supreme Court’s decision in this case and that

of any other state court of last resort.

The petition does not cite any federal circuit court or state court of last resort

holding that the Eighth Amendment requires proportionality review in capital cases

for the obvious reason that this Court held otherwise in Pulley v. Harris. There is no

conflict between the Florida Supreme Court’s decision abolishing proportionality

review and that of any federal circuit court of appeals or that of any state court of last

resort. Because there is no conflict among the lower appellate courts, review should

be denied.This Court should deny review of this claim.*

3 There is a threshold issue in this case that applies to the entire petition. As the Florida

Supreme Court noted, before the resentencing, Lawrence explained to the trial court that he did not

want a Hurst resentencing and that he had been trying for years to get his attorneys to drop all appeals

11

Proportionality review in capital cases

Lawrence is not actually asserting in his petition that this Court should recede

from Pulley v. Harris. Rather, his assertion is that when a state has a “myriad” of

aggravating factors in its death penalty statute, those particular states are required

to have proportionality review as an additional safeguard against arbitrariness. Pet.

at 11-12. He claims that the Eighth Amendment requires “some other check” on

arbitrariness, such as proportionality review, in those states that fall into the category

of having “too many” aggravators including Florida.

But this Court has explained that a death penalty statute that limits the number

of death-eligible crimes, requires bifurcated proceedings, demands proof of at least one

aggravating factor, gives the jury broad discretion to consider mitigating

circumstances, and provides the jury with standards to guide its use of aggravating

and mitigating information, is sufficient to minimize “the risk of wholly arbitrary,

capricious, or freakish” death sentences. Harris, 465 U.S. at 45 (discussing Gregg, 428

U.S. at 197-98). Florida’s death penalty system does all those things and more.

but his attorneys refused to do so. Lawrence, 308 So.3d at 547 (reproducing Lawrence’s handwritten

letter to the trial court). The Florida Supreme Court has a standard policy requiring a direct appeal in

all capital cases regardless of the defendant’s wishes and, based on that policy, there was a mandatory

direct appeal of the resentencing in this case. Robertson v. State, 148 So.3d 907 (Fla. 2014); id. at 911

(Pariente, J., concurring); see also Robertson v. State, 187 So.38d 1207, 1209 & 1218 (Fla. 2016) (noting

the defendant wished to forgo a direct appeal but conducting full appellate review regardless of his

wishes, including proportionality review of the death sentence). But this Court has held that the

decision to forgo an appeal is personal to the defendant. McCoy v. Louisiana, 138 §.Ct. 1500, 1508 (2018)

(explaining that some decisions are reserved for the client including the right to forgo an appeal citing

Jones v. Barnes, 463 U.S. 745, 751 (1983)). Indeed, this Court has stated that, even if the Eighth

Amendment required proportionality review, it would only be required if the defendant requested such

review. Pulley v. Harris, 465 U.S. 37, 43-44 (1984) (stating that the question in the case was whether

the Eighth Amendment requires “a state appellate court, before it affirms a death sentence, to compare

the sentence in the case before it with the penalties imposed in similar cases if requested to do so by the

prisoner’) (emphasis added); id. at 50-51 (stating that there was no basis in this Court's cases for holding

that proportionality review was required in every case in which the death penalty is imposed and “the

defendant requests it”) (emphasis added). This Court should not grant a writ against a petitioner’s

personal wishes.

12

Florida limits the death penalty as a possible penalty to first-degree murder which

encompasses both premeditated murder and felony murder, but the murder statute

limits the underlying felonies for felony murder to 19 enumerated felonies. §

782.04(1)(a), Fla. Stat. (2020); Foster v. State, 258 So.3d 1248, 1252 (Fla. 2018)

(explaining capital murder in Florida). Florida, by caselaw, has trifurcated

proceedings, not merely bifurcated proceedings. Florida has a guilt phase and a

penalty phase in front of the jury as is typical of capital trials but then Florida has

another bench penalty phase where the defendant can present sensitive mitigation,

such as illegal drug abuse, to the judge alone. Spencer v. State, 615 So.2d 688 (Fla.

1993). Most importantly and unlike many other state’s death penalty statutes,

Florida’s new death penalty statute isjury sentencing plus judge sentencing. § 921.141,

Fla. Stat. (2017); Laws of Fla., ch. 2017-1, § 1, eff. March 13, 2017. Under the new

death penalty statute, amended by the Florida Legislature in the wake of Hurst, a

Florida capital jury must find each aggravating factor unanimously. § 921.141(2)(b),

Fla. Stat. (2017). The judge is bound by the jury’s findings regarding the aggravating

factors. § 921.141(8)(a)1, Fla. Stat. (2017) (“The court may consider only an

aggravating factor that was unanimously found to exist by the jury.”). If the jury does

not “unanimously find at least one aggravating factor, the defendant is ineligible for

a sentence of death.” § 921.141(2)(b)1, Fla. Stat. (2017). And under Florida caselaw,

the prosecution is limited to statutory aggravating factors and may not present

nonstatutory aggravating factors. Oyola v. State, 158 So.3d 504, 509-10, 513 (Fla. 2015)

(reversing because the trial court improperly relied on nonstatutory aggravation which

“cannot be harmless” under Florida law and remanding for a new penalty phase).*

* The FDPA allows the prosecution to present nonstatutory aggravating factors, unlike Florida’s

scheme. United States v. Jones, 132 F.3d 232, 240 (5th Cir. 1998) (rejecting a constitutional attack on

the FDPA based on a combination of lack of proportionality and the prosecution being allowed to use and

define nonstatutory aggravation and concluding that the FDPA is not so lacking in other checks on

arbitrariness that it fails to pass constitutional muster for lack of proportionality review). In effect, the

13

But there is no limit on the type of mitigating circumstances that a defendant may

present under the “catch-all” statutory mitigating circumstance. § 921.141(7)(h), Fla.

Stat. (2017) (‘the existence of any other factors in the defendant's background that

would mitigate against imposition of the death penalty”). The jury then finds

mitigating circumstances and whether the aggravation “outweighs” the mitigation

before making a sentencing recommendation to the judge. § 921.141(2)(b)2, Fla. Stat.

(2017). Under the current statute, the jury’s findings regarding the aggravation is

binding on the trial court but the jury’s findings regarding mitigation is not. A jury

can reject all the mitigation but the trial court is free to disagree with the jury’s

assessment and find mitigation that was rejected by the jury. Additionally, any death

recommendation from the jury must be unanimous. § 921.141(2)(c), Fla. Stat. (2017).

A Florida jury’s recommendation of a life sentence is binding on the judge but the jury’s

recommendation of a death sentence is not. § 921.141(8)(a)1, Fla. Stat. (2017) (stating

that if the jury recommends a life sentence, “the court shall impose the recommended

sentence”). A Florida trial judge is free to disagree with the jury’s death

recommendation and impose a life sentence. The jury has the last word on a life

sentence but not on a death sentence. As is clear from this description, Florida’s death

penalty statute has better safeguards against arbitrariness than proportionality

review. United States v. Jones, 132 F.3d 232, 240 (5th Cir. 1998) (upholding the

constitutionality of the FDPA regarding proportionality review on similar grounds).

Under Florida’s new death penalty statute, a Florida capital defendant gets a

second bite at the life apple from the judge. A Florida judge is free to disagree with the

jury provided it benefits the defendant. A Florida capital defendant gets all the

benefits of either actor’s findings in his favor. Florida’s statute is a one-way street in

FDPA allow a limitless number of aggravators and certainly far more than Florida’s 16 statutory

aggravators. Under Lawrence’s reasoning, the FDPA would also be required to have proportionality

review to comply with the Eighth Amendment.

14

the defendant's favor. It is hard to see how such a statute could possibly violate the

Eighth Amendment, regardless of how the Eighth Amendment is interpreted.

Given this Court’s clear directive that proportionality review of capital cases is not

required by the Eighth Amendment, there is no basis for granting certiorari review of

this issue.

15

ISSUE II

WHETHER THE FLORIDA SUPREME COURT ABOLISHING

PROPORTIONALITY REVIEW IN CAPITAL CASES VIOLATES THE

EQUAL PROTECTION CLAUSE.

Petitioner Lawrence asserts that the Equal Protection Clause mandates

proportionality review in capital cases. Pet. at 20. Lawrence, however, did not timely

raise the equal protection claim in the Florida Supreme Court. Additionally, there is

no conflict between this Court’s equal protection jurisprudence and the Florida

Supreme Court’s decision in this case. Nor is there any conflict with any federal or

state appellate court. Lawrence cannot establish an equal protection violation because

the person most similarly situated to him is his co-perpetrator, Rodgers, who also

received a death sentence. Lawrence is not being treated differently. The Florida

Supreme Court abolishing proportionality review does not violate equal protection.

Issue was not properly raised below

This Court does not grant review of questions raised for the first time in this Court.

This Court refuses to entertain issues that were not properly presented to the state

supreme court. Adams v. Robertson, 520 U.S. 83, 88 (1997) (dismissing the writ as

improvidently granted where the issue was not raised with “fair precision and in due

time”). This Court is “a court of final review and not first view.” Adarand Constructors,

Inc. v. Mineta, 534 U.S. 103, 110 (2001); Cutter v. Wilkinson, 544 U.S. 709, 718 n.7

(2005). This Court’s traditional rule precludes a grant of certiorari when the question

raised in the petition was either not presented to the lower court or was not ruled upon

by the lower court. United States v. Williams, 504 U.S. 36, 41 (1992) (discussing the

concept of “not pressed or passed upon below”); Howell v. Mississippi, 543 U.S. 440, 441

(2005) (dismissing the writ of certiorari as improvidently granted where the issue was

not raised as a federal constitutional issue); Cardinale v. Louisiana, 394 U.S. 437, 438

16

(1969) (dismissing the writ of certiorari as improvidently granted where the issue was

not raised, preserved, or passed upon in the state courts below); Walker v. Sauvinet, 92

U.S. 90, 93 (1875).

The issue of equal protection and proportionality review was not properly raised

below. Lawrence did not raise a claim that the Equal Protection Clause requires

proportionality review in capital cases in his initial brief to the Florida Supreme Court.

Nor did he make such an argument in the reply brief, even though the State had

advocated that the Florida Supreme Court abolish proportionality review in its answer

brief. Instead, the equal protection challenge to the death sentence was raised for the

first time in the motion for rehearing. Rehearing at 16. But parties may not raise a

new issue for the first time in a motion for rehearing in Florida’s appellate courts. Fla.

R. App. P. 9.8380(a)(2)(A) (providing that a motion for rehearing “shall not present

issues not previously raised”); Cleveland v. State, 887 So.2d 362, 364 (Fla. 5th DCA

2004) (observing that it is a “rather fundamental principal of appellate practice and

procedure that matters not argued in the briefs may not be raised for the first time on

a motion for rehearing”). The Florida Supreme Court, like most appellate courts, does

not consider issues that were not raised until rehearing. Cook v. State, 792 So.2d 1197,

12038 (Fla. 2001) (refusing to consider an issue raised for the first time in a motion for

rehearing citing Preston v. State, 528 So.2d 896 (Fla. 1988)).

The equal protection claim was not presented to the Florida Supreme Court in due

time, as required by Adams. And, because the issue was not properly raised, the

Florida Supreme Court did not address the issue of whether equal protection requires

proportionality review in capital cases in its opinion.

17

No conflict with this Court’s equal protection jurisprudence

There is no conflict between the this Court’s equal protection jurisprudence and the

Florida Supreme Court’s decision in this case. Sup. Ct. R. 10(c). This is not a valid

equal protection claim. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (noting

that class-of-one equal protection claim is cognizable where an individual alleges that

he has been intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment). There is no conflict with this

Court’s views.

No conflict with other federal or state appellate courts

There also is no conflict with any federal appellate court or state court of last

resort. Sup. Ct. R. 10(b); Braxton, 500 U.S. at 347; Rockford Life Ins. Co., 482 U.S. at

184 n.3. The federal appellate court have rejected arguments that the Equal

Protection Clause requires proportionality review. Sweet v. Delo, 125 F.3d 1144, 1159

(8th Cir. 1997) (rejecting due process and equal protection challenges to proportionality

review citing Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994) (en banc), and Murray v.

Delo, 34 F.3d 1367, 1377 (8th Cir. 1994)); see also Wheeler v. Simpson, 852 F.3d 509,

520-21 (6th Cir. 2017) (rejecting a due process challenge to proportionality review

citing Bowling v. Parker, 344 F.3d 487 (6th Cir. 2003)). The petition does not cite any

case from any federal circuit court or any state court of last resort holding that the

Equal Protection Clause requires proportionality review. There is no conflict among

the lower appellate courts.

Equal protection and proportionality review

Lawrence cannot meet the first step of any equal protection analysis which is to

establish that he is being treated differently. When an individual is being singled out

(18

by the government, the Equal Protection Clause requires a rational basis for the

difference in treatment. Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 602 (2008).

But Lawrence was not singled out. Equal protection requires that Lawrence show that

he was treated differently from other similarly situated capital defendants. And to be

considered similarly situated, he and his co-conspirators must be identical in all

relevant and material respects. United States v. Moore, 548 F.3d 891, 896 (7th Cir.

2008). The most similarly situated capital defendant to Lawrence on Florida’s death

row is the co-perpetrator, Rodgers. But Rodgers was also sentenced to death.

Lawrence, 308 So.3d at 546 (detailing the facts of murder and noting that codefendant

Rodgers “was also convicted of first-degree murder and sentenced to death”). The

Florida Supreme Court, as part of its proportionality review in Rodgers’ case, noted

that the most similar case was Lawrence’s case. Rodgers v. State, 3 So.3d 1127, 1134

(Fla. 2009). Both Lawrence and Rodgers received death sentences. There is no

possible equal protection violation on such facts.

Regarding Florida’s death penalty statute, the safeguards in the statute are more

than sufficient to minimize “the risk of wholly arbitrary, capricious, or freakish” death

sentences. Harris, 465 U.S. at 45 (discussing Gregg, 428 U.S. at 197-98). The State

again notes that Florida has jury sentencing plus judge sentencing. There is a

perfectly rational basis in Florida’s death penalty statute for determining which

defendants warrant the death sentences and which defendants do not. Florida’s death

penalty statute, which does not require proportionality review, does not violate the

Equal Protection Clause.

Because the petition presents an issue that was not properly presented to the

Florida Supreme Court, which does not involve any conflict among the courts, and is

meritless, review should be denied.

19

ISSUE III

WHETHER THE FLORIDA SUPREME COURT ABOLISHING

PROPORTIONALITY REVIEW IN CAPITAL CASES VIOLATES DUE

PROCESS OR BOUIE V. CITY OF COLUMBIA, 378 U.S. 347 (1964).

Petitioner Lawrence asserts the Florida Supreme Court receding from its prior

precedent violates the federal due process clause citing Boute v. City of Columbia, 378

U.S. 347 (1964). Pet. at 16. In this case, the Florida Supreme Court receded from its

prior decision in Yacob v. State, 136 So.3d 539, 546-49 (Fla. 2014), which required

proportionality review. But the Bouie challenge is not outcome determinative of the

sentence because Lawrence’s death sentence would have been found to be proportional

if the Florida Supreme Court had performed its traditional proportionality review in

the second appeal, just as it had done in the first appeal. There is no conflict between

this Court’s due process jurisprudence or any conflict with the lower appellate courts.

A state court receding from its prior precedent and joining this Court’s view of a matter

cannot be said to be unexpected or indefensible, as required to establish a Bouie

violation. It is hardly indefensible for a state supreme court to follow this Court’s

precedent or the state’s constitution. Additionally, Bouie claims are limited to

substantive changes in the law that result in a lack of fair warning but the change in

the law at issue here involves a procedural change regarding appellate review of death

sentences. Lawrence did not lack notice. The Florida Supreme Court receding from

Yacob does not violate Bouie. Review should be denied.

The Florida Supreme Court’s decision

The Florida Supreme Court receded from its prior decision in Yacob v. State, 136

So.3d 539, 546-49 (Fla. 2014), which required proportionality review. Lawrence, 308

So.3d at 552 (stating: “we recede from Yacob’s requirement to review death sentences

for comparative proportionality and thus eliminate comparative proportionality review

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