Reply Brief — Joe Elton Nixon, Petitioner v. Florida

No. 21-1173

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOE ELTON NIXON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Florida

---------------------------------♦--------------------------------REPLY BRIEF FOR PETITIONER

---------------------------------♦--------------------------------ERIC M. FREEDMAN

Counsel of Record

Siggi B. Wilzig Distinguished

Professor of

Constitutional Rights

HOFSTRA UNIVERSITY

SCHOOL OF LAW

250 West 94th Street

New York, NY 10025

Eric.M.Freedman@hofstra.edu

Tel. 212-665-2713

MOE KESHAVARZI

DAVID POELL

SHEPPARD, MULLIN, RICHTER

& HAMPTON LLP

333 South Hope Street

Los Angeles, CA 90071

RANDY HERTZ

Vice Dean & Professor

of Clinical Law

NEW YORK UNIVERSITY

SCHOOL OF LAW

245 Sullivan Street

New York, NY 10012

JAMES S. LIEBMAN

Simon H. Rifkind

Professor of Law

COLUMBIA LAW SCHOOL

35 West 116th Street

New York, NY 10027

Counsel for Petitioner

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

i

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

ii

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

1

ARGUMENT ...........................................................

2

I.

II.

The Court Should Review the First Question Presented............................................

2

A. A Decision That Hall Did Not Announce a New Rule Will Benefit the

National Justice System ......................

2

B. The Question Should be Answered in

This Case .............................................

5

1. This Case Offers an Appropriate

Vehicle for the Restatement of Basic

Criminal Justice Principles .............

5

2. This Case is Free of Procedural Entanglements ....................................

6

The Court Should Review the Second

Question Presented ...................................

8

A. Florida’s Burden of Proof is Unique ....

8

B. Florida’s Standard is Dangerously Unconstitutional .......................................

8

1. Florida’s Standard Violates Due

Process ............................................

9

2. Florida’s Standard Violates the

Eighth Amendment ........................

9

CONCLUSION..................................................... 11

ii

TABLE OF AUTHORITIES

Page

CASES

Atkins v. Virginia, 536 U.S. 304 (2002)................. 2, 3, 4

Caldwell v. Mississippi, 472 U.S. 320 (1985) ...............7

Chaidez v. United States, 568 U.S. 342 (2013) ......... 2, 3

Cherry v. State, 959 So. 2d 702 (Fla. 2007) ..................5

Chapman v. California, 386 U.S. 18 (1967)..................9

Desist v. United States, 394 U.S. 244 (1969) ................3

Ford v. Wainwright, 477 U.S. 399 (1986) ....................10

Francis v. Franklin, 471 U.S. 307 (1985) ......................2

Godfrey v. Georgia, 446 U.S. 420 (1980) .......................9

Hall v. Florida, 572 U.S. 701 (2014) ..... 1, 2, 3, 4, 5, 6, 7

Hill v. Humphrey, 662 F.2d 1335 (11th Cir.

2011) ..................................................................... 10

Kansas v. Marsh, 548 U.S. 163 (2006) ..........................7

Mackey v. United States, 401 U.S. 667 (1971) ..............3

Michigan v. Long, 463 U.S. 1032 (1983) .......................7

Nixon v. Florida, 327 So. 3d 780 (Fla. 2021) ................6

Phillips v. State, 299 So. 3d 1013 (Fla. 2020) ........... 5, 6

Sandstrom v. Montana, 442 U.S. 510 (1979) ................2

Stringer v. Black, 503 U.S. 222 (1992) ..........................4

Teague v. Lane, 489 U.S. 288 (1989) ............. 1, 2, 3, 4, 5

Yates v. Aiken, 484 U.S. 211 (1988) ...............................2

iii

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII .......................................... 9, 10

STATUTES

Antiterrorism and Effective Death Penalty Act

(AEDPA) .............................................................. 8, 10

OTHER AUTHORITIES

2 Randy Hertz & James S. Liebman, FEDERAL

HABEAS CORPUS PRACTICE AND PROCEDURE § 25.5 (7th ed. 2019) .................................4

1

REPLY BRIEF FOR PETITIONER

Joe Nixon has been on death row since 1985. He

should have left it long ago. As the opposition brief

agrees, his 2006 claim of intellectual disability was rejected on a basis that he correctly contended violated

the Constitution, as this Court later held. (Opp. 4). But

Florida has not given Mr. Nixon the benefit of the correct rule. (Pet. 22).

Respondent insists that the Florida Supreme

Court acted constitutionally in refusing to do so below.

According to the opposition brief, in correcting that

court’s error in Hall v. Florida, 572 U.S. 701 (2014), this

Court stated a new rule within the meaning of Teague

v. Lane, 489 U.S. 288 (1989). (Opp. 8-11).

The parties agree that this case squarely presents

the question of whether that contention is accurate.

But they sharply disagree on the answer. The Court

should provide one. The outcome below is wrong and

respondent defends it by advancing a definition of

“new” that undermines Teague’s allocation of constitutional review responsibilities between this Court and

lower ones.

On the second question presented, the petition accurately sets forth that Florida is unique among current death penalty States in imposing a “clear and

convincing” burden of proof on capital prisoners asserting intellectual disability at trial. (A207-09). The court

below simply ignored petitioner’s direct constitutional

attack on its rule. (See Pet. 26). Contrary to the opposition brief (Opp. 16-17), that indifference is not a good

2

reason for the Court to delay invalidating a lingering

anachronism that poses a continuing threat to accurate judicial determinations.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Court Should Review the First Question Presented

A. A Decision That Hall Did Not Announce

a New Rule Will Benefit the National

Justice System

As the Florida Supreme Court has correctly recognized (Pet. 15-16), Hall simply determined that the

general rule of Atkins v. Virginia, 536 U.S. 304 (2002),

applied to a specific set of facts. Such decisions, the petition explains at length, do not announce new rules for

Teague purposes (Pet. 14-19), citing Chaidez v. United

States, 568 U.S. 342, 347-48 (2013). See, e.g., Yates v.

Aiken, 484 U.S. 211, 216-17 (1988) (unanimously concluding that Francis v. Franklin, 471 U.S. 307 (1985),

did not announce a new rule, but was “merely an application of the principle that governed our decision in

Sandstrom v. Montana, [442 U.S. 510 (1979),] which

had been decided before petitioner’s trial took place”).

The Chaidez principle is “firmly established.” (Pet.

14). In Teague, the Court after an extended discussion,

489 U.S. at 303-10, determined that it would “adopt

Justice Harlan’s view of retroactivity,” id. at 310. And

Justice Harlan repeatedly made clear that to classify a

particular decision as non-retroactive a court must

3

first decide whether it has “really announced a ‘new’

rule at all, or whether it has simply applied a wellestablished constitutional principle to govern a case

which is closely analogous to those which have been

previously considered in the prior case law.” Desist v.

United States, 394 U.S. 244, 263 (1969) (Harlan, J., dissenting); Mackey v. United States, 401 U.S. 667, 695

(1971) (Harlan, J., concurring and dissenting) (quoting

this passage).

The opposition brief simply ignores the petition’s

demonstration that “Atkins and Hall [fit] squarely into

the Chaidez framework.” (Pet. 16).

Instead, respondent asserts that the rule of Hall

was not “dictated” by Atkins and therefore was new for

Teague purposes. (Opp. 9).

This assertion is wrong for two independent reasons.

The narrow one is that respondent’s position is

flatly inconsistent with what this Court wrote in Hall.

“The clinical definitions of intellectual disability, which

take into account that IQ scores represent a range, not

a fixed number, were a fundamental premise of Atkins.

And those clinical definitions have long included the

SEM.” Hall, 572 U.S. at 720. As the petition outlines

(Pet. 16-17) and the amicus brief of the National Disability Rights Network et al. details (Am. 4-10), the

Court was entirely correct on this point. Hence, the

question Hall addressed was “how intellectual disability must be defined in order to implement . . . the holding of Atkins.” Hall, 572 U.S. at 709. The Court was

4

correcting a misconstruction of Atkins, not mandating

an expansion of it. Hall, 572 U.S. at 724.

As the petition correctly states, the Eleventh Circuit is “unique” in holding that Hall is “new” under

Teague. (Pet. 20). Petitioner does not say that courts

nationally have decided the issue wrongly. He says

that the Eleventh Circuit has done so (Pet. 19-20) and

that the Florida Supreme Court has “add[ed] an error

of its own [by refusing] to even address the question.”

(Pet. 21).

The broader problem with respondent’s position is

that its formulaic definition of “new” is at odds with the

root purposes of retroactivity doctrine. As both this

Court and scholars are well aware, in a common law

system a judge wishing to distinguish a prior case can

almost always find a basis for doing so. See 2 Randy

Hertz & James S. Liebman, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 25.5, at 1410

(7th ed. 2019). But a well-constructed postconviction

system that includes a non-retroactivity feature will be

designed so as to give the lower courts an incentive to

enforce constitutional rights, not constrict them.

Hence, to decide whether a particular rule is new

for Teague purposes this Court asks whether a reasonable judge at the relevant time, fairly surveying the existing legal landscape, would have applied the rule. Id.

at 1411. That is exactly how the Court explained the

meaning of the term “dictated” in Stringer v. Black, 503

U.S. 222, 237 (1992):

The purpose of the new rule doctrine is to validate reasonable interpretations of existing

5

precedents. Reasonableness, in this as in

many other contexts, is an objective standard,

and the ultimate decision whether Clemons

was dictated by precedent is based on an objective reading of the relevant cases.

The opposition brief never addresses what the petition says at the outset. “The most fundamental vice

of the decision below is not that it is wrong, although

it certainly is, but that the incentive structure it creates is inimical to the sound administration of the national judicial system.” (Pet. 13).

B. The Question Should be Answered in

This Case

1. This Case Offers an Appropriate Vehicle for the Restatement of Basic

Criminal Justice Principles

When the Florida Supreme Court decided in Phillips v. State, 299 So. 3d 1013, 1022 (Fla. 2020), that

Teague did not require retroactive application of Hall

it conducted no analysis of whether the Hall rule was

new under federal criteria. Nor did that court conduct

such an analysis in this case, which simply cited to

Phillips. (Pet. 14).1

An opinion that not only reaches the wrong result

under Teague but fails to address the predicate question of whether the rule under consideration is even

1

The best that respondent can come up with now is that Hall

must certainly have been news to the Florida Supreme Court because it had previously ruled the other way. (Opp. 11, citing

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

6

new is “a particularly appropriate vehicle for review”

(Pet. 21) because it gives the Court an appropriate occasion to reiterate the principles discussed above.

2. This Case is Free of Procedural Entanglements

Respondent’s case-specific arguments for the denial of review on state law grounds (Opp. 14-15) are

unavailable to it here. If so advised, it may seek to assert them on remand after the Court rules in petitioner’s favor on the merits.

The opposition brief confidently asserts that “even

if petitioner’s retroactivity theory were correct, he

could not receive any relief in this Florida postconviction proceeding.” (Opp. 14). Below, Mr. Nixon argued to

the Florida Supreme Court that its state law precedents militated in favor of granting him relief. (e.g.,

A52-53). That court did not rule on the point but instead explicitly refused to consider any merits issues

because “[u]nder Phillips . . . Hall does not apply retroactively.” Nixon v. Florida, 327 So. 3d 780, 783 (Fla.

2021).

A suggested state law ground upon which the decision of a State’s highest court could have rested, but

did not, is not a legal bar to review on the merits and

the Court has rejected it as a reason to deny certiorari.

“The mere existence of a basis for a state procedural

bar does not deprive this Court of jurisdiction; the

state court must actually have relied on the procedural

bar as an independent basis for its disposition of the

7

case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985).

See Kansas v. Marsh, 548 U.S. 163, 169 (2006). See also

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). In

both Caldwell and Marsh, as here, respondent called

the claimed state law ground to the attention of the

Court in opposing certiorari. In both cases, certiorari

was granted.

The opposition brief next claims that “[e]ven if

Hall were retroactive, petitioner still could not establish intellectual disability.” (Opp. 14). The basis of this

assertion (Opp. 15) is the very opinion of the state trial

court that Mr. Nixon attacked at length (A11-53) when

he unsuccessfully sought to obtain merits review from

the Florida Supreme Court. The trial court’s legal

propositions that the existence in the record of an IQ

score of 80 removes a case from the ambit of Hall and

that intellectual disability can only be diagnosed if it

was found by testing conducted before the age of 18 are

wrong. (A47-51). Its belief that the record lacks evidence showing Mr. Nixon’s subaverage intellectual development during childhood is also wrong. (See A17-45;

Pet. 9 n.4).

Petitioner’s problem in making good his claim of

intellectual disability is not that the evidence doesn’t

exist. The obstacles he confronts are that (1) the state

trial court, thoroughly misunderstanding Hall, ignored the evidence and (2) the Florida Supreme Court,

wrongly concluding that Hall was inapplicable, refused to review the trial court’s work.

8

This Court should remove the second obstacle, enabling Mr. Nixon to obtain on remand the legally sound

adjudication of his intellectual disability claim that

Florida has long denied him.

II.

The Court Should Review the Second

Question Presented

A. Florida’s Burden of Proof is Unique

The petition accurately sets forth that Florida is

unique among current death penalty States in imposing a “clear and convincing” burden of proof on capital

prisoners asserting intellectual disability at trial.

(A207-09).2

B. Florida’s Standard is Dangerously Unconstitutional

As the petition recounts (Pet. 26), Mr. Nixon’s brief

below attacked Florida’s standard but the Florida Supreme Court ignored him. Respondent seeks to benefit

from that neglect, asserting it as a reason to deny review. (Opp. 16). In light of Florida’s uniquely errorprone death penalty system (Pet. 24), the Court should

reject that argument.

2

The canvass in the opposition brief (Opp. 17) is outdated

(e.g., in its inclusion of Colorado and in the Arizona authority

cited) and includes citations to procedural postures (e.g., AEDPA

review) not at issue here.

9

1. Florida’s

Process

Standard

Violates

Due

Contrary to the argument of the opposition brief

(Opp. 18-20), this is not a case in which the Court is

called upon to trace the boundaries of some substantive right derived from the history and traditions of our

people. This is a case in which the substantive right –

not to be executed if intellectually disabled – is wellestablished and the issue before the Court is whether

the State’s adjudicative procedures are sufficient to

safeguard it. (Pet. 23). See Chapman v. California, 386

U.S. 18, 21 (1967). Florida’s unique procedural rule is

inadequate to provide reasonable confidence that its

determination of the constitutional issue will be correct. (Pet. 23).

2. Florida’s Standard

Eighth Amendment

Violates

the

The bedrock Eighth Amendment principle by

which all state rules of law governing capital punishment are judged is that they must distinguish among

cases in such a way as to serve the purpose of ensuring

that the death penalty is predictably inflicted only on

the most morally culpable criminals. See Godfrey v.

Georgia, 446 U.S. 420, 428 (1980) (“[I]f a State wishes

to authorize capital punishment it has a constitutional

responsibility to tailor and apply its law in a manner

that avoids the arbitrary and capricious infliction of

the death penalty.”). A State rule that “will frequently

and predictably cause a factfinder to determine that an

individual who in fact is intellectually disabled is not”

10

(Pet. 23) manifestly does not meet the command of the

Eighth Amendment.

The opposition brief (Opp. 21) rests almost exclusively on Hill v. Humphrey, 662 F.2d 1335 (11th Cir.

2011), whose consideration of the issues presented was

tightly constricted by AEDPA.

This Court will not be operating under the same

constraints after granting the petition. The Court

should then invalidate a lingering outlier rule that

Florida should have repudiated in the wake of Ford v.

Wainwright, 477 U.S. 399 (1986). (Pet. 25-26).

---------------------------------♦---------------------------------

11

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ERIC M. FREEDMAN

Counsel of Record

Siggi B. Wilzig Distinguished

Professor of

Constitutional Rights

HOFSTRA UNIVERSITY

SCHOOL OF LAW

250 West 94th Street

New York, NY 10025

Eric.M.Freedman@hofstra.edu

Tel. 212-665-2713

MOE KESHAVARZI

DAVID POELL

SHEPPARD, MULLIN, RICHTER

& HAMPTON LLP

333 South Hope Street

Los Angeles, CA 90071

RANDY HERTZ

Vice Dean & Professor

of Clinical Law

NEW YORK UNIVERSITY

SCHOOL OF LAW

245 Sullivan Street

New York, NY 10012

JAMES S. LIEBMAN

Simon H. Rifkind

Professor of Law

COLUMBIA LAW SCHOOL

35 West 116th Street

New York, NY 10027

Counsel for Petitioner

May 2022