Opposition Brief — Jerry Leon Haliburton, Petitioner v. Florida

CASE NO. 22-5093

IN THE UNITED STATES SUPREME COURT

October 2021, Term

JERRY LEON HALIBURTON,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

LESLIE T. CAMPBELL

Senior Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

CapApp@myfloridalegal.com

Telephone: (850) 414-3300

COUNSEL FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

[Capital Case]

I - Whether certiorari review should be denied where the

Florida Supreme Court did not pass on the Eighth

Amendment challenge to the defendant’s burden of proof

needed to establish intellectual disability and Florida law

does not conflict with this Court’s Eighth Amendment or

Due Process jurisprudence?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW... eee ceeeeseeeceeeeeeeceeeesaeeeeseeeeseneeeees I

TABLE OF CONTENTS ..0..... ec cccceccccceseseeseneesesneeeenseceeeaesaeeeessecsacevensaeeseeeersneeessntenseeees II

TABLE OF CITATIONS ....0.... cee cceeccseeeeeseeesesseseeeeseeseeseeeeseoeesessaeeeseeessesaneessseeessaseseees Ill

CITATION TO OPINION BELOW....000.....ocecccceesseeceesssceeeecesneeeecrsneeceseeeseeerenseeenseaeees 1

JURISDICTION occ cceesescesneneeeeeseseeeesnesssseseseceeesusesaceessceeseeeesseeesuseeaeseeusesseneaneess 1

CONSTITUTIONAL PROVISIONS INVOLVED... o.oo cc cee eseeeseenenneeeseeeeeeeenee 1

STATEMENT OF THE CASE AND FACTS |W. ee eeeeneeeeeecerereeeesensensseneeeenentes 2

REASONS FOR DENYING THE WRIT... ees cceecesseeeeeeseseserssneesessessnseeseeseeseees 10

ISSUE I - CERTIORARI REVIEW SHOULD BE DENIED BECAUSE THE

FLORIDA SUPREME COURT DECLINED TO PASS ON THE EIGHTH

AMENDMENT CHALLENGE TO THE DEFENDANTS CLEAR AND

CONVINCING STANDARD OF PROOF NEEDED TO ESTABLISH

INTELLECTUAL DISABILITY AND FLORIDA LAW DOES NOT CONFLICT

DIRECTLY WITH ANY DECISION OF THIS COURT (RESTATED).......... 10

A. The Florida Supreme Court Declined to Reach Haliburton’s

Constitutional Challenge to Florida’s Clear and Convincing Burden

0) ik 0) 10

B. Petitioner’s Challenge to Florida’s Burden of Proof for Intellectual

Disability Does Not Warrant Review ............cccccccccsessssenseesseeeeeneenenss 12

CONCLUSION . .......eeeccccceeeeeecneceeesneneesaeeeesseeeenaeeesneeesesaeceeseeseceeecerseneesssneeseneerscneesenneeens 19

CERTIFICATE OF SERVICE. o.......eeccceessscceseecceseeteesessneeecesneeeseeneesenneasesaseesneneeseneees 20

i

TABLE OF CITATIONS

Page(s)

Cases

Adams v. Robertson,

520 U.S. 83, 117 S. Ct. 1028, 187 L.Ed.2d 208 (1997) ooo... elec ceeeceeeeeeveeeeeeceeees 11

Arizona v. Grell,

135 P. 3d 696 (Ariz. 2006) oo... eee ceeececesececeseccessscceecvsrsceecessseceesssaceesseceecsnserseeess 13

Atkins v. Virginia,

536 U.S. 304 (2002) oo... eee ccccecccscecceseeeseseceeccssscestsecsescsssceesesneccesescesseeeseeseeavaceseneess 3

Burgess v. Scofield,

BAG U.S. 944 (2005) oo. ceecssccsscsscsesscsesssesceseceesesestsscsessessceesscseseeseceesecacsesessesenecaeansaees 13

Commonwealth of Pennsylvania v. Sanchez,

36 A. 3d 24 (Pa. 2011) wocceeeeccccecccccseceseseseesecveccssssssecssceecssesecseeseneeeessesessessenecseasesees 16

Cooper v. Oklahoma,

B17 U.S. 348 (1996) .....ccccsccsccsscsssecsessssesesececsesssseseseseesecsesecssssestesessenesuenesesasecsesuaeeas 14

Fox Film Corp. v. Muller,

2G U.S. 207 (1985) ...ccccscssccsscsscssesscssesscseeseeseeseceucascaeeeeeeesseseeeseeseeseessaseeseseeseaceneats 12

General Talking Pictures Corp. v. Western Electric Co.,

B04 U.S. 175 (1924) oo. cceccccsscsssssecssssecccstesestetestesesateceeceseausatecessaesecsanenecessessneaseats 13

Haliburton v. Sec'y for the Dep't of Corr.,

160 F. Supp. 2d 1882 (S.D. Fla. 2001) .........ccccccccccsessessseseessssseestseeeteseseesnsansecseeseees 3

Haliburton v. Singletary,

691 So. 2d 466 (Fla. 1997) .......ccccccssesecsessessessessesseseeseesecseessceseceessecenceecseseeseeneesessnece 3

Haliburton v. State,

123 So. 3d 1146 (Fla. 2013) ........cccccccsscccsescesscececsecseeeeceeeesceessesseeeeesasessceucsuceessesaveseeees 4

Haliburton v. State,

331 So. 3d 640 (Fla. 2021) .....cccecccsccsssesccsssscsssseseessessesscssssssesseeeensesessssseavsesees Passim

Haliburton v. State,

561 So. 2d 248 (Fla. 1990) ........eccccccessseccecceseeeeseccecceecesceesseeseesscesseseaseacsassassaeeeseeees 2,3

Halburton v. State,

935 So. 2d 1219 (Fla. 2006) .........ccccccccsscssssscessecsscesceneeecesecseeeesseessnesessesssssessecsesseseeasees 3

Haliburton v. State,

168 So. 3d 509 (Fla. 2015) ........cccccsccsesseseesseseesessessessessesseeseessesesenesenecessseeeenenessecenseees 4

Haliburton v. Florida,

574 ULS. 801, 185. S. Ct. 178... ccccecccccceccesecescceesescnececseneceseeaecesessessccescsceceesaees 4

Hall v. Florida,

572 U.S. 701, 1384S. Ct. 1986, 188 L.Ed.2d 1007 (2014) oo... eee cece sseseeeneeeees 4, 8

Hemphill v. New York,

142 S. Ct. 681 (2022) ooo. cccceccccesecssessesessecsesensseseesesseeeesseeneeseccaeseecatsasssesanseeneeeasess 11

Herb v. Pitcairn,

324 U.S. 117, 65 S. Ct. 459, 89 L. Ed. 789 (1945) oo... ccceecsssseeseessesseeessessesesnees 12

ili

Hill v. Humphrey,

BGG U.S. 1041 (2012) ci eceeccccccessccccesesesseecssecesceesseeececeecesseeesceseecesssaeeesesessceeeeeeers 13

Hill v. Humphrey,

662 F. 3d 1835 (11th Cir. 2011) occ cccccccscsccscssessessescesecsceseeseecsescecseeseesseesteseesteaeens 14

Howell v. Mississippi,

543 U.S. 440, 125 S. Ct. 856, 160 L.Ed.2d 873 (2005) 0... cecsscscesseesecesseeeseesees 11

Howell v. State,

151 S.W. 3d 450 (Tern. 2004) .......ccccccceccsscseesscsessessessecsenseeseesseseeseeaseceuecaneseeneeses 14

Hlinois v. Gates,

AGZ U.S. 213 (1988) oo. .ceccscscsscsesscssesececssseesesesecseseseescsessessessaesessenecasseesecasseeseeeseaees 11

Kahler v. Kansas,

140 S. Ct. 1021 (2020) oo. .eccecceecccccecesessesseseeecsecseesecsecsessesseceessesseeseeseecseesseseseseeeesaes 16

Leland v. Oregon,

343 U.S. 790 (1952) oo. eececcseeccceeeeceeseceeseecceseesccsussccueesecssssusesseseessueuesecsueueeesesens 16

Medina v. California,

BOB U.S. 437 (1992) ooo.eccccccccccsccsseescssessesessessesesessesecseseessesesscseesssaecsessesaeeaeeaeees 14, 18

Montana v. Egelhoff,

518 U.S. 87 (1996) oo... .cccceccccccceesccccecesssccecesscecsscecesseccesssecesssccesesseeecesstececeessceeesaseess 14

Murdock v. Memphis,

20 Wall. 590, 22 L. Ed. 429 (1875) .......cccccccscsscsecsseeesesecesessseseesessecsecseccsecseessesecssens 12

New York ex rel. Bryant v. Zimmerman,

278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184 (1928) oc. eecceeseeeeeeseeseseseeeeeseeseseseees 11

Nixon v. Florida,

2022 WL 2203355 (June 21, 2022)........ccccsccscssscsceccsscsecssescesecsecseccsecsscssecseesecseeseess 13

Page v. Arkansas Natural Gas Corp.,

286 U.S. 269 (1932) ooo. eee cece cesseeccccecssececesssecesssecesseecessesuscsssesesssassucnsnsaeeesssevevsnees 13

People v. Vasquez,

84 P.3 d 1019 (Colo. 2004) oo... .ececcececccesscscessecceessscesssscseestessesesseeensseneessecseesecsecasess 13

Pruitt v. State,

834 N.E. 2d 90 (Ind. 2005) .......ccccccccccsscsscsscesesecsecssessenecsssssesecssesecsseeaeesseceeeaecseeneees 14

Raulerson v. Warden,

140 S. Ct. 2568 (2020) oo... ee eceeecececceccescscessscseseessecsesecseseetescsessessesesesseecsaseeseseesasasees 13

Raulerson v. Warden,

928 F. 3d 987 (11th Cir, 2019) oo... ccccccccccssessessesseesecssesseeseessecsscssecsecesseeees 14, 15, 16

Rocktord Life Insurance Co. v. Illinois Department of Revenue,

482 U.S. 182... ecccccceccccccccccessccscceceessecseccecscecceussececececeeesececeeaseeseeeeeesuuceseesseueeeseses 13

Singletary v. State,

322 So. 2d 551 (Fla. 1975) o.oo... .cccccccccessecceessccccsccecssccecsecececsceceessceeecsnaceessstneveveseee 6,11

State v. Willams,

831 So. 3d 835, 859-60 (La. 2002)... ecccsessesscssesscsscsecsessessececsecssessesseeseesecare 16, 17

Street v. New York,

394 U.S. 576, 89 S. Ct. 1354, 22 L.Ed.2d 572 (1969) ooo. ceeccseesesssceesceeeeees 11

Stripling v. Head,

BAL U.S. 1070 (2004) oo... eeccceccccescsscessesseseesscsscsecsscsecseseeseesecseecsecaecseessessseseeeesneaeaes 13

lv

United States v. Johnston,

268 U.S. 220 (1925) vce cccsccccssescceccscescecssrecssseesseccusscnseeeccasesessueeseuseeceseeeueeusecensecees 13

Wainwright v. Sykes,

ABB U.S. 72 (1977) ...cccccssscsssssssesessssesesseseesccsesesseseescaesessesesesecsessseesesessesesaeeessesaeeeeasaess 12

Wright v. State,

256 So. 3d 766 (Fla. 2018) .......cccccsscsssessesscssscssessssessssssesssececsusesecsesueaesesseseeseeseseeaeereess 7

Yee v. City of Escondido, Cal,

BO3 U.S. 519 (1992) oe ccccccscsscssesessssseesccsessesesscseesssessessesessesessesaeaeesseaecseeaeeaeseeeass 11

Young v. Georgia,

142 S. Ct. 1206 (2022) oo... eecccecccscsscscsssesssescescseesesessssecsessesssacsesaeseesecsecsecsesseceeseseeeas 13

Young v. State,

BGO S.E. 2d 746 (Ga. 2021) oo... ccccccccscsscessssessesssseseesssscsseacecsseessessesessecaeeaneneeseaeaees 14

Statutes

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

Section 921.137, Florida Statutes..............cccccccccssssseecesssseccecccseaescsesccusaserecessectaeeeensneeas 4

Section 921.137(1), Florida Statutes .........cccccccccceccsescsesesssesesecesessssesseesecsseeseees 4,6,7

Section 921.137(4), Florida Statutes .........ccccccccccssscsssccssescssssseseessssssseeseeseeesseenss 5, 6, 11

Section 921.141(5)(a), (b), (d), @, Florida Statutes (1987) oo... ccc eeesesseeesseeseeeeeees 3

Section § 921.141(7), Florida Statutes ..........ccccccccccccscssscsessssessessesesnsessenecsusenneeseseeenss 18

Rules

Florida Rules of Criminal Procedure 3.851 and 3.208.............cccccccsccssseseeseescnseeentaes 3, 4

Rule 3.2038, Fla. R. Crim. P oo... ccccccessceeccececcecaneesnseeeececeecceceeceecensseecceeeeassereeeceees 3

Rule 10, Rules of the Supreme Court of the United States... cece ecseeeeceeeeeeees 12

Other Authorities

An Empirical Assessment of Georgia’s Beyond A Reasonable Doubt Standard to

Determine Intellectual Disability in Capital Cases,

33 Ga. St. U. L. Rev. 558... ecccccccccsneseeccacceasseeeeeecceeeenennansaasecsseeeceesesecedeeaecesaeaeeees 16

CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review is reported as

Haliburton v. State, 331 So. 3d 640 (Fla. 2021).

JURISDICTION

Petitioner, Jerry Leon Haliburton (“Haliburton”), is seeking jurisdiction

pursuant to 28 U.S.C. § 1257(a). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (“State”), accepts as accurate Petitioner’s

recitation of the applicable constitutional provisions involved.

STATEMENT OF THE CASE AND FACTS

The instant capital case is before this Court upon the Florida Supreme Court's

affirmance of Petitioner’s, Jerry Leon MHaliburton’s (“Haliburton”), capital

postconviction litigation. Haliburton’s Petition for Writ of Certiorari followed.

Haliburton is in custody and under a sentence of death pursuant to a valid

judgment of guilt entered on April 11, 1988) for the 1981 first-degree murder of

Donald Bohannon. The Florida Supreme Court affirmed Haliburton's conviction and

death sentence on direct appeal. Haliburton v. State, 561 So. 2d 248, 249-50 (Fla.

1990). There the Florida Supreme Court found that on August 9, 1981, Haliburton

burglarized Donald Bohannon’s (“Bohannon”) home and stabbed Bohannon in his

neck, chest, arms, and scrotum with a knife 31 times, killing him. Jd. Later,

Haliburton told his brother, Freddy Haliburton, that he killed Bohannon just to see

if he could do it. Jd. Haliburton was found guilty, and the jury recommended death

by a nine to three vote. /d. The death sentence was imposed upon the trial court

finding four aggravating factors and no statutory mitigation.? /d. Thereafter, the

1 Previously, Haliburton was convicted and sentenced to death for this murder,

however, the Florida Supreme Court, reversed upon finding his police statement

should have been suppressed. Haliburton v. State, 476 So. 2d 192, (Fla. 1985). The

State petitioned the Supreme Court which remanded for reconsideration in light of

Moran v. Burbine, 475 U.S. 412 (1986). Haliburton v. State, 514 So. 2d 1088, 1089

(Fla. 1987). That Court held “as a matter of state law” Haliburton’s “statements

[were] obtained in violation of due process of law” and again reversed and remanded

for a new trial. /d. at 1090.

2 The Florida Supreme Court found:

The capital felony was committed by a person under

sentence of imprisonment; the defendant was twice

Florida Supreme Court affirmed the denial of relief on Haliburton’s original

postconviction relief motion and denied his state habeas petition. See Haliburton v.

Singletary, 691 So. 2d 466 (Fla. 1997). That court also affirmed the denial of

Haliburton’s first successive motion for postconviction relief, Haliburton v. State, 935

So. 2d 1219 (Fla. 2006) (table).

Following his state court litigation, Haliburton sought federal habeas corpus

relief from the United States District Court. Haliburton v. Sec'y for the Dep't of Corr.,

160 F. Supp. 2d 1382, 1384, 1387, 1390 (S.D. Fla. 2001). After an evidentiary hearing,

relief was denied, and that denial was affirmed on appeal. Haliburton v. Sec'y For

Dept. Of Corr., 342 F. 3d 1233 (11th Cir. 2003), cert denied, 541 U.S. 1087 (2004).

In 2002, this Court issued Atkins v. Virginia, 536 U.S. 304 (2002) prompting

Haliburton to file a second successive postconviction relief motion.? As the Florida

previously convicted of violent felonies: the capital felony

was committed while engaged in a burglary; and the

capital felony was a homicide and was committed in a cold,

calculated, and premeditated manner, without any

pretense of moral or legal justification. § 921.141(5)(a), (b),

(d), (i), Fla. Stat. (1987).

Haliburton, 561 So. 2d at 249-50.

8 Following Atkins, the Florida Supreme Court, in October 2004, promulgated Rule

3.203, Fla. R. Crim. P., and gave defendants who had completed their state

postconviction litigation until November 30, 2004, to file an Atkins claim asserting

intellectual disability barred execution. Haliburton filed this claim which the trial

court summarily denied without prejudice, and the Florida Supreme Court affirmed.

Haliburton v. State, 935 So. 2d 1219 (Fla. 2006). Haliburton returned to the circuit

court and on “September 19, 2006, relying on Atkins v. Virginia, 536 U.S. 304, 122 S.

Ct. 2242, 153 L. Ed. 2d 335 (2002), Haliburton filed his second successive

postconviction motion under Florida Rules of Criminal Procedure 3.851 and 3.203,

seeking to vacate his death sentence on the ground that he is [intellectually disabled].

On March 13, 2012, the trial court summarily denied Haliburton's motion because he

Supreme Court explained the procedural history:

Haliburton filed a second successive motion for

postconviction relief, under Florida Rules of Criminal

Procedure 3.851 and 3.203, seeking to vacate his death

sentence on the ground that he was intellectually disabled.

We affirmed the summary denial of that motion because

Haliburton failed to demonstrate that his IQ was 70 or

below and thus failed to establish that he is intellectually

disabled under our interpretation of the law at that time.

Haliburton v. State, 123 So. 3d 1146 (Fla. 2013), vacated,

574 U.S. 801, 185 S. Ct. 178, 190 L.Ed.2d 8 (2014), order

vacated on reconsideration, 163 So. 3d 509 (Fla. 2015).

Upon this Court's affirmance of the denial of his

intellectual disability claim in 2013, Haliburton petitioned

the United States Supreme Court for a writ of certiorari.

Shortly thereafter, the Supreme Court issued its decision

in Hall v. Florida, 572 U.S. 701, 704, 184 S. Ct. 1986, 188

L.Ed.2d 1007 (2014), holding that Florida's “rigid rule”

interpreting section 921.137(1), Florida Statutes,FN1 as

establishing a strict IQ test score cutoff of 70 or less in

order to present additional evidence of intellectual

disability “creates an unacceptable risk that persons with

intellectual disability will be executed, and thus is

unconstitutional.” The Supreme Court — granted

Haliburton's petition for certiorari and remanded to this

Court for further consideration in light of Ha/Z Haliburton,

574 U.S. 801, 185 S. Ct. 178. On remand from the Supreme

Court, this Court vacated its prior decision and remanded

this case to the trial court for an evidentiary hearing on

Haliburton's intellectual disability claim. Haliburton, 1638

So. 3d 509.

FN1 Section 921.137 prohibits the imposition of the death

penalty upon the intellectually disabled and defines

intellectual disability as “significantly subaverage general

intellectual functioning existing concurrently with deficits

in adaptive behavior and manifested during the period

from conception to age 18.”

failed to demonstrate that his IQ was 70 or below.” Haliburton v. State, 123 So. 3d

1146 (Fla. 2013).

Haliburton v. State, 331 So. 3d 640, 642-43 (Fla. 2021).

The evidentiary hearing to address the intellectual disability claim was

conducted on May 18, 2019, during which Haliburton presented his youngest brother,

John Haliburton, Jr. “John Jr.”) and a mental health expert, Dr. Bruce Frumkin.

The State called Dr. Michael Brannon. The mental health expert testimonies relied

on documents and recorded or personal interviews. Following the evidentiary hearing

on Haliburton’s intellectual disability claim, the postconviction court weighed the

evidence and using “the criteria set forth in the DSM-5” on September 27, 2019, ruled

that Haliburton had not proven an intellectual disability under the clear and

convincing standard of proof.

On appeal of the denial of his intellectual disability claim, the Florida Supreme

Court identified Haliburton’s claims as: “the trial court erred in failing to find that

he is intellectually disabled; [and] that section 921.137(4), Florida Statutes, which

requires a defendant to prove his intellectual disability by clear and convincing

evidence, is unconstitutional....” Haliburton, 331 So. 3d at 645. With respect to

Haliburton’s constitutional challenge to the standard of review employed in the

intellectual disability claim, the Florida Supreme Court found it did not need to reach

the issue. It stated:

Haliburton also argues that he is entitled to relief because

section 921.137(4), Florida Statutes (2019), which requires

that defendants establish their intellectual disability by

clear and convincing evidence, is unconstitutional under

Atkins and the Eighth and Fourteenth Amendments to the

United States Constitution, and that his claim of

intellectual disability should have been analyzed under the

more lenient preponderance of the evidence standard

instead. But the trial court discredited Haliburton's own

expert, without whose testimony the preponderance of the

evidence standard clearly could not be met. Thus, because

we conclude that Haliburton’s claim would have failed even

under the preponderance of the evidence standard, we need

not address the constitutionality of the clear and

convincing evidence standard in section 921.137(4). See

Singletary v. State, 322 So. 2d 551, 552 (Fla. 1975)

(“[Clourts should not pass upon the constitutionality of

statutes if the case in which the question arises may be

effectively disposed of on other grounds.”).

Haliburton, 331 So. 3d at 652 (emphasis supplied).

Addressing the intellectual disability claim, the Florida Supreme Court set out

that:

. .under Florida law, “ ‘intellectual disability’ means

significantly subaverage general intellectual functioning

existing concurrently with deficits in adaptive behavior

and manifested during the period from conception to age

18.” § 921.1371), Fla. Stat. (2019). “Significantly

subaverage general intellectual functioning” is defined as

“performance that is two or more standard deviations from

the mean score on a standardized intelligence test specified

in the rules of the Agency for Persons with Disabilities.” Jd.

“Adaptive behavior” “means the effectiveness or degree

with which an individual meets the standards of personal

independence and social responsibility expected of his or

her age, cultural group, and community.” Jd. Thus, to

establish intellectual disability as a bar to execution, a

defendant must demonstrate (1) significantly subaverage

general intellectual functioning; (2) concurrent deficits in

adaptive behavior; and (3) manifestation of the condition

before age eighteen.

Haliburton, 331 So. 3d at 645-46 (footnote omitted). It noted “[iln reviewing

determinations of [intellectual disability], this Court examines the record for whether

competent, substantial evidence supports the determination of the trial court.’ .. .

‘This Court ‘does not reweigh the evidence or second-guess the circuit court's findings

as to the credibility of witnesses.’ ” Haliburton, 331 So. 3d at 646 (citations omitted).

In discussing the facts, the Florida Supreme Court found in relevant part that

Haliburton’s IQ scores ranged from 74 to 80 and according to Dr. Frumkin,

Haliburton’s expert, applying the standard error of measurement to his highest score,

reveals a true IQ as high as 85. Haliburton, 331 So. 3d at 646-47. The Florida

Supreme Court agreed with the trial court that the testimony of the State’s expert,

Dr. Brannon was credible, persuasive, and “thoroughly explained why the totality of

the evidence in this case supports the conclusion that Haliburton's true IQ is in the

79-80 range” and did not satisfy the first prong of an intellectual disability of

establishing “significantly subaverage intellectual functioning.” Jd. at 647. Dr.

Brannon found Haliburton’s IQ score range consistent with his vocabulary, reading,

television interests, abstract thinking ability to give accurate, detailed personal

history as discovered during his evaluation. Jd. The Florida Supreme Court

recognized Dr. Brannon’s testimony “that ‘you can't fake good,’ ‘meaning a person's

higher IQ scores will more accurately reflect a person's capacity, while lower IQ scores

achieved on other test administrations might be attributable to a variety of potential

factors.” Jd. The Florida Supreme Court would not disturb the trial court’s finding

that Dr. Brannon was the more credible expert. Jd.

After explaining the meaning of “deficits in adaptive behavior,”4 the Florida

4 The Florida Supreme Court noted: “section 921.137(1) defines “adaptive behavior”

as “the effectiveness or degree with which an individual meets the standards of

personal independence and social responsibility expected of his or her age, cultural

group, and community.” Haliburton, 331 So. 3d at 648. Citing to Wright v. State, 256

So. 3d 766, 773 (Fla. 2018) and referencing the American Psychiatric Association,

Supreme Court conducted a thorough review of the adaptive deficit prong, credited

Dr. Brannon’s testimony and rejected that of Dr. Frumkin stating:

Here, Dr. Frumkin's testimony and written evaluation

both lack clarity as to the domains in which he found

Haliburton to have impairment sufficient to satisfy the

second prong of the intellectual disability standard. Dr.

Frumkin never explained why he found these domains

“sufficiently impaired that ongoing support is needed in

order for the person to perform adequately in one or more

life settings” or in which “life setting” ongoing support was

needed. Having “little doubt” that Haliburton has

concurrent deficits in adaptive functioning in at least two

areas and “seemling] deficient” in a domain do not rise to

the level of clear and convincing evidence.

Haliburton, 331 So. 3d at 649-50.

Turning to the third intellectual disability prong, the Florida Supreme Court

concluded:

Because competent, substantial evidence supports the trial

court's findings that Haliburton failed to establish that he

has significantly subaverage intellectual functioning or

concurrent deficits in adaptive behavior sufficient to meet

the second prong of the intellectual disability standard,

Haliburton necessarily cannot meet the third prong. Thus,

the trial court did not err in failing to find that Haliburton

meets the third prong.

Haliburton, 331 So. 3d at 651.

In its final analysis addressed to a “holistic review,” the Florida Supreme Court

considered Haliburton’s reference to Hal] v. Florida, 572 U.S. 701, 723 (2014) and

Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (“DMS-5”), the

Florida Supreme Court elaborated that “... adaptive deficits exist when at least one

domain ‘is sufficiently impaired that ongoing support is needed in order for the person

to perform adequately in one or more life settings at school, at work, at home, or in

the community.’ “Haliburton, 331 So. 3d at 648.

statement that “if one of the prongs is relatively less strong, a finding of intellectual

disability may still be warranted based on the strength of other prongs.” That court

concluded that the quoted language had no application in the instant cases because

“we have three prongs that were not established.” Haliburton, 331 So. 3d at 651-52.

None the less, the Florida Supreme Court concluded:

Moreover, the trial court did conduct a “holistic review.” It

did not reach its conclusion that Haliburton failed to

establish that he is intellectually disabled based solely on

his failure to meet the first prong of the intellectual

disability standard but instead proceeded to conduct a

detailed analysis of the testimony concerning the adaptive

deficits prong and the “conjunctive and interrelated

assessment” of all three prongs of the standard as

completed by Half 572 U.S. at 723, 134 S. Ct. 1986, and

Oats. Thus, we conclude that the trial court did not err in

failing to conduct a “holistic review.”

Haliburton, 331 So. 3d at 652.

The Florida Supreme Court affirmed the denial of Haliburton’s claim of

intellectual disability and chose not to reach his constitutional challenge to the

burden of proof imposed upon defendants claiming intellectual disability.

Haliburton’s sole challenge here is to the constitutionality of that burden of proof.

REASONS FOR DENYING THE WRIT

ISSUE I

CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE THE FLORIDA SUPREME COURT

DECLINED TO PASS ON THE EIGHTH AMENDMENT

CHALLENGE TO THE DEFENDANT’S CLEAR AND

CONVINCING STANDARD OF PROOF NEEDED TO

ESTABLISH INTELLECTUAL DISABILITY AND

FLORIDA LAW DOES NOT CONFLICT DIRECTLY

WITH ANY DECISION OF THIS COURT (RESTATED)

Under Florida law, defendant’s seeking to prove they are intellectually

disabled as a bar to the death penalty have the burden to prove this by “clear and

convincing” evidence. Haliburton asserts that this Court should find Florida’s “clear

and convincing” burden of proof violative of the Eighth Amendment. The Florida

Supreme Court did not pass on the constitutionality of that burden, but instead found

that Haliburton had not even met the lower, preponderance of the evidence standard.

Haliburton, 331 So. 3d at 652. As such, a federal question was not addressed below,

and this Court should not take certiorari. However, if this Court reaches the merits

of the constitutional challenge, Florida’s burden of proof does not violate the Eighth

Amendment and again certiorari should be denied.

A. The Florida Supreme Court Declined to Reach

Haliburton’s Constitutional Challenge to Florida’s Clear

and Convincing Burden of Proof

Below, the Florida Supreme Court acknowledged that Haliburton was

asserting that the clear and convincing burden of proof was violative of the Eighth

Amendment. Haliburton, 331 So. 3d at 652. However, that court chose not to reach

the constitutional claim reasoning instead:

10

Thus, because we conclude that Haliburton's claim would

have failed even under the preponderance of the evidence

standard, we need not address the constitutionality of the

clear and convincing evidence standard in section

921.137(4). See Singletary v. State, 322 So. 2d 551, 552

(Fla. 1975) (“[Clourts should not pass upon the

constitutionality of statutes if the case in which the

question arises may be effectively disposed of on other

grounds.”).

Haliburton, 331 So. 3d at 652 (emphasis supplied).

It is well settled that this Court will not grant certiorari where the federal

constitutional claim was not passed upon by the state court or where the state

decision rests on an adequate foundation of state law. In Hemphill v. New York, this

Court stated that it:

“has almost unfailingly refused to consider any federal-law

challenge to a state-court decision unless the federal claim

‘was either addressed by or properly presented to the state

court that rendered the decision we have been asked to

review.” Howell v. Mississippi, 543 U.S. 440, 443, 125 S.

Ct. 856, 160 L.Ed.2d 873 (2005) (per curiam) (quoting

Adams v. Robertson, 520 U.S. 83, 86, 117 S. Ct. 1028, 137

L.Ed.2d 203 (1997) (per curiam)). “ ‘No particular form of

words or phrases is essential’ ” for satisfying the

presentation requirement, so long as the claim is “ ‘brought

to the attention of the state court with fair precision and in

due time.’” Street v. New York, 394 U.S. 576, 584, 89S. Ct.

1354, 22 L.Ed.2d 572 (1969) (quoting New York ex rel.

Bryant v. Zimmerman, 278 U.S. 638, 67, 49 S. Ct. 61, 73 L.

Ed. 184 (1928)).

Hemphill y. New York, 142 S. Ct. 681, 689 (2022). See also, Adams v. Robertson, 520

U.S. 83, 90 (1997) (concluding this Court should not “disturb the finality of state

judgments on a federal ground that the state court did not have occasion to

consider.”); Yee v. City of Escondido, Cal., 503 U.S. 519, 533 (1992); Lnois v. Gates,

11

462 U.S. 213, 218-220 (1983). Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Murdock

v. Memphis, 20 Wall. 590, 22 L. Ed. 429 (1875). Furthermore, the Florida Supreme

Court considered the evidence Haliburton presented below and determined that he

did not establish the intellectual disability claim even under a lower burden of proof.

As such, even if this Court were to remand the matter for further review, the same

judgment would be entered by the Florida Supreme Court. Hence, certiorari should

be denied. See Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S. Ct. 459, 462-464, 89 L.

Ed. 789 (1945) (stating “We are not permitted to render an advisory opinion, and if

the same judgment would be rendered by the state court after we corrected its views

of federal laws, our review could amount to nothing more than an advisory opinion”).

See also, Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (noting principal that a state

decision resting on adequate state substantive law is immune from federal review.)

Certiorari should be denied because the Florida Supreme Court determined that it

did not need to reach the constitutional challenge to the burden of proof because

Haliburton had not met his burden even under a lower preponderance of the evidence

standard.

B. Petitioner’s Challenge to Florida’s Burden of Proof for

Intellectual Disability Does Not Warrant Review

Even if this Court considers the Eighth Amendment claim not passed on by the

Florida Supreme Court, certiorari should be denied as Florida’s law does not run afoul

of the Eighth Amendment. The ruling below does not conflict with a decision of this

Court and likewise, it does not address an important or unsettled question of federal

law. See Rule 10, Rules of the Supreme Court of the United States. This Court has

12

recognized that cases which have not developed conflicts between federal or state

courts or presented important, unsettled questions of federal law usually do not

deserve certiorari review. Rockford Life Insurance Co. v. Illinois Department of

Revenue, 482 U.S. 182, 184, n. 3 (1987). The law is well-settled that this Court does

not grant certiorari for the purpose of reviewing evidence and/or discussing specific

facts. United States v. Johnston, 268 U.S. 220 (1925) (denying certiorari to review

evidence or discuss specific facts). Further, this Court has rejected requests to

reassess or re-weigh factual disputes. Page v. Arkansas Natural Gas Corp., 286 U.S.

269 (1932) (rejecting request to review fact questions); General Talking Pictures

Corp. v. Western Electric Co., 304 U.S. 175, 178 (1924) (same).

Haliburton contends that Florida’s requirement that defendants prove their

intellectual disability by clear and convincing evidence violates the Due Process

Clause and the Eighth Amendment. Pet. at 22-26. This question does not warrant

review. In fact, this Court recently denied certiorari on a materially similar question.

See Nixon v. Florida, No. 21-1173, 2022 WL 2203355 (June 21, 2022); Young v.

Georgia, 142 S. Ct. 1206 (2022).5 This Court, likewise, should deny certiorari here.

First, the shallow split of authority on this issue does not merit review. Most

courts have held that a heightened burden for proving intellectual disability is

constitutional. See, e.g., Arizona v. Grell, 135 P. 3d 696, 702 (Ariz. 2006) (clear and

convincing evidence burden was constitutional); People v. Vasquez, 84 P.3 d 1019,

5 See, e.g., Young v. Georgia, 142 S. Ct. 1206 (2022); Raulerson v. Warden, 140 S. Ct.

2568 (2020); Hill v. Humphrey, 566 U.S. 1041 (2012); Burgess v. Scofield, 546 U.S.

944 (2005); Stripling v. Head, 541 U.S. 1070 (2004).

13

1022 (Colo. 2004) (same); Young v. State, 860 S.E. 2d 746, 768-77 (Ga. 2021)

(plurality op.) (same for a beyond a reasonable doubt burden). The only federal courts

to decide the issue on AEDPA review have held that these holdings are reasonable.

See Raulerson v. Warden, 928 F. 3d 987, 992 (11th Cir. 2019) (state court holding

that beyond a reasonable doubt burden was constitutional was reasonable); Hill v.

Humphrey, 662 F. 3d 1335, 1347 (11th Cir. 2011) (en banc) (same). And the only two

courts to hold otherwise, Pruitt v. State, 834 N.E. 2d 90, 100-03 (Ind. 2005)

(preponderance standard is required); Howell v. State, 151 S.W. 3d 450, 464-65

(Tenn. 2004) (similar), misunderstood the historical analysis mandated by Medina

v. California, 505 U.S. 437 (1992) and Cooper v. Oklahoma, 517 U.S. 348 (1996). See

infra 14-16.

Second, Florida’s clear and convincing evidence standard does not violate the

Due Process Clause. To prove a due process violation, a petitioner “must show that

the principle of procedure violated by the rule (and allegedly required by due process)

is so rooted in the traditions and conscience of our people as to be ranked as

fundamental.” Montana v. Egelhoff 518 U.S. 37, 47 (1996) (plurality op.) (cleaned

up); see also Cooper v. Oklahoma, 517 U.S. 348, 355 (1996) (applying this test). The

“primary guide” in this analysis is “historical practice.” Egelhoff 518 U.S. at 43

(plurality op.) (citing Medina, 505 U.S. at 446). Also relevant is whether the State’s

rule has “considerable justification,” which “casts doubt upon the proposition that the

opposite rule is” fundamental. /d. at 49 (quotation omitted). And so is whether the

allegedly fundamental rule has “received sufficiently uniform and permanent

14

allegiance” nationwide. Jd. at 51.

Under those standards, a clear and convincing evidence burden for proving

intellectual disability is not unconstitutional. Cf Young, 860 S.E. 2d at 772-73

(plurality op.). As an initial point, “there is no historical right of an intellectually

disabled person not to be executed,” and thus “no historical tradition regarding the

burden of proof as to that right.” Raulerson, 928 F.3d at 1002 (citation omitted); cf

Egelhoff 518 U.S. at 51 (plurality op.) (finding voluntary intoxication defense was

not fundamental when it was “of too recent vintage” and there was no “lengthy

common-law tradition” of permitting defense). The clear and convincing evidence

burden also has “considerable justification.” Kgelhoff 518 U.S. at 48 (plurality op.).

Indeed, a “robust burden of proof’ is necessary to offset the “substantial” risk of

“malingering” by a defendant who is in fact not intellectually disabled. Hi//, 662 F.3d

at 1354; see also Young, 860 S.E. 2d at 776 n.17 (plurality op.) (same).

Furthermore, the preponderance standard has not “received sufficiently

uniform and permanent allegiance” nationwide. Egelhoff 518 U.S. at 51 (plurality

op.). In Egelhoff, this Court held that the defense of voluntary intoxication fell short

of this standard when “one-fifth of the States” had not adopted it. /d. at 48. Here, the

preponderance standard is even less accepted. Contrary to Haliburton’s suggestion

that anything more than the preponderance of the evidence burden violates the

Eighth Amendment (pet. At 24-25), of the 29 jurisdictions® that impose the death

6 Twenty-seven states along with the United States military and the United States

impose the death penalty. Of those jurisdictions, at least Georgia, Florida, Kansas,

Montana, Wyoming, the military, and the United States have not adopted the

15

penalty, almost one quarter have not adopted the preponderance of the evidence

standard.

The instant case is quite different from Cooper, in which this Court held that

due process prohibits the government from using a standard of proof more demanding

than a preponderance in demonstrating competency to stand trial. There, unlike here,

the preponderance standard for proving incompetency had “deep roots in our

common-law heritage.” Raulerson, 928 F.3d at 1002; see also Young, 860 S.E. 2d at

772 (plurality op.). There, unlike here, the preponderance standard had “nearuniform application” among the states. Cooper, 517 U.S. at 362. In Cooper, unlike the

instant situation, the preponderance standard implicated a defendant’s fitness to

stand trial, not a defendant’s “moral culpability.” Atkins, 536 U.S. at 306. That

distinction makes intellectual disability much more like the insanity defense, see

Kahler v. Kansas, 140 S. Ct. 1021, 1025 (2020), defense for which states may require

a burden of proof even beyond a reasonable doubt without violating the Due Process

clause. Leland v. Oregon, 343 U.S. 790, 798-800 (1952).

Haliburton’s argument based on Commonwealth of Pennsylvania v. Sanchez,

36 A. 3d 24, 70 (Pa. 2011)7; Howell and State v. Williams, 831 So. 3d 835, 859-60 (La.

preponderance standard. See Lauren Sudeall Lucas, An Empirical Assessment of

Georgia’s Beyond A Reasonable Doubt Standard to Determine Intellectual Disability

in Capital Cases, 38 Ga. St. U. L. Rev. 5538, 560-61 & n.23—25 (2017).

7 There, the Supreme Court of Pennsylvania was required to address when an Atkins

hearing was to be held once the capital defendant had raised the claim. In Sanchez,

the defendant raised the issue just before jury selection was to start and complained

on appeal that it was error for the trial court to have left it up to the jury to decide

the matter and failed to instruct the jury on the applicable standards for an Atkins

16

2002)8 about the “risk of error” (Pet. 22—24) does not demonstrate otherwise nor does

it establish a direct conflict with the Florida Supreme Court’s opinion in Haliburton

under review. The lower courts have widely rejected this claim, e.g., Hill, 662 F.3d

at 1854-56; Young, 860 S.E. 2d at 776 n.18 (plurality op.), and petitioner cites no

“empirical . . . evidence in the record” showing that the risk of an erroneous execution

is exceedingly high under Florida’s standard. See Hill 662 F.3d at 1356. Indeed,

under even Georgia’s beyond a reasonable doubt standard, “Judges and juries do find

defendants guilty but [intellectually disabled],” Jd. at 1857 (collecting examples)—a

good indicator that a heightened standard does not prevent those truly disabled from

proving as much. Also, Haliburton “ignores all of the many other procedures in

claim. Sanchez, 36 A. 3d at 36. Noting that the Pennsylvania Legislature had not

enacted laws implementing the restriction of Atkins, it took it upon itself to establish

appropriate procedures, including placing the burden on the defendant to prove his

claim by a preponderance of the evidence. /d at 62-63. However, it took pains to

explain that the Legislature was not bound by the procedures and proof announced

in Sanchez, and that the Legislature may “choose, to allocate the burden of proof

differently, and to affix a different level of proof....” Jd. at 77.

8 In the immediate wake of Akins and while Williams’ case was on direct appeal, the

Louisiana Supreme Court was asked to address a claim of intellectual disability.

Willams, 831 So. 2d at 839, 851-60. Recognizing that the Louisiana Legislature had

yet to mandate how Atkins claims were to be adjudicated, and “[iln the absence of

any guidance from the Supreme Court” in Atkins, the Louisiana Supreme Court

announced the definition of intellectual disability, the respective burdens to be

applied, and the procedure for addressing such claims. Willams, 831 So. 2d at 854.

It elected to set the burden on the defendant to prove his case of intellectual disability.

After surveying other state statutes and noting some required the defendant to carry

his burden by clear and convincing evidence while others employed a preponderance

of the evidence standard, the Louisiana Supreme Court relied on Cooper and elected

to utilize the preponderance of the evidence standard. /d. at 860. Subsequently, the

Legislature adopted that standard. That Court made no finding that a higher

standard violated the Eighth Amendment nor the Due Process clause. Haliburton is

not in conflict with Williams.

17

[Florida] law” that protect against erroneous executions, /d. at 1354, including the

jury’s right to consider intellectual capacity as a mitigator in deciding whether to

recommend a death sentence. See Fla. Stat. § 921.141(7).

As the third and final basis for denial of certiorari, Haliburton’s alleged claim

is “governed by norms of procedural due process,” not the Eighth Amendment. Ail

662 F.3d at 1362 (Tjoflat, J. concurring); see also Medina, 505 U.S. at 448 (analyzing

challenge to burden of proof under the Due Process Clause); Cooper, 517 U.S. at 350

(same). None the less, for the reasons provided above, there also is no Eighth

Amendment violation. Indeed, in the “{230] year history of our nation’s Bill of Rights,

no Supreme Court decision has ever held, or even implied, that a burden of proof

standard on its own can so wholly burden an Eighth Amendment right as to

eviscerate or deny that right.” Hill, 662 F.3d at 1351 (emphasis omitted).

18

CONCLUSION

Based on the foregoing arguments and authorities, and because the question

presented here holds neither widespread nor case specific importance, Respondent

requests respectfully that this Honorable Court deny Petitioner's request for

certiorari review.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY NERAL OF FLORIDA

r 3

(7

7

/

/

ee y

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar No.: 158541

*Counsel of Record

LESLIE T. CAMPBELL

Senior Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

CapApp@myfloridalegal.com

Telephone: (850) 414-3300

COUNSEL FOR RESPONDENT

19