Opposition Brief — John F. Mosley, Petitioner v. Florida
Supreme Court briefFeb 8, 2023
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CAPITAL CASE
No. 22-6488
In the
Supreme Court of the Anited States
JOHN F. MOSLEY, Jr., Petitioner,
Uz
STATE OF FLORIDA, Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE FLORIDA SUPREME COURT
BRIEF IN OPPOSITION
TO PETITION FOR A WRIT OF CERTIORARI
ASHLEY MoOoDY
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) 414-3566
capapp@myfloridalegal.com
CAPITAL CASE
QUESTIONS PRESENTED
I. Whether this Court should grant review of a decision of the Florida
Supreme Court affirming the exclusion of testimony that the defendant’s
father sexually abused his sisters as mitigation during the penalty phase
and rejecting aclaim that the Eighth Amendment requires the admission
of any even marginally relevant mitigating evidence.
II. Whether this Court should grant review of a decision of the Florida
Supreme Court rejecting a claim that the Sixth Amendment right to a
jury trial and due process requires that all findings related to capital
sentencing be made by the jury at the beyond a reasonable doubt
standard of proof.
TABLE OF CONTENTS
PAGE(S)
QUESTIONS PRESENTED ...............0 00.0.0. eee nee i
TABLE OF CONTENTS ..... 0.0... 0. cee nee eee e eee e eens ll
TABLE OF AUTHORITIES ....... 20.0... 0. ccc ce eee ene ili
OPINION BELOW..............0 00 ccc nent e teens 1
JURISDICTION. ... 0.0... ne eee ee eee eee eee eees 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........... 2
STATEMENT OF THE CASE AND PROCEDURAL HISTORY................ 3
Facts of the case 2.2... een eee eee eens 3
Procedural history... ........0. 0c cece eee eee eee eee eee nee eenees 3
REASONS FOR DENYING THE WRIT.............0.....0 0. cece eee 6
ISSUE TL... eet eee eee e eee e ee eeee 6
WHETHER THIS COURT SHOULD GRANT REVIEW OF
A DECISION OF THE FLORIDA SUPREME COURT
AFFIRMING THE EXCLUSION OF TESTIMONY THAT
THE DEFENDANT’S FATHER SEXUALLY ABUSED HIS
SISTERS AS MITIGATION DURING THE PENALTY
PHASE AND REJECTING A CLAIM THAT THE EIGHTH
AMENDMENT REQUIRES THE ADMISSION OF ANY
EVEN MARGINALLY RELEVANT MITIGATING
EVIDENCE.
The Florida Supreme Court’s decision in this case .......... 6
Florida’s death penalty statute................. 20200 e eee 7
No conflict with this Court’s Eighth Amendment jurisprudence 7
No conflict with the lower appellate courts ............... 11
ISSUE ID... eee eee nent eee eee 12
WHETHER THIS COURT SHOULD GRANT REVIEW OF
A DECISION OF THE FLORIDA SUPREME COURT
REJECTING A CLAIM THAT THE SIXTH AMENDMENT
RIGHT TO A JURY TRIAL AND DUE PROCESS
REQUIRES THAT ALL FINDINGS RELATED TO
CAPITAL SENTENCING BE MADE BY THE JURY AT
ii
THE BEYOND A REASONABLE DOUBT STANDARD OF
PROOF.
The Florida Supreme Court’s decision in this case ......... 13
Florida’s death penalty statute................ 0.00 eee 14
Interpretation of state statute is a matter of state law...... 15
No conflict with this Court’s jurisprudence ............... 16
No conflict with the lower appellate courts ............... 20
CONCLUSION
ili
TABLE OF AUTHORITIES
CASES PAGE(S)
Allen v. State,
322 So.3d 589 (Fla. 2021), cert. denied, Allen v. Florida, 142 S.Ct. 904 (2022) ... 20
Alleyne v. United States,
570 U.S. 99 (2018) 2... ee eee eee eee e eee eees 13,17,19
Apprendi v. New Jersey,
530 U.S. 466 (2000)... ce cee eee e eee eeees 18
Bell v. State,
336 So.3d 211 (Fla. 2022), cert. denied, Bell v. Florida, 143 S.Ct. 184 (2022) .... 20
Braxton v. United States,
500 U.S. 344 (1991) 2.0. ee eee eee eee eee eee 11,21
Bright v. State,
299 So.3d 985 (Fla. 2020), cert. denied, Bright v. Florida, 141 S.Ct. 1697 (2021) . 20
Clemons v. Mississippt,
494 U.S. 738 (1990) .. 2. eee teen ene e eens 17
Craft v. State,
312 So.3d 45 (Fla. 2020), cert. denied, Craft v. Florida, 142 S.Ct. 490 (2021) .... 20
Craven v. State,
310 So.38d 891 (Fla. 2020), cert. denied, Craven v. Florida, 142 S.Ct. 199 (2021).. 20
Davidson v. State,
323 So.3d 1241 (Fla. 2021),
cert. denied, Davidson v. Florida, 142 S.Ct. 1152 (2022)..................06. 20
Deviney v. State,
322 So.3d 563 (Fla. 2021), cert. denied, Deviney v. Florida, 142 S.Ct. 908 (2022) . 20
Dillon v. United States,
560 U.S. 817 (2010) 2. eee eee e teen eee neeenes 18
Doty v. State,
170 So.3d 731 (Fla. 2015)... eee eee eee eees 5
Doty v. State,
813 So.3d 573 (Fla. 2020), cert. denied, Doty v. Florida, 142 S.Ct. 449 (2021).... 20
Eddings v. Oklahoma,
455 U.S. 104 (1982)... ee cent nees 7,8,10
iv
Faretia v. California,
422 U.S. 806 (1975) 2... ete nee e teen ee eenee 5
Fauber v. Davis,
43 F.4th 987 (9th Cir. 2022) ... 0.2 eee eee ees 11
Franklin v. Lynaugh,
487 U.S. 164 (1988) 2... eee nen e ee eeeeee 11
Graham uv. Collins,
506 U.S. 461 (1998) .. 0. eee eee neneees 11
Hurst v. Florida,
577 U.S. 92 (2016) «ee teen eee e eee eenes 17
Hurst v. State,
202 So.8d 40 (Fla. 2016)... 0.0... cee eee eeeees 3,4
Johnson v. Fankell,
520 U.S. 911 (1997) 2.2. ce eee teen ence eens 15
Johnson v. United States,
559 U.S. 188 (2010) 2... eee eee e eee eees 15
Johnson v. Williams,
568 U.S. 289 (2018) .. 0... ee ene ete e teen e eens 15
Joseph v. State,
336 So.3d 218 (Fla. 2022), cert. denied, Joseph v. Florida, 148 S.Ct. 183 (2022) .. 20
Kansas v. Carr,
577 U.S. 108 (2016) .. 0... eens 13,16,19,20,21
Lear v. Cowan,
220 F.3d 825 (7th Cir. 2000) .... 2... ee eens 11
Lockett v. Ohio,
438 U.S. 586 (1978) .. 0... eee eee eees 7,8,9,10
People v. McDaniel,
493 P.3d 815 (2021), cert. denied, McDaniel v. California, 142 S.Ct. 2877 (2022) . 21
McKenzie v. State,
333 So.3d 1098 (Fla. 2022),
cert. denied, McKenzie v. Florida, 143 S.Ct. 230 (2022)................0005 15,20
McKinney v. Arizona,
140 S.Ct. 702 (2020)... ee eect eeeenes passim
Mosley v. State,
349 So.8d 861 (Fla. 2022)... 0... ee eens passim
Muhammad v. State,
782 So.2d 343 (Fla. 2001)... 0.2... cee eee eee teens 5
Mullaney v. Wilbur,
421 U.S. 684 (1975) 20 teen ee ee ee cena 15
Newberry v. State,
288 So.3d 1040 (Fla. 2019),
cert. denied, Newberry v. Florida, 141 S.Ct: 625 (2020)..................005. 20
Penry v. Lynaugh,
492 U.S. 302 (1989) .. 0. cece ce cece ccc ceeeeeeeseueeueeseeeereas 10
State v. Poole,
297 So.3d 487 (Fla. 2020),
cert. denied, Poole v. Florida, 141 S.Ct. 1051 (2021) .................... passim
Ring v. Arizona,
536 U.S. 584 (2002) 0... ete eens 17,18,19
Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,
482 U.S. 182 (1987) 2... ee eee eee tne ete eens 11,21
Rogers v. State,
285 So.3d 872 (Fla. 2019),
cert. denied, Rogers v. Florida, 141 S.Ct. 284 (2020) ...................04- 14,20
Russ v. State,
73 So.8d 178 (Fla. 2011)... 2... ete ee nee 5
Santiago-Gonzalez v. State,
301 So.3d 157 (Fla. 2020),
cert. denied, Santiago-Gonzalez v. Florida, 141 S.Ct. 2828 (2021) ............. 20
Sattazahn v. Pennsylvania,
537 U.S. 101 (2008) 2... eee tent en eee ees 18
Schad v. Arizona,
5O1 U.S. 624 (1991) 0. eee eee eee e eee neees 15
Sievers vu. State,
__ §0.3d__, 47 Fla. L. Weekly S285, 2022 WL 16984701(Fla. Nov. 17, 2022)... 5
Skipper v. South Carolina,
476 U.S. 1 (1986) 20. tence nent n eee ee eeees 7
Spencer v. State,
615 So.2d 688 (Fla. 1998)... 0... ent eee enee 1,5
State v. Trail,
981 N.W.2d 269 (Neb. 2022)... 0.0 ct eee ees 21
vi
United States v. Tsarnaev,
142 S.Ct. 1024 (2022)... 0. ec en tee eee passim
State v. Whitaker,
196 N.E.3d 863 (Ohio 2022)... 0.0.0... eee nee eee 21
Woodbury v. State,
320 So.3d 631 (Fla. 2021),
cert. denied, Woodbury v. Florida, 142 S.Ct. 1185 (2022) ...............0005. 20
CONSTITUTIONAL PROVISIONS
U.S. Const. Amend. VI... 2... ee ence een ees passim
U.S. Const. Amend. VIII... 2... eee eee passim
U.S. Const. Amend. XIV 2.2.0... cee eee ee ene eees passim
STATUTES
18 U.S.C. § 85910)... ete eee eee ee ee eee ee eee 8,9
18 U.S.C. § 8598(C). nee eee ene eee e teen eens 9
28 U.S.C. § 1257.0 eet ee ee eee eee een eee 15
28 U.S.C. § 1257 (a). 0 ee eee eee eee ee eens 2
28 U.S.C. § 2101(d). 2. ec ee nee e eee eee ees 2
§ 90.401, Fla. Stat. (2022)... 2... eee eee eens 7
§ 921.141(1), Fla. Stat. (2022)... 0.0... e cece cece ee ees 7
§ 921.141(2), Fla. Stat. (2022). 0.0... 0.0... eee eee 14
§ 921.141(2)(b)(2), Fla. Stat. (2022)... 0.0.0.0... eee eee 14,19
§ 921.141(8)(a), Fla. Stat (2022) ... 0... eee 15
RULES
Sup. Ct. R. 100)... tenet eee eee eens 11,21
Sup. Ct. BR. 13.3... 0.00 oo ee cites we tee & nome nts Bw erele ete we mmee ee eee eee 2
vii
In the
Supreme Court of the Gnited States
No. 22-6488
JOHN F. MOSLEY, JR., Petitioner,
v.
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 Mosley v. State, 349 So.3d
861 (Fla. 2022) (SC20-195).'
JURISDICTION
On September 15, 2022, the Florida Supreme Court vacated the death sentence
following the second penalty phase and remanded for a new Spencer hearing.” Mosley
v. State, 349 So.3d 861 (Fla. 2022) (SC20-195). On September 29, 2022, Mosley filed
! The pleadings filed in the direct appeal of the resentencing are available online on the Florida
Supreme Court’s website under case number SC20-1985.
2 Spencer v. State, 615 So.2d 688 (Fla. 1993).
1
a motion for rehearing in the Florida Supreme Court. On October 11, 2022, the Florida
Supreme Court denied the rehearing. On January 5, 2023, Mosley 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). Petitioner asserts jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The constitutional provisions involved are the Sixth Amendment right-to-a-jurytrial provision, the Eighth Amendment cruel and unusual punishment provision, and
the Fourteenth Amendment due process provision.
The Sixth Amendment to the United States Constitution, provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.
U.S. Const. Amend. VI.
The Eighth Amendment to the United States Constitution, 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, 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.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Mosley was convicted of two counts of first-degree murder and sentenced to
death for the murder of his infant son.
Facts of the case
On April 22, 2004, Mosley, to avoid paying child support, strangled his
girlfriend, Lynda Wilkes, to death and asphyxiated their ten-month old son, Jay-Quan,
by placing the infant in a garbage bag and tying the bag closed. Mosley v. State, 46
So.3d 510, 514-16 (Fla. 2009). Later that evening, with the bodies in the back of the
Suburban, he drove sixty miles to Waldo, Florida. Id. at 515. He drove down a dirt
road and disposed of the girlfriend’s body by burning it. He then drive to Ocala and
threw the garbage bag with his infant son’s body in a dumpster behind a Winn-Dixie
store. Id. at 515.
The co-perpetrator, fifteen year-old Bernard Griffin, who Mosley paid $100.00
dollars to help him, told his mother about the crime. Mosley, 46 So.3d at 516. Griffin
confessed and led law enforcement to the girlfriend’s body in Waldo. Jd. at 516. The
infant’s body was never recovered. Jd. Cell phone records established that Mosley
made an phone call at 2:24 a.m., on April 23, 2004, near the location of the girlfriend’s
body. Id. The girlfriend’s DNA was located in the Suburban.
Procedural history
Mosley was convicted of two counts of first-degree murder and sentenced to
death for the murder of his infant son. Mosley, 46 So.3d at 516, 518. Years later, he
was granted a resentencing based on Hurst v. State, 202 So.3d 40 (Fla. 2016). See
Mosley v. State, 209 So.8d 1248, 1284 (Fla. 2016) (affirming the denial of the
postconviction motion regarding the guilt phase issues but reversing for a new penalty
phase based on Hurst v. State).
At the second penalty phase, Mosley called his mother to testify in mitigation.
Mosley v. State, 349 So.3d 861, 865 (Fla. 2022). There was a proffer from the mother
regarding the sexual abuse of his sisters by his father. The trial court refused to admit
the testimony regarding the sexual abuse of his sisters. Id. at 865. The trial court ruled
that because the father was not a witness, his credibility was not at issue, and there
was no evidence that Mosley himself was the victim of the sexual abuse or involved
with the abuse. (T. 829-32). His mother testified regarding his father being physically
abusive to Mosley and his being raised by his grandmother. Id. at 865.
The jury unanimously found that the State had proven four aggravating factors:
(1) the murder was especially heinous, atrocious, or cruel; (2) the murder was
committed in a cold, calculated, and premeditated manner; (3) the victim was less than
twelve years of age; and (4) Mosley was previously convicted of another capital
murder. Mosley, 349 So.3d at 865. The jury unanimously found that the aggravating
factors were sufficient to impose the death penalty and found no mitigating
circumstances. Id. at 865. And the jury unanimously found that the aggravating
factors outweighed the mitigating circumstances. Id. The trial court again sentenced
Mosley to death for the murder of his infant son. Jd. at 866.
In the direct appeal of the resentencing to the Florida Supreme Court, Mosley
raised six issues. The Florida Supreme Court rejected the argument that the trial
court had improperly excluded his mother’s proposed mitigation testimony that his
father had sexually abused two of his sisters at the penalty phase. Mosley, 349 So.3d
at 870. The Florida Supreme Court also rejected a claim that the trial court committed
fundamental error by failing to instruct the jury that it must find beyond a reasonable
doubt that the aggravating factors were sufficient to justify death and that the
aggravating factors outweighed the mitigating factors. Id. at 870.
The Florida Supreme Court vacated the death sentence based on a violation of
Faretta v. California, 422 U.S. 806 (1975), at the Spencer hearing and remanded for a
new Spencer hearing at which Mosley would be permitted to represent himself but did
not grant Mosley a third penalty phase. Mosley, 349 So.3d at 866, 870. The dissent
would have affirmed the death sentence based on a finding that Mosley’s request for
self-representation during Spencer hearing was untimely. Mosley, 349 So.3d at 870-71
(Muniz, J., dissenting).°
On January 5, 2023, Mosley, represented by the Office of the Public Defender
of the Second Judicial Circuit of Florida, filed a petition for a writ of certiorari in this
Court raising two issues.
3 The purpose of a Spencer hearing is multifaceted. Such hearings are held in all capital cases
to give the defendant, his counsel, and the State an opportunity to be heard before sentencing; to afford
both the State and the defendant an opportunity to present additional evidence; to allow both sides to
comment on, or rebut, information in the presentence investigation (PSI) or a medical report; and to
afford the defendant an opportunity to be heard in person prior to the final sentencing. Szevers v. State,
__So.3d__, 47 Fla. L. Weekly S285, 2022 WL 16984701(Fla. Nov. 17, 2022) (citing Spencer, 615 So.2d
at 691). But the main purpose of a Spencer hearing is to allow the defendant to present additional
mitigation to the trial court alone that might not be viewed as mitigating by a jury, such as illegal drug
use. Cf. Doty v. State, 170 So.3d 731, 736 (Fla. 2015). Spencer hearings can be quite extensive in cases
where the capital defendant waived the presentation of mitigation to the jury, but special mitigation
counsel was appointed by the trial court to present mitigation to the judge, regardless of the defendant’s
wishes, so that the Florida Supreme Court can perform its traditional, but recently abolished,
proportionality review. See, e.g., Russ v. State, 73 So.3d 178, 186 (Fla. 2011); Muhammad v. State, 782
So.2d 343, 364-65 (Fla. 2001) (holding a trial court has the discretion to appoint special mitigation
counsel in cases where a capital defendant waives the presentation of mitigation to the jury to facilitate
proportionality review).
REASONS FOR DENYING THE WRIT
ISSUE I
WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION
OF THE FLORIDA SUPREME COURT AFFIRMING THE EXCLUSION
OF TESTIMONY THAT THE DEFENDANT’S FATHER SEXUALLY
ABUSED HIS SISTERS AS MITIGATION DURING THE PENALTY
PHASE AND REJECTING A CLAIM THAT THE EIGHTH
AMENDMENT REQUIRES THE ADMISSION OF ANY EVEN
MARGINALLY RELEVANT MITIGATING EVIDENCE.
Petitioner Mosley seeks review of the Florida Supreme Court’s decision affirming
the exclusion of evidence regarding his father’s sexual abuse of his sisters at the
penalty phase because it did not relate to the defendant himself. There is no conflict
between this Court’s Eighth Amendment jurisprudence and the Florida Supreme
Court’s decision affirming the exclusion of this mitigation testimony about the father’s
behavior towards his other children. There certainly is no conflict with this Court’s
recent decision in United States v. Tsarnaev, 142 8.Ct. 1024, 1037-39 (2022), which
rejected the argument that the Eighth Amendment requires the admission of any even
marginally relevant mitigating evidence. This Court has already addressed this issue
and rejected such an “extreme” reading of its Eighth Amendment caselaw. There is
also no conflict between the lower appellate courts and the Florida Supreme Court’s
decision. Review of this issue should be denied.
The Florida Supreme Court’s decision in this case
The Florida Supreme Court rejected the argument that the trial court
improperly excluded his mother’s testimony that his father had sexually abused two
of his sisters. Mosley v. State, 349 So.3d 861, 870 (Fla. 2022). The Florida Supreme
Court found no abuse of discretion “because the trial court reasonably concluded that
Mosley’s mother’s proffered testimony did not establish that she had personal
knowledge of the sexual abuse or how it affected Mosley.” Id. at 870.
Florida’s death penalty statute
Florida’s death penalty statute, § 921.141(1), Florida Statutes (2022), provides,
in pertinent part:
In the proceeding, evidence may be presented as to any matter that the
court deems relevant to the nature of the crime and the character of the
defendant and shall include matters relating to any of the aggravating
factors enumerated in subsection (6) and for which notice has been
provided pursuant to s. 782.04(1)(b) or mitigating circumstances
enumerated in subsection (7). Any such evidence that the court deems to
have probative value may be received, regardless of its admissibility
under the exclusionary rules of evidence, provided the defendant is
accorded a fair opportunity to rebut any hearsay statements.
(emphasis added). Florida’s evidence code defines relevant evidence as “evidence
tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2022).
No conflict with this Court’s Eighth Amendment jurisprudence
There is no conflict between this Court’s Eighth Amendment jurisprudence and
the Florida Supreme Court’s decision in this case. Opposing counsel, relying on Lockett
v. Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Skipper
v. South Carolina, 476 U.S. 1, 4-5 (1986), insists that Eighth Amendment mandates
that any evidence that can possibly be labeled as mitigation cannot be excluded.
But this Court recently rejected such an “extreme” reading of Lockett and its
progeny. In United States v. Tsarnaev, 142 S.Ct. 1024 (2022), this Court, in the federal
capital prosecution of the Boston Marathon bomber, held that the federal district court
did not abuse its discretion by excluding evidence sought to be introduced as mitigation
by the defense at the capital sentencing. At the sentencing phase, Tsarnaev sought to
introduce evidence that the co-perpetrator, his elder brother, masterminded the
bombing and had pressured him into participating. Tsarnaev, 142 S.Ct. at 1032. He
wanted to introduce evidence of an unsolved triple homicide, that had occurred years
earlier, in which his older brother was a suspect. During the investigation of the
bombing, the FBI interviewed a friend of his older brother, who confessed to being
involved in the triple homicide but who pointed to the older brother as the mastermind
and actual killer of all three victims in the prior crime. Jd. at 1032-33. The friend,
however, attacked the FBI agents during the interview and was killed by the agents
before he could provide a written confession. Jd. at 1033. The prosecution filed a
motion to exclude all of the evidence regarding the triple homicide from the sentencing
phase of the younger brother, arguing it was irrelevant, and alternatively, that it
lacked probative value and was likely to confuse the issues. The federal district court
granted the motion and excluded the evidence of the prior triple homicide noting that
everyone involved, including the friend who confessed, was dead. Tsarnaev argued
that his older brother was the more culpable of the two brothers at the sentencing
phase but without this testimony as support.
Justice Thomas, writing for the seven-justice majority, rejected Tsarnaev’s
argument that the triple homicide was evidence of his brother’s domineering nature
that supported his mitigation defense that his older brother was the “ringleader.”
Tsarnaev, 142 S.Ct. at 1032, 1037. This Court found the district court’s conclusion that
the triple homicide, committed years ago, was “without any probative value” and would
be nothing more than “a waste of time” to be reasonable and not an abuse of discretion.
Id. at 1033, 1037. This Court noted that the defendant himself had no role in the triple
homicide. Jd. at 1041. The Tsarnaev Court reasoned that the evidence regarding the
triple homicide certainly did not show that, almost two years later, the older brother
dominated Tsarnaev in a manner that would mitigate his culpability. Id.
Tsarnaev argued that Federal Death Penalty Act, 18 U.S.C. § 3591(c), violates
the Eighth Amendment if it excluded any even “marginally” relevant mitigating
evidence, relying on both Lockett v. Ohio and Eddings v. Oklahoma. Tsarnaev, 142
S.Ct. at 1037-38. But this Court found such a reading of Lockett to be “extreme,”
noting that both the Federal Government and the States have the authority to set
reasonable limits on the admission of mitigating evidence. Jd. at 1038. The majority
noted that § 3591(c) limits evidence at the sentencing phase to “any matter relevant
to the sentence, including any mitigating or aggravating factor.” Id. at 1037. But that,
in this Court’s words, does not make capital sentencing proceedings “evidentiary
free-for-alls.” Id. at 1037. This Court explained that 18 U.S.C. § 8593(c) was a “highly
permissive regime that allows criminal defendants to introduce a wide range of
normally inadmissible evidence” and does not exclude “any category of mitigating
evidence.” Jd. at 1038. Rather, the federal death penalty statute simply preserves the
traditional gatekeeping function of judges to assess relevancy and probative value of
evidence. * This Court rejected the Eighth Amendment challenge to § 3593(c). Id. at
1039.
Here, as in Tsarnaev, the state trial court did not abuse its discretion in
excluding the proposed mitigation. Just as in Tsarnaev, where the defendant himself
had no role in the triple homicide that he sought to admit as mitigation, Mosley had
no role in the sexual abuse that he sought to admit as mitigation. It was his sisters
who were the victims of the abuse, not him. And, here, unlike in Tsarnaev, the father
was not involved at all in the two murders that Mosley was being sentenced for
committing. The father did not even testify at the second penalty phase. This
proposed mitigation has even less relevance than the proposed mitigation in Tsarnaev.
The Eighth Amendment does not mandate the admission of any and all evidence
merely because the defendant encants the word “mitigation.” State penalty phases are
not required to be “evidentiary free-for-alls,” any more than federal penalty phases
4 Indeed, the Lockett Court, in a footnote to its definition of mitigation, stated that “nothing in
this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on
the defendant's character, prior record, or the circumstances of his offense.” Lockett, 438 U.S. at 604n.12.
are. Tsarnaeuv, 142 S.Ct. at 1037.
Opposing counsel totally ignores this Court’s recent decision in J’sarnaev in the
petition. Tsarnaev is not cited or distinguished in any manner. Petitions for writ of
certiorari that do not account for this Court’s most recent decision in an area do not
warrant this Court’s serious consideration.
Furthermore, a parent’s conduct toward a defendant’s other siblings does not
meet the constitutional definition of mitigation. The constitutional definition of
mitigation is “any aspect of the defendant's character, record, background, or
circumstances of the offense” that would mitigate against the imposition of the death
penalty. Lockett v. Ohio, 438 U.S. 586, 601 (1978) (plurality) (stating “the sentencing
process must permit consideration of the ‘character and record of the individual
offender and the circumstances of the particular offense”); id. at 604 (stating that the
sentencer not be precluded from considering, as a mitigating factor, “any aspect of a
defendant’s character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death”); Eddings v. Oklahoma,
455 U.S. 104, 110 (1982) (adopting the Lockett definition of mitigation as “any aspect
of the defendant’s character or record or any circumstances of the offense”); Penry v.
Lynaugh, 492 U.S. 302, 318 (1989) (defining mitigation as “evidence relevant to the
defendant’s background or character or to the circumstances of the offense that
mitigate against imposing the death penalty”); id. at 327-28 (stating that the “jury
must be allowed to consider and give effect to mitigating evidence relevant to a
defendant’s character or record or the circumstances of the offense”). Mosley’s father’s
sexual abuse of his sisters is not any aspect of his own “character or background, or the
circumstances of the offense.” The father’s conduct has no bearing on the defendant’s
character, prior record, or the circumstances of these murders.
Not everything is mitigating. For example, a jury’s lingering or residual doubt
10
over a defendant’s guilt is not considered proper mitigation because it is not an aspect
of the defendant’s “character, record, or a circumstance of the offense,” and therefore,
does not meet the constitutional definition of mitigation. Franklin v. Lynaugh, 487 U.S.
164, 174 (1988); cf. Graham v. Collins, 506 U.S. 461, 500 (1993) (Thomas, J.,
concurring) (expressing astonishment that defendants would attempt the “mockery”
of raising a diagnosis of antisocial personality disorder as mitigation because all the
diagnosis demonstrates is that that the defendant is “a sociopath”); Lear v. Cowan, 220
F.3d 825, 829 (7th Cir. 2000) (observing that antisocial personality disorder is “fancy
language for being a murderer”). The exclusion of the father’s sexual abuse of the
sisters does not conflict with this Court’s definition of mitigation.
There is no conflict with this Court's Eighth Amendment mitigation
jurisprudence and the Florida Supreme Court’s decision in this case.
No conflict with the lower appellate courts
There is also no conflict between the decision of any federal appellate court or
any state supreme court and the Florida Supreme Court’s decision in this case. 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); see
also Sup. Ct. R. 10(b) (listing conflict among federal appellate courts and state supreme
courts as a consideration in the decision to grant review). 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 courts follow this Court’s recent decision in Tsarnaev. See e.g.,
Fauber v. Davis, 43 F.4th 987, 1007-08 (9th Cir. 2022) (holding a plea offer does not
11
qualify as constitutionally relevant mitigating evidence because a plea offer is not an
“aspect of a defendant’s character or record or any of the circumstances of the offense”
which is the traditional constitutional definition of mitigation citing T’sarnaev).
Opposing counsel does not cite to any decision of any federal circuit court or state
supreme court opinion, decided after Tsarnaev, holding that any mitigation evidence,
no matter how unrelated to the defendant himself, must be admitted as mitigation
under the Eighth Amendment.
There is no conflict between the Florida Supreme Court’s decision 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.
ISSUE II
WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION
OF THE FLORIDA SUPREME COURT REJECTING A CLAIM THAT
THE SIXTH AMENDMENT RIGHT TO A JURY TRIAL AND DUE
PROCESS REQUIRES THAT ALL FINDINGS RELATED TO CAPITAL
SENTENCING BE MADE BY THE JURY AT THE BEYOND A
REASONABLE DOUBT STANDARD OF PROOF.
Petitioner Mosley seeks review of the Florida Supreme Court’s decision rejecting
a claim that the Sixth Amendment right-to-a-jury-trial provision and due process
requires that all additional determinations, such as the sufficiency of the aggravating
factors and weighing of the aggravation against the mitigation, be made by the jury
at the beyond a reasonable doubt standard of proof. First, the Florida Supreme Court’s
interpretation of Florida’s death penalty statute is solely a matter of state law. This
Court is bound by a state court’s reading of a state statute. Alternatively, there is no
conflict between this Court’s Sixth Amendment or due process jurisprudence and the
Florida Supreme Court’s decision in this case. As this Court has explained, many of
these additional determinations, such as sufficiency and weighing, are not even factual
12
determinations. Weighing, for example, is a “question of mercy” rather than a factual
determination. Kansas v. Carr, 577 U.S. 108, 119 (2016). Standards of proof do not
apply to such determinations. Jd. at 119. Furthermore, the view that all factual
determinations must be made by the jury is contrary to this Court’s decision in Alleyne
v. United States, 570 U.S. 99 (2013). The Alleyne Court explained that it is only factual
determinations that increase or “aggravate” the sentence that must be made by the
jury; additional determinations within the already increased sentencing range may be
made by the judge alone. As this Court recently explained in McKinney v. Arizona, 140
S.Ct. 702 (2020), in capital cases, under most state sentencing schemes, the fact that
increases the sentence to a death sentence is the finding of one aggravating factor and
therefore, it is only the finding of that one fact that constitutionally must be made by
the jury. The Florida Supreme Court’s holding in State v. Poole, 297 So.3d 487, 505
(Fla. 2020), that the state’s death penalty statute only requires a jury finding of one
aggravating factor at the beyond a reasonable doubt standard for a Florida capital
defendant to be eligible for a death sentence exactly mirrors this Court’s reasoning in
McKinney. There is no conflict between this Court’s jurisprudence and the Florida
Supreme Court’s decision in this case. Nor is there any conflict between the Florida
Supreme Court’s decision in this case and that of the lower appellate courts. Therefore,
review of this issue should be denied.
The Florida Supreme Court's decision in this case
The Florida Supreme Court rejected the claim that the trial court committed
fundamental error by failing to instruct the jury that it must find beyond a reasonable
doubt that the aggravating factors were sufficient to justify death and that the
aggravating factors outweighed the mitigating factors. Mosley v. State, 349 So.3d 861,
870 (Fla. 2022). The Florida Supreme Court explained that the sufficiency of the
13
aggravating factors and the weighting of the aggravating factors against the mitigating
circumstances “are not elements that must be determined by the jury beyond a
reasonable doubt.” Id. at 870 (citing Rogers v. State, 285 So.3d 872, 885-86 (Fla. 2019)).
Florida’s death penalty statute
Florida’s death penalty statute, § 921.141(2), Florida Statutes (2022), provides:
Findings and recommended sentence by the jury.--This subsection applies
only if the defendant has not waived his or her right to a sentencing
proceeding by a jury.
(a) After hearing all of the evidence presented regarding aggravating
factors and mitigating circumstances, the jury shall deliberate and
determine if the state has proven, beyond a reasonable doubt, the
existence of at least one aggravating factor set forth in subsection (6).
(b) The jury shall return findings identifying each aggravating factor
found to exist. A finding that an aggravating factor exists must be
unanimous. If the jury:
1. Does not unanimously find at least one aggravating factor, the
defendant is ineligible for a sentence of death.
2. Unanimously finds at least one aggravating factor, the defendant is
eligible for a sentence of death and the jury shall make a recommendation
to the court as to whether the defendant shall be sentenced to life
imprisonment without the possibility of parole or to death. The
recommendation shall be based on a weighing of all of the following:
a. Whether sufficient aggravating factors exist.
b. Whether aggravating factors exist which outweigh the mitigating
circumstances found to exist.
c. Based on the considerations in sub-subparagraphs a. and b., whether
the defendant should be sentenced to life imprisonment without the
possibility of parole or to death.
(c) If a unanimous jury determines that the defendant should be
sentenced to death, the jury's recommendation to the court shall be a
sentence of death. If a unanimous jury does not determine that the
defendant should be sentenced to death, the jury's recommendation to the
court shall be a sentence of life imprisonment without the possibility of
parole.
(emphasis added). The explicit text of Florida’s death penalty statute provides that a
Florida capital defendant is “eligible” for a death sentence if the penalty phase jury
unanimously finds “at least one aggravating factor.” § 921.141(2)(b)(2), Fla. Stat.
(2022). The Florida Supreme Court has read the state’s death penalty statute to
require only that the jury find one aggravating factor unanimously at the beyond a
14
reasonable doubt standard of proof for a Florida capital defendant to be eligible for the
death penalty. State v. Poole, 297 So.3d 487, 505 (Fla. 2020), cert denied, Poole v.
Florida, 141 S.Ct. 1051 (2021); McKenzie v. State, 333 So.3d 1098, 1105 (Fla. 2022)
(declining to revisit what was settled in State v. Poole which was “only the existence
of a statutory aggravating factor must be found beyond a reasonable doubt”), ceri.
denied, McKenzie v. Florida, 143 S.Ct. 230 (2022). The Florida Supreme Court has also
interpreted the statutory phrase “whether sufficient aggravating factors exist,” to
mean “one or more” aggravators. State v. Poole, 297 So.3d at 502 (citing § 921.141(8)(a),
Fla. Stat. and quoting prior cases).
Interpretation of a state statute is a matter of state law
This Court lacks jurisdiction over issues that do not present federal questions.
28 U.S.C. § 1257; Johnson v. Williams, 568 U.S. 289, 309 (2013) (Scalia, J., concurring)
(noting that 28 U.S.C. § 1257 imposes a federal-question requirement as a condition
of this Court’s appellate jurisdiction). The interpretation of a state statute by a state
court is a matter of state law, not a matter of federal constitutional law. Johnson v.
United States, 559 U.S. 183, 138 (2010) (stating we are “bound by the Florida Supreme
Court’s interpretation of state law” including its determination of the elements of a
state statute citing Johnson v. Fankell, 520 U.S. 911, 916 (1997)); Schad v. Arizona,
501 U.S. 624, 636 (1991) (stating: “we are not free to substitute our own interpretations
of state statutes for those of a State’s courts”); Mullaney v. Wilbur, 421 U.S. 684, 691
(1975) (stating that state courts are the ultimate expositors of state law and that “we
are bound by their constructions except in extreme circumstances’).
Whether Florida’s death penalty statute requires the jury make the additional
sentencing determinations, such as sufficiency of the aggravators and weighing, is
solely a matter of state law, already definitively and finally decided by the Florida
15
Supreme Court adversely to the petitioner’s position in State v. Poole. The Florida
Supreme Court has held that only the aggravating factors must be found beyond a
reasonable doubt and this Court is not free to disagree. While this Court can declare
the statute, as interpreted by the state courts, unconstitutional, this Court is not free
to read a state statute differently from the state’s highest court. There is no federal
question presented in this issue and therefore, this Court lacks jurisdiction to grant
review of this issue.
No conflict with this Court’s jurisprudence
There is no conflict between this Court’s Sixth Amendment or due process
jurisprudence and the Florida Supreme Court’s decision in this case.
Regarding the standard of proof in connection with mitigation and weighing, this
Court has noted that many mitigating circumstances, such a mercy, “simply” are not
factual determinations. Kansas v. Carr, 577 U.S. 108, 121 (2016). This Court also
observed that mitigation is “largely a judgment call” or “perhaps a value call” rather
than purely a factual determination. Carr, 577 U.S. at 119. This Court additionally
observed that the ultimate question of whether mitigating circumstances outweigh
aggravating circumstances “is mostly a question of mercy” and it would “mean nothing”
to tell the jury that the defendants must deserve mercy beyond a reasonable doubt. Id.
at 119. The Carr Court observed that jury instructions on the burden-of-proof
regarding such determinations would only produce jury confusion. Jd. This Court’s
view is that, in the last analysis, “jurors will accord mercy if they deem it appropriate,
and withhold mercy if they do not.” Because sufficiency and weighing are not factual
determinations, no standard of proof applies to those determinations.
Regarding the Sixth Amendment, this Court recently explained in McKinney v.
Arizona, 140S.Ct. 702 (2020), that the right-to-a-jury trial provision only requires jury
16
findings regarding the aggravating circumstance, not weighing. This Court stated that
capital defendants are entitled to “a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment—in particular, the
finding of an aggravating circumstance.” McKinney, 140 S.Ct. at 707. But this Court
also explained that defendants are not constitutionally entitled to ajury determination
of weighing or to a jury determination of the “ultimate sentencing decision.” Id. at 707.
“States that leave the ultimate life-or-death decision to the judge may continue to do
so.” McKinney, 140 8.Ct. at 708. Neither Ring v. Arizona, 536 U.S. 584 (2002), nor
Hurst v. Florida, 577 U.S. 92 (2016), require jury weighing of the aggravation against
the mitigation. Jd. at 708. Constitutionally, judges may perform the weighing function,
including appellate judges. Indeed, the basic holding of McKinney was to reaffirm the
concept of appellate reweighing, established in Clemons v. Mississippi, 494 U.S. 738
(1990), which permitted reviewing courts to reweigh the aggravation against the
mitigation. Jd. at 709. There is no conflict between this Court’s decision in McKinney
and the Florida Supreme Court’s decision in State v. Poole because the Florida
Supreme Court’s reasoning in State v. Poole exactly mirrors this Court’s reasoning in
McKinney.
Opposing counsel’s insistence that all additional determinations required for a
jury to recommend a death sentence must also be made by the jury is contrary to this
Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013), despite opposing
counsel’s reliance on the case. Pet. at 12,17. The Alleyne Court explained that the
“touchstone for determining whether a fact must be found by a jury beyond a
reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the
charged offense.” Alleyne, 570 U.S. at 107. When a finding of fact “aggravates” the
punishment, that fact necessarily forms a constituent part of a new offense and must
be found by the jury. Jd. at 114-15. If the aggravating fact produces a higher range
17
of punishment, that “conclusively indicates that the fact is an element” of the
aggravated crime and the Sixth Amendment requires it be submitted to the jury and
found beyond a reasonable doubt. Jd. at 116. The Alleyne Court held that a jury “must
find any facts that increase either the statutory maximum or minimum” but also
observed that additional factual determinations within the range may be made by the
judge. The Alleyne Court specifically noted that its holding “does not mean that any
fact that influences judicial discretion must be found by a jury.” Id. at 116. Rather,
it stated that this Court has long recognized, and continues to recognize, that judicial
factfinding related to sentencing “does not violate the Sixth Amendment.” Id. at 116
(citing Dillon v. United States, 560 U.S. 817, 828 (2010)). Judges may still make factual
findings to select a punishment within limits fixed by law and, while such fact finding
may lead the judge to select a sentence that is more severe, “the Sixth Amendment
does not govern” that aspect of sentencing Alleyne, 570 U.S. at 113, n.2. The McKinney
Court more recently observed that this Court has “carefully avoided any suggestion”
in its line of cases based on Apprendi v. New Jersey, 530 U.S. 466 (2000), that it was
“impermissible for judges to exercise discretion—taking into consideration various
factors relating both to offense and offender—in imposing a judgment within the range
prescribed by statute.” McKinney, 140 S.Ct. at 707.
This Court has repeatedly observed that it is aggravators that are elements of
the greater offense of capital murder. Ring v. Arizona, 536 U.S. 584, 609 (2002) (stating
that because aggravating factors “operate as the functional equivalent of an element
of a greater offense” of capital murder, “the Sixth Amendment requires that they be
found by a jury”); Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003) (plurality
opinion) (explaining, that “for purposes of the Sixth Amendment’sjury-trial guarantee,
the underlying offense of ‘murder is a distinct, lesser included offense of ‘murder plus
one or more aggravating circumstances” which “increases the maximum permissible
18
sentence to death” and therefore, a jury, and not a judge, must find the existence of any
aggravating circumstances beyond a reasonable doubt); McKinney, 140 8.Ct. at 705
(stating that under “this Court’s precedents, a defendant convicted of murder is eligible
for a death sentence if at least one aggravating circumstance is found,” citing
numerous cases). So, because it is the aggravator that increases the penalty to death,
it is only aggravating factors that must be found at the beyond a reasonable doubt
under this Court’s due process jurisprudence. Only one fact increases a sentence to a
death sentence in Florida and that fact, under the text of Florida’s death penalty
statute and the Florida Supreme Court’s controlling precedent of Siate v. Poole, is the
finding of one aggravating factor. § 921.141(2)(b)(2), Fla. Stat. (2022). It is that fact,
and that fact alone, that the jury must find at the beyond a reasonable doubt standard
of proof.
Opposing counsel argues that mitigation is not merely an opportunity for mercy
but a “necessary step” in Florida’s death penalty statute for a jury to recommend a
death sentence. Pet. at 20. This Court in Carr did not view mitigation as a factual
determination, but even if mitigation is viewed as a factual determination, mitigation
does not increase or aggravate the sentence, as required for a fact to operate as an
element. To the contrary, mitigation operates to decrease the sentence. Mitigation,
therefore, is not an element under the definition used in Ring or Alleyne. Mitigation
is a sentencing factor that constitutionally may be determined by a judge alone at a
lower standard of proof. A “necessary step” does not an element make. Weighing is
also a necessary step in most capital sentencing schemes but this Court rejected the
argument that weighing had to be performed by the jury in McKinney. Opposing
counsel’s position really amounts to a claim that the constitution requires jury
sentencing in capital cases but this Court has repeatedly rejected that view, including
most recently in McKinney. McKinney, 140 S.Ct. at 708 (“Ring has nothing to do with
19
jury sentencing”).
Furthermore, as opposing counsel acknowledges, this Court has repeatedly
denied similar petitions raising these same arguments, including petitions raising this
same issue by this same attorney.° This Court should likewise deny review of this
petition.
Moreover, the petition does not acknowledge or distinguish Carr or McKinney.
Again, petitions for writ of certiorari that do not account for this Court’s recent
decisions in an area do not warrant this Court’s serious consideration.
There is no conflict with this Court’s Sixth Amendment or due process
jurisprudence and the Florida Supreme Court’s decision in this case.
No conflict with the lower appellate courts
There is also no conflict between the decision of any federal appellate court or
any state court of last resort and the Florida Supreme Court’s decision in this case. As
5 Rogers v. State, 285 So.3d 872, 885-86 (Fla. 2019), cert. denied, Rogers v. Florida, 141S8.Ct. 284
(2020) (No. 19-8478) (same office); Newberry v. State, 288 So.3d 1040, 1047 (Fla. 2019) (holding
sufficiency and weighing determinations “are not subject to the beyond a reasonable doubt standard of
proof’), cert. denied, Newberry v. Florida, 141 S.Ct. 625 (2020) (No. 20-5072) (same office); Bright v.
State, 299 So.3d 985, 998 (Fla. 2020), cert. denied, Bright v. Florida, 141 S.Ct. 1697 (2021) (No. 20-6824)
(same office); Santiago-Gonzalez v. State, 301 So.3d 157, 177 (Fla. 2020), cert. denied, Santiago-Gonzalez
v. Florida, 141 S.Ct. 2828 (2021) (No. 20-7495) (same office); Craven v. State, 310 So.3d 891, 902 (Fla.
2020), cert. denied, Craven v. Florida, 142 S.Ct. 199 (2021) (No. 20-8403) (same office); Craft v. State, 312
So.3d 45, 57 (Fla. 2020), cert. denied, Craft v. Florida, 142 S.Ct. 490 (2021) (No. 21-5280) (same issue
raised by the same attorney); Doty v. State, 313 So.3d 573, 577 (Fla. 2020), cert. denied, Doty v. Florida,
142 §.Ct. 449 (2021) (No. 21-5672) (same issue raised by the same attorney); Woodbury v. State, 320
So.3d 631, 656 (Fla. 2021), cert. denied, Woodbury v. Florida, 142 S.Ct. 1185 (2022) (No. 21-6393);
Deviney uv. State, 322 So.3d 568, 572-73 (Fla. 2021), cert. dented, Deviney v. Florida, 142 8.Ct. 908 (2022)
(No. 21-6429) (same issue raised by the same attorney); Allen v. State, 322 So.3d 589, 603 (Fla. 2021),
cert. denied, Allen v. Florida, 142 S.Ct. 904 (2022) (No. 21-6328) (same issue raised by the same
attorney); Davidson. v. State, 323 So.3d 1241, 1247-48 (Fla. 2021) (“Since Rogers, we have consistently
held the reasonable-doubt standard inapplicable to either the sufficiency or weighing determination’),
cert. denied, Davidson v. Florida, 142 S.Ct. 1152 (2022) (No. 21-6654) (same issue raised by the same
attorney); McKenzie v. State, 333 So.3d 1098, 1105 (Fla. 2022), cert. denied, McKenzie v. Florida, 148
S.Ct. 230 (2022) (No. 22-5088); Bell v. State, 336 So.3d 211, 217 (Fla. 2022), cert. denied, Bell v. Florida,
148 S.Ct. 184 (2022) (No. 21-8187) (same issue raised by the same attorney); Joseph v. State, 336 So.3d
218, 227, n.5 (Fla. 2022), cert. denied, Joseph v. Florida, 143 §.Ct. 183 (2022) (No. 21-8177).
20
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); see also Sup. Ct. R. 10(b) (listing conflict among federal appellate courts and
state supreme courts as a consideration in the decision to grant review). 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 course, follow Carr and McKinney. Opposing
counsel cites no federal circuit court holding that jury weighing or jury sentencing in
capital cases is constitutionally required by the Sixth Amendment after this Court’s
statements to the contrary in McKinney v. Arizona. Various state supreme courts have
followed this Court’s recent decision in McKinney. See, e.g., State v. Trail, 981 N.W.2d
269, 309 (Neb. 2022) (holding Nebraska’s sentencing scheme, which leaves to the
three-judge panel the ultimate life-or-death decision as well as the determinations of
whether the aggravating circumstances justify the death penalty and weighing “does
not violate the Sixth Amendment right to a jury trial” citing McKinney v. Arizona);
State v. Whitaker, 196 N.E.3d 863 (Ohio 2022) (rejecting an argument that a capital
defendant is entitled to a jury determination of the mitigation and weighing citing
McKinney v. Arizona); People v. McDaniel, 493 P.3d 815, 851, 859 (2021) (stating a
penalty phase jury’s sentencing decision “is not a traditional factual determination in
any relevant sense” and acknowledging this Court’s holding in McKinney v. Arizona
that the Constitution does not require a jury to perform the weighing or that the jury
make the ultimate sentencing decision in a capital case), cert. denied, McDaniel v.
California, 142 S.Ct. 2877 (2022). Opposing counsel does not even attempt in the
petition to establish any conflict between the Florida Supreme Court’s decision in State
21
v. Poole or in this case and that of any other state supreme court after this Court’s
decision in McKinney.
There is no conflict between the Florida Supreme Court’s decision 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.
In sum, the petition presents two issues—one of which this Court just recently
rejected in United States v. Tsarnaev and another one of which is a matter of state law
regarding the interpretation of a state statute by the state highest court over which
this Court lacks jurisdiction.
Accordingly, this Court should deny the petition.
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