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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