Opposition Brief — Michael A. Gordon, Petitioner v. Florida

No. 22-6725

In The

Supreme Court of the United States

MICHAEL A. GORDON,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

Rick A. Buchwalter

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32899-1050

Carolyn.Snurkowski@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

Capital Case

QUESTION PRESENTED

Whether the Florida Supreme Court’s decision eliminating its use of

proportionality review of capital cases, because its use violates the state

constitution violates the Eighth and Fourteenth Amendments, when Florida

currently employs multiple means to narrow down a defendant’s eligibility for

a death sentence?

il

TABLE OF CONTENTS

; PAGE(S)

QUESTION PRESENTED... cccccccceserceeeeseeesesscceeaeesscsensesseeeseeesscseeeeasnneneeesanaaees i

TABLE OF CONTENTS 0.0... cceeseeeeeeescsssnseneeceeeesecessnesessseeescaseaeaeesseseeeeseseeeseesegs ili

TABLE OF CITATIONS 0000... eeeeneeceeeesssscsaeeeeeeeesecesaeeeecssesessseaeeeeseessaeessessenseaaaees lv

OPINION BELOW .000000....ecccceeeeccccecceeneeeeeecsaaneaeneeeeneesecesaaeeaecaassessaceeeeeseeseaeanensseaauaaaaaees 1

STATEMENT OF JURISDICTION. .0000 ie ceccesseeeecsseeeeseeessesssssseecssneasseneeesessesnees 1

CONSTITUTIONAL PROVISIONS INVOLVED 0.0000... eeeceeesenceeeenceeeneneeeeeeeeneees 1

STATEMENT OF THE CASE AND FACTS Wooo. eee ceeceeeseceenseeceseeeesaeeseeneeeseeeenes 1

REASONS FOR DENYING THE WRIT o.oo... eesecceeeeeceeeeeeseessaeeeesnaaseeeeeaeenes 7

Whether the Florida Supreme Court’s decision eliminating its use of

proportionality review of capital cases, because its use violates the state

constitution, violates the Eighth and Fourteenth Amendments when

Florida currently employs multiple means to narrow down a defendant’s

eligibility for a death sentence? ................cccccececnnceeeeceeeceeeeeeeeseeeeesenseseeeaneeeeeenenees 7

A. The Florida Supreme Court’s Lawrence Decision.................:.cc:seesescseseeseeeees 8

B. Florida’s Capital Sentencing Scheme .................cssseccceesseseeneeeeceseesseseennnesesees 10

C. Racial Considerations Were Not Raised Below ...............::cccccccceesessnersnneeenes 20

D. Juror Unanimity is Not an Issue in This Case.................:ssccesssesssseensneeeceees 22

CONCLUSION ...0..... cc ceccssssssececceeseessnsceeseecesseseeeceeceeeceeecessncnansesseuaueeeeeseessneseeseeeeeenanaees 24

CERTIFICATE OF SERVICE 0000... ccccecccccccccccccecnesnessssenscqunsececseceecsaceaeeseeeseesseseaeaees 25

i

TABLE OF CITATIONS

Cases

Adams v. Roberston,

520 U.S. 83 (1997).....ccccccccccccccseeceeceseeseneeseseeseeeeecececessesscausanauaussecasansaeeesegsagsenecesesenners 21

Adarand Constructors, Inc. v. Mineta.,

B84 U.S. 108 (2001)... cece cccesseecccccsseeecnseesecnseseeesaeececssnssecceeueeeeececsegeasceaeeeeees 20

Allen v. Woodford,

395 F.3d 979 (Oth Cir. 2005)... ccccccessscceccesecccesseeecesececceaseecesseneasceseceensaseseesenuas 18

Braxton v. United States,

BOO U.S. B44 (1991)... ccccccccccccececcsecseceeceeceeeeeecseeesansrsssnssnscusnssscescsaceasesereeeeercs 17

Bush v. Singletary,

99 F.3d 373 (11th Cir. 1996)......0--sescseccssessseecssessesssesssesseesseesseessuesssesssesssessseessssesssee 18

Cardinale v. Louisiana,

B94 U.S. 437 (1969)... cccccscccccceceeececeesecesececcceeeeeesseueuausaeesnssnsanesgausegscscesscecceseers 21

Cobb v. Thaler,

682 F.3d 364 (Sth Cir. 2012)... eceesccccccccncesssnecceeenseseeececcecseceecseaseceecssessesseneess 18

Copenhefer v. Horn,

696 F.3d 377 (8d Cir. 2012)... escccecceeeccteaeecescnsecessaeeeceseceneaeseeanensrssseaeesees 18

Cutter v. Wilkinson,

544 U.S. 709 (ZOO)... ccccccccccececccecseceeceeccecceccssecseneesaeessnageageasersceeesseseseceseseeeees 20

Fisher v. Angelone,

163 F.3d 885 (4th Cir. 1998)... ccccccccccccccesseceeececscesseeececseneanenseesenceceeceeeeeeeeeeeeees 18

Foster v. State,

258 So. 8d 1248 (Fla. 2018) ooo... cccccccccecencecceeesscessasssecseeseceeesessssessesesareeevenceesens 10

Furman v. Georgia,

408 U.S. 288 (1972)... cccccccccececccececceecceceesesseesceeussssesseceeeeeesesereeesesesesersrars 9, 15, 16

Gordon v. State,

350 So. 3d 25 (Fla. 2022) oo... ceccecccccccccssssssecesececceeeeceeeesaneuegeanscsceeecsasecssaueseaessseneesseees 1

Gregg v. Georgia,

428 U.S. 158 (1976)... ecc ccc eeececcceceeeescceececcceccsessssessessecesesecsesessensasseseneuavecseceess 10

Hooks v. Branker,

348 Fed. Appx. 854 (4th Cir. 2009) 0.0.0.0... ccc cccccccccesecsccesseneaaeenseseseseseseceseceessneneenees 18

Howell v. Mississippi,

iv

543 U.S. 440 (2005)... cece ce seesessseeeneeesenesssensaeeeeesaseeeeeeeseceeeessssesseaeeeserecessnenseeees 21

Hurst v. State,

202 So. 3d 40 (Pla. 2016) ..........cccceccceeeececeeeeeeeceeeeeeeeeeeeseeneecessneeeeeaneeesseeseeeees 8, 11, 22

Jurek v. Texas,

AQ8B U.S. 262 (1976)........ccccccccccesssscececsssneceeesseceeeesseaeaeeceeeseeensaseeesseesuaeeeeseseeeereeenasenes 10

Lawrence v. State,

308 So. 3d 544 (Fla. 2020),

cert. denied 142 S. Ct. 188 (2021)............ccccscssccceeeeeeeeeeeeeeeeesenenceeeeseeeeeseeressnnaees passim

Lewis v. Jeffers,

497 U.S. 764 (1990)... ce ccceccceeeeeeecenneneececceceeeeeeceeeeeeesseessauecansaaeasecsensaacsneaseaeeeueuss 19

Lindsey v. Smith,

820 F.2d 1137 (11th Cir. 1987)..ccccccccccessescsesesecsssesssecssvecssssecsesssecsseceseessseesseesseeesseees 18

Mendoza v. Sec’y, Fla. Dept. of Corr.,

659 Fed. Appx. 974 (11th Cir. 2016) occ ee eeeesesssecreceeseneeeeecesessseasaeeeeeeeeeneaes 18

Middleton v. Roper,

498 F.3d 812 (8th Cir. 2007)...........cccccccscccccsesneeceeeseeceeeeeseeeesceeceeeesensuaeeseeaeeeseceaeeees 18

Murray v. Giarratano,

A492 U.S. 1 (1989)... cccccccccccsseccsseeecsseeeeseueecesaneeseaaeeesescneeeeesseueeecseeeessneecsiseesnseessness 19

Oyola v. State,

158 So. 3d 504 (Fla. 2015) ..ccccecscceccsesccecccsessscessesesucesucsseessessucsssessuesssessutecausessessseesses 11

Proffitt v. Florida,

APB U.S. 242 (1976) sccccecceccseccseessesessecsecesseecseecsucesscsasesavecursaversnssavessecssucssstessevenseesssees 10

Pulley v. Harris,

AG5 U.S. 37 (1984).........cccccccssccecsssneeeeseesnaneceecnaeeeecneesnseeeeeesesenseesersesseseeeensaaeess passim

Robinson v. State,

520 So. 2d. 1 (Fla. 1988) .......ccccsesscscessscssesecececeseseseeecseaeeesesseeesesceeeecacseenseeeeneeeenensenees 21

Rockford Life Ins. Co. v. Ill. Dept. of Revenue,

A482 U.S. 182 (1987)........ccccccccccccssscecesssssnecesensanencessceceececeeeessnseeeeeseaeeaeesereaeeesenseeeesaes 17

Ronk v. State,

172 So. 3d 1112 (Miss. 2015) .....cccscecsccsesssseccseceseeeeeeseeceeeeeeeeeeeeseeceeseaeerseeeeeeneeteeeeeens 21

Silagy v. Peters,

905 F.2d 986 (7th Cir. 1990)...........cccccccssccccsssneecessnseneeceseeeesseeceeeesecsaeeeeeesacersesaeerenaes 18

Spencer v. State,

615 So. 2d 688 (Fla. 1998) ....... cc eseccecssseccceeecesscereccecesecceeeeneceeeeeceeaeeeeseeneaaeneesereeeees 11

State v. Benn,

845 P.2d 289 (Wash. 1993) 0.0... cccecccececescccescesescesesececesseccerecesccsceccessaceeessevensenseneenes 21

State v. Cooper,

TBI A.2d 1000 (Nid. 1999) oo... cece cecssescescesesceecseeeeseeceseeseeaeeseeesseneseaeeaesseaeseseeaeereaes 21

State v. Wood,

580 S.W.3d 566, 590 (Mo. 2019)

cert. denied, Wood v. Missouri, 140 S. Ct. 2670 (2020) .0..........ccccccccecceseesessessnenaanees 19

Thompson v. Parker,

867 F.3d 641 (6th Cir. 2017)... ccccccccccsssssssssssssssesececcccanscsccceesssseseeeensaseneneneesenenes 18

Turner v. Murray,

AT6 U.S. 28 (1986)... .cceccscesseeeeeecseeeeseseseseseseceeseseeesesesseseaenseseaesaeaeeesceseeeaeseseeeeeeeseaeecs 21

United States v. Aquart,

912 F.3d 1 (2d Cir, 2018) 200.2... ccccccssscsssnccceeceeeeeenceeeeeeeeeeeeseseeeseeseeseeeeeesesnsneauanes 17

United States v. Jones,

132 F.3d 232 (5th Cir. 1998)........... ccc ccccececccecsessssssnssessnssesseseeeeeceeeeeanenseeeesees 11, 13, 17

United States v. Williams,

510 Ms OSs 0k @ hele) 20

Walker v. Sauvinet,

92 U.S. 90 (1875)... .ccccccccessccccasseseesececececssnsssssessseseuceceeeeuaeceaueaessecseusensaeararenseggqaes 21

Zant v. Stephens,

AG2 U.S. 862 (1988)... cceccccccessnsssereeececensnsesceeececeeccececeseseeceuessececeseesceseesessnneeeeeneees 9

Other Authorities

§ 782.04(1)(a), Fla. Stat. .........ccccccsssssssssssnssssssssscesececcceeceseessceueeguseseeeeseeseeseeseusesssneagees 10

§ 921.141(2)(b), Fla. State... cc ccccescnscaceeeecssnsneceeeeeeeeeeeeeeeeseeeeeeeeecsenueeeesseanaeeees 11

§ 921.141(2)(b)1, Fla. Stat... ceccccscscsssnsnscseceeceeeceeceesecseueessseseeeeeceeeeessesssnaneaeees 11

§ 921.141(2)(b)2, Fla. Stat... ccccsceaseeeeceeeseeseeeeseeceeseeeusssseceeceeesesencaececeseeees 12

§ 921.141(2)(c), Fla. Stat. 2.0... ccescssscecececccnsnenssssssssssvececsenseaseceneeseeeececesesereseceeseseees 12

§ 921.141(8)(a)1, Fla. State... cccsccnsseceeceecesseceeceeeceesseesseeeseseeseseeessaceees 11, 12

§ 921.141(7)(h), Fla. State... essssssseeccceccauscsnennsaesssssceceuensssceeseauseeseseesenereeeeteesanes 12

§ 921.141, Fla. State... ccc cccccccesecsssneceeeceeeeeseseeseesessseesseesseeessesscessesenseseesssnesessessea 11

18 U.S.C. § 8597 ooo ccccccccccceeeecccneceeesecesesececeeseseeceneeueeusseeseceaneeeecenensageauaessaneagaqees 17

28 U.S.C. § 1257 (a) 20... ceccccccccccccnsseesesssceceeecsensscanceceseeeeeecccecseceesseesececececeucensersusceceeeeeess 1

28 U.S.C. § 2254 occ ccc ccesseneseeeeeeeeceseaneeescsaeeeecsaeeecesseseeseseesessesesraneeeeeeesseeerenseaes 18

Ch. 2017-1, § 1, Laws of Pla........ co.cc cccccccsssceceeeesaceseeeeeeeseecaeeeeeeeeeeeaeeesessasecneseeseeees 11

Federal Death Penalty Act.............cccccccccssnsnsseeseeeececereccececceceenscasceceseusesensneussesceeseesertess 17

Sup. Ct. R. 10... cee ccccsssssssssssseeeecceceeeeasessccessencnsecncessecceeececceececeeeaaaaeaeeececeseneceeeeeseeeeeees 20

Sup. Ct. R. 1O(b) cccceccscccececcecceceessesessesecsecensecsuessucevesuecussucsecessaucecseceuseususeusatsacsacsacesueanen 17

vil

OPINION BELOW

The Florida Supreme Court’s decision petitioned for review appears as

Gordon v. State, 350 So. 3d 25 (Fla. 2022).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on September 1,

2022. A motion for rehearing was denied on October 17, 2022, and the mandate

issued November 2, 2022. Gordon adduces that this Court’s certiorari jurisdiction

is based on 28 U.S.C. § 1257(a). The State acknowledges that § 1257 sets out the

scope of this Court’s certiorari jurisdiction but submits that this case is

inappropriate for exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent agrees with Petitioner that the constitutional provisions involved

are the Fifth Amendment and the Eight Amendment to the United States

Constitution.

STATEMENT OF THE CASE AND FACTS

This certiorari petition arises from the Florida Supreme Court’s affirmance of

Gordon’s convictions and sentences of death for the first-degree murders of Patricia

Moran and Deborah Royal, burglary with assault or battery, conspiracy to commit

armed robbery, robbery with a firearm, grand theft, fleeing or attempting to elude,

three counts of attempted first-degree murder of a police officer with a firearm, two

counts of attempted first-degree murder of a police officer with a vehicle, and grand

theft of a vehicle.

The brutal slayings of 72-year-old Patricia Moran and her 51-year-old

daughter, Deborah Royal resulted from Gordon’s attempt to avoid arrest while fleeing

a pawn shop robbery in which he was involved. Some of the store’s jewelry and jewelry

cases, including a ring case that was stolen, contained GPS tracking devices installed

by 3SI Security Systems, and the device in the ring case was activated during the

robbery. (DT:3285-87, 3787, 3799, 3855-56). This permitted the Polk County Sheriffs

Office to track the robbers as they fled from the pawn shop. (DT:3788-92, 3797). Three

Haines City police officers that chased the fleeing vehicle came under repeated fire

from the vehicle as it fled, and two of the patrol vehicles were struck by the shots

fired. (DT:2260-61; 2293, 2346-49). The fleeing vehicle then turned into a residential |

subdivision followed by the pursuing patrol cars that were fired upon and numerous

patrol cars that were waiting for the vehicle.

Residents of the subdivision spotted an unknown black male at a property next

to the one behind the home where the murder victims, Patricia Moran and Deborah

Royal, were later discovered. (DT:2305-06, 2665-68, 2702, 2706-07). He told them he

was running from people trying to shoot him and insisted that he lived in

neighborhood, which they knew was false. (DT:2666, 2704). When one of the

neighbors ran down the block to flag down a police car, the man turned and ran in

the direction of 618 Astor Drive. (DT:2669, 2679, 2705). They then called 911lafter

noticing scattered clothing and finding a rifle in a yard. (DT:2671-72, 2706-08, 2713-

14). An officer then used a dog to track from the clothing and rifle to 618 Astor Drive.

(DT:2306-10, 2579, 2707-08). Also, a resident called and reported she heard

screaming from her neighbors’ residence at 618 Astor Drive. (DT:2536-2537, 2737-39,

4117-18).

Numerous law enforcement officers formed a perimeter surrounding the

residence. (DT:2542, 4149). Deputies cleared the fenced-in backyard so that they and

others could search it. (DT: 2537, 2540-41, 3433, 4121, 4132, 4152- 53). While

searching the backyard, Deputy Russo and Detective Turner shined their weaponmounted flashlights through a window to light up the interior of the home and spotted

a great deal of blood and the motionless bodies of two women. (DT:2542, 3436, 4122,

4132, 4154, 4172). Deputy Russo and Detective Turner yelled out to the surrounding

officers and deputies what they saw, and Deputy Freese shouted it out to a supervisor.

This was immediately broadcast over the radio. (DT:2543-44; 3437; 4122). As the

deputies were about to enter the residence, a car engine started up in the garage,

Gordon burst through the closed garage door, and nearly ran over officers before

crashing the car as law enforcement officers opened fire on it. Gordon was

apprehended about 20-25 yards away from the crashed vehicle (DT:3538, 3563-3566).

Meanwhile, the SWAT Team cleared the residence. (DT:2545-2550, 3441-3445,

4140, 4162-65). According to the entry team, no other suspects were found in the

residence. (DT:2552, 3443, 4129, 4164, 4171). Members of the entry team observed,

and Crime Scene Investigator Trevor Atkinson saw and photographed, what

appeared to be blood located throughout the house: in two bedrooms, the hallway, the

family room, the bathroom, and the laundry room; on doorways, floors, carpets,

windowsills, walls, the tub, a toilet seat, and two t-shirts found in the washing

machine. (DT:2807-2817, 3443-46, 3453-57, 4165). According to Chief Medical

Examiner Dr. Stephen Nelson, the location where the two victims were found was an

“especially bloody scene.” (DT: 3935, 3995).

Gordon slashed the throats of and repeatedly stabbed Moran and Royal.

(DT:3061-62, 3660-3667, 3942-3952, 3958-59, 3977). Moran suffered 57 different

injuries, consisting of stabs, incisions, and abrasions in 38 different areas of 10 her

body. (DT:3681-82, 3689-91). In addition to Gordon slashing her throat open nearly

eight inches across, she had defensive wounds on her hands, her aorta and both lungs

were perforated — her right lung once in front and three times in back and her left

lung ten times in back — six of her ribs were fractured, and the tip of her nose was

sliced. (DT:3661, 3690, 3696, 5039-40, 5045-46). Because she bled to death, she took

time to die and remained alive for several minutes. (DT:3689- 91, 3702-03, 3721-22).

Deborah Royal suffered 54 stab wounds to her head, neck, chest and back. She also

had a large gaping wound to her neck — over five inches across — that sliced both her

carotid artery and jugular veins, cut open her trachea, exposed and sliced completely

through her larynx, and continued all the way down to her spine. (DT:3958-59, 3977).

Dr. Nelson concluded that it took Gordon “a fair amount of time” to inflict all the

wounds and a few minutes for her to die. (DT:3981-83). According to the medical

examiners, one who conducted the autopsy on Moran and one who conducted the

autopsy on Royal, each woman lived through the entire attack on her and had

defensive wounds indicating she attempted to defend herself before she died.

(DT:3689-90, 3953, 3963).

Following the penalty phase, the jury recommended sentencing Gordon to

death for the murders of both Moran and Royal. The jury found the following

agegravators with regard to both murders: prior capital felony, prior violent felony,

the murder was committed during the commission of a burglary, the murder was

committed for the purpose of avoiding or preventing lawful arrest, and the murder

was especially heinous, atrocious, or cruel. The jury further found that the

aggravating factors were sufficient to warrant a possible sentence of death, one or

more individual jurors found that one or more mitigating circumstances was

established by the greater weight of the evidence, that the jury unanimously found

that the aggravating factors outweighed the mitigating circumstances, and

recommended that Gordon should be sentenced to death. (DT:6000-10).

The court, in sentencing Gordon, found the following aggravating factors

existed with regard to each count of murder: prior capital felony, prior violent felony,

the murder was committed during the commission of a burglary, the murder was

committed for the purpose of avoiding or preventing lawful arrest, and the murder

was especially heinous, atrocious, or cruel. The court expressly acknowledged the

“doubling doctrine” and stated that as a result of the doctrine, the court excluded any

consideration of the homicides in finding that the murder was committed during the

commission of a burglary. In addition, the court acknowledged that two of the

ageravators, that the murder was committed during the commission of a burglary

and that the murder was committed for the purpose of avoiding or preventing lawful

arrest, merge with one another as one aggravating factor. With regard to the weight

to be assigned to each aggravator, the court assigned great weight to both the

heinous, atrocious, or cruel and prior capital felony or prior violent felony

aggravators, and the court assigned moderate weight to the combined committed

during the commission of a burglary and for the purpose of avoiding or preventing an

arrest.

The court found Gordon established the following mitigating circumstances

and assigned them the following weight: he was under the influence of extreme

mental or emotional disturbance (little weight), he suffered from mental illness (little

weight), he suffered from Toxic Stress Syndrome (moderate weight), he was not

receiving proper treatment (little weight), he was abused and abandoned by his

family (little weight), he was smoking K2 or Spice on the date of the murders (little

weight). The court found Gordon failed to establish the following mitigating

circumstances he argued applied: his capacity to appreciate the criminality of his

conduct or to conform his conduct to the requirement of law was substantially

impaired, he was an accomplice in the murders and his participation was relatively

minor, and finally, there were other factors in his background or life or the

circumstance of the offense that should mitigate his sentence. Based on the court’s

review of the evidence, its weighing of the aggravating factors and mitigating

circumstances, taking into consideration the jury’s sentencing recommendation, and

noting that the court would reach the same conclusion even in the absence of the

aggravator of avoiding or preventing a lawful arrest, the court sentenced Gordon to

death for each murder on February 7, 2020. (DR:6760-90).

On February 26. 2020, Gordon filed his Notice of Appeal in the Florida

Supreme Court. On September 1, 2022, the Florida Supreme Court affirmed the

judgment and sentence of the trial court. On October 17, 2022, rehearing was denied.

On February 2, 2023, Gordon filed his petition for writ of certiorari in this case, from

which this response follows.

REASONS FOR DENYING THE WRIT

Whether the Florida Supreme Court’s decision eliminating its

use of proportionality review of capital cases, because its use

violates the state constitution, violates the Eighth and

Fourteenth Amendments when Florida currently employs

multiple means to narrow down a defendant’s eligibility for a

death sentence?

Gordon asserts that his rights under the Eighth and Fourteenth Amendments

were violated when the Florida Supreme Court refused to conduct a proportionality

review of his death sentence. Pet. at 5. He contends that proportionality review

remains necessary in Florida because the state lacks adequate safeguards against

arbitrary, capricious, and/or biased infliction of the death penalty, particularly with

regard to an increase in the number of aggravating factors that a jury may consider

in determining whether a person is eligible for a death sentence and a reduction in

the number of death penalty cases that the court has reversed. Pet. at 15-26.

However, there is no conflict between this Court's Eighth Amendment

jurisprudence and the Florida Supreme Court’s decision to no longer employ use of

proportionality review. Lawrence v. State, 308 So. 3d 544 (Fla. 2020), cert. denied 142

S. Ct. 188 (2021) (abolishing the court’s use of proportionality review in capital cases

because its use violates the “conformity clause” in Article I, Section 17 of the Florida

7

Constitution). This Court held in Pulley v. Harris, 465 U.S. 37 (1984) that

proportionality review of capital cases is not constitutionally required, and the

Florida Supreme Court’s decision in Lawrence explicitly and repeatedly relied on this

Court’s decision in Pulley v. Harris. Moreover, there remains a meaningful basis in

Florida for distinguishing cases in which the death penalty is applied from those in

which it is rejected. Because Florida’s capital sentencing scheme provides sufficient

guidance on how to employ its multiple methods to narrow down a murderer’s

eligibility for a death sentence, the Eighth Amendment does not require

proportionality review regardless of the number of statutory aggravating factors in

Florida’s death penalty statute or the number of death sentences that the state

supreme court affirms. Therefore, the Court should deny review of this claim.

A. The Florida Supreme Court’s Lawrence Decision

The defendant in Lawrence argued on appeal to the Florida Supreme Court

from his Hurst v. State, 202 So. 3d 40 (Fla. 2016) resentencing, that his death

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

Supreme Court declined to conduct proportionality review, holding that

proportionality review was prohibited by the state constitution, and affirmed his

sentence of death. Lawrence, 308 So. 3d at 548-552. The Florida Supreme Court noted

that Florida’s constitution contains a clause requiring Florida courts to interpret the

state prohibition against “cruel or unusual punishment and cruel and unusual

punishment” “in conformity with decisions of the United States Supreme Court”

interpreting the Eighth Amendment. Jd. at 548 (citing Art. I, § 17, Fla. Const.). The

8

court determined that the state constitutional provision meant the court had a state

“constitutional obligation” to follow this Court’s precedent regarding proportionality

review. Id. at 550. The Florida Supreme Court explained that its prior precedent

requiring proportionality review was erroneous and “must yield to our constitution.”

Id. at 548. In reaching its decision, the court explicitly and repeatedly relied on this

Court’s decision in Pulley v. Harris. Lawrence at 548, 550-51.

In Pulley v. Harris, the defendant was convicted of a capital crime in a

California court and sentenced to death. Jd. at 38. In his appeal to the California

Supreme Court and in his federal habeas petition, he argued that California’s death

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

that the California Supreme Court compare his death sentence with the sentences

imposed in other similar capital cases. Jd. at 39-40, 40-41 & n.2.

The Court initially explained the difference between its traditional

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

proportionality review the defendant in Harris was seeking, which compared the

sentence in a particular case to the sentence imposed on others convicted of the same

crime. Harris, 465 U.S. at 42-44. The defendant relied mainly on Furman v. Georgia,

408 U.S. 238 (1972) and Zant v. Stephens, 462 U.S. 862 (1983) to support his view

that the constitution mandated proportionality review in capital cases, but the Court

rejected his reading of both cases. Pulley v. Harris, 465 U.S. at 44-50. The Court

discussed numerous other capital cases and noted the emphasis on those cases was

on “the constitutionally necessary narrowing function of statutory aggravating

circumstances.” Id. at 50. The Court explained that proportionality review was

considered to be “an additional safeguard against arbitrarily imposed death

sentences,” but “we certainly did not hold that comparative review was

constitutionally required.” Jd. The Court concluded that there was “no basis in our

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

every capital case. Id. The Court observed that to hold that the Eighth Amendment

mandates proportionality review would require the Court to “effectively overrule”

Jurek v. Texas, 428 U.S. 262 (1976), and “would substantially depart from the sense

of’ both Gregg v. Georgia, 428 U.S. 153 (1976), and Proffitt v. Florida, 428 U.S. 242

(1976). Harris, 465 U.S. at 51.

The defendant in Lawrence sought this Court’s review, claiming that Florida’s

refusal to provide him proportionality review violates the United States Constitution.

This is the same argument Gordon now makes. This Court correctly declined to

exercise its discretion to review this issue in the Lawrence case, more recently in

Joseph v. State, 366 So.3d 218 (Fla. 2022) cert. denied 143 S. Ct. 183 (2022), and

should do so again in Gordon’s.

B. Florida’s Capital Sentencing Scheme

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

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

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

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

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

10

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

and a penalty phase in front of the jury, as is typical of capital trials, but then Florida

has another bench penalty phase where the defendant can present sensitive

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

688 (Fla. 1993). Most importantly and unlike many other state’s death penalty

statutes, Florida’s new death penalty statute is jury sentencing plus judge

sentencing. § 921.141, Fla. Stat. (2017); Ch. 2017-1, § 1, Laws of Fla.

Furthermore, under the new death penalty statute, amended by the Florida

Legislature in the wake of Hurst, a defendant is only eligible for a sentence of death

if the jury unanimously finds the existence of one or more aggravating factors. Florida

capital juries must find each aggravating factor unanimously. § 921.141(2)(b), Fla.

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

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

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

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

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

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

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

2015) (reversing because the trial court improperly relied on nonstatutory

11

aggravation which “cannot be harmless” under Florida law and remanding for a new

penalty phase).1

Moreover, there is no limit on the type of mitigating circumstances that a

defendant may present under the “catch-all” statutory mitigating circumstance. §

921.141(7)(h), Fla. Stat. (2017) (“the existence of any other factors in the defendant's

background that would mitigate against imposition of the death penalty”). The jury

then finds mitigating circumstances and whether the aggravation “outweighs” the

mitigation before making a sentencing recommendation to the judge. §

921.141(2)(b)2, Fla. Stat. (2017). Under the current statute, the jury’s findings

regarding the aggravation are binding on the trial court, but the jury’s findings

regarding mitigation are not. A jury can reject all the mitigation, but the trial court

is free to disagree with the jury’s assessment and find mitigation that was rejected

by the jury.

In addition, any death recommendation from the jury must be unanimous. §

921.141(2)(c), Fla. Stat. (2017). A Florida jury’s recommendation of a life sentence is

binding on the judge, but the jury’s recommendation of a death sentence is not. §

1 The Federal Death Penalty Act (“FDPA”) allows the prosecution to present

nonstatutory aggravating factors, unlike Florida’s scheme. United States v. Jones,

132 F.3d 232, 240 (5th Cir. 1998) (rejecting a constitutional attack on the FDPA based

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

and define nonstatutory aggravation and concluding that the FDPA is not so lacking

in other checks on arbitrariness that it fails to pass constitutional muster for lack of

proportionality review). In effect, the FDPA allow a limitless number of aggravators

and certainly far more than Florida’s 16 statutory aggravators. Under Gordon’s

reasoning, the FDPA would also be required to have proportionality review to comply

with the Eighth Amendment.

12

921.141(3)(a)1, Fla. Stat. (2017) (stating that if the jury recommends a life sentence,

“the court shall impose the recommended sentence”). A Florida trial judge is free to

disagree with the jury’s death recommendation and impose a life sentence. The jury

has the last word on a life sentence but not on a death sentence. As is clear from this

description, Florida’s death penalty statute has better safeguards against

arbitrariness than proportionality review. United States v. Jones, 132 F.3d 232, 240

(5th Cir. 1998) (upholding the constitutionality of the FDPA regarding

proportionality review on similar grounds).

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

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

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

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

the defendant's favor.

Furthermore, simply because Florida has more aggravating factors in its death

penalty statute than Gordon desires does not mean the “the safeguards required by

Furman against arbitrary imposition of the death penalty” are undermined. Pet. at

17. It is hard to see how such a statute could possibly violate the Eighth Amendment,

regardless of how the Eighth Amendment is interpreted.

1. No Conflict with this Court’s Eighth Amendment Jurisprudence

Gordon does not assert in his petition that this Court should recede from Pulley

v. Harris. Rather, he asserts that unlike California’s capital sentencing system, which

the Court determined is the sort of system that can pass constitutional muster

13

without proportionality review, Florida’s capital sentencing system is the type that is

required to have proportionality review as an additional safeguard against

arbitrariness. Gordon contends that this is the case because Florida’s system fails to

limit eligibility of the death penalty to a “small sub-class of first-degree murder

defendants[.|” Pet. at 17.

Gordon, initially, contrasts Florida’s sentencing scheme to that of the

California scheme reviewed by the Court in Pulley v. Harris by pointing out that

Florida does not require that aggravators be alleged in the indictment, or any death

eligibility requirements be found in the penalty phase of a capital defendant’s trial.

However, Gordon provides no explanation as to why these differences matter.

Instead, Gordon’s arguments center on the increase in the number of statutory

aggravators (which he describes as “aggravator creep” Pet. at 17) in combination with

what he refers to as “minimalist policing.” (Gordon appears to define this as “a state

supreme court’s willingness to set aside death sentences when warranted” Pet. at 22).

He implies that a reduction in the number of death sentence cases the Florida

Supreme Court has reversed on direct appeal since the mid-1970s demonstrates the

court’s unwillingness to set aside death sentences when warranted. Pet. at 22. It is

never made clear as to how one determines whether reversing a death sentence is

“warranted.”

However, as this Court has explained, a death penalty statute that limits the

number of death-eligible crimes, requires bifurcated proceedings, demands proof of

at least one aggravating factor, gives the jury broad discretion to consider mitigating

14

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

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

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

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

Moreover, Gordon’s contention that “aggravator creep” differentiates Florida’s

capital sentencing scheme from that of the California scheme the Court found

constitutional in Pulley v. Harris, miscomprehends the role that aggravators play in

the narrowing down function of the jury in determining a defendant’s eligibility for a

sentence of death. As the Court pointed out, in Furman it explained that the

underlying problem leading to the arbitrary and capricious enforcement of the death

penalty is unguided sentencing discretion in juries and judges:

[C]apital punishment, as then administered under statutes and vesting

unguided sentencing discretion in juries and trial judges, had become

unconstitutionally cruel and unusual punishment. The death penalty

was being imposed so discriminatorily, 408 U.S., at 240, 92 S. Ct., at

2727 (Douglas, J., concurring), so wantonly and freakishly, id., at 306,

92 S. Ct., at 2760 (Stewart, J., concurring), and so infrequently, id., at

310, 92 S. Ct., at 2762 (WHITE, J., concurring), that any given death

sentence was cruel and unusual.

Pulley v. Harris at 44. (emphasis added). Furthermore, the Court pointed out that it

had discussed in Gregg v. Georgia, 428 U.S. 153 (1976) how these problems can be

addressed:

Indeed, in summarizing the components of an adequate capital

sentencing scheme, Justices Stewart, Powell, and Stevens did not

mention comparative review:

“(T]he concerns expressed in Furman ...can be met by a

carefully drafted statute that ensures that the sentencing

authority be given adequate information and guidance. As

15

a general proposition, these concerns are best met by a

system that provides for a bifurcated proceeding at which

the sentencing authority is apprised of the information

relevant to the imposition of sentence and provided with

standards to guide its use of the information.” Id., at 195,

96 S.Ct., at 2935.

Pulley v. Harris at 46.

Florida has addressed, in the manner suggested in Gregg, the concerns the

Court raised in Furman by using aggravating factors and mitigating circumstances

to ensure that both judges and jurors are all focused on the same lawful

considerations. The Court never suggested a state is required to limit the number of

circumstances that qualify a person’s eligibility for a sentence of death to avoid

arbitrary and capricious death sentences, as Gordon argues. Rather, Florida’s system

of considering aggravating factors and mitigating circumstances serves to provide to

the jury and judge considering a death sentence the necessary information and

guidance needed to limit their sentencing discretion in a way that avoids imposing

the death penalty in an arbitrary or capricious manner.

Nor does any reduction in the number of death penalty reversals over a period

of time suggest there is a need to retain proportionality review. Gordon ignores the

fact that one would anticipate a reduction in reversals of death sentences following

earlier reversals and other clarifications from the court that provide guidance to

juries and sentencing judges on the lawful manner of sentencing capital defendants

to death. The improvement in sentencing that results in fewer reversals is hardly a

reason to warrant the addition of a form of review that violates the state’s constitution

16

without a determination that its use is required by federal constitutional law or

statute.

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

Florida Supreme Court’s decision that it will no longer perform a proportionality

review in its capital cases. Indeed, the Florida Supreme Court repeatedly relied on

Pulley v. Harris in its opinion in Lawrence. See Lawrence,308 So. 3d at 548, 550, 551.

Therefore, there is no conflict between this Court’s Eighth Amendment jurisprudence

and the Florida Supreme Court’s decision in this case refusing to reconsider its

holding in Lawrence eliminating its use of proportionality review.

2. No Conflict with Other Federal or State Appellate Courts

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

case and that of any federal appellate court or state court of last resort. Sup. Ct. R.

10(b) (listing conflict among federal appellate courts and state supreme courts as a

consideration in the decision to grant review). As this Court has observed, a principal

purpose for certiorari jurisdiction “is to resolve conflicts among the United States

courts of appeals and state courts concerning the meaning of provisions of federal

law.” Braxton v. United States, 500 U.S. 344, 347 (1991). Issues that have not divided

the courts or are not important questions of federal law do not merit this Court’s

attention. Rockford Life Ins. Co. v. Ill. Dept. of Revenue, 482 U.S. 182, 184 n.3 (1987).

In the absence of such conflict, certiorari is rarely warranted.

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

Federal Death Penalty Act which also fails to provide for proportionality review. 18

17

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

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

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

proportionality and the prosecution being allowed to use and define nonstatutory

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

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

review). Furthermore, the federal circuit courts recognize that proportionality review

is not constitutionally required and do not conduct any such review in 28 U.S.C. §

2254 federal habeas cases.?

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

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

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

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

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

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

Fed. Appx. 854, 864 (4th Cir. 2009); Fisher v. Angelone, 163 F.3d 835, 854-55 (4th Cir.

1998); Cobb v. Thaler, 682 F.3d 364, 381 (5th Cir. 2012); Thompson v. Parker, 867

F.3d 641, 653 (6th Cir. 2017); Silagy v. Peters, 905 F.2d 986, 1000 (7th Cir. 1990);

Middleton v. Roper, 498 F.3d 812, 821 (8th Cir. 2007); Allen v. Woodford, 395 F.3d

979, 1018 (9th Cir. 2005); Mendoza v. Sec’y, Fla. Dept. of Corr., 659 Fed. Appx. 974,

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

Lindsey v. Smith, 820 F.2d 1137, 1154 (11th Cir. 1987).

18

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

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

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

disproportionate to the penalty imposed in similar cases, considering both the crime,

the strength of the evidence and the defendant.” State v. Wood, 580 S.W.3d 566, 590

(Mo. 2019) (en banc) (quoting Missouri's statute, § 565.035.3(3)), cert. denied, Wood

v. Missouri, 140 S. Ct. 2670 (2020). But Florida’s death penalty statute does not

contain any equivalent language. Lawrence, 308 So. 3d at 549 (noting proportionality

review is “not referenced anywhere” in the text of Florida’s death penalty statute).

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

“numerous state statutes.” Pulley v. Harris, 465 U.S. at 43 & n.7. The Court also

noted that in the states whose death penalty statute did not require proportionality

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

review despite the absence of a statutory requirement, while in other states, such as

California and Texas, the appellate courts did not. Jd. at 44. In a footnote, the

majority discussed the Florida Supreme Court’s proportionality review. Id. at 46 n.8.

The Court stated that, while some states provide proportionality review, that “does

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

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

That a state supreme court performs proportionality review, as required by

their respective state’s death penalty statute, does not create conflict with a state

supreme court that refuses to perform proportionality review because the state’s

19

constitution has a conformity clause. In both situations, these state supreme courts

are simply following their respective state laws. There is no conflict between the

Florida Supreme Court’s decision in this case and that of any other state court of last

resort.

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

holding that the Eighth Amendment requires proportionality review in capital cases

for the obvious reason that this Court held otherwise in Pulley v. Harris. Because the

Florida Supreme Court’s decision to eliminate proportionality review neither violates

the Eighth Amendment nor conflicts with any decision of this Court or any other

federal or state appellate courts, and Gordon provides no other compelling reason for

the Court to now exercise its discretion to review the same issue it previously chose

not to review, the Court should deny Gordon’s petition. Sup. Ct. R. 10.

C. Racial Considerations Were Not Raised Below

In addition, it appears that Gordon is at least suggesting that proportionality

review is required to “ameliorate the danger of racial prejudice” from affecting

sentencing decisions in capital cases. Pet. at 19. However, Gordon did not present

this argument in the Florida Supreme Court.

This Court does not grant review of questions raised for the first time before

the Court. The Court is “a court of final review and not first view.” Adarand

Constructors, Inc. v. Mineta., 534 U.S. 103, 110 (2001); Cutter v. Wilkinson, 544 U.S.

709, 718 n. 7 (2005). This Court’s traditional rule precludes a grant of certiorari when

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

20

not ruled upon by the lower court. United States v. Williams, 504 U.S. 36, 41 (1992)

(discussing the concept of “not pressed or passed upon below”); Cardinale v.

Louisiana, 394 U.S. 487, 488 (1969) (dismissing the writ of certiorari as

improvidently granted where the issue was not raised, preserved or passed upon in

the state courts below); Walker v. Sauvinet, 92 U.S. 90, 98 (1875). This Court refuses

to entertain issues that were not properly presented to the state supreme court.

Adams v. Roberston, 520 U.S. 83, 88 (1997) (dismissing the writ as improvidently

granted where the issue was not raised with “fair precision and in due time”); Howell

v. Mississippi, 543 U.S. 440, 441 (2005) (dismissing the writ of certiorari as

improvidently granted where the issue was not raised as a federal constitutional

issue).

Gordon’s argument in his petition is virtually a verbatim repetition of the

argument he made in the brief he filed before the Florida Supreme Court. (See Pet.

at 6-19; 21-26 and Gordon’s Initial Brief in the Florida Supreme Court at 68-86),

However, beginning on page 19 and running through all but the last line of page 21,

Gordon adds in an argument that he did not make in his Florida Supreme Court brief.

In these pages, he argues for the first time that proportionality review is required to

combat the effects of racial discrimination.

Moreover, although Gordon points out that the federal death penalty statute

requires that a federal capital jury certify that race did not affect the jurors’

sentencing decision and cites a string of cases® that recognize the risk racial prejudice

3 Turner v. Murray, 476 U.S. 28, 35 (1986); Robinson v. State, 520 So. 2d 1, 7-8 (Fla.

21

presents in the criminal justice system, he cites no case of this Court that states the

Eighth Amendment requires proportionality review to avoid racial prejudice in

capital cases. Indeed, none of the cases cited by Gordon state that the failure of a

court to perform a proportionality review to avoid racial prejudice violates the Eighth

Amendment.

Because Gordon failed to previously present this issue to the Florida Supreme

Court for its review, the Court should disregard this argument.

D. Juror Unanimity is Not an Issue in This Case

Finally, Gordon suggests that jury unanimity is “[a]nother potential

complication down the road.” The issue of jury unanimity is a red herring. First, a

unanimous jury found Gordon eligible to be sentenced to death and recommended

Gordon be sentenced to death under a Florida law requiring that the verdict finding

him eligible for a death sentence and recommending one be unanimous. Therefore,

an unanimity requirement under the scheme in which Gordon was sentenced to death

is not an issue in this case.

Second, Florida has amended its capital sentencing laws to comply with this

Court’s holding in Hurst that a unanimous jury must find a defendant eligible for a

death sentence. Gordon’s eluding to the possible elimination of an unanimity

requirement based on a statement of Florida’s governor does not refer to the

unanimity requirement for death eligibility this Court announced in Hurst. Rather,

1988); State v. Benn, 845 P.2d 289, 317 (Wash. 1993); Ronk v. State, 172 So. 3d 1112,

1147 (Miss. 2015); State v. Cooper, 731 A.2d 1000, 1007-08 (N.J. 1999).

22

the governor's statement refers only to the number of jurors required to recommend

a death sentence to the judge after the jury has unanimously found the defendant

eligible for a sentence of death, and this Court has never held that a jury must

unanimously decide to sentence a defendant to death (or unanimously recommend

the judge sentence a defendant to death).

Given this Court's clear directive that proportionality review of capital cases is

not required by the Eighth Amendment, there is no basis for granting certiorari

review in this case.4

4 This case also presents a particularly poor vehicle for the Court to consider

whether proportionality review is required because proportionality review would not

change the outcome of this case given the extreme aggravation and limited mitigation

this case involves. Had the Florida Supreme Court conducted a proportionality

review, the result in this case would not change. See Francis v. State, 808 So. 2d 110

(Fla. 2009) (upholding the death sentence involving the murder of sixty-six year-old

twin sisters stabbed to death during the course of a robbery by a neighbor who was

mentally ill or emotionally disturbed and suffering from an extreme mental or

emotional disturbance at the time of the offense).

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