Petition for Writ of Certiorari — Louis Gaskin, Petitioner v. Florida

Supreme Court briefApr 6, 2023

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No.______________

IN THE SUPREME COURT OF THE UNITED STATES

_________________________

LOUIS B. GASKIN,

PETITIONER,

VS.

STATE OF FLORIDA,

RESPONDENT.

________________________________

____________________________________________________________

On Petition for a Writ of Certiorari to the Supreme Court of Florida

____________________________________________________________

PETITION FOR WRIT OF CERTIORARI

____________________________________________________________

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

WEDNESDAY, APRIL 12, 2023, AT 6:00 PM

____________________________________________________________

ERIC C. PINKARD*

FLORIDA BAR NO. 651443

LAW OFFICE OF THE CAPITAL

COLLATERAL REGIONAL COUNSEL

12973 N. TELECOM PARKWAY

TEMPLE TERRACE, FLORIDA 33637

PHONE NO. (813)558-1600 EXT 603

FAX NO. (813) 558-1601

EMAIL: PINKARD@CCMR.STATE.FL.US

*COUNSEL OF RECORD

QUESTIONS PRESENTED -- CAPITAL CASE-DEATH WARRANT

Mr. Gaskin was sentenced to death thirty-three years ago. After that, he

petitioned every court that would hear his claims, and some that would not. Mr.

Gaskin’s execution raises the fundamental issue of whether his execution, if it takes

place, violates the US Constitution because the process malfunctioned so completely

that his execution would be an intolerable injustice. Accordingly, Mr. Gaskin raises

the following issues:

1. Whether evolving standards of decency have rendered Mr. Gaskin’s death

violative of the Eighth Amendment’s prohibition of cruel and unusual punishment

and is excessive when the mitigation that was developed post-trial is considered in

deciding whether Mr. Gaskin’s case falls into the category of cases which are the most

aggravated and least mitigated?

2. Whether Mr. Gaskin was further denied his rights not only under the Eighth

Amendment, but was also denied the Sixth Amendment’s guarantee of a jury trial

and unanimity, as well as the Fourteenth Amendment’s right to equal protection,

when the state courts failed to remedy the constitutional inadequacy of Mr. Gaskin’s

trial and treated Mr. Gaskin differently from other similarly situated individuals?

3. Whether Mr. Gaskin was denied his rights under Espinosa v. Florida and

again when the Florida Supreme Court denied habeas relief?

4. Whether the Florida courts’ application of their procedural rules and legal

decisions unique to this case can allow the execution to take place that would be a

profound and manifest injustice?

LIST OF PARTIES

All parties appear in the caption on the cover page.

LIST OF RELATED CASES

Trial

Circuit Court of Flagler County, Seventh Judicial Circuit, Florida

State of Florida v. Louis B. Gaskin,1990-CF-000001; 1990-CF-07 (consolidated).

Judgment entered: Guilty as charged June 15, 1990, on two counts of felony murder

and two counts of premeditated murder. Death recommendation, June 18, 1990.

Death sentence imposed by court June 19, 1990.

Direct Appeal

Florida Supreme Court

Gaskin v. State, 591 So. 2d 917 (Fla. 1991) Case Number SC60-76326

Judgment entered: Opinion December 5, 1991; Mandate January 6, 1992. Sentence

vacated for one adjudication for each murder.

Certiorari

United States Supreme Court

Gaskin v. State of Florida, 505 U.S. 1216 (1992); Case Number 91-7634

Judgment entered: June 29, 1992; rehearing denied September 4, 1992. Judgment

vacated and remanded to the Florida Supreme Court.

Appeal after remand to the Florida Supreme Court

Florida Supreme Court

Gaskin v. State, 615 So. 2d 679 (Fla. 1993); Case Number SC60-76326

Judgment entered: March 18, 1993; Mandate April 19, 1993. Affirmed.

Certiorari

United States Supreme Court

Gaskin v. State of Florida, 510 U.S. 925 (1993); Case Number 93-5788

Judgment entered: October 12, 1992; Denied.

Postconviction Motion

Circuit Court in and for Volusia County, Seventh Judicial Circuit, Florida.

Gaskin v. State of Florida, Case Number 90-001; VOLUSIA CASE NO. 95-34327CFAES

Judgment entered: Order denying Motion for Postconviction Relief and Amended

Motion filed on January 17, 1997 (unpublished)

Appeal of denial of postconviction motion

Florida Supreme Court

Gaskin v. State, 737 So. 2d 509 (Fla. 1999) Case Number SC60-90119

Judgment entered: July 1, 1999, rehearing denied August 30, 1999, Mandate

September 29, 1999. Remanded for an evidentiary hearing on Claims II. V, and XVII

Postconviction following remand

Circuit Court in and for Volusia County, Seventh Judicial Circuit, Florida. (This was

a transfer between counties in the same circuit. This refers to the postconviction for

the first entry above).

Louis B. Gaskin v. State of Florida, Case Number 90-001, 90 07; VOLUSIA CASE

NO. 95-34327-CFAES

Judgment entered: August 23, 2000. Denied.

Appeal from the denial of postconviction after remand

Florida Supreme Court

Gaskin v. State, 822 So. 2d 1243 (2002); Case Number SC00-2025 Judgment entered: Opinion June 13, 2002, affirmed; Mandate July 15, 2002.

Interlocutory appeal

Florida Supreme Court

Gaskin, et al v. State, 798 So. 2d 721 (Fla. 2001)

Case Number: SC01-982

Judgment entered October 18, 2001; Mandate October 24, 2001

Federal habeas petition

United States District Court, Middle District of Florida

Gaskin v. McDonough, Case No. 3:03-cv-547-J-20 (unpublished)

Judgment entered: March 23, 2006

Appeal from the denial of federal habeas petition

United States Court of Appeals, Eleventh Circuit

Gaskin v. Sec’y, Dept. of Corr., 494 F.3d 997 (11th Cir. 2007); Case Number 06-12351

Judgment entered: August 3, 2007, opinion, affirmed. USCA Judgment September

10, 2007.

Appeal

Florida Fifth District Court of Appeal

Gaskin v. State Case Number 5D14-4474

Judgment entered February 10, 2015

Unreported

Postconviction motion

Circuit Court of Flagler County, Seventh Judicial Circuit, Florida

iii

Louis B. Gaskin v. State of Florida, Case Number 90-001, 90 07; VOLUSIA CASE

NO. 95-34327-CFAES

Judgment entered: Order denying first successive Motion to Vacate Judgment of

Conviction and Sentence. August 6, 2015. (Unpublished)

Appeal from the denial of postconviction after remand

Florida Supreme Court

Gaskin v. State, 218 So. 3d 399 (Fla. 2017); Case Number SC15-1884

Judgment entered: Opinion January 19, 2017, affirmed; Motion for rehearing denied

May 17, 2017; Mandate June 9, 2017.

Certiorari

United States Supreme Court

Louis B. Gaskin v. State of Florida, 138 S. Ct 471 (2017); Case Number No. 17–5669.

Judgment entered: November 27, 2017; cert denied.

Postconviction motion

Circuit Court of Flagler County, Seventh Judicial Circuit, Florida

Louis B. Gaskin v. State of Florida, Case Number 90-001, 90 07; Volusia Case No. 9534327-CFAES

Judgment entered: October 12, 2017, Order denying second successive Motion to

Vacate Judgment of Conviction and Sentence.

Appeal from the denial of postconviction

Florida Supreme Court

Gaskin v. State, 237 So. 3d 928 (Fla. 2017); Case Number SC17–2190

Judgment entered: Opinion February 28, 2018, affirmed; Mandate March 16, 2018

Certiorari

United States Supreme Court

Louis B. Gaskin v. State of Florida, 139 S. Ct 327 (2018); Case Number No. 18-5415.

Judgment entered: October 9, 2018. Denied.

Pro Se All Writs Petition

Florida Supreme Court

Gaskin v. State, 2020 WL 57987 (Fla. 2020); Case Number 19-1097

Judgment entered: Struck January 6, 2020. Rehearing denied February 26, 2020.

Pro Se All Writs Petition

Florida Supreme Court

Gaskin v. State, 2020 WL2467112 (Fla. 2020); Case Number SC-653

Judgment entered: Struck May 13, 2020.

Postconviction motion

Circuit Court of Flagler County, Seventh Judicial Circuit, Florida

Louis B. Gaskin v. State of Florida, Case Number 90-001, 90 07; Volusia Case N0. 9534327-CFAES

Judgment entered: March 20, 2023, Order denying Third Successive Motion to Vacate

Judgment of Conviction and Sentence

Appeal from the denial of postconviction

Florida Supreme Court

Gaskin v. State, ---So. 3d --- (Fla. 2023); Case Number: SC23-415

Judgment entered: April 6, 2023, Affirmed.

State Habeas Petition

Florida Supreme Court

Gaskin v. Dixon, Case Number SC23-440

Judgment entered: April 6, 2023, Denied.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

LIST OF PARTIES ........................................................................................................ ii

NOTICE OF RELATED CASES ................................................................................... ii

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

INDEX TO THE APPENDICES ................................................................................. vii

TABLE OF AUTHORITIES CITED .......................................................................... viii

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................ .1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE ...................................................................................... 2

REASONS FOR GRANTING THE PETITION…………………………………………..13

CONCLUSION…………………………………………………………………………..……42

INDEX TO THE APPENDICES

Appendix A: Postconviction order: Circuit Court of Flagler County, Seventh Judicial

Circuit, Florida Louis B. Gaskin v. State of Florida, Case Number 90-001,

Judgment entered: March 20, 2023, Order denying Third Successive Motion to Vacate

Judgment of Conviction and Sentence (unpublished)

Appendix B: Appeal opinion of the Florida Supreme Court, affirming the denial of the

Third Successive Motion to Vacate Judgment and Sentence and denying State

Habeas Petition. Gaskin v. State, and Gaskin v. Dixon Case Numbers SC23-0414 and

SC23-440

Appendix C: Sentencing order, State v. Gaskin Case Number 90-001.

Appendix D: Direct Appeal Opinion

Florida Supreme Court

Gaskin v. State, 591 So.2d 917 (Fla. 1991) Case Number SC60-76326

Judgment entered: Opinion December 5, 1991; Mandate January 6, 1992. Sentence

vacated for one adjudication for each murder.

Appendix E: Opinion granting certiorari. United States Supreme Court

Gaskin v. State of Florida, 505 U.S. 1216 (1992); Case Number 91-7634

Judgment entered: June 29, 1992; rehearing denied September 4, 1992. Judgment

vacated and remanded to the Florida Supreme Court.

Appendix F: Appeal after remand to the Florida Supreme Court

Gaskin v. State, 615 So. 2d 679 (Fla. 1993) Case Number SC60-76326

Judgment entered: March 18, 1993; Mandate April 19, 1993. Affirmed.

vii

TABLE OF AUTHORITIES CITED

CASES

PAGE

Asay v. State,

210 So. 3d 1 (Fla. 2016). …………………………………………………………….16

Atkins v. Virginia,

536 U.S. 304 (2002) …………………………………………………………18, 19, 20

Baker v. State,

878 So. 2d 1236 (Fla. 2004) …………………………………………………………34

Beck v. Alabama,

447 U.S. 625 (1980) ………………………………………………………………….21

Bucklew v. Precythe,

139 S. Ct. 1112, 1122 (2019). …………………………………………………18, 21

Bush v. State,

295 So. 3d 179 (Fla. 2020) …………………………………………………………35

Cheff v. Schnackenberg,

384 U.S. 373 (1966). …………………………………………………………………20

City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 U.S. 432 (1985). …………………………………………………………………17

Clubside, Inc. v. Valentin,

468 F.3d 144 (2d Cir. 2006) …………………………………………………………17

Cruz v. Arizona,

143 S. Ct. 650 (2023) ………………………………………………………………...36

Delap v. Dugger,

513 So. 2d 659 (Fla. 1987) …………………………………………………………..30

Demps v. State,

395 So. 2d 501 (Fla. 1981). ………………………………………………………….30

Dillbeck v. State,

___ So. 3d __, 2023 WL 2027567 …………………………………………………...23

viii

Douglas v. Alabama,

380 U.S. 415 (1965) ………………………………………………………………….29

Eddings v. Oklahoma,

455 U.S. 104 (1982) ………………………………………………………………….14

Espinosa v. Florida,

505 U.S. 1079 (1992) …………………………………………………………...passim

Furman v. Georgia,

408 U.S. 238 (1972) ……………………………………………………………........ 25

Gaskin v. State,

591 So. 2d 917 (Fla. 1991). …………………………………………………………...3

Gaskin v. Florida,

505 U.S. 1216 (1992). …………………………………………………………………3

Gaskin v. State,

615 So. 2d 679 (Fla. 1993). ……………………………………………………1, 3, 27

Gaskin v. Florida,

510 U.S. 925 (1993) ………………………………………………………………….. 3

Gaskin v. State,

737 So. 2d 509 (Fla.1999). ……………………………………………………………3

Gaskin v. State,

822 So. 2d 1243 (Fla. 2002). …………………………………………………………4

Gaskin v. Sec’y, Dep’t of Corr.,

494 F.3d 997 (11th Cir. 2007). ………………………………………………………4

Gaskin v. State,

218 So. 3d 399 (Fla. 2017). ……………………………………………….…………..4

Gaskin v. Florida,

138 S. Ct. 471 (2017). …………………………………………………………………4

Gaskin v. Florida,

139 S. Ct 327 (2017). ……………………………………………………………...…..5

Gideon v. Wainwright,

372 U.S. 335 (1963) ………………………………………………………………….31

Harris v. Alabama,

513 U.S. 504 (1995). …………………………………………………………………23

Hitchcock v. Dugger,

481 U.S. 393 (1987) …………………………………………………………14, 29, 30

Hitchcock v. State,

226 So. 3d 216 (Fla. 2017). …………………………………………………………...4

Huff v. State,

622 So. 2d 982 (Fla. 1993) ……………………………………………………………5

Hurst v. Florida,

577 U.S. 92 (2016) ……………………………………………………………...passim

James v. State,

615 So. 2d 668 (Fla. 1993) …………………………………………………………..29

Kennedy v. Louisiana,

554 U.S. 407 (2008). …………………………………………………………………25

Lawrence v. State,

308 So. 3d 544 (Fla. 2020) …………………………………………………………..35

Lee v. Kemna,

534 U.S. 362 (2002) ………………………………………………………………….29

Lockett v. Ohio,

438 U.S. 586 (1978). …………………………………………………………………14

Moreland v. State,

582 So. 2d 618 (Fla. 1991). ………………………………………………………….31

Mosley v. State,

209 So. 3d 1248 (Fla. 2016) …………………………………………………………29

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) …………………………………………………………………..38

Phillips v. State,

299 So. 3d 1013 (Fla. 2020). …………………………………………………………35

Porter v. McCollum,

558 U.S. 30 (2009). ……………………………………………………………………15

Proffitt v. Florida,

428 U.S. 242 (1976) …………………………………………………………..12, 13, 24

Ramos v. Louisiana,

140 S. Ct. 1390 (2020). ……………………………………………………….20, 21, 22

Reynolds v. Florida,

139 S. Ct. 27 (2018) …………………………………………………………………...23

Ring v. Arizona,

536 U.S. 584 (2002). …………………………………………………………16, 23, 29

Rompilla v. Beard,

545 U.S. 374 (2005) …………………………………………………………………..15

Sears v. Upton,

561 U.S. 945 (2010)……………………………………………………………………15

Spaziano v. Florida,

468 U.S. 447 (1984) ………………………………………………………………23, 24

State v. Owen,

696 So. 2d 715 (Fla. 1997)……………………………………………………………35

State v. Poole,

297 So. 3d 487 (Fla. 2020)……………………………………………………………35

Strickland v. Washington,

466 U.S. 668 (1984)……………………………………………………………………15

Thompson v. Dugger,

515 So. 2d 173 (Fla. 1987). …………………………………………………………..30

United States v. Haymond,

139 S. Ct. 2369 (2019)………………………………………………………………..21

Vill. of Willowbrook v. Olech,

528 U.S. 562 (2000)…………………………………………………………………..17

Wiggins v. Smith,

539 U.S. 510 (2003)……………………………………………………………………15

Williams (Terry) v. Taylor,

529 U.S. 362 (2000)……………………………………………………………………15

Witherspoon v. Illinois,

391 U.S. 510 (1968)……………………………………………………………………18

Witt v. State,

387 So. 2d 922 (Fla. 1980)……………………………………………………………31

Woodson v. North Carolina,

428 U.S. 280 (1976)………………………………………………………13, 14, 21, 22

Woodward v. Alabama,

571 U.S. 1045 (2013)………………………………………………………………….23

STATUTES AND RULES

28 U.S.C. §1257…………………………………………………………………………………1

Florida Statutes, § 921.141………………………………………………………….15, 16, 28

Florida Standard Jury Instructions in Criminal Cases 7.11……………………………28

CONSTITUTIONAL PROVISIONS

Sixth Amendment………………………………………………………………………………2

Eighth Amendment…………………………………………………………………………….2

Fourteenth Amendment ……………………………………………………………………....2

OTHER AUTHORITIES

Richa Bijlani, More than Just a Factfinder: The Right to Unanimous Jury Sentencing

in Capital Cases, 120 Mich. L. R. 1499……………………………………………………..22

4 William Blackstone, Commentaries on the Law of England 343 (4th ed., Oxford,

Clarendon Press 1770))………………………………………………………………………21

John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital

Sentencing, 105 Colum. L. Rev. 1967 (2005)……………………………………………...22

Janet C. Hoeffel, Death Beyond a Reasonable Doubt, 70 Ark. L. Rev. 267, 271 (2017)

……………………………………………………………………………………………….21, 22

xii

Death Penalty Information Center, DPIC Analysis: Exoneration Data Suggests NonUnanimous Death-Sentencing Statutes Heighten Risk of Wrongful Convictions

(March 13, 2020)………………………………………………………………………………24

Welsh S. White, Fact-Finding and the Death Penalty: The Scope of a Capital

Defendant’s Right to Jury Trial, 65 Notre Dame L. Rev. 1, 10-11 (1989)………….21

xiii

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW

The order denying the Third Successive Motion for Postconviction Relief

appears at Appendix A.

The opinion of the Florida Supreme Court appears at Appendix B to the

petition and is unreported at this time. 1

The opinion of the Florida Supreme Court affirming judgment and sentence

appears at Appendix D to the petition on direct appeal is reported at Gaskin v. State,

591 So. 2d 917 (Fla. 1991).

The opinion of the Florida Supreme Court after remand appears at Appendix

F and is reported at Gaskin v. State, 615 So. 2d 679 (Fla. 1993).

JURISDICTION

The Florida Supreme Court decided the case on April 6, 2023. The jurisdiction

of this Court is invoked under 28 U.S.C. §1257. Mr. Gaskin fully exhausted the

federal claims at issue in the Florida courts by filing his Third Successive Motion for

Postconviction Relief, appealing the same to the Florida Supreme Court, and by filing

a Petition for Writ of Habeas Corpus in the Florida Supreme Court.

1 Citations to non-appendix material from the record below are as follows: references to the direct

appeal record of Mr. Gaskin’s trial are designated as T/[page number]; references to the record of Mr.

Gaskin’s postconviction proceedings are designated as PC/[page number].

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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.

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.

Section One of the Fourteenth Amendment to the United States Constitution

provides in relevant part:

No State shall . . . 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.

STATEMENT OF THE CASE

Mr. Gaskin was convicted at a jury trial of the first-degree premeditated

murders and first-degree felony murders of Robert and Georgette Sturmfels, the

attempted first-degree murder of Joseph Rector, two counts of armed robbery with a

firearm and two counts of burglary of a dwelling with a firearm. For the non-capital

offenses, Mr. Gaskin received the following sentences: thirty years for both counts of

armed robbery; natural life for both counts of burglary of a dwelling with a firearm;

natural life for attempted first-degree murder of Joseph Rector. For the capital

offenses, the jury recommended the death penalty by an eight to four vote on each

count. The trial judge sentenced Mr. Gaskin to death on June 19, 1990. Mr. Gaskin

appealed his judgment and sentences. Relevant here, Mr. Gaskin raised:

Point IV: Louis Gaskin’s Constitutional Rights to Due Process and

Equal Protection Have Been Violated by the Fact That a Multitude of

Proceedings Were Not Reported by the Court Stenographer.

Point X: Section 921.141, Florida Statutes (1987) is Unconstitutional

on its Face and as Applied.

The judgment and sentences were affirmed, and the case was remanded in part

to vacate two adjudications for felony murder. Gaskin v. State, 591 So. 2d 917 (Fla.

1991). Mr. Gaskin filed a Petition for Writ of Certiorari in this Court that was granted

on June 29, 1992, for further consideration in light of Espinosa v. Florida, 505 U.S.

1079 (1992). The Florida Supreme Court’s ruling was vacated, and the case was

remanded. Gaskin v. Florida, 505 U.S. 1216 (1992). On remand, the Florida Supreme

Court found that Mr. Gaskin did not object to the vagueness of the wicked, evil,

atrocious, or cruel aggravating circumstance (WEAC) instruction at trial, nor did he

request a special instruction, and upheld its previous ruling. Gaskin v. State, 615 So.

2d 679, 680 (Fla. 1993). Mr. Gaskin filed a Petition for a Writ of Certiorari that was

denied on October 12, 1993. Gaskin v. Florida, 510 U.S. 925 (1993).

Mr. Gaskin filed his first motion for postconviction relief in state court on

March 23, 1995. Relief was denied on January 17, 1997, without an evidentiary

hearing. The Florida Supreme Court remanded for an evidentiary hearing on

ineffective assistance of counsel during the penalty phase claims and based upon an

alleged conflict of interest arising from trial counsel’s status as a deputy sheriff. The

court affirmed the denial of relief in all other respects. Gaskin v. State, 737 So. 2d 509

(Fla.1999).

The postconviction court held an evidentiary hearing on April 13 and 14, 2000.

The postconviction court denied relief. Mr. Gaskin appealed the denial to the Florida

Supreme Court, which denied relief. Gaskin v. State, 822 So. 2d 1243 (Fla. 2002).

Mr. Gaskin filed a Petition for Writ of Habeas Corpus and Memorandum of

Law in Support in the Middle District of Florida on July 11, 2003, which was denied

on March 23, 2006. The Eleventh Circuit Court of Appeals affirmed the district court’s

denial of relief. Gaskin v. Sec’y, Dep’t of Corr., 494 F.3d 997 (11th Cir. 2007).

Mr. Gaskin filed a First Successive Motion to Vacate Judgment of Conviction

and Sentence on May 6, 2015, raising one issue:

The Corrected Judgment and Sentence Vacating the Death Penalty

Imposed in Counts II and IV of Indictment and the Adjudication of Guilt

in Said Counts Established That the Death Sentences Given on Counts

I and III of the Indictment Were the Result of Unconstitutional Doubling

of the Aggravating Circumstance of Prior Violent Felonies.

The motion was denied on August 6, 2015, and appealed to the Florida

Supreme Court, which affirmed the denial. Gaskin v. State, 218 So. 3d 399 (Fla. 2017).

This Court denied Mr. Gaskin’s petition for writ of certiorari. Gaskin v. Florida, 138

S. Ct. 471 (2017).

Mr. Gaskin filed a Second Successive Motion to Vacate Judgment of

Convictions and Sentences on January 10, 2017, raising one claim with numerous

subparts:

In Light of Hurst, Ring, and Apprendi, Mr. Gaskin’s Death Sentences

Violate the Fifth, Sixth, Eighth, and Fourteenth Amendments of the

United States Constitution, the Corresponding Provisions of the Florida

Constitution and Article I, Section 15 and 16 of the Florida Constitution.

The claim was denied and appealed to the Florida Supreme Court, which

ordered Mr. Gaskin to show cause as to why the trial court’s order should not be

affirmed in light of Hitchcock v. State, 226 So. 3d 216 (Fla. 2017). Mr. Gaskin

responded to the order, requesting oral argument and full briefing of the issues and

stating that the vacating of the felony murder convictions in 2014 - twenty-three

years after the Florida Supreme Court mandated that it be done - fundamentally

altered the original judgment to the extent that it was a new judgment, thus putting

Mr. Gaskin in the post-Ring cohort that was entitled to Hurst relief, and further

stating that Hitchcock was wrongly decided. The Florida Supreme Court denied relief

on February 28, 2018. This Court denied Mr. Gaskin’s petition for writ of certiorari.

Gaskin v. Florida, 139 S. Ct 327 (2017). Mr. Gaskin filed pro se motions that are not

at issue here.

On March 13, 2023, the Governor of Florida issued a death warrant for Mr.

Gaskin. The warden set the execution for April 12, 2023. Mr. Gaskin filed his Third

Successive Motion to Vacate Judgment of Conviction and Death Sentence After

Warrant Signed on March 18, 2023. The State responded on March 19, 2023. The

trial court held a Huff 2 hearing on March 20, 2023, denied an evidentiary hearing on

each claim, and summarily denied each claim on the same date.

Mr. Gaskin appealed to the Florida Supreme Court and filed a state petition

for writ of habeas corpus there as well. The Florida Supreme Court ruled on both

pleadings on April 6, 2023.

2 Huff v. State, 622 So. 2d 982 (Fla. 1993) (in death penalty postconviction case, judge must allow

attorneys opportunity to appear before court and be heard on initial motion to vacate, set aside, or

correct sentence, for purpose of determining whether evidentiary hearing is required and to hear legal

argument relating to motion).

After Mr. Gaskin was convicted, only two witnesses were called in penalty

phase. His cousin Janet Morris testified that she and Mr. Gaskin lived with their

great-grandparents, played, and went to school together. T/972. She testified that

people liked Mr. Gaskin and that he had no problems, that he worked at a mill after

school, and that she was shocked when she learned of his charges. T/972-73. On crossexamination, she testified that they were treated well by their great-grandparents,

who were very strict. T/975. This was the extent of her testimony.

His aunt Virginia Brown testified that she had known Mr. Gaskin all his life,

that he had lived with her for a time, but mainly lived with his great-grandparents.

T/977. She confirmed that the great-grandparents were strict, and Mr. Gaskin was

generally confined to the family property. T/978. Mr. Gaskin was ordinary, “until he

got grown.” T/978-79. According to his aunt, Mr. Gaskin was an average student, not

an aggressive boy. T/979. Everyone liked him, and there was nothing in his

background that would indicate a propensity for violence. T/980. This was the extent

of her testimony.

The sentencing order considered each statutory aggravator and mitigator

regarding the murder of Robert and Georgette Sturmfels, addressing whether each

applied to Mr. Gaskin. The judge found the statutory mitigator that the murders were

committed while Mr. Gaskin was under the influence of extreme mental or emotional

disturbance; but went on to find that Mr. Gaskin’s capacity was not impaired, and

that the expert testimony combined with the facts of the crime supported a lack of

impairment. T/1316, 1323. The judge found that Mr. Gaskin was capable of

appreciating the criminality of his conduct or to conforming his conduct to the

requirements of law, and the other statutory mitigator did not apply. T/1317, 1324.

The lone nonstatutory mitigator requested by defense counsel was that Mr.

Gaskin was the product of an abused or deprived childhood; the trial court found this

mitigator. T/1317, 1324.

The court did not assign weight to any of the aggravators or mitigators, but

found that the aggravators outweighed the mitigators, and further found that any

single aggravator outweighed the mitigators and supported the imposition of the

death penalty. T/1317, 1324.

In postconviction, Dr. Harry Krop testified at the evidentiary hearing; he had

been retained but did not testify at trial. Defense counsel had provided the doctor

with police reports and a polygraph report, but Dr. Krop believed he needed more

information to address questions regarding Mr. Gaskin’s sanity and possible

mitigation, and requested additional information from trial counsel, but received

none. PC/295-96.

Dr. Krop initially believed Mr. Gaskin had a profile that suggested possible

schizophrenia. PC/297. Mr. Gaskin described his thought processes, “his varied

personalities, things he hears inside his head,” and based on those representations,

Dr. Krop could not rule out schizophrenia. PC/299. Prior to trial, Dr. Krop performed

additional testing, after which he determined he could not diagnose schizophrenia;

instead, the testing indicated a severe personality disorder was more likely, either

schizoid or schizotypal. PC/304-05.

In postconviction, counsel provided Dr. Krop with the records and information

he felt he needed prior to trial but had not received, including school records,

transcripts of interviews, deposition transcripts, and a report that had been produced

by the State’s expert prior to trial. PC/301, 305-06. Dr. Krop found Mr. Gaskin to be

a seriously disturbed individual, believing that “the nature of the acts themselves

speak for themselves as far as how disturbed Mr. Gaskin was.” PC/309. At the time

of trial, he would have diagnosed Mr. Gaskin with a mixed personality disorder with

schizoid and antisocial features and would have testified to that diagnosis. PC/311.

When asked about Mr. Gaskin’s more deviant behaviors, Dr. Krop stated that those

who engage in deviant behavior at an early age, as Mr. Gaskin did, had likely been

abused themselves. PC/313.

Prior to trial, Dr. Krop learned that Mr. Gaskin experienced at least one head

injury in childhood, this led him to suggest to trial counsel that a neuropsychological

evaluation would be helpful. PC/314-15. Trial counsel never followed up on this

recommendation.

Dr. Krop testified that if he had all of the information at trial that he had in

postconviction, he would have testified that Mr. Gaskin was one of the more seriously

disturbed individuals he had ever encountered, and that he could provide a diagnosis

of a mixed personality disorder. PC/323.

Dr. Jethro Toomer testified at the postconviction evidentiary hearing. PC/412.

Dr. Toomer received school records, information provided by family members, as well

as reports and testimony given by Dr. Krop and Dr. Rotstein, the psychologist

retained by the State at trial. PC/415. Dr. Toomer also performed a clinical evaluation

of Mr. Gaskin, including psychological testing. PC/415. Using all the information

available to him, Dr. Toomer determined that Mr. Gaskin suffered from a

schizophrenia-paranoid type mental illness. PC/416. The totality of the data

suggested numerous possible diagnoses including borderline personality disorder, or

schizotypal personality disorder. PC416-17. Dr. Toomer also indicated that Mr.

Gaskin had some neurological impairment, or a neurocognitive disorder. PC/417.

Mr. Gaskin scored high on the MMPI measure for schizophrenia. PC/417.

According to Dr. Toomer, any indication of sexually deviant behavior would be a

result of his dysfunctional upbringing. PC/419. Based on a pervasive and long-term

pattern of instability in terms of mood, effect and behavior, Mr. Gaskin had been

impacted adversely regarding his ability to function adequately in terms of thought

and behavior. PC/419.

Dr. Toomer found that Mr. Gaskin’s mental illness established the statutory

mental health mitigator that his capacity to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law was substantially impaired, and

that this was not only applicable at the time of the offense but had been applicable to

Mr. Gaskin for a good part of his life. PC/424-25. Dr. Toomer testified that Mr. Gaskin

“vacillated along [a] continuum for a good part of his life.” PC/427. Mr. Gaskin’s

mental illness would manifest different ways at different points; sometimes his

behavior would be more aligned with schizotypal personality disorder, and other

times more like schizophrenia. PC/427.

Janet Smith testified again in postconviction. She also lived with their great

grandparents beginning from when she was about eleven years old. PC/527. She

described the discipline in the house as being very, very strict and confirmed that the

great grandparents could not read. PC/528. Ms. Smith went to the same school that

Mr. Gaskin attended and testified that Mr. Gaskin was bullied because “we were kind

of on the poor side and we didn't get new clothes like everybody else and that even in

his teen years, he was sucking his thumb.” PC/529. She also described that Mr.

Gaskin “would go off by himself and even sometimes rock, you know just sit

somewhere and constantly rock.” PC/529. Ms. Smith described an incident where Mr.

Gaskin fell off his bicycle and suffered a head injury. PC/530.

REASONS FOR GRANTING THE PETITION

ARGUMENT I

THIS COURT SHOULD GRANT CERTIORARI BECAUSE MR.

GASKIN’S CASE IS NOT ONE OF THE MOST AGGRAVATED

AND LEAST MITIGATED WHEN HIS MITIGATION IS

CONSIDERED UNDER EVOLVING STANDARDS OF DECENCY

AND THE STANDARDS THAT WERE EXTANT AT THE TIME OF

THE TRIAL.

Mr. Gaskin’s death sentence was obtained without the jury considering

important mitigation that would have led to a life recommendation from the penalty

phase jury that non-unanimously recommended Mr. Gaskin’s death sentence by a

non-unanimous recommendation of 8-4. He has raised this repeatedly following the

imposition of his death sentence in all manner and form. He did so once again

following the recent signing of a death warrant. The Florida courts refused relief.

This Court should not.

Mr. Gaskin was sentenced to death through a process that failed to conform to

the minimum requirements for a death sentence. The penalty phase he received

hardly is recognizable when compared to what is required and regularly takes place

in Florida. Yet Florida seeks to execute him based on the unrecognizable proceedings

from the past. This was apparent at the time of those proceedings, and it has come

into sharp focus as he approaches an execution many years after his sentences were

imposed. The jury was never presented with considerable mitigation that would have

led a reasonable jury, even in 1989, to return a life recommendation. Viewing the

significant, profound, and available mitigating evidence through the lens of the

recognized doctrine of evolving standards of decency renders Mr. Gaskin’s death

sentences unconstitutional.

During penalty phase, Mr. Gaskin’s trial attorney called only two witnesses

who gave brief testimony regarding Mr. Gaskin, saying he was generally well-liked

and an average student. Even with this bare-bones mitigation, four jurors voted to

sentence Mr. Gaskin to life. T/1301-02. After penalty phase, the State presented a

report to the judge from their mental health expert, which stated that Mr. Gaskin

suffered from schizotypal personality disorder and suffered from delusions in which

he saw himself as a ninja; this doctor also determined that Mr. Gaskin qualified for

the statutory mitigator that his capacity to appreciate the criminality of his conduct

or to conform his conduct to the requirements of law was substantially impaired. 3

3 At the sentencing hearing held on June 19, 1990, the State Attorney entered the report of a mental

examination of Mr. Gaskin performed by Dr. Rotstein into evidence. T/1017.

Florida Statues, section 921.141(7)(f). The trial judge chose to ignore this finding

when ruling on the mitigation in this case. T/1316, 1324.

In postconviction, one mental health expert testified that Mr. Gaskin suffered

from a severe personality disorder and was one of the most seriously disturbed

individuals he had ever encountered. PC/323. A second mental health expert testified

that Mr. Gaskin’s mental health moved along a continuum from schizotypal

personality disorder to full-blown schizophrenia. PC/427.

Mr. Gaskin was sentenced to death by a jury that was never presented with

profound, compelling mitigating evidence. Notably, four jurors voted for life even

without hearing the weighty mitigation regarding Mr. Gaskin’s abusive childhood

and significant mental health disorders.

Presentation of available mental health mitigation has been firmly established

as an elementary component of effective representation in capital cases. Mr. Gaskin

would not receive a sentence of death today because his extensive mitigation would

place him outside of the class of individuals who may receive it and it would be clear

that both mental health statutory mitigators apply. This weighty mitigation would

have made it clear that Mr. Gaskin is not the worst of the worst, and that this case is

not the most aggravated and least mitigated. In other words, if Mr. Gaskin were tried

today, he would not receive a majority death recommendation.

Consideration of mitigation by the sentencer is at the heart of the

constitutionality of the death penalty. This Court need only look to its own case law

to see the trajectory. In Proffitt v. Florida, 428 U.S. 242 (1976), this Court considered

whether the imposition of the sentence of death for the crime of murder under the

law of Florida violate[d] the Eighth and Fourteenth Amendments. Id. at 244. This

Court found that Florida’s new death penalty law passed constitutional scrutiny

because:

On their face these procedures, like those used in Georgia, appear to

meet the constitutional deficiencies identified in Furman. The

sentencing authority in Florida, the trial judge, is directed to weigh

eight aggravating factors against seven mitigating factors to determine

whether the death penalty shall be imposed. This determination

requires the trial judge to focus on the circumstances of the crime and

the character of the individual defendant. He must Inter alia, consider

whether the defendant has a prior criminal record, whether the

defendant acted under duress or under the influence of extreme mental

or emotional disturbance, whether the defendant's role in the crime was

that of a minor accomplice, and whether the defendant's youth argues

in favor of a more lenient sentence than might otherwise be imposed.

The trial judge must also determine whether the crime was committed

in the course of one of several enumerated felonies, whether it was

committed for pecuniary gain, whether it was committed to assist in an

escape from custody or to prevent a lawful arrest, and whether the crime

was especially heinous, atrocious, or cruel. To answer these questions,

which are not unlike those considered by a Georgia sentencing jury,

see Gregg v. Georgia, 428 U.S., at 197, 96 S.Ct., at 2936, the sentencing

judge must focus on the individual circumstances of each homicide and

each defendant.

Proffitt at 251–52. Because the trial judge and the recommending jury were denied

the mitigation that was extant in Mr. Gaskin’s case, the recommending jury and the

trial court never focused on the unique circumstances of Mr. Gaskin. His deprivation,

mental illness, and trauma he suffered was never heard, thus falling to meet the bare

requirements of Proffitt.

Woodson v. North Carolina, 428 U.S. 280 (1976), required that a death penalty

scheme “allow the particularized consideration of relevant aspects of the character

and record of each convicted defendant before the imposition upon him of a sentence

of death.” Id. at 303. This did not happen in Mr. Gaskin’s case.

The Eighth and Fourteenth Amendments require that the sentencer, in all but

the rarest kind of capital case, 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.

Lockett v. Ohio, 438 U.S. 586, 604 (1978).

In Eddings v. Oklahoma, 455 U.S. 104 (1982) this Court applied Lockett,

stating that,

the rule in Lockett followed from the earlier decisions of the Court and

from the Court's insistence that capital punishment be imposed fairly,

and with reasonable consistency, or not at all. By requiring that the

sentencer be permitted to focus “on the characteristics of the person who

committed the crime,” Gregg v. Georgia, supra, at 197, 96 S. Ct., at 2936,

the rule in Lockett recognizes that “justice ... requires ... that there be

taken into account the circumstances of the offense together with the

character and propensities of the offender.” Pennsylvania v. Ashe, 302

U.S. 51, 55, 58 S. Ct. 59, 60, 82 L. Ed. 43 (1937). By holding that the

sentencer in capital cases must be permitted to consider any relevant

mitigating factor, the rule in Lockett recognizes that a consistency

produced by ignoring individual differences is a false consistency.

Id. at 112. See also Hitchcock v. Dugger, 481 U.S. 393 (1987) (advisory jury must

consider non-statutory mitigation). An obvious thread through these cases is that this

Court has long recognized the need for an individualized sentencing that properly

considers all mitigation. Mr. Gaskin was denied this at the time of trial, and he was

denied again when the Florida Supreme Court failed to consider his proffered

mitigation from postconviction under contemporary standards of decency.

This Court further established the need for mitigation in a number of

ineffective assistance of counsel claims, all premised on the importance of mitigation

in determining whether a death sentence may be constitutionally imposed. 4

The above line of cases, show evolving standards of decency that insist upon

consideration of a group or an individual’s mitigation. The lack of consideration of

Mr. Gaskin’s mitigation, at trial and now, shows that his execution violates his rights

under the Eighth Amendment because his case has never been narrowed to the most

aggravated and least mitigated.

ARGUMENT II

THE EXECUTION OF A DEFENDANT WHO WAS NOT

SENTENCED TO DEATH BY A UNANIMOUS JURY VIOLATES

THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.

Mr. Gaskin’s death sentences were contrary to Hurst v. Florida, 577 U.S. 92

(2016), and Florida Statutes, § 921.141. Mr. Gaskin was denied his right to a jury

determination, proof of the aggravators beyond a reasonable doubt, and unanimity

as to the aggravators and a death sentence, all of which he is entitled to under the

Sixth and Fourteenth Amendments. As a result of Florida’s failure to remedy these

violations, Mr. Gaskin’s death sentences violate the Eighth Amendment’s bar

against excessive, arbitrary, and capricious punishment as well as violate his right

to equal protection under the Fourteenth Amendment.

In finding that Florida’s death sentencing scheme was unconstitutional, this

Court stated “the Sixth Amendment requires a jury, not a judge, to find each fact

4 Strickland v. Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003); Williams

(Terry) v. Taylor, 529 U.S. 362 (2000); Sears v. Upton, 561 U.S. 945 (2010); Rompilla v. Beard, 545

U.S. 374 (2005); Porter v. McCollum, 558 U.S. 30 (2009).

necessary to impose a sentence of death. A jury’s mere recommendation is not

enough.” Hurst, 577 U.S. at 94. Prior to Hurst, Florida law required the judge to hold

a separate hearing and determine whether sufficient aggravating circumstances

existed to justify imposing the death penalty. Id.

After Hurst, the Florida legislature adopted a new capital sentencing statute

that remains in effect, which requires the sentencing jury to make the same findings

as to whether aggravation exists, whether it is sufficient, whether it outweighs the

mitigation, and whether the defendant should be sentenced to death, but these

decisions must now be unanimous, and the failure to return a unanimous death

verdict is binding on the sentencing judge. § 921.141, Fla. Stat. (2022).

After the Florida Supreme Court extended Hurst and held it partially

retroactive, Mr. Gaskin raised successive postconviction claims that his death

sentence violated the Sixth, Eighth, and Fourteenth Amendments. Despite two

certiorari petitions, a detailed rehearing petition after Hurst, a fully pleaded Hurst

motion, and appeal to the Florida Supreme Court, Mr. Gaskin remains sentenced to

death and now faces an imminent execution if this Court denies him the writ.

Mr. Gaskin was diligent in raising these issues in the state courts and in this

Court. He now argues in this petition, that whatever arbitrariness, caprice, and

unequal treatment he pleaded earlier has increased exponentially with the signing of

his death warrant. Mr. Gaskin, without consideration of his unique remand, was in

a larger class of post-Asay 5 cohort who were excluded as a large class of post-Ring 6

5 Asay v. State, 210 So. 3d 1 (Fla. 2016).

6 Ring v. Arizona, 536 U.S. 584 (2002).

petitioners.

Following the execution of Donald Dillbeck on February 23, 2023, Mr. Gaskin

became ensconced in a class of one. He is the only person who has a death warrant

and faces imminent execution based on a nonunanimous death recommendation with

none of the fact-findings required under Hurst being made by a jury. Regarding the

status of a class of one, this Court has stated:

The Equal Protection Clause of the Fourteenth Amendment commands

that no State shall “deny to any person within its jurisdiction the equal

protection of the laws,” which is essentially a direction that all persons

similarly situated should be treated alike. Plyler v. Doe, 457 U.S. 202,

216, 102 S. Ct. 2382, 2394, 72 L.Ed.2d 786 (1982).”

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). And also:

Our cases have recognized successful equal protection claims brought by

a “class of one,” where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment. See Sioux City

Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340

(1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty.,

488 U.S. 336, 109 S. Ct. 633, 102 L.Ed.2d 688 (1989). In so doing, we

have explained that “‘[t]he purpose of the equal protection clause of the

Fourteenth Amendment is to secure every person within the State’s

jurisdiction against intentional and arbitrary discrimination, whether

occasioned by express terms of a statute or by its improper execution

through duly constituted agents.’” Sioux City Bridge Co., supra, at 445,

43 S. Ct. 190 (quoting Sunday Lake Iron Co. v. Township of Wakefield,

247 U.S. 350, 352, 38 S. Ct. 495, 62 L. Ed. 1154 (1918)).

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). See also Clubside, Inc. v.

Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (requiring an “extremely high degree of

similarity” between the plaintiff and those similarly situated).

Mr. Gaskin’s imminent execution weighs on the equal protection scale as

further disparity in treatment, not as dissimilarity. The unequal treatment Mr.

Gaskin will receive if he is executed should lead this Court to reconsider his

arguments on arbitrariness, capriciousness, and equal protection.

Although this Court has noted that the decision by a jury to sentence a

defendant to death maintains the “link between contemporary community values and

the penal system—a link without which the determination of punishment would

hardly reflect the evolving standards of decency that mark the progress of a maturing

society,” Witherspoon v. Illinois, 391 U.S. 510, 520 n.15 (1968), this Court’s

jurisprudence still permits a judge or non-unanimous jury to sentence a defendant to

death. This Court should grant certiorari to determine whether Mr. Gaskin is in the

class of offenders culpable enough to face execution in light of the fact that, when

faced with this question, four jurors determined he was not.

This Court has looked to two alternative tests when determining whether a

death-penalty procedure passes muster under the Eighth Amendment: (1) “the

evolving standards of decency of that mark the progress of a maturing society,” Atkins

v. Virginia, 536 U.S. 304, 311-12 (2002) (internal quotation omitted), and (2) whether

the modern procedure would have violated the general public understanding at the

time of the founding, Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019).

Under both tests, Mr. Gaskin’s execution would violate the Eighth

Amendment. First, in light of the evolving standards of decency—including (1) the

consensus in statutes, sentencing, and executions in favor of unanimous jury death

sentences and (2) this Court’s recognition that a jury vote must be unanimous to

convict a defendant of a “serious offense” — Mr. Gaskin is not in the class of offenders

culpable enough to deserve a sentence of death, as found by the four jurors who

recommended that his life be spared. Second, allowing a defendant to be executed

despite a non-unanimous jury vote violates the common understanding at the time of

the founding that sentences of death must be based upon a unanimous jury. Mr.

Gaskin’s case offers this Court the opportunity to address capital jury sentencing and

ensure that it conforms with both the evolving standards of decency and original

public understanding.

There is an Overwhelming National Consensus in Favor of Unanimous

Capital Jury Sentencing

Death penalty procedures that have been found to have been repudiated by the

“evolving standards of decency that mark the progress of a maturing society” violate

the Eighth Amendment. Atkins at 312. Under this inquiry, this Court has

traditionally reviewed the current understanding and administration of the

procedure in question. When the procedure used by a state is out of touch with the

contemporary consensus, the procedure fails this test and has been rendered

unconstitutional.

Since Hurst, only four states have executed a defendant who was sentenced

after the jury was not unanimous during this time — Alabama, Florida, Missouri,

and Nebraska — not including defendants who waived a jury. The practice is thus

“truly unusual.” Atkins, at 316 (calling the practice of executing the intellectually

disabled “truly unusual” after noting that among the states that regularly execute

and had no prohibition against the practice, only five states had actually executed a

defendant with an IQ less than 70 since other states began prohibiting the practice).

In fact, because only five states carried out such executions, this Court declared in

Atkins there was a “national consensus” against executing the intellectually disabled.

Id. In that regard there is a stronger consensus here.

This Court’s Decision in Ramos Also Contributes to the Societal Consensus

Against Non-unanimous Juries

Also relevant to the consensus is this Court’s recent decision recognizing that

a unanimous jury vote is required to convict a defendant of a “serious offense” under

the Sixth Amendment. Ramos v. Louisiana, 140 S. Ct. 1390 (2020). 7 As this Court

noted, a unanimous jury has been required to convict a defendant of a serious offense

essentially uniformly throughout common law and currently in all but two states. Id.

at 1394-97. The right to a jury is “fundamental to the American scheme of justice.”

Id. at 1397.

This Court’s recent recognition that a unanimous jury is required to convict a

defendant of a serious crime — i.e., that a unanimous jury vote is required to subject

a defendant to the mere possibility of facing more than six months in prison — is

clearly relevant to the current standards of decency. If it is unacceptable to subject a

defendant to the possibility of facing over six months in prison based on a less-than

unanimous jury vote, clearly society has now recognized it is unacceptable to subject

him to execution when one or more jurors — let alone four — have determined that

the prosecution has not proven the defendant is worthy of the ultimate punishment.

This Court should grant certiorari review to consider the discrepancy between the

7 “Serious offenses” are defined as those with a minimum potential punishment of more than six

months in prison. See Cheff v. Schnackenberg, 384 U.S. 373 (1966).

recognition of the unanimous jury right in Ramos and this Court’s outdated

precedents allowing capital non-unanimous jury or judge sentencing.

It was Widely Understood that a Unanimous Jury Vote was Required to

Execute a Defendant at the Time of the Founding

Capital sentencing was understood to require a unanimous jury verdict at the

time of the Founding. “[T]he Constitution’s guarantees cannot mean less today than

they did the day they were adopted.” United States v. Haymond, 139 S. Ct. 2369, 2376

(2019). In addition to the evolving standards of decency, this Court has also looked to

the original understanding as an additional guide to the proper scope of the Eighth

Amendment. See, e.g., Beck v. Alabama, 447 U.S. 625, 635 (1980); Woodson, 428 U.S.

at 289. This is because, at the Founding, the Constitution permitted the death penalty

only “so long as proper procedures [were] followed.” Bucklew, 139 S. Ct. at 1122.

At common law, the determination of whether a defendant should be sentenced

to death belonged to the jury. It was understood that “no man should be called to

answer to the king for any capital crime, unless . . . the truth of every accusation,

whether preferred in the shape of indictment, information, or appeal, should

afterwards be confirmed by the unanimous suffrage of twelve of his equals.” 8 By the

time the Bill of Rights was adopted, the jury’s right to determine whether a defendant

should face the death penalty “was unquestioned.” 9

Given the number of crimes that mandated capital punishment, the

8 Janet C. Hoeffel, Death Beyond a Reasonable Doubt, 70 Ark. L. Rev. 267, 271 (2017) (quoting 4

William Blackstone, Commentaries on the Law of England 343 (4th ed., Oxford, Clarendon Press

1770)).

9 Welsh S. White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendant’s Right to

Jury Trial, 65 Notre Dame L. Rev. 1, 10-11 (1989).

determination of whether to find the defendant guilty and whether to spare his life

was frequently the same. In such cases, it was widely understood that the jury had

nullification power if the jury believed a death sentence would be too harsh. See

Woodson, 428 U.S. at 289–290. Although “under this capital punishment scheme,

there was no bifurcation between guilt and sentencing,” “common law juries

necessarily engaged in ‘de facto sentencing’ when deciding whether the defendant

was guilty as well as the degree of guilt.” 10

Fundamental to the jury’s determination that a defendant should be sentenced

to death were the corresponding protections that the jury’s verdict should be

unanimous and beyond a reasonable doubt. See Hoeffel, supra, at 275-79 (noting the

creation of the beyond a reasonable doubt standard was based on the “morality of

punishment” in capital cases, rather than fact finding); Ramos, 140 S. Ct. at 1395-97

(cataloging the centuries long history of jury unanimity when defendants were

charged with “serious” crimes). This was compared to less serious crimes for which

judges could determine sentences and were not bound to make findings beyond a

reasonable doubt. 11 This Court should grant certiorari to re-examine capital jury

sentencing in light of the original public understanding.

10 Richa Bijlani, More than Just a Factfinder: The Right to Unanimous Jury Sentencing in Capital

Cases, 120 Mich. L. R. 1499, 1523-25 (“the question of ‘appropriate punishment’ was not only at issue

in those unified proceedings but was often the principal issue faced by the jury”).

11 See John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105

Colum. L. Rev. 1967 (2005) (“judges exercised sentencing discretion in choosing among [non-capital]

punishments and in fixing terms of imprisonment, and . . . they exercised that discretion in sentencing

proceedings that lacked the formality of jury trials”).

This Court should Reconsider What Remains of Spaziano and Harris

This case presents this Court with the opportunity to revisit Spaziano v.

Florida, 468 U.S. 447, 457-65 (1984) and, by extension, Harris v. Alabama, 513 U.S.

504 (1995). The Florida Supreme Court has recently used Spaziano to deny relief on

this very question, stating that this Court

“rejected th[e] exact argument . . . that the Eighth Amendment requires

a unanimous jury recommendation of death” in Spaziano v. Florida, 468

U.S. 447, 465 (1984). Poole, 297 So. 3d at 504. To the extent that our

prior decision rejecting Dillbeck’s Eighth Amendment challenges to his

death sentence does not foreclose relief, Spaziano is still good law and

requires denying Dillbeck’s claim.

Dillbeck v. State, ___ So. 3d __, 2023 WL 2027567 *7.

Spaziano has already been overruled in part by this Court. Hurst, 577 U.S. at

101. In light of the evolving standards of decency and the original public

understanding regarding unanimous capital jury sentencing, Spaziano’s already

crumbling foundation cannot bear the weight the Florida Supreme Court has placed

upon it.

Spaziano and Harris are the subject of “grave concern” over capital judge

sentencing, and Justices of this Court have called for the Court to revisit these

precedents allowing a judge, rather than a unanimous jury, to sentence a defendant

to death. Woodward v. Alabama, 571 U.S. 1045 (2013) (Sotomayor, J., dissenting from

denial of certiorari); see also Reynolds v. Florida, 139 S. Ct. 27 (2018) (Breyer, J.,

respecting the denial of certiorari). And in Ring, where the question was not before

the Court, Justices debated this exact issue. Compare Ring v. Arizona, 536 U.S. 584,

610-13 (2002) (Scalia, J., concurring) with id. at 613-20 (Breyer, J., concurring in

judgment).

The calls to revisit these holdings are not without reason. The Spaziano

decision is almost four decades old, and key premises underlying the judge versus

jury sentencing portion of the opinion have eroded over time. Once such premise that

has eroded is reliability. In Spaziano, this Court rejected the petitioner’s argument

that juries would be more reliable in determining which cases truly warrant the death

penalty compared to a judge. 468 U.S. at 461; see also Proffitt, 428 U.S. at 252 (“[I]t

would appear that judicial sentencing should lead, if anything, to even greater

consistency in the imposition at the trial court level of capital punishment, since a

trial judge is more experienced in sentencing than a jury, and therefore is better able

to impose sentences similar to those imposed in analogous cases.”).

Evidence has accumulated over time casting doubt on this assumption. For

example, a study of death-row exonerations across three states that permitted a judge

to sentence a defendant to death over the non-unanimous vote of a jury — Alabama,

Delaware, and Florida — found that “[i]n 28 of the 30 cases for which the jury vote is

known . . . at least one juror had voted for life.” 12

This case provides the Court with the overdue opportunity to revisit the

precedents that permit the execution of a condemned man despite four jurors voting

to spare his life.

Death Penalty Information Center, DPIC Analysis: Exoneration Data Suggests Non-Unanimous

Death-Sentencing Statutes Heighten Risk of Wrongful Convictions (March 13, 2020) (noting that the

1974 jury vote could not be found for one exoneration and the other involved the waiver of a sentencing

jury). Available at: https://deathpenaltyinfo.org/news/dpic-analysis-exoneration-data-suggests-nonunanimous-death-sentencing-statutes-heighten-risk-of-wrongful-convictions

This Case is a Proper Vehicle to Decide the Question

This case presents an excellent opportunity for this Court to decide the

question because this Court’s jurisdiction to hear the case is not affected by an

independent or adequate state law ground. The Florida Supreme Court’s rejection of

Mr. Gaskin’s Eighth Amendment challenge to his death sentence, including for lack

of juror unanimity as to the recommended sentence, the decision below does not rest

on that fact.

Evolving standards of decency prevent Mr. Gaskin’s execution under the

Eighth Amendment because he was denied a unanimous death recommendation. Mr.

Gaskin’s date finality on direct appeal has no relationship to the nature of his crime

or his character and to whether he belongs to the class of defendants who are subject

to the death penalty. Mr. Gaskin’s case was also not narrowed to the most aggravated

and least mitigated because of the failure of the jury to hear and the courts to consider

his mitigation. Mr. Gaskin’s case was arbitrarily narrowed by caprice. A state death

penalty rule, even if it is clear and easily administered, is unconstitutional unless it

is calibrated to culpability and “ensure[s] consistency in determining who receives a

death sentence.” Kennedy v. Louisiana, 554 U.S. 407, 436 (2008).

Evolving standards of decency, or any standards of decency for that matter,

cannot allow Mr. Gaskin to be executed based on nothing more than a perverse

lottery. His execution would be “cruel and unusual in the same way that being struck

by lightning is cruel and unusual.” Furman v. Georgia, 408 U.S. 238, 309 (1972)

(Stewart, J. concurring). This Court should grant the writ.

ARGUMENT III

Mr. Gaskin raised a state habeas petition filed in the Florida Supreme Court,

involving that court’s denial of relief based on Mr. Gaskin’s claim argued under this

Court’s decision in Espinosa v. Florida, 505 U.S. 1079 (1992). Following direct appeal,

Mr. Gaskin petitioned this Court for a writ of certiorari. Mr. Gaskin raised one issue:

Whether adequate guidance is provided by instructing a sentencing jury

that it consider as an aggravating circumstance whether the crime was

committed in an especially wicked, evil, atrocious, or cruel manner.

This Court granted the certiorari petition and remanded to the Florida Supreme

Court “for further consideration in light of Espinosa v. Florida, 505 U.S. 1079 [ ]

(1992).” Id.

On remand, Mr. Gaskin argued:

The jury instructions at Gaskin’s penalty phase were unconstitutionally

vague. This issue was preserved by the filing of a pretrial motion. Even

if counsel failed to adequately preserve the issue, Espinosa and Sochor

represent a change in Florida law which must now be applied to Mr.

Gaskin's claims. The State cannot meet the onerous burden of proving

the constitutional error harmless beyond a reasonable doubt.

Remand Brief/4. On remand, Mr. Gaskin argued under a line of Florida cases that

argued Mr. Gaskin truly did raise the Espinosa issue in his pretrial motion. To the

extent that trial counsel was not perfect in preservation of the issue, it was more than

explainable by the futility of raising such issues in the wake of the Florida Supreme

Court’s rulings. Nevertheless, the Florida Supreme Court gave two reasons for the

denial:

1. [A]lthough Gaskin argued at trial against the instruction for the “cold,

calculated and premeditated” aggravating circumstance,3 he did not

object to the vagueness of the especially heinous, atrocious, or cruel

aggravating circumstance instruction at trial, nor did he request a

special instruction for this circumstance. Thus, the issue of

unconstitutional vagueness as to the jury instruction struck down in

Espinosa has not been preserved for review. See, e.g., Ragsdale v. State,

609 So. 2d 10 (Fla.1992).

2. In addition, were we to address the issue, the reading of the

insufficient heinous, atrocious, or cruel aggravating circumstance

instruction as it relates to the sentence for the murder of Georgette

Sturmfels would be harmless error beyond a reasonable doubt, because

the reading of this vague instruction could not have affected the jury's

recommendation of death in this case. Therefore, for the reasons stated

here and in our earlier decision, we again affirm the two death

sentences.

Gaskin v. State, 615 So. 2d 679, 680 (Fla. 1993) (footnote omitted). It was beyond

dispute that the jury instruction was found unconstitutional in Espinosa was the

same jury instruction that Mr. Gaskin’s jury received. However, it was far worse

because Mr. Gaskin’s jury was instructed on the same aggravating factors for both

murders even though the jury was told to return separate recommendations for each

victim. The trial court later found that as a matter of law the WEAC aggravating

factor only applied to one of the victims. T/1026, 1033. The court instructed in part,

that:

The aggravating circumstances that you may consider are limited to any

of the following that are established by the evidence . . . Four, the crime

for which the Defendant is to be sentenced was especially wicked, evil,

atrocious or cruel.

T/999. The State did not admit in penalty phase closing argument that the WEAC

aggravating factor was not proven for one of the victims. Rather, the State argued:

Another statutory, lawful consideration is that these murders were

carried out in an especially heinous or especially heinous, atrocious or

cruel; heinous, or atrocious or cruel.

Mercifully, Robert died quickly.

First, he thought he was having a heart attack as his wife rushed to him,

stood up and realized with the second shot that he is being shot and they

both turn to flee and with that she was struck through the cheek into

the nose.

T/990. (Emphasis added). With no jury instruction to clarify, the State’s argument

did nothing to inform the jury that they should not consider the WEAC aggravating

factor for Mr. Sturmfels. The State argued in the plural. There was no definition given

to the jury for what wicked, evil, atrocious, or cruel meant in relation to the murders,

and as such the jury had no guidance on this aggravator. See current Fla. Stat. §

921.141(6)(h) (2022); see also corresponding Florida Standard Jury Instructions in

Criminal Cases 7.11., para. 8. 13 There was nothing to prevent the jurors from

considering the vague WEAC aggravating factor when they were voting on whether

Mr. Gaskin should serve life in prison or be executed by the state. There was nothing

to prevent this unconstitutional factor from being the deciding factor in choosing

death.

This error was not harmless. While it is unconstitutionally cruel and unusual

to execute Mr. Gaskin based on a non-unanimous jury recommendation, this is made

even more egregious because the jurors’ limited function in their eight-to-four

recommendation was infected by the Espinosa violation.

The First-Degree Murder was especially heinous, atrocious, or cruel. “Heinous” means extremely

wicked or shockingly evil.

“Atrocious” means outrageously wicked and vile.

“Cruel” means designed to inflict a high degree of pain with utter indifference to, or even enjoyment

of, the suffering of others. The kind of crime intended to be included as especially heinous, atrocious,

or cruel is one accompanied by additional acts that show that the crime was conscienceless or pitiless

and was unnecessarily torturous to (decedent).

This Court has held that “‘the general principle that an objection which is

ample and timely to bring the alleged federal error to the attention of the trial court

and enable it to take appropriate corrective action is sufficient to serve legitimate

state interests, and therefore sufficient to preserve the claim for review here.’” Lee v.

Kemna, 534 U.S. 362, 378 (2002) (quoting Douglas v. Alabama, 380 U.S. 415, 422

(1965)).

Mr. Gaskin preserved an Espinosa issue in greater detail than anyone was

required to under the Florida Supreme Court’s decision in Mosley v. State, 209 So. 3d

1248 (Fla. 2016). The Florida Supreme Court never required preservation of a Ring

claim to prevail on a Hurst claim. While there was some dicta on the standard of

retroactivity under the theory in James v. State, 615 So. 2d 668 (Fla. 1993), this was

never a factor in determining who would get relief and who would not. Until Poole v.

Florida, 297 So. 3d 487 (Fla. 2020), the courts in Florida simply asked whether the

jury was less than unanimous and had the case become final after Ring. This was

based on Florida law’s standards for retroactivity as well as the importance of this

Court’s decision in Hurst. The Florida Supreme Court treated Mr. Gaskin disparately

on Hurst as it had done based on Espinosa. Those individuals were never required to

show a preserved Ring claim to avail themselves of the benefits of Hurst, as was the

case with post-Hitchcock petitioners. Mr. Gaskin preserved an Espinosa issue, even

though he was not required to have previously raised one.

In the case of Espinosa, Mr. Gaskin invoked on remand that the Florida

Supreme Court recognized in that the significance of Hitchcock v. Dugger, supra, also

a landmark case of this Court, stating “that the United States Supreme Court’s

consideration of Florida’s capital sentencing statute in its Hitchcock opinion

represents a sufficient change in the law that potentially affects a class of petitioners,

including Thompson, to defeat the claim of a procedural default.” Thompson v.

Dugger, 515 So. 2d 173, 175 (Fla. 1987). Espinosa was as clear in its rejection of the

standard jury instruction and the notion that the judge’s sentencing based on the

jury’s non-unanimous recommendation insulated the jury instructions regarding

aggravating factors from compliance with Eighth Amendment jurisprudence.

The Florida Supreme Court has held that the change brought by Hitchcock was

so significant that the failure to previously raise a timely challenge to the jury

instruction would not preclude consideration of a Hitchcock claim in postconviction

proceedings. Delap v. Dugger, 513 So. 2d 659, 662 (Fla. 1987) (The fact that Delap’s

request for a proper instruction was late is not significant to our decision because in

Hitchcock the impropriety of the instruction was not even raised at the trial.) Again,

the instruction rejected in Hitchcock was, as it is here, a standard jury instruction

repeatedly approved by the Florida Supreme Court. See Demps v. State, 395 So. 2d

501, 505 (Fla. 1981). The approach in Delap is also warranted here, where attorneys

in reliance on the Florida Supreme Court’s jurisprudence which conclusively, albeit

erroneously, settled the issue adversely to the client, chose to forego arguments which

appeared to be meritless in favor of issues with a greater chance of success. The

Florida Supreme Court should have treated Espinosa’s reversal of its jurisprudence

as a substantial change in law.

The contrast between the Florida Supreme Court’s treatment of Hurst and

Hitchcock compared to Espinosa is striking and unconstitutional. The Florida

Supreme Court always had the power to remedy errors such as those found in Mr.

Gaskin’s case. It was clear at the time of the FSC’s decision on the Espinosa claim

that, “Fundamental fairness” may override the State’s interest in finality. Moreland

v. State, 582 So. 2d 618, 619 (Fla. 1991). “The doctrine of finality should be abridged

only when a more compelling objective appears, such as ensuring fairness.” Witt v.

State, 387 So. 2d 922, 925 (Fla. 1980). “Considerations of fairness and uniformity

make it very difficult to justify depriving a person of his liberty or his life, under

process no longer considered acceptable and no longer applied to indistinguishable

cases.” Id. Accordingly, the Florida Supreme Court held in Witt that “only major

constitutional changes of law” as determined by either the Florida Supreme Court or

the United States Supreme Court are cognizable in postconviction proceedings. Id. at

929-30. Here, the decisions at issue have emanated from this Court. As such,

Espinosa qualified under Witt to be such a major constitutional change in law. In

Witt, the Florida Supreme Court cited Gideon v. Wainwright 14 as an example of a

change in law which defeated any procedural default. As a result of Gideon, it was

necessary “to allow prisoners the opportunity and a forum to challenge those prior

convictions which might be affected by Gideon’s law change.” Witt, 387 So. 2d at 927.

The rights at issue in Espinosa and presented here are no less important than those

14 372 U.S. 335 (1963).

in Gideon. Mr. Gaskin’s raising of an Espinosa claim was fundamentally the same as

the approach of the post-Ring petitioners to Hurst.

Lastly, the Florida Supreme Court found that Mr. Gaskin never preserved an

Espinosa claim when it appears the charge conference that took place before the Jury

Instructions was never transcribed. The appellate record for Mr. Gaskin’s direct

appeal was eight volumes and a one volume supplemental record. Mr. Gaskin’s

attorney argued and preserved the objection to the WEAC instruction at a pretrial

motion hearing.

At the close of evidence, the following exchange took place:

Whereupon, the Jury went to the Jury Room at 1:52 o’clock p.m.

The Court: Do we have anything further that needs to be brought to

my attention as to the proposed instructions?

Mr. Cass: If it please, Your Honor, yes we do have some instructions to

look at. I have not had time, I don’t think Mr. Tanner has had the time

to look at them.

The Court: They are normally considerably more brief than the earlier

instructions. Do you have those with you?

Mr. Tanner: Your honor, they are prepared. May I step down the hall?

The Court: Would you please.

Mr. Cass: Before Mr. Tanner goes, if you don’t mind, I would like to

renew my motion for directed judgment and

for mistrial on the same grounds and the same reasons as I previously

stated.

The Court: Thank you. I am going to deny the motion. Anything

further?

Mr. Tanner: No, your, honor. Thank you.

The Court: Let’s see if we can get those instructions and then each of

you can review them and we will proceed.

Mr. Tanner: Yes. Your Honor. May I speak with Mr. Cass for just a

moment about something?

The Court: You may. Mr. Tanner: May we approach the Bench?

The Court: You may.

Whereupon a Conference was held at the Bench. {Not transcribed]

The Court: We will take about a ten minute recess, perhaps fifteen, and

reassemble when we have that paper work.

Whereupon, the Court recessed at 1:50 o’clock p.m.

Whereupon, the Court resumed at 2:45 o’clock p.m.

Whereupon, the Jury returned to the Courtroom at 2:45

o’clock p.m.

T/985-86. The State rests. T/964. The defense rests. T/984

The above excerpt shows that a charge conference had yet to take place where

trial counsel could have objected and offered an alternative jury instruction. The trial

court proceeded to closing arguments. The trial court immediately instructed the jury

on the penalty phase instructions. There appears to be no transcript of the charge

conference. This begs the question of how the Florida Supreme Court was able to

determine that the issue was not preserved when the very point at which trial counsel

would have objected was not recorded.

The Florida Supreme Court found that Mr. Gaskin did not object to the jury

instruction, nor did he request a special jury instruction for this circumstance. It is

possible that he could have done so but the charge conference was not transcribed,

but there is no way to know what occurred. Mr. Gaskin brought this to the court’s

attention. On direct appeal, Mr. Gaskin argued that:

LOUIS GASKIN’S CONSTITUTIONAL RIGHTS TO DUE PROCESS

AND EQUAL PROTECTION HAVE BEEN VIOLATED BY THE FACT

THAT A MULTITUDE OF PROCEEDINGS THROUGHOUT THE

TRIAL WERE NOT REPORTED BY THE COURT STENOGRAPHER.

Initial Brief/49. Indeed, his due process rights were violated. Appellate counsel was

correct, and Mr. Gaskin would suffer serious constitutional violations when he was

denied Espinosa relief, in part, because he had no record of whether his trial counsel

objected or not.

The error was not harmless as indeed, the WEAC aggravating factor did not

apply to one murder as a matter of law and was rather specious for the other. Mr.

Gaskin was sentenced to death based on a vague aggravator that ultimately tipped

the scales from 6-6 to 8-4. This should not stand.

ARGUMENT IV

APPLYING TO ALL OF THE FORGOING CLAIMS THIS COURT

SHOULD GRANT CERTIORARI BECAUSE THE FLORIDA

SUPREME COURT HAS FORSAKEN ITS ROLE AS THE

PRIMARY FORUM FOR LITIGATING CONSTITUTIONAL

CLAIMS.

In theory the Florida Supreme Court has recognized its responsibility as the

highest court in Florida to do justice and enforce the rights under the United States

Constitution. Accordingly, Mr. Gaskin urged such relief be granted by the Florida

Supreme Court in his post-warrant direct appeal and state habeas petition. No relief

came. The Florida Supreme Court had a number of ways it could have done justice in

this case. Then Chief Justice Anstead’s special concurrence in Baker v. State, 878 So.

2d 1236 (Fla. 2004), joined by Justice Pariente and Justice Lewis, is instructive:

I write separately to sound a note of caution and reminder that in our

attempts to efficiently regulate a system for addressing postconviction

claims we must constantly keep in mind that we are dealing with the

writ of habeas corpus, the Great Writ, which is expressly set out in

Florida's Constitution. That writ is enshrined in our Constitution to be

used as a means to correct manifest injustices and its availability for use

when all other remedies have been exhausted has served our society well

over many centuries. This Court will, of course, remain alert to claims

of manifest injustice, as will all Florida courts. As we reaffirmed in

Harvard v. Singletary, 733 So. 2d 1020, 1024 (Fla. 1999), “we will

continue to be vigilant to ensure that no fundamental injustices occur.”

We must also be mindful of the concerns expressed by Justice Overton

in Harvard:

Habeas corpus jurisdiction is basic to our legal heritage. It is so

basic that the authors of our habeas corpus jurisdiction made it

unique with regard to this Court because it states that habeas

corpus jurisdiction may not only be exercised by the entire Court,

but it may also be exercised by a single justice. It is the only

jurisdictional provision that gives authority to an individual

justice. The provision also takes particular care to address the

problem of resolving substantial issues of fact, a concern of the

majority, by allowing the Court or any justice to make the writ

returnable to “any circuit judge.”

Id. at 1025 (Overton, Senior Justice, dissenting). With these concerns in

mind, I concur with the basic premise of the majority opinion that

postconviction claims that would ordinarily be subject to the strictures

of rule 3.850 in the trial courts are not relieved of those strictures by

filing the same claims in this Court.

Baker, 878 So. 2d at 1246. The Florida Supreme Court always has jurisdiction to

remedy errors that amount to a manifest injustice; it is in the Florida Constitution.

Mr. Gaskin’s post-warrant litigation raised such manifest injustices that are

fully argued above. The Florida Supreme Court chose not to remedy these, although

they could have done so. The law of the case, res judicata and collateral estoppel were

overcome yet there was no relief for Mr. Gaskin. See State v. Owen, 696 So. 2d 715,

720 (Fla. 1997). Moreover, stare decisis is routinely overcome in the Florida State

courts. See State v. Poole, 297 So. 3d 487, 491 (Fla. 2020).; Bush v. State, 295 So. 3d

179, 201 (Fla. 2020); Phillips v. State, 299 So. 3d 1013, 1022 (Fla. 2020); Lawrence v.

State, 308 So. 3d 544, 549 (Fla. 2020).

The Florida Supreme Court’s recalcitrance in remedying violations of the

United States Constitution creates another compelling reason for this Court granting

certiorari. The Florida Supreme Court has not fulfilled its responsibility to remedy

these constitutional violations when the court clearly could do so.

Mr. Gaskin appealed to the Florida Supreme Court and filed a state petition

for writ of habeas corpus there as well. The Florida Supreme Court ruled on both

pleadings on April 6, 2023. The court referred to the argument that is contained below

in Argument I as “Mitigating Circumstances.” Gaskin v. State, Gaskin v. Dixon, Case

No. SC2023-0415; SC2023-0440 (Appendix B)(hereinafter Op. page#). Op/10. The

court essentially treated this as a successive ineffective assistance of counsel claim

and never engaged with Mr. Gaskin’s Eighth Amendment arguments. The extent of

the court’s engagement on the larger issues was: “Gaskin concedes in his initial brief

that this issue is procedurally barred but argues that constitutional infirmities afflict

his case are sufficient to overcome a procedural bar. However, we reject this argument

and conclude that Gaskin’s constitutional arguments are insufficient to overcome the

procedural bar” The court never considered whether evolving standards of decency

prohibited Mr. Gaskin’s execution. As argued below, Mr. Gaskin’s claim raised

significant arguments that his execution is unconstitutional because he falls outside

the class of individuals which may be subject to death.

Next, the Florida Supreme Court considered what it titled “Hurst.” Op./14. The

court relied on its prior case law and failed to fully engage with Mr. Gaskin’s unique

and discrete arguments. The Florida Supreme Court’s decision rested on its prior

decisions which were wrongfully decided at the time and wrongfully applied in Mr.

Gaskin’s opinion. Most notably, the court never addressed Mr. Gaskin’s argument

that he was further denied equal protection because he was placed in “a class of one”

with the signing of a warrant. The court unreasonably discounted that the jury makes

numerous findings of fact, without which an individual cannot be sentenced to death.

The court’s reliance on Poole was significantly misplaced and violates the ex post facto

clause. Mr. Gaskin, without a jury making factual determinations to limit the class

of individuals subject to death, under the Florida Supreme Court’s view, had no

process that legitimately narrows the class of individuals subjected to death to the

most aggravated and least mitigated. Again, the court failed to engage in the evolving

standards of decency at the heart of the argument. Mr. Gaskin raised significant

constitutional issues that were unique to him. The Florida Supreme Court failed in

its duty to fully adjudicate them.

Finally, the Florida Supreme Court denied habeas relief. Op/20. The court

failed to reconsider whether the error concerning the unconstitutional jury

instruction was harmless for the murder of Georgette Sturmfels, despite the court’s

erroneous finding on appeal. The court then proceeded to find that it was harmless

for the murder of Robert Sturmfels. While the court referenced “the no reasonable

possibility that the error contributed to the death sentence” for Mr. Sturmfels (Op/20;

citing State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986), this was an application of

this Court’s standard under Chapman v. California, 386 U.S. 18, 24 (1967).

Finding the error harmless for both murders was a complete abandonment of

the Florida Supreme Court’s duty to remedy serious constitutional error and worthy

of this Court’s exercise of jurisdiction to remedy it. While the court relied on the other

aggravating factors present in this case, it ignores the fact that the vote was a mere

8-4 with no real mitigation presented, and with an improper instruction on the WEAC

aggravating factor. The court failed to recognize that the very reason this Court found

the WEAC aggravating factor unconstitutional was because it was vague and created

a substantial risk that an individual could be executed without sufficient individual

consideration of whether death should be imposed. In Mr. Gaskin’s case he was a

mere two votes from life, thus it is beyond belief that it had no effect. This is so under

the death penalty scheme Mr. Gaskin was sentenced to death that allowed a death

sentence with no real mitigation being presented. It is a certainty when this is

considered under contemporary standards of decency as seen in Florida’s current

death penalty system which requires detailed fact finding by a jury and a unanimous

vote.

Additionally, this case raises the very concerns that this Court recently

addressed. On February 22, 2023, this Court decided Cruz v. Arizona, 143 S. Ct. 650

(2023) favorably to Mr. Cruz, a death-sentenced prisoner from Arizona. The opinion

rested on the proposition that “[n]ovelty in procedural requirements cannot be

permitted to thwart review in this Court applied for by those who, in justified reliance

upon prior decisions, seek vindication in state courts of their federal constitutional

rights.” Id. at 658 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457

(1958)). The dissent fully embraced that rule but argued that it was not violated in

the circumstances at hand. Id. at 665. The procedural requirements that the Florida

Supreme Court has rested its decisions on were not merely “novel” they were

contradicted by its own law. Considering the stakes in this case this must not stand.

Like the Florida Supreme Court, this Court may exercise jurisdiction. Mr.

Gaskin respectfully requests that this Court grant the Writ.

CONCLUSION

The petition for writ of certiorari should be granted.

S/ERIC C. PINKARD

ERIC C. PINKARD

FLORIDA BAR NO. 651443

LAW OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL

12973 N. TELECOM PARKWAY

TEMPLE TERRACE, FLORIDA 33637

PHONE NO. (813)558-1600 EXT 603

FAX NO. (813) 558-1601

EMAIL: PINKARD@CCMR.STATE.FL.US

*ATTORNEY OF RECORD FOR PETITIONER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.