Opposition Brief — Louis Gaskin, Petitioner v. Florida

DOCKET NO. 22-7236

CAPITAL CASE

IN THE SUPREME COURT OF THE UNITED STATES

LOUIS BERNARD GASKIN,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION TO CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

(850) 414-3300

carolyn.snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

CAPITAL CASE

QUESTIONS PRESENTED

Gaskin killed Robert and Georgette Sturmfels in their home. He shot at both

the Sturmfels from outside their house as they sat in their living room. Robert was

hit in the chest and died shortly after, but Georgette managed to find cover inside

the home after being shot. Gaskin broke in and found her breathing and bleeding

inside a hallway. He shot Georgette and Robert in the head and proceeded to steal

items from the home. He then went to the home of Joseph and Mary Rector. After

failing to lure them outside, he shot them, as well, as they sat inside their home.

While Joseph was shot in the chest, he and Mary managed to grab their keys and

escape to their car, where they were able to drive away from Gaskin. He stole items

from their house, as well, and then left.

Florida Governor Ron DeSantis recently signed a death warrant for Gaskin

and his execution is scheduled for April 12, 2023. Gaskin asked Florida’s courts to

stay his execution and vacate his sentence. The Florida Supreme Court rejected

Gaskin’s claims and refused to stay his execution on both procedural state law and

substantive grounds. This Court should decline to exercise certiorari jurisdiction

over the following questions presented:

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 posttrial 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?

i

TABLE OF CONTENTS

CONTENTS

QUESTIONS PRESENTED 00000... cee ececeeeeeseeeseeeeseeeeesscenssasensceasessseuseeeeseeeeesesenesees 1

TABLE OF CONTENTS . 0.0.0... ccsccecccecsecceseeeeeeeesesecsuescceeeesssecossseeeesausecasssenesseneeeseasenees il

TABLE OF AUTHORITIES... cece cescceseesseneseeeessnesesnseesennsersseesensesesneeesseeeoseeease iv

OPINION BELOW . 000.0... cccsscsccsssneecsnseeusenseessseessssceesasseusesnssaseuecosseeasosseeesesseeseasesesoanees 1

CONSTITUTIONAL PROVISIONS INVOLVED... ooo eee eeecseeeeeeoneeseseeeesseneneneaee 1

JURISDICTION o.oo ceccccceecseeeeeeseceeeseaeeusesususseeucoseeesessseeessassceeseusseesassseeeseseeeseasnsonees i

STATEMENT OF THE CASE AND FACTS... eeeeceeceneneeereeeseeeteneeeceneeesneeeeaeessnenes 1

REASONS FOR DENYING THE WRIT 000... ceeeeeseeeececeeeeceeeeeseeeeeeesseneeeeeeenseees 6

ARGUMENT Looe eeeseeeeeeescceececrececersceessaseseasaessauececessseuececseasaesessaeerssseeeseeenaseneateees 7

Petitioner’s trial counsel made a reasonable strategic decision to limit his

mitigation presentation, and Petitioner's mitigation claims are procedurally

barred and without Merit. .........cccccccccccecececeeeceeeeeeceeeeeceeeceecsceaseusseeseseeeeeseeseseeveecenesesens 7

ARGUMENT I]... ieee ceeeeeeeecceneeseeceeeeeesseeeeesoseeeeceessaueaeeesessceeaeaeeeesossuesenseesseaesenees 11

Petitioner has failed to demonstrate why this Court should recede from Spaziano

and hold that the Eighth Amendment requires unanimous jury sentencing as this

claim is procedurally barred, and any holding would not retroactively affect

Gaskin. .........ccccccecceceeeesssssneseccececsessnseeeesessaeeecssausecessscsseaeeeeeesesssensnaeecesesnneeseasessnenessaes 11

ARGUMENT III oo. ccec cece ecce sees sesseeeceseseeeeeseseeesssceassasenecceseesseessaeseseeeerseessneees 18

Petitioner's claim related to Espinosa was properly rejected as

procedurally barred and untimely under Florida state law and is

otherwise meritless and not a basis for this Court’s review .................000008 18

ARGUMENT IV... oo... eeececennceecceeeesseeneseensenaeeessaneeseenscaaaaeasaseesneuuceeeessesseeeeseeeseneaeesees 24

Applying all of the foregoing claims, this Court lacks jurisdiction to review the

judgment below because the claims presented were rejected by the Florida

Supreme Court based upon well-settled state law grounds and rules of procedure

Ore er Pree e ee eee ee eee ee eee ee COSC eT Peer rrr rr eer errr eee e errr rere reese rv errerierere eee rrereser er rrrrsrer errr eter ere re rire rere

ii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Baker v. State

878 So.2d 1236 (Fla. 2004) oo... clecscccsseesseccsesssecessscsseceesseesessaceesseceesseeeenscecsesenees 25

Bartlett v. Stephenson

5385 U.S. 1801 (2002)... cee ee ceece cesses cescesescescsccceeceseceseceecseeecessccecscecersceeseteeesaceeners 24

Beard v. Banks

BAZ U.S. 406 (2004) occ ecccececsecseccessscesssecseccsseecereeessecevssseeeesuserseeees 16, 17, 18

Beard v. Kindler

B58 U.S. 53 (2009)... .eeececcscssesscscsscsecsessscesesscsesssenseseseseesssseseseesscsessesseneeaeseceeseeensans 26

Beiro v. State

289 So.3d 511 (Fla. Dist. Ct. App. 2019) 0.0... ceeesscceccceseevesecessseceseeseecsecneessees 28

Bucklew v. Precythe

139 S.Ct. 1112 (2019)... cece ccccccsesscescsesesscscssesessecescsesscseseseesecsessesecseseeseeeceasseacaueesscseas 6

Calderon v. Thompson

523 U.S. 538 (1988)... eecceececcccesccecescecsccccescecsceececessneeseseeeecsaceesuseeteeaceesanseneavences 24

Cardinale v. Louisiana

394 U.S. 437 (1969)... ecssccssssssccssesssecsessesessseesesssecsessseeneuenssncsecsssnesecseseceusneassaseseeas 8

Caspar! v. Bohlen

510 U.S. 383 (1994) occ cceccsscessesssecsssesssesesececsassseessreseceesesseeesesnsecesecesseesensecsasens 16

Cruz v. Arizona

143 S.Ct. 650 (2023)... eee ee eeecescccceeseccecsecccececcesesececsscececessececesecesceveesauseensaaees 26, 27

Cuffy v. State

190 So.8d 86 (Fla. 4th DCA 2015) .....cccccesesessssesessscssesessessseessssesseesaesecsessesesseeeeesens 27

Downs v. State

740 So.2d 506 (Fla. 1999) oo... ccecccssesssscecssesssecsssecsesecesseecesnseeesseeeessueeeueeeasereees 20

Dugger v. Adams

A89 U.S. 401 (1989)... cccccccssesssssssssscsessssesescesessssesesesesessesseseeaeseestseesesseseeaesecseseaesees 26

Durley v. Mayo

B51 U.S. 277 (1956)... ccccssessesesscsscsesscsesessesesecsesesesecsesesestencsscsssecsecsecscausessnsesseneaees 13

Edwards v. Vannoy

141 S.Ct. 1547 (2021)... ccccccscssssessesescsesesesecsescscsesesssssesseseseseesesesseateccsceseseeeeaes 17, 18

Espinosa v. Florida,

B11 U.S. 1152 (1994)... cccsccssesscssesssseseseeseesecseseseesessesseseeseesectesseateaeeaeseceuseesesses 19

Espinosa v. Florida

505 U.S. 1079 (1992) eee eeeeeeescceeesccecesscecesssccessesessececeessceeeecesssneeeeses 4, 18, 20, 21

Espinosa v. State

626 So.2d 165 (Fla. 1998) .........ccceccsscssesscssessessessesecseseesecseecsecseeseseseesecsessecseesassessases 19

lv

Evans v. State

946 So.2d 1 (Fla. 2006) ...........eccccccsececeeececececcescescerscsevecescesceacsusersneceacesaceeacceeeceeseacese 20

Fla. Dep't of Transp. v. Juliano

801 So.2d 101 (Fla. 2001) ou... ceceeccceececocceecvscesececcesccecencceceececacececececeeeueceesereeesareees 7,8

Florida v. Powell

559 U.S. 50 (2010)... .eeeeeceecceeccceccceccescccceceesseacesecsssseceacescssceseeeacesacecaceceaecaeeseesecesneacees 9

Floyd v. State

808 So.2d 175 (Fla. 2002) ........cccccccccseccceccecceseeseccecceccecseccecesececseececsceeecceecssacessecease 20

Fox Film Corp. v. Muller

29GB U.S. 207 (1935) ...cccccecceccceccceccceccecesecececeececcecceesssecseseccacesceeeececesecesececseseseceeeceases 8

Gaskin v. Florida

138 S.Ct. 471 (2017)... cceceecceecceseccceccecescccencecseccsecescvscececeaceeseecnevsecessrerenecersracenseeaeeas 15

Gaskin v. Florida

139 S.Ct. 8327 (2018)... ccccccsccccescscceecescccsssccecececseeescessseesecseseeececaceetsceesecetaeetenseesetens 15

Gaskin v. Florida

BOS U.S. 1216 (1992)... cecccesecesccceneceecceeccceccceseeecccacessecacesscecnereraceececeeseecessaseneeaees 19

Gaskin v. Florida

B10 U.S. 925 (1998) ......cecsccceccescccececesceccesecceeceecccsescecseeeceacescesacesscecscecsecenaceraceeaseceace 20

Gaskin v. Sec’y, Dept. of Corr.

AQA F.3d 997 (L1th Cir. 2007)........cccccccecccecssesccceccsccesseseccececscecesseesceesceeseeeseaaseneees 4,8

Gaskin v. State

218 So.3d 399 (Fla. 2017), cert. denied, 138 S.Ct. 471 (2017)... cceeecccecseecceseseeeees 4

Gaskin v. State

237 So.3d 928 (Fla. 2018), cert. denied, 139 S.Ct. 327 (2018)... eeceeeesesecceceseeeees 4

Gaskin v. State

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

Gaskin v. State

615 So.2d 679 (Fla. 1998) .......cccccccseccccecscececceesecceseesecceseceesetennceessacseesseceesenceneass 4,19

Gaskin v. State

822 So.2d 1243 (Fla. 2002) ......ccccccceccccesccescceccececcseccecceeesecsesecesscesscseeeceesaes 4, 8,9, 12

Gaskin v. State

No. SC19-1097, 2020 WL 57987 (Fla. Jan 6, 2020) ......c.eecescscscscssseeesssesseessseeeseenses 4

Gaskin v. State

No. SC20-653, 2020 WL 2467112 (Fla. May 13, 2020) ......cccccssecsecscsesseceeneeeeees 46

Gaskin v. State,

No.SC23-415, 2023 WL 2799414 (Fla. April 6, 2023) oo... ..clesceesceeeeseeeeeeeeees passim

Gideon v. Wainwright

372 U.S. 835 (1968)... ecccescccccesscccssccesecsecceseecsseecsesesessauecsececessceseeaeeseessseseseessneees 22

Graham v. Collins

BOG U.S. 461 (1998) ......ccccceseccecccesecsccccscesecesccecececssesscsecseceseescesacenscesseeesecesseeecseatenes 16

Haag v. State

591 So.2d 614 (Fla.1992) oo... eeceeceseccessccsccesceecccscesececesccececesecevecerscerscessceeeceenecareaees 25

Hall v. State

94 So.3d 655 (Fla. Ist DCA 2012) oo... eececcececesscesccsssssecscesecsecccescesssccesecnsenseceseeaees 27

Hayburn’s Case

2 U.S. 408, 1 L.Ed. 436 (1792)... ceecceecceesseesccessseesecsecesscsecceceesnscsesereeessceseeerseseees 27

Herb v. Pitcairn

B24 U.S. 117 (1945) occ ceccecececcsscccsseeccssccecesecseceseceeccseeseecssecsevseceuseecesenerseseeceeesseeess 27

Huff v. State,

G22 So.2d 982 (1993) o..cceceecccesccsecccscescescceseecssecceecsseeseecesecsecesecsscessrecseeeesnseeserecseevseees 5

Hurst v. Florida,

B77 U.S. 92 (2016) ieee cecsccccsssccsccssssscsccesossseecssessccseecessecseseesscseeeucesscesevsesseneas 5, 14

Johnson v. Mississippi

ABC U.S. 578 (1988) .....ceccccccsssescscescsccscccescccessccssceseccsscesscessseececsecseeseeesessceesacerseeeesneess 26

Lee v. Kemna

584 U.S. B62 (2002)... ceeccecccecccsecccsesccesssecssccesccesessececcessececseccecseeesseseesecesecessaceessenss 26

McCrae v. State

437 So.2d 1388 (Fla.1983) ......cccccccceseccesseccccescesscesecsecscecesecsecseseecescsesessacesenseeens 25, 26

McDonough v. Smith

139 S.Ct. 2149 (2019)... ceccececcccescececcenccessscccessecsceseseessneecessesscccsssesecesesecsaesecscecanes 16

McKinney v. Arizona

140 S.Ct. 702 (2020)... cee eeecccceeccecesceesesssesescsecsueenseseccescsesessesenseesessueaceasaneaaes 15, 17

McManus v. State

177 So.3d 1046 (Fla. Ist DCA 2015) .....eecceeecseesseeseececceecsccecesencececacesaceseceesseeseasease 8

Michigan v. Long

AGB U.S. 1032 (1988) .......cccccccccccecececcceccceceseccesceessesessceseseesesseaseuseseceuceeseees 8, 12, 13, 21

Mills v. State

684 So.2d 801 (Fla. 1996) ........ccecceeccscsscccsscsseceescccsesessseccesessanecscessaeecsusessecesseseaseaae 8

Murdock v. Memphis

87 U.S. 590 (1875)... eececcceccceccescceessscesceeseneccsscesecsenessceesecescesasensecsasessesensseennaeessaeeeceas 26

N.CP. Mktg. Grp., Inc. v. BG Star Prods., Inc.

B56 U.S. 1145 (2009)... ceececceccececceccceccceeccesscesccaseseceasseccacecesarsaeseaeseasenasenaeenaseeaease 16

Sireci v. State

773 So.2d 34 (Fla. 2000) .........ccccccccscccceeccceceseccececcsenceseaccecesencessesesnecessenceesenceeeeneeneaeess 8

Sochor v. Florida

BOA U.S. 527 (1992) .....cccccccescccsccccssececsencceesseecesencesaneeenceeeacseaceeseceeaaeeseeceesscacenseaes 22, 23

Sochor v. State

580 So.2d 595 (Fla. 1991) ........eeceeccescccssceescceccesecesesecceccescecesecsareaceeecesaseeseeessensceaeeace 22

Spaziano v. Florida

AGB U.S. 447 (1984) oo eccccccccccccsccsccesccsessseseeneeseesseeeseeenseeneessceeseeseeseassseseseeees 12,13

State v. McBride

848 So.2d 287 (Fla. 2008) oo... cesesseeesessessesees ees eesssessessneeseesneatesassneseeseesssneseenssessaeeass 8

Stephens v. State

974 So. 2d 455 (Fla. 2d DCA 2008) oo.....eececcececsesssesecsccscccececscsececescuceesaccecenscereeneesace 27

Street v. New York

394 U.S. 576 (1969).......ccccccccccesccccceccccesecccecesscecencessceesseccescesseceecensauseeseceeeeseceseeaseeeceees 8

Strickland v. Washington

ABE U.S. 668 (1984) ......cccccccecceccesccceccseccceccessccececasecesecceceeccesceseceeseceetsseseensceesceenseaseaees 7

vi

United States v. Johnston

268 U.S. 220 (1925) eee eeccceccsecccecsccceessecccesssecessaccesscscssesseeeeseeseseeseaseeseceeenseneteceneeees 24

United States v. Lanier

520 U.S. 259 (1997). ....ccccccccccecceccesceescceecccecececcseccecececcccescssecasceccesceteceseceeessseseeeesaeeece 14

Walker v. Martin

B62 U.S. 807 (QOL) ......eccccccsccecccecceececeeccesenceeeaceesceessceeceesceenceeceeusessseceseecacessesecenaeeess 26

Wong v. Belmontes

B58 U.S. 15 (2009)... ececcceccecsecccccceccccecccecceesccesseacceececeesceaccsseeceaecsceseesasecnsessseeenees 11

Zeigler v. State

116 So0.8d 255 (Fla. 2013) ...ceccccecccsccccesscccessscceccecesecececeeecesesecesececeececseccevececececeteesses 8

STATUTES

QB U.S.C. §1 257 oie cecceccccsssscsssscsssscssssesesssesescesceussssssssesccassscesecsecaeaussesseaseaesssssaesaseaceasess 1

Florida Constitution Art. I, § 18 oo... ccccccsssssssesseesessssssnscscnnsnneceececsccsecceccesesseeeeeeees 25

Fla. State Stat. § 921.141 (BS) oo. cece cee ccscescsscessscsssscanssssessssessssccassaseavessseceeseases 21

U.S. Constitution Amend. VIII 00...... 2. cece ccceceeceecceccccecccseccceeccceeccececcececsecanceenccssceeecenees 14

vil

OPINION BELOW

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

Gaskin v. State, No.SC23-415, 2023 WL 2799414, at *1 (Fla. April 6, 2023).

CONSTITUTIONAL 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.

JURISDICTION

This Petition seeks review of a ruling from the Florida Supreme Court, and

therefore any jurisdiction is conferred by 28 U.S.C. §1257.

STATEMENT OF THE CASE AND FACTS

Gaskin is currently under an active death warrant, with execution scheduled

for April 12, 2023. The State provides the following relevant factual and procedural

summary of prior proceedings and litigation under the instant warrant.

A. Trial and Prior Postconviction Proceedings

On December 20, 1989, Louis Gaskin murdered Robert and Georgette

Sturmfels in their home. Gaskin v. State, 591 So.2d 917, 918 (Fla. 1991). He

approached their isolated house at night and circled the house several times armed

with a gun. Jd. Spotting the two through a window, Gaskin shot the couple,

alternating between the two. /d. Robert died quickly, but Georgette was able to

crawl into another part of the house and Gaskin pursued running around the

outside. Jd. When he found her, he shot her again, and then shot both victims once

more in the head after breaking into the home. Jd. He then stole several items of

value, including cash, jewelry, VCRs, and lamps. /d.

He then went to the home of Joseph and Mary Rector and attempted to do

the same to them. He lured them outside and shot Joseph once before the pair were

able to get to their car and drive to the hospital, Gaskin shooting at the car as they

sped off. Jd. He then burglarized their home. /d. He later went to the house of his

girlfriend’s cousin, Alfonso Golden, and dropped off several of the items saying they

were Christmas presents. Jd. He told Golden he had “jacked” the items and left the

victims “stiff’. Jd. Golden learned of the murders on the news and went to the

authorities, turning over the items which were identified as belonging to the

Sturmfels. Jd. Gaskin was arrested and confessed to the crimes, directing the police

to additional evidence in a nearby canal. /d. During the investigation Gaskin gave a

very detailed statement about the murders, saying:

Aimed, aimed at him, pulled the trigger and he was shot. To his wife it

appeared that he was having a heart attack and then he said, Oh, my

God, what’s happening and I shot him again and his wife realized what

was going on. She proceeded to run. I shot her. He was still standing

and he tried to run and I shot him again. He fell down. Didn’t move

anymore. It was like his wife got a little burst of energy from

somewhere; proceeded to crawl out and shot her again. She still

proceeded. She got into the hallway out of sight, so I went around to

the other doors that faced the hallway. She was sitting there holding

her head looking at the blood. I shot her again. She fell over. I went

back around to the front; pulled the screen out; bust the window;

opened it up; proceeded in and closed the window back , closed the

blinds; checked them out and shot him again in the head at pointblank range. Went around to the lady. She was still groggily dying;

shot her again in the head at point-blank range and then closed the

blinds in the rest of the house.

Supp. Rec. 44-45.

The jury found Gaskin guilty of first-degree murder under premeditated and

felony murder theories of both Robert and Georgette. They also found him guilty of

armed robbery of the Sturmfels; burglary of the Sturmfels’ home; attempted firstdegree murder of Joseph Rector; armed robbery of the Rectors; and burglary of the

Rector home.

Following a penalty phase, the jury recommended death by a vote of 8-4 for

each murder. 591 So.2d at 919. The trial judge found three aggravators applied to

both murders: 1) the murders were committed in a cold, calculated, and

premeditated manner; 2) Gaskin had previously been convicted of another capital

offense or of a felony involving the use or threat of violence based on his

contemporaneous convictions; and 3) the murders were committed while the

defendant was engaged in the commission of a robbery or a burglary. Jd. The judge

found a fourth aggravator for Georgette’s murder, that it was especially wicked,

evil, atrocious, or cruel. /d. In mitigation, the judge found that the murders were

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

disturbance and that he had a deprived childhood. /d. The judge followed the jury’s

recommendation and sentenced Gaskin to death for each murder. /d.

The Florida Supreme Court upheld his convictions and death sentences on

direct appeal. /d. After remand from this Court to reconsider his case in light of the

decision in Espinosa v. Florida, 505 U.S. 1079 (1992), the Florida Supreme Court

again affirmed his death sentences. Gaskin v. State, 615 So.2d 679 (Fla. 1999).

Since that Court’s decision in 1998, Gaskin has continued to file motions for

postconviction relief. The Florida Supreme Court affirmed the denial of his initial

motion, his first and second successive motions, and dismissed two pro se all writs

petitions.!

Gaskin also pursued relief in federal court and filed a federal habeas petition

in the federal district court on June 25, 20038. The district court denied relief on

March 23, 2006, and the Eleventh Circuit Court of Appeals affirmed that denial on

August 3, 2007.2

B. Litigation Under the Instant Warrant

The governor signed a death warrant for Gaskin on March 13, 2023. After the

public records litigation, on Saturday, March 18, 2023, Gaskin filed a third

1 See, Gaskin v. State, 822 So.2d 1248 (Fla. 2002); Gaskin v. State, 218 So.3d 399

(Fla. 2017), cert. denied, 138 S.Ct. 471 (2017); Gaskin v. State, 237 So.3d 928 (Fla.

2018), cert. denied, 139 S.Ct. 327 (2018); Gaskin v. State, No. SC19-1097, 2020 WL

57987 (Fla. Jan 6, 2020); Gaskin v. State, No. SC20-653, 2020 WL 2467112 (Fla.

May 13, 2020).

2 See, Gaskin v. McDonough, 3:03-cv-547-J-20 (M.D. Fla. 2003); Gaskin v. Sec’,

Dept. of Corr., 494 F.3d 997, 1000 (11th Cir. 2007).

4

successive postconviction motion in the circuit court raising four claims. 2023 3rd

Succ. PCR 422-449. The four claims were: (1) his death sentence violated evolving

standards of decency because the jury was never presented with meaningful

mitigation; (2) he was entitled to relief under Hurst 3 due to a non-unanimous jury

recommendation; (3) the lengthy delay between his clemency proceedings and the

signing of a warrant entitled him to relief; and (4) his lengthy stay on death row

entitled him to relief.

On March 19, 2023, the State filed its answer to the motion asserting that all

four claims should be summarily denied. 2023 8rd Succ. PCR 484-507. On March

20, 2023, the circuit court conducted a case management conference, commonly

referred to as a Huff hearing, at which the court heard the arguments of counsel

regarding whether any of the four claims required further factual development at

an evidentiary hearing. That same day, the court entered an order summarily

denying the third successive postconviction motion. 2023 3rd Succ. PCR 522-561.

Gaskin appealed the circuit court’s denial of claims 1, 2, and 4 to the Florida

Supreme Court while abandoning Claim 3. He also filed a habeas petition in the

Florida Supreme Court alleging that the Espinosa error in his trial entitled him to

relief. Finally, he moved to stay his execution. The State opposed the stay and

habeas petition and argued that the court should affirm the denial of his third

successive postconviction motion.

The Florida Supreme Court rejected all claims raised in both Gaskin’s appeal

3577 U.S. 92 (2016)

4 622 So. 2d 982 (1993).

and habeas petition on procedural, state-law grounds and substantive, merits-based

grounds. Gaskin v. State, No.SC23-415, 2023 WL 2799414, at *1 (Fla. April 6,

2023).

REASONS FOR DENYING THE WRIT

Gaskin seeks certiorari review in an attempt to deprive his victims of justice

on the eve of his execution for heinous crimes committed decades ago. Every

question he presents now should have been (or was) asked and answered long ago.

Gaskin’s long-belated certiorari questions are not entitled to any answer from this

Court on that basis alone. Cf Bucklew v. Precythe, 139 S.Ct. 1112, 1133-34 (2019)

(“Courts should police carefully against attempts to use such challenges as tools to

interpose unjustified delay.”) This Court should deny certiorari and bring true

finality to the victims, the State of Florida, and Louis Bernard Gaskin.

Gaskin raises four long-deferred questions for this Court to consider less than

a week before his execution: 1) whether his trial counsel’s mitigation presentation

renders his death sentence invalid; 2) whether he was entitled to a unanimous

death recommendation from the jury; 3) whether the Espinosa error in his case

entitles him to relief; 4) whether the Florida courts’ application of their procedural

rules amounts to a manifest injustice.

The State will deal with each of Gaskin’s dilatory questions presented in

turn. But none warrants this Court’s review. The bottom line is this case would be

uncertworthy under normal circumstances, much less on the eve of an execution.

The decision below properly stated and applied all governing federal principles, is

based primarily on state law grounds, does not implicate an important or unsettled

question of federal law, does not conflict with another state court of last resort or

United States Court of Appeals, and does not conflict with any decision of this

Court. Petitioner does not argue otherwise, and review should be denied on that

basis alone. See Sup. Ct. R. 10, 14 (g)G@). This Court should refuse to grant

certiorari.

ARGUMENT I

Petitioner’s trial counsel made a reasonable strategic decision to limit

his mitigation presentation, and Petitioner's mitigation claims are

procedurally barred and without merit.

Petitioner argues under the Eighth and Fourteenth Amendments that his

death sentence is unconstitutional because the judge and jury were not presented

what he calls significant mitigation. While he styles his argument under those two

amendments, the heart of his argument is in fact he was denied the effective

assistance of counsel as required by the Sixth Amendment and Sérickland v.

Washington, 466 U.S. 668 (1984). The Florida Supreme Court recognized this and

found that this claim was procedurally barred, as it had been raised and rejected

previously, and that even if it weren't, the claim was meritless. 2023 WL 2799414 at

*4,

This successive postconviction claim is procedurally barred by the law-of-thecase doctrine. The law-of-the-case doctrine bars reconsideration of those legal issues

that were actually considered and decided in a former appeal. Fla. Dep’ of Transp.

v. Juliano, 801 So.2d 101, 107 (Fla. 2001). And the law-of-the-case doctrine, which is

designed to prevent relitigation of the same issues, applies to postconviction

proceedings. McManus v. State, 177 So.3d 1046, 1047 (Fla. 1st DCA 2015) (citing

State v. McBride, 848 So.2d 287, 290-91 (Fla. 2003)); Zeigler v. State, 116 So.3d 255,

258 (Fla. 2013). The law-of-the-case doctrine also applies regardless of whether a

party employs different arguments when reraising the same claim. Sireci v. State,

773 So.2d 34, 40-41 (Fla. 2000) (finding claims procedurally barred and observing

that even if a defendant uses a different argument to relitigate the same issue, the

claim remains procedurally barred); Mills v. State, 684 So.2d 801, 805 (Fla. 1996)

(concluding a claim was barred where it was merely a variation of another prior

postconviction claim).

The circuit court, the Florida Supreme Court, the United States District

Court, and the Eleventh Circuit Court of Appeals have all already rejected this

exact claim. Gaskin v. State, 822 So2d 1243, 1246 (Fla. 2002); Gaskin v.

McDonough, 3:03-cv-547-J-20 (M.D. Fla. 2003); Gaskin v. Sec’y, Dept. of Corr., 494

F.3d 997 (11th Cir. 2007).

This Court has repeatedly recognized that where a state court judgment rests

on non-federal grounds, where the non-federal grounds are an adequate basis for

the ruling independent of the federal grounds, “our jurisdiction fails.” Fox Film

Corp. v. Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038

(1983). See also Cardinale v. Louisiana, 394 U.S. 437, 488 (1969) (reaffirming that

this Court has no jurisdiction to review a state court decision on certiorari review

unless a federal question was raised and decided in the state court below); Street v.

New York, 394 U.S. 576, 581-82 (1969) (same). If a state court’s decision is based on

separate state law, this Court “of course, will not undertake to review the decision.”

Florida v. Powell, 559 U.S. 50, 57 (2010).

Additionally, even if this Court found the procedural bar was not an adequate

independent state ground, this case is not a good vehicle for the question presented

because Gaskin’s counsel did provide adequate assistance and his case is one of the

most aggravated and least mitigated. This claim is meritless. While there was

mental health information that could have been presented to the jury, the bad far

outweighed the good. Trial counsel employed Dr. Krop to do an evaluation of Gaskin

before trial, and the results were unhelpful to mitigation. Dr. Krop “testified at the

evidentiary hearing that he expressly told counsel before trial that he would not be

of much help to the defense because he would have to testify about Gaskin’s

extensive history of past criminal conduct, sexual deviancy, and lack of remorse.”

Gaskin v. State, 822 So.2d 1243, 1248 (Fla. 2002). Gaskin also misrepresents trial

counsel’s efforts, as the only information Dr. Krop had not received was school

records, and they only would have made him determine Gaskin also suffered from

attention deficit disorder in addition to the non-mitigating personality disorder Dr.

Krop had already diagnosed. /d. at 1250.

Dr. Toomer’s testimony and opinion were not as definitive or as strong as

Gaskin presents, either. On cross at the evidentiary hearing, Toomer admitted he

did a large proportion of his examinations in capital cases for the defense, and at

the time of the hearing had been retained by CCRC about a hundred times. PCR

V4, 435. Toomer was aware of Gaskin’s previous criminal conduct, including an

unrelated murder and another attempted murder and robbery. PCR V4, 439.

Although he said he was aware of no other criminal conduct, he did admit he knew

Gaskin had forced himself upon others sexually, but he did not categorize that as

criminal, but part of ‘his “psychosocial history.” PCR V4, 440. There were other

indications of sexual deviancy including cross-dressing, bestiality, and pedophilia,

and instances where Gaskin flushed animals down the toilet. PCR V4, 441-3.

Toomer did not believe an antisocial personality disorder was a correct

diagnosis because it had not been diagnosed before Gaskin was 18. PCR V4, 445.

However, when confronted with the Diagnostic and Statistical Manual of Mental

Disorders (DSM) which says a diagnosis is not required before 18, just that certain

conduct be observed before the age of 15, Toomer, a clinical psychologist, called the

DSM simply a “cookbook” or “guide” and said, “it is not definitive.” PCR V4, 446.

Toomer agreed Gaskin exhibited several behaviors indicative of antisocial

personality disorder before he was 15, including forced sex, truancy, animal cruelty,

and theft, but still summarily rejected the diagnosis. PCR V4, 444; 486-7. Despite

previously endorsing a schizophrenia diagnosis, Toomer admitted that Gaskin’s lack

of significant auditory or visual hallucinations made that diagnosis not apply. PCR

V4, 461-3. He said then he would have to go with a schizotypal diagnosis, but

admitted he could not recall reviewing anything in Gaskin’s DOC file that would

support that diagnosis or schizophrenia. PCR V4, 476. While Toomer agreed that

Gaskin’s conduct during the crimes showed deliberate behavior and planning, he

10

still argued that “mentally disturbed [people] engage in behavior that appears to be

purposeful and planned.” PCR V4, 480. The defense did not present any testimony

related to organic brain damage.

Back in 2002, the Florida Supreme Court affirmed that defense counsel made

a reasonable strategic decision based on all the information he had, and they

affirmed that decision again in the opinion below: “It is apparent from the record

that the witnesses who Gaskin alleges should have testified on his behalf were

subject to being cross-examined about disturbing information about Gaskin, which

would have defeated trial counsel's strategy.” 2023 WL 2799414 at *4. Counsel’s

strategic decision to shield the jury from damaging information which would be

revealed by mental health testimony--including the fact that Gaskin had committed

a prior murder--is fully consistent with this Court’s precedent. See Wong v.

Belmontes, 558 U.S. 15, 28 (2009) (noting that evidence the defendant committed

another murder is among the most powerful aggravating evidence “imaginable”

which would have outweighed additional facts about the defendant’s difficult

childhood) (quoting the lower court). The Court should deny review.

ARGUMENT II

Petitioner has failed to demonstrate why this Court should recede from

Spaziano and hold that the Eighth Amendment requires unanimous

jury sentencing as this claim is procedurally barred, and any holding

would not retroactively affect Gaskin.

Gaskin’s second question presented asks this Court to recede from Spaziano

and hold that the Eighth Amendment requires unanimous jury sentencing

before a death sentence can be imposed or carried out. The Florida Supreme

11

Court rejected this claim based on a state-law re-ltigation bar and,

alternatively, held the Eighth Amendment does not require jury sentencing

under Spaziano v. Florida, 468 U.S. 447, 457-65 (1984) (holding the Eighth

Amendment did not prohibit judges from overriding a jury’s life

recommendation and imposing a capital sentence).

This Court should decline to exercise certiorari jurisdiction and

answer this question for at least three reasons. First, the Florida Supreme

Court’s alternative holding that Gaskin was barred from relitigating this

claim under state law deprives this Court of jurisdiction. Second, there is no

reason to recede from Spaziano because the Sixth (not Eighth Amendment)

is the provision that would confer the right to unanimous jury

sentencing in capital cases if such a right existed, and this Court has

confirmed no such right exists in the Sixth Amendment. Third, Gaskin has

failed toaddress retroactivity and the answer to this question would not

apply to him.

A. This Court Lacks Jurisdiction Over [the] Question Presented

The Florida Supreme Court’s clear disposal of this case on state-law

procedural grounds before alternatively reaching the merits deprives this

Court of jurisdiction. Michigan v. long, 463 U.S. 1032, 1041 (1983). The

Florida Supreme Court held Gaskin could not relitigate his Highth

Amendment claim in 2023 when the court previously rejected it. Gaskin, 2023

WL 2799414 at *5.

12

This Court has long held that Florida’s re-litigation bar is an

independent and adequate state-law ground depriving this Court of

jurisdiction to review the underlying claim. Durley v. Mayo, 351 U.S. 277,

281, 283-285 (1956) (dismissing for lack of jurisdiction where the Florida

Supreme Court’s decision below “might have rested”5 on res judicata). Since

the Florida Supreme Court’s decision rests clearly and explicitly on Florida’s

bar to relitigation of direct-appeal issues as an alternative holding

independent of the merits, this Court lacks jurisdiction over this question

presented. Durley, 351 U.S. at 285; Michigan v. Long, 463 U.S. at 1042 (“If the

state court decision indicates clearly and expressly that it is alternatively

based on bona fide separate, adequate, and independent grounds, we, of

course, will not undertake to review the decision.”).

B. There is No Reason to Recede from Spaziano

Even if this Court had jurisdiction, there is simply no reason to recede

from Spaziano because the right to a unanimous jury recommendation of

death (if it existed) would arise under the Sixth Amendment, not the

Eighth.

Spaziano rejected any claim that the Eighth Amendment conferred a

right to jury sentencing by holding a judge may override a jury’s life

recommendation and impose a capital sentence. Spaziano, 468 U.S. at 457-65.

5 The State recognizes that this Court’s jurisdictional test has changed since Duriey.

See Long, 463 U.S. at 1042. But that makes no difference here since this Court need

not guess whether the Florida Supreme Court relied on a re-litigation bar, the court

below explicitly did so.

13

This holding flows quite naturally from the plain text of the Eighth

Amendment, which (in relevant part) only confers a right against “cruel and

unusual punishment.” Amend. VIII, U.S. Const. Gaskin’s claim has nothing to

do with his punishment being cruel or unusual; he argues the correct

procedures were not followed before imposing his punishment because there

was no unanimous jury recommendation of death.

That type of claim properly arises under the Sixth (not Eighth)

Amendment and should be analyzed as such. See United States v. Lanier, 520

U.S. 259 n.7 (1997) (“[I]f a constitutional claim is covered by a specific

constitutional provision, such asthe Fourth or Kighth Amendment, the claim

must be analyzed under the standard appropriate to that specific provision.”).

The Sixth Amendment specifically protects the right to a trial by jury and

this Court has utilized that provision to protect the right of capital

defendants to have juries decide parts of their cases where appropriate. See

Hurst v. Florida, 577 U.S. 92, 101-02 (2016) (overruling Spazianos Sixth

Amendment holding and determining the Sixth Amendment requires the

jury to find an aggravating circumstance before a judge may impose death).

Gaskin’s proposed certiorari question arises under the wrong

constitutional amendment. There is no reason to recede from Spaziano’s

Eighth Amendment holding when the right Gaskin seeks to vindicate would

actually arise under the Sixth Amendment if it existed at all. That is reason

enough to deny certiorari since Gaskin has not argued the Sixth Amendment

14

protects his unanimous jury recommendation claim and the Eighth

Amendment clearly does not.

But it is also worth pointing out the Sixth Amendment does not require

a unanimous jury decision to impose a death sentence. McKinney v. Arizona,

140 S. Ct.702, 707-08 (2020) (In “a capital sentencing proceeding just as in an

ordinary sentencing proceeding, a jury (as opposed to a judge) is not

constitutionally required to weigh the aggravating and mitigating

circumstances or to make the ultimate sentencing decision within the relevant

sentencing range . . . States that leave the ultimate life-or-death decision to

the judge may continue to do so.”). This Court previously refused to grant

certiorari on the Florida Supreme Court’s refusal to grant Gaskin’s retroactive

relief under Hurst. Gaskin v. Florida, 138 S. Ct. 471 (2017); Gaskin v. Florida,

139 S.Ct. 327 (2018). Gaskin’s attempt to repackage an already-rejected Sixth

Amendment claim in Eighth Amendment clothing is unavailing and not

worth this Court’s review.

C. Gaskin has Failed to Address the Retroactivity of any Decision

Holding the Eighth Amendment Requires Jury Sentencing and any

Such Decision would not be Retroactive

Setting everything else aside, this question is not cert-worthy because

Gaskin has failed to address retroactivity and this Court’s retroactivity

precedents clearly show the answer to the question Gaskin presents would not

apply to him. Any decision from this Court extending the Eighth Amendment

beyond its textual confines and conferring a right to unanimous jury sentencing

15

in capital eases would not be retroactive.

Whether a ruling from this Court answering the question presented

applies to Gaskin’s case requires this Court to determine retroactivity by

analyzing three questions: (1) when did Gaskin’s conviction become final? (2) is

the rule this Court announces actually new when viewed from the legal

landscape existing when the conviction became final? (3) does the new rule fall

within a nonretroactivity exception? See Beard v. Banks, 542 U.S. 406, 411

(2004).

Gaskin has failed to discuss any of these questions, and that is reason

enough to deny certiorari. See N.C.P. Mktg. Grp., Inc. v. BG Star Prods., Inc.,

556 U.S. 1145(2009) (Kennedy, J., respecting denial of writ of cert.) (explaining

that certiorari was properly denied because answering the question presented

would have required the Court to answer “antecedent questions under state

law and trademark-protection principles”); McDonough v. Smith, 1389 S. Ct.

2149, 2161-62 (2019) (Thomas, J., dissenting) (arguing that the Court should

have dismissed the writ of certiorari as improvidently granted because it

assumed away key antecedent questions); see also Caspari v. Bohlen, 510

U.S. 383, 389 (1994) (“II f the State does argue that the defendant seeks the

benefit of a new rule of constitutional law, the court must” determine

retroactivity “before considering the merits of the claim.”); Graham v.

Collins, 506 U.S. 461, 477 (1993) (refusing to reach the merits when the

petitioner asked for a new rule to be applied to his case on habeas review

16

because any decision would not have been retroactive).

But perhaps more importantly, this Court’s retroactivity precedents

clearly demonstrate Gaskin would receive no relief on his Eighth

Amendment Claim. His conviction became final in 1993 and this Court’s

1984 precedent in Spaziano clearly foreclosed any argument that the Eighth

Amendment required unanimous jury sentencing. Any rule that the Eighth

Amendment requires unanimous jury sentencing is indeed new to Gaskin’s

long-finalized conviction.

The final retroactivity question also indicates that any future holding

that the Eighth Amendment requires unanimous jury sentencing before a death

sentence can be imposed would not apply to Gaskin. The only nonretroactivity

exception® applicable to Gaskin’s question applies if this Court’s new answer

forbids punishment of certain conduct or prohibits a category of punishment on

a class of defendants. Kdwards v. Vannoy, 141 S.Ct. 1547, 1555-62 & n.3 (2021)

(eliminating the watershed procedural rule exception to retroactivity and

recognizing substantive rules are automatically retroactive). Holding that

the Eighth Amendment requires unanimous jury sentencing does neither,

and this Court has routinely refused to give retroactive effect to similar rightto-jury precedents. See McKinney v. Arizona, 140 S. Ct. 702, 708 (2020)

(holding neither Hurst nor Ring were retroactive); Edwards, 141 S. Ct. at 1551

6 This Court has recognized that this is not really an exception, but a substantive

rule that does no need to go through a retroactivity analysis. Beard, 542 U.S. at 411

n.3.

17

(holding the right to a unanimous jury verdict to convict for a serious offense

was not retroactive).

Retroactivity bars are designed to protect the State’s interest in

finality. See Beard, 542 U.S. at 413. Such bars are designed to ensure the State

is not continually forced to marshal its resources to keep in prison defendants

whose proceedings were constitutionally acceptable under the standards

existing at the time. /d. These interests are particularly acute in a case like

this one, where the State has been marshaling resources for over decades.

id. Retrial may not be available due to “lost evidence, faulty memory, or

missing witnesses.” Kdwards, 141 S. Ct. at 1554 (cleaned up). And most

importantly, any delay interposed by granting certiorari to answer this question

would delay justice for the victims and State of Florida. In short, respect for the

State’s resources, the victims, and decades of finality also counsel against

taking this case in light of the retroactivity question here. This Court should

deny certiorari.

ARGUMENT III

Petitioner’s claim related to Hspinosa was properly rejected as

procedurally barred and untimely under Florida state law and is

otherwise meritless and not a basis for this Court’s review

Petitioner claims that this Court’s ruling in spinosa, finding that

Florida’s previous jury instruction on the heinous, atrocious, and cruel

aggravating factor, invalidates his death sentence.

This claim arises from Espinosa v. Florida, 505 U.S. 1079 (1992). In that

18

case, Henry Espinosa, a prisoner sentenced to death like Gaskin, challenged the

WEAC aggravating factor jury instruction used by Florida for being

unconstitutionally vague. Id at 2927. This Court agreed, finding it unconstitutional

and remanded Espinosa’s case to this Court. Jd. at 2928-9. However, that was not

the end of the inquiry, as the Florida Supreme Court reviewed Espinosa’s case

again, applying this Court’s decision. On remand, that Court found that Espinosa

had not preserved the issue for appellate review, and even if he had, reading the

instruction was harmless beyond a reasonable doubt because the jury would have

found the presence of HAC even with a proper limiting instruction, and there were

three other strong aggravators, including a contemporaneous murder. Espinosa v.

State, 626 So.2d 165 (Fla. 1993). They again affirmed his death sentence and this

Court denied review. Espinosa v. Florida, 511 U.S. 1152 (1994).

Gaskin’s case followed an identical path. After his sentences were affirmed on

direct appeal, he filed a writ of certiorari in this Court, which remanded the case in

light of its decision in Espinosa. Gaskin v. Florida, 505 U.S. 1216 (1992). Just as in

Espinosa’s case, the Florida Supreme Court found Gaskin had not preserved an

objection to the HAC instruction for appellate review, and that even had he done so,

any error in the jury instruction was harmless beyond a reasonable doubt as it

would not have affected the recommendation. Gaskin v. State, 615 So.2d 679 (Fla.

1993). In doing so, the court pointed to its decision in Gaskin’s direct appeal

upholding the HAC aggravator:

The facts show that Mrs. Sturmfels knew her husband was being

murdered, and that she must have contemplated her own death. She

19

was shot at least twice before crawling down the hall where she

watched blood pour from her wounds. She must have been in physical

pain and mentally aware of her impending death as Gaskin first

disabled her and then stalked her throughout the house.

Gaskin v. State, 591 So.2d 917, 920-1 (Fla. 1991). The court additionally held in

that case that even if the aggravator had not been found, the trial court still would

have imposed the death penalty as it did for the murder of Georgette’s husband,

who did not have the HAC aggravator. Jd. at 921. It’s important to note, as in

Espinosa’s case, there were other weighty aggravators: CCP, prior violent felony

conviction, and that the murders occurred in the course of a robbery or burglary.

This Court then denied certiorari review. Gaskin v. Florida, 510 U.S. 925 (1993).

As noted above, this claim was already raised and dismissed by the Florida

Supreme Court back in 1993. Gaskin argued below, “This Court should have applied

Espinosa retroactively” to him on remand; however, that is exactly what the Court

did. State Hab. Pet. at 7. That court found that Gaskin failed to challenge the

vagueness of the HAC jury instruction at trial, and even if he had, any error was

harmless beyond a reasonable doubt. Gaskin, 591 So.2d at 920-1. They specifically

applied this Court’s Hspinosa holding, they simply decided the issue against him.

The Florida Supreme court has been consistent in applying this procedural bar to

Espinosa claims that were not first raised in the trial court. See, e.g., Evans v.

State, 946 So.2d 1, 16 (Fla. 2006); Floyd v. State, 808 So.2d 175, 187 (Fla. 2002)

(finding that a claim of constitutional error under Espinosa v. Florida, 505 U.S.

1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), was not preserved for postconviction

review because it was not raised both at trial and on direct appeal); Downs v. State,

20

740 So.2d 506, 517 (Fla. 1999) (finding that claim of Espinosa error was

procedurally barred on postconviction review where not raised at both trial and on

direct appeal although Espinosa decided while direct appeal in pipeline).

Any challenges to the 1993 ruling about Hspinosa not entitling Gaskin to

relief should have been addressed by a motion for rehearing after his claims were

dismissed on remand, or at the very least in his first postconviction motion in 1995

or in a habeas petition with his initial 3.850 appeal. Instead, Gaskin raises this new

Espinosa claim 30 years after it was first rejected, and weeks before his pending

execution. The Florida Supreme Court’s determination that the claim was

procedurally barred is an adequate and independent state law ground precluding

this Court’s review. Michigan v. Long, 463 U.S. at 1039-41.

Additionally, as the Florida Supreme Court pointed out in 1993, this claim is

also procedurally barred because it was not raised in the trial court and thus was

not preserved for appellate review. Gaskin claims trial counsel did raise the issue in

a pretrial motion, but Gaskin misreads that objection. Attached to the state

petition, the motion was a challenge only to Fla. Stat. 921.141 (5)(), the cold,

calculated, and premeditated aggravating factor (CCP) as “unconstitutionally

vague, overbroad, arbitrary, and capricious”. State Hab. Pet. Exh. 1 at 1. The

motion spent 24 pages thoroughly challenging the CCP aggravator in particular,

but the only reference to HAC was on page 23 when trial counsel wrote, “The vague

wording of (5)(i) and (h) [the subsection establishing the HAC aggravator] and their

arbitrary application allows for their application in all murders.” Jd. at 23. The

21

motion barely mentions the HAC aggravator and only complains about the vague

wording of the statute and not the jury instruction at issue in Espinosa.

Despite Petitioner's arguments that this Court should overrule itself about a

procedural bar and that the very reading of the HAC jury instruction renders his

entire sentencing phase invalid, this issue has already been decided against him

with regard to Espinosa claims. Sochor v. Florida, 504 U.S. 527 (1992) involved

another death-sentenced inmate challenging the vagueness of the HAC jury

instruction. The Florida Supreme Court had upheld Sochor’s sentence on direct

appeal, finding that trial counsel had failed to object to the instruction at trial and

therefore the issue was not preserved for review. Sochor v. State, 580 So.2d 595,

602-3 (Fla. 1991). This Court granted certiorari review and remanded on other

issues but held that Florida’s finding that the HAC issue was not preserved for

appeal was an independent and adequate state ground preventing this Court from

review. Sochor, 504 U.S. at 533-4. Gaskin’s attempts to compare Espinosa to a case

like Gideon v. Wainwright, 372 U.S. 335 (1963), which can defeat procedural

defaults has already been rejected by this Court.

This claim is also meritless because any error with the reading of the HAC

instruction was harmless beyond a reasonable doubt. Gaskin argues otherwise in

his petition, but as with the preservation issue, this claim has already been decided

against him. Pointing to its reasoning from his direct appeal case, the Florida

Supreme Court found that the HAC factor clearly applied to the death of Georgette

Sturmfels. Gaskin, 591 So.2d at 920-1. In the opinion below the Florida Supreme

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