Opposition Brief — Frank A. Walls, Petitioner v. Florida

Aa- 1866

No=22=7809

In The

Supreme Court of the United States

FRANK WALLS,

Petitioner,

Vv.

STATE OF FLORIDA

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

RESPONDENT'S BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

C. SUZANNE BECHARD

Associate Deputy Attorney General

Counsel of Record

CHARMAINE M. MILLSAPS

Senior Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

(813) 287-7900

COUNSEL FOR RESPONDENT

CAPITAL CASE

QUESTIONS PRESENTED

In 2016, the Florida Supreme Court, using the state retroactivity test of Witt v.

State, 387 So. 2d 922 (Fla. 1980), held that Hall v. Florida, 572 U.S. 701 (2014), was

retroactive. Walls v. State, 213 So. 3d 340, 345-46 (Fla. 2016). Based on the decision

in Walls, a number of Florida capital cases were remanded by the Florida Supreme

Court to the state postconviction courts to conduct second evidentiary hearings on

claims of intellectual disability, including this case. Then, in 2021, the Florida

Supreme Court receded from that prior precedent and held that Hall was not

retroactive, under state law, in Phillips v. State, 299 So. 3d 1013 (Fla. 2020), cert.

denied, Phillips v. Florida, 141 S. Ct. 2676 (2021) Later in 2021, following an

extensive six-day evidentiary hearing on the intellectual disability claim, the state

postconviction court denied the intellectual disability claim on non-retroactivity

grounds following Phillips but, alternatively, addressed the merits. The state

postconviction court found Walls failed both the first prong and the third prong of the

statutory test for intellectual disability. On appeal, the Florida Supreme Court

affirmed solely on non-retroactivity grounds relying on their existing precedent of

Phillips.

The two questions are presented in the petition:

I. Whether this Court should grant review of a decision of the Florida

Supreme Court following its existing precedent and refusing to apply Hall

v. Florida, 572 U.S. 701 (2014), retroactively as a matter of state law.

II. Whether the Florida Supreme Court receding from its prior decision

in Phillips v. State, 299 So. 3d 1018 (Fla. 2020), violates due process under

Bouie v. City of Columbia, 378 U.S. 347 (1964).

lil

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED ssssisssssssssnsssasnastasncssetuncvcsiscansscevercvcssoavapasaeaeessbitesmeveceqensenese ii

TABLE OF CONTENTS .......ccccccccsessscccsesecssesesssesavercsessesessesessessaneasesssatsacesssssssressseceesenes iv

TABLE OF AUTHORITIES ou... cece cssseseseeeseenseeeeeesssseseeasesasecessesscessessessaseuseseasensens vi

OPINION BELOW, ..5...28i..05.P PE. Ea, 1.0.0 I.......20-. apa OGOR OA EIRCUNURR RENNES 1

JURISDICTION... eeccecsccsesscsassssesessassssssasseesseseesseesseseasesnesseasenseaeecaeesasesaesaesaesetecseras 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................:c0cc000 1

STATEMENT OF THE CASE AND PROCEDURAL HISTORY....0......ccccccccscsccseseseeeees 3

REASONS FOR DENYING THE WRIT 0.00... occ eeceeesssececeneeseessesseceseeeesesceteseeserees 7

TISSUE 1... eee ccccccccceeseeceeesseesseseeasenseeaseusauseasseusassesseseseesaeeseessaseaeesnenseseesessaceesnaes 7

WHETHER THIS COURT SHOULD GRANT REVIEW OF A

DECISION OF THE FLORIDA SUPREME COURT FOLLOWING

ITS EXISTING PRECEDENT AND HOLDING THAT HALL V.

FLORIDA, 572 U.S. 701 (2014), IS NOT RETROACTIVE UNDER

STATE LA Wi pacoxsiesexcevirr oer ssnomncenernnewacrwrapensnevenensisoscsrsatehnnesmnasientnesindniner ts 7

The Florida Supreme Court’s decision in this Case .......cccccccccssessssseeeseeeee 8

Retroactivity in Florida is a matter of state law............0.....cssccccseseeeceseeee 8

This Court’s current retroactivity jurisprudence ...............ccecesessseesssecenees 9

No conflict with this Court’s retroactivity jurisprudence .............ccssse 12

No active conflict among the lower appellate courts ...............:ccc0000ce0e- 13

Purely theoretical isSue.............c.:cccssccsssccesseecssnseesssntsssusessueeeessesessesseseees 16

ISSUE II..........cccccsecsscecescecscssesecceeneescescaesevssenecenseececeaseaarsnasesuueaueessaesenuseneseseeaeecens 18

WHETHER THE FLORIDA SUPREME COURT RECEDING

FROM ITS PRIOR DECISION IN PHILLIPS V. STATE, 299 So. 3d

1013 (Fla. 2020), VIOLATES DUE PROCESS UNDER BOUIE V.

CITY OF COLUMBIA, 378 U.S. 347 (1964). .....:.cccscssseseseeseessensrseeeseess 18

The Florida Supreme Court’s decision in this Case ............s:ccssecseesensees 18

iv

Bouite and receding from prior precedent ...........:ccccccsccsscsccsssccssacesstceseeees 19

No conflict with this Court’s due process jurisprudence.............csesccee+0- 21

No conflict with the lower appellate courts...........cc:cccsccssessecssssscecoessenes 21

Purely theoretical i88ue............sssscssssesssssccssscsccessensercessessscecscceessansereees 22

CONCLUSION ..........scscesssseecsereseseneeeeseeoeesseeeaseacsesesseceessceaeensesnsasesssaseaeseesesesseesesaeseeaeess 23

TABLE OF AUTHORITIES

Cases

Apodaca v. Oregon,

406 U.S, 404 (1972).......::cccscssescsssesseesessessessacceceaesesssesaseccensuusensesessenteeeeesseceeeecsseceeensnasaesnerasaresenes 20

Atkins v. Virginia,

586 U.S. 804 (2002) ......c ccc ccccccssscssecnssscseesssssccaecessseacceeusasseesssesaueccuseesenaeeseceensesesesseeneseaes passim

Bouie v. City of Columbia,

B78 U.S. 847 (1964) 0.2... cccsceccscssececesssseeecesseseeccessseecerecessuseestceseaerseeasensevevertneseeses 18, 19, 21, 22

Bowles v. DeSantis,

984 F.8d 1230 (11th Cir. 2019)..........0.00....snsaesustaivabisncentaiauniistaciunn uacacdiainacicnierceuaecacartaanatacs ceases 21

Braxton v. United States,

500 U.S. 344 (1991)...............gogsectetecasswasspeucpacwasuanmvasusuecaiauasatecsusseacwam seenvaecuseaaaveaneseceianse 18, 21

Brumfield v. Cain,

576 U.S. 805 (2015) wu... sesscscessecessnscesseecnsceesnseeeesneenesenseesuceneseeseesecseteceesecseesarsuececeessaeersaecaees 12

Buck v. Davis,

580 U.S. 100 (2017) ou... cece cccccsccecseesccsesssescesssseceeeseeeeeteeseeceseceeseaeeesresencessaceenecececeuseeeusecesenees 12

Chaidez v. United States,

B68 U.S. 842 (2018) ...........cssscscccecceseessseceecscesecesccscecceacesecesessuseeeecsssusreeecceusanntnscaeaeauanseuvereseaseas 15

Danforth v. Minnesota,

552 U.S. 264 (2008) .......0..cccsesssssssccssssssosnssecsocssecsvcrscssocusnscces sons SsuanaiessNieavee geval idassielonseasavedis 8

Davis v. Kelley,

854 F.3d 967 (8th Cir. 2017) caccccccccicesenssaiecsesvscsevecusesaccssicscnessanseissdvsusonedbasaeusssucssecdssesscessususase 14

Edwards v. Vannoy,

141 S. Ct, 1547 (202K) wu... ecesecssssesceeseesenseeseneseescseeeesserensensseaesenseeseauenesateeseeeseeseeeeeeecersees passim

Ex parte Briseno,

135 S.W.3d 1 (Tex. Crim. App. 2004)............ccsccccssssssssssseeccaessesesssseecsecensceceesteeeetenesseecesererseees 18

Foster v. Chatman,

578 U.S. 488 (2016) ssccsissesuvscsssivvecsssvsacsoiensavsusecusuecas stvnsrevserstwenvdiccsaevieuvacbabscacdsvereeasesdeveawessasi’ 8

Freeman v. State,

300 So. 3d 591 (Fla. 2020),

cert. denied, 141 S. Ct. 2676 (2021) .........eece cee ccecseseceeseeceescssneceecesnsecseeceersnsceececeseeercesenseeecceesees 13

Hall v. Florida,

B72 U.S. 701 (2014)... .cccccsesssssesssssscusssecesseeseeeseeescecesneseesaecseeeeueeesaeentaceeseeegenesesteeetecauers passim

Herb v. Pitcairn,

324 U_S. 117 (1945) .....cccccccccsssccessassscdbssenaussseseivavebsavacvesbedevedsieedsnicreensenaaissseeacbeeustKin--.- 17, 22

Hildwin v. Florida,

490 U.S. 638 (1989).............. cssscsastsstesssscaienscoveswavesswassisbacalicastennseesateusvswccedessevessvelsasmecesstiens 20

vi

Hurst v. Florida,

B77 U.S. 92 (2016)......c::cccccssesscescessceessscccesercceseeeeseeeecserennsuesacsesuseesseesausnsseeeenseetaceeecsceceeceaesesees 20

In re Henry,

757 F.3d 1161 (11th Cir. 2004)... cc cccceccessssseceecesvessenseceensussneususasausnessssaeseesererserenes 6, 10, 11

In re Walls, 2023 WL 3745108 (11th Cir. Apr. 13, 2028) 00.0... .ccscccscscesseccsesecccsceccececscrececsusecnseacs 6

In re Walls, No. 22-7897........:ss:ssccsssecsesssesecssssecesssasseueceeceasseceeesseneuesacesseaeseascesauseseesensscesenseeeeenee 6

Jackson v. Payne,

9F.4th 646 (8th Cir. 2021),

cert. denied, Payne v. Jackson, 142 S. Ct. 2745 (2022).........cccccccsscsccsecsesseseessesseenseceecceseees 14

Johnson v. Louisiana,

406 U.S. 356 (1972).........ccscscssseesesececssscescseecusseuseeseussuscesusecsseseueusesatteaeseneaceceeeeeececerceevaceeseeceseees 20

Jones v. Mississippi,

141 GS. Ct. 1307 (2021) oo. cciccccccccsecsecsecceceeeeeseceeeceeeusenseceeersnnscsecseeeeeeesesseecetccoaseeseneeas passim

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

805 F.3d 1301 (L1th Cir. 2015) 20... ccceeccecccccceeeeeseeeeeseessesesecssceccsenseteecsesseseceseeeseeseeeeecens 6

Lambrix v. Singletary,

520 U.S. 518 (1997) ......cccsssssassscoscsssnecessanascarscceessennssenceus ikinaied sie abigainsaaiiiaesepeetocwedeaveaseceobansieceivastoe 16

Lawrence v. State,

296 So. 3d 892 (Fla. 2020),

cert. denied, 141 S. Ct. 2676 (2021).................... Pe cece cree eecser ee Mace cee sssessncueMicssossesesssese 13

Metrish v. Lancaster,

569 U.S. 861 (20128) ...........cccscacereccsessasees sennerssnssac «1 «piheliia es andinicesenavabaeebansinnabeuasnaadtoanieneniennumesinten 19

Montgomery v. Louisiana,

B77 U.S, 190 (2016)... ccs. scstavercciscvassasncnsscusssvesssuassenccsssassessvevevssaevaabvevesveuceavevesdeceseceos passim

Moore v. Texas,

B81 U.S. 1 (ZOU) 0... ..cccsssseseccensecccnasescns nen cles egies pombe souesicesp uae baseuatauna deel epesussceusponseasenus 10, 12

Nixon v. State,

327 So. 3d 780 (Fla. 2021),

cert. denied, Nixon v. Florida, 142 S. Ct. 2886 (2022) ..........:cccsssssestcsssecersesececesseesees 8, 9, 13, 19

Phillips v. State,

299 So. 3d 1013 (Fla. 2020),

cert. denied, Phillips v. Florida, 141 S. Ct. 2676 (2021).........:csssssscssessstesssesessecerecees passim

Ramos v, Louisiana,

140 S. Ct. 1390 (2020) .......ccscssscccssssssssecsssesseceeseenseeeeceeaeeeeeeseessaeteceeacereraeeeeeeeceeseeseseeecersesens 8, 20

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

ABZ U.S. 182 (1987)....cccescsescseesssecscsvecsssvecssssesssvecssecsscesseessuesavecessssecsnsuecessvecssvessecsanecsnseeessee 14, 22

Rogers v. Tennessee,

532 U.S. 451 (2001)..........ccccsscsssesestbsses ensastnessacsssteiies stows oven eacscstesteavasedandisetatseiiasrssesiseecisiisés. 19

Smith v. Commr., Ala. Dept. of Corr.,

924 F.3d 1330 (11th Cir. 2019) .......ceeccceccccceseeseeceecerersnsseevenseaceessescecssseeceeecasececeueeeeeeeese 11

Smith v. Ryan,

813 F.3d 1176 (Sth Cir. 2016) ...... axscesssuncssessoassensincnaausccsasanadaieovasussesoussauccasuinetucuisgseivivisesisiecs 15

Smith v. Sharp,

935 F.8d 1064 (LOth Cir. 2019)............:ccccccccscsceessceesssecscescesecesseensessssenscessseceseessesrceareceusenes 15

Spaziano v. Florida,

AGB US. 447( 1984) ssscccccscascccscssausacssnsnccassansoccnssnssspavendeqanassonetsseasivesonsasesbaoneneneeseseanceonransenqousens 20

Teague v. Lane,

A489 U.S. 288 (1989)...........cccssssceccessreeceeseeeeeceeeessenceseeseesecsecseeserseceecseeeceesssceeccurecesereevenseanse passim

Thompson v. State,

341 So. 3d 303 (Fla. 2022),

cert. denied, 143 S. Ct. 592 (2028) oo... ccccccsetssccescescnecesseserecsesenesaesseseceseeneuees 8, 9, 18, 19

Walls v. State,

213 So. Bd B40 (Pla. 2016)... cccccccccccccceceeeecseseeeeeeeeceeseaseeseceeeesarseeeseeceeecereececsrevteecncenaes passim

Walls v. State,

8 So. 8d 1248 (Pla. 2008) ..........ccccesssesesscesssseceessneeesseeenecereesessecececeeceeseesaseecsnrscecenvarsenseeneeeeveuaenees 4

Walls v. State,

361 So. 8d 231 (Pla. 2028). 00... ce cccccceceseeseeeeeessecceesenseceecesneeceeseeeeeeceesecesecseeneeeeneceereeaeae passim

Welch v. United States,

Yi. ORM 6000-10) ) ce 10, 11

White vu. Commonwealth,

500 S.W.8d 208 (Ky. 2016)........ccceccccccsesseececcsssenesesesnsceccnsseesensseteassnsssacsvecsecsesceresseeseuseseaeerses 15

Williams v. Kelley,

858 F.3d 464 (8th Cir. 2017).......... scisessssessicesseigucevaccicsaosvanssurcawssscaiscsuastinevanceatsaascucueasinateasdeisaas 14

Witt v. State,

387 So. 2d 922 (Fla. 1980)............ccecceccesseceesseeceesetecesecceesecersnecenarersrecerensesensteeenesersueenenecens ii, 4, 9

Other Authorities

§ 921.137(1), Fla. Stat. (2006)... ..csesseeseesseeesesseeeeseaseasenseneeaseaseaceaeenaeenenseaseaseasenseasesseaeeasensneees 16

2B U.S.C. § 12578) sesnssssceasazensscatcassatcesiay sepsusveroesivesuquacesusy auxeaussucsscescesguacacsuayssscspanceasesisvonsioensnernes 1

28 U.S.C. § 2101(d).................:0000..0dsasana onkenelionsehileehaeasienia ious oteses nasa dasldessaaep ca edaepsbusescoskcasuasesupescees 1

28 U.S.C. § 2244 (b)(2) ....cecsccsssssessseccsesesseesccassceseagerseatssaeesseeesetenssseseascaeseseecaeensseeseeesesecesseseceesensee 6

28 U.S.C. § 2244(b)(2)(A) ........ccsnssesssosessssssesssctnevssvaarsstesesstesssnsncntivsnsineicunennevseeassasscaarseaveetss 14, 15

Blac: Crim Pa 32208; .cancasscecananzeavsve +0050 vais «+ »a0 «ciss=0 5 eaiNisneOiiecRMOITSNNRENDON MAIER UNCRDRORLARR ODES DRNSTIRRNR ONTO 3

Sup. Ct, R. LOD) ........eccsccesseeceseecereneeesersentseceenenseasfAiithanitensifes inner SaonnenenMeMeANMCROlSenbeeDerseredesestetes 13, 21

Sup.Ct. R. 18.8........ccccscccscssecsessessceessoesseseseceensensesessnsensaensaenansaeseeacneseacenseeacssenenaseaseasecceaseasereneesetses 1

U.S. Const. amend. V........cccosecssesssnspassssacasvesesesesvasccesestencsveunceuswesecsseieapuccocusessssecssescscsspevovstesseususbes 1

U.S. Const. Amend. VIII

U.S. Const. Amend. XIV

STOR EMOTO E ERD L ODOT DEORE ESSERE EEE HEL ERESE OES SOE SS EHED EE EEET OOOH OEEESEOENGEESEED ESSE aa eetersuecereeeenseeeseses

CAPSS R MO ener eee eee ea ee Eee EEEOSSUETSSETETESESDESESESEEEES EES ES SEES OH EOE EEE HE EEEHESSODS ES beEessarenuseneteseccece

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Walls v. State, 361 So. 3d

231 (Fla. 2023) (SC22-72).

JURISDICTION

On February 16, 2023, the Florida Supreme Court denied the claim of

intellectual disability on non-retroactivity grounds. Walls, 361 So. 8d at 283-34. On

March 2, 2023, Walls filed a motion for rehearing in the Florida Supreme Court. The

State filed a response to the rehearing. On March 29, 2023, the Florida Supreme Court

denied the rehearing. On June 22, 2023, Walls filed a petition for a writ of certiorari

in this Court. The petition was timely. See Sup.Ct. R. 13.3; 28 U.S.C. § 2101(d). This

Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The constitutional provisions involved are the Fifth Amendment due process

clause and the Fourteenth Amendment due process provision, as well as the Eighth

Amendment prohibition on cruel and unusual punishment:

The Fifth Amendment to the United States Constitution, provides: No

person shall be .. . deprived of life, liberty, or property, without due process

oflaw...

U.S. Const. amend. V.

The Eighth Amendment to the United States Constitution, provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.

U.S. Const. Amend. VIII.

The Fourteenth Amendment to the United States Constitution, provides:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

1

shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

U.S. Const. Amend. XIV.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Walls seeks review of an intellectual disability claim. Walls was granted a second

evidentiary hearing in state court based on Hall v. Florida, 572 U.S. 701 (2014), at

which he once again failed to prove he was intellectually disabled. He failed the third

prong of onset because his IQ scores as a minor were 88, 102, and 101. The state

postconviction court denied the claim both on non- retroactivity grounds and on the

merits, but the Florida Supreme Court affirmed on non-retroactivity grounds alone.

Facts of the case

Early one morning in 1987, Walls broke into a mobile home then occupied by

Edward Alger and Ann Peterson. Using curtain cords, Walls tied them up. Alger

managed to get loose, and a struggle ensued. Ultimately, Walls tackled Alger, slashed

his throat, and then shot him in the head several times—killing him. Walls then turned

his attention to Peterson, who was at that time helpless and in tears. Though Peterson

posed no threat to him, Walls shot her in the head from close range. Peterson began

screaming. In response, Walls forced Peterson's face into a pillow and again shot her in

the head from close range. She died as a result of these gunshot wounds. Walls v. State,

361 So. 3d 231, 232 (Fla. 2023).

Procedural history of the intellectual disability claim

On June 23, 2006, Walls filed a rule 3.203 motion raising a claim of intellectual

disability based on Atkins v. Virginia, 536 U.S. 304 (2002). Fla. R. Crim. P. 3.203. On

July 10, 2007, the state postconviction court held an evidentiary hearing on the Atkins

claim at which a defense expert, Dr. Jethro Toomer, and a State expert, Dr. Harry

McClaren, both testified. The state postconviction court denied the intellectual

3

disability claim. The Florida Supreme Court affirmed, finding “no evidence that Walls

has ever had an IQ of 70 or below.” Walls v. State, 3 So. 3d 1248 (Fla. 2008).

On May 27, 2014, this Court decided Hall v. Florida, 572 U.S. 701 (2014). The Hall

Court held that Florida's practice of failing to take into account the standard error of

measurement (SEM) violated the Eighth Amendment. The Hall Court held a capital

defendant whose IQ score fell within the SEM “must be able to present additional

evidence of intellectual disability, including testimony regarding adaptive deficits” at

an evidentiary hearing. Id. at 723.

On May 26, 2015, Walls filed a successive postconviction motion in state court

relying on Hall v. Florida. The trial court summarily denied the successive motion.

(PC Vol. I 46-50). The trial court noted that Walls’ IQ scores prior to his 18th birthday

were 102 and 101. (PC Vol. I 49). The trial court noted that Walls already received an

evidentiary hearing on his intellectual disability claim, at which he was permitted to

present evidence regarding each of the three prongs. (PC Vol. I 49). The trial court noted

that the defense’s own expert at the prior evidentiary hearing, Dr. Toomer, had testified

that Walls did not meet the juvenile onset prong of the test for intellectual disability.

(PC Vol. I 49 citing pages 40-41 of the July 2007 hearing).

The Florida Supreme Court, however, reversed and remanded for a second

evidentiary hearing. Walls v. State, 218 So. 3d 340, 344 (Fla. 2016). The Florida

Supreme Court stated that Walls did not receive the type of “holistic review” at the

first evidentiary hearing which he was entitled to under Hall. Walls, 213 So. 3d at 347.

The Florida Supreme Court held that Hall was retroactive under the state’s

retroactivity test of Witt v. State, 387 So. 2d 922 (Fla. 1980); Walls, 213 So. 3d at 345-

46.

On June 29, 2021, through July 7, 2021, the postconviction court held a six-day

4

evidentiary hearing on the intellectual disability claim. The defense presented seven

witnesses, including six experts, at the second evidentiary hearing: 1) Dr. Mark D.

Cunningham; 2) Dr. Karen P. Hagerott; 3) retired Assistant Public Defender James C.

Sewell, Jr.; 4) Dr. Daniel A. Martell; 5) Dr. Mark J. Mills; 6) Dr. Robert Ouaou; and 7)

Dr. Barry M. Crown as a rebuttal witness. The State presented Dr. Gregory Prichard,

as its expert on intellectual disability. On November 22, 2021, the trial court denied

the intellectual disability claim both on non-retroactivity grounds and on the merits,

making findings regarding all three prongs of the state statutory test for intellectual

disability. (2022 Succ. PCR 6258-6279). The postconviction court found Walls failed

both the first and third prongs.

Regarding the third prong of onset, the state postconviction court recounted

Walls’ various IQ scores as a minor: 1) at six years old, Walls had a full scale IQ of 88;

2) at seven years old, an average score (between 90 to 110); 3) at twelve years old, Walls

had a full scale IQ of 102; 4) at fourteen-years-old, Walls had a full scale IQ of 101.

(2022 Succ. PCR 6265-6266). The state postconviction court found all of Walls’ scores as

a minor to be valid. (2022 Succ. PCR 6266). The postconviction court rejected the

defense’s reliance on childhood achievement tests rather than IQ scores and rejected

the defendant's reliance on his placement in special education classes because his

placement was based on his behavior issues rather than his mental abilities. (2022

Succ. PCR 6267- 68).

The Florida Supreme Court, however, affirmed the denial of the intellectual

disability claim solely on non-retroactivity grounds relying on their current precedent of

Phillips v. State, 299 So. 3d 1013 (Fla. 2020), cert. denied, Phillips v. Florida, 141S. Ct.

2676 (2021). Walls also filed an application for permission to file a successive § 2254

habeas petition, in the Eleventh Circuit, arguing that a successive habeas petition

was proper under 28 U.S.C. § 2244(b)(2). In re Walls, 2023 WL 3745108 (11th Cir. Apr.

13, 2023) (No. 23-10982-P). Walls asserted that Hall v. Florida created a “new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” Walls additionally argued that Montgomery

v. Louisiana, 577 U.S. 190 (2016), had abrogated the reasoning of the Eleventh Circuit

prior precedent of In re Henry, 757 F.8d 1151 (11th Cir. 2014). The Eleventh Circuit

denied permission relying on In re Henry and Kilgore v. Sec’y, Fla. Dept. of Corr., 805

F.3d 1301, 1313-16 (11th Cir. 2015), which had characterized Hall as a “new procedural

rule” and refused to apply it retroactively.

On June 26, 2023, Walls filed an original habeas petition in this Court regarding

the Eleventh Circuit’s denial of authorization to file a successive habeas petition. In

re Walls, No. 22-7897. That original habeas petition is currently pending in this Court

and the State’s response to that petition is currently due on July 31, 2023.

On June 22, 2023, Walls, represented by state postconviction counsel, Capital

Collateral Regional Counsel - Middle Region (CCRC-M), filed a petition for a writ of

certiorari in this Court seeking review of the Florida Supreme Court’s decision raising

two issues.

REASONS FOR DENYING THE WRIT

ISSUE I

WHETHER THIS COURT SHOULD GRANT REVIEW OF A DECISION

OF THE FLORIDA SUPREME COURT FOLLOWING ITS EXISTING

PRECEDENT AND HOLDING THAT HALL V. FLORIDA, 572 U.S. 701

(2014), IS NOT RETROACTIVE UNDER STATE LAW.

Petitioner Walls seeks review of the Florida Supreme Court’s decision holding

that Hall v. Florida, 572 U.S. 701 (2014), is not retroactive. The Florida Supreme Court

followed its current precedent of Phillips v. State, 299 So. 3d 1013 (Fla. 2020), cert.

denied, Phillips v. Florida, 141 S. Ct. 2676 (2021) (No. 20-6887). The issue is largely

a matter of state law because Florida has a different test for retroactivity than the

federal test for retroactivity established in Teague v. Lane, 489 U.S. 288 (1989).

Opposing counsel relies on Montgomery v. Loutstana, 577 U.S. 190 (2016), to establish

conflict with this Court’s retroactivity jurisprudence. But this Court recently

disavowed Montgomery in Jones v. Mississippi, 1418. Ct. 1307, 1317, n.4 (2021). There

is no conflict between this Court’s current retroactivity jurisprudence and the Florida

Supreme Court’s decision in this case. Nor is there an active conflict among the federal

circuit courts or state courts of last resort regarding the retroactivity of Hall under a

Teague analysis. The cases relied on in the petition to establish such a conflict either

contain no Teague analysis at all or were decided years before this Court’s recent

decisions in Edwards v. Vannoy, 1418S. Ct. 1547 (2021), and Jones. There is no conflict

among the lower appellate courts and the Florida Supreme Court’s decision in this

case. Furthermore, the retroactivity of Hall is a theoretical issue that is not outcome

determinative. Hall does not apply to Walls at all because his claim of intellectual

disability failed on the third prong of onset which was not at issue in Hall. Walls’

three IQ scores as a minor were 88, 102, and 101. Walls was never entitled to a second

evidentiary hearing under Hail, whether Hall is retroactive or not. Review of this

issue should be denied.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court affirmed the denial of the claim solely on nonretroactivity grounds. Walls v. State, 361 So. 3d 231 (Fla. 2023). The Florida Supreme

Court relied on their current precedent of Phillips v. State, 299 So. 8d 1013 (Fla. 2020),

cert. denied, Phillips v. Florida, 141 S. Ct. 2676 (2021) (No. 20-6887), which had

receded from their prior holding that Hall was retroactive in Walls v. State, 213 So. 3d

340 (Fla. 2016). Walls, 361 So. 3d at 233. The Florida Supreme Court also relied on

two prior decisions, Nixon v. State, 327 So. 3d 780 (Fla. 2021), cert. denied, Nixon v.

Florida, 142 S. Ct. 2886 (2022) (No. 21-1173), and Thompson v. State, 341 So. 3d

303 (Fla. 2022), cert. denied, Thompson v. Florida, 143 S. Ct. 592 (2023) (No. 22-5906),

that had both followed Phillips. Id. at 233-34. The Florida Supreme Court concluded

that Walls was not entitled to retroactive benefit of Hall and therefore, his intellectual

disability claim based on Hall failed, regardless of the evidence he presented at the

second evidentiary hearing Id. at 234.

Retroactivity in Florida is a matter of state law

This Court lacks jurisdiction to review a state court judgment if that judgment

rests on state law. Foster v. Chatman, 578 U.S. 488, 497 (2016) (citing Harris v. Reed,

489 U.S. 255, 260 (1989)). And the retroactivity of Hall v. Florida is largely a matter

of state law. Danforth v. Minnesota, 552 U.S. 264, 266, 280 (2008) (explaining that

states are free to grant retroactive benefit of a case to a “broader effect” than Teague

because the “finality of state convictions is a state interest, not a federal one”). While

state courts may not create a state test of retroactivity that would grant less

retroactivity protection than Teague, state courts may have a different test for

retroactivity than Teague. Ramos v. Louisiana, 140 S. Ct. 1390, 1438, n.31 (2020). And

8

Florida does. The state test for retroactivity in Florida is Witt v. State, 387 So. 2d

922 (Fla. 1980).

The Florida Supreme Court in this case relied mainly on its current precedent

of Phillips v. State, 299 So. 3d 1013 (Fla. 2020), cert. denied, Phillips v. Florida, 141 S.

Ct. 2676 (2021) (No. 20-6887), which had applied the state test of Witt to overrule Walls

v. State, 213 So. 3d 340 (Fla. 2016). All of the decisions cited by the Florida Supreme

Court in its opinion in support of its conclusion that Hall was not retroactive, i.e.,

Phillips, Nixon, and Thompson, had applied Witt. All of these decisions, including

Walls v. State, 213 So. 3d 340 (Fla. 2016), which was overruled, had applied the state

test of Witt, not the federal test of Teague. Basically, the Florida Supreme Court at

first had provided broader retroactivity protection than Teague but then the Florida

Supreme Court reconsidered its view and brought the state result more in line with

the result under Teague. The change in its view, no doubt, was motivated because the

prior precedent had resulted in second evidentiary hearings for capital defendants who

clearly were not intellectually disabled, such as Walls with his normal IQ scores as a

minor. But regardless of whether the state test for retroactivity results in the same

outcome as a Teague analysis, the state law test for retroactivity still remains largely

a matter of state law.

This Court’s current retroactivity jurisprudence

This Court established the federal test for retroactivity in Teague v. Lane, 489 U.S.

288 (1989). Teague originally had an exception to the general rule of non-retroactivity

of new procedural rules for “watershed rules of criminal procedure.” Jd. at 311. But,

recently, in Edwards v. Vannoy, 1415S. Ct. 1547 (2021), this Court narrowed Teague by

abolishing the exception for “watershed” procedural rules. This Court characterized

the watershed exception as “moribund” and noted that it was only a “theoretical

exception” because no new decision had qualified as being a watershed in the 32 years

9

since Teague had been decided. Edwards, 141 S. Ct. at 1551.

Whether a new rule applies retroactively depends on whether the rule is

substantive or procedural. A new constitutional rule is substantive and, therefore,

retroactive, if the rule “alters the range of conduct or the class of persons that the law

punishes.” Welch v. United States, 578 U.S. 120, 129 (2016). New substantive rules

apply retroactively in federal collateral review. Edwards, 141 S. Ct. at 1562. But new

procedural rules do not apply retroactively in federal collateral review. Id. at 1562.

One of the rationales for the distinction is that new substantive rules rise to the specter

of legal innocence in a way that new procedural rules do not.

Under Teague, as narrowed in Edwards, Hall v. Florida is not retroactive because

it is a procedural rule. Contrary to opposing counsel’s assertion, Hall is not a

substantive rule. Hall held that capital defendants, whose IQ scores are within the

statistical error of measurement (SEM) are entitled to an evidentiary hearing to explore

the other two prongs of the test for intellectual disability. Hall, 572 U.S. at 724

(holding that the law requires capital defendants whose IQ scores are within the SEM

have an “opportunity to present evidence” of their “intellectual disability, including

deficits in adaptive functioning”); Moore v. Texas, 581 U.S. 1, 13 (2017) (“Hall instructs

that, where an IQ score is close to, but above, 70, courts must account for the test’s

standard error of measurement”); Moore, 581 U.S. at 14 (“Because the lower end of

Moore’s score range falls at or below 70, the CCA had to move on to consider Moore's

adaptive functioning”). The holding in Hall concerned which capital defendants were

entitled to an evidentiary hearing to establish their claims of intellectual disability

and which capital defendants were not. In the Eleventh Circuit's words, Hall merely

provided new procedures for ensuring that States do not execute members of an

already protected group. In re Henry, 757 F.3d 1151, 1161 (11th Cir. 2014). The Eighth

Amendment class of intellectually disabled capital defendants had been established

10

decades earlier in Atkins v. Virginia, 5386 U.S. 304 (2002). Hall did not create or

expand that Eighth Amendment class itself. Indeed, the Hall Court made it clear that

the class affected was “identical” to the class created by Atkins. In re Henry, 757 F.3d

at 1160-61 (quoting Hall, 572 U.S. at 704). The class was intellectually disabled

capital defendants before Hall and the class remained intellectually disabled capital

defendants after Hall. Hall is procedural and therefore, under Teague, it is not

retroactive.

Opposing counsel relies on Montgomery v. Louisiana, 577 U.S. 190 (2016), to

assert the Florida Supreme Court’s decision conflicts with this Court’s retroactivity

jurisprudence. Pet. at 8, n.3,11-12,16. The Eleventh Circuit explained the wrinkle that

Montgomery's half substantive/half procedural analysis had caused in federal

retroactivity analysis in Smith v. Commr., Ala. Dept. of Corr., 924 F.3d 1330, 1339, n.5

(11th Cir. 2019). But this Court has since ironed that wrinkle out by disavowing

Montgomery altogether in Jones v. Mississippi, 141 S. Ct. 1307, 1317, n.4 (2021). The

Jones Court disavowed Montgomery and stated that whether a rule is substantive or

procedural for retroactivity purposes is determined by considering “the function of the

rule itself,” not by determining whether the underlying constitutional right is

substantive or procedural. Jd. at n.4 (citing Welch v. United States, 578 U.S. 120, 130-

181 (2016)). The Jones Court explained that in the future, the reasoning of Welch, not

Montgomery, will govern retroactivity determinations. This Court saw no need to

formally overrule Montgomery based on the practical reality that the vast majority of

juvenile resentencings at issue in Montgomery had already occurred. This Court’s

current retroactivity jurisprudence is reflected in Welch, Edwards, and Jones, not

Montgomery. And the Florida Supreme Court’s decision regarding the retroactivity of

Hall does not conflict with Welch, Edwards, or Jones.

11

No conflict with this Court’s retroactivity jurisprudence

There is no conflict with this Court’s current retroactivity jurisprudence and the

Florida Supreme Court’s decision in this case. This Court disavowed Montgomery

which is the main case opposing counsel relies upon to establish conflict with this

Court’s retroactivity jurisprudence in the petition. Pet. at 11-12. Montgomery is no

longer valid after Jones v. Mississippi and cannot be used to establish conflict with this

Court because it does not reflect this Court’s current retroactivity jurisprudence.

The petition does not acknowledge or distinguish the majority opinion in

Edwards or the footnote in Jones disavowing Montgomery Petitions for writ of

certiorari that do not account for this Court’s recent decisions in an area do not warrant

this Court’s serious consideration.

Opposing counsel also relies on Brumfield v. Cain, 576 U.S. 305 (2015), and

Moore v. Texas, 581 U.S. 1 (2017), asserting that this Court, in effect, applied Hall

retroactively in both cases. Pet. at 18. But a case that does not address an issue in

any manner does not create precedent regarding that particular issue. There is no

Teague discussion in either Brumfield or Moore including in the dissents. Perhaps, the

issue of retroactivity was not raised by Louisiana or Texas in either case or was not

raised properly. Cf. Buck v. Davis, 580 U.S. 100, 127 (2017) (refusing to address an

issue raised for the first time in the Supreme Court in the merits briefing). There is

no such thing as an implicit Teague analysis, as opposing counsel would have it. Neither

Brumfield nor Moore can be used as support for an assertion that Hall is retroactive

under Teague because neither case addresses that issue.

Furthermore, the issue in Moore was different from the issue in Hall. Moore did

12

not concern adjusting IQ scores to account for the statistical error of measurement

(SEM) of which capital defendants were entitled to evidentiary hearings to prove their

claims of intellectual disability which were the issues in Hall. Rather, the issue in

Moore was that Texas’ definition of intellectual disability, established in Ex parie

Briseno, 1385 S.W.3d 1 (Tex. Crim. App. 2004), did not align with any of the standard

clinical definitions of intellectual disability. Hall, which concerned which capital

defendants would be entitled to an evidentiary hearing, is even more overtly procedural

than Moore. A Teague analysis of Hall and Moore would not necessarily be coextensive.

This Court has previously denied similar petitions regarding the Florida

Supreme Court’s decision in Phillips on the retroactivity of Hall. Lawrence v. State,

296 So. 3d 892 (Fla. 2020), cert. denied, Lawrence v. Florida, 141 S. Ct. 2676 (2021)

(No. 20-6807); Phillips v. State, 299 So. 3d 1013 (Fla. 2020), cert. denied, Phillips v.

Florida, 141 S. Ct. 2676 (2021) (No. 20-6887); Freeman v. State, 300 So. 3d 591 (Fla.

2020), cert. denied, Freeman v. Florida, 141 S. Ct. 2676 (2021) (No. 20-6879); Nixon v.

State, 327 So. 3d 780 (Fla. 2021), cert. denied, Nixon v. Florida, 142 S. Ct. 2836 (2021)

(No. 21-1173); Thompson v. State, 341 So. 3d 303 (Fla. 2022), cert. denied, Thompson

v. Florida, 143 S. Ct. 592 (2028) (No. 22-5906). This Court should likewise deny review

of this petition. There is no conflict with this Court’s current retroactivity

jurisprudence and the Florida Supreme Court’s decision in this case.

No active conflict among the lower appellate courts

As this Court has observed, a principal purpose for certiorari jurisdiction “is to

resolve conflicts among the United States courts of appeals and state courts concerning

the meaning of provisions of federal law.” Braxton v. United States, 500 U.S. 344, 347

(1991); see also Sup. Ct. R. 10(b) (listing conflict among federal appellate courts and state

13

supreme courts as a consideration in the decision to grant review). Issues that have

not divided the courts or are not important questions of federal law do not merit this

Court’s attention. Rockford Life Ins. Co. v. Ill. Dept. of Revenue, 482 U.S. 182, 184 n.3

(1987). In the absence of such conflict, certiorari is rarely warranted.

Opposing counsel points to the conflict among the federal circuit courts and the

state courts of last resort regarding the retroactivity of Hall v. Florida. Pet at 14-16.

While normally a conflict among the federal circuits and the state courts of last resort

would be a proper consideration in granting review, it is not in this situation. The cases

opposing counsel relies upon to establish a conflict among the lower appellate courts

regarding the retroactivity of Hall were decided before this Court’s recent decisions

in Edwards and Jones. To establish an active conflict, opposing counsel must cite to

cases that employ a Teague analysis rather than a state law test of retroactivity and

in addition account for Edwards limiting Teague to substantive rules and account for

the footnote in Jones disavowing Montgomery. The vast majority of cases opposing

counsel relies upon to establish conflict do not meet that criteria. All of the cases cited

in the petition addressing the retroactivity of Hall pre-date Edwards and Jones.1

1 The sole case that post-dates Edwards and Jones cited in the petition is Jackson v.

Payne, 9 F.4th 646, 652 (8th Cir. 2021), cert. denied, Payne v. Jackson, 142 S. Ct.

2745 (2022) (No. 21-1021). But Payne concerned the application of Moore v. Texas, not

Hall v. Florida, to a claim of intellectual disability. Payne, 9 F.4th at 652 (Moore I

“heavily informed” our decision ordering a remand); id. at 653 (“We view Moore I as

reaffirming Moore I's reasoning and guidance on how to properly evaluate intellectual

disability claims under Atkins). The case does not state even in dicta that Hall is

retroactive. Actually, there is no Teague analysis whatsoever in the case. Indeed,

Teague is not cited even once in the Payne opinion. Obviously, a case that does not

perform a Teague retroactivity analysis cannot establish a conflict among the federal

circuit courts regarding the retroactivity.

Furthermore, there seems to be an intracircuit split in the Eighth Circuit

regarding the retroactivity of Hall and Moore. Davis v. Kelley, 854 F.3d 967, 970 (8th Cir.

2017) (holding Hall is not retroactive for purposes of filing a successive habeas petition

under 28 U.S.C. § 2244(b)(2)(A) and characterizing Hall as addressing “purely

procedural issues”); Williams v. Kelley, 858 F.3d 464, 474 (8th Cir. 2017) (holding Moore

14

Attempting to establish conflict among the state supreme courts, opposing counsel

cites to the Kentucky Supreme Court’s decision in White v. Commonwealth,

500 S.W.3d 208, 214 (Ky. 2016). Pet. at 14, n.8. The Kentucky Supreme Court

concluded that Hall was a substantive rule. But White was decided in 2016, years

before this Court’s recent decisions in Jones v. Mississippi in 2021. It is unknown

whether the Kentucky Supreme Court would still consider Hall to be retroactive in the

wake of Jones disavowing Montgomery or would reconsider its prior decision and adopt

the majority position that Hall is procedural and therefore, not retroactive under

Edwards. There is no active conflict among the state courts of last resort.

Attempting to establish conflict among the federal appellate courts, opposing

counsel cites to the Ninth Circuit’s decision in Smith v. Ryan, 813 F.8d 1175, 1181 (9th

Cir. 2016). Pet. at 14, n.8. But Smith was also decided in 2016, years before this Court’s

recent decisions in Edwards and Jones. Additionally, the Ninth Circuit in Smith did

not perform a Teague retroactivity analysis of Hall. Teague is not cited even once in

passing by the Ninth Circuit in the Smith opinion. Such a case cannot establish a

conflict among the federal circuit courts regarding retroactivity.

Opposing counsel also cites to the Tenth Circuit's decision in Smith v. Sharp,

935 F.3d 1064, 1083-85 (10th Cir. 2019), which reasoned that Hall and Moore were

settled rules that were available in collateral review. Pet. at 16, n.10. But neither

the Florida Supreme Court’s decision in Phillips nor the Florida Supreme Court’s

decision in this case conducted any analysis regarding the issue of settled rules versus

new rules. Neither Phillips nor this case contain any discussion of the “dictated by”

standard or cite to Chaidez v. United States, 568 U.S. 342 (2013), or any similar case.

Phillips, 299 So.3d at 1022. There is no active conflict between the federal circuit

is not retroactive for purposes of filing a successive habeas petition under 28 U.S.C. §

2244(b)(2)(A)). A circuit court whose law is unclear on an issue cannot provide a proper

basis to establish conflict.

15

courts and the Florida Supreme Court’s decision in this case.

There is no active conflict between the state courts of last resort or the federal

circuit courts and the Florida Supreme Court’s decision in this case.

Purely theoretical issue

While retroactivity is normally a threshold issue, the retroactivity of Hall is a

purely theoretical issue that is not outcome determinative in this case because Hall

does not apply at all to Walls. Cf’ Lambrix v. Singletary, 520 U.S. 518, 524 (1997)

(discussing whether the issue of procedural default should be considered before the

retroactivity issue). Hall does not apply as a matter of law to any capital defendant who

fails the third prong of onset. Hall, 572 U.S. at 710 (“This last factor, referred to as ‘age

of onset,’ is not at issue”); Moore, 581 U.S. at 7, n.3 (“The third element is not at issue

here”). Walls’ three IQ scores as a minor were 88, 102, and 101. His intellectual

functioning as a minor was perfectly normal. He failed the third prong of onset based

on his IQ scores as a minor, as the state postconviction court found following the

extensive second evidentiary hearing. And much of this evidence regarding his IQ

scores as a minor was known from the first evidentiary hearing conducted years before

Hall was decided in 2014. As Justice Canady observed, in his dissent from the

opinion remanding the case for a second evidentiary hearing, this case was “easily

resolvable” without any discussion of Hall or any consideration of whether Hall should

be applied retroactively because the onset prong “was not at issue and played no part

in the Court’s analysis in Hall.” Walls v. State, 213 So. 3d 340, 349 (Fla. 2016) (Canady,

J., dissenting). Justice Canady stated that the trial court had correctly denied Walls’

intellectual disability claim because the evidence at the first evidentiary hearing

“showed without dispute that as a juvenile Walls had IQ scores of 102 (at age 12) and

101 (at age 14)” which means he necessarily failed to meet the third prong of the test

16

for intellectual disability. Walls, 213 So. 3d at 349 (citing § 921.137(1), Fla. Stat. (2006)).

Walls was never entitled to a second evidentiary hearing based on Hall due to his IQ

scores on the third prong of onset. Walls’ IQ score as a minor are simply too high for

him to obtain any relief under either Hall or Aktins.

Because this case is so easily resolved on the merits of the third prong of onset,

the retroactivity of Hall is not a critical question. The issue of the retroactivity of Hall

is purely a theoretical issue given that Walls’ IQ scores as a minor cannot result in any

relief, regardless of how this Court answers the question of retroactivity. Herb v.

Pitcairn, 324 U.S. 117, 126 (1945) (observing that this Court’s “power is to correct

wrong judgments, not to revise opinions” and explaining that if that same judgment

would be rendered by the state court after we corrected its views, this Court’s review

would “amount to nothing more than an advisory opinion”). This Court typically does

not waste its time answering purely theoretical questions and should not do so in this

case.

Review of the issue of the retroactivity of Hall under state law should be denied.

17

ISSUE II

WHETHER THE FLORIDA SUPREME COURT RECEDING FROM ITS

PRIOR DECISION IN PHILLIPS V. STATE, 299 So. 3d 1018 (Fla. 2020),

VIOLATES DUE PROCESS UNDER BOUIE V. CITY OF COLUMBIA,

378 U.S. 347 (1964).

Petitioner Walls claims that the Florida Supreme Court refusing to address the

intellectual disability claim on the merits and instead denying the claim solely on nonretroactivity grounds is a violation of due process. He asserts that the Florida Supreme

Court overruling their prior precedent in Phillips v. State, 299 So. 3d 1013 (Fla. 2020),

cert. denied, Phillips v. Florida, 141 8. Ct. 2676 (2021) (No. 20-6887), and holding that

Hall was not retroactive was an “unforeseeable 180-degree about-face” in violation of

Bouie v. City of Columbia, 378 U.S. 347 (1964). A court overruling its prior precedent

does not, by itself, violate due process. A state court joining the majority view that

Hall is not retroactive is hardly unexpected or indefensible, as required to establish a

violation of Bouie. There is no conflict between this Court’s due process jurisprudence

and the Florida Supreme Court’s decision in this case. Nor is there any conflict:

between the lower appellate courts and the Florida Supreme Court’s decision in this

case. Opposing counsel cites no case from any federal circuit court or state court of last

resort finding a Bouie violation based solely on the fact a court overruled its prior

precedent, much less a case involving the retroactivity of Hall. Therefore, review of

this issue should be denied.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court relied on its current precedent of Phillips v. State,

299 So. 3d 1013 (Fla. 2020), to deny the claim. The Florida Supreme Court also relied

on two other cases that had likewise been remanded for evidentiary hearings based on

Hall but on appeal from the remand, the Florida Supreme Court had denied the claims

18

solely on non-retroactivity grounds. Walls, 361 So.3d at 233-34 (citing Nixon v. State,

327 So.3d 780 (Fla. 2021), and Thompson v. State, 341 So. 3d 803 (Fla. 2022), cert.

denied, Thompson v. Florida, 143 S. Ct. 592 (2023). ).

Bouie and receding from prior precedent

In Rogers v. Tennessee, 532 U.S. 451 (2001), this Court held that the Tennessee

Supreme Court’s abrogation of the common law year-and-a-day rule was not

unexpected or indefensible and therefore, did not violate due process. The Rogers Court

clarified that Bouie was premised on the due process principle of fair warning. Id. at 459;

see also Metrish v. Lancaster, 569 U.S. 351, 359-60, 368 (2013) (discussing the holdings

of Bouie and Rogers and concluding the Michigan Supreme Court’s decision was not

unexpected or indefensible by reference to existing law and therefore, did not violate

due process). Bouie claims are limited to substantive changes in the law that result in

a lack of fair warning but the change in the law at issue here involves a procedural

change regarding which capital defendants are entitled to an opportunity to prove all

three prongs of their intellectual disability claim at an evidentiary hearing. Opposing

counsel fails to explain how Walls lacked due process notice or fair warning.

The Florida Supreme Court’s decision to overrule its precedent cannot be said to

be unexpected or indefensible, as required to establish a Bouie violation. It is hardly

unexpected, much less indefensible, for a state court to adopt the majority view that

Hall is not retroactive.

Opposing counsel is advocating that this Court adopt quite an odd view of due

process. It cannot be a violation of due process for a state court to adopt the position

that the majority of federal circuit courts have adopted on an issue. So, the only possible

basis for a due process concern would be the fact that the Florida Supreme Court

changed its mind regarding the retroactivity of Hall. Opposing counsel’s view due

19

process means that appellate courts could never recede from their own prior precedent,

including presumably this Court as well. But this Court has receded from its prior

precedent on occasion as well. See e.g., Hurst v. Florida, 577 U.S. 92, 102 (2016)

(overruling both Hildwin v. Florida, 490 U.S. 638 (1989), and Spaziano v. Florida,

468 U.S. 447(1984)); Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (overruling both

Apodaca v. Oregon, 406 U.S. 404 (1972), and Johnson v. Louisiana, 406 U.S. 356 (1972)). A Court

overruling its prior precedent is not per se a violation of due process.

Contrary to opposing counsel's argument, there was no detrimental reliance on Walls’

part regarding the Florida Supreme Court’s prior decision applying Hall retroactively to him.

Pet. at 16. Walls received the full benefit of that prior decision granting him an evidentiary

hearing at the trial court level. The state postconviction court held a six-day evidentiary hearing

on his intellectual disability claim. Walls was permitted to present any evidence he desired on

all three prongs of Florida’s statutory test for intellectual disability. The defense presented seven

witnesses, including six experts, at the second evidentiary hearing. Following that second

evidentiary hearing, the state postconviction court addressed the claim on the merits in the

alternative and found that Walls failed both the first prong and third prong.

Walls received an evidentiary hearing and full merits review of his intellectual disability

claim in the state trial court, regardless of the Florida Supreme Court limiting its analysis to

retroactivity on appeal. In other words, Walls got his day in court. Actually, he got a second day

in court. Walls has now had two evidentiary hearings in state court regarding his intellectual

disability claim, despite having normal intellectual functioning as a minor. Walls has now had

two opportunities to prove his frivolous Atkins claim and failed both times.

Indeed, far from being harmed, Walls received the windfall of being granted a second

evidentiary hearing that he was never entitled to under Hall due to his normal IQ

scores aS a minor. He also received an additional windfall due to his second evidentiary

hearing being delayed for four years, mainly because of COVID. Walls, 361 So.3d at

20

233 (observing that it took over four years after the Florida Supreme Court remanded

the case to conduct the second evidentiary hearing). The delay resulted in his death

sentence being commuted to a sentence of imprisonment for four years. Bowles v.

DeSantis, 934 F.3d 1230, 1248 (11th Cir. 2019) (observing that each delay in a capital

case amounts to a “commutation of a death sentence to one of imprisonment” citing

cases). Attempting to fashion a due process violation out of such windfalls is

nonsensical, There was no due process violation.

No conflict with this Court’s due process jurisprudence

There is no conflict between this Court’s due process jurisprudence and the

Florida Supreme Court’s decision in this case. Opposing counsel cites to no case from

this Court finding a violation of Bouie based solely on a court overruling its prior

precedent, much less finding a Bouie violation involving a court receding from its

precedent regarding the retroactivity of Hall. There is no conflict with this Court’s due

process jurisprudence and the Florida Supreme Court’s decision in this case.

No conflict with the lower appellate courts

There is also no conflict between the decision of any federal appellate court or

any state court of last resort and the Florida Supreme Court’s decision in this case. As

this Court has observed, a principal purpose for certiorari jurisdiction “is to resolve

conflicts among the United States courts of appeals and state courts concerning the

meaning of provisions of federal law.” Braxton v. United States, 500 U.S. 344, 347

(1991); see also Sup. Ct. R. 10(b) (listing conflict among federal appellate courts and

state supreme courts as a consideration in the decision to grant review). Issues that

have not divided the courts or are not important questions of federal law do not merit

this Court’s attention. Rockford Life Ins. Co. v. Ill. Dept. of Revenue, 482 U.S. 182, 184

21

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