Opposition Brief — Michael Duane Zack, III, Petitioner v. Florida

CAPITAL CASE

EXECUTION SCHEDULED FOR TUESDAY, OCTOBER 3,2023

No. 23-5653

In the

Supreme Court of the Anited States

MICHAEL DUANE ZACK, III Petitioner,

v.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

Attorney General of Florida

C. SUZANNE BECHARD

Associate Deputy Attorney General

*Counsel of Record

CHARMAINE M. MILLSAPS

Sentor Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL OF FLORIDA

CAPITAL APPEALS

3507 EAST FRONTAGE ROAD, SUITE 200

TAMPA, FL 338607

(813) 287-7900

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

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

Supreme Court rejecting a claim that the Eighth Amendment prohibition

on executing intellectually disabled defendants established in Atkins v.

Virginia, 536 U.S. 304 (2002), should be expanded to include a diagnosis

of Fetal Alcohol Syndrome.

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

Supreme Court rejecting a claim that the Eighth Amendment requires

jury sentencing in capital cases.

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED ...............0. 0c ccc eee eee cece eee eeeeeeee i

TABLE OF CONTENTS .... 2.0.0.0... 2c eee eee eee eee ences ii

TABLE OF AUTHORITIES ............ 20.0000 ccc cee eee eee iv

OPINION BELOW... .. 0.0.0.0... cc eee ee eee ensue ee enee 1

JURISDICTION. ........ 00. ce ee teen teen ene eeees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........... 2

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

Facts of the case 2.0.2... eee cece ec een een eees 3

Procedural history of the warrant litigation ............... 0.0000 aes 6

REASONS FOR DENYING THE WRIT..............0 0.00 cece ee eee eee eee 7

ISSUE 1. 2... eee cece ence eee ee eeeeeneeeans 7

Whether this Court Should Grant Review of a Decision of

the Florida Supreme Court Rejecting a Claim that the

Eighth Amendment Prohibition on Executing Intellectually

Disabled Defendants, Established in Atkins v. Virginia, 536

U.S.. 304 (2002), Should Be Expanded to Include a

Diagnosis of Fetal Alcohol Syndrome.

The Florida Supreme Court’s decision in this case .......... 7

Independent and adequate state law .................0005 9

No conflict with this Court’s jurisprudence ............... 11

No conflict with the lower appellate courts ............... 14

ISSUE I]... eee een eee eee eee eeeenaes 16

Whether this Court Should Grant Review of a Decision of

the Florida Supreme Court Rejecting a Claim that the

Eighth Amendment Requires Jury Sentencing in Capital

Cases.

The Florida Supreme Court’s decision in this case ......... 16

Independent and adequate state law .................... 18

ii

CONCLUSION

The Sixth Amendment, not the Eighth Amendment........

No conflict with this Court’s jurisprudence ...............

No conflict with the lower appellate courts ...............

iii

TABLE OF AUTHORITIES

CASES PAGE(S)

Almendarez-Torres v. United Siates,

523 U.S. 224 (1998) 2... ee ee tee eee eee eee nee 26,27

Apprendi v. New Jersey,

530 U.S. 466 (2000) .. 0... eee ee eee eens 23,26

Atkins v. Virginia,

536 U.S. 304 (2002)... en eee nes passim

Barksdale v. Att'y Gen. of Ala.,

2020 WL 9256555 (11th Cir. June 29, 2020) ......... 0... ce eee ee eee 27

Barwick v. State,

361 So.3d 785 (Fla. 2023)... 0... eee eee eee eect eee 8,9

Baze v. Rees,

553 U.S. 35 (2008)... ce eee eee 24

Boykin v. Alabama,

395 U.S. 238 (1969)... cc eee ene e nee eee 26

Brady v. United States,

397 U.S. 742 (1970) 2.0. eee ete ee eee nee nas 26,27

Branch v. State,

236 So.3d 981 (Fla. 2018)... 0... eee cece e ence eens 8

Braxton v. United Siates,

500 U.S. 344 (1991) 2... eee nee c ee eee 14,25

Clark v. Comm’, Ala. Dep’t of Corr.,

988 F.3d 1826 (11th Cir. 2021),

cert. denied, Clark v. Hamm, 142 §.Ct. 1134 (2022). ........0......0..00.000. 26

Cty. of Sacramento v. Lewis,

523 U.S. 833 (1998) .. 0... ee eee e eee ee eee e eee 20

Davis v. Jenkins,

79 F.4th 623 (6th Cir. 2028) 2.0... eee eee eee 26,27

Dillbeck v. Florida,

143 S.Ct. 856 (2023)... ce eee eens 7,10,18,16,18,25

Dillbeck v. State,

357 So.3d 94 (Fla. 2023),

cert. denied, Dillbeck v. Florida, 143 S.Ct. 856 (2023) ................... passim

iv

Enter. Irrigation Dist. v. Farmers Mut. Canal Co.,

243 U.S. 157 (1917) 20 ence cece cece neaee 10,18

Edwards v. Vannoy,

141 S.Ct. 1547 (2021)... eee eee eee nena 19

Foster v. Chatman,

578 U.S. 488 (2016)... 0 ee cece cece cece eceeeceeaeeeeeutuseeeees 10,18

Fox Film Corp. v. Muller,

296 U.S. 207 (1935) 2... ec ce cece ccc e ecu ceeeuceueeeeesevseeteeenes 9,18

Furman v. Georgia,

A08 U.S. 238 (1972) 20... ee cece cece ccc ceceeeeeeeceuseueeutenens 23,24

Garcia v. State,

356 So.3d 101 (Miss. 2028) ... 2... ccc cece eens 14

Glossip v. Gross,

576 U.S. 863 (2015) 0... ee cece cece ec cececeeceeeeeueeeateneecees 24

Gordon v. State,

350 So.3d 25 (Fla. 2022)... 2... cece cece ccc cccecceceeeesueeucutecvenses )

Graham v. Connor,

490 U.S. 386 (1989)... 0 ee cee eee eee e eens 19

Gregg v. Georgia,

A28 U.S. 153 (1976)... cece cece cee ce cece ceeeaeestuscuseseees 24

Hall v. Florida,

B72 U.S. 701 (2014) oo ccccc ccc c cece nce ceceueeeeeuteutenenenes 12,24

Harris v. Alabama,

518 U.S. 504 (1995) 2... eee eee ne ee ene passim

Harris v. Reed,

489 U.S. 255 (1989) 2... ce eee eee nee n ee enes 10,18

Henry v. State,

125 So.3d 745 (Fla. 2013)... ... ec cece cece cece cece eeceeeeueueeuteteaees 8

Hildwin v. Florida,

490 U.S. 688 (1989) 2.2 ee eee eee eee eee eee 22

Hurst v. Florida,

577 U.S. 92 (2016)... eee eee ees 17,20,22,23

Johnson v. Williams,

568 U.S. 289 (2018) 2... eee eee ee eee eee 9,18

Kearse v. Sec’y, Fla. Dep’t of Corr.,

2022 WL 3661526 (11th Cir. Aug. 25, 2022),

cert. denied, Kearse v. Dixon, 143 S.Ct. 2489 (2023). ........0. 000... cece ee 11,14

McKinney v. Arizona,

140 S.Ct. 702 (2020)... ce cence eee e nea passim

Medina v. State,

573 So.2d 293 (Fla. 1990)... 2... ee ee eee eee eens 8

Michigan v. Long,

463 U.S. 1032 (1988) .. 0... eee een eeneee 9,18

Miller v. Alabama,

567 U.S. 460 (2012) 20. cn eee eee eee e ee eees 12

N.C.P. Mktg. Group, Inc. v. BG Star Productions, Inc.,

556 U.S. 1145 (2009) . 0. cee ce eee eee e ees 10

People v. McDaniel,

493 P.3d 815 (Cal. 2021),

cert. denied, McDaniel v. California, 142 S.Ct. 2877 (2022)................... 28

Ring v. Arizona,

536 U.S. 584 (2002)... eee ccc cece ec eueeeeeeeeueeusers 17,19,20,22,26

Roberts v. Louisiana,

428 U.S. 325 (1976) 2.0. eee eee eee eee eee eeee 24

Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,

482 U.S. 182 (1987) 20... eee eee e eee 14,26

Sattazahn v. Pennsylvania,

537 U.S. 101 (2008)... eee teen eee eeaes 21

Schriro v. Summerlin,

542 U.S. 348 (2004) 0. eee eee eee ene eeeeee 19

Sessions v. Dimaya,

138 S.Ct. 1204 (2018) Lee eee eee eee ee eevee eee ene e eee een eeeeeenanees 26

Shore v. Davis,

845 F.3d 627 (5th Cir. 2017) .. 2... cee ee ee eens 14

Simmons v. State,

105 So.3d 475 (Fla. 2012)... 00... ccc ccc cece eee eneeceueuueeueeaeeeas 8,9

Sliney v. State,

362 So. 3d 186 (Fla. 2028)... 2.6 ce eee eee eaes 8

vi

Soliz v. Davis,

750 F. App’x 282 (5th Cir. 2018)... 0... eee ene e eae 14

Spaziano v. Florida,

468 U.S. 447 (1984) 2... eee ee eee eee eens passim

State v. Poole,

297 So.3d 487 (Fla. 2020). .... 0. c ccc ccecececeuceceeeeeeaevtentenes 17,23

State v. Trail,

981 N.W.2d 269 (Neb. 2022) ... 2... . ee cee ees 19,27

State v. Whitaker,

196 N.E.3d 863 (Ohio 2022)... 0... eee eee eee nee eeas 28

Teague v. Lane,

489 U.S. 288 (1989) .. 0. eee eee e cece een eeee 19

Trop v. Dulles,

356 U.S. 86 (1958)... eee eee eens 12,13,17,24

United States v. Fell,

2016 WL 11550800 (D. Vt. Nov. 7, 2016)... 0.0... ee ee 11,13

United States v. Lanier,

520 U.S. 259 (1997) 22 ce ee eee eee eee eee eteeaes 19

Whole Woman’s Health v. Jackson,

595 U.S. 80 (2021) 20 ene nent ne eeeee 11

Woodson v. North Carolina,

428 U.S. 280 (1976) 2... ee ccc ence cece ee eeceeeeceeueeneteaee 23

Zack v. State,

2023 WL 6152489 (Fla. Sept. 21, 2023) ....... 0.0... ee passim

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VI... 0.0... 0. eee eeee passim

U.S. Const. Amend. VITI «2... cee eee cence eee passim

U.S. Const. Amend. XIV 1... ee eee eee rte eens 2

Art. 1, § 17, Fla. Const... 0.0.00. 00 eee eee e eee eee 9

Vii

STATUTES

9B U.S.C. § 1257.0 ccc ccc ccc eee e ence cn ceceunenteeeueeeueeeueees 9,18

28 U.S.C. § 1257(a). 0. cen ee ene e eee n ee ees 2

28 U.S.C. § 2101)... eee ete ene 2

§ 921.137(1), Fla. Stat. (2022)... 00.0. cece cece cece ee eeeeeeceeeneeees 11

RULES

Fla. R. Crim. P. 3.851(d)(2)(A). 02. eee eens 8,17

Fla. R. Crim. P. 3.851(e)(D .. 2. ee ee eee eens 15

Fla. R. Crim. P. 3.851(e)(2)(A). 0... eee ee ee eee 15

Fla. R. Crim. P. 3.851(h)(5) .. 2... eens 15

Sup. Ct. R.10(b). 0... eee ec cee cece cece eeeeeeeeceveeeeetneeees 11,21

Sup. Ct. R. 13.8... 0 000 ee ee eee eee eeeeeneenens 2

SO a 2 15

viii

Hun the

Supreme Court of the Gnited States

No. 23-5653

MICHAEL DUANE ZACK, III, Petitioner,

Uv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Zack v. State, 2023 WL

6152489 (Fla. Sept. 21, 2023) (SC2023-1233).'

JURISDICTION

On September 21, 2023, the Florida Supreme Court affirmed the state

postconviction court's summary denial of a successive postconviction motion in this

1 The pleadings filed in this case are available online on the Florida Supreme Court’s website

under the heading “Online Docket” which will default to the “Florida Appellate Case Information

System.” In the left column, under the search icon, “Case Search” will appear as the first choice.

Clicking on case search yields several boxes including the “Court” box which includes the “Supreme

Court of Florida” ag an option. Select the Supreme Court of Florida option and then enter the case

number SC2023-12838 in the next “Case Number” box will lead to the full docket of the case..

il

active warrant case. Zack v. State, 2023 WL 6152489 (Fla. Sept. 21, 2023). The Florida

Supreme Court issued the mandate immediately. On September 26, 2023, Zack 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 Sixth Amendment right-to-a-jurytrial provision, the Eighth Amendment cruel and unusual punishment provision, and

the Fourteenth Amendment.

The Sixth Amendment to the United States Constitution, provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

U.S. Const. Amend. VI.

The Eighth Amendment to the United States Constitution, provides:

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

cruel and unusual punishments inflicted.

U.S. Const. Amend. VIII.

The Fourteenth Amendment to the United States Constitution, provides:

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

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

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

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

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

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

equal protection of the laws.

U.S. Const. Amend. XIV.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Zack murdered two women as part of a nine-day crime spree and was sentenced.

to death for the murder of the second victim, Ravonne Smith.

Facts of the case

Zack committed two murders as part of a nine-day crime spree that began on

June 4, 1996. Zack v. State, 753 So.2d 9, 13-14 (Fla. 2000); see also Zack v. State, 911

So.2d 1190, 1195 (Fla. 2005). On June 12, 1996, Zack met Laura Rosillo at a bar in

Okaloosa Island, Florida. Zack drove her in a red Honda he had stolen a few days

earlier in Tallahassee. Zack attacked Laura while they were in the Honda. Zack then

pulled her out of the car, kicked her repeatedly, and beat her head against one of the

tire rims. He then strangled her to death. He dragged her body behind a sand dune,

kicked dirt over her face, and left. Zack, 753 So.2d at 18. When her body was found,

her tube top was torn and hanging off her hips and her pants were pulled down around

her right ankle. (T. II 392-93); Zack, 753 So.2d at 13. Laura Rosillo’s blood was found

inside the stolen red Honda and on the outside of the Honda on the rear passenger-side

tire. (T. III 410-19; IV 675-76).

Zack then drove to Pensacola in the stolen Honda. On the afternoon of June 13,

1996, at Dirty Joe’s bar in Pensacola Beach, Zack met Ravonne Smith, who worked at

the bar. Zack, 753 So.2d at 13-14. Around 8 p.m., Zack and Smith left the bar and

went to her house. Immediately upon entering the house, Zack hit the victim with a

beer bottle causing her blood to spray on a love seat in the living room and on the

interior of the door frame. (T. II 317). She ran down the hall to the master bedroom

leaving a trail of blood. (T. II 378). Zack pursued Smith to the master bedroom and

sexually assaulted her. She managed to escape to the guest bedroom. But Zack

pursued her and beat her head against the wooden floor of the bedroom. Zack went to

the kitchen where he got an oyster knife, returned to the guest bedroom, and stabbed

her in the chest four times with the knife. Zack returned to the master bedroom,

stealing a television, a VCR, and her purse. He placed the stolen items in Smith’s car,

a black Plymouth Conquest. Zack drove her stolen Conquest to the location where he

had parked the stolen red Honda, close to Dirty Joe’s bar. Zack removed the Honda’s

license plate and took it with him.

He then returned to Panama City in Smith’s stolen car. There, he attempted to

pawn the victim’s TV and VCR at the “No Fuss Pawn and Loan Company.” (T. IV 628).

The pawn shop owners asked for identification and told Zack they had to check the

merchandise. Zack fled the store. The store’s two surveillance cameras captured Zack

attempting to pawn the stolen property on videotape. (T. IV 629). Zack abandoned

Smith’s car. Zack was apprehended sometime later hiding in an empty house.

Zack confessed to the murder of Smith to Investigator Vecker of the Bay County

Sheriffs Office and Investigator Henry of the Escambia County Sheriff's Office. (T. IV

745 - V 816; T. V 911-980). Zack’s fingerprint was found on the stolen TV and his

fingerprint and palm print were found on the stolen VCR. (T. IV 722). Zack’s

fingerprints were also located on numerous items found in Smith’s stolen car. (T. IV

708-711). DNA evidence was presented at trial. A laboratory analyst with the Florida

Department of Law Enforcement (FDLE), testified that both victims’ blood were on the

white boxer shorts. (T. IV 679). The DNA on the boxer shorts matched victim Smith’s

DNA profile at three markers and at one in 93,000 Caucasians. (T. IV 699). A vaginal

swab of victim Smith matched Zack’s DNA profile at six markers. (T. IV 671-73).

Zack’s DNA type occurs in one in 18,700 of the Caucasian population. (T. IV 673).

At the penalty phase, the defense presented several mental health experts to

testify that Zack suffered from Fetal Alcohol Syndrome (FAS) and posttraumatic stress

disorder (PTSD). Dr. William E. Spence, Jr., a forensic psychologist, testified in

mitigation for the defense. (T. X 1822-1841). Dr. Spence diagnosed Zack with PTSD.

(T. X 1880, 1841). Zack, however, told Dr. Spence that he witnessed his stepsister

murdering his mother, despite Zack’s own testimony at trial that he was in a mental

hospital and a stipulation that he was over 100 miles away at the time of his mother’s

murder. (T. VI 1101; T. X. 1830).

Dr. James D. Larson, a forensic psychologist, also testified in mitigation. (T. X

1847-1884). Dr. Larson diagnosed Zack with PTSD due to his mother’s murder and the

childhood abuse. (T. X 1862). Dr. Larson testified that Zack’s IQ score on the Wechsler

Intelligence Scale was 84, which is in the “low average range.” (T. X 1854, 1868-69).

Dr. Larson, however, also testified that Zack’s IQ score from a Wechsler Intelligence

Scale for Children, administered when he was about 12 years old, “reflected an IQ of

92.” (T. X 1866-67). Zack’s performance score was 104 and his verbal score was 84. (T.

X 1867). Dr. Larson thought the 20-point discrepancy between the performance score

and the verbal score was a sign of possible brain impairment. (T. X 1867).

Dr. Barry Crown, a forensic psychologist, testified for the defense in mitigation.

(T. X 1884-1926). Dr. Crown also diagnosed Zack with PTSD and FAS. (T. X 1907,

1909).

Dr. Michael S. Maher, a psychiatrist, testified again in the penalty phase in

mitigation. (T. X 1927-1967). Dr. Maher diagnosed Zack with PTSD and FAS. (T. X

1929,1932, 1937).

Dr. Eric Mings, a psychologist, testified in rebuttal for the State. (T. XI

1972-2014). Dr. Mings testified that Zack had a full scale IQ of 86 which is in the range

of “low average.” (T. XI 1986,1987).

Dr. Harry McClaren, a forensic psychologist, also testified in rebuttal. (T. XI

2015-2047). Dr. McClaren diagnosed Zack as having a personality disorder with

prominent antisocial features. (T. XI 2022). Dr. McClaren also testified that Zack had

anger directed toward women. (T. XI 2024, 2027-20382).

Years later, in 2002, in the initial state postconviction proceedings, the defense

hired another mental health expert, Brett Turner, Psy.D. Dr. Turner performed a

WAIS-ITI IQ test in 2002 that showed a current full-scale IQ of 79. Dr. Turner’s written

report also referred to a prior IQ test performed in 1980 when Zack was eleven years

old, showing a full-scale IQ of 92.

Procedural history of the warrant litigation

On August 17, 2023, Governor DeSantis issued a death warrant scheduling the

execution for Tuesday, October 3, 2023, at 6:00 p.m. On August 28, 2023, Zack,

represented by state postconviction counsel Capital Collateral Regional Counsel—North

(CCRC-N), filed a successive motion for postconviction reliefin the state postconviction

court raising two claims: (1) the prohibition on the execution of intellectually disabled

defendants, established in Atkins v. Virginia, 536 U.S. 304 (2002), should be expanded

to include a diagnosis of Fetal Alcohol Syndrome because it is functionally identical to

a diagnosis of intellectual disability; and (2) a non-unanimous jury recommendation

of death violates the Eighth Amendment. On August 31, 2023, the state postconviction

court summarily denied both claims, finding both claims to be untimely, procedurally

barred, and meritless under the Florida Supreme Court's recent precedent of Dillbeck

v. State, 357 So.3d 94 (Fla. 2023), cert. denied, Dillbeck v. Florida, 143 S.Ct. 856 (2028).

On September 21, 2023, the Florida Supreme Court affirmed the summary

denial of the successive postconviction motion. Zack v. State, 2023 WL 6152489, at *12

(Fla. Sept. 21, 2023). The Florida Supreme Court concluded both claims were

untimely, procedurally barred, and meritless under its existing precedent of Dillbeck.

On September 26, 2023, Zack, represented by CCRC-_N, filed a petition for a writ

of certiorari in this Court raising two questions.

REASONS FOR DENYING THE WRIT

ISSUE I

Whether this Court Should Grant Review of a Decision of the Florida

Supreme Court Rejecting a Claim that the Eighth Amendment

Prohibition on Executing Intellectually Disabled Defendants, Established

in Atkins v. Virginia, 536 U.S. 304 (2002), Should Be Expanded to Include

a Diagnosis of Fetal Alcohol Syndrome.

Petitioner Zack seeks review of the Florida Supreme Court’s decision refusing

to expand the prohibition on execution of defendants with a diagnosis of intellectual

disability, established in Atkins v. Virginia, 536 U.S. 304 (2002), to include a diagnosis

of Fetal Alcohol Syndrome (FAS). Pet. at 17. He argues that a diagnosis of FAS is the

functional equivalent of a diagnosis of intellectual disability relying on the views of

mental health experts. The Florida Supreme Court found the expansion-of-Atkins

claim to be untimely and procedurally barred as a matter of state law. Both findings

are independent and adequate state law grounds precluding review by this Court.

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

and the Florida Supreme Court’s rejection of the expansion-of-Atkins claim. This Court

has never even hinted that Atkins should be expanded to include other types of

diagnoses. There certainly is no conflict with Atkins itself. And this Court recently

denied review of this same question in Dillbeck v. Florida, 143 S. Ct. 856 (2028) (No.

22-6819). There is also no conflict between the lower appellate courts and the Florida

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

case—federal or state—expanding Atkins to any other diagnosis. 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 expansion-of-Atkins claim.

Zack v. State, 2023 WL 6152489, at *7-*10 (Fla. Sept. 21, 2023). The Florida Supreme

Court stated that it was “appropriate for a postconviction court to summarily dismiss

claims raised in a successive postconviction motion that are untimely or procedurally

barred.” Id. at *7.

The Florida Supreme Court ruled that the expansion-of-Atkins claim was

untimely explaining that the facts the claim was based upon “have long been known

to him and his attorneys.” Zack, 2023 WL 6152489, at *7. His diagnosis of FAS was

known and presented at the trial in 1997 and he was now relying on

“twenty-year-old-plus information” as the basis of the current claim. Id. at *7. The

Court pointed out that he was not relying on any newly discovered evidence regarding

the issue. Jd. at *7. Instead, he was relying on a “new scientific consensus” based on

several articles published in 2017 and 2021. Id. at *8 & n.10. The Florida Supreme

Court noted, under its precedent, new opinions or new research studies based on a

compilation or analysis of previously existing data and scientific information “are not

generally considered newly discovered evidence.” Jd. at *8 (citing Dillbeck v. State, 357

So.3d 94, 99 (Fla. 2023), and Henry v. State, 125 So.3d 745, 750 (Fla. 2013)). The Court

also explained that, under its existing precedent, a “new scientific consensus” is an

“unpersuasive reason to restart the clock for purposes of timely filing successive

postconviction claims.” Jd. at *8 (citing Barwick v. State, 361 So.3d 785, 793 (Fla.

2023), and Sliney v. State, 362 So. 3d 186, 189 (Fla. 2023)). The Florida Supreme

Court concluded he met “none of the exceptions” to the timeliness requirement of the

applicable rule of court and therefore, the claim was untimely. Id. at *8 (citing Fla. R.

Crim. P. 3.851(d)(2)(A)-(C)).

The Florida Supreme Court also found the expansion-of-Atkins claim to be

procedurally barred. Id. at *9 (citing Barwick v. State, 361 So.3d 785, 793 (Fla. 2028),

Medina v. State, 573 So.2d 293, 295 (Fla. 1990), Branch v. State, 236 So.3d 981, 986

(Fla. 2018), and Simmons v. State, 105 So.3d 475, 511 (Fla. 2012)). The Court noted

that Zack had raised this same claim “repeatedly” since 2002. Id. at *8 (citing Zack v.

State, 982 So.2d 1179 (Fla. 2007) (unpublished)).

The Florida Supreme Court also concluded the expansion-of-Atkins claim was

meritless under its existing precedent of Dillbeck v. State, 357 So.3d 94, 100 (Fla.

2023), and Barwick v. State, 361 So.3d 785, 795 (Fla. 2028). Zack, 2023 WL 6152489,

at *9. The Court noted that it has “long held that the categorical bar of Atkins that

shields the intellectually disabled from execution does not apply to individuals with

other forms of mental illness or brain damage.” Id. at *9 (citing Dillbeck, 357 So.3d at

100, Barwick, 361 So.3d at 795, and Gordon v. State, 350 So.3d 25, 37 (Fla. 2022)).

The Florida Supreme Court alternatively concluded that it lacked “the authority to

extend Atkins to individuals who are not intellectually disabled” under the state

constitutional conformity clause regarding Eighth Amendment claims. Id. at *9 (citing

Art. I, § 17, Fla. Const. and Barwick, 361 So.3d at 795). The Florida Supreme Court

explained that this Court’s “interpretation of the Eighth Amendment is both the floor

and the ceiling for protection from cruel and unusual punishment in Florida.” Id. at *9

(citing Barwick, 361 So.3d at 795). The Florida Supreme Court affirmed the summary

denial of the claim.

Independent and adequate state law

This Court lacks jurisdiction over cases that do not present federal questions.

28 U.S.C. § 1257; Johnson v. Williams, 568 U.S. 289, 309 (20138) (Scalia, J., concurring)

(noting that 28 U.S.C. § 1257 imposes a federal-question requirement as a condition

of this Court’s appellate jurisdiction). In Michigan v. Long, 463 U.S. 1032 (1983), this

Court explained that it lacks jurisdiction over a case if a state court’s decision rests

upon two grounds: a state law ground and a federal ground, provided the state law

ground is independent and adequate itself. Jd. at 1038, n.4 (quoting Fox Film Corp. v.

Muller, 296 U.S. 207, 210 (1935)). Provided the state law is not “interwoven” with

federal law, this Court’s jurisdiction “fails.” Jd. (citing Enter. Irrigation Dist. v. Farmers

Mut. Canal Co., 243 U.S. 157, 164 (1917)); see also Foster v. Chatman, 578 U.S. 488,

497 (2016) (noting that this Court lacks jurisdiction to review a state court judgment

if that judgment rests on state law citing Harris v. Reed, 489 U.S. 255, 260 (1989)).

The Florida Supreme Court found the expansion-of-Atkins claim to be both

untimely and procedurally barred. Zack, 2023 WL 6152489, at *7-*9. The Florida

Supreme Court was interpreting a Florida rule of court to determine that the

successive postconviction claim was untimely and did not meet any of the exceptions

in that state rule of court. There is no federal constitutional aspect to such a

determination. And the Florida Supreme Court relied exclusively on state law cases

to determine the claim was procedurally barred. Neither the determination of

untimeliness nor the determination of being procedurally barred was interwoven with

federal constitutional law. Both ofthese state law determinations are independent and

adequate grounds to deny review of this issue.

Opposing counsel insists that state-law rules of forfeiture cannot be applied to

claims involving Eighth Amendment categorical exemptions. Pet. at 23. They argue

that time bars and procedural bars cannot be applied to an Atkins claim; rather, such

claims must be addressed on the merits. There is no case from this Court holding that

categorical bars cannot be forfeited and certainly no case from this Court that

categorical bars cannot be forfeited as a matter of state law. And this assertion creates

a threshold issue which creates yet another reason for this Court to decline review of

this question. N.C.P. Mkig. Group, Inc. v. BG Star Productions, Inc., 556 U.S. 1145

(2009) (statement of Kennedy, J., respecting the denial of certiorari) (explaining that

the petition for writ of certiorari was properly denied by the Court, despite the question

being a significant one that is worthy of review, because the case might require the

10

Court to first resolve antecedent questions of state law and trademark-protection

principles); Whole Woman's Health v. Jackson, 595 U.S. 30 (2021) (denying a motion

to vacate a stay, despite the serious constitutional questions involved, because the

issue presented complex and novel antecedent questions of Texas law). This Court

should decline review of this question due to the presence of two independent and

adequate state law grounds.

No conflict with this Court’s jurisprudence

There is no conflict between this Court’s Eighth Amendment jurisprudence and

the Florida Supreme Court's decision in this case. There certainly is no conflict with

Atkins itself. Atkins was limited to intellectual disability. As the Eleventh Circuit has

explained, in a case seeking to expand Atkins to include a diagnosis of fetal alcohol

effects, when the United States Supreme Court establishes a categorical rule,

expanding the category violates that rule. Kearse v. Sec'y, Fla. Dep’t of Corr.,2022 WL

3661526, *26 (11th Cir. Aug. 25, 2022), cert. denied, Kearse v. Dixon, 143 S.Ct. 2439

(2023) (No. 22-6868).

Nor should this Court consider expanding Atkins to other types of diagnoses.

Intellectual disability and Fetal Alcohol Syndrome are certainly not equivalent in

terms of objectivity and reliability of the diagnosis. A diagnosis of intellectual

disability is mainly objective, depending as it does on IQ scores for two of the three

prongs of the statutory test for intellectual disability. § 921.137(1), Fla. Stat. (2022);

cf. Atkins, 536 U.S. at 308 n.3 (using standard definitions of intellectual disability that

involve three prongs). IQ tests are objective and result in numerical scores. IQ tests

are also standardized and are used for other purposes and in other fields, such as the

military. This is not true of other types of diagnoses. Other types of diagnoses

including FAS are highly subjective. Cf. United States v. Fell, 2016 WL 11550800, at

11

*1 (D. Vt. Nov. 7, 2016) (noting the Government’s position was that there was no

definite, universal criteria for a diagnosis of Fetal Alcohol Spectrum Disorder (FASD)

and noting the DSM-5 listed ND-PAE under “Other Specified Neurodevelopmental

Disorders”). Expanding Atkins to other types of mental illnesses would result in

endless, highly subjective battles of the experts.

While opposing counsel insists that FAS is “uniquely” equivalent to intellectual

disability among the many other diagnoses based on the views of mental health

experts, the views of the psychological community often change. Pet. at 17. Tying

Eighth Amendment law to those changing views “will lead to instability and continue

to fuel protracted litigation.” Hall v. Florida, 572 U.S. 701, 731-32 (2014) (Alito, J.,

dissenting). Justice Alito noted that the American Psychiatric Association (APA) had,

in 2013, “fundamentally” altered the first prong of the “longstanding” definition of

intellectual disability. Id. at 732 n.8 (citing the Fifth Edition of the Diagnostic and

Statistical Manual of Mental Disorders (DSM-5)). He observed that the longstanding

definition, which had required “significantly subaverage intellectual functioning,” was

the definition this Court had relied upon in Atkins in 2002. A diagnosis that is

“uniquely” equivalent to another diagnosis today, could be not so “uniquely” equivalent

tomorrow.

This Court should not follow the latest expert trends in determining Eighth

Amendment law. Any analysis under Trop v. Dulles, 356 U.S. 86, 101 (1958), regarding

the “evolving standards of decency” should be limited to consideration of statutes

enacted by elected legislatures rather than the views of unelected and

unrepresentative experts. Miller v. Alabama, 567 U.S. 460, 510-12 (2012) (Alito, J.,

dissenting) (observing that the “evolving standards of decency” test of Trop was

“problematic from the start” but, at least, when it is based on the positions taken by

state legislatures, it may be characterized as a “national consensus’).

12

The state statutes that precluded a death sentence for intellectually disabled

defendants, that were enacted before Atkins was decided, limited the prohibition to a

diagnosis of intellectual disability alone. Atkins, 536 U.S. at 312 (noting that

legislatures of Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana,

Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, North Carolina, South

Dakota, Tennessee, Washington and Congress had enacted statutes prohibiting death

sentences for intellectually disabled defendants). All of those legislative acts limited

the prohibition to intellectual disability and several of those statutes placed the burden

on the defendant to prove his disability at a clear and convincing standard of proof or

even at a beyond a reasonable doubt standard. Ga. Code § 17-7-131(c)(3). None of

those statutes included a diagnosis of FAS. Nor does opposing counsel point to any

current legislation prohibiting a death sentence based on a diagnosis of FAS, much less

to a significant number of state legislatures enacting such legislation, as required of

a proper Trop analysis. There is no national consensus among the legislatures that

capital defendants with FAS should be exempt from execution. United States v. Fell,

2016 WL 11550800, at *4 (D. Vt. Nov. 7, 2016) (noting there were no enactments by

Congress or state legislatures prohibiting the execution of defendants with Fetal

Alcohol Spectrum Disorder (FASD) and that lack of consensus weighed heavily against

creating any such categorical exemption). The Eighth Amendment expansion-of-Atkins

claim fails under a Trop analysis.

This Court recently denied review of this exact same question in a Florida

capital case. Dillbeck v. Florida, 143 S. Ct. 856 (2023) (No. 22-6819). The arguments

being made to this Court in support of this petition are much the same as those made

in the Dillbeck petition.

There is no conflict with this Court’s Eighth Amendment jurisprudence and the

Florida Supreme Court's decision in this case.

13

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) (isting conflict among federal appellate courts and

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

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

this Court’s attention. Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184

n.3 (1987). In the absence of such conflict, certiorari is rarely warranted.

There is no conflict with the federal appellate courts and the Florida Supreme

Court’s decision in this case. The Fifth Circuit has rejected a claim that Atkins should

be expanded from intellectual disability to include Fetal Alcohol Spectrum Disorder

(FASD). Soliz v. Davis, 750 F. App’x 282, 291 (5th Cir. 2018) (noting there was “no

Supreme Court decision barring the execution of people with FASD”); see also Shore

v. Davis, 845 F.3d 627, 634 (5th Cir. 2017) (refusing to expand Atkins to include brain

injury). The Eleventh Circuit has also rejected a claim seeking to expand Atkins based

on a diagnosis of fetal alcohol effects in an unpublished opinion. Kearse v. Sec'y, Fla.

Dep’t of Corr.,2022 WL 3661526 (11th Cir. Aug. 25, 2022), cert. denied, Kearse v. Dixon,

143 §.Ct. 2439 (2028) (No. 22-6868).

Nor is there any conflict with the state courts of last resort. As the Mississippi

Supreme Court recently observed, “no court has ever held” that Fetal Alcohol Spectrum

Disorder (FASD) is the functional equivalent of intellectual disability. Garcia v. State,

356 So.3d 101, 113 (Miss. 2023). Opposing counsel cites to no appellate case—federal

or state—expanding Atkins to any other diagnosis. There is no conflict between the

14

Florida Supreme Court and the other state supreme courts.

There is no conflict between the Florida Supreme Court’s decision and that of

the federal circuit courts or the state courts of last resort. Because there is no conflict

among the lower appellate courts, review of this question should be denied.”

Because there are two independent and adequate state law grounds, as well as

there being no conflict with this Court’s jurisprudence or among the lower appellate

courts, review of this question should be denied.

2 Opposing counsel refers in passing to an equal protection argument in the petition. Pet. at 18,

20-21, 22. But the equal protection aspect of the claim was not properly raised in state court, as required

by Florida’s rules of court. Fla. R. Crim. P. 3.851(e)(1); Fla. R. Crim. P. 3.851(e)(2)(A); Fla. R. Crim. P.

3.851(h)(5)). And the equal protection claim was not addressed by the Florida Supreme Court in its

opinion, Furthermore, the equal protections argument is not properly before this Court either under this

Court’s rules. Sup. Ct. R. 14 (“Only the questions set out in the petition, or fairly included therein, will

be considered by the Court.”). The equal protection issue was not raised as part of the question

presented in the petition filed in this Court. For both reasons, the equal protection argument should not

be considered by this Court.

15

ISSUE II

Whether this Court Should Grant Review of a Decision of the Florida

Supreme Court Rejecting a Claim that the Eighth Amendment Requires

Jury Sentencing in Capital Cases.

Petitioner Zack also seeks review of the Florida Supreme Court’s decision

rejecting a claim that the Eighth Amendment mandates unanimous jury sentencing

in capital cases. Pet. at 28. The Florida Supreme Court found the Eighth Amendment

claim to be both untimely and procedurally barred. Both findings are independent and

adequate state law grounds precluding review in this Court. Furthermore, it is the

Sixth Amendment right-to-a-jury-trial provision that governs the jury’s role in

sentencing, not the Eighth Amendment. As this Court recently explained in McKinney

v. Arizona, 140 S.Ct. 702 (2020), a jury in a capital case is required to find one

aggravating circumstance but a jury is not required to weigh the aggravation against

the mitigation or to make the ultimate sentencing decision. Even viewing the matter

as an Eighth Amendment issue, there is no conflict between this Court’s Eighth

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

Court’s long-standing precedent is that the Eighth Amendment does not require jury

sentencing in capital cases. Spaziano v. Florida, 468 U.S. 447 (1984); Harris v.

Alabama, 513 U.S. 504 (1995). And this Court recently denied review of this same

question in the Florida capital case of Dillbeck v. Florida, 143 S.Ct. 856 (2023) (No.

22-6819). Nor is there any significant conflict between the Florida Supreme Court's

decision in this case and that of the lower appellate courts. Therefore, review of this

question should be denied.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court affirmed the postconviction court’s summary denial

of the claim that the Eighth Amendment requires unanimous jury sentencing in capital

16

cases. Zack v. State, 2023 WL 6152489, at *10-*12 (Fla. Sept. 21, 2023). The Florida

Supreme Court found the Eighth Amendment claim to be untimely. Jd. at *10-*11.

The Florida Supreme Court noted that the claim did not fall within either of the

exceptions in the rule of court regarding timeliness of postconviction claims because

it was not a claim of newly discovered evidence or a claim of a new retroactive

fundamental constitutional right. Id. at *10 (citing Fla. R. Crim. P.3.851(d)(2)(A)—(C)).

The Florida Supreme Court determined that the claim presented “nothing constituting

an exception to the one-year timeframe” of the rule. Jd. at *10.

The Florida Supreme Court also found the Eighth Amendment claim to be

procedurally barred. Zack, 2023 WL 6152489, at *11. The Court noted that any claim

based on Trop v. Dulles, 356 U.S. 86 (1958), or any attack on Spaziano could have been

raised in his direct appeal in 2000, but were not. Jd. at *11. The Florida Supreme

Court also noted that any claim that jury sentencing in capital cases was the norm at

the time of the adoption of the Eighth Amendment in 1791 could have also been raised

in the direct appeal in 2000 as well.

The Florida Supreme Court also concluded that the Eighth Amendment jury

sentencing claim was meritless under its existing precedent of Dillbeck v. State, 357

So.3d 94, 104 (Fla. 2023). Zack, 2023 WL 6152489, at *11. The Court explained that

in Dillbeck, it had noted that this Court rejected this “exact” argument in Spaziano and

that Spaziano was “still good law” on that point. Jd. at *11. The Florida Supreme

Court also relied on its decision in State v. Poole, 297 So.3d 487, 504 (Fla. 2020), which

had explained that both Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 577

U.S. 92 (2016), were Sixth Amendment cases, not Eighth Amendment cases. Id. The

Florida Supreme Court clarified that neither Ring nor Hurst had anything “to do with

jury sentencing” in capital cases. Id. (citing Poole, 297 So.3d at 504 (quoting Ring, 536

US. at 612, (Scalia, J., concurring)). The Florida Supreme Court also relied on Harris

17

v. Alabama, 518 U.S. 504, 515 (1995). Zack, 2023 WL 6152489, at *11. The Florida

Supreme Court stated that it was bound by this Court’s decision in Spaziano and

Harris. Id. at *11. The Florida Supreme Court concluded that the Eighth Amendment

did not require a unanimous jury recommendation of death. Id.

Independent and adequate state law grounds

This Court lacks jurisdiction over cases that do not present federal questions.

28 U.S.C. § 1257; Johnson v. Williams, 568 U.S. 289, 309 (2013) (Scalia, J., concurring)

(noting that 28 U.S.C. § 1257 imposes a federal-question requirement as a condition

of this Court’s appellate jurisdiction). In Michigan v. Long, 463 U.S. 1032 (1983), this

Court explained that it lacks jurisdiction over a case if a state court’s decision rests

upon two grounds: a state law ground and a federal ground, provided the state law

ground is independent and adequate itself. Jd. at 1038, n.4 (quoting Fox Film Corp. v.

Muller, 296 U.S. 207, 210(1935)). Provided the state law is not “interwoven” with

federal law, this Court’s jurisdiction “fails.” Jd. (citing Enter. Irrigation Dist. v. Farmers

Mut. Canal Co., 243U.S8. 157, 164 (1917)); see also Foster v. Chatman, 578 U.S. 488,

497 (2016) (noting that this Court lacks jurisdiction to review a state court judgment

if that judgment rests on state law citing Harris v. Reed, 489 U.S. 255, 260 (1989)).

The Florida Supreme Court found the Eighth Amendment claim to be both

untimely and procedurally barred. Zack, 2023 WL 6152489, at *10-*11. The Florida

Supreme Court was interpreting a Florida rule of court to determine whether the

successive postconviction claim was untimely and to determine whether the claim met

any of the exceptions in that state rule of court. There is no federal constitutional

aspect to such determinations. Neither the determination of untimeliness nor the

determination of being procedurally barred was interwoven with federal constitutional

law. Both of these state law determinations are independent and adequate grounds

18

to deny review.

Opposing counsel asserts that this case is a good vehicle to address the

continuing viability of Spaziano based on the Florida Supreme Court’s statement that

it was bound by this Court’s holding in Spaziano. Pet. at 39; Zack, 2023 WL 6152489,

at *11 (“Because the Supreme Court's Eighth Amendment precedent to which we are

bound does not require a unanimous jury recommendation for death during the penalty

phase, the postconviction court properly found this claim to be meritless”). Opposing

counsel argues that this statement means that there is no independent and adequate

state law grounds involved. But the Florida Supreme Court’s statement explicitly

involved the merits of the claim. The Florida Supreme Court’s statement did not

involve the determinations of timeliness or procedural bars, both of which are

questions of state law. And therefore, this case is actually a poor vehicle.°

The Sixth Amendment, not the Eighth Amendment

The Eighth Amendment prohibits cruel and unusual punishment; it does not

address a jury’s proper role in capital sentencing. The Eighth Amendment does not

speak to what findings a penalty phase jury must make regarding the death sentence.

It is the Sixth Amendment right-to-a-to-jury-trial provision that applies to those types

of issues. As the Nebraska Supreme Court observed, the Eighth Amendment is not

even “pertinent” to the issue of whether a panel of judges may make the ultimate

sentencing decision in a capital case. State v. Trail, 981 N.W.2d 269, 310 (Neb. 2022).

When a specific constitutional provision applies, this Court employs that

3 This case is a poor vehicle for another reason as well. Even if this Court were to overrule

Spaziano and Harris, the new rule requiring jury sentencing in capital cases would not apply

retroactively to Zack. Zack’s sentence became finalin 2000. Any such new rule would not be retroactive

in federal court under Teague v. Lane, 489 U.S. 288 (1989). Edwards v. Vannoy, 141 8.Ct. 1547 (2021)

(abolishing the watershed exception); Schriro v. Summerlin, 542 U.S. 348, 353 (2004) (stating that Ring

vu. Arizona was “properly classified as procedural” and holding Ring was not retroactive).

19

provision rather than a more general or inapplicable provision.* The Sixth

Amendment, not the Eighth Amendment, governs this question.

No conflict with this Court’s jurisprudence

There is no conflict between this Court’s Sixth Amendment or Eighth

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

As a Sixth Amendment claim, it is meritless under this Court’s recent decision

in McKinney v. Arizona, 140 S.Ct. 702 (2020). As this Court recently explained, the

Sixth Amendment right-to-a-jury trial provision only requires jury findings regarding

the aggravating circumstances, not perform the weighing or make the final decision.

This Court stated that capital defendants are entitled to a jury determination of at

least one aggravating circumstance for the defendant to be eligible for a death

sentence. Jd. at 705, 707. But the McKinney Court also explained that defendants are

not constitutionally entitled to a jury determination of weighing or to a jury

determination of the “ultimate sentencing decision.” Id. at 707. This Court stated that

“States that leave the ultimate life-or-death decision to the judge may continue to do

so.” Id. at 708. Neither Ring v. Arizona, 536 U.S. 584 (2002), nor Hurst v. Florida, 577

U.S. 92 (2016), require jury weighing of the aggravation against the mitigation.

McKinney, 140 S.Ct. at 708. Constitutionally, judges, including appellate judges, may

perform the weighing function and may also be ultimate sentencer.

This Court has repeatedly observed that it is aggravators that are elements of

the greater offense of capital murder. Ring, 536 U.S. at 609 (stating that because

* Graham v. Connor, 490 U.S. 386, 395 (1989) (explaining that when a particular constitutional

amendment provides an explicit textual source of constitutional protection against conduct, then that

specific amendment governs); United States v. Lanier, 520 U.S. 259, 272, n.7 (1997) (stating that ifa

claim is covered by a specific constitutional provision, the claim must be analyzed under that specific

provision, not under the rubric of substantive due process); Cty. of Sacramento v. Lewis, 523 U.S. 833,

8438 (1998) (stating that a general constitutional provision applies only if the issue is not covered by a

more specific constitutional provision).

20

aggravating factors “operate as the functional equivalent of an element of a greater

offense” of capital murder, “the Sixth Amendment requires that they be found by a

jury”); Sattazahn v. Pennsylvania, 587 U.S. 101, 111 (2003) @lurality opinion)

(explaining, that “for purposes of the Sixth Amendment’s jury-trial guarantee, the

underlying offense of ‘murder’ is a distinct, lesser included offense of ‘murder plus one

or more aggravating circumstances” which “increases the maximum permissible

sentence to death” and therefore, a jury, and not a judge, must find the existence of any

aggravating circumstances beyond a reasonable doubt). So, because it is the

aggravator that increases the penalty to death, it is only the aggravating factor that

must be found by the jury, under this Court’s Sixth Amendment jurisprudence.

The petition does not cite, acknowledge, or attempt to distinguish McKinney.

Petitions for writ of certiorari that do not account for this Court’s most relevant

decisions do not warrant this Court’s serious consideration.

The Sixth Amendment does not require jury sentencing in capital cases

according to this Court’s recent decision in McKinney. There is no conflict between this

Court’s Sixth Amendment jurisprudence and the Florida Supreme Court’s decision in

this case.

As an Eighth Amendment claim, it is meritless under this Court’s decisions in

Spaziano v. Florida, 468 U.S. 447 (1984), and Harris v. Alabama, 513 U.S. 504 (1998).

In Spaziano, this Court rejected an Eighth Amendment challenge to a judge overriding

a penalty phase jury’s recommendation of a life sentence. Id. at 459-465. This Court

was not persuaded that a judge having the ultimate responsibility to impose a death

sentence in a capital case was “so fundamentally at odds with contemporary standards

of fairness and decency” that Florida must be required to “give final authority to the

jury to make the life-or-death decision.” Jd. at 465. This Court concluded that “there

is no constitutional imperative that a jury have the responsibility of deciding whether

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