Opposition Brief — Hector Sanchez-Torres, Petitioner v. Florida

No. 23-5851

Iu the

Supreme Court of the Anited States

HECTOR SANCHEZ-TORRES,

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

*Amended as to page numbers

ASHLEY Moopy

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 OF FLORIDA

CAPITAL APPEALS

3507 EAST FRONTAGE ROAD, SUITE 200

TAMPA, FL 33607

(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 of relative culpability analysis which

compares the death sentence and role of the capital defendant with the

sentences and roles of the coperpetrators in the particular crime.

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

Supreme Court rejecting a successive postconviction claim of newly

discovered evidence of mitigation related to the coperpetrator.

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED. ......00..ccccccccccsssesssscsssssesseccssecceaceceesessacecsasessasesuauesssessneceeues 1

TABLE OF CONTENTS. .........cccccccccscccssssecesscecessccscsussssuscsssesccascesseseceeeesesessueesenssesaueecs HT

TABLE OF AUTHORITIES ............ccccccccccccessecesssecceesucececcceccsscecessacevstaseessucersasecuseecce iv

OPINION BELOW .........cccccccccsscccssssecesceecssseecessesesssescacssaceuscsssscescecessaseessuceectaseensseeesess 1

JURISDICTION 0... cecccccsssesessscecsssccesseeseseeecsseecenseeesecesssasessssseasscssesscecescecevaeetaneeesens 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........0.....0.....06. 1

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

Facts of the case and procedural history.............cccccscccccessscssssessssceseessnsesseseereees 3

Background facts of the co-perpetrator’s SENteNCeS ....0......ceeeeeeeeseseceeeenseceeeeeees 4

Procedural history of the current state successive postconviction motion........ 6

REASONS FOR DENYING THE WRIT.................ccccccecccccceessceceseesssuesssscssssseescseseseeeeecs 8

QUESTION 1 0.0... ccc cccescsccsceceeesssessscneceecenesssssssaeeseeecescceccecseuesesnseseseseceececsaacasecneaeeseeess 8

Whether this Court Should Grant Review of a Decision of

the Florida Supreme Court Rejecting a Claim of Relative

Culpability Analysis Which Compares the Death Sentence

and Role of the Capital Defendant with the Sentences and

Roles of the Coperpetrators in the Particular Crime.

The Florida Supreme Court’s decision in this case............... eee 9

Solely a matter of state law.............cccccecccssssscsccesssssceceessseessesesens 10

No conflict with this Court’s jurisprudence ..............cccssssseeeceeees 12

No conflict with the lower appellate courts...........cccccccccesseceseeeeee 13

QUESTION ID 00... .cecceceecccccececcecsssssssnnseeeeceecesssnsseeeceeceeceecesecsuseeeeeseeseesenseenesseseettausesessees 18

Whether this Court Should Grant Review of a Decision of

the Florida Supreme Court Rejecting a Successive

Postconviction Claim of Newly Discovered Evidence of

Mitigation Related to the Coperpetrator.

The Florida Supreme Court’s decision in this case...........0...06. 19

il

Solely a matter of state law.........cccccecccsccseseccssceescessecssscsessecseses 20

Threshold issue of the definition of mitigation ................ccccc0006- 21

No conflict with this Court’s jurisprudence ..........c:cccccccessssseeseeee 24

No conflict with the lower appellate courts .......0.....cccccccssesessceneee 26

CONCLUSION oon cecececeneeeesseenesseeeecsesseesssesseseecsecscssucescesuesseesaeeseesaaveaseneaeeaeeaes 28

ili

TABLE OF AUTHORITIES

CASES PAGE(S)

Archer v. State,

293 So. 3d 455 (Pla. 2020) .0...ccccccccsccccsescsssscssssesecsesesacscstussassessssessversetessesecsececcecececes, 10

Baker v. Att’y Gen. of Fla.,

2019 WL 3216850 (11th Cir. Feb. 18, 2019) oo... eceeccescsscsssceececcstsscsessececseceseececceccce. 20

Bargo v. State,

331 So. 3d 653 (Fla. 2021),

cert. denied, Bargo v. Florida, 148 S. Ct. 193 (2022)... .cecccsscccsccccecsccsscsssecseceeccces 10,11

Bowles v. Sec’y, Fla. Dep’t of Corr.,

935 F.3d 1176 (11th Cir. 2019) o.oo. ceccecccsceseescsscsseccsescecsecsestescesseecescseseceeccccs 25

Braxton v. United States,

500 U.S. 844 (1991)... cccceecsesesessccssecseseesecssesascsssssessessssesstssssassestesseceseseeses. 14,26

Bush v. Singletary,

99 F.3d 373 (11th Cir, 1996) oo... ceeeseccescececcsscsecsuesesesesescussesessssescessecesececce. 10,22

Cavazos v. Smith,

B65 U.S. 1 (2011) eee cccccccescessceesssessssssessascssceseesauseutsasssessesessueeseeseseceseseeeeeeseceecccccs 25

Chambers v. Mississippi,

410 U.S. 284 (1978)..cccccsecsssesssessssessusssucssuecsusssuscsuscsssssussstsssstesssupesestisesiceeseceeeeseeeeecccccce 6

Cruz v. State,

2023 WL 4359497 (Fla. July 6, 2028) .0........c.ccccssesessesseesecceeeecccssucuuenseeeceeeeecccs 11

Damren v. Siate,

2023 WL 5968167 (Fla. Sept. 14, 2023) .... 200 ccc cece ee. 20

District Attorney's Office for Third Judicial Dist. v. Osborne,

557 US. 52 (2009) 2... ccc cee e cc ceeneeeece. 24

Eddings v. Oklahoma,

455 U.S. 104 (1982) 2.6. ccc cee eee eee eee eee. 22,

Enmund v. Florida,

458 U.S. 782 (1982) 22. ccc cece eee e bene eeceee cece. 22

Estelle v. McGuire,

502 U.S. 62 (1991) 2. cence cece ebb c eee eeeeeece. 20

Farina v. State,

937 So. 2d 612 (Fla. 2006)... 2. ccc ccc cece cece cece. 10

iv

Foster v. Chatman,

578 U.S. 488 (2O1G).........cccccccccccccccccecceeceeceeceeceesaasaesassaesaeeacasesseaaeeseesaseaeaussaeaeeaeaeenes 10,20

Franklin v. Lynaugh,

ABT U.S. 164 (1988)..........cecssnsceessensecesessnssesecessseneeceeusenseececsesseesecseaeeeesceesneeeecessetesessss 23

Glossip v. Gross,

B76 U.S. 863 (2015)... ccccccccccccescsseseseecccecceauseeeeeeccesecesseeececeeseeseuseeusseeeeeeseesessseneaaa 15

Green v. Sec’y, Dep’t of Corr.,

28 F.4th 1089 (11th Cir. 2022),

cert. denied, Green v. Dixon, 143 S. Ct. 982 (2028) .... cc ccecceccesesseseesteeessteeseecssensenes 20

Gregg v. Georgia,

428 U.S. 158 (1976)... ccccccceccccccssssssesseeccesecssscnecsensceeceeseeeesseesesuaaseeeesesueeenseeeceseseanaeeas 12

Harbison v. Bell,

556 U.S. 180 (2009)........ccccccsccesscesesececesceceenseeeeseaeceseaaeeesecueesceaeeseneeseeneeeeseaneeeennesseeeees 25

Harris v. Reed,

A489 U.S. 255 (1989).......cceccececsssscceesesseceecessseececeessssnescessesneaceeeeseaeeecseseeeetesssaaeesenenss 10,20

Hatch v. Oklahoma,

58 F.3d 1447 (10th Cir. 1995) 0... ecccesssessssnseeceeececeseeeseesenaeeeceeesessecenneeseeeeesneneeees 14

Herb v. Pitcairn,

324 U.S. 117 (1945). cccccccessssneceeceeeeeeeseecuscnnaeeseeseeeaeecsesasaeeaeesasedsaceceuaaneesesssaneeess 20

Herrera v. Collins,

B06 U.S. 890 (1998)... ccccsssssssceeeccecsesssnseeceaasseesceeesecessensaensaeceseseeseessaceeusesenses 24,25

Horsley v. State,

121 So. 3d 1130 (Fla. 5th DCA 2013),

rev. granted, WL 6224657 (Fla. 2018)............ccccsccscccceecesssseesssnceeceeeeeessneaaeeeeseeseesseceeseeees 4

Horsley v. State,

160 So. 3d 393 (Pla. 2015) oc cccceccsssscscceeeeeeessesssanseeseeeeeeeessssessescesecesessessssesesaseereneas 5

House v. Bell,

B47 U.S. 518 (2006)... ceceseessccccscccsesstscessessenssssesesssssssnssesssesensesseceecensgeceeseerseeeeeees 24

Huff v. State,

622 So. 2d 982 (Fla. 1998)... ccceccccscccceeeeceescessssseeseeceesseeeesessseaaeceeeeseesessnsnaeeceusauseuseees 7

In re Hill,

715 F.3d 284 (11th Cir. 2018) oo... cecccccscssceeceecceseseesssssseeaeeeeeseceecseseceeecsccceseessceeseens 25

In re Hull,

777 F.3d 1214 (L1th Cir. 2015)... cceccccnscceccceceesssescecscscsesecesaucsseeceseecessnneness 25

Jimenez v. State,

997 So. 2d 1056 (Fla. 2008) 0.0.0... ccc eeesccccceesscceccesssecescecssscuccavscceceusnseeesenseeeeensnss 19,25

Johnson v. Williams,

B68 U.S. 289 (2018)... ceceenseseceecececeecceccecceeceeseeseeseeceseescessecsucauauceuaesssuaauaacaacs 10,20

Jollie v. State,

A405 So. 2d 418 (Fla. 1981) oo... cece ccc cceceeseeceecceceeuceececcecceesececeseeseeceeseusauceecsceecessauees 4

Jones v. State,

709 So. 2d 512 (Fla. 1998) 0... cccceccecceececeecsecceeceeseeseeeceeeeseccececereeceesecseeseeseeees 7,20,21

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 (2028) oo... ccccccc ccc ccceceesseseeceneeeeeeeues 14,15

Lawrence v. State,

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

cert. denied, Lawrence v. Florida, 142 S. Ct. 188 (2021)... keene 6,9,10,11

Lockett v. Ohio,

438 U.S. 586 (1978)... ccccccccccsscsssnsssceeeesessnsnanseceeeeceeceseanensasaueeeeeeeeeeesesensaeeeess 22,23,24

McCleskey v. Kemp,

481 U.S. 279 (1987)......ccccccccccessessssssecesecescesssseeeseeeeeceeeeesssneuseeeeeeeeeeeeessesees 8,12,13,14,16

McQuiggin v. Perkins,

569 U.S. 883 (2018)... eeccccsccccssessnececsssseceesssseneeecessnseeeeessseasecessuseneeeeeesesseeeesessstessaaees 25

Melton v. State,

367 So. 3d. 1175 (Fla. 2028) 00.0... ceccccccccccssssssscceceececeesessesseeececceecesesessssnncaasesecseesseseeeenses 19

Mendoza v. Sec’y, Fla. Dep’t of Corr.,

659 Fed. Appx. 974 (11th Cir. 2016) 00.0... ccceeccccccecceccesesssssneneeeeeeeeeeeeeesesssnnaeeeeesseceeess 10

Miller v. Alabama,

BO7 U.S. 460 (2012)..........ccccecsssnsceccceccesssssnseseeceeceecessseesuseeceseecessssaaaeseeseeseseseseneeses 4,5,6

Murray v. Giarratano,

A492 U.S. 1 (1989) ooo eeccssseessreeccecesesssanseeceseecceseseessceeeeeseceesssusnseaneeesseseeseesssesesenens 12

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

556 U.S. 1145 (2009)... cee eeeeseseecceecesessnceeceeceeeeeseseneesnseesecceesssessnseaeeaeeseeseeseeseeesseseas 21

Oregon v. Guzek,

546 U.S. 517 (2006 )............ccccccsssscecceceeessssssesceceeseecesssnsensaeseeecetessessessaeaeeseseeeeceessscessnes 23

People v. Cage,

362 P.38d 376 (Cal. 2015)... cccccssssssceeeseseecessserneccceccsceesecessssucssecssesesevesesesesessneaees 16

People v. Sanchez,

906 P.2d 1129 (Cal. 1995)... ecccccccsssssssceeseceecceseessseseeceeceeceusessssssnscseeseeevesseseneees 15

Pulley v. Harris,

AGB U.S. 87 (1984)... cccccessscsenenseeseseesensenseeeeeecesesecessuegeuseateeeneesesssnsnaaeseeeeesens passim

Rhines v. Weber,

544 U.S. 269 (2005)... ccccesssccccesseccesesessceeceuccuceessuecsssussasssssseeecsstsseseesesteceseeeeussesesneaes 3

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

A82 U.S. 182 (1987)........cccccccccccscccesssssccceccessesensscsssscecssevectesesaeeeceeceseesteetenseateaseeess 14,26

Roper v. Simmons,

543 U.S, 551 (2008)... cece ccsesesseecccccevensessessceceescussecessusscsaceccsccessessesstacaceeeceseeesnsacenecens 4

Sanchez v. Davis,

994 F.3d 1129 (9th Cir. 2021) .......ccccesssssseeccesecsenesseseceecescescssesessessenscanesnenae 8,15

Sanchez-Torres v. Sec’y, Fla. Dep’t of Corr.,

3:17-cv-00939-MMH-PDB (M.D. Fla.)...........ccccccecceeeeecseesnseeseceescenecssecssccersesseserssnseseeeees 3

Sanchez-Torres v. State,

130 So. 3d 661 (Fla. 2018),

cert. denied, Sanchez-Torres v. Florida, 571 U.S. 1210 (2014) ....... ccc cceceeeeceeecceeeeeeee 3,9

Sanchez-Torres v. State,

322 So. 3d 15 (Fla. 2020) oo... cceccesesececscneeeceeccceeecesseecesceeucsccsccesessessenceeecsnseeeteeeeetess 3

Sanchez-Torres v. State,

365 So. 3d 1134 (Fla. 2028) 000... ccccscsseesececssseseeecescesceceseeeseecessessesseecensceseceseesens passim

Sawyer v. Whitley,

510]3 8 OMe Masts ts Okc )c)) 25,27

Schlup v. Delo,

513 U.S. 298 (1995)... ce ee ee cence een ee eneaes 25

Shuman v. State,

578 P.2d 1183 (Nev. 1978)... 0... ee ee eee e ene 13

Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942) 2... ce cee eee eee eeees 17

Sliney v. State,

362 So. 3d 186 (Fla. 2023), pet. for cert. filed,

Sliney v. Florida, No. 23-5630 (U.S. Sept. 21, 2023) (No. 23-5630). ........... 19

Strickland v. Washington,

466 U.S. 668 (1984) 2... cee een enn eee nnennes 15

Sumner v. Shuman,

483 U.S. 66 (1987) 0... eee eee eee eee eennees 13

Swafford v. State,

125 So. 3d 760 (Fla. 2018)... cece eee ee en enees 21

vii

Thomas v. State,

110 So. 8d 541 (Fla. Ist DCA 2018) occ i ccccssescscesssseescesseescssseesesracceetseevesssaeeeaues 4

Thomas v. State,

177 So. 38d 1275 (Fla. 2015) ...... cece cccccecccccceccssessssceccesscssesscessncecseeseeseesensseceeaeeesseesters 4,5

Thomas v. State,

135 So. 3d 590 (Fla. Ist DCA 2014) oo. eeccecscceccensesesscsssssscnssausescescesesssstserseeeesesens 4

Thomas v. State,

239 So. 3d 1193 (Fla. Ist DCA 2018) 0.0.0... cccececcesessssnccencceecceccensesessscaceescessenseaes 6

Thomas v. State,

SC14-961 (Fla) 200... eeceesesseesssssesscssssssessnsessssssessecsessecsnccesecasesesseseceeesecseseeseseusessessaens 4

Thompson v. Calderon,

151 F.3d 918 (Oth Cir. 1998) ..........ccccccccccccsccccenssssssccecccseseenseessscceccessessessssessseeaeeveees 25

United States v. Higgs,

358 F.8d 281 (4th Cir. 2008) 0... ccccccccceceeceeceececceceeceecececeeceeceeseeneceneeeentersssessceees 14

United States v. Tsarnaev,

595 U.S. 802 (2022)... ecessesssscsssssnsssrsssssssseesssssecrecssnteceeasssssssssessesseesseseeeseenses 23,26

Walton v. State,

DAG So. 3d 24G (Fla. 2018) ..cccseccsecssesssescssecssccsseessessssesssecssecssessuesssesssssssesssessseesssecesseseses 21

Washingion v. State,

108 So. 3d 917 (Fla. Ist DCA 2012) wo... ccc cccsssscecceccecsessssesnsececceceescesesssessueesecssnenees 4

Whole Woman’s Health v. Jackson,

B95 U.S. 80 (2021)... ccccnssssnesssnenersceesseavenseeseceeceeneeseeceeceeeecessssscseesssssenseasseseccanae 21

Woodson v. North Carolina,

428 U.S. 280 (1976)... ceececcsserescensescreecceceeceeeeeececseceeceeceescessrscssscessssccsecscceststescesers 22

Yacob v. State,

136 So. 3d 539 (Fla. 2014) oo... ccccsessesceeccesseeseeeessssessessseaeeasesesseseserseseerserenees 10,11

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. VIII ............ccccccccssscccscessssssneeeeesessessseaaeceeeeeesceseeseessessneeeseeens passim

U.S. Const. Amend. XIV... cceccccecsereceeeeeessensseneceeeesessssacneaueesesseseesessessssaeeeees passim

Art. I, § 17, Cal. Const. oo... ccccccccccccccccccsesssnsesceseesssssecnecescccccescesacecascausaanaaaacacesecersnennes 16

vill

STATUTES

18 U.S.C. § 3593 (0)... eccsesscsseeessstssssuecssnsessnscssssscsssssssasseasansstsissstssestisesstsessieeeeesecceece. 23

28 U.S.C. § 1257. eecccccsecssesssessensessnessecsssssecssscsssssuseasssassnissssastusssusesseseeeeseecesec. 10,20

28 U.S.C. § 1257 (a) ..seeccescecccsesssessnecesnsesssssssecesesssssessasessssssstssssivessistssesaseesieeeeeeeeecececc 2

28 U.S.C. § 2101) ..seeeseecseecsesssessneesesseesssasecsucsecsssesusssessasesssssisssusssseateseseeseesseeseececcc 2

§ 921.1401(2), Fla. Stat. (2016) 0... ecceecsssscsssssssessssssssesessssssssssssssssascssieeseeeseeeeeeeceeccc 5

RULES

Fla. R. App. P. 9.142(a)(5) .o..sesseeseessessssssessvecsessssssssessesussssussasesssesacsiscsteseveeeeeseesecceccec 10

Sup. Ct. R. 10D)... ccccccsesssseseeseessesesssasessecsscsusssssssssussssssssssestessessuseapeaveeeeeseeseeceececc 14,26

Sup. Ct. R. 13.8. ..cecsccccsesssssssessssssessesssessecsscsssssasssusssuesusssusssasssussisssissatesseeeveesceseecceeeece. 2

Sup. Ct. R. 14.4. occ ecssssssessssssseseesscsssssusssussasesssssusssussssssessasesssuesessesseseeecec 17,27

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Sanchez-Torres v. State, 365

So. 3d 1134 (Fla. 2023) (SC2022-0322).1

JURISDICTION

On March 16, 2023, the Florida Supreme Court affirmed the state postconviction

court’s summary denial of a successive postconviction motion. Sanchez-Torres v. State,

365 So. 3d 1134 (Fla. 2023). On March 31, 2023, Sanchez-Torres, represented by

Capital Collateral Regional Counsel—North (CCRC-N), filed a motion for rehearing in

the Florida Supreme Court. On June 20, 2023, the Florida Supreme Court denied

rehearing. On October 18, 2023, following an extension, Zack, represented by CCRC—

N, 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 Eighth Amendment and the

Fourteenth Amendment.

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

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, the option “Case Search” will appear as the first choice.

Clicking on case search yields several boxes including the “Court” box which includes, in the drop

downs, the “Supreme Court of Florida” as an option. Select the Supreme Court of Florida option.

Then in the next “Case Number” box enter the case number SC2022-0322, which will lead to the full

docket of the case including a link on the right to the briefs filed in the case.

1

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

This petition involves two questions regarding a successive postconviction motion

filed in the state court in a Florida capital case.

Facts of the case and procedural history

In 2008, Sanchez-Torres and the coperpetrator, Markeil Thomas, robbed and

killed Erick Colon as he was walking home from a friend’s house. The victim’s body

was discovered a few hours later, at 1:30 a.m., on the sidewalk with a single gun shot

through the head and his cell phone and wallet were gone. The facts of the case and

the evidence presented at the bench penalty phase are recounted in the Florida

Supreme Court’s direct appeal opinion. Sanchez-Torres v. State, 130 So. 3d 661, 664-

68 (Fla. 2018), cert. denied, Sanchez-Torres v. Florida, 571 U.S. 1210 (2014) (No. 13-

7735). Sanchez-Torres entered a guilty plea and waived a penalty phase jury. Sanchez-

Torres, 130 So. 3d at 664. The Florida Supreme Court affirmed the convictions for

first-degree murder and armed robbery and the sentence of death. Id. at 676. Judge

Skinner presided at the bench penalty phase and at the coperpetrator’s trial and

juvenile resentencings as well.

The Florida Supreme Court affirmed the denial of the initial state postconviction

motion and also denied the state habeas petition. Sanchez-Torres v. State, 322 So.

3d 15 (Fla. 2020).

In August of 2021, Sanchez-Torres, represented by the Capital Habeas Unit

of the Office of the Federal Public Defender of Northern District of Florida (CHU—N),

filed a § 2254 habeas petition in the federal district court. Sanchez-Torres v. Sec’y, Fla.

Dep't of Corr., 3:17-cv-00939-MMH-PDB (M.D. Fla.) (Doc. #31). Since September of

2021, the federal habeas litigation has been stayed in the federal district court

pursuant to Rhines v. Weber, 544 U.S. 269 (2005), pending the outcome of

the successive postconviction litigation in the state courts. (Doc. #39, #47).

Background facts of the coperpetrator’s sentences

The coperpetrator, Markeil D. Thomas, was 17 years old when the murder

occurred on September 10, 2008. Because Thomas was a minor at the time of the

murder, the Kighth Amendment precluded a death sentence for him. Roper v.

Simmons, 543 U.S. 551, 575 (2005) (holding the “death penalty is disproportionate

punishment for offenders under 18...”).

Thomas was charged by indictment with two counts: 1) first-degree murder

by shooting; and 2) armed robbery. Thomas’ jury convicted him as charged but made

a special finding that Thomas “did not actually possess or discharge a firearm.”

Thomas was originally sentenced to life in prison without parole for the first-degree

murder count and to 30 years imprisonment for the armed robbery count.

Thomas appealed his convictions and sentences to the First District Court of

Appeals of Florida. Thomas v. State, 110 So. 3d 541 (Fla. Ist DCA 2013). The First

District affirmed the convictions but reversed and remanded for a resentencing based

on Miller v. Alabama, 567 U.S. 460 (2012). See Thomas, 110 So. 3d at 541 (citing

Washington v. State, 103 So. 3d 917 (Fla. 1st DCA 2012)).

On May 30, 2014, on remand, the trial court conducted a Miller resentencing.

The trial court sentenced Thomas to 40 years for the first-degree murder and 30 years

for the armed robbery. On appeal, the First District affirmed the new sentences.

Thomas v. State, 135 So. 3d 590 (Fla. 1st DCA 2014). The First District, however, cited

Horsley v. State, 121 So. 3d 1130, 1131 (Fla. 5th DCA 2018), rev. granted, 2013 WL

6224657 (Fla. 2013), in its written opinion, which was then pending in the Florida

Supreme Court. Thomas then filed a notice of appeal in the Florida Supreme Court

asserting jurisdiction based on Jollie v. State, 405 So. 2d 418 (Fla. 1981). See Thomas

v. State, SC14-961 (Fla). On September 15, 2015, the Florida Supreme Court quashed

the First District’s opinion and remanded Thomas’ case for another juvenile

resentencing relying on its decision in Horsley v. State, 160 So. 3d 393, 395 (Fla. 2015)

4

(applying the new statute governing sentencing hearings for juveniles being considered

for life sentences, § 921.1401(2), Florida Statutes, to all cases involving juvenile Miller

resentencings). See Thomas v. State, 177 So. 3d 1275 (Fla. 2015).

On remand, at the second juvenile resentencing, the State filed a memorandum

of law addressing the statutory factors of § 921.1401(2), Florida Statutes (2016). (T.

1685-1695).2 In the memorandum, the State noted that Thomas admitted to

committing perjury by signing a sworn statement claiming to be the actual triggerman

which Thomas had recanted. (T. 1686). The defense also filed a memorandum of law

addressing the juvenile sentencing statutory factors. (1696-1703). The defense

memorandum quoted the judge as saying that if Thomas had gone to the police the

next day, right after the murder, the chances were Thomas would have been a witness

rather than a defendant. (T. 1696-97).

On September 9 and 26, 2016, the state trial court conducted the second Miller

resentencing. On September 26, 2016, the trial court entered a written sentencing

order noting the jury determined that Thomas “was not the shooter.” (T. 1704-1712,

1708). The sentencing order also noted that Thomas had made a statement that he

was the shooter, thinking it would help his friend Sanchez-Torres, but had since

recanted that statement. (T. 1710). The trial court concluded that a life sentence

“would not be an appropriate sentence” because Thomas “did not actually kill Colon”

and was not “a major participant” in the murder. (T. 1711). The trial court noted, that

pursuant to § 921.1402(2)(c), Florida Statutes, Thomas was “entitled to review of his

sentence after fifteen years of incarceration.” (T. 1712). The trial court sentenced

Thomas to 40 years incarceration on Count 1 with review after 15 years and to 30

years incarceration on Count 2. (T. 2038-2049).

On February 5, 2018, the First District affirmed Thomas’ sentences from the

2 The record cites in this section are to the record on appeal of the second resentencing in the First

District Court of Appeal of Florida. Thomas v. State, 1D16-4774.

5

second resentencing. Thomas v. State, 239 So. 3d 1193 (Fla. lst DCA 2018)

(1D16-4774). The First District issued the mandate on February 26, 2018.

Earlier, on March 26, 2015, Thomas had confessed to being the shooter in a

sworn statement taken by his postconviction attorney. (Pet. at App. C). Thomas’s sworn

statement, along with the forensic psychological report and facts regarding Thomas’

prior bad acts, were known from his 2016 resentencing. Thomas recanted his

statement regarding being the actual shooter before the second resentencing in 2016.

Procedural history of the current state successive postconviction motion

On November 24, 2020, Sanchez-Torres, represented by CCRC-_N, filed a first

successive rule 3.851 postconviction motion in the state trial court. (2022 Succ. PCA

7-154). The successive postconviction motion raised two claims: 1) a claim of newly

discovered evidence of relative culpability based on the juvenile coperpetrator’s

resentencing due to Miller v. Alabama, 567 U.S. 460 (2012); and 2) a claim that the

Eighth Amendment requires relative culpability analysis among coperpetrators.

On December 14, 2020, the State filed an answer to the state successive

postconviction motion asserting the claims were untimely and should be summarily

denied. (2022 Succ. PCA 171-196). The State also argued that relative culpability

analysis was precluded by the Florida Supreme Court’s precedent of Lawrence v. State,

308 So. 3d 544 (Fla. 2020), cert. denied, Lawrence v. Florida, 142 S. Ct. 188 (2021)

(No. 20-8341). The State also asserted that the coperpetrator’s sentence was not

relevant or admissible to the defendant’s sentence. The State additionally argued

that the coperpetrator’s recanted confession to being the triggerman was

inadmissible under Chambers v. Mississippi, 410 U.S. 284 (1973), due to its

unreliability. Coperpetrator Thomas “confessed” to being the triggerman after he

was sentenced to life but then he recanted that confession once he was granted a

juvenile resentencing where his previous confession could hurt his prospects of a

lesser sentence. Alternatively, the State argued, even if the coperpetrator’s recanted

confession would be admissible at a new penalty phase, the recanted confession

would not be likely to result in a life sentence, as required by Jones v. State, 709 So.

2d 512, 521 (Fla. 1998), in light of Sanchez-Torres’ criminal history. Sanchez-Torres

had a prior conviction for murder that he committed a couple of months before this

murder which was used to establish the prior violent felony aggravating factor in the

capital case. Sanchez-Torres was a recidivist murderer; coperpetrator Thomas, on

the other hand, had no prior criminal history.

On January 13, 2021, the trial court summarily denied the successive

postconviction motion. (2022 Succ. PCA 203-279). On January 26, 2021, CCRC-N

filed an unopposed motion for rehearing in the state trial court which pointed out

that the trial court had denied the postconviction motion without conducting a case

management conference, as required by Florida Rule of Criminal Procedure

3.851(f)(5)(B), commonly referred to as a Huff hearing. Huff v. State, 622 So. 2d 982

(Fla. 1993). Nearly a year later, on January 5, 2022, the trial court conducted a case

management conference. On February 13, 2022, the trial court again summarily

denied the successive postconviction motion. (2022 Succ. PCA 456-535).

On appeal to the Florida Supreme Court, the court affirmed the summary denial

of the successive postconviction motion on the merits. Sanchez-Torres v. State, 365

So. 8d 1134 (Fla. 2023).

On October 18, 2023, Sanchez-Torres, represented by CCRC-N, filed a petition

for a writ of certiorari in this Court raising two questions.

REASONS FOR DENYING THE WRIT

QUESTION I

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

Supreme Court Rejecting a Claim of Relative Culpability Analysis

Which Compares the Death Sentence and Role of the Capital Defendant

with the Sentences and Roles of the Coperpetrators in the Particular

Crime.

Petitioner Sanchez-Torres seeks review of the Florida Supreme Court’s decision

rejecting his claim of relative culpability. Pet. at 14. Sanchez-Torres asserts that the

Eighth Amendment requires his death sentence be vacated because his juvenile

coperpetrator received a lesser sentence despite his assertion that the coperpetrator

had a greater role in the murder. He claims the coperpetrator was the actual

triggerman based on the coperpetrator’s confession, which the coperpetrator later

recanted. But the Florida Supreme Court’s decision rejecting the claim of relative

culpability is solely a matter of state law. Furthermore, there is no conflict between

this Court’s Eighth Amendment jurisprudence and the Florida Supreme Court’s

rejection of the relative culpability claim. Neither proportionality review nor its

related concept of relative culpability analysis is required by the Eighth Amendment

under this Court’s precedent of Pulley v. Harris, 465 U.S. 37 (1984). There certainly

is no conflict with this Court’s decisions in Pulley v. Harris or McCleskey v. Kemp, 481

U.S. 279 (1987). And there is also no conflict between the lower appellate courts and

the Florida Supreme Court’s decision in this case. The federal courts follow Pulley

v. Harris. Indeed, the Ninth Circuit recently rejected a relative culpability claim

relying on Pulley v. Harris, characterizing the claim of relative culpability as being

one of “intra-case proportionality review.” Sanchez v. Davis, 994 F.3d 1129, 1151-52

(9th Cir. 2021). Petitioner cites to no appellate case—federal or state—in the petition

holding that relative culpability analysis is required as a matter of federal

constitutional law. Review of this state law question should be denied.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court rejected the successive postconviction claim of

relative culpability. Sanchez-Torres v. State, 365 So. 3d 1134, 1186 (Fla. 2023).

Sanchez-Torres confessed to the murder but offered inconsistent statements as to who

fired the fatal shot. Jd. at 1135. The state supreme court noted that the juvenile

coperpetrator, Thomas, was a “minor at the time of the murder and therefore ineligible

for the death penalty.” Id. The juvenile coperpetrator “was originally sentenced to life

without parole but, following changes to juvenile sentencing law, was resentenced

to a term of years with periodic review.” Id. The Court declined to address the issue

of the timeliness of the relative culpability claim and instead addressed the claim on

the merits. Jd. at 1135-36. The Florida Supreme Court also declined to address the

issue of whether their prior holding in Lawrence v. State, 308 So. 3d 544 (Fla. 2020),

cert. denied, Lawrence v. Florida, 142 S. Ct. 188 (2021), which had abolished

proportionality review of capital cases in Florida, included claims of relative

culpability. Jd. at 1136 (“We do not need to resolve how far Lawrence extends because

we have long held that relative culpability analysis does not apply when a

coperpetrator is legally ineligible for the death penalty” citing Sanchez-Torres, 130

So. 3d at 675, n.5).

The Florida Supreme Court explained that Sanchez-Torres was asserting that

his death sentence was not proportionate to the juvenile coperperator’s 40-year

sentence based on the coperperator’s recanted confession to being the actual

triggerman, the coperperator’s prior violent fight, and the coperperator’s diagnosis

of antisocial personality disorder. Sanchez-Torres, 365 So. 3d at 1136. The state

supreme court rejected the relative culpability claim on the merits explaining

that their traditional relative culpability analysis does not apply “when a

coperpetrator is legally ineligible for the death penalty, including because of his

age.” Id. (citing Sanchez-Torres, 130 So. 3d at 675 n.5; Bargo v. State, 331 So. 3d

9

653, 665 n.6 (Fla. 2021), cert. denied, Bargo v. Florida, 143 S. Ct. 198 (2022); Archer

uv. State, 293 So. 3d 455, 457 (Fla. 2020); and Farina v. State, 937 So. 2d 612, 619 (Fla.

2006)). The Florida Supreme Court affirmed the state trial court’s summary denial

of the successive postconviction motion. Id. at 1136.

Solely a matter of 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 (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). This Court lacks jurisdiction to review a state

court judgment if that judgment rests solely on state law. Foster v. Chatman, 578 U.S.

488, 497 (2016) (citing Harris v. Reed, 489 U.S. 255, 260 (1989)).

Relative culpability analysis among coperpetrators is purely a matter of state

law. Bush v. Singletary, 99 F.3d 373, 375 (11th Cir. 1996) (explaining that

proportionality review is not required by the federal constitution “only by Florida law”);

Mendoza v. Sec’y, Fla. Dep’t of Corr., 659 Fed. Appx. 974, 981 & n.3 (11th Cir. 2016)

(explaining that there is no federal constitutional right to proportionality review;

rather, Florida’s proportionality review was a matter of state law). The Florida

Supreme Court’s self-imposed requirement of both proportionality review and relative

culpability analysis was based on their prior caselaw and a state rule of court.

Lawrence v. State, 308 So. 3d 544, 548 (Fla. 2020) (referring to their precedent as “our

state-law precedent requiring comparative proportionality review” as arising from their

prior reading of Florida’s death penalty statute, and their prior reading of two

provisions of the state constitution in Yacob v. State, 136 So. 3d 539, 546-49 (Fla.

2014)), cert. denied, Lawrence v. Florida, 142 S. Ct. 188 (2021) (No. 20-8341); Fla.

R. App. P. 9.142(a)(5) (providing that the Court shall review proportionality on

direct appeal whether or not the issue is presented by the parties). In Lawrence, the

Florida Supreme Court overruled Yacob, however, and held the state constitution’s

10

conformity clause regarding the Eighth Amendment prohibits proportionality

review relying on this Court’s decision in Pulley v. Harris, 465 U.S. 37 (1984). The

Florida Supreme Court in the wake of Lawrence, however, left open the issue of

whether relative culpability was also abolished by that decision, including in this

case. Bargo v. State, 331 So. 3d 653, 665 (Fla. 2021) (stating that the Court “need

not decide” whether ‘relative culpability’ analysis survived Lawrence because the

claim failed under the Court’s pre-Lawrence caselaw), cert. denied, Bargo v. Florida,

143 S. Ct. 193 (2022). Relative culpability analysis is purely an issue of state law.?

’ The Florida Supreme Court recently addressed the question left open after

Lawrence. The Florida Supreme Court, a few months after deciding this case,

abolished relative culpability analysis, as being a “corollary of our obsolete

comparative proportionality review.” Cruz v. State, 2023 WL 4359497 (Fla. July 6,

2023). Pet. at 20. This case highlights the flaws in Florida’s traditional relative

culpability analysis, which only considered the respective roles of the

coperpetrators, identified by the Florida Supreme Court in Cruz. Cruz, 2023 WL

4359497 at *5 (noting that one reason for imposing different sentences on

codefendants who appear to share equal culpability is the mitigation, or lack of

mitigation, applicable to each codefendant). Sanchez-Torres had a prior conviction

for another murder whereas the coperpetrator did not have a prior criminal record.

So, Sanchez-Torres had significant additional aggravation that coperpetrator

Thomas lacked. But the Florida Supreme Court would not have considered those

facts in its traditional relative culpability analysis. Florida’s traditional relative

culpability analysis would have only considered the coperpetrators’ roles in the

murder, not any of their differences in aggravation or mitigation. It would be, in

the Florida Supreme Court’s own words, a “farce” to consider Sanchez-Torres and

coperpetrator Thomas to be entitled to the same sentence when Sanchez-Torres is

a recidivist murderer. Jd. at *5 (explaining it would be a “farce” to consider two

coperpetrators to be equally culpable, if one perpetrator had only a single

aggravator that applied to him but the other perpetrator had numerous

aggravators that applied to him, even if they had equal roles in a murder).

In the wake of Cruz, current Florida law regarding proportionality review and

relative culpability analysis is now coextensive with this Court’s Highth

Amendment law. Neither proportionality review nor relative culpability analysis

are recognized as valid claims in either Florida state courts or federal habeas courts.

But the first question in this petition remains solely a matter of state law because

this case was decided before Cruz. Pet. at 20.

11

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. Sup. Ct. R. 10(c) (listing conflict with

this Court as a consideration in the decision to grant review). There certainly is no

conflict with either Pulley v. Harris, 465 U.S. 37 (1984), or McCleskey v. Kemp, 481

U.S. 279 (1987).

In Pulley v. Harris, this Court concluded that the Ninth Circuit had erred in

holding that Gregg v. Georgia, 428 U.S. 153 (1976), required proportionality review

of death sentences. Harris, 465 U.S. at 46. This Court stated that there was “no basis

in our cases for holding that comparative proportionality review by an appellate court

is required in every case in which the death penalty is imposed and the defendant

requests it.” [d. at 50-51. This Court explained that proportionality review is not a

constitutional necessity but instead is simply an “additional safeguard against

arbitrarily imposed death sentences.” Id. at 50; see also Murray v. Giarratano, 492 U.S.

1, 9 (1989) (noting this Court has “declined to hold that the Eighth Amendment

required appellate courts to perform proportionality review of death sentences” citing

Pulley v. Harris).

And, in McCleskey, this Court again stated that “where the statutory procedures

adequately channel the sentencer’s discretion, such proportionality review is not

constitutionally required.” McCleskey, 481 U.S. at 306. This Court stated that a capital

defendant cannot “prove a constitutional violation by demonstrating that other

defendants who may be similarly situated did not receive the death penalty.” Jd. at

306-07.

Relative culpability analysis is merely a subset of general proportionality

review. Instead of comparing the death sentence of a particular capital defendant to

the death sentences of all the other capital defendants within the jurisdiction, as

proportionality review does, relative culpability analysis looks at the respective

12

sentences of the perpetrators involved in that one particular crime. One is “inter-case”

proportionality review and the other is “intra-case” proportionality review. But both

are types of comparative proportionality review performed in capital cases. There

certainly is no conflict with this Court’s decisions in Pulley v. Harris or McCleskey.

The petition does not acknowledge or attempt to distinguish Pulley v. Harris

or McCleskey. Petitions for writs of certiorari that do not account for this Court’s

existing caselaw in an area do not warrant this Court’s serious consideration.

Instead, the petition improperly relies on Sumner v. Shuman, 483 U.S. 66

(1987). Pet. at 19. In Shuman, this Court noted that it “has recognized time and again

that the level of criminal responsibility of a person convicted of murder may vary

according to the extent of that individual’s participation in the crime.” Shuman, 483

U.S. at 79. This Court observed that whether the defendant was the primary force

in that incident or a nontriggerman would be relevant to his sentence. Id. at 87. At

no point did this Court compare Shuman’s role to that of any other persons. Indeed,

there were no coperpetrators involved the murder. Jd. at 79, n.7. Shuman alone

burned the victim to death. Jd. at 79, n.7 (citing Shuman v. State, 578 P.2d 1183,

1184 (Nev. 1978)). Shuman certainly did not overrule Pulley v. Harris. Indeed,

Pulley v. Harris was not cited even in passing in the Shuman opinion. Shuman has

nothing to say regarding whether the Eighth Amendment requires relative

culpability analysis in every capital case with multiple perpetrators.

There is no conflict with this Court’s jurisprudence holding general

proportionality review is not required and the Florida Supreme Court’s decision in this

case regarding relative culpability analysis.

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

13

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. 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 federal circuit courts, of course, follow Pulley v.

Harris and McCleskey. See e.g., Hatch v. Oklahoma, 58 F.3d 1447, 1466-67 (10th Cir.

1995) (holding that the Eighth Amendment does not require coperpetrators’ sentences

to be proportional citing Pulley v. Harris and McCleskey); United States v. Higgs, 353

F.3d 281, 327 (4th Cir. 2003) (rejecting, in an appeal of a Federal Death Penalty Act

prosecution, a claim of relative culpability where the co-perpetrator, who was the

actual triggerman, received a life sentence); Kearse v. Sec'y, Fla. Dep’t of Corr., 2022

WL 3661526, at *28 (11th Cir. Aug. 25, 2022) (rejecting a proportionality claim because

the Supreme Court has never held that the “death penalty was not a proportional

punishment” for an adult defendant who, during a traffic stop, takes a police officer’s

gun and shoots him thirteen times), cert. denied, Kearse v. Dixon, 148 S. Ct. 2439

(2023); but see Kearse, 2022 WL 3661526, at 28 (Wilson, J., dissenting) (advocating that

the death sentence be vacated in federal habeas review in a single perpetrator case

based on a misreading of Pulley v. Harris, despite this Court’s repeated statements

that capital punishment is proportional for the crime of first-degree murder, such

as in Glossip v. Gross, 576 U.S. 863, 869 (2015) (“it is settled that capital punishment

14

is constitutional”)).4

The Ninth Circuit recently rejected an argument that the Eighth Amendment

required relative culpability analysis, which the panel characterized as “intra-case

proportionality review.” Sanchez v. Davis, 994 F.3d 1129, 1151-1152 (9th Cir. 2021).

Sanchez argued that the Eighth Amendment required his death sentence be vacated

where one of the coperpetrators received a 25-year sentence and the charges were

dropped altogether against another coperpetrator. Sanchez, 994 F.3d at 1151. He

argued that his role in two of the three murders was less than that of the coperpetrator

against whom the charges were dropped. The California Supreme Court had denied

the claim on direct appeal determining that the Eighth Amendment did not require an

intra-case comparison of a defendant’s sentence with the coperpetrators, whether

charged or uncharged. Id. (citing People v. Sanchez, 906 P.2d 1129, 1188 (Cal. 1995)).

The federal district court denied habeas relief as being foreclosed by Pulley v. Harris.

On appeal, Sanchez argued that Pulley v. Harris did not control because he was

making a claim for “intra-case proportionality” review which compares the sentences

of coperpetrators in the same case rather than a claim for “inter-case proportionality”

review which compares the sentences of similarly situated capital defendants in other

capital cases. The Ninth Circuit affirmed the denial of habeas relief relying on Pulley

v. Harris and McCleskey v. Kemp noting that this Court’s precedent does not draw any

distinction between ‘“intra-case proportionality review” and “inter-case

proportionality review.” Id. at 1152.

Petitioner cites no federal circuit court case in the petition even hinting, much

4 Kearse did not raise the proportionality claim in the petition for writ of certiorari

that he filed in this Court, despite Judge Wilson’s dissent regarding proportionality.

Kearse v. Dixon, 143 8. Ct. 2489 (2023) (No. 22-6868). Instead, the petition only

raised a claim of ineffective assistance of trial counsel at the penalty phase under

Strickland v. Washington, 466 U.S. 668 (1984), even though Judge Wilson concurred

regarding that issue.

15

less holding, that relative culpability analysis among coperpetrators is

constitutionally required by the Eighth Amendment.

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

case and any decision of any other state supreme court. The state supreme courts that

require proportionality review, including review of coperpetrator’s sentences, do so

as required by a state statute or as a matter of state caselaw. See e.g., People v. Cage,

362 P.3d 376, 405 (Cal. 2015) (stating that while “intercase proportionality review

is not required by the due process, equal protection, fair trial, or cruel and unusual

punishment clauses of the federal Constitution, intra-case proportionality review is

required by the California Constitution upon request citing state cases and Art. I, §

17 of the Cal. Const.). While many state supreme courts conduct proportionality

review of all the capital cases within their jurisdiction, as well as relative culpability

analysis of coperpetrators’ sentences, those state courts do so as a matter of their

respective state law, not as a matter of Eighth Amendment law. Petitioner cites no

case from any state court of last resort in the petition that requires relative

culpability analysis as a matter of federal constitutional law.

Furthermore, the questions presented do not match the questions raised in the

body of the petition. The first question presented does not use the terms such as

“proportionate,” “disproportionate,” “relative culpability”, or any synonym of any of

those terms but later in the petition, the question presented becomes whether the

“disproportionate sentence” of a coperpetrator violates the Eighth Amendment.

Compare Pet. ati with Pet. at 14. The first question also refers to equal protection but

the argument in the body of the petition contains only one passing reference to equal

protection supported by a single citation without any further discussion. Compare Pet.

at i with Pet. at 16 (citing Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541

(1942)). The lack of accuracy regarding the question presented and the lack of clarity

in the petition is an additional reason to deny review of the question. Sup. Ct. R. 14.4.

16

(providing a petitioner’s failure to set out the essential points with accuracy and clarity

is an independent reason to deny certiorari).

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

any federal circuit court of appeals or that of any state court of last resort. Because

there is no conflict among the lower appellate courts, review should be denied.

Because the question of relative culpability analysis is a matter of state law

only, as well as there being no conflict with this Court’s jurisprudence or among the

lower appellate courts and the Florida Supreme Court’s decision in this case, review

of this question should be denied.

17

QUESTION II

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

Supreme Court Rejecting a Successive Postconviction Claim of Newly

Discovered Evidence of Mitigation Relating to the Coperpetrator.

Petitioner Sanchez-Torres seeks review of the Florida Supreme Court’s decision

rejecting a successive postconviction claim of newly discovered evidence of mitigation

related to the juvenile coperpetrator. Pet. at 21. At the juvenile coperpetrator’s

resentencing, information regarding the coperpetrator’s diagnosis of antisocial

personality disorder, his prior bad act of being in a brass-knuckle fight, and the fact

that he had previously confessed to being the triggerman, which he later recanted,

came to light. Sanchez-Torres asserted that the new information regarding the

coperpetrator’s background as well as the coperpetrator’s lesser sentence was newly

discovered evidence of mitigation of his own death sentence. But a claim of newly

discovered evidence of mitigation is solely a matter of state law. There is no federal

constitutional provision that requires a state to reconsider a defendant’s death

sentence based on new information regarding the coperpetrator that comes to light

many years later. And the second question presented in the petition raises a threshold

issue regarding whether a coperpetrator’s lesser sentence, recantation, juvenile offense,

or mental diagnosis can even be considered as mitigation under the constitutional

definition of mitigation. Mitigation is traditionally defined as the background and

characteristics of the defendant himself, not the background and characteristics of

another person, such as a coperpetrator. And the traditional definition of mitigation

does not include sentences imposed on other defendants. Moreover, there is no conflict

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

rejecting this claim of newly discovered evidence. This Court does not currently

recognize claims of newly discovered evidence of innocence, much less claims of newly

discovered evidence of innocence of the death penalty, and certainly not claims of newly

discovered evidence of mitigation. Nor is there any conflict between the Florida

18

Supreme Court’s decision in this case and that of the lower appellate courts. Therefore,

review of this question of state law should be denied.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court rejected the successive postconviction claim of newly

discovered evidence of mitigation. Sanchez-Torres v. State, 365 So. 3d 1134, 1136

(Fla. 2023). Again, the Florida Supreme Court declined to address the issue of the

timeliness of the claim and instead addressed the claim on the merits, despite the state

trial court finding that the claim was untimely. Jd. at 1135-36. The Florida Supreme

Court rejected the claim because the sentencing court had not based Sanchez-Torres’

death sentence on his triggerman status but on other factors including Sanchez-

Torres’ prior conviction for another murder. Jd. at 1136. The Florida Supreme Court

affirmed the state trial court’s summary denial of the successive postconviction

motion. /d. at 1136.5

5While the Florida Supreme Court declined to address the timeliness of this claim

of newly discovered evidence, the state postconviction court found the claim was

untimely. Sanchez-Torres, 365 So. 3d at 1135 (noting that the state postconviction

court had “concluded that the motion was untimely because the information was not,

in fact, newly discovered evidence”). Thomas’ “confession” regarding possessing the

gun and shooting the victim was given in 2015, and his juvenile resentencing

occurred on September 9, 2016, where this new evidence regarding his diagnosis,

the brass-knuckle fight as a juvenile, and the recantation of his prior confession to

being the triggerman came to light. But the successive postconviction motion raising

this claim of newly discovered evidence of mitigation was not filed in the state trial

court until November 24, 2020, which was five years after the “confession” and over

four years after the 2016 juvenile resentencing. Under Florida law, all claims of

newly discovered evidence must be filed within one year of the discovery of the new

evidence that is the basis of the claim. Jimenez v. State, 997 So. 2d 1056 (Fla. 2008)

(holding any claim of newly discovered evidence must be brought within one year of

the date the new evidence is discoverable with diligence). The Florida Supreme

Court routinely enforces this timely filing requirement. See e.g., Melton v. State,

367 So. 3d 1175, 1176-77 (Fla. 20238) (concluding that a successive postconviction claim

of newly discovered evidence was untimely because it was not filed within one year

citing Jimenez); Sliney v. State, 362 So. 3d 186 (Fla. 2023) (concluding that a

successive postconviction claim of newly discovered evidence was untimely because

19

Solely a matter of 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 (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). 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)).

The entire concept of newly discovered evidence is solely a matter of state law.

Green v. Sec’y, Dep't of Corr., 28 F.4th 1089, 1148 (11th Cir. 2022) (concluding a claim

of newly discovered evidence was a “pure state law claim” that was not cognizable

in federal habeas), cert. denied, Green v. Dixon, 143 S. Ct. 982 (2023) (No. 22-686);

Baker v. Att’y Gen. of Fla., 2019 WL 3216850, at *1 (11th Cir. Feb. 13, 2019) (stating

that a postconviction claim of newly discovered evidence “is not cognizable in a §

2254 proceeding” because a federal habeas court “may not reexamine state court

determinations on issues of state law” citing Estelle v. McGuire, 502 U.S. 62, 67-68

(1991)).

The test for claims of newly discovered evidence in Florida was established

in Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). A claim of newly discovered

it was not filed within one year citing Jimenez)), pet. for cert. filed, Sliney v. Florida,

No. 23-5630 (U.S. Sept. 21, 2023) (No. 23-5630).

If this Court remanded this case to the Florida Supreme Court, the Florida Supreme

Court would ultimately just agree with the state trial court that the claim of newly

discovered evidence of mitigation was untimely. Sanchez-Torres would not be

granted any relief by the state courts regardless of this Court’s decision regarding

this question. Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945) (stating this Court’s

power is the power “to correct wrong judgments, not to revise opinions” and

explaining if the same judgment would be rendered by the state court after we

corrected its views of federal laws, our review would be nothing more than an

advisory opinion). The issue of the untimeliness of this claim under state law is yet

another reason for this Court to deny review of the second question.

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