Opposition Brief — Antonio Lebaron Melton, Petitioner v. Florida

CAPITAL CASE

No. 23-6046

In the

Supreme Court of the Anited States

ANTONIO LEBARON MELTON, 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

ASHLEY MoobDYy

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 successive postconviction claim that Roper v.

Stmmons, 543 U.S. 551 (2005), which prohibits the execution of minors,

should be expanded to include capital defendants who are 18 years and

25 days old on the day of the crime.

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

Supreme Court rejecting an untimely successive postconviction claim of

newly discovered evidence of mitigation based on a new scientific

consensus that the human brain does not fully develop until a person is,

at least, 21 years old.

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED (00... cece eccccceceeseeeeseeeseseeeeeenseesseeeseecssceesaueeesueeessessesessaase i

TABLE OF CONTENTS. ...000.....ccccccccscecesncceeeseseeeseeneceseacecesueeceneeeceseeeesneeeeseseeeeeneneeseanes ii

TABLE OF AUTHORITIES ..000......cceccccccceecceseseeeeecececeeneeseneeeceneesessaesessaeeeesenaueetsasesesaaees iv

OPINION BELOW ....00......ccccccesccecesneeeeesenecessenecessuaeecenaeecsoneessnesesteeeesseaeeessenneeseneesseeereas 1

JURISDICTION .00....ccecccccccesccesseecescseeeeeseeeeeseaeeeeceaceescaaesesaeesenaeseeusneeeseaaeeseeeeeesestsesesaaes 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................c000 1

STATEMENT OF THE CASE AND PROCEDURAL HISTORY ...........ceeeeeceeeeees 2

Facts of the Case ...........ccccscccesssceeceeccecennceeceeeeeeeeeeeseaesesseaeeeeaaeseeaeeseessaaseenesessnneees 2

Procedural HIStory ...........cccccsccccccceseecccnceececeusesececeueussesseeueeseueeeseaeeeessseererensensases 2

Federal habeas review ........::cccccccecceeeeeeeessesesseeneecesessssneeeeseeeeesesnssaasauaeeaaanessseasenees 4

Procedural history of the current state successive postconviction motion........ 5

REASONS FOR DENYING THE WRIT........0.....cccccesccecesceeeseeeeeseeeeessaceeseesaeeeseneenneereees 8

QUESTION 1 ooo... ceccccccceccccccessseceesseneeeseneeesessaeseesaceeseaseeseceeseaneeesacerseaeeseesneeeenteeteneeeeenes 8

Whether this Court Should Grant Review of a Decision of

the Florida Supreme Court Rejecting Successive

Postconviction Claim that Roper v. Simmons, 548 U.S. 551

(2005), which Prohibits the Execution of Minors, should be

Expanded to Include Capital Defendants who are 18 Years

and 25 Days Old on the Day of the Crime.

The Florida Supreme Court’s decision in this CaSe.............:.ccceeee 9

Matter of state law ...........ecccceseeeesseceeeseeeeenesseaeeeeensnaneeesensteneesaeness 10

No conflict with this Court’s jurisprudence.................csecesesseeeeees 10

No conflict with the lower appellate courts.................ccccceeseeeeeees 12

QUESTION ID ou... ccccccceesceesscecsneceseeecessceesnecesaeeeeaaeceaeeeseesessesuseeneesnseeeseeseseneeesseesnengeess 15

Whether this Court Should Grant Review of a Decision of

the Florida Supreme Court Rejecting an Untimely

Successive Postconviction Claim of Newly Discovered

Evidence of Mitigation Based on a New Scientific Consensus

ii

that the Human Brain does not Fully Develop until a

Person is, at Least, 21 Years Old.

CONCLUSION

The Florida Supreme Court's decision in this case..............0000. 15

Solely a matter of state law..........cccccccccccccccccccececeececeenceeeeessennansers 17

No conflict with this Court’s jurisprudence................c:00seceseseeees 19

No conflict with the lower appellate courts..............ccccseeeseees 22

24

ili

TABLE OF AUTHORITIES

CASES PAGE(S)

Adarand Constructors, Incorporated v. Mineta,

5384 U.S, 108 (2001)... eeecssesessesceececeesessscecssceececeecesnsaceceesecceeucessssnseaeeatessetsesnssaecsass 9

Asay v. State,

210 So.3d 1 (Fla. 2016) 00... cece cccssssscecceesescesssnsneeeececcssssneeeeeeeeseeceeesseeesneeaeeseesecssnseaeaues 6

Atkins v. Virginia,

586 U.S. 804 (2002)... cccccccssssssescececessssssssneccececcesesesueeseesceeeesesesensaaaaseeceeeensagensess 11

Babcock v. Kijakazt,

B95 U.S. 77 (2022)... ccccsssssssecceeceeecesssssnscaceeceececesssesseacececesessueusescnsuseeececesessssnesseeeeees 9

Baker v. Att’y Gen. of Fla., -

2019 WL 3216850 (11th Cir. Feb. 13, 2019) .........ccecccscccsssssececeeeeesneeceeesssseeeeceseecesees 18

Banister v. Davis,

140 S. Ct. 1698 (2020)... cc cccccccsssssssseeeeeccecesueessnseeceeseeessssnnncececeseeseesesseeuaeeeteseesnauees 21

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

794 F.8d 1239 (11th Cir. 2015) 0.2... ccc cccccccccsssesseeeeeeeeceececeusaeueseceesseneeaessesseesensseeseees 13

Barwick v. State,

361 So.3d 785 (Fla. 2023),

cert. denied, Barwick v. Florida, 143 S. Ct. 2452 (2028) 0... ecceeeeceeeeeeeeeeereeees 12,17

Booker v. State,

336 S0.3d 1177 (Fla. 2022) oo... ccccscecccccecessssssssnsecsecececeessseeesseeceeccecesseesnenseeeeceesneseeceeses 6

Brady v. Maryland,

373 U.S. 83 (1968)........cccccccssecceecsssseeeersssscceecsssseeeecessseuseeessneeesecesesseeeeceseeeaeecesesseestseeeees 3

Branch v. State,

236 So.3d 981 (Fla. 2018),

cert. denied, Branch v. Florida, 583 U.S. 1158 (2018) ..............c0ecceeeeeseeereeeee 5,6,7,10,12

Braxton v. United States,

BOO U.S. 844 (1991)... cece cccscececessssecessecessseeeessaeeesceecesaeeneaeeesecaueeseeaeeesenetenseneaes 12,22

Cavazos v. Smith,

BOB U.S. 1 (2011) ccccccccsccssecsecceccucsecssesssesscssessessussuessecsucsuverecsuessessecsessussucsasssussavessees 22,24

Christeson v. Roper,

574 U.S. 38783 (2015).....ccccccsscscccesesssnsceecsssnscecesscenceccecsceaeeessuaeeceseceueceeeseetenaeeesetsnneeeeesens 21

Correll v. State,

184 So.3d 478 (Fla. 2015) .......ccccccccccsssccessseeesenneecesneeeeenenecssneeessenseseeaaeeseesneesesseeceseeeereenas 7

iv

Damren v. State,

2023 WL 5968167 (Fla. Sept. 14, 2028) 0.0... i eeccccsscsssssssssesscssssscsssssccessessacesseeeeess 19

Deviney v. State,

322 So.3d 563 (Fla. 2021),

cert. denied, Deviney v. Florida, 142 S. Ct. 908 (2022) 00... cccccccccccceccseceececeeseeesneeeees 12

Dillbeck v. State,

304 S0.3d 286 (Fla. 2020) ..........ccccccccccccssessssseeeseececeeeessessuaceeececeecescssssneeeeeseeseecsnuteseeesane 6

District Attorney’s Office for Third Judicial District v. Osborne,

B57 U.S. 52 (2009)... cecccecesssseeececeecsssssnceneesceeceecsussneneueeeeeceeseseeesseaueeesseseesseseessees 20,21

Eddings v. Oklahoma,

455 U.S. 104 (1982)...cccccseccceccseecsseessecssuccsecesuccsueessvecsucssusesuecsaceracessecesvecsusssueesuecasneeesaven 19

Estelle v. McGuire,

BO2 U.S. 62 (1991)... cecccccsssecesssceeeseecccsseeesesseeecsseeeessaesessseseeecaaecesseeeessseesecseeesscensnes 18

Farmer v. State,

268 So.3d 1009 (Fla. Ist DCA 2019) oo... eeeesensncceeaceeeeceeenueeaseaceecaneaseeeeesenseeeesseeseess vi

Foster v. Chatman,

578 U.S. 488 (2016)... cccccccscceececeeceecceceecceeceeeeeeeeceeeeeceeeeeseecceseeseeeeeeeeseeseeseensa 10,17

Foster v. State,

258 So.3d 1248 (Fla. 2018) ...ccccccssecseccseccsesssessucsseecsesssessucssssssessuecsessecessecssesseeses 5,6,7,9,16

Giglio v. United States,

A405 U.S. 150 (1972)... ccccecsssssseeeseceeeesssesseseeseeececeesenseageecaeseceesessesnsaseaeeeeeeessnsaeseseeas 3

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)... cccccecsesesesssssenssenssneessteesesseees 18

Gryger v. Burke,

334 U.S. 728 (1948)... ccccccsssssesceceececseseesnsnnneeeeceeesseesseseeuseeeseceesesessaaeaeeeeeceeesasteneesaea 18

Han Tak Lee v. Tennis,

2014 WL 3894306 (M.D. Pa. June 18, 2014) 20.0... ccccssseeceessneeesssseeeeeseesseeesesessaes 22

Han Tak Lee v. Tennis,

2014 WL 3900230 (M.D. Pa. Aug. 8, 2014)... cceccescensceceeeeeeeeessensneaeeceeeseeenseseeeaa 22

Han Tak Lee v. Houtzdale SCI,

798 F.3d 159 (3d Cir. 2015) ....... ccc ccccsscccccsesssceecesenneeeeesssneeecesessneeeesseseeseessenseeeaees 22,23

Harbison v. Bell,

B56 U.S. 180 (2009)...........ccccccccssseeceeeessececessscnceesesesaeeeeeseeeeeeeeseuenseceeteceeesenseaeaeseaseaaeees 20

Harris v. Reed,

489 U.S. 255 (1989)... cc cccccccccccccuceuseuseuececesceususesesuseeceecececencescecccesseccuceseuaeeeerens 10,17

Herrera v. Collins,

B06 U.S. 890 (1998)... ccc ccccccccseccceccucescescesscusescucccseususacesceuseuceasasccasascescesceserenerers 20

House v. Bell,

BAT U.S. 518 (2006)... ccc cccccccccccccccceuceecensencenceecanaessasseuaeccesceuceuscussausassareccecesececerers 20

Howell v. Siaie,

145 So0.8d 774 (Fla. 2018) .........cccccccccsssscccccecesssssssceceecccccssssecacceeeceesecscecsuesessecescesessneeceeers 6

Hurst v. Florida,

B77 U.S. 92 (2016)... cecccccccccccccccccecceccececcecceucecccececceceecsesensesueeueccccesesueaseeusenseneseusccsserenes 4

Hurst v. State,

202 S0.3d 40 (Fla. 2016) ........cccccccscccscccccsssssssceeceescecssnsssaseessecceseseveserssaneeercescesessreseevecses 4

Jimenez v. State,

997 So.2d 1056 (Fla. 2008) ...........ccccccccccsseessseecccececceessssseceecececeseuseeueeueeseuceesausessnseeneess 20

Johnson v. Williams,

5) oto Oto p15 @-A0) Es) ce 17

Jones v. State,

709 So.2d 512 (Fla. 1998) 00.0... cceceessssessecceeeececseeceseeceeceeseesceecseesesaesssssessassaaeaeesecs 18,19

Kearse v. Sec’y, Fla. Dep’t of Corr.,

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

cert. denied, Kearse v. Dixon, 148 S. Ct. 2439 (2028) 00... cece cccccccsssseeceeceessensneeeeeees 13

Knight v. Fla. Dep't of Corr.,

936 F.3d 1822 (11th Cir. 2019) oo... cccsscsccsneeceeceeseeseeceescescaueeeaseneensesseseeeessesseseneees 4

Lockett v. Ohio,

488 U.S. 586 (1978).........cccccecessssssseeeceeeeceeceseesceeeeseccessnsesesuacessceceeceseeesseeseaganseseecsteseess 19

Matter of Monschke,

482 P.3d 276 (Wash. 2021) ...cccscceccssscsesssescsecsseccsecsucessecsuecesesssecseesseseuresseeeseceneeeessses 7,13

McCloud v. State,

208 So.8d 668 (Fla. 2016) .............ccccccceccccccessssseeceececcecceceeseussssecececseusseueeeeeseeseusoneeeeeeesenes 4

McKinney v. Arizona,

140 S. Ct. 702 (2020)... cccccsseeesseecccececensessessesceeceeceececaeussesecerseeeceaseeterseeseaaeaaeserresersees 4

Medina v. California,

5O5 U.S. 487 (1992)..........cccccccssssscsceceeeeeesesescaeseeceneesssccenseaeereceeesecsesneeseeneeaneeseetes 21,22,23

Melton v. Att'y Gen. of Fla,

769 Fed. Appx. 803 (11th Cir. 2019),

cert. dented, Melton v. Inch, 140 S. Ct. 885 (2020) 0.0.0... cceeeeseseceeeeseesseecssssssessetesrens 3,4

Melton v. Crews,

2013 WL 11326077 (N.D. Fla. July 15, 2018) oo... cccccccccccccssssscssceeeceeseeseesensseenenees 4

Melton v. Jones,

2018 WL 566451 (Fla. Jan. 26, 2018),

cert. dented, Melton v. Florida, 139 S. Ct. 154 (2018) 2.0... eeeeeesseesssseeseeeesssneeeeees 4

Melton v. Sec’y, Fla. Dep't of Corr.,

778 F.3d 1234 (11th Cir. 2015),

cert. denied, Melton v. Jones, 577 U.S. 926 (2015) wo... cccccssssssecceeseessseeessesseeees 3,4,16

Melton v. State,

638 So.2d 927 (Fla. 1994),

cert denied, Melton v. Florida, 513 U.S. 971 (1994) 0.0... ccceeceesecsecseeeneeeeeeesesneaeea 2,3

Melton v. State,

949 So.2d 994 (Fla. 2006),

cert. denied, Melton v. Florida, 552 U.S. 848 (2007) .........ccccccccccseccsecsscessssessssssteeeeee 3,16

Melton v. State,

88 So0.8d 146 (Fla. 2012) oo... cccccscccceessssseccecsessseceecsscsecesssseeceessaneeeecessesneaeeetessanessaeeeees 3

Melton v. Staite,

198 S0.3d 881 (Fla. 2016) ........c.cccccccsscssceccssssseesescseaeseessescecesenseeecesseneeeeeeessenseeesesenesssnaes 3

Melton v. State,

236 So.3d 234 (Fla. 2018),

cert. denied, Melton v. Florida, 139 S. Ct. 192 (2018) oo... eecccccssesceeseesssssssseereeeeees 4

Melton v. State,

304 So.3d 375 (Fla. Ist DCA 2020) 0.0.0... cccccceessscessneceenneeceaeeeceeceesennecesseeseeernneenseesaaees 2

Melton v. State,

367 S0.3d 1175 (Fla. 2028) 0... cccccecesscesseesenneeececcecesccsenseeceeceeesaaeaeeeeeeeeeeeeeeees passim

Melton v. Tucker,

2013 WL 11826076 (N.D. Fla. May 31, 2018) ...........ececcccccessnceeesseeeeeseeseesnaeeeeesssseseeeeees 4

Miller v. Alabama,

BOT U.S. 460 (2012)...cccccseccssessseccsuecsucccucececeseccsueecueeesecersessueeesresseversecssecsaecavessecsseees 11,13

Pace v. DiGuglielmo,

B44 U.S. 408 (2005)... ececcccesscccssseececesneeeesseseseenececeeeeseaueneaceescueesesneeeeessaseeeeateas 11,18

Porter v. McCollum,

B58 U.S. 80 (2009).........cccccsccccesseeceseceececesteeceeaeeesseceseveeseeeeseseageseseessaeseseeesesesesseecneseeeeaate 3

Vii

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

ABZ U.S. 182 (1987).......ccccceccccccssssseceesssececcescsecececeucsuceusausesssusacsecssceesessscessesseatcersns 12,22

Roper v. Simmons,

543 U.S. 551 (2005)....... cc ccceccseccccseecsesseececcceccesseeceeuesssccceecesceseeesessenteuceeescetttnsaness passim

Schriro v. Summerlin,

542 U.S. 348 (2004)... cccccccccusesssessssccvessceeseccesceuceuceuseseveeveueuseueseedestustestessnseneess 4

Sliney v. State,

362 So.3d 186 (Fla. 2023),

cert. denied, Sliney v. Florida, 2023 WL 8531966 (U.S. Dec. 11, 2028) ...........0.... 12,17

Smith v. State,

310 S0.8d 366 (Fla. 2020) ........cccccccccsssseccececseeceecceesesensesecceececesessscseeeeseceusssssssteuecessneeees 4

Smith v. State,

882 S.E.2d 300 (Ga. 2022) oe eececcccccscsssnsceccceceeceeeceecesssnsenseeeeceeseessseeseesecesseeessneneeeeees 23

State v. Poole,

297 So.3d 487 (Fla. 2020),

cert. denied, Poole v. Florida, 141 S. Ct. 1051 (2021)... ccccccessssseeeeeeeesesseeeeeeeees 4

Swafford v. State,

125 So0.3d 760 (Fla. 2018) 0.0.0... ccc cccccceccccssesssssssnsnsaceeceececsnsecnenaeeeseseseesseeaeseeseeseseneeeeeas 19

Trop v. Dulles,

B56 U.S. 86 (1958)........ccsssceesecsssscceeesseeceeesseesseeeeescsescueeeesesseesecsseseteessesnntersess 8,11,12,13

United States v. Roof,

10 F.4th 314 (4th Cir. 2021), cert. denied, 143 S. Ct. 308 (2022)... cceeeceeeeeceeeeeeees 13

United States v. Tsarnaev,

968 F.3d 24 (Ast Cir. 2020) oo. cccccccccccccccceseeecessaseeeeaeeeseneecessessaseeseesensessessesseseessnaaaes 13

Walton v. State,

246 S0.3d 246 (Fla. 2018) ......... ccc ccecsessccceceececceecceceessssssssessssscsssssessssseseeaeeaeessssssseseeseseees 19

Webb v. Wyo. Dep’ of Corr.,

849 Fed. Appx. 729 (10th Cir. 2021),

cert. denied, Webb v. Pacheco, 142 S. Ct. 184 (2021)... eee ececccscsssssessnceceeeeeceeeeesseesees 18

viii

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. V...........c:ccccccsssesecessseteesssseececesssnteesessnseseessssssessssecesseseesenseuees passim

U.S. Const. Amend. VIII oe... cccccccccssssssccsssssceecesssaeeceessnaceeseccesseeesecsuseusseuseseeusss passim

U.S. Const. Amend. XIV... ecccccccccessseeeceseesecneeseaaesecaeesesueeeessaseeseaeeessssseeensecseeevenees 1

STATUTES

28 U.S.C. § L257... cccccescceceeesnceeenneeeeesesecsaeeeseneeeseaseeseaneesesaeessaueesseseeseneaneeseseseaneeees 16

28 U.S.C. § 1257 (a) oo. cceeecccsssccesscceeesssecesacessaaeecscaeeceseeeesecaeeeeeesseeseseesesseescestsseeneessaeees 1

DB U.S.C. § 2101) scecsescecsseecescssecsecssecsuscsecssuesesessessuccsatsesersnesessacssussauerarerecsaussaeessueesneeaes 1

28 U.S.C. § 2244(0D) oo. cceeccccsseeecesenecenceecesecercaueecssneessssaessesseeseeseateesseueesssneesesteeeaeeesees 20

28 U.S.C. § 2244 (d) oo. ccccccccccccsseeceeseneceeneeecseaeseecneeeseaeeeseneeesesueereeaeessenereeesaeeeseataees 10,16

RULES

Fla. R. Crim. P. 3.851(d)(2)(A) ooo... cccceccecssscceceeeessnsnneceeceeceeceeeeesessnaaeeeeeseeseesentnenses 11,17

Sup. Ct. R. 100d)... cceecceceseneeeseneeecenneecseneeseseesessseeeesaeesseeeueeresneeesstaeeseneeeeegs 13,14,22

Sup. Ct. R. 13.8.0... ccccccccccccessssneeccesssneecessnnceccessnaeeeeseesaeeseeseaaeeeeceeeeaneeeeseeaaeeeeeeeeeeeseeeeess 1

OTHER AUTHORITIES

American Psychological Association, Resolution on the Imposition of Death as a

penalty for Person Aged 18 Through 20, Also Known As the Late Adolescent Class,

AUGUSt 2022 oo. eececcccccccccesscessenseeneeeeeteeseetcaeseeseeteneeasaceeeceeseeteeserersesenaeesereeeeenens 5,6,8,9,15

ix

OPINION BELOW

The Florida Supreme Court’s opinion is reported at Melton v. State, 367 So.3d

1175 (Fla. 2023) (SC2022-1394).1

JURISDICTION

On May 4, 2023, the Florida Supreme Court affirmed the state postconviction

court’s summary denial of the sixth successive postconviction motion. Melton, 367 So.3d

at 1177. On May 19, 2028, Melton, represented by Capital Collateral Regional

Counsel—North (CCRC-N), filed a motion for rehearing in the Florida Supreme Court.

On July 13, 2023, the Florida Supreme Court denied rehearing. On November 9,

2028, following an extension, Melton, 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 Fifth Amendment, the Eighth

Amendment and the Fourteenth Amendment.

The Fifth Amendment to the United States Constitution, provides:

No person shall. . . be deprived of life, liberty, or property, without due

process of law...

U.S. Const. Amend. V.

The Eighth Amendment to the United States Constitution, provides:

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

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 “Case

Number” box, enter the case number SC2022-1394, which will lead to the full docket of

the case including a link in the right column, under view, to the briefs filed in the case.

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

This petition involves two questions regarding a successive postconviction

motion filed in the state court in a Florida capital case.

Facts of the case

On November 17, 1990, Melton and two co-perpetrators robbed and then shot

a taxi-cab driver. Melton was later convicted of armed robbery and felony murder for

the murder of the taxi-cab driver. Melton v. State, 304 So.3d 375 (Fla. 1st DCA 2020).

Then, less than two months later, on January 23, 1991, Melton and Lewis robbed a

pawn shop and Melton shot the owner of the shop to death. Melton v. State, 638 So.2d

927 (Fla. 1994). Both Melton and Lewis were caught leaving the shop because the

victim had managed to trigger the silent alarm before being shot to death. Melton had

the murder weapon on him when he was arrested as he was coming out of the store.

Procedural history

Melton was convicted for the first-degree murder of the pawn shop owner and

for armed robbery of the pawn shop. Melton v. State, 638 So.2d 927 (Fla. 1994). Melton

was sentenced to death for the murder and to a life sentence for the robbery. The

convictions for felony murder and armed robbery in the non-capital case were used as

an aggravating factor in the capital case. Melton, 638 So.2d at 929 (noting the trial

court found two aggravating factors including the prior violent felony aggravator based

on the convictions for the first-degree murder and robbery of the taxi-cab driver);

Melton v. Att'y Gen. of Fla, 769 Fed. Appx. 803, 805, n.1 (11th Cir. 2019) (noting that

the judge in the capital case relied in part on Melton’s conviction for the murder of

taxi-cab driver Saylor to impose the death sentence for the murder of pawn-shop owner

Carter), cert. denied, Melion v. Inch, 140 S. Ct. 885 (2020). Melton was 17 years-old

when they robbed and shot the taxi-cab driver in the non-capital case but he was 18

years-old when he shot the pawn shop owner. Melton v. Sec'y, Fla. Dep't of Corr., 778

F.3d 1234, 1235 (11th Cir. 2015), cert. denied, Melton v. Jones, 577 U.S. 926 (2015) (No.

15-5522).

The Florida Supreme Court affirmed the convictions and the death sentence in

the capital case in the direct appeal; in the initial postconviction appeal; and in several

successive postconviction appeals. Melton v. State, 638 So.2d 927, 9380-31 (Fla. 1994)

(direct appeal), cert denied, Melton v. Florida, 513 U.S. 971 (1994) (No. 94-5940);

Melton v. State, 949 So.2d 994 (Fla. 2006) (affirming the denial of the initial

postconviction motion), cert. denied, Melton v. Florida, 552 U.S. 843 (2007) (No.

06-11339); Melton v. State, 88 So.3d 146 (Fla. 2012) (No. SC11-973) (affirming the

denial of a successive postconviction motion raising a claim of ineffectiveness for failing

to present general background as mitigation based on Porter v. McCollum, 558 U.S. 30

(2009)); Melton v. State, 193 So.3d 881 (Fla. 2016) (affirming the denial of a successive

postconviction motion raising a claim of newly discovered evidence; a claim based on

Giglio v. United States, 405 U.S. 150 (1972); and a claim based on Brady v. Maryland,

373 U.S. 83 (1963)).

The Florida Supreme Court also denied Melton a new penalty phase based on

Hurst v. State, 202 So.3d 40 (Fla. 2016). See Melton v. State, 236 So.3d 234, 235 (Fla.

2018) (holding Hurst v. State did not apply retroactively to Melton), cert. denied, Melton

v. Florida, 139 8. Ct. 192 (2018) (No. 17-9555).2

In 2018, the Florida Supreme Court denied his successive state habeas petition

raising a claim of relative culpability based on McCloud v. State, 208 So.3d 668 (Fla.

2016), in Melton v. Jones, 2018 WL 566451 (Fla. Jan. 26, 2018) (SC17-2032), cert.

denied, Melton v. Florida, 139 S. Ct. 154 (2018) (No. 17-9330).

Federal habeas review

On May 31, 2018, the federal district court denied habeas relief in the capital

case. Melton v. Tucker, 2013 WL 11326076 (N.D. Fla. May 31, 2013) (No. 1:08-cv-34).

The district court also denied a certificate of appealability (COA). Melton v. Crews,

2013 WL 11326077 (N.D. Fla. July 15, 2013). The Eleventh Circuit also denied a

certificate of appealability from the district court's denial of federal habeas relief.

Melton v. Sec'y, Fla. Dep’t of Corr., 778 F.3d 1234, 1237 (11th Cir. 2015) (denying any

appeal), cert. denied, Melton v. Jones, 577 U.S. 926 (2015) (No. 15-5522).8

2 The Florida Supreme Court later partially receded from Hurst v. State in State v. Poole,

297 So.3d 487 (Fla. 2020), cert. denied, Poole v. Florida, 141 S. Ct. 1051 (2021) (No. 20-

250). So, not only is any Hurst v. State claim not retroactive but any such claim would

fail under the current law of Poole. Smith v. State, 310 So.3d 366, 374 (Fla. 2020)

(rejecting a Hurst v. State claim on the merits, explaining the prior violent felony

aggravating factor rendered Smith eligible for the death penalty thereby satisfying “the

mandates of the United States and Florida Constitutions” citing Poole). And any claim

based on Hurst v. Florida, 577 U.S. 92 (2016), would be rejected in federal court on nonretroactivity grounds. McKinney v. Arizona, 140 S. Ct. 702, 708 (2020) (stating that

Hurst v. Florida does “not apply retroactively” citing Schriro v. Summerlin, 542 U.S.

348, 358 (2004)); Knight v. Fla. Dep't of Corr., 936 F.3d 1322 (11th Cir. 2019) (holding

Hurst v. Florida is not retroactive). Melton will not receive a new penalty phase based

on Hurst in either state or federal court.

3 The Eleventh Circuit has also affirmed the denial of federal habeas relief in the non-

4

Procedural history of the current state successive postconviction motion

On June 29, 2022, Melton, represented by Capital Collateral Regional Counsel

- North (CCRC-N), filed a sixth successive postconviction motion in the state trial court

raising a claim of newly discovered evidence regarding a new consensus among the

neuroscientific community that the human brain is not fully developed until, at least,

21 years of age. Melton argued, based on these new studies, that the prohibition on

executing defendants under 18 years old, established in Roper v. Simmons, 543 U.S.

551 (2005), be expanded to include all capital defendants under 21 years old.

On July 19, 2022, the State filed an answer to the sixth successive

postconviction motion asserting the claim was not cognizable, was untimely, as well

as meritless, as a matter of law, under the Florida Supreme Court’s controlling

precedent of Branch v. State, 236 So.3d 981 (Fla. 2018), and Foster v. State, 258 So.3d

1248 (Fla. 2018). (2022 Succ. PCA 99-114). On August 4, 2022, CCRC-N filed

supplemental authority of American Psychological Association’s adoption of a

resolution on August 3, 2022, advocating the prohibition on executing minors be

extended to defendants under 21 years old. (2022 Succ. PCA 141-198).4

On August 17, 2022, the state postconviction court summarily denied the sixth

successive postconviction motion. (2022 Succ. PCA 2138-19). The postconviction court

described the claim as a claim of newly discovered evidence demonstrating “that the

death penalty is a categorically unconstitutional punishment for individuals who

committed offenses when they were between the ages of 18 to 21” based on the “study

of brain maturation over the past decade” showing “several aspects of brain

development, including the brain regions that determine character, judgment, and

capital case. Melton v. Att'y. Gen. of Fla., 769 Fed.Appx. 803 (11th Cir. 2019), cert.

denied, Melion v. Inch, 140 S. Ct. 885 (2020) (No. 19-6558).

4 The APA resolution is available at: https://www.apa.org/about/policy/resolution-

death-penalty.pdf ;

decision-making, continue to develop until at least the age of 21 and that this view is

now widely accepted among neuroscientists and the legal community.” (2022 Succ. PCR

215). The postconviction court explained the claim was based on Roper v. Simmons,

543 U.S. 551 (2005), and was supported by a June 30, 2021 report from Dr. Laurence

Steinberg, Ph.D., “summarizing the current scientific understanding of the brain

development of individuals between the ages of 18 to 21.” Id. at 215-16. The Steinberg

report described a “growing consensus” based on studies of brain maturation conducted

during the past decade concluding “that brain maturation continues into late

adolescence.” Id. at 216.

The postconviction court, however, observed that many of the studies in the

report predated 2020 and went as far back as 2003. (2022 Succ. PCR 216). The

postconviction court noted that the Florida Supreme Court had “routinely rejected”

new opinions and studies as being “newly discovered evidence” citing Asay v. State, 210

So.3d 1, 22-23 (Fla. 2016). Id. at 216. The postconviction court also concluded that

obtaining a new expert and report based on information that has been available for

years is not a proper basis for a claim of newly discovered evidence citing Booker v.

State, 336 So.3d 1177, 1181-82 (Fla. 2022), and Howell v. State, 145 So.3d 774, 775

(Fla. 2013). Id. at 216, 218. The postconviction court also found the claim to be

untimely because it was not filed “within one year of the date upon which the claim

became discoverable through due diligence” citing Dillbeck v. State, 304 So.3d 286, 288

(Fla. 2020). (2022 Succ. PCR 216); Id. at 218.

The postconviction court noted the American Psychological Association’s recent

resolution supporting a prohibition on the execution of defendants under 21 at the time

of the offense. (2022 Succ. PCR 217). The postconviction court noted, however, that the

Florida Supreme Court had rejected a similar claim based on a similar resolution

adopted by the American Bar Association in 2018 in the cases of Foster v. State, 258

So.3d 1248, 1253 (Fla. 2018), and Branch v. State, 236 So.3d 981, 986 n.5 (Fla. 2018).

6

Id. at 217.

The state postconviction court also addressed the merits. (2022 Succ. PCR 218).

The postconviction court concluded, regardless of whether the Steinberg report counted

as newly discovered evidence and regardless of the untimeliness of the motion, the

claim failed under Roper. (2022 Succ. PCR 218). Id. at 218. The postconviction court

reasoned that Roper “establishes a bright line rule that the age of 18 is the age at

which the individual is eligible for the death penalty.” Id. at 218 citing Roper, 543 U.S.

at 574. The postconviction court observed that arguments seeking the extension of

Roper to those capital defendants over 17 had been “repeatedly rejected by the Florida

Supreme Court.” Id. citing Foster, 258 So.3d at 1254 and Branch, 236 So.3d at 987.

The postconviction court noted that Florida courts “must construe the prohibition

against cruel and unusual punishment in conformity with decisions of the United

States Supreme Court.” Jd. at 218 citing Correll v. State, 184 So.3d 478, 489 (Fla.

2015), and Farmer v. State, 268 So.3d 1009, 1010 (Fla. 1st DCA 2019)). The

postconviction court summarily denied the successive postconviction motion. (2022

Succ. PCR 218).

On September 1, 2022, CCRC-N filed a motion for rehearing arguing the claim

should be considered timely and the line should be expanded to include those capital

defendants under 21 years-old at the time of the murder citing Matter of Monschke, 482

P.3d 276, 325-26 (Wash. 2021). (2022 Succ. PCA 220-230). On September 16, 2022, the

postconviction court denied rehearing. (2022 Succ. PCA 231-232).

Melton appealed the summary denial of his sixth successive postconviction

motion to the Florida Supreme Court. The Florida Supreme Court affirmed the trial

court's summary denial of the successive motion. Melton v. State, 367 So.3d 1175 (Fla.

2023).

On November 9, 2023, Melton, 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 Successive Postconviction Claim that Roper v.

Simmons, 543 U.S. 551 (2005), which Prohibits the Execution of Minors,

should be Expanded to Include Capital Defendants who are 18 Years and

25 Days Old on the Day of the Crime.

Petitioner Melton seeks review of the Florida Supreme Court’s decision rejecting

his successive postconviction claim arguing that Roper v. Simmons, 543 U.S. 551

(2005), should be expanded to include a capital defendant who was 18 years and 25

days old. Pet. at 6. Melton argues, based on scientific articles and studies regarding

human brain development, as well as a 2022 resolution from the American

Psychological Association, that the prohibition on the execution of capital defendants

should be expanded to include defendants who are only a few days over 18 years old.

He claims that these studies and the resolution reflect the current standards of decency

under Trop v. Dulles, 356 U.S. 86 (1958). But the Florida Supreme Court held, in the

alternative, that the sixth successive postconviction motion was untimely and that

determination is a matter of state law. Furthermore, there is no conflict between this

Court’s holding in Roper and the Florida Supreme Court’s decision in this case. This

Court in Roper drew the line for eligibility for the death penalty at 18 years old and the

Florida Supreme Court followed this Court’s categorical rule established in Roper. Nor

is there any conflict with this Court’s decision in Trop and the Florida Supreme Court’s

decision in this case. The evolving standards of decency are properly derived from

legislation enacted by elected representatives, not from studies, experts’ opinions, or

resolutions from professional organizations. Melton points to no legislation, state or

federal, increasing the age of eligibility for the death penalty beyond 18 years old,

much less to a majority of legislatures enacting such legislation. Additionally, there

is no conflict between the Florida Supreme Court’s decision in this case and the lower

appellate courts. The federal circuit courts that have addressed this exact issue have

all refused to expand Roper. Review of this question should be denied.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court affirmed the trial court’s summary denial of the

sixth successive postconviction motion. Melton v. State, 367 So.3d 1175 (Fla. 2023). On

appeal, Melton argued, based on a consensus among the neuroscientific community

regarding human brain development, that the prohibition established in Roper on the

execution of defendant under 18 years old should be expanded to include all capital

defendants under 22 years old. Melton, 367 So.3d at 1176.5 The Florida Supreme

Court rejected the claim both as untimely and on the merits. Jd. at 1176 (agreeing with

the trial court that the claim was “untimely” and “meritless”). The Florida Supreme

Court rejected the invitation to expand Roper on the merits. Jd. at 1176, 1177. The

State’s highest court relied on their prior precedent in which the same argument based

on the same consensus had been rejected. Jd. at 1177 (citing Branch v. State, 236 So.3d

5 The exact question being raised in the petition in this Court is not the same question

that was raised in the state courts. The question raised in the petition is whether

Roper should be expanded to include capital defendants that are just a few weeks over

18 years old but the issue raised in the state courts was whether Roper should be

expanded to capital defendants under 22 years old. Moreover, none of the materials

relied on to support the claim in state court drew the age limit in the same manner as

the question in the petition does. None of the studies or resolutions relied to support

the claim advocate drawing the line at 18 years and 25 days. Rather, the studies and

resolution advocate expanding Roper to include all capital defendants under 22 years

old. Normally, this Court does not address arguments that were “neither pressed nor

passed upon below.” Babcock v. Kijakazt, 595 U.S. 77, 82, n.3 (2022) (citing Adarand

Constructors, Inc. v. Mineta, 534 U.S. 108, 110 (2001)).

9

981 (Fla. 2018), and Foster v. State, 258 So.38d 1248, 1253 (Fla. 2018)). The Florida

Supreme Court concluded “unless the United States Supreme Court determines that

the age of ineligibility for the death penalty should be extended, we will continue to

adhere to Roper.” Id. (quoting Branch, 236 So.3d at 987).

Matter of state law

The issue of the timeliness of a successive postconviction motion is a matter of

state law. cf. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (concluding that when a

state postconviction claim is untimely under state law, that is the “end of the matter”

for purposes of federal habeas review under § 2244(d)(2)). The Florida Supreme Court

rejected the claim, alternatively, based on a finding that the sixth successive

postconviction motion was untimely. The Florida Supreme Court was interpreting a

Florida rule of court to determine if the successive postconviction claim was untimely.

Fla. R. Crim. P. 3.851(d)(2)(A). The Florida Supreme Court alone determines whether

a successive postconviction motion filed in state court under a state rule of criminal

procedure is timely. There is no federal constitutional aspect to such a timeliness

determination. 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

vu. Reed, 489 U.S. 255, 260 (1989)).

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 this Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005). In Roper,

this Court drew a bright line at the age of 18. This Court reasoned that the “age of 18

is the point where society draws the line for many purposes between childhood and

10

adulthood” and therefore, it is also “the age at which the line for death eligibility ought

to rest.” Roper, 543 U.S. at 574. The Roper majority noted that “almost every State

prohibits those under 18 years of age from voting, serving on juries, or marrying

without parental consent” as support for its holding. Id. at 569; id. at 619 (Scalia, J.,

dissenting) (observing that serving on a jury or entering into marriage involve

decisions that are “far more sophisticated than the simple decision not to take

another’s life). All of the parallels to other areas of the law, such as the voting age,

drawn by this Court in Roper are equally true today. In short, not much has changed

legally since Roper was decided. There is no conflict with this Court’s current

jurisprudence drawing the line of eligibility for the death penalty at 18 years of age

and the Florida Supreme Court’s decision.

Furthermore, there is no conflict with this Court’s “evolving standards of

decency” jurisprudence established in Trop v. Dulles, 356 U.S. 86 (1958), and the

Florida Supreme Court’s decision in this case. The evolving standards of decency are

properly only derived from legislation enacted by elected representatives, not from

studies, experts’ opinions, or resolutions from professional organizations. cf. Miller v.

Alabama, 567 U.S. 460, 510-12 (2012) (Alito, J., dissenting) (observing that while the

“evolving standards of decency” test of Trop was “problematic from the start,” at least,

when the standard is based on the positions taken by state legislatures, it may be

characterized as reflecting a national consensus). Indeed, this Court in Roper itself,

as well as in Atkins v. Virginia, 536 U.S. 304, 312 (2002), relied on legislation to

establish the national consensus. Roper, 543 U.S. at 564 (noting that 18 States with

the death penalty prohibited the death penalty for juveniles). Currently, all of the

jurisdictions that authorize the death penalty, as well as the US. military, set the age

of death-eligibility at 18 years old. Petitioner cites not a single statute, state or

federal, increasing the age of eligibility for the death penalty beyond 18 years old,

much less pointing to a trend of legislatures enacting such statutes, as required by a

1]

Trop analysis. The Florida Supreme Court’s decision refusing to expand Roper does

not conflict with this Court’s decision in Trop.

Additionally, this Court has denied review of petitions seeking to expand Roper

based on similar arguments relying on studies of brain development or resolutions

from professional organizations in numerous other Florida capital cases. Branch v.

State, 236 So.3d 981 (Fla. 2018), cert. denied, Branch v. Florida, 583 U.S. 1153 (2018)

(No. 17-7825); Deviney v. State, 322 So.3d 563 (Fla. 2021), cert. denied, Deviney v.

Florida, 142 S. Ct. 908 (2022) (No. 21-6429); Barwick v. State, 361 So.3d 785 (Fla.

2023), cert. dented, Barwick v. Florida, 143 S. Ct. 2452 (2023) (No. 22-7424); Sliney v.

State, 362 So.3d 186 (Fla. 2023), cert. denied, Sliney v. Florida, 2023 WL 8531966 (U.S.

Dec. 11, 2023) (No. 23-5630). And this Court should do likewise in this case.

No conflict with the lower appellate courts

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

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

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

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

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

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

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

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

this Court’s attention. Rockford Life Ins. Co. v. Ill. 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 between the Florida Supreme Court’s decision in this case

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

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 the line drawn by this

12

Court in Roper. United States v. Tsarnaev, 968 F.3d 24, 96-97 (1st Cir. 2020) (rejecting

a claim that Roper should be expanded based on recent studies showing the human

brain continues to develop beyond 18 years of age and a 2018 resolution from the

American Bar Association); United States v. Roof, 10 F.4th 314, 378-80 (4th Cir. 2021)

(rejecting a claim that Roper should be expanded based on recent studies showing the

human brain continues to develop), cert. denied, 143 S. Ct. 303 (2022) (No. 21-7234).

As the Eleventh Circuit has explained, moving the age line established in Roper, “even

a few months,” would violate the categorical rule regarding age established by this

Court in Roper. Kearse v. Sec’y, Fla. Dep’t of Corr., 2022 WL 3661526, at *26-*27 (11th

Cir. Aug. 25, 2022) (relying on Barwick v. Sec’y, Fla. Dep’t of Corr., 794 F.3d 1239 (11th

Cir. 2015)), cert. denied, Kearse v. Dixon, 143 S. Ct. 2489 (2023). The petition does not

cite any federal circuit court case expanding Roper to include capital defendants over

18 years old. There is no conflict between the federal circuit courts and the Florida

Supreme Court’s decision in this case.

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

case and any decision of any state court of last resort. The petition does not cite any case

from any state supreme court that expands Roper to include capital defendants over

18 years old based on recent scientific studies or resolutions from professional

organizations using an Eighth Amendment analysis. While the petition points to cases

that have expanded Miller v. Alabama, 567 U.S. 460 (2012), to include defendants over

18 years old, those cases were decided as a matter of state constitutional law. Pet. at

13 (citing Matter of Monschke, 482 P.3d 276, 277 (Wash. 2021), etc.). Cases that

employ state law as a basis for a decision rather than employing the Trop standard

cannot establish conflict for purposes of Rule 10(b). There is no conflict among the

lower appellate courts and the Florida Supreme Court.

13

Because the timeliness of the successive postconviction motion is a matter of

state law and there is no conflict with this Court’s jurisprudence or among the lower

appellate courts, review of this question should be denied.

14

QUESTION II

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

Supreme Court Rejecting an Untimely Successive Postconviction Claim

of Newly Discovered Evidence of Mitigation Based on a New Scientific

Consensus that the Human Brain does not Fully Develop until a Person

is, at Least, 21 Years Old.

Petitioner Melton seeks review of a Florida Supreme Court’s decision rejecting

a claim of newly discovered evidence of mitigation. Pet. at 14. The claim of new

mitigation was based on a recent consensus regarding human brain development

continuing beyond 18 years of age. Melton relied on a neurodevelopmental

psychologist’s declaration summarizing recent scientific articles and studies regarding

human brain development, as well as a 2022 resolution from the American

Psychological Association (APA), to assert that the prohibition on the execution of

capital defendants should be expanded to include all defendants under 21 years old.

The Florida Supreme Court rejected the claim as untimely as well as meritless. Both

of those determinations were solely matters of state law. The timeliness of a successive

postconviction motion filed in state court is a matter of state law. And the entire

concept of newly discovered evidence of mitigation is also a matter of state law.

Moreover, there is no conflict with this Court’s jurisprudence and the Florida Supreme

Court’s decision in this case. Nor is there any conflict between the lower appellate

courts and the Florida Supreme Court’s decision in this case. Review of this state law

question should be denied.

The Florida Supreme Court’s decision in this case

Melton, in the alternative, argued that the newly discovered evidence of

mitigation, based on the studies and the APA resolution, negated both of the two

aggravating factors supporting his death sentence which would result in a life sentence

at a new resentencing. Melton, 367 So.3d at 1176. The two aggravators were: (1) the

prior violent felony aggravator based on a prior first-degree murder and robbery

15

conviction committed a few months before the capital murder; and (2) the pecuniary

gain aggravator for the contemporaneous armed robbery. Jd. at 1176, n.3. The Florida

Supreme Court rejected the claim both as untimely and on the merits. Jd. at 1176

(agreeing with the trial court that the claim was “untimely” and “meritless”). The

Florida Supreme Court explained that the postconviction claim was untimely because

it was not filed within one year of the date upon which the claim became discoverable

through due diligence. Jd. at 1176-77. The Court found the consensus Melton relied

on to establish the newly discovered evidence had, in fact, existed since 2015, according

to his own expert. Id. at 1177. The Court also noted that, under its precedent, new

studies are “not recognized as newly discovered evidence.” Id. at 1177 (quoting Foster

v. State, 132 So.3d 40, 72 (Fla. 2013)). The Court concluded that Melton was not

diligent in discovering the claim and therefore, the claim was untimely. The Florida

Supreme Court affirmed the trial court’s summary denial of the sixth successive

postconviction motion. /d. at 1177.6

6 The Florida Supreme Court did not address the negation of the aggravator’s aspect of

the claim on the merits in its opinion in this case. But even an expansion of Roper

could not possibly operate to negate both of the aggravators. Roper is a limitation on

a defendant’s eligibility for a death sentence based on age. It does not, and cannot,

operate to negate convictions or prior convictions. Melton was contemporaneously

convicted of armed robbery of the pawn shop in the capital case. Roper has nothing to

say about such a conviction or the use of that conviction to establish the pecuniary

gain aggravator. Roper, regardless of its breath, does not negate the pecuniary gain

aggravator. Melton was previously convicted of an earlier murder and robbery of a taxicab driver which was used to establish the prior violent felony aggravator. Again,

Roper has nothing to say regarding the validity of those prior convictions. Melton,

however, was 17 years old when he committed the prior murder. While the issue of

whether the reasoning of Roper should also prohibit the use of juvenile convictions as

aggravators could be raised, that issue was not, in fact, in the sixth successive

postconviction motion filed in state court or as a question in the petition filed in this

Court. And the new studies regarding human brain development do not advance such

an argument anyway. Such an argument can be raised based on Roper itself and was,

in fact, raised previously in this case. The Florida Supreme Court previously rejected

a claim that Roper should preclude the use of juvenile convictions as the basis for a

capital aggravator, as has the Eleventh Circuit, in this case. Melton v. State, 949 So.2d

16

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 Florida Supreme Court rejected the claim of newly discovered evidence of

mitigation, in part, based on a finding that the sixth successive postconviction motion

was untimely. The issue of the timeliness of a successive postconviction claim is solely

a matter of state law. cf. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (concluding

that when a state postconviction claim is untimely under state law, that is the “end of

the matter” for purposes of federal habeas review under § 2244(d)(2)). The Florida

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

postconviction motion was untimely. Fla. R. Crim. P. 3.851(d)(2)(A). The Florida

Supreme Court does not permit new studies, new manuals, or new resolutions to

restart the clock for purposes of timely filing a successive postconviction claim under

rule 3.851(d)(2)(A). Barwick v. State, 361 So.3d 785, 793 (Fla. 2023) Moting the Florida

Supreme Court has “routinely held that resolutions, consensus opinions, articles,

research, and the like, do not constitute newly discovered evidence”), cert. denied,

Barwick v. Florida, 143 S. Ct. 2452 (2028); Sliney v. State, 362 So.3d 186, 189 (Fla.

2028) (concluding that an expansion of Roper claim, raised in a second successive

postconviction motion, was untimely and observing that if the court were to accept such

994, 1020 (Fla. 2006), cert. denied, Melton v. Florida, 552 U.S. 843 (2007) (No. 06-11339);

Melton v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1234 (11th Cir. 2015) (denying a motion

to reconsider the denial of a certificate of appealability on the issue of whether Roper

precludes the use of prior juveniles convictions as the basis for a capital aggravator),

cert. denied, Melton v. Jones, 577 U.S. 926 (2015) (No. 15-5522).

17

a timeliness argument, every new study or publication related to brain development

in young adults could be invoked to restart the clock for filing a successive

postconviction claim which would “be at odds with the finality interests” served by rule

3.851); cert. denied, Sliney v. Florida, 2023 WL 8531966 (U.S. Dec. 11, 2023) (No.

23-5630). The Florida Supreme Court alone determines whether a successive

postconviction motion filed in state court under a state rule of criminal procedure is

timely. There is no federal constitutional aspect to such a timeliness determination.

Petitioner attempts to assert that Florida’s time limitations on claims of newly

discovered evidence violate the federal due process clause. Pet. at 15, 18. But this

Court does not permit petitioners to turn state law claims into federal constitutional

claims merely by wrapping the claim in due process cloth. Gryger v. Burke, 334 U.S.

728, 731 (1948) (explaining that “we cannot treat a mere error of state law” as being

“a denial of due process; otherwise, every erroneous decision by a state court on state

law would come here as a federal constitutional question.”); cf. Webb v. Wyo. Dep’t of

Corr., 849 Fed. Appx. 729, 737 (10th Cir. 2021) (classifying a claim regarding a state

speedy trial rule as violating federal due process as being a state law claim and

observing that a habeas petitioner “cannot transform a state law claim into a federal

one merely by attaching a due process label”), cert. denied, Webb v. Pacheco, 142 S. Ct.

184 (2021) (No. 20-8323).

Alternatively, the merits are also a matter of state law. 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 (20238) (No. 22-686); Baker v. Ati’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

18

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Under Florida law, the test for claims

of newly discovered evidence was established in Jones v. State, 709 So.2d 512, 521 (Fla.

1998). A claim of newly discovered evidence of mitigation requires that the new

mitigation would probably result in a life sentence at a new penalty phase. Damren v.

State, 2023 WL 5968167, at *2 (Fla. Sept. 14, 2023) (explaining to vacate a death

sentence based on a claim of newly discovered evidence, the second prong of Jones

requires a showing that the newly discovered mitigation would probably result in a life

sentence at a resentencing citing Walton v. State, 246 So.3d 246, 249 (Fla. 2018), and

Swafford v. State, 125 So.3d 760, 767 (Fla. 2013)). But there is no federal

constitutional equivalent to the concept of newly discovered evidence of mitigation

requiring a new penalty phase. Nor is there any case from this Court that is

equivalent to the Florida Supreme Court’s Jones test for newly discovered evidence of

mitigation.

The second question is purely a matter of state law both as to the timing and the

merits of the claim over which this Court lacks jurisdiction. This Court lacks

jurisdiction twice over. There is no federal issue being raised in this question and

therefore, this Court lacks jurisdiction.

No conflict with this Court’s jurisprudence

There is no conflict between this Court's 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). This Court’s current Eighth

Amendment jurisprudence does not include the concept of newly discovered evidence

of mitigation. There is no case from this Court extending its Eighth Amendment

caselaw regarding mitigation, such as Lockett v. Ohio, 438 U.S. 586 (1978), and

Eddings v. Oklahoma, 455 U.S. 104 (1982), to new evidence of mitigation discovered

years after the death sentence was imposed. There is no case from this Court even

19

hinting in any manner that the Eighth Amendment requires state courts to reconsider

a death sentence that was final many years ago, any time new evidence of mitigation

arises. Indeed, this Court has repeatedly declined to formally recognize freestanding

claims of innocence in capital cases based on new evidence regarding guilt. Dist.

Aitorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71 (2009) (noting it

is an “open question” whether there is a federal constitutional right to be released upon

proof of actual innocence); House v. Bell, 547 U.S. 518, 553-55 (2006) (declining to

resolve the issue of whether a freestanding innocence claim exists as a matter of

federal constitutional law but noting that if such a claim existed it would require an

“extraordinarily high” showing of innocence amounting to a case of “conclusive

exoneration”); Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming, in a capital case,

a “truly persuasive demonstration” of “actual innocence” made after trial would render

the execution of a defendant unconstitutional, and warrant federal habeas relief “if

there were no state avenue open to process such a claim.”).”

This Court considers new compelling evidence of mitigation, discovered after the

death sentence was imposed, to be a matter for executive clemency. Herrera v. Collins,

506 U.S. 390, 412 (1993) (observing that historically clemency provided the principal

avenue of relief after conviction in capital cases because there was no right of appeal

until 1907); Harbison v. Bell, 556 U.S. 180, 192 (2009) Moting clemency’s role as a “fail

safe in our criminal justice system” quoting Herrera, 506 U.S. at 415); Cavazos v.

Smith, 565 U.S. 1, 9 (2011) (observing that clemency is “a prerogative granted to

7 Florida has avenues open. Florida allows both claims of newly discovered evidence

regarding the conviction and claims of newly discovered evidence regarding the

sentence. And such claims can be raised decades after the conviction was entered or the

sentence was imposed. There are no time limitations on claims of newly discovered

evidence provided such claims are raised within one-year of being discovered. Jimenez

v. State, 997 So.2d 1056 (Fla. 2008). So, even if this Court ultimately recognizes

freestanding claims of innocence or freestanding claims of innocence of the death

penalty, that new rule would not apply to lee capital cases.

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