Opposition Brief — Guillermo Octavio Arbelaez, Petitioner v. Florida, et al.

CASE NO. 23-6383

IN THE UNITED STATES SUPREME COURT

GUILLERMO ARBELAEZ,

Petitioner,

vs.

STATE OF FLORIDA, ET AL.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

ASHLEY MOODY.

Attorney General

Tallahassee, Florida

CARLA SUZANNE BECHARD

Associate Deputy Attorney General

* Counsel of Record

LESLIE T. CAMPBELL

Senior Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

Telephone (813) 287-7900

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

1 Whether the Florida Supreme Court correctly

determined this Court’s holding in Hal/ v. Florida, 572

U.S. 701 (2014) announced a new procedural rule of

constitutional law that does not apply retroactively to

those defendants whose judgments and sentences became

final before 2014?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW......0....:cccccccccsscssesssessesesecescssceseessuesassasesseseees i

TABLE OF CONTENTS o.oo cecccccceceecesesecsceessensesneesseneeesecssessessessasssesuscsscservareanaess ii

TABLE OF CITATIONS. woe cee ceescceseeseeceeeeeeeaeeesesseeseesesesseesaeeseesseeeseeaseeseseenes lv

CITATION TO OPINIONS BELOW 0000. ecececceeseeesceeeseesaeeeseeeseneceseeesseseneesneees 1

JURISDICTION ooo. cee ccsceesseececeeesseeeeseesesnescaeesneeesaeeseseeeseessaeesseteessseeessessseaes 2

CONSTITUTIONAL PROVISIONS INVOLVED 00000... ecceeeceeeeeeeceeseneeeteeeeseesnenenees 2

STATEMENT OF CASE AND FACTS wou ceceeeeeeeenceceeeesneeenseseaeeessnereeseneesseees 2

REASONS FOR DENYING THE WRIT wooo. eceeseeeeeceseeecenecenneceeeeeeseeseseenensaes 18

ISSUE I CERTIORARI REVIEW OF THE DENIAL OF POSTCONVICTION

RELIEF SHOULD BE DENIED AS THE FLORIDA SUPREME COURT'S

FINDING HALL V. FLORIDA ANNOUNCED A NEW PROCEDURAL RULE

OF LAW THAT IS NOT RETROACTIVE DOES NOT PRESENT ANY

MEANINGUL CONFLICT WITH A DECISION OF THIS COURT OR ANY

FEDERAL CIRCUIT COURT OR STATE COURT OF LAST RESORT.

MOREOVER, ARBELAEZ HAS FAILED TO SHOW THAT AALE V.

FLORIDA IS DISPOSITIVE OF HIS CASE AS HE RECEIVED TWO PRIOR

EVIDENTIARY HEARINGS ON INTELLECTUAL DISABILITY AND WAS

UNABLE TO ESTABLISH THAT HE HAS ADAPTIVE FUNCTIONING

DEFICITS (RESTATED)........ccccccsssssssessesesssseeesecsesesesessesessesesesecseaeeseseesescseecees 18

A. History leading to the Florida Supreme Ocurt’s

determination that under federal law Hall v. Florida not

retroactive to cases on collateral review ............ccccccccessecccesccccceccestssceees 19

B. The Florida Supreme Court’s decision finding that Hal/

v. Florida is not retroactive does not establish a clear split

is state and federal courts and therefore does not warrant

CEYEIOYAL] LOVIOW ......cccecccccccccccececaccecseeceecaneeeceeceseceeseeeesuseceeeseaeeeseccenseneues 22

C. The Florida Supreme Court found that Hal/ v. Florida

is not retroactive as it announced a new rule of

constitutional procedure; it did not announce a new

Substantive right .0..........ccccccccccceccesceeeeeeeseeseeseeseessteseessssesesseseceeeceeceeesers 25

u

D. A favorable ruling here would not afford Arbelaez any

relief under Hall v. Florida he has had two evidentiary

hearings and has failed to prove he suffers from deficits in

adaptive fUNCtIONING 0.0.0... .ccecccscecsscecessecccssecesessececesscsesenscenseneeesanersaes 28

CONCLUSION . 00 ceeccccceceeseeseessseseeeesenececescnsececeseneeeeneesssaasesaaesseasesecssnessecseueasessanese 32

CERTIFICATE OF SERVICE ..............:::scssscsscsssssnsssnesssnsnssssesssssssesssessecccesssssaseasos 33

iil

TABLE OF CITATIONS

Page(s)

Cases

Arbelaez v. Sec’y, Fla. Dept. Of Corr.,

662 Fed. Appx. 713 (11th Cir. 2016), cert. denied, 583 U.S. 842 (2017)........ Passim

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

43 F. Supp. 8d 1271 (S.D. Fla. 2014) ...ccccccccscccssssescsscscscssescesssssssceeceevecseeestsneaeeaes 7

Arbelaez v. State,

72 So. 3d 745 (Fla. 2011), cert. denied, 566 U.S. 954 (2012) ......ccccceccsssccseeees Passim

Arbelaez v. State,

88 So. 3d 146 (Fla. 2012) ...c..cccecccccccscceccscsscsessescescseesceecseceeseceesecsesseessescsseseeeseeseees 1,7

Arbelaez v. State,

369 So. 3d 1141 (Fla. 2023) occ ccccceccsccsesccceceseecsecesesccesseccecseecaueesseeeesecersneess 1, 2, 7

Arbelaez v. State,

626 So.2d 169 (Fla. 1998) ......cececcccesessssssesescsesesceseceeseseseesessesesnecesseseeeseeatenes Passim

Arbelaez v. State,

775 So.2d 909 (Fla. 2000) ......ccccccccscscsssscsesscsesessescsececsesseecscescsessssceceesseevacensens 1, 6,7

Arbelaez v. State,

898 So.2d 25 (Fla. 2005)... ceceeccesccesccesscsscessecssccseceseceeeseeesenevcesseeseceenacenes 1, 7, 8, 30

Atkins v. Virginia,

586 U.S. 304 (2002) oie ceccecscesscessecescesccesecsseesasessecessesseeseesesuesasecaeceseeeaevees Passim

Beard v. Banks,

B42 U.S. 406 (2004) 0... ceccccccccccccscsccsecsecsesecsecscseesesseseeecsesscssesscsecsesseresecausseseesevansneeees 26

Bobby v. Bies,

BBG U.S. 825 (2009) ....ccccccccccccssesssscssesecsecsesecsesscsscsesccacsessessecscsessessesusaeeeseusauenseaeenes 19

California v. Carney,

AT1 U.S. 386 (1985) .....ccccccessscssssesesscscsecsesssscscsesesssssacsesseseseecsseecscvescseeseseenacseeateces 25

Chaidez v. United States,

B68 U.S. 842 (2018) oon. ccecccccccscsessssessseesesecsesesecsessesesessescsessesceesscsessescsscecsecseevevaneaees 24

Cherry v. State,

959 So. 2d 702 (Fla. 2007) ....cccccsccccsccsccscsecsesecsescsscsesecsecscsscsessesscacsscsecsesseesseesmnseeaes 20

Edwards v. Vannoy,

141 S. Ct. 1547, 1559-60 (2021) eee cece ccscessceeccneceecesseecescuscesessteeteessrecssseesess 27

General Talking Pictures Corp. v. Western Electric Co.,

304 U.S. 175 (1924) oc cccccccsssscscscsesesseecsesesssssececscssssssesesesessescesacsusecststacsceceensneensees 31

Hall v. Florida,

B72 U.S. 701 (2014) occ ce cecccccccesscessccssccscecssccseceascesecseesusevsueeseeeeasenaeeeasseaeeeaees Passim

In re Henry,

757 F.3d 1151 (11th Cir, 2014) ooo. ccccecceccceesceceseccesevencesecesseceseseseaseseeeseceeaatscaesass 26

In re Payne,

722 F. App’x 534 (6th Cir. 2018) ........ccccceccsccccsscesssssesecseseassesecsecsesescseessecssvaveveceas 22

Jones v. State,

lv

231 So. 3d 374 (Fla. 2017) ....ccccccsssssssscsesescsecsesseescceesesssescsvevevevaveseetasaeavaceeeeearseseass 29

Kalgore v. Sec’y, Fla. Dep’ of Corr.,

805 F.3d 1301 (11th Cir. 2015) oo. cccceccccecccesecccesceeseesecescssusauesuecsecsscees weeeeneees 22,27

Montgomery v. Louisiana,

B77 U.S. 190 (2016) .....eecceccscsecsesesssscsecsescssecsscsesesecscsecscsesecscsececscsessvasetavsceeeesaneceess 22

Moore v. Texas (Moore D),

BBL U.S. 1 (2017) .ecececccccccesescesessesesesesscscsesecscacsersceescsuccesesecsesecessesecsusassaseecscavaceaes 24

Moore v. Texas (Moore ID,

586 U.S. ----, 189 S. Ct. 666 (2019) oc eccccccccescssssssssescscssescecscsssceccscscsvevsessaeeneeeess 24

Nixon v. State,

B27 So. 8d 780 (Fla. 2021) ......ccccccccccccccssssscsccsecseceseseeseeeseaseatcarcatesccaeseeeessessecsessasisaas 25

Oats v. Florida,

181 So. 8d 457 (2015) oo... cccesescsesssscscescsesessesseecsesesesesseaesesacsssecssescsesscecsesesecesaceesete 23

Page v. Arkansas Natural Gas Corp.,

286 U.S. 269 (1982) ooo ceccceccccssccsscccssccessecssssccssccccecsucessscceseeesaceecarevsuessrseeesenseees 31

Payne v. State,

493 S.W.3d 478 (Tern. 2016) ....ccccccccscsssscsesscscsscscsessessssescsecsesescseceesececacsesensersssseees 22

Penry v. Lynaugh,

AQ2 U.S. 802 (1989) o...ecccceccccscsesscscsscsesscsecsecsccsesessssscsssecsscaecseseesescsecssescseesecssseansasees 27

Phillips v. Florida,

141 S. Ct. 2676 (2021) ooeceecceecccceccsccsccsscsesccssssucssessessseseeceevsassaevauesaeeaesateases 21, 25

Phillips v. State,

299 So. 3d 1013 (Fla 2020) ....c.ce ccc ceeccsscesseessecseccesesseecesecseeccenseseesssssasenicenseeaee Passim

Porter v. McCollum,

558 U.S. 30 (2009) oo. ec cececcecsscescescecceccesceccesesssssecsescesevsccseesueasesacseeeeeeaecaeeaesacaeeees 1,7

Rice v. Sioux City Mem Park Cemetery,

B49 U.S. 70 (1995) ...cccccccccccsccscsssscsesscssesssecsecsecsessesscecsecsesecsecsessessesessesecsesscsscsenemnaeess 28

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

AB2 U.S. 182 (1987) ..cecccccssccscscsescsesscssscscsesesscscsesssssesesesssassescesssessesecseseseasecesesacaceees 19

Salazar v. State,

188 So. 3d 799 (Fla. 2016) ......cecccccccccccscsscsecseessessesscecsessecsececsesseseecsecsecsecseeeesuavenees 29

Smith v. Sharp,

935 F.3d 1064 (LOth Cir. 2019) .....ceccccccccccecescsseseescsessecseesesecscescssceesceeceesecenneeass 24

State v. Jackson,

157 N.E. 3d 240 (Ohio Ct. App. 2020) ......ecccccceccesesssscessesssseeescssessssssssssessessssessees 22

State v. Lotter,

311 Neb. 878, 976 N.W.2d 721 (Neb. 2022) ......cccccccccccccscsscsscsessescesescscscsseecesesseevsees 24

Teague v. Lane,

A89 U.S. 288 (1989) .....ccccccccccecscsssssscsesecsessesesecsesscscscseseccessesssesecseseesesesevevsseneansens 25, 26

Thompson v. State,

341 So. 3d 303 (Fla. 2022) cert. denied sum nom, Thompson v. Florida, 143 8. Ct.

BOQ (ZOQS) .....ccccccccccccceccccccececscccesecssccecscetsceceusesusecsescsucevscsessuceecesenuseusessauseseessuassseeees 25

United States v. Johnston,

268 U.S. 220 (1925) oo.ceeecccccccsscscssssssceccesssceacecscsesscsacsscsessesusausaesuessesecsecseacsevaaeeses 31

Walls v. State,

213 So. 3d 340 (Fla. 2016) oe ceceecsccesceccessceccesesecceecessesscsssssceesecseessessessaucuessescssens 21

White v. Commonwealth,

BOO S.W. 8d 208 oo. ecccecsccsscssscscescecsecsecsesecsccecsecaeceveeveesaesesaesaceacaneaseaesses 22, 23, 25

Williams v. Kelley,

858 F.3d 464 (8th Cir. 2017) ....ecceceececceccesccecceccseccesceseeecessececsesseeesecesessueacusaesceas 22

Witt v. State,

387 So. 2d 922 (Fla. 1980) ......eccccecccseesceccssccecceesececesecsesceceesaecteeaeesseesessueseeessscseeas 21

Woodall v. Commonwealth,

563 S.W. 3d 1 (Ky. 2018) occ cccececcssccecccescesecseecesscessecseceesceseeceesecsceseaesseeeascseevens 23

Statutes

28 U.S.C. § 1257) oececccccccccesceccsccscessececsecseeseeseeseseeseeseeceesseseeveuseeseuseessessausassinsasssinesses 2

Section 916.106(12), Florida Statutes (2003) .....ccccccc ccc ccs cscs csecseceseeeseesssseeeaeens 9

Section 921.137(1), Florida Statutes (2001) .....ccccccccccceesccessseeeseccsesesseessessees 18, 20

Section 921.137(1), Florida Statutes (2004)... .cccccececccesceccecssececcececevreeaceeeears 14, 30

Rules

Florida Rule of Criminal Procedure 3.208 ............ccccccccccccccseesesesesesseseeeeeeeseeeees 1, 20, 31

v1

CITATION TO OPINIONS BELOW

The decision of which Petitioner, Guillermo Arbelaez (“Arbelaez”) seeks

discretionary review is reported as Arbelaez v. State, 369 So. 3d 1141 (Fla. 2023)

which was issued on May 25, 2023, and affirmed the denial of Arbelaez’s sixth

postconviction motion and denial of his Rule 3.203, Fla. R. Crim. P. motion where

he sought relief claiming he was Intellectually Disabled.!

To the extent that prior cases are relevant to the issue before this Court the

following cases are referenced.

Direct Appeal opinion: Arbelaez v. State, 626 So.2d 169 (Fla. 1993), cert.

denied, 511 U.S. 1115 (1994); Original postconviction litigation/state habeas

petition: Arbelaez v. State, 775 So.2d 909, 912-13, 914-15 (Fla. 2000) (remanded for

evidentiary hearing); Arbelaez v. State, 898 So.2d 25 (Fla. 2005) (denial of

postconviction relief following evidentiary hearing and making findings Arbelaez

was not intellectually disabled); First Successive postconviction litigation: Arbelaez

v. State, 72 So. 3d 745 (Fla. 2011), cert. denied, 566 U.S. 954 (2012) (affirming

denial of intellectual disability claims after evidentiary hearing); Second Successive

postconviction litigation: following. Arbelaez v. State, 88 So.3d 146 (Fla. 2012)

(affirming denial of relief and finding Porter v. McCollum, 558 U.S. 30 (2009) not

retroactive); Federal habeas litigation: Arbelaez v. Sec’y, Fla. Dep’t. Of Corr., 662

Fed. Appx. 718 (11th Cir. 2016), cert. denied, Arbelaez v. Julie Jones, Secretary,

1 While the parties and experts at trial and during postconviction litigation referred

to “mental retardation,” the State will substitute the now recognized term of

intellectual disability or ID where direct quotes are not being referenced.

Florida Department of Corrections, 583 U.S. 842 (2017); Third Successive

postconviction litigation/case under review: Arbelaez v. State, 369 So. 3d 1141 (Fla.

2023) (rejecting successive challenge to death sentence claiming intellectual

disability and seeking another evidentiary hearing based on Hall v. Florida, 572

U.S. 701 (2014), because Hall v. Florida found not retroactive in Phillips v. State,

299 So. 3d 1013, 1024 (Fla 2020)).

JURISDICTION

Petitioner, Guillermo Arbelaez (“Arbelaez”), is seeking jurisdiction pursuant

to 28 U.S.C. § 1257(a). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (“State”), accepts as accurate Petitioner’s

recitation of the Eighth and Fourteenth Amendments of the United States

Constitution.

STATEMENT OF THE CASE AND FACTS

This capital case is before this Court upon the Florida Supreme Court’s

determination in Arbelaez v. State, 369 So. 3d 1141, 1142 (Fla. 2023) that Arbelaez

is not entitled to relief on his successive postconviction motion on his intellectual

disability claim as the Florida Supreme Court stated in Phillips v. State, 299 So. 3d

1013, 1024 (Fla. 2020) that Hall v. Florida, 572 U.S. 701 (2014) does not apply

retroactively to cases on collateral review.

The following procedural and factual history is focused on the ID claim.

Arbelaez is in custody, under a death sentence, subject to lawful custody pursuant

to a valid judgment. He was indicted and convicted by a jury for the February 14,

1988, first-degree murder and kidnapping of five-year old Julio Rivas. The jury

recommended death by an eleven-to-one vote for the child’s murder, and the judge

followed that recommendation. Arbelaez v. State, 626 So.2d 169 (Fla. 1993), cert.

denied, 511 U.S. 1115 (1994).

On direct appeal, the Florida Supreme Court found that Arbelaez and the

victim’s mother, Graciela Alfara (“Graciela”) met at the Cafateria Blanquita where

she worked. Arbelaez, 626 So. 2d at 170. Over the next few months, they became

closer and around January 15, 1988, Arbelaez moved in with Graciela, her two

daughters, son Julio Rivas (“Julio”), and cousin; Arbelaez paid Graciela $150 per

month for a room he shared with her cousin. /d. Shortly thereafter, the relationship

turned intimate, but ended when Graciela accused Arbelaez of touching one of her

daughter's breasts. /d. On February 13, 1988, two days before Arbelaez was to move

out of the house according to Graciela, he learned that Graciela had left her work

early with another man. Waiting for Graciela to return, Arbelaez watched through

the peephole as Graciela kissed her companion good night. Jd. When she entered the

house, Arbelaez accosted her. In response, Graciela claimed not to love Arbelaez and

ordered him to leave the next day. Id.

The following morning, as Graciela’s cousin, Harlam Alfara (“Harlam”) was

preparing for work he saw Arbelaez and Julio watching television in the living

room. In response to Harlam’s question, Arbelaez stated he would not be going to

work that day. /d. at 171. When Harlam returned to the living room, Arbelaez and

Julio were gone. Jd. “At approximately 7:30 a.m., while Graciela was sleeping in her

room, Arbelaez took Julio and left the house.” /d. at 171. Arbelaez drove to the

cafeteria, and leaving Julio in the car, ordered coffee. Jd. Patrons, Francisca Morgan

and Juan Londrian reported that Arbelaez was calm as he related that Graciela was

seeing someone else and that he “was going to do something that would assure ‘that

bitch [meaning Graciela] is going to remember me for the rest of her life.” Jd. After

driving for a while with Julio in the car, Arbelaez called Graciela, but she refused to

talk to him. /d. As a result, he took the boy to the Rickenbacker Causeway in

Miami, raised the hood of the car to pretend it was disabled, and threw Julio off the

bridge into the water 70 feet below in revenge and a way to hurt Graciela for her

rejection of Arbelaez’s affection. Arbelaez, 626 So.2d at 171. Arbelaez then fled to

Pedro Salazar’s home where he confessed to his friend what he had done to Julio

and why he was so motivated. /d. Salazar loaned Arbelaez money for a flight to

Puerto Rico, which he booked under an assumed name. Ultimately, Arbelaez made

his way back to his family home in Columbia. Jd.

A month later, Detective Cadavid, contacted Arbelaez’s family in Medellin,

Columbia and was connected to Arbelaez. /d. at 171. When the “problem in Miami”

was broached, “Arbelaez responded that he knew he was in trouble, but that he

could not return to the United States because of a lack of documentation and

money.” Jd. at 171-72. The detective offered to assist with proper documentation

and airfare. As a result, the detective contacted FBI liaison officer Rubin Munoz. Jd.

Subsequently, Arbelaez contacted Agent Munoz and admitted he had problems in

Miami, that he had left out of fear, but would return to face prosecution as he had

caused the death of his girlfriend’s child. /d. In speaking to Agent Munoz and later

to Miami detectives, Arbelaez made detailed, audio and video-taped confessions.

Arbelaez, 626 So. 2d 172-75. Arbelaez told Agent Munoz, “As a Latin you would

understand the best way to get to a woman is through her children.” Therefore,

Arbelaez admitted “he threw the woman's son off the bridge in order to drown the

boy.” Id.

The medical and forensic testimony corroborated the information Arbelaez

gave during his multiple confessions while in Columbia and in Miami. Arbelaez, 626

So. 2d 174-75. During the trial, Arbelaez testified on his own behalf admitting to

taking Julio, but denying killing him, and instead, offered that the boy fell from the

causeway. /d. The jury rejected Arbelaez’s defense and convicted him of kidnapping

and first-degree murder. /d. at 175.

In the penalty phase, the defense offered in mitigation that Arbelaez had no

significant history of prior criminal activity and had returned from Columbia to

Miami voluntarily. Arbelaez, 626 So. 2d at 175. Arbelaez called friends to say he

was an “honest and hard-working individual who never took narcotics or drank

alcohol excessively.” Jd. The defense also presented mental health experts to report

that Arbelaez “suffered from chronic epileptic seizures and that his previous anti-

convulsion medication, Mysoline, had ceased to be effective” and the replacement

medication had negative side effects, but did not cause depression Jd The jury

recommended death by an eleven to one vote and the court found three aggravators:

(1) cold, calculated and premeditated; (2) heinous, atrocious, or cruel; and (3)

homicide was committed during the course of kidnapping. “In mitigation, the trial

court found that Arbelaez had no significant history of prior criminal activity and

the nonstatutory mitigating circumstance of remorse.” Arbelaez, 626 So. 2d 175.

Upon weighing the sentencing factors, the trial court sentenced Arbelaez to death.

Arbelaez, 626 So. 2d 175.

Arbelaez appealed his convictions and sentences to the Florida Supreme

Court, raising five issues, none of which are relevant here. The Florida Supreme

Court affirmed. Arbelaez, 626 So.2d at 175-78. On May 23, 1994, this Court denied

certiorari. Arbelaez v. Florida, 511 U.S. 1115 (1994).

Next Arbelaez filed a motion for postconviction relief in state court. Relevant

here, Arbelaez alleged that his penalty phase counsel failed to investigate and

present evidence regarding his mental state and background. (PCRI1 V.1 at 47-73).2

2 Referencing the record before the Florida Supreme Court in the multiple appeals.

Original Direct Appeal in SC60-77,668 - “DAR” “DAT” and “DAR-SR’ for the

record, transcript of proceedings and supplemental record, Arbelaez v. State, 626

So.2d 169 (Fla. 1993), cert. denied, 511 U.S. 1115 (1994).

First Postconviction Appeal in SC60-89375 - “PCR1” and “PCRI1-SR.” will

refer to the record on appeal and supplemental record on appeal of the summary

denial of Arbelaez's original postconviction motion, Arbelaez v. State, 775 So.2d 909,

912-13, 914-15 (Fla. 2000).

Second Postconviction Appeal in SC02-2284 - “PCR2” and “PCR2-SR’” refer to

the record on appeal and supplemental record on appeal in the appeal from the

denial after remand for an evidentiary hearing of Arbelaez's initial postconviction

motion "PCR2-EX” will refer to the separately paginated portion of the record

There, he alleged that mitigation evidence should have been presented in the form

of: (1) he suffered from epilepsy; (2) brain damage; (3) intellectual disability; (4)

other mental disorders; (5) he was raised in poverty; (6) that his family was

abusive/dysfunctional; and (7) that he had abused drugs during his childhood. Jd.

The state postconviction court summarily denied the motion, (PCR1v.2 at 346-79),

however, the Florida Supreme Court remanded for an evidentiary hearing on the

claim of ineffective assistance. Arbelaez, 775 So.2d a6 912-15.

In the appeal following the denial of relief after an evidentiary hearing, the

Florida Supreme Court found, with respect to evidence of intellectual disability

(“ID”) and organic brain damage, that counsel’s performance deficient as far as

investigating these issues; that counsel “ignored various red flags” and failed to

request a mental health evaluation. /d. at 33-34. However, the Florida Supreme

containing the exhibits admitted at the evidentiary hearing, Arbelaez v. State, 898

So.2d 25 (Fla. 20085).

Third Postconviction Appeal in SC05-1610 - “PCR3” and “PCR3-SR”

addressed to his motions for relief under Rule 3.203, Fla. R. Crim. P. and under

Atkins v. Virginia, 536 U.S. 304 (2002) refer to the record on appeal and

supplemental record on appeal in the appeal from the summary denial of Arbelaez's

second and third postconviction motions, and after remand for an evidentiary

hearing. Arbelaez v. State, 72 So. 3d 745 (Fla. 2011), cert denied, Arbelaez v.

Florida, 566 U.S. 954 (2012).

Fourth Postconviction Appeal in SC10-1038 - “PCR4” and “PCR4-SR’” refer to

the record on appeal and supplemental record on appeal in the appeal from the

denial of Arbelaez's fifth postconviction motion raising a Porter v. McCollum, 558

U.S. 30 (2009) claim. Arbelaez v. State, 88 So. 3d 146 (Fla. 2012); Federal Habeas

litigation Case No 12-23304-CIV Arbelaez v. Sec’y, Fla. Dept. of Corr., 43 F. Supp.

3d 1271 (S.D. Fla. 2014) and affirming denial of federal habeas petition at Arbelaez

v. Sec’y, Fla. Dep't of Corr., 662 F. App’x 7183 (11th Cir. 2016).

Fifth State Postconviction Appeal in SC 15-1628 - “PCRS” refers to the record

in the appeal of the denial of Arbelaez's sixth motion for postconviction relief which

raised a Hall v. Florida, 572 U.S. 701 (2014), Arbelaez v. State, 369 So. 3d 1141

(Fla. 2023).

Court concluded Strickland prejudice was not proven. It found Arbelaez did not

demonstrate he was Intellectually Disabled: at best he showed “low intelligence but

has a high level of adaptive functioning.” Arbelaez, 898 So. 2d at 35. While defense

expert, Dr. Ruth Latterner, opined that Arbelaez was ID, the trial court rejected her

“testimony as having ‘little if any evidentiary value as it is refuted by other mental

health professionals and other evidence, and is otherwise wholly unbelievable.” Jd.

at 36.

Important to the Florida Supreme Court was that fact “Dr. Latterner

admitted on cross-examination that, in reaching her finding of mental retardation,

she looked only at testing results and ‘refuseld] to consider’ Arbelaez's ability to

adapt to his surroundings, even though section 916.106(12), Florida Statutes (2003),

defines mental retardation as necessarily including ‘deficits in adaptive behavior.”

Arhelaez, 898 So. 2d at 36. The Florida Supreme Court credited the postconviction

court’s rejection of Dr. Latterner’s opinion given her refusal “to consider the

possibility that Arbelaez's difficult experiences on death row might have negatively

impacted his intellectual functioning and thus his testing results [.]” Consequently,

her 1995 findings would not have reflected accurately Arbelaez’s condition during

the 1991 trial. Jd. at 36.

As the Florida Supreme Court determined, the trial court found the State’s

mental health expert, Dr. Ruiz, and defense expert, Dr. Haber, “conclusively

refuteld]” Dr. Latterner’s testimony. /d. Countering Dr. Latterner, Dr. Ruiz

testified that Arbelaez was not ID and did not suffer from any other mental health

disturbances, although he may have a “borderline level” of ID considering the IQ

testing alone. The Florida Supreme Court continued, stating “[hlowever, unlike Dr.

Latterner, Dr. Ruiz also considered Arbelaez's ability to adapt to his surroundings.

She testified that Arbelaez's ‘adaptive level of functioning was quite high [so] that

you cannot label him as mentally retarded.” Id. at 36 (emphasis supplied) As the

Florida Supreme Court found, Dr. Haber concurred and even if Arbelaez, who has

“very limited intelligence” and was close to ID, he has “adapted to his environment

and “appeared to be functioning behaviorally within an adequate range.” Id. at 36

(emphasis supplied)

The Florida Supreme Court found the trial court’s assessment/rejection of Dr.

Latterner’s testimony supported by competent, substantial evidence warranting

deference on appeal. And refused to substitute its judgment for that of the trial

court on “questions of fact and, likewise, on the credibility of the witnesses and

weight to be given to the evidence.” /d. at 36. In finding Strickland prejudice had

not been proven, the Florida Supreme Court noted in part that the jury had the

benefit of testimony to assess Arbelaez’s low intelligence and also was able to

consider not only his detailed confessions, but trial testimony, where he claimed the

child’s death was accidental despite “strong evidence” of strangulation; “[t]he jury

therefore knew that Arbelaez had enough intelligence to plan and remember the

details of the murder, as well as enough intelligence to concoct a patently false story

to explain the boy's death.” Jd. at 36.

Arbelaez also litigated a successive postconviction relief claim based on

Atkins v. Virginia, 536 U.S. 304 (2002). During the ordered evidentiary hearing,

additional mental health experts were called. Following the evidentiary hearing,

the postconviction court issued a detailed 18-page order addressing the IQ and

adaptive functioning prongs. The IQ scores? by Dr. Weinstein were rejected as not

proven. This was found, not because of the scores obtained, but because of the fact

that the defense expert mixed the norming scales* and the State’s expert, Dr.

Suarez, determined the score was invalid because of Arbelaez’s malingering.

Additionally, Dr. Suarez testified that the IQ results were invalid because the

Mexican WAIS-III was given, but the United States’ norms were used. (PCR3 6403).

With respect to adaptive functioning, defense expert Dr. Tasse admitted on

cross-examination that relying on the recollection of individuals from decades

earlier, as Dr. Weinstein did, caused a concern for the accuracy of the information

these individuals provided. (PCR3 402-03) He admitted that a further concern about

the reliability of the information arose from the fact that the determination that a

person with ID might cause a benefit to the person and his family. (PCR3 403-04)

Dr. Thomas Oakland, a school psychologist, testified that had been involved in the

3 Dr. Weinstein administered the Spanish version of the WAIS-II] normed in

Mexico, the Bateria Woodcock-Munoz III and the Comprehensive Test of Non-

Verbal Intelligence (CTONI) to measure Defendant’s intelligence. (PCR3 157, 164)

Defendant obtained a full scale IQ of 65 on the WAIS-III; a full scale IQ of 59 on the

Woodcock-Munoz; and an IQ of 52 on the CTONI. (PCR3 171-73)

4 Dr. Suarez stated that it was important to consider culture in evaluating both

intelligence and adaptive functioning. (PCR3 897-98) He noted that education had a

large influence on IQ score and that the process of norming IQ tests took into

account the general education level of the population to whom the tests were to be

administered. (PCR3 894-99) He stated that using a norm that did not comport to

the test given rendered the score on the test meaningless. (PCR3 894-96, 900).

10

development of the Adaptive Behavior Assessment Scales (“ABAS”), a test of

adaptive behavior. (PCR3 434, 493-94) The test was developed using only United

States citizens. (PCR8 495) He stated that the ABAS would only be useful when

administered in a foreign country if the foreign country were similar to the United

States. He did not believe that it was appropriate to use the ABAS for Columbians.

(PCR3 583).

The State presented Dr. Enrique Suarez, a psychologist with a specialization

in forensic psychology and neuropsychology, who testified that it was important to

look at whether Arbelaez needed support to live a daily life to determine the level of

his adaptive functioning. (PCR3 860-78, 884-86) To assess this, Dr. Suarez reviewed

documents regarding Arbelaez’s life before the crime, police reports about the crime,

his confession, witness statements, Department of Corrections records, medical

records and the reports of the other experts who had evaluated Arbelaez. (PCR3

888-90) These documents revealed no evidence that Arbelaez had required support

to function in his daily life prior to being incarcerated, that he received support

while incarcerated, and that he was never suspected of being ID (PCR3 886-87, 891-

92) Further, Dr. Suarez stated the result of his other testing indicated that Arbelaez

was malingering and were not consistent with the type of false positives associated

with ID. (PCR3 994-1000, 1018-20) As such, Dr. Suarez opined that Arbelaez’s true

reasoning level was probably in the average range. (PCR3 999)

Dr. Suarez also interviewed Arbelaez, whose appearance and hygiene were

appropriate. (PCR3 925-29, 933, 938) During the interview, Arbelaez attempted to

11

evade questions by feigning memory lapses only to acknowledge the information

when pushed, denied artistic ability, later acknowledged it when confronted with

evidence of such ability and provided information regarding mental health

symptoms inconsistent with real mental illness, which raised further concerns of

malingering. (PCR3 939-40, 961-67, 972-74)

Arbelaez showed communication skills inconsistent with ID and provided

information about his ability to immigrate to this country, understand currency

exchange, live independently, travel independently, obtain employment, housing

and means of transportation, progress in his employment, develop social

relationships and care for others that was also inconsistent with ID. (PCR3 940-67)

He admitted to disliking school and using drugs instead, and the information about

his noncompliance with his medication was consistent with manipulation. (PCR3

954, 960) Further, Arbelaez was fluent in Spanish and had learned sufficient

English to communicate his needs, which is inconsistent with ID. (PCR3 967-69)

Moreover, information that Arbelaez provided was consistent with information from

the records Dr. Suarez reviewed. (PCR3 955-56) The information about the

planning of the crime and escape thereafter was also inconsistent with ID. (PCR3

974-79) To further assess Arbelaez’s present functioning, Dr. Suarez administered

the ABAS to prison officials. (PRR3 1001-06) The information he received from

these tests and the records review was inconsistent with functioning deficits. (PCR3

988-89, 1002, 1007-08) As a result, Dr. Suarez opined that Arbelaez was not

intellectually disabled. (PCT4. 1009).

12

With respect to the adaptive functioning prong of ID, the trial court found the

only defense expert to address Arbelaez’s adaptive functioning was Dr. Weinstein

who placed “considerable weight” on the ABAS given to Arbelaez’s mother and

teacher who had taught Arbelaez when he was in sixth grade (some 37 years ago)

and rarely saw him after that time and never after he left for the United States, and

was pained that he was on death row. (PCR3 36 6403) Dr. Oakland, another defense

expert and a developer of the ABAS test, challenged “the validity of the use of the

ABAS by Dr. Weinstein.” (PCR3 36 6403) The trial court found that “[alccording to

Dr. Oakland, the ABAS respondents must be people who have knowledge of and

frequent extended contact with the person being assessed. It is also important that

the contact be recent.” (PCR3 36 6403) Equally important to the trial court was the

fact that during Dr. Weinstein’s 2007 evaluation of Arbelaez, he made no attempt to

determine current adaptive functioning.5 (PCR3 36 6403). The trial court concluded

that merely assessing adaptive behavior before the age of 18 was insufficient to

prove ID and improper as it ran counter to Florida’s definition of ID which required

assessment of current adaptive functioning. (PCR3 36 6403). Based on that

5 The trial court found:

When Dr. Weinstein conducted his testing of Defendant’s IQ in 2007,

he made no attempt to obtain any information regarding Defendant’s

current adaptive behavior. He wholly relied on the use of a

retrospective diagnosis, focusing, on adaptive behavior during

Defendant’s childhood and early adult life prior to the crime in 1988.

Additionally, all the testimony presented by Defendant’s lay witnesses

focused on this time period.

(PCR3 36 6403)

13

assessment, Arbelaez’s ID claim was rejected. (PCR3 36 6403).

The Florida Supreme Court affirmed the denial of relief announcing

“Arbelaez did not prove that he has concurrent deficits in adaptive behavior as

required by section 921.137(1), Florida Statutes (2004), and Florida Rule of

Criminal Procedure 3.203(b).” Arbelaez, 72 So.3d at 745.

In his federal habeas litigation addressed to the ID claim, the Eleventh

Circuit Court of Appeals recognized that the circuit court, assumed that the IQ

prong was met, and reviewed the state court decision on the adaptive functioning

deficiency prong alone as had the Florida Supreme Court. Arbelaez v. Secretary,

Fla. Dep't of Corrections, 662 Fed. Appx. 713, 722-23 (11th Cir. 2016,) cert. denied,

583 U.S. 842 (2017). The circuit court recognized the difficulty in assessing adaptive

functioning deficits of an incarcerated defendant but found that nothing in Atkins

or Hall v. Florida “speak directly to the methodology for discerning an individual’s

deficits in adaptive functioning” and as such, the Florida Supreme Court’s decision

was “beyond any fairminded disagreement.” Arbelaez, 662 Fed. Appx. at 723.

Hence, Arbelaez did not carry his burden and federal habeas relief was denied.

Similarly, Arbelaez’s challenge to the state court’s factual findings as

unreasonable was rejected in his federal habeas review. Arbelaez, 662 Fed. Appx. at

723. The circuit court recounted the facts related to adaptive functioning and noted,

“lals to deficits in adaptive behavior, Dr. Weinstein testified that he did not

formally assess Arbelaez’s deficits concurrent with the IQ evaluation, although he

generally observed some deficits during the evaluation.” Arbelaez, 662 Fed. Appx. at

14

718. The Eleventh Circuit also recognized that Dr. Weinstein rejected consideration

of Arbelaez’s ABAS tests conducted while he was in prison and that this was

inapposite to how the state’s expert, Dr. Suarez, and trial court appointed expert,

Dr. Ruiz, assessed the adaptive functioning prong. The Eleventh Circuit noted that

Dr. Suarez considered information from before and during Arbelaez’s incarceration,

“including formal tests of concurrent adaptive functioning” and opined Arbelaez was

not ID. This opinion was reached because Arbelaez: (1) “needed no support to

function in his daily life (he was able to drive and run errands and he

communicated with others, even in English);” (2) made his way from Columbia to

the United States “with relatively little assistance;” (3) “secured employment and

performed adequately;” (4) “used an alias at work;” and (5) fled the United States

after the kidnapping and murdering of Julio. Arbelaez, 662 Fed. Appx. at 718-19.

Additionally, the test results Dr. Suarez obtained showed “Arbelaez’s reasoning

level was probably in the average range.” /d.

The Eleventh Circuit also considered Dr. Ruiz’s testimony. Jd. Like Dr.

Suarez, Dr. Ruiz testified that after interviewing Arbelaez, she did not find

Arbelaez intellectually disabled in part “because he reported that he had traveled

alone to Venezuela, the Bahamas, Panama, and Jamaica before coming to the

United States and had held and performed a variety of jobs before being

incarcerated.” Arbelaez, 662 Fed. Appx. at 718-19. Dr. Ruiz also administered

several tests to Arbelaez reviewed background materials/reports which allowed her

to conclude “Arbelaez had a borderline intelligence level, no intellectual disability,

15

and abilities to communicate and live independently that were inconsistent with

intellectual disability.” Jd.

The federal court’s assumed the IQ prong had been met and focused on the

adaptive deficits prong finding Arbelaez could not show the Florida Supreme

Court’s conclusion that adaptive deficits were not proven was an unreasonable

determination of the facts. Arbelaez, 662 Fed. Appx. at 724. The Eleventh Circuit

Court observed that “l[a]lthough Dr. Weinstein made observations of Arbelaez's

adaptive behavior during the in-prison evaluation, Ae conceded that he failed to use

any formal measure to assess Arbelaez's adaptive functioning concurrent with the

IQ@ testing..” This, the court found was in contrast with Dr. Suarez’s assessment;

such was done both “retrospectively and concurrently with intellectual functioning

testing” resulting in a finding that Arbelaez “lacked the requisite adaptive

behavioral deficits” necessary to prove ID. /d. (emphasis supplied) It was the

court’s conclusion that “[blecause the basis for Dr. Suarez's opinion more closely

tracked Florida's definition of intellectual disability, the Florida Supreme Court was

entitled to credit Dr. Suarez's opinion over Dr. Weinstein's.” Jd. Consequently,

Arbelaez failed to prove entitlement to federal habeas relief. Jd.

During the pendency of his federal litigation, Arbelaez filed his sixth

postconviction motion and contended Aal/ v. Florida required the court to

reconsider its prior rejections of the ID claims. He averred Hal/ v. Florida required

the States to adopt the ID definition provided by the American Association of

Intellectual and Developmental Disabilities and interpret and apply that definition

16

in accordance with its views on how ID should be used forensically. Arbelaez argued

he needed another evidentiary hearing. The State responded that the motion was

untimely, successive and that Hall v. Florida merely held that it was

unconstitutional for Florida to refuse to allow a defendant whose IQ’s were above 70

but within the standard error of measure of 70 to present evidence of the other two

prongs of ID claims. Because Arbelaez had not been precluded from presenting such

evidence, the State asserted that Hall v. Florida was inapplicable.

On June 18, 2015, the postconviction court denied the motion and determined

that Hall v. Florida had not created any new rights and had merely required that

courts consider the standard error of measure in determining whether a defendant’s

IQ score satisfied the first prong of ID. The postconviction court concluded that

because Arbelaez had failed to prove the second prong of his ID claim Hail v.

Florida was inapplicable here. Arbelaez appealed that ruling. The Florida Supreme

Court found “Arbelaez is not entitled to postconviction relief based on his

intellectual disability claim. As this Court stated in Phillips v. State, 299 So. 3d

1013, 1024 (Fla. 2020), Hall lv. Florida] does not apply retroactively. Accordingly,

we affirm the circuit court's order summarily denying Arbelaez's successive motion

for postconviction relief. Arbelaez v. State, 369 So. 3d 1141, 1142 (Fla. 2023), reh'g

denied, 370 So. 3d 932 (Fla. 2023).

17

REASONS FOR DENYING THE WRIT

ISSUE I

CERTIORARI REVIEW OF THE DENIAL OF

POSTCONVICTION RELIEF SHOULD BE DENIED AS

THE FLORIDA SUPREME COURT'S FINDING HALL V.

FLORIDA ANNOUNCED A NEW PROCEDURAL RULE

OF LAW THAT IS NOT RETROACTIVE DOES NOT

PRESENT ANY MEANINGUL CONFLICT WITH A

DECISION OF THIS COURT OR ANY FEDERAL

CIRCUIT COURT OR STATE COURT OF LAST

RESORT. MOREOVER, ARBELAEZ HAS FAILED TO

SHOW THAT HALL V. FLORIDA IS DISPOSITIVE OF

HIS CASE AS HE RECEIVED TWO PRIOR

EVIDENTIARY HEARINGS ON INTELLECTUAL

DISABILITY AND WAS UNABLE TO ESTABLISH

THAT HE HAS ADAPTIVE FUNCTIONING DEFICITS

(RESTATED).

Arbelaez asserts that the Florida Supreme Court erred in finding that Hall v.

Florida announced a new rule of law, but that it was not retroactive to cases on

collateral review. Hall v. Florida held that a defendant with an IQ score within the

standard error of measurement (“SEM”) may not be precluded categorically from

attempting to prove the other prongs of an ID claim. Hal/ v. Florida, 572 U.S. at

723. Certiorari should not be granted in this case as the Florida Supreme Court

correctly determined that Hal/ v. Florida announced a new procedural rule and did

not categorically place certain criminal laws and punishments beyond that power of

the State, thus, retroactive application was not appropriate to those cases final and

on collateral review. That decision does not present any meaningful conflict with a

decision of any other state court of last resort or a decision of any federal court of

appeals. To the contrary, there is a growing consensus that Hal/ v. Florida is not

retroactive to postconviction cases. Moreover, Arbelaez cannot show that Halli v.

18

Florida applies to his case. His reviewing courts assumed the IQ prong was met,

provided Arbelaez with evidentiary hearings to prove his ID claim, and determined

that Arbelaez failed to prove deficits in adaptive functioning, one of the three

prongs necessary to prove ID.

The Florida Supreme Court’s opinion did not decide an important question of

federal law in a manner that conflicts with a decision of this Court. See Sup. Ct. R.

10. This Court has noted that cases which have not divided the federal or state

courts or presented important, unsettled questions of federal law do not usually

merit certiorari review. Rockford Life Ins. Co. v. Illinois Dep't of Revenue, 482 U.S.

182, 184 n.3 (1987). Moreover, this is a highly fact dependent case—facts developed

after two evidentiary hearings, which supports the conclusion that Arbelaez

obtained any possible benefit of this Court’s decision under Hail/ v. Florida.

Arbelaez’s IQ score was simply not a dispositive factor in this case. Arbelaez does

not suffer from deficits in adaptive functioning as required to prove ID. As no

compelling reason for review has been offered certiorari should be denied.

A. History leading to the Florida Supreme Court’s determination

that Hall v. Florida is not retroactive to cases on collateral review.

In 2002, while Arbelaez was litigating his original postconviction motion, this

Court decided Atkins v. Virginia, 536 U.S. 304 (2002). But Atkins “did not provide

definitive procedural or substantive guides for determining when a person who

claims [intellectual disability]” is protected by the Eighth Amendment. Bobby v.

Bies, 556 U.S. 825, 831 (2009). Instead, the Court left “to the Statels] the task of

developing appropriate ways to enforce the constitutional restriction upon [their]

19

execution of sentences.” Atkins, 536 U.S. at 317.

Even before Atkins was decided, Florida law barred the imposition of death

sentences on the intellectually disabled. Fla. Stat. § 921.137 (2001). Following

Atkins, the Florida Supreme Court promulgated Florida Rule of Criminal Procedure

3.203, which allowed prisoners whose sentences had already become final on direct

review to seek relief under Atkins. See Fla. R. Crim. P. 3.203(d)(4) (2004). More

than a decade later, this Court considered whether Section 921.137 was

unconstitutional to the extent it barred an ID claim based on a strict IQ-score cutoff

of 70, even if the claimant’s score fell within the test's margin of error. Hall v.

Florida, 572 U.S. at 722-23. “On its face,” the Court noted, “this statute could be

interpreted consistently with Atkins and with the conclusions this Court reaches in

the instant case.” /d. at 711. As this Court saw it, “Inlothing in the statute precludes

Florida from taking into account the IQ test’s standard error of measurement,” and

this Court found “evidence that Florida’s Legislature intended to include the

measurement error in the calculation.” /d. The Florida Supreme Court, however,

had interpreted Section 921.137 to impose a “strict IQ test score cutoff of 70.” Jd. at

711-12 (citing Cherry v. State, 959 So. 2d 702, 712-713 (Fla. 2007) (per curiam)).

Confined by that reading, this Court concluded that the statute unconstitutionally

barred a capital defendant with a score “within the margin for measurement error”

from raising a claim of intellectual disability. /d. at 712, 724.

In support of that conclusion, this Court noted that “the precedents of this

Court,” including Atkins, “give us essential instruction, but the inquiry must go

20

further.” Jd. at 721 (citation omitted). Thus, this Court considered the views of the

States, the Court’s precedent, and the views of medical experts. /d. Florida’s brightline IQ cutoff, was held to impermissibly “bar consideration of evidence that must

be considered in determining whether a defendant in a capital case has intellectual

disability.” Jd. at 723. At bottom, Hal/ v. Florida requires that States “take into

account the standard error of measurement” by allowing a capital defendant “the

opportunity to present evidence of his intellectual disability, including deficits in

adaptive functioning over his lifetime.” /d. at 724.

Two years later, the Florida Supreme Court held that, under state law, Hall

v. Florida applied retroactively. Walls v. State, 213 So. 3d 340, 346 (Fla. 2016)

(citing Witt v. State, 387 So. 2d 922 (Fla. 1980) (announcing test for applying rule

retroactively under Florida law)). The court in Walls did not consider whether Hail

v. Florida applies retroactively under federal law and, as explained below, the court

would later recede from that decision in Phillips v. State, 299 So. 3d. 1031 (Fla.

2020), cert. denied, Phillips v. Florida,141 S. Ct. 2676 (2021).

In PAillips, the Florida Supreme Court considered whether Ha// v. Florida

applied retroactively under federal law. It concluded that because “Ha// announced

a new procedural rule, which does not categorically place certain criminal laws and

punishments altogether beyond the State’s power to impose but rather regulates

only the manner of determining the defendant’s culpability,” it did not. Jd. at 1022.

Instead, it found “Ha//is similar to other nonretroactive ‘decisions [that] altered the

processes in which States must engage before sentencing a person to death, which

21

‘may have had some effect on the likelihood that capital punishment would be

imposed’ but which did not render ‘a certain penalty unconstitutionally excessive for

a category of offenders.” Jd. (quoting Montgomery v. Louisiana, 577 U.S. 190, 211-

12 (2016)). Receding from Walls, the court opined “HaJ?s limited procedural rule

does nothing more than provide certain defendants—those with IQ scores within

the test’s margin of error—with the opportunity to present additional evidence of

intellectual disability.” Phillips, 299 So. 3d at 1022-23.

B. The Florida Supreme Court’s decision finding that Aal/ v.

Florida is not retroactive does not establish a clear split in state and

federal courts and therefore does not warrant certiorari review.

There is no meaningful split among the lower courts warranting this Court’s

review. Nearly all the courts that have addressed the retroactivity of Hall v. Florida

agree with the Florida Supreme Court’s conclusion in Pa&illips, and either hold or

opine that Hall v. Florida does not apply retroactively on collateral review. See Jn re

Payne, 722 F. App’x 534, 538 (6th Cir. 2018); Williams v. Kelley, 858 F.3d 464, 474

(8th Cir. 2017) (per curiam); Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301,

1314-15 (11th Cir. 2015); Payne v. State, 493 S.W.3d 478, 489-91 (Tenn. 2016);

State v. Jackson, 157 N.E. 3d 240, 253 (Ohio Ct. App. 2020) (citing the “substantial

and growing body of case law that has declined to apply Hal/.. . retroactively”).

Although the Supreme Court of Kentucky has come out the other way, that

case does not give rise to the kind of split that calls for this Court’s review, nor as

explained below a basis for relief for Arbelaez. In White v. Commonwealth, 500 S.W.

3d 208 (Supreme Court of Kentucky summarily concluded Hall v. Florida “does not

22

iit9

deal with criminal procedure,” but imposed “a substantive restriction on the State’s

power to take the life” of individuals suffering from intellectual disabilities, and

that it “must be retroactively applied.” White v. Commonwealth, 500 S.W.3d 208,

214-15 (Ky. 2016), as modified (Oct. 20, 2016), and abrogated on other grounds by

Woodall v. Commonwealth, 563 S.W. 3d 1 (Ky. 2018). The court’s opinion included

only one paragraph addressing the question presented. Jd. at 215, and that

paragraph cited, in passing, just two cases: this Court’s decision in Atkins, which

preceded Hall v. Florida and arose on direct review, and thus had no occasion to

address whether state courts must apply Hal/ v. Florida retroactively to cases on

collateral review; and the Florida Supreme Court’s now-rejected view that Had/ v.

Florida applies retroactively as a matter of state law. See Jd. (citing Oats v. Florida,

181 So. 3d 457 (2015), and noting that the Kentucky court’s ruling put it “in the

company of our sister state Florida which, of course, was the state in which the

underlying issue in Hal/ first arose”). Given that the Florida Supreme Court has

recently overruled its state law retroactivity ruling and held that Hal/ v. Florida

does not apply retroactively as a matter of state or federal law, the Kentucky

Supreme Court is no longer “in the company of’ the state in which Hal/ arose—and

might well be amenable to revisiting its conclusory decision announced in White. At

a minimum, the Kentucky court should have an opportunity to reconsider—and

provide a reasoned basis for—its decision before this Court is asked to resolve a

conflict arising out of Waite.

The Tenth Circuit has also discussed whether Hall v. Florida is a “new rule,”

23

[OCR skipped on page(s) 31-39]

[Read from a scan; the first 30 pages.]