Opposition Brief — Christian Cruz, Petitioner v. Florida

Supreme Court briefJan 25, 2024

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DOCKET NO. 23-6415

IN THE SUPREME COURT OF THE UNITED STATES

CHRISTIAN CRUZ

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

ASHLEY MOODY

ATTORNEY GENERAL

C. SUZANNE BECHARD*

Associate Deputy Attorney General

Florida Bar No. 147745

*Counsel of Record

PATRICK A. BOBEK

Assistant Attorney General

Florida Bar No. 112839

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa. Florida 33607

Telephone: (813) 287-7900

capapp@myfloridalegal.com

carlasuzanne.bechard@myfloridalegal.com

patrick. bobek@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

[Capital Case]

Whether certiorari review should be denied where the

Florida Supreme Court’s affirmance of Petitioner’s death

sentence was a proper application of this Court’s decision

in Pulley v. Harris, which held that relative culpability

analysis is not constitutionally required?

TABLE OF CONTENTS

CONTENTS

QUESTION PRESENTED FOR REVIEW... cececseeeseceeeeeseeeeeeeneceneeseeseeeeesenees a

TABLE OF CONTENTS o.oo. ccc eee ces cesceeessaeeesaeceseeseeaeesseeseseeseasesseeeeseneesaneseeeesaes il

TABLE OF AUTHORITIES... eee ceaceeeseceesseeeeaceseaeeesaeeesaneseaeeeneeseeaeeseaeteeasesneeees lil

CITATION TO OPINION BELOW. 00... eecccecscceseceeeseeeeneeeeaeeeeaeeseaeesearensceeeeseeeseesseeees 1

STATEMENT OF JURISDICTION... ce eceececeeeeneeeneeceeesenseeeseeseeeesenesensessees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1

STATEMENT OF THE CASE ooo... eee eeceeceessncceeeenceeeeneeseseneeeesseseeeseneeeesaaeresanesseeeessas 2

REASONS FOR DENYING THE WRIT 00000... eee ccc ce cess eeseeseseeeesaeeesaeseasenaeeesaes 4

Certiorari review should be denied because the Florida Supreme Court’s decision

that relative culpability is not constitutionally required was a proper application

of Pulley v. Harris, it does not conflict with any decision of this Court or involve

an important, unsettled question of federal law, and some of Petitioner’s

challenges are to matters of state law interpretation. ..............ccccessseseceeceeeessneeeeneeees 4

CONCLUSION .... cece eeeecceesneeeceseetesscecensceesessaeceenssueecenaasessuaeessseasesseeeeeseaseseeneeseneeeeas 13

TABLE OF AUTHORITIES

Page(s)

CASES

Bartlett v. Stephenson,

585 U.S. 1801 (2002)... cccecccecccccsscecscverccesesecccececeaeccaecescessecenseceseesesesseesaesneenecs 11

Beardslee v. Woodford,

358 F.3d 560 (Oth Cir. 2004)... cccccesssscsesescsesessssescsesesececsesceesessesseesssesisueneeseesssesasens 8

Brogdon v. Blackburn,

790 F.2d 1164 (5th Cir. 1986)... ccceccccccceesscccececseccccecececsccceesensccececeesesitseeesseesensnees 9

Bush v. Singletary,

99 F.3d 373 (11th Cir. 1996)........ccccccscscsssssscsscscseessscsesecsesssscseecsesscaseecsecseseeeecscscaeseess 9

Cruz v. State,

320 So.3d 695 (Fla. 202D) .o..cccccccccccccsssesseccsscsesscsessesscssesesecsssecsacseseeceesseeesaneecee passim

Cruz v. State,

372 So.3d 1237 (Fla. 2028) ......cccccccccsscsscsscescecsecscceeseecseceecseesecsseseseeseneseasaseees passim

Daniels v. United States,

VAST: We ms 6 Os Ol a0 9

Eddings v. Oklahoma,

A455 U.S. 104 (1982)... cceccscsscsessesseesessecsessessessessessessessessessecsessecsessececaeeseenensseseteass 10

Enmund v. Florida,

458 U.S. 782 (1982)... .cccccccccscssececeseesseccececeneneeesecuecsesssnuceeeesessaaeeeeseecseeesecseaneeens 6, 7,8

Furman v. Georgia,

A408 U.S. 238 (1972)... cecccccscccesssccecessecessscccecsscecsnsecesscecceseeeesssaceuseusegesenacevsuaessneenueess 5

Gregg v. Georgia,

AQB U.S. 153 (1976) ...ccccccccccscsceecssssesseesscsessesessssesessesesssacsesseseseeecaeseesseecsessesessescsesereseees 5

Hatch v. Oklahoma,

58 F.3d 1447 (LOth Cir, 1995)... ccccccccscccscssceecsssscssecsecsessessssscsescsucsecsecseseevsvacsueaaees 9

Hurst v. Florida,

B77 U.S. 92 (2016)... .ccccccceccccsesscscsessesessescsecsesesesassesasecsceacsesacsesessecsecaeatenereceencatacaaes 11

Jurek v. Texas,

ALB U.S. 262 (1976)... ccecccssscscsscsescesscscscsessvacecscscsesesssssasseserssesaeseaesesseacsaeeeaeaticseseeeenes 5

Lawrence v. State,

308 S0.3d 544 (Fla. 2020) .o..c.cccccsccsscsccsecsscsesseesesscsscsscsseeacsecsesscssccsesseseecseseceusstavenees 4

Lockett v. Ohio,

438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) .....cccccscscscsssseseseseseesesetesesseereaes 7

McCleskey v. Kemp,

ABI U.S. 279 (1987)... eeececcsccceessseccessseecssncecesssccessceesessucecsssaeseuacecesscseessatceeecatecseceeeees 8

Meyer v. Branker,

506 F.3d 358 (4th. Cir. 2007) .....cccccecceccsscsscsscssesscssessesesscstssccssesessecsscscessessesecscavecenevas 9

People v. Caballero,

206 T11.2d 65 (IIL. 2002) ooo eee ee eececesscessecesecececcceseecssceeseccesseessasessacecetesecaecesaenseensers 10

People v. Maciel,

57 Cal. 4th 482 (Cal. 2018) .......cccccsccssssscsessssescscsesescsesssscscsesesevssececsseesseseaesseseatsscecsees 10

Postelle v. State,

267 P.3d 114 (Okla. 2011) woe eee ceeseecssecescecceeccceseeeseecesessusuesesseessesauecseenses 10

Profitt v. Florida,

AQ8B U.S, 242 (1976) ..ccccccccccscscsssessssescscssnecsesesececsesssssesssssstsesesssecscsescsesessescsssavavavaeeneats 5

Pulley v. Harris,

AGB U.S. 37 (1984) ooo cceccecccccscsesscsessveccoeeseceucecsucsscscssessssseesaesecsecassasasesssassessesseeees 4,5

Rockford Life Insurance Co. v. Illinois Department of Revenue,

ABQ. U.S. 182 (1987) ...cccccccscsccscscsesssscsesecsesesessesessesssssscsesesscsesecsesessaceecsesecseeneecsceeeates 11

Roper v. Simmons,

543 U.S. 551 (2005)... cceccccsescsesesssssessscscscseseseseesssssucscsesesesesessesseseceeevseseceeevensnseeas 11

Sattazah v. Pennsylvania,

B87 U.S. 10] (2008) oe ceecccccccccccsccccecessceccsuecccasecseeusscescaeeusuesecauescassessasecaaceseceseeses 12

Tison v. Arizona,

AB1 U.S. 137 (1987) ...cccccccccscsssssesssscscseseseescsesescsesesesssssesaeaesasececsesesesesasscseeeeeseseasenes 6,7

United States v. Lee,

374 F.3d 687 (8th Cir, 2004)... cece cc eeeececscsessccesceseseeaeecesassccssasessssssesssssessssessereserns 9

United States v. Haehle,

227 F.3d 857 (7th Cir. 2000)... cece ceesscccsscesccessecssccuceseecssccsecceescsssecsecessecsucnavenaeees 11

Village of Willowbrough v. Olech,

52S U.S. 562 (QO) ....ccccccccccsccscsescsseecsecscsscsescesesssscsesesaesesscecseseesesaescsecesaesasseeeeseseenees 11

Woodson v. North Carolina,

428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)... ..cceecceccecceescesscesseeesstaeeeees 7,8

Yacob v. State,

136 S0.3d 539 (Fla. 2014) oo..c.cccccccccscsssssssssecsscsecsesecsessesececsecsecsesecsessesesaeeaseessnsecseess 12

Zant v. Stephens,

AG2 U.S. 862 (1983) ....cccccccccescssscsssscscsecsessesecsesssscsesecsesessscsessesesscsesecsesesesscsecsesesesecsesses 5

Zucht v. King,

260 U.S. 174 (1922) .o.cececcccccccssesesescecscscssesesessacscsesssacsessacscesuesassceesnssecasscsasecseecsavaees 10

STATUTES

QB U.S.C. § T2578) occeeccccecccccscescsessesessesssssssessessessessssesesssssssasseuscsesacsecsanscsecsaeasescsesseeeseens 1

CITATION TO OPINION BELOW

The opinion of the of the Florida Supreme Court affirming Petitioner’s

convictions and sentences can be found at Cruz v. State, 372 So.3d 1237 (Fla. 2023).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on July 6, 2023. (Pet.

App. A). Petitioner asserts that this Court’s jurisdiction is based upon 28 U.S.C. §

1257(a). Respondent agrees that this statutory provision sets out the scope of this

Court’s certiorari jurisdiction, but submits that this case is inappropriate for the

exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner's statement regarding the applicable

constitutional and statutory provisions involved.

STATEMENT OF THE CASE

Petitioner and a co-defendant, Justen Charles were convicted of several crimes

in this case including the first-degree murder of Christopher Jemery. Cruz v. State,

320 So.3d 695, 705 (Fla. 2021). Jemery had recently moved into the apartment, which

had previously been occupied by a drug dealer whom the two defendants believed still

lived there. Jd. The evidence showed that the two made forcible entry into the

apartment and bound Jemery with duct tape. /d. at 705-6. He also suffered from what

appeared to be a prolonged beating, as blood was found throughout the apartment

and he had injuries to his face, hands, and torso, including cuts, bruises, lacerations,

and defensive wounds. /d.

After beating him and ransacking his home, Petitioner and Charles put Jemery

in the trunk of his own car. /d. at 705. They drove him to a remote location and shot

him in the head. /d. He was found the next morning near the Sanford airport, still

bound, but breathing shallowly. /d. at 705-6. Although he initially survived the

attack, he never regained consciousness and died at the hospital within a day. /d. at

706.

Several pieces of evidence tied Petitioner to the crimes, including his

fingerprint on a piece of duct tape recovered from the body, his fingerprints on a shoe

box at the apartment and the victim’s cellphone, and his shoeprints tracked in the

blood all over the apartment. /d. at 706; 717. His DNA was also found in the victim’s

car, and he was seen on a surveillance camera using the victim’s debit card the

morning Jemery was found. /d. at 717.

Following the guilt phase of his trial Petitioner was found guilty of first-degree

murder, burglary while armed, robbery with a firearm, and kidnapping. /d. at 708.

The jury also made special findings that he had possessed and discharged a firearm.

Id. During the penalty phase the state introduced evidence of a subsequent robbery

Petitioner and Charles committed, which was captured on surveillance camera. /d.

at 709. After hearing the presentation of aggravation and mitigation, the jury

unanimously recommended a sentence of death. At sentencing, the trial court found

five aggravating factors: (1) Cruz was previously convicted of a felony involving the

use or threat of violence to another person for the Hungry Howie's robbery committed

shortly after murdering Jemery (great weight); (2) the first-degree murder was

committed while Cruz was engaged in a robbery, burglary, or kidnapping, merged

with the first-degree murder was committed for financial gain (great weight); (3) the

first-degree murder was committed for the purpose of avoiding arrest (great weight);

(4) the first-degree murder was especially heinous, atrocious, or cruel (great weight);

and (5) the first-degree murder was committed in a cold, calculated, and premeditated

manner (great weight). /d. at 710. The court considered and found as proven all

thirty-seven of his proffered mitigators, but followed the jury’s recommendation and

sentenced him to death. /d. At the conclusion of Charles’ eventual trial he received a

life recommendation from the jury and was sentenced to life in prison. /d. at 724

In his first appeal he challenged that jury’s special findings and the Florida

Supreme Court agreed there was not enough evidence to support the jury’s findings.

Id. at 717. However, they did not reverse his conviction, and his death sentence was

reversed for a different issue: that the trial court had partially relied on evidence

presented in Charles’s trial, but not Petitioner’s, in his sentencing order. Jd. at 723.

The case was remanded for the sole purpose of the trial court issuing a new

sentencing evaluation, not for Petitioner to receive a new penalty phase. /d. On

remand, Petitioner was again sentenced to death despite the fact Charles had

received a life sentence, which became the sole issue of his next appeal. Cruz v. State,

372 So.3d 1237, 1241 (Fla. 2028).

The Florida Supreme Court held that relative culpability analysis, which says

that equally culpable defendants should be punished equally, was _ not

constitutionally required, and so Petitioner's death sentence could stand despite

Charles’s life sentence. Jd. at 1245. This Petition follows.

REASONS FOR DENYING THE WRIT

Certiorari review should be denied because the Florida Supreme Court's

decision that relative culpability is not constitutionally required was a

proper application of Pulley v. Harris, it does not conflict with any

decision of this Court or involve an important, unsettled question of

federal law, and some of Petitioner’s challenges are to matters of state

law interpretation.

In 2020, the Florida Supreme Court held that its comparative proportionality

review in death penalty cases violated the state constitution, which required that

court to interpret the Eighth Amendment in conformity with this Court’s decisions.

Lawrence v. State, 308 So.3d 544 (Fla. 2020). It cited this Court’s holding in Pulley v.

Harris, 465 U.S. 37 (1984) which held, “There is ... no basis [in Supreme Court case

law] for holding that comparative proportionality review by an appellate court is

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

requests it.” Jd. at 50-1.

In Harris, this Court first explained the difference between its traditional

proportionality analysis, which compared the sentence to the crime, and the type of

proportionality review Harris was seeking, which compared the sentence in a

particular case to the sentence imposed on others convicted of the same crime. Harris,

465 U.S. at 42-44. Harris relied mainly on Furman v. Georgia, 408 U.S. 238 (1972)

and Zant v. Stephens, 462 U.S. 862 (1983), to support his view that the constitution

mandated proportionality review in capital cases, but this Court rejected his reading

of both. /d. at 44-50. The Harris Court discussed that the emphasis in numerous other

capital cases was on “the constitutionally necessary narrowing function of statutory

aggravating circumstances.” /d. at 50. The Court explained that proportionality

review was “an additional safeguard against arbitrarily imposed death sentences” but

“we certainly did not hold that comparative proportionality was constitutionally

required.” Id. (emphasis added). The Court concluded that proportionality review was

not required in every capital case, and to so hold that the Eighth Amendment

mandates proportionality review would have required them to “effectively overrule”

Jurek v. Texas, 428 U.S. 262 (1976) and “would substantially depart from the sense

of both Gregg v. Georgia, 428 U.S. 153, 187 (1976), and Profitt v. Florida, 428 U.S.

242 (1976). Id. at 51.

In the case below, the Florida Supreme Court concluded that under its

precedent relative culpability was a part of, or a type of, comparative proportionality,

and thus also was not constitutionally required under Harris. Id. at 1244. That court

pointed out that it had a “lengthy history of overwhelmingly referring to and treating

relative culpability as a part of, or a corollary of, or intertwined with” comparative

proportionality, as well as explicitly identifying relative culpability “as a necessary

component of comparative proportionality in multi-defendant capital cases.” /d. at

1243. They included a string cite of twenty-three cases spanning twenty-six years of

jurisprudence to help illustrate this point. /d. at 1242-3.

A large part of Petitioner’s argument inherently hinges on the idea that the

court erred in this conclusion, and that relative culpability is not a part of

comparative proportionality. But as the Florida Supreme Court pointed out, they are

not two different things; relative culpability has always just been one part of the

proportionality analysis, a particular type that only applied when there were multiple

participants in a murder. Instead of comparing a defendant’s case to the whole

universe of death penalty cases, which is comparative proportionality, relative

culpability shrinks that universe to just the co-defendants’ cases. Relative culpability

is simply a special kind of comparative proportionality.

Petitioner also argues that the Florida Supreme Court erred in its analysis

because Harris never mentioned relative culpability. However, this Court has never

held that a defendant must receive a life sentence when an equally culpable

codefendant also receives a life sentence, and so it too is merely an additional

safeguard and not a constitutional necessity. This Court has provided guidance on

assessing the appropriateness of the death penalty when there are multiple

participants via Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481

U.S. 187 (1987), which the Florida Supreme Court has described as the Enmund-

Tison test and explained:

[T]he Supreme Court's decisions in Enmund and Tison addressed the

constitutionality, in multi-participant felony murder cases, of imposing

a death sentence on someone other than the person who actually killed

the victim. We summarized those cases as standing for the proposition

that “the death penalty may be proportional punishment if the evidence

shows both that the defendant was a major participant in the crime, and

that the defendant's state of mind amounted to reckless indifference to

human life.”

Cruz v. State, 320 So.3d at 722. Enmund was a case where this Court overturned the

defendant’s death sentence because he did not take, attempt to take, or intend to take

a life when he was the getaway driver for a robbery gone wrong. 458 U.S. at 783-8.

Tison held that a death sentence could be appropriate even if the defendant was not

the actual killer if they were a major participant in the crime and the evidence showed

they acted with reckless indifference to human life. 481 U.S. at 158.

Petitioner need only have been a major participant in the crime and have at

least a state of mind that amounted to reckless indifference to human life for the

death penalty to be appropriate in his case; the Enmund- Tison test makes no mention

about the penalty received by codefendants, but instead focuses on the individual. As

this Court made clear in Enmund-:

The question before us is not the disproportionality of death as a penalty

for murder, but rather the validity of capital punishment for Enmund's

own conduct. The focus must be on Azs culpability, not on that of those

who committed the robbery and shot the victims, for we insist on

“individualized consideration as a constitutional requirement in

imposing the death sentence,” Lockett v. Ohio, 438 U.S. 586, 605, 98

S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (footnote omitted), which means

that we must focus on “relevant facets of the character and record of the

individual offender.” Woodson v. North Carolina, 428 U.S. 280, 304, 96

S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).

458 U.S. at 798. The focus on individual conduct and individual culpability is in line

with this Court’s precedent emphasizing the need for individualized sentencing in

capital cases. This Court has stated that, “lilndividual jurors bring to their

deliberations qualities of human nature and varieties of human experience”; and that

the “capital sentencing decision requires the individual jurors to focus their collective

judgment on the unique characteristics of a particular criminal defendant.”

McCleskey v. Kemp, 481 U.S. 279, 311 (1987). Relative culpability took the entire

aspect of mitigation out of the equation entirely, but this Court has noted, “[t]he

decision to impose the punishment of death must be based on a particularized

consideration of relevant aspects of the character and record of each convicted

defendant.” Woodson, 428 U.S. at 303. The trial court and the Florida Supreme Court

conducted an Hnmund! Tison analysis in this case, and both found that Petitioner was

not merely an aider or abettor, and like the defendant in 7ison, was a major

participant in the crime with a reckless indifference to human life. Cruz, 320 So.3d

at 722-3.

Importantly, there also is no circuit conflict on relative culpability. It appears

only seven of the thirteen federal circuits have addressed this issue, and of them, all

seven found that it is not constitutionally required. See, Beardslee v. Woodford, 358

F.3d 560, 579-81 (9th Cir. 2004) (rejecting the argument that “different sentences for

equally culpable co-defendants violate the prohibition against arbitrary imposition of

the death penalty in Furman,” and concluding that no constitutional error arose from

the trial court's refusal to allow the codefendants’ sentences into evidence); Bush v.

Singletary, 99 F.3d 373, 375 (11th Cir. 1996) (per curiam) (holding that no federal

constitutional claim arose by reason of the fact that the defendant's death sentence

was disproportionate to that of his codefendant, whose death sentence had been

vacated on appeal); Hatch v. Oklahoma, 58 F.3d 1447, 1466 (10th Cir. 1995) (rejecting

the defendant's claim that the Constitution required “a proportionality review of his

sentence relative only to his codefendant”), overruled in part on other grounds by

Daniels v. United States, 254 F.3d 1180, 1188 n. 1 (10th Cir.2001); Getsy v. Mitchell,

2007 F.3d 295, 305 (6th Cir. 2007) (no constitutional requirement to do a

proportionality review when a codefendant was sentenced to life by a separate jury);

United States v. Lee, 374 F.3d 637, 653 (8th Cir. 2004) (no constitutional requirement

for proportional review of sentences and thus no basis for relief when codefendant

received a life sentence from a jury); Meyer v. Branker, 506 F.3d 358, 375 (4th. Cir.

2007) (“Since a co-perpetrator's sentence is neither an aspect of the defendant's

character or record nor a circumstance of the offense” the Constitution does not

require admission of codefendant’s sentence in front of a jury); Brogdon v. Blackburn,

790 F.2d 1164, 1170 (5th Cir. 1986) (“The fact that Brogdon's codefendant received a

life sentence instead of a death sentence failed to present a constitutional challenge

in this case. Sentencing hearings in capital cases focus not only upon the

circumstances of the underlying crime, but also upon the personal attributes of each

of the defendants.”).

The high courts of other states have reached the same conclusion. At least

Illinois, Oklahoma, and California have all also recognized there is no constitutional

requirement for imposing a life sentence just because an equally culpable codefendant

received one. See People v. Caballero, 206 I11.2d 65, 93 (Ill. 2002) (“We find no support

in the case law for the proposition that a defendant may be sentenced to death only

if he is more culpable than his codefendant who receives a prison sentence.”); Postelle

v. State, 267 P.3d 114, 139 (Okla. 2011) (Furthermore, this Court has found that an

accomplice's lesser sentence or immunity from prosecution does not render a

defendant's sentence excessive and is not proof of error.”); People v. Maciel, 57 Cal.

Ath 482, 549 (Cal. 2013) (“We have consistently held that evidence of an accomplice's

sentence or of the leniency granted an accomplice is irrelevant at the penalty phase

because it does not shed any light on the circumstances of the offense or the

defendant's character, background, history or mental condition.”) (internal quotation

marks omitted).

Petitioner attacks the opinion below arguing that the Florida Supreme Court

failed to address its own precedents and failed to engage in a thorough interpretation

of the Florida Constitution’s conformity clauses. Pet. at 25-6. These arguments

involve the state court’s interpretation of purely state jurisprudence and the state

constitution and thus are outside the purview of this Court as they do not address

any question of federal law, much less an important or unsettled one. Where no

federal question is presented, certiorari review is inappropriate. See Eddings v.

Oklahoma, 455 U.S. 104, 117 (1982); Zucht v. King, 260 U.S. 174 (1922). Further,

there is no important federal question presented, and 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

Insurance Co. v. Illinois Department of Revenue, 482 U.S. 182, 184 n. 3 (1987). See

also Bartlett v. Stephenson, 535 U.S. 1301, 1304 (2002) Gssues with few, if any,

ramifications beyond the presenting case do not satisfy any of the criteria for exercise

of certiorari jurisdiction). Petitioner also argues that decision was incorrect because

relative culpability complies with the constitution and can be properly applied.

Respondent does not disagree. But the state never argued, and the Florida Supreme

Court never held, that relative culpability is wnconstitutional: instead the holding

was that relative culpability, being a part of comparative proportionality, is an

optional safeguard in capital punishment, and thus neither required nor

unconstitutional. This is in contrast to precedent like Hurst v. Florida, 577 U.S. 92

(2016), for example, that says it is required under the Constitution for a jury to

unanimously find at least one aggravating factor, or Roper v. Simmons, 543 U.S. 551

(2005), which held that it was affirmatively unconstitutional to execute defendants

who were under the age of eighteen at the time of the crime.

His final arguments are that the Florida Supreme Court’s decision conflicts

with equal protection and due process. As demonstrated by the decisions of the

federal circuits, “co-defendants have no enforceable right to have sentences that are

precisely congruent with one another.” United States v. Haehle, 227 F.3d 857, 860

(7th Cir. 2000). A criminal sentence only violates equal protection if there is no

rational basis for the difference in treatment. Village of Willowbrough v. Olech, 528

U.S. 562 (2000). A rational basis for a defendant could be the mitigation each

defendant presents, the aggravating factors that apply to each, or even the jury’s

disparate recommendations. Relative culpability did nothing to protect Equal

Protection because it only ever looked at the ultimate culpability of the defendants in

causing the murder in question, and not their respective mitigators or aggravators.

As even the Florida Supreme Court pointed out, the fact “[our] relative culpability

review failed to require consideration of constitutionally indispensable mitigation or

aggravation .. . also a constitutionally indispensable part of capital sentencing .. .

further supports our conclusion that relative culpability review is neither

constitutionally required nor consistent with ensuring that a constitutional capital

sentence was rendered.” Cruz, 372 So.3d at 1244-5 (citing Sattazah v. Pennsylvania,

537 U.S. 101 (2003).

As for due process, the Florida Supreme Court noted the Eighth Amendment’s

Cruel and Unusual Punishments Clause was made applicable to the states by the

Fourteenth Amendment’s Due Process Clause, and so the prohibition on cruel and

unusual punishment is therefore just an aspect of Due Process. Jd. at 1245, citing

Yacob v. State, 136 So.3d 539, 562 (Fla. 2014) (Canady, J., concurring in part and

dissenting in part). And so, the court’s interpretation of the Eighth Amendment’s

constraints already incorporates considerations of due process. Because a lesser

sentence for one defendant can be based on less aggravation or more mitigation,

regardless of each defendant’s culpability for the murder, such a sentence cannot be

considered arbitrary and a deprivation of due process. Petitioner has offered this

Court no reason to accept certiorari review, and accordingly this Court should deny

review.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,