Opposition Brief — Allen Ward Cox, Petitioner v. Florida

No. 24-5904

In the

Supreme Court of the United States

ALLEN WARD COX,

Petitioner,

Vv.

STATE OF FLORIDA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RESPONDENT'S BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

C. SUZANNE BECHARD

Associate Deputy Attorney General

Counsel of Record

STEPHEN D. AKE

Senior Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

(813) 287-7900

COUNSEL FOR RESPONDENT

Capital Case

QUESTION PRESENTED

Whether this Court should grant review of a decision of the

Florida Supreme Court rejecting an unpreserved claim that

the Eighth Amendment prohibition on executing juveniles

and intellectually disabled defendants should be expanded

to include defendants diagnosed with brain damage?

ru

TABLE OF CONTENTS

QUESTION PRESENTED... ooo ee ceccsseeeseneeseeceneeeeseeeesacecsneessaseeseesesaeeeseseessseeenes il

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

Supreme Court rejecting an unpreserved claim that the Eighth

Amendment prohibition on executing juveniles and intellectually

disabled defendants should be expanded to include defendants diagnosed

With brain damage? ...........cccccccccccceessesessseesccececseceeseeececcceccseeeceeceeeeeeeeceeeeneeeeeseueeess li

TABLE OF CONTENTS .00....ecceccccceesceeseseseeseseeseseeeeeeeesaeeseaeseaeeeaaeeseaeeeneaeenseseseessetenss iii

TABLE OF CITATIONS ou... cecceeccceecceseeeeeeeeeseeeseeeeneesaeeeeseaeesaeseaeseaneeneesecesaeessesseesaes iv

CITATION TO OPINION BELOW....0.....ceccceccscesseeeseeesceeeseeeeeeeeeneesceeeeseesenesseeesseeeens 1

STATEMENT OF JURISDICTION... eee ceseesesceeseeeeeeeeeaeeseaeeeceeeeeseeseneeseneeeaeees 1

CONSTITUTIONAL PROVISIONS INVOLVED 00... eecceeeeeeeceeeeeeeeeeeeeaeeeeessnesaeees 1

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

REASONS FOR DENYING THE WRIT 000. eee ceeeeesceeseeeeeeeseneeeeeeeesseeseeeeseeteesees 6

The Florida Supreme Court properly rejected Cox’s unpreserved claim that

the Eighth Amendment prohibits the execution of defendants with mental

conditions such as slight brain damage. .................0cc0sccseessesesseesssssssscssssessnnesecceseeeecs 6

CONCLUSION ..... eee eccccccceecsceeeeesenneeneesaneesesceeeeeseeseuaaeeesensaeeasenesaasaeeeeseeaaaaeaseuaeeneaeeees 16

iii

TABLE OF CITATIONS

Cases

Atkins v. Virigina,

536 U.S. 304 (2002) ooo cccccccesscsseeceeceececsssssceecccceseesessscnsunceacesesessesescaneaenanens passim

Barwick v. State,

361 So. 3d 785 (Fla.),

cert. denied, 143 S. Ct. 2452 (2028)... cccccssccccccceseeeeeseessceceeeessessssecstsssesseseeeeesoess 8

Braxton v. United States,

BOO U.S. 344 (1991) oi ccccccccsceccscececueevesseecueeeesesesesssccsssusaueeusesesssssanseansaesesessenaees 13

Carroll v. Sec’y, DOC,

574 F.3d 1354 (11th Cir. 2009) ou... cccccccsecsseeceeeeeseecsesecssesaseeeeasecssssscesseessessenes 13

Commonwealth v, Baumhammers,

960 A.2d 59 (Pern. 2008) 0.0.0... cccceccsssscececeecessssneeecesececsesesssaueaeececccecesssssseesssacseseeess 14

Commonwealth v. Robinson,

82 A.3d 998 (Pern. 2018) 20... ccccccccceccceceeceseesessesessseesesseesessesseesecsesseseeeseeetesssssaeeees 14

Cox v. McNeil, Sec’y Dep’t of Corr.,

638 F.3d 1356 (11th Cir.),

cert. denied, 565 U.S. 906 (2011)... ccccccceccesssssneeeceeceeseeesesssseseeseceeeseesessseeceeceesens 3

Cox v. State,

390 So. 8d 1189 (Fla. 2024)... eesssscecsesessensnncccenceecnecseessseeesssessessesssssseeas passim

Cox v. State,

5 So. 3d 659 (Fla. 2009)... cccccccssssessssssssesessesnessesssesessessesecsusesssusensuseceesaaeneaeaas 3

Cox v. State,

819 So. 2d 705 (Fla. 2002),

cert. denied, 587 U.S. 1120 (2008)... ccc cccccccccccecceceeeeeeeeeecescececeseueesucvssentnnneas 2

Cox v. State,

966 So. 2d 3387 (Fla. 2007)............ccccccccccssssssseeeceescccccecuscssessescesceuscucuscseesssccenneueeeneeeeeae 3

Foster v. Chatman,

B78 U.S. 488 (2016) oo ccccccsssssscececceeeceesseenssccecceceecesseseseeceesesecuesussscensaucesernceaceners 8

Garcia v. State,

356 So. 8d 101 (Miss. 2028) ....... cee eceeeccccccccesssssceceecesceseesesseenceeseeauesssascesesenssaeesseaueres 14

Hurst v. Florida,

B77 U.S. 92 (2016) 0.0... ececccccesccceesssseeseeccesceccecsensseseccccssceuceecsseseseuseuseseueauceeeestssseseesess 3

Johnson v. Williams,

568 U.S. 289 (2018) uo... cceessceecceceecennsneaseeseeeceecceceesueeecesccseccucesusesscescescetvuvereenees 8

iv

Kearse v. Sec’y, Fla. Dep't of Corr.,

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

cert. denied, 43 S. Ct. 2439 (2028)... cccsscsssssssssssesscssssssssessteesssessenseesenecens 14

Mays v. Stephens,

757 F.3d 211 (5th Cir. 2014),

cert. denied, 574 U.S. 1082 (2015) 0... ccc cccesssseeececeeccesessssneceeseeseneecnsensseeceeesess 13

Michigan v. Long,

463 U.S. 1032 (1988) ........ ec eeccssccecssssseeccesesceecccerecsussessusseceeeeeeeeeeserseseeeeeeesenscsesseceeens 8

Miller v. Alabama,

BET U.S. 460 (2012) ooo ccccceecsnccecceececceeasaneeceeceeceeceeseeceeseeceeseeceecensesseceeeueeueeess 11

Perez v. State,

919 So. 2d 347 (Fla. 2005)... ..cccccceeccessesssseeseesssecseessessesessessesseesssssecsssesssereneenees 7,9

Rivers v. State,

2017 WL 6505792 (Ct. Crim. App. Dec. 20, 2017) ...........cccccecscccccecessssssneeeerensnensnees 14

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

A482 U.S. 182 (1987) .........cccccccsssscsscssssssessesssscsseeecesessessccessssesseeesessessssesseseenececescessnenee 13

Roper v. Simmons,

543 U.S. 551 (2005) oo. eessescesnscnsessesesensesnesesscsccessnstessnesseessessssesseeaeeuseneesass passim

Shore v. Davis,

845 F.3d 627 (Sth Cir. 2017) oo... ceeccscecccccccessssssssenceececeecseeesesuuceeeeeceeseesesssseeenseereees 13

Soliz v. State,

432 S.W.3d 895 (Ct. Crim. App. 2014),

cert. denied, 574 U.S. 1123 (2015)... ceccccccescecvecscccesesceseccesscssceuesecesssensesees 14

State v. Hancock,

840 N.E.2d 1082 (Olio 2006).......... ccc cccccccccscsssesssceeseceeeeesessnssaeeeeeseeseceeecssseeetcnsssneas 1]

Steinhorst v. State,

412 So. 2d 332 (Fla. 1982)... cececceccccececeeseessesssuceeeecesseseseeeuseesseseecsessesssaetenssssaeeess 9

Trop v. Dulles,

356 U.S. 86 (1958) ...cccccccsescecseeseessecsessucssecsucsucssssuecsucsuessucsuesuecseseucssecsesareateuseesueessecsees 11

Other Authorities

§ 921.137(1), Fla. Stat. (2024) .....ccccccsessceccesssesceccescesseesseesueseessessessussasesessuesuessesssceseeess 11

28 U.S.C. § L257 oooceccccccccccccsescssssssssnceececeseesnseueaaseuceeeecesseesseaeessesceceeseeseeaguaqecerecserstsesseneass 8

Ga. Code § 17-7-181(6)(8) ......cccccccccccccsecccececeeeeeeceecensaasaaaaacaececseacaaseacuaceaceaceasauaeeesessenseees 12

Sup. Ct. R. 10D) oe cccccscessscceeeeeeeeessceaeeeeeeeeceeeeesceecnuceeeeececesseeeseeaeeeeeeeeseesesesaeses 1,13

Sup. Ct. R. LO(G)......ccccccccccsssscccecessneeccesesneeceseesneaeeeesssaeaeecsseeeeeeesecsaceceseseneeesecsesssesseuseeses 1

U.S. Const. amend. VIID ..... cece cccceeccsesssesseecesessessesssssssssssessesseseteeceecceceeeetecceseeees 1

CITATION TO OPINION BELOW

The opinion of the Florida Supreme Court is reported at Cox v. State, 390 So.

3d 1189 (Fla. 2024).

STATEMENT OF JURISDICTION

Petitioner seeks to invoke this Court’s jurisdiction under 28 U.S.C. § 1257.

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. See Sup. Ct. R. 10(b), (c).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution provides: “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Facts of the murder

In 1998, Allen Cox, Petitioner, while incarcerated and serving life sentence

terms for sexual battery and kidnapping at Lake Correctional Institute (“LCI’),

decided to kill whoever was responsible for breaking into his prison footlocker and

stealing the money he had saved from his lucrative drug-dealing operation.! After

discovering the theft of his money, Cox went to the balcony of his prison dorm and

loudly announced to the crowd of inmates that he was offering a fifty dollar reward

to anyone willing to identify the thief and that he planned to stab and kill the person

responsible. Cox, 390 So. 3d at 1192. Unsurprisingly, inmates gave Cox information

about who they suspected of stealing his money, and one inmate provided Cox with a

homemade shank. (T.636-40).

The next day during the prison’s lunch break, Cox went to the handball court

and called Thomas Baker over to him. In front of numerous inmates, Cox proceeded

to pummel Baker until he turtled on the ground in the fetal position.2 Cox then stated

that the beating was not good enough and proceeded to kill the victim by stabbing

him three times with the shank. Cox, 390 So. 3d at 1192. A jury convicted Cox of the

first-degree murder of Baker and sentenced him to death. See Cox v. State, 819 So.

2d 705 (Fla. 2002), cert. denied, 537 U.S. 1120 (2003).

1 While incarcerated, Cox smuggled marijuana into the prison and sold it, making

approximately $4000 every two weeks. (T.1495-96, 1614-21).

2 Cox was substantially larger than Thomas Baker. Witnesses described Baker as a

“featherweight,” whereas Cox, known as “Big Al,” was six foot three or four inches

and weighed 230-240 pounds. (T.364, 373). The medical examiner testified that Baker

was five foot, ten inches and weighed only 140 pounds. (T.521-22).

Cox’s resentencing proceeding

After exhausting his initial state and federal postconviction proceedings, Cox

filed a successive motion for postconviction relief based on Hurst v. Florida, 577 U.S.

92 (2016), and obtained a new penalty phase proceeding.3 At the resentencing, Cox

presented potential mitigating evidence from family members and nine mental health

experts, and the State presented rebuttal evidence from a forensic psychiatrist and

two prison mental health employees.

Cox’s family members testified regarding his upbringing in a very rural and

poor area of Kentucky. Cox’s parents had an abusive relationship and divorced when

Cox was young. When Cox was about ten years old, his mother drove him to his

father’s home and dropped him off and threatened him to never come back. Cox lived

with his father and also spent considerable time with his grandmother who provided

him with a loving environment and spoiled and coddled him.

Cox presented testimony from multiple mental health experts that focused on

his alleged brain damage as a child, as well as his drug use and suicide attempts. Cox

self-reported three head injuries and his retained neurologist, Dr. Rubino, reviewed

MRI and PET scan results on Cox’s brain. Cox’s experts opined that Cox suffered from

atrophy in his temporal and frontal lobes which can lead to altered judgment and

impulsiveness. The experts agreed that Cox’s brain atrophy could be caused by factors

3 See generally Cox v. State, 966 So. 2d 337 (Fla. 2007) (affirming denial of

postconviction relief); Cox v. State, 5 So. 3d 659 (Fla. 2009) (affirming denial of

successive motion for postconviction relief); Cox v. McNeil, Sec’y Dep’t of Corr., 638

F.3d 1356 (11th Cir.) (affirming denial of petition for writ of habeas corpus), cert.

denied, 565 U.S. 906 (2011).

such as his age, high blood pressure, drug and alcohol use, and lack of oxygen from

when he attempted suicide in 2010. Dr. Rubino ultimately diagnosed Cox with

neurocognitive disorder, depression, anxiety, a history of head injuries, and possibly

progressive dementia. (T.768). Dr. Rubino noted that Cox had a static form of

dementia, or a brain injury that causes a loss of function, but he did not diagnose Cox

with Alzheimer’s disease or “progressive” dementia. (T.768-69).

The State presented rebuttal mental health testimony from Dr. Emily

Lazarou, a forensic psychiatrist, and two Lake Correctional Institution employees.

The LCI psychological specialist testified that Cox was diagnosed with low level

depression and, shortly before the murder, she met with Cox and testified that his

demeanor was normal and cooperative. Dr. Lazarou testified regarding Cox’s

lucrative drug-dealing business and malingering of mental health issues. She opined

that neither of Florida’s statutory mental mitigators applied in this case as Cox was

not under extreme mental or emotional disturbance at the time of the murder, nor

was his capacity to conform his conduct to the requirements of the law substantially

impaired. (T.1646-52).

After the presentation of the evidence, the jury unanimously found that the

State had proven beyond a reasonable doubt that two aggravating circumstances had

been established: (1) that the murder was committed by a felon while under a

sentence of imprisonment, and (2) that Cox was previously convicted of a felony

involving the use or threat of violence. The jury also unanimously found that the

aggravating circumstances outweighed the mitigation and unanimously

recommended that Cox receive a death sentence.

The trial court followed the jury’s recommendation and sentenced Cox to death

for the murder of Thomas Baker. The trial court considered the 80 mitigating

circumstances proposed by defense counsel and found most of these factors had been

established and assigned them various levels of weight. The court rejected the defense

experts’ opinions that the two statutory mental mitigators applied in this case, but

considered numerous mitigators related to Cox’s brain injuries, drug usage,

depression, and other circumstances that his experts opined were factors in

explaining Cox’s impaired cognitive abilities or “static’ dementia. However, because

the weight of the mitigating factors did not outweigh the two significant aggravating

circumstances, the trial court sentenced Cox to death.

On appeal to the Florida Supreme Court, Cox argued, inter alia, that the trial

court erred in rejecting the nonstatutory mitigating circumstance that Cox suffers

from the early signs of dementia and that executing an offender with brain damage

violates the Eighth Amendment based on evolving standards of decency. Cox, 390 So.

3d at 1194. The Florida Supreme Court found that the trial court did not err by

rejecting the nonstatutory mitigator that Cox suffers from the early signs of

progressive dementia as that mitigator was not definitively established. Id. at 1195-

96 & n.5 (noting that the trial court did consider the defense expert’s testimony that

Cox has “static” dementia caused by head trauma which is consistent with a decline

in neurocognitive abilities). In addressing Cox’s request to extend this Court’s

precedent from Atkins v. Virigina, 536 U.S. 304 (2002) (Eighth Amendment bars the

execution of defendants with intellectual disability), and Roper v. Simmons, 543 U.S.

551 (2005) (Eighth Amendment prohibits the execution of juveniles), to individuals

with brain damage, the Florida Supreme Court found that the claim was unpreserved

for appellate review and further held that Cox failed to offer any reason for the court

to reconsider its well-established precedent rejecting such a claim. Id. at 1199.

Cox now seeks certiorari review of the Florida Supreme Court’s decision.

REASONS FOR DENYING THE WRIT

The Florida Supreme Court properly rejected Cox’s

unpreserved claim that the Eighth Amendment prohibits the

execution of defendants with mental conditions such as slight

brain damage.

Cox seeks review of the Florida Supreme Court's decision refusing to expand

the prohibition on the execution of juveniles and intellectual disabled defendants?‘ to

include defendants diagnosed with brain damage. He argues that evolving standards

of decency establish that executing defendants with brain damage is the functional

equivalent of executing a defendant with intellectual disability. The Florida Supreme

Court found that Cox’s claim was unpreserved for appellate review and further,

following its well-established precedent, refused to expand this Court’s rulings in

Atkins and Roper. Cox, 390 So. 3d at 1199-1200. The Florida Supreme Court’s finding

that the claim was unpreserved as a matter of state law is an independent and

adequate state law ground precluding review by this Court. Moreover, there is no

conflict between this Court's Eighth Amendment jurisprudence and the Florida

Supreme Court's rejection of the expansion-of-Atkins/Roper claim. This Court has

4 See Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virigina, 536 U.S. 304 (2002).

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

mental diagnoses. Finally, there is no conflict between the lower appellate courts and

the Florida Supreme Court's decision in this case. Cox cites to no appellate case,

federal or state, expanding Atkins or Roper to any other diagnoses such as brain

damage or static dementia. Accordingly, review of this issue should be denied.

The Florida Supreme Court’s decision on this claim

The Florida Supreme Court found that Cox’s constitutional claim seeking an

expansion of Atkins and Roper was unpreserved for appellate review as a matter of

state law. Cox, 390 So. 3d at 1199 (“Cox’s final four points on appeal constitute

unpreserved and purely legal arguments”); see also Perez v. State, 919 So. 2d 347,

377 (Fla. 2005) (holding that a defendant’s Eighth Amendment constitutional

challenge to Florida’s death sentencing scheme was not preserved for review when he

failed to present the claim to the trial court below).

Although unpreserved, the Florida Supreme Court nevertheless addressed

Cox’s claim and concluded that the expansion of Atkins and Roper was meritless

under its existing precedent. Cox, 390 So. 3d at 1199-1200 (citing Carroll v. State,

114 So. 3d 883, 886-87 (Fla.), cert. denied, 569 U.S. 1014 (2013); Simmons v. State,

105 So. 3d 475, 510-11 (Fla. 2012); Barwick v. State, 88 So. 3d 85, 106 (Fla. 2011);

Johnston v. State, 27 So. 3d 11, 26 (Fla.), cert. denied, 562 U.S. 964 (2010); Lawrence

v. State, 969 So. 2d 294, 300 n.9 (Fla. 2007); Connor v. State, 979 So. 2d 852, 867 (Fla.

2007)). Notably, as the Florida Supreme Court has held, it does not have the authority

to expand this Court’s Eighth Amendment protections under Florida’s conformity

clause. See Barwick v. State, 361 So. 3d 785, 791-95 (Fla.) (holding that Florida's

constitutional conformity clause requires it to construe the Eighth Amendment in

conformity with the United States Supreme Court’s interpretations), cert. denied, 143

S. Ct. 2452 (2023). Thus, because Cox failed to offer any reason for the court to

reconsider its prior precedent, the Florida Supreme Court rejected his claim. Cox, 390

So. 3d at 1199-1200.5

Independent and adequate state law

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

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

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

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

1038 n.4 (1983), this Court explained that it lacks jurisdiction over a case if a state

court’s decision rests upon two grounds: a state law ground and a federal ground,

provided the state law ground is independent and adequate itself. Provided the state

law is not "interwoven" with federal law, this Court’s jurisdiction "fails." Id. (citing

Enterprise Irrigation Dist. v. Farmers Mut. Canal Co., 243 U.S. 157, 164 (1917)); see

also Foster v. Chatman, 578 U.S. 488, 497 (2016) (noting that this Court lacks

jurisdiction to review a state court judgment if that judgment rests on state law).

5 This Court has recently denied certiorari review in similar Florida cases seeking to

expand Atkins or Roper. See, e.g., Barwick, id.; Zack v. State, 371 So. 3d 335 (Fla.),

cert. denied, 1445S. Ct. 274 (2028); Dillbeck v. State, 357 So. 3d 94 (Fla.), cert. denied,

143 S. Ct. 856 (2023).

The Florida Supreme Court found Cox’s claim seeking to extend Atkins and

Roper unpreserved for appellate review based on his failure to raise the claim in the

trial court below. Cox, 390 So. 3d at 1199. The Florida Supreme Court has long held

that a defendant must raise a constitutional challenge before the trial court to

preserve the claim for appellate review. See Perez v. State, 919 So. 2d 347, 377 (Fla.

2005) (holding that a defendant's Eighth Amendment constitutional challenge to

Florida’s death penalty scheme was not preserved for review when he failed to

present the claim to the trial court below); Steinhorst v. State, 412 So. 2d 332, 338

(Fla. 1982) (“[I]Jn order for an argument to be cognizable on appeal, it must be the

specific contention asserted as legal ground for the objection, exception, or motion

below.”). There is no federal constitutional aspect to such a determination, and the

Florida Supreme Court relied exclusively on state law to determine that Cox’s claim

was unpreserved and procedurally barred. The state law determination of a

procedural bar is an independent and adequate ground to deny review of the instant

issue.

No conflict with this Court's jurisprudence

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

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

either Atkins or Roper. Atkins was specifically limited to defendants diagnosed with

intellectual disability and Roper was limited to juveniles who were under the age of

eighteen at the time of their capital crime. See Atkins v. Virigina, 536 U.S. 304 (2002)

(holding that the execution of intellectually disabled criminals would constitute cruel

and unusual punishment prohibited by the Eighth Amendment); Roper v. Simmons,

543 U.S. 551 (2005) (finding that the Eighth Amendment prohibits the execution of

individuals who were under the age of eighteen at the time of their capital crime).

Both Atkins and Roper noted that evolving standards of decency established that the

execution of intellectually disabled and juveniles were so disproportionate as to

constitute cruel and unusual punishment. Atkins, 536 U.S. at 311-17; Roper, 543 U.S.

at 560-64. However, neither decision contemplated an expansion of their respective

categories to include criminals who have been diagnosed with various levels of mental

illnesses or diseases. In both cases, this Court drew “bright line” rules seeking to

specifically limit the categories to only those individuals diagnosed with intellectual

disability or under the age of eighteen. Atkins, 536 U.S. at 317 (drawing the line at

“intellectual disability,” but leaving it to the States to develop the task of developing

appropriate ways to enforce the constitutional restriction”); Roper, 543 U.S. at 574

(“The age of 18 is the point where society draws the line for many purposes between

childhood and adulthood. It is, we conclude, the age at which the line for death

eligibility ought to rest.”).

Nor should this Court accept Cox’s invitation to expand Atkins or Roper to

individuals with other types of diagnoses such as brain damage and dementia.®

6 The sentencing court in this case noted that the defense experts testified that Cox

had “some level of brain damage” given his “slight brain atrophy,” but gave this

mitigating circumstance “very little weight” because it was unclear whether it was

the result of traumatic brain injury, natural aging, or due to Cox’s history of

substance abuse. Additionally, the court correctly noted that Cox’s brain atrophy was

consistent with the expected range of atrophy for men of a similar age. (R.2028-31).

The court further rejected the proposed mitigator that Cox suffers from “progressive

10

Intellectual disability and brain damage are certainly not equivalent in terms of

objectivity and reliability of the diagnosis. A diagnosis of intellectual disability is

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

statutory test for intellectual disability. See § 921.137(1), Fla. Stat. (2024); cf. Atkins,

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

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

standardized and are used for other purposes and in other fields. This is not true of

other types of diagnoses such as the highly subjective “brain damage.” See generally

State _v. Hancock, 840 N.E.2d 1032, 1059-60 (Ohio 2006) (noting that “mental

illnesses come in many forms and different illnesses may affect a defendant in

different ways and to different degrees, thus creating an ill-defined category of

exemption from the death penalty without regard to the individualized balance

between aggravation and mitigation in a specific case”). Expanding Atkins or Roper

to other types of mental illnesses or conditions would result in endless, highly

subjective battles of the experts.

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

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

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

statutes enacted by elected legislatures rather than the views of unelected and

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

dementia,” but credited the defense expert’s testimony that he had “static dementia”

from brain injuries. (R.2057-58).

11

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

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

state legislatures, it may be characterized as a "national consensus")

The state statutes that precluded a death sentence for intellectually disabled

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

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

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

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

South Dakota, Tennessee, Washington and Congress had enacted statutes

prohibiting death sentences for intellectually disabled defendants).? All of those

legislative acts limited the prohibition to intellectual disability and several of those

statutes placed the burden on the defendant to prove his disability at a clear and

convincing standard of proof or even at a beyond a reasonable doubt standard. See

Ga. Code § 17-7-131(c)(8). None of those statutes included a diagnosis of brain damage

or dementia. Nor does Cox point to any current legislation prohibiting a death

sentence based on a diagnosis of these conditions, much less to a significant number

of state legislatures enacting such legislation. There simply is no “national

consensus” among state legislatures that capital defendants with brain damage

should be exempt from execution. Because there is no conflict with this Court's Eighth

7 Similarly, in Roper, this Court noted that over thirty states prohibited the

executions of juveniles. Roper, 543 U.S. at 564.

12

Amendment jurisprudence and the Florida Supreme Court's decision in this case,

certiorari should be denied.

No conflict with the lower appellate courts

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

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

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

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

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

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

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

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

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

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

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

Court's decision in this case. The Fifth Circuit Court of Appeals has rejected a claim

that Atkins should be expanded from intellectual disability to include brain damage.

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

include brain injury); Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014), cert. denied,

574 U.S. 1082 (2015). The Eleventh Circuit has also rejected a claim seeking to

expand Atkins based on a diagnosis of mental illness. Carroll v. Sec’y, DOC, 574 F.3d

1354, 1370 (11th Cir. 2009) (holding that court could not expand Atkins as such an

extension would constitute the creation of a new rule of constitutional law in violation

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of AEDPA); see also Kearse v. Sec’y, Fla. Dep't of Corr., 2022 WL 3661526, *25-26

(11th Cir. Aug. 25, 2022), cert. denied, 43 S. Ct. 2439 (2023).

Nor is there any conflict with the state courts of last resort. Pennsylvania has

declined any invitations to expand Atkins to those diagnosed with mental illness or

brain damage. See Commonwealth v. Baumhammers, 960 A.2d 59, 61-62 (Penn.

2008); Commonwealth v. Robinson, 82 A.3d 998, 1020-21 (Penn. 2013). Texas has

likewise refused to expand Atkins to defendants suffering from brain damage. See

Soliz v. State, 432 S.W.3d 895, 903-04 (Ct. Crim. App. 2014) (holding that there is no

“emerging national consensus in favor of barring the execution of adult offenders

convicted of capital murder who are not mentally retarded but who have permanent

brain damage resulting from partial fetal alcohol syndrome”), cert. denied, 574 U.S.

1123 (2015); Rivers v. State, 2017 WL 6505792, *6 (Ct. Crim. App. Dec. 20, 2017)

(declining to extend Atkins's categorical exemption to non-intellectually-disabled but

brain-damaged adults). Finally, as the Mississippi Supreme Court recently observed,

“no court has ever held” that Fetal Alcohol Spectrum Disorder (FASD) is the

functional equivalent of intellectual disability. Garcia v. State, 356 So. 3d 101, 113

(Miss. 2023).

Opposing counsel cites to no appellate case - federal or state - expanding Atkins

to any other diagnoses. There is no conflict between the Florida Supreme Court’s

decision and the federal circuit courts of appeal. Furthermore, there is no conflict

between the Florida Supreme Court’s decision and any state court of last resort.

Accordingly, because there is an adequate state law ground to support the Florida

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Supreme Court’s decision denying Cox’s claim, as well as no conflict among the lower

appellate courts on the question, certiorari review should be denied.

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CONCLUSION

Therefore, Respondent respectfully submits that the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

G2

C. SUZANNE BECHARD

Associate Deputy Attorney General

Florida Bar No. 147745

Counsel of Record

Stephen D. Ake

Senior Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

Telephone: (813) 287-7900

COUNSEL FOR RESPONDENT

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