Reply Brief — James D. Ford, Petitioner v. Florida

No. 24-6510

IN THE

Supreme Court of the United States

_________________________________________________________________________

JAMES D. FORD,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_________________________________________________________________________

On Petition for a Writ of Certiorari to the Supreme Court of Florida

REPLY TO BRIEF IN OPPOSITION

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

THURSDAY, FEBRUARY 13, 2025, AT 6:00 P.M.

ALI A. SHAKOOR*

FLORIDA BAR NO.: 0669830

EMAIL: SHAKOOR@CCMR.STATE.FL.US

ADRIENNE JOY SHEPHERD

FLORIDA BAR NO.: 1000532

EMAIL: SHEPHERD@CCMR.STATE.FL.US

LAW OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL - MIDDLE REGION

12973 NORTH TELECOM PARKWAY

TEMPLE TERRACE, FLORIDA 33637

PHONE: (813) 558-1600

SECONDARY EMAIL: SUPPORT@CCMR.STATE.FL.US

*Counsel of Record

CAPITAL CASETABLE OF CONTENTS

TABLE OF CONTENTS …………………………….………………………………………..i

TABLE OF AUTHORITIES…………………………………….……………………………ii

PRELIMINARY STATEMENT………………………………………………………………1

REPLY REGARDING STAY………………………………………………………………....1

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT…………...………3

CONFORMITY CLAUSE ............................................................................................. 3

ROPER v. SIMMONS.................................................................................................... 6

CONCLUSION............................................................................................................ 10

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TABLE OF AUTHORITIES

Cases

Page(s)

Alden v. Maine,

527 U.S. 706 (1999) .....................................................................................................5

Ark Encounter, LLC v. Parkinson,

152 F.Supp.3d 880 (E.D. Ky 2016) ..........................................................................5

Barefoot v. Estelle,

463 U.S. 880 (1983) ............................................................................................. 1

Barwick v. State,

361 So. 3d 785 (Fla. 2023)………………………………………………………………..7,8

Brown v. State,

62 N.E.3d 1232 (Ind. 2016) ........................................................................................5

Coleman v. Thompson,

501 U.S. 722 (1991) ....................................................................................................... 9

Davis v. Wechsler,

263 U.S. 22 (1923) .......................................................................................................8

Downey v. State,

144 So.3d 146 (Miss. 2014) ........................................................................................5

Ford v. Wainwright,

477 U.S. 399 (1986) ............................................................................................. 3

Foster v. Chatman,

578 U.S. 488 (2016) .....................................................................................................4

GE Commercial Finance Business Property Corp. v. Heard,

621 F.Supp.2d 1305 (M.D. Ga. 2009) ......................................................................6

Kreimer v. Bureau of Police for Town of Morristown,

958 F.2d 1242 (3d Cir. 1992)) ...................................................................................6

Michigan v. Long,

463 U.S. 1032 (1983) ...................................................................................................4

Ocha v. State,

826 So. 2d 956 (Fla. 2002)................................................................................... 3

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Osborne v. Ohio,

495 U.S. 103 (1990) .....................................................................................................8

Roper v. Simmons,

543 U.S. 551 (2005)…………………………………………………………...2-4, 6-10

State v. Baldon,

829 N.W.2d 785 (Iowa 2013)......................................................................................5

State v. Griffin,

339 Conn. 631 (Conn. 2021)......................................................................................5

State v. Purcell,

331 Conn. 318 (Conn. 2019) .......................................................................................5

Swafford v. State,

679 So. 2d 736 (Fla. 1996) .............................................................................................3

Woodson v. North Carolina,

428 U.S. 280 (1976) ............................................................................................. 3

Constitutional Provisions

Art. I, § 17 of the Florida Constitution ...............................................................................3,7

U.S. Const. amend. VI .............................................................................................................. 9

U.S. Const. amend. VIII……………………………………………………………………….2,4, 6-10

U.S. Const. amend. XIV.................................................................................................... 2,4,6,9

Rules

Florida Rule of Criminal Procedure 3.851(d)(2)…………………………………………….6, 8

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PRELIMINARY STATEMENT

Petitioner, James D. Ford (“Ford”), offers the following Reply to the Brief in

Opposition from the Respondent (“BIO”). Ford will not reply to every issue and

argument raised by Florida and will only address specific points. Ford expressly does

not abandon any issue not specifically replied to herein and relies upon his Petition

for a Writ of Certiorari (“Petition”) in reply to any argument or authority not

specifically addressed.

REPLY REGARDING STAY

On page 7 of the BIO, the State reminds this Court that Ford seeks a stay of

execution. Ford’s execution is currently scheduled for February 13, 2025, only two

days from the date of the filing of this Reply. Filed contemporaneously with the BIO

on February 10, 2025, the State also submitted a Response to Application for Stay of

Execution. This Court should grant Ford a stay.

Florida’s compressed 33-day death warrant litigation schedule is completely

insufficient to protect Ford’s constitutional rights. The standards for granting a stay

of execution are well-established. Barefoot v. Estelle, 463 U.S. 880, 895 (1983). There

“must be a reasonable probability that four members of the Court would consider the

underlying issue sufficiently meritorious for the grant of certiorari or the notation of

probable jurisdiction; there must be a significant possibility of reversal of the lower

court's decision; and there must be a likelihood that irreparable harm will result if

that decision is not stayed.” Id. (internal quotations omitted).

There is indeed a reasonable probability that four justices would consider

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Florida’s use of its unique and obstructive “conformity clause” to be a meritorious

issue for this Court’s analysis, and there is also a significant possibility of reversal of

the Florida Supreme Court’s (“FSC”) opinion. Florida’s use of the conformity clause

precludes litigants like Ford from challenging precedent, violating his Fourteenth

Amendment due process rights and Eighth Amendment rights under the United

States Constitution.

Ford’s Roper v. Simmons, 543 U.S. 551 (2005) claim similarly warrants this

Court’s consideration, considering there has been twenty years of evolving standards

regarding the science of what constitutes “age” since this Court rendered the Roper

opinion in 2005. Regarding age, the Roper exclusion was based on an analysis of the

mental, developmental, and emotional attributes of juveniles as compared to adults,

not a math equation calculating their years lived. Roper’s reasons for the exclusion

referred to juveniles’ lack of maturity, vulnerability to peer pressure, and

underdeveloped characters. The Roper court selected the chronological age of

eighteen years old as the cut-off age at which a person could be eligible for the death

penalty, because “a line must be drawn,” and explained that “age of 18 is the point

where society draws the line for many purposes between childhood and adulthood.”

Id. at 574. However, the Roper court also appeared to recognize that an individual’s

chronological age will not always correspond with their level of functioning, stating

that “the qualities that distinguish juveniles from adults do not disappear when an

individual turns 18. By the same token, some under 18 have already attained a level

of maturity some adults will never reach.” Id. at 574. Chronological age should not be

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the only question asked when determining exclusion from the death penalty under

Roper, which, again, is based on over 20-year-old data and analysis.

Ford will be irreparably harmed if a stay is not granted. If this Court does not

intervene by pausing Ford’s unnecessarily expedited warrant schedule, he faces the

ultimate and final sanction of death when Florida executes him via lethal injection

at 6:00pm on February 13, 2025. Both Florida and this Court have recognized that

“execution is the most irremediable and unfathomable of penalties; that death is

different.” Ford v. Wainwright, 477 U.S. 399, 411 (1986) (citing Woodson v. North

Carolina, 428 U.S. 280, 305 (1976)); see also Ocha v. State, 826 So. 2d 956, 964 (Fla.

2002) (“This Court has long adhered to the idea that [i]n the field of criminal law,

there is no doubt that ‘death is different.’ ”); Swafford v. State, 679 So. 2d 736, 740

(Fla. 1996) (“[O]ur jurisprudence also embraces the concept that ‘death is different’

and affords a correspondingly greater degree of scrutiny to capital proceedings.”).

Ford’s unnecessarily expedited warrant schedule simply does not honor our justice

system’s acknowledgement that “death is different.” A stay is appropriate and

necessary.

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT

Conformity Clause

The BIO attempts to argue that this issue was not presented in state court.

BIO at 7-8. The relevant point is that the issue is properly before this Court, because

both the state circuit court and the FSC cited to Art. I, § 17 of the Florida Constitution,

otherwise known as “the conformity clause,” which states:

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The prohibition against cruel or unusual punishment, and the

prohibition against cruel and unusual punishment, shall be construed

in conformity with decisions of the United States Supreme Court which

interpret the prohibition against cruel and unusual punishment

provided in the Eighth Amendment to the United States

Constitution….This Section shall apply retroactively.

Particularly, the FSC’s citation of the conformity clause triggers this Court’s

authority. Appendix A at 12. 1 Ford is not required to predict how and under what

authority a court may rule at the state level. Once the FSC relied on the unique,

obstructive, and unconstitutional conformity clause to deny his Fourteenth

Amendment due process right and Eighth Amendment right to challenge the

limitations of Roper, this Court’s authority has been properly invoked.

Further, regarding this Court’s authority, by finding that it had no

authorization to extend Eighth Amendment protections due to this Court’s precedent,

the FSC necessarily found that federal law required denial of Ford’s claims. See Foster

v. Chatman, 578 U.S. 488, 499 n.4 (2016) (“[W]hether a state law determination is

characterized as entirely dependent on, resting primarily on, or influenced by a

question of federal law, the result is the same: the state law determination is not

independent of federal law and thus poses no bar to our jurisdiction.”) (cleaned up);

see also Michigan v. Long, 463 U.S. 1032, 1040-41 (1983) (even when adequacy and

independence of possible state law grounds are not clear from the opinion, “this Court

will accept as the most reasonable explanation that the state court decided the case

the way it did because it believed that federal law required it to do so.”).

1 This Reply cites the Appendix to Ford’s Petition for a Writ of Certiorari filed on February 8, 2025.

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This Court must intervene in this case. Sadly, Florida’s use of the conformity

clause to abdicate all responsibility for considering and perpetuating evolving

standards of decency undermines bedrock principles of federalism and state

autonomy dating as far back as the Founding. See, e.g., Alden v. Maine, 527 U.S. 706,

748 (1999) (referring back to “the founding generation” in declaring that “our

federalism” requires states to be treated consistently “with their status as…joint

participants in the governance of the Nation.”).

It is virtually unquestioned among states and lower circuits that precepts of

federalism empower states to provide higher “ceilings” of individual rights than the

“floor” provided by the U.S. Constitution. See, e.g., State v. Griffin, 339 Conn. 631,

690 (Conn. 2021) (discussing the “settled proposition that ‘the federal constitution

sets the floor, not the ceiling, on individual rights’”) (quoting State v. Purcell, 331

Conn. 318, 341 (Conn. 2019)); Brown v. State, 62 N.E.3d 1232, 1236-37 (Ind. 2016)

(referencing the federal constitution as “the floor, not the ceiling, of individual rights”

and stating that where “the protections of the federal and state constitutions are not

co-extensive” the more protective standard must apply”); Ark Encounter, LLC v.

Parkinson, 152 F.Supp.3d 880, 927 (E.D. Ky 2016) (“The federal Constitution may

only be a floor and not a ceiling, but it is a floor nonetheless.”); Downey v. State, 144

So.3d 146, 151 (Miss. 2014) (“[Supreme Court precedent] does not require Mississippi

to follow the minimum standard that the federal government has set for

itself…However, we are not allowed to abrogate or diminish clearly-articulated

federal rights[.]”); State v. Baldon, 829 N.W.2d 785, 791 & n.1 (Iowa 2013) (The anited

5

States Supreme Court’s jurisprudence “makes for an admirable floor, but it is

certainly not a ceiling….The incorporation doctrine commands that we no longer use

independent state grounds to sink below the federal floor.”); GE Commercial Finance

Business Property Corp. v. Heard, 621 F.Supp.2d 1305, 1309 (M.D. Ga. 2009) (“it is

abundantly clear that states ‘are free to extend more sweeping constitutional

guarantees to their citizens than does federal law as federal constitutional law

constitutes the floor, not the ceiling, of constitutional protection.’” (citing Kreimer v.

Bureau of Police for Town of Morristown, 958 F.2d 1242, 1269 (3d Cir. 1992))).

At the bottom of page 10 of the BIO, Florida uses the word “absurd” to basically

explain the nature of a state being bound by the “conformity clause,” to overrule or

extend Roper. Yes, the absurd “conformity clause" itself, is the problem, as it prevents

Ford from exercising his Fourteenth Amendment due process right and Eighth

Amendment right to challenge precedent. Florida’s conformity clause prevents the

nation from evolving. This Court’s intervention is required.

Roper v. Simmons

As argued above, the “conformity clause” prevents Florida’s defendants from

challenging the limitations of Roper. In addition to its reliance on the obstructive

“conformity clause,” the FSC further obstructed a complete merits-based review and

evidentiary hearing on Ford’s claim by relying on Florida’s unyielding Florida Rule

of Criminal Procedure 3.851(d)(2). The State argues that the FSC’s reliance on Fla.

R. Crim. P. 3.851(d)(2) to find that Ford’s Roper claim was untimely during his active

death warrant constitutes an independent and adequate state law ground that

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forecloses this Court from having jurisdiction to consider Ford’s petition. BIO at 1114. In all candor to this Court, undersigned counsel acknowledges that federal

jurisprudence appears to support the argument that the FSC’s partial reliance on

Rule 3.851(d)’s stringent procedural bar could be considered an independent and

adequate state law ground. With that being acknowledged, the FSC did not solely

rely on Rule 3.851(d) to dispose of Ford’s Roper claim. The FSC also partially disposed

of Ford’s Roper claim on federal grounds. While the FSC’s opinion is brief it its merits

analysis, it states that the FSC “has repeatedly rejected the argument that Roper’s

holding that the execution of an individual who was younger than eighteen years at

the time of the murder(s) violates the Eighth Amendment should be extended to

defendants whose mental or developmental age was less than eighteen at the time of

their offenses.” Appendix A at 11. In support of its conclusion that Ford “is not entitled

to relief on this claim,” the FSC goes on to cite its reasoning in Barwick v. State, 361

So. 3d 785 (Fla. 2023), stating:

such claims are without merit because this Court lacks the authority to

extend Roper. The conformity clause of article I, section 17 of the Florida

Constitution provides that "[t]he prohibition against cruel or unusual

punishment, and the prohibition against cruel and unusual

punishment, shall be construed in conformity with decisions of the

United States Supreme Court which interpret the prohibition against

cruel and unusual punishment provided in the Eighth Amendment to

the United States Constitution." This means that the Supreme Court's

interpretation of the Eighth Amendment is both the floor and the ceiling

for protection from cruel and unusual punishment in Florida, and this

Court cannot interpret Florida’s prohibition against cruel and unusual

punishment to provide protection that the Supreme Court has decided

is not afforded by the Eighth Amendment.

Because the Supreme Court has interpreted the Eighth

Amendment to limit the exemption from execution to those whose

chronological age was less than eighteen years at the time of

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their crimes, this Court is bound by that interpretation and is

precluded from interpreting Florida’s prohibition against cruel

and unusual punishment to exempt individuals eighteen or more

years old from execution on the basis of their age at the time of

their crimes.

Appendix A at 11-12 (citing Barwick, 361 So. 3d at 794) (emphasis added). It is clear

from the language that the FSC cites in its opinion that the FSC was deciding the

merits of Ford’s Roper claim on a federal ground by plainly stating that the FSC was

“bound by” this Court’s interpretation of the federal Eighth Amendment.

Further, while Rule 3.851(d) may function as an independent and adequate

state law ground, it would be blatantly unfair and a denial of due process to allow the

FSC’s reliance on the rule to foreclose this Court from considering Ford’s petition

because Rule 3.851(d) itself is unconstitutional when applied to Ford’s case in the

active warrant context. This Court has explained that ‘“[w]hatever springes the State

may set for those who are endeavoring to assert rights that the State confers, the

assertion of federal rights, when plainly and reasonably made, is not to be defeated

under the name of local practice.”’ Osborne v. Ohio, 495 U.S. 103, 125 (1990) (quoting

Davis v. Wechsler, 263 U.S. 22, 24 (1923)). Florida’s unnecessarily stringent

procedural rule should not defeat Ford’s assertion of his most fundamental

constitutional rights.

As was argued to the FSC during Ford’s appeal, Florida’s current

interpretation of Fla. R. Crim. P. 3.851(d)(2) violates the federal constitution when

applied to successive motions like Ford’s filed in the active warrant context because

the rule’s restrictive text enumerating only three narrow circumstances where a

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successive motion may be considered effectively cuts off substantial avenues for relief

that a capital defendant facing an actual execution date could attempt to raise. See

Appendix C at 14-24. The rule, when applied during an active warrant like Ford's

current case, effectively violates Ford's federal Fourteenth Amendment Due Process

rights, federal Eighth Amendment right to a narrowly tailored individualized

sentencing determination, and federal Sixth Amendment right to effective assistance

of counsel. See Appendix C at 14-24. Florida’s Rule 3.851(d) arbitrarily interferes with

Ford’s ability to raise claims for relief at the death warrant stage of his postconviction

proceedings. This Court should not allow Florida to prevent the consideration of

Ford’s petition by relying on an unconstitutional state procedural rule to find that his

assertion of his federal constitutional rights is untimely.

The fact that Ford’s Roper claim was partially disposed of on a state procedural

ground should not preclude this Court’s certiorari review, because the failure to

consider Ford’s Roper claim will result in a fundamental miscarriage of justice. Cf.

Coleman v. Thompson, 501 U.S. 722 (1991) (explaining in the federal habeas context

that where a state prisoner has defaulted his federal claim in state court pursuant to

an independent and adequate state procedural rule, federal habeas review of the

claim is barred unless the prisoner can demonstrate that failure to consider the claim

will result in a fundamental miscarriage of justice). The undisputed evidence in

Ford’s case establishes that he had a mental and developmental age no greater than

that of a fourteen-year-old at the time of the offense for which he was convicted and

sentenced to death. A fundamental miscarriage of justice will occur if this Court

9

forgoes considering the merits of Ford’s argument that he should be categorially

excluded from execution under Roper based on Florida’s application of an

unconstitutionally stringent state procedural rule.

Ford had a mind similar to that of a fourteen-year-old in 1997 when the capital

offense was committed. Florida is not disputing that point. As thoroughly argued in

Ford’s petition, evolving standards of decency dictate that this Court’s reasoning in

Roper should and must be extended to categorically exclude individuals with a mental

and developmental age less than age eighteen from the death penalty. Petition at 1428. “[T]he basic concept underlying the Eighth Amendment is nothing less than the

dignity of man.” Roper v. Simmons, 543 U.S. 551, 589 (2005) (internal quotation

omitted). Our nation’s dignity is not served by Florida executing a man who had the

mind of a fourteen-year-old at the time of the offense for which he is scheduled to die

in two days’ time. This practice can be described as nothing less than barbaric. This

Court’s authority to grant Ford’s petition for a writ of certiorari provides the judicial

mechanism by which to prevent this indignity. This Court has the duty and the

authority to determine whether we are a nation that should execute individuals with

the minds of children. Relief is proper.

CONCLUSION

This Court should grant the petition for a writ of certiorari; stay the execution

and order further briefing; and/or vacate and remand this case to the Florida

Supreme Court.

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Respectfully submitted,

/s/ Ali A. Shakoor*

Ali A. Shakoor

Florida Bar No.: 0669830

Assistant CCRC

Email: shakoor@ccmr.state.fl.us

Email: support@ccmr.state.fl.us

/s/ Adrienne Joy Shepherd

Adrienne Joy Shepherd

Florida Bar No.: 1000532

Assistant CCRC

Email: shepherd@ccmr.state.fl.us

Email: support@ccmr.state.fl.us

Law Office Of the Capital Collateral

Regional Counsel - Middle Region

12973 North Telecom Parkway

Temple Terrace, Florida 33637

Phone: (813) 558-1600

Secondary Email: support@ccmr.state.fl.us

*Counsel Of Record

February 11, 2025

Dated

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