Opposition Brief — Edward Thomas James, Petitioner v. Florida

Supreme Court briefMar 18, 2025

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No. 24-6775

In the

Supreme Court of the United States

EDWARD THOMAS JAMES,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

EXECUTION SCHEDULED FOR MARCH 20, 2025 AT 6:00 P.M.

JAMES UTHMEIER

ATTORNEY GENERAL OF FLORIDA

OFFICE OF THE ATTORNEY GENERAL

3507 E. Frontage Rd., Ste. 200

Tampa, Florida 33607

Telephone: (813) 287-7900

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

C. SUZANNE BECHARD

Associate Deputy Attorney General

Counsel of Record

TIMOTHY A. FREELAND

Senior Assistant Attorney General

MICHAEL W. MERVINE

Senior Assistant Attorney General

COUNSEL FOR RESPONDENT

CAPITAL CASE

QUESTIONS PRESENTED

Question I: Whether this Court should grant certiorari to review a decision of

the Florida Supreme Court rejecting a claim that the Eighth Amendment requires

jury sentencing in capital cases, and which raises a federal constitutional challenge

to Florida’s conformity clause that was not addressed in the court’s opinion.

Question II: Whether this Court should grant certiorari to review a claim that

the application of a postconviction procedural bar to a competency claim violates the

Due Process Clause when the issue was not raised in post-warrant postconviction

litigation, was previously argued in a 2021 petition for writ of certiorari, and where

James knowingly and voluntarily declined to pursue an earlier postconviction motion

over two decades ago.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

OPINION BELOW......................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1

STATEMENT OF THE CASE AND FACTS ................................................................ 2

REASONS FOR DENYING THE WRIT ....................................................................... 8

ISSUE I ............................................................................................................... 8

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

Supreme Court rejecting a claim that the Eighth Amendment

requires jury sentencing in capital cases and which raises a federal

constitutional challenge to Florida’s Conformity Clause that was

not addressed in the Court’s opinion. ............................................................ 8

Poor vehicle to decide the question presented ............................................. 20

ISSUE II ............................................................................................................ 22

Issue not presented in state court ................................................................ 22

CONCLUSION............................................................................................................. 26

iii

TABLE OF CITATIONS

Cases

Baze v. Rees,

553 U.S. 35 (2008) .................................................................................................... 16

Bosse v. Oklahoma,

137 S. Ct. 1 (2016) .................................................................................................... 21

Braxton v. United States,

500 U.S. 344 (1991) .................................................................................................. 18

City of Grants Pass, Oregon v. Johnson,

603 U.S. 520 (2024) .................................................................................................. 11

Dillbeck v. Florida,

143 S. Ct. 856 (2023) ............................................................................................ 9, 17

Dist. Attorney’s Off. for Third Jud. Dist. v. Osborne,

557 U.S. 52 (2009) .................................................................................................... 25

Drope v. Missouri,

420 U.S. 162 (1975) .................................................................................................. 25

Durocher v. Singletary,

623 So. 2d 482 (Fla. 1993) ........................................................................................ 25

Dusky v. United States,

362 U.S. 402 (1960) .................................................................................................. 25

Edwards v. Vannoy,

593 U.S. 255 (2021) .................................................................................................. 11

Foster v. Chatman,

578 U.S. 488 (2016) .................................................................................................. 10

Furman v. Georgia,

408 U.S. 238 (1972) .................................................................................................. 16

Glossip v. Gross,

576 U.S. 863 (2015) .................................................................................................. 16

Gregg v. Georgia,

428 U.S. 153 (1976) .................................................................................................. 16

Hall v. Florida,

572 U.S. 701 (2014) .................................................................................................. 17

iv

Harris v. Alabama,

513 U.S. 504 (1995) .......................................................................................... passim

Hildwin v. Florida,

490 U.S. 638 (1989) .................................................................................................. 14

Hill v. California,

401 U.S. 797, 805 (1971) .......................................................................................... 23

Hohn v. United States,

524 U.S. 236 (1998) .................................................................................................. 21

Hurst v. Florida,

577 U.S. 92 (2016) .......................................................................................... 9, 14, 15

Hutto v. Davis,

454 U.S. 370 (1982) .................................................................................................. 21

James v. Florida,

522 U.S. 1000 (1997) .................................................................................................. 3

James v. Sec'y, Dep't of Corr., No. 25-10683, 2025 WL 796324

(11th Cir. Mar. 13, 2025) ................................................................................... 4, 5, 6

James v. State,

323 So. 3d 158 (Fla. 2021),

cert. denied, 142 S. Ct. 1678 (2022) ..................................................................... 4, 24

James v. State,

695 So. 2d 1229 (Fla. 1997) .................................................................................... 2, 3

James v. State,

974 So. 2d 365 (Fla. 2008) ................................................................................ 3, 4, 26

James v. State, No. SC2025-0280, 2025 WL 798376

(Fla. March 13, 2025) ................................................................................... 1, 7, 9, 10

Johnson v. Williams,

568 U.S. 289 (2013) .................................................................................................. 10

McKinney v. Arizona,

589 U.S. 139 (2020) .......................................................................................... passim

Michigan v. Long,

463 U.S. 1032 (1983) ................................................................................................ 10

Pennsylvania v. Finley,

481 U.S. 551 (1987) .................................................................................................. 25

v

Ring v. Arizona,

536 U.S. 584 (2002) ............................................................................................ 11, 12

Roberts v. Louisiana,

428 U.S. 325 (1976) .................................................................................................. 16

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

482 U.S. 182 (1987) .................................................................................................. 18

Sattazahn v. Pennsylvania,

537 U.S. 101 (2003) .................................................................................................. 12

Schriro v. Summerlin,

542 U.S. 348, 353 (2004) .......................................................................................... 11

Spaziano v. Florida,

468 U.S. 447 (1984) .......................................................................................... passim

State v. Poole,

297 So. 3d 487 (Fla. 2020) .................................................................................. 14, 15

State v. Trail,

981 N.W.2d 269 (Neb. 2022) .................................................................................... 11

State v. Whitaker,

196 N.E.3d 863 (Ohio 2022) ..................................................................................... 19

Street v. New York,

394 U.S. 576, 581–82 (1969) .................................................................................... 23

Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.

460 U.S. 533 (1983) ................................................................................................. 21

Trop v. Dulles,

356 U.S. 86 (1958) .................................................................................................... 17

Woodson v. North Carolina,

428 U.S. 280 (1976) .................................................................................................. 16

Zack v. Florida,

144 S. Ct. 274 (2023) ............................................................................................ 9, 17

Other Authorities

28 U.S.C. § 1257 ........................................................................................................... 10

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

Fed. R. Civ. P. 60(b) ....................................................................................................... 5

Sup. Ct. R. 10(b) ..................................................................................................... 18, 20

vi

Sup. Ct. R. 10(b)(c) ....................................................................................................... 22

Sup. Ct. R. 44-2 ............................................................................................................ 24

vii

OPINION BELOW

The decision below of the Florida Supreme Court appears as James v. State,

No. SC2025-0280, 2025 WL 798376 (Fla. March 13, 2025).

STATEMENT OF JURISDICTION

On March 13, 2025, the Florida Supreme Court affirmed the state

postconviction court’s summary denial of a successive postconviction motion in this

active warrant case. James v. State, No. SC2025-0280, 2025 WL 798376 (Fla. March

13, 2025). The Florida Supreme Court issued the mandate immediately. On March

17, 2025, James filed a petition for a writ of certiorari in this Court. Petitioner invokes

the jurisdiction of this Court based upon 28 U.S.C. § 1257. Respondent agrees that

this statutory provision sets out the scope of this Court’s certiorari jurisdiction.

However, Respondent submits that because the issue relating to the second question

before this Court was never presented to the state court below, this Court’s

jurisdiction fails on that claim. Even if this Court has jurisdiction over the federal

questions presented in Petitioner’s petition, this would be an inappropriate case for

the exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved are the Sixth Amendment right-to-ajury-trial provision, the Eighth Amendment cruel and unusual punishment provision,

and the Fourteenth Amendment.

The Sixth Amendment to the United States Constitution, provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein

1

the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

U.S. Const. Amend. VI.

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.

The Fourteenth Amendment to the United States Constitution,

provides:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

U.S. Const. Amend. XIV.

STATEMENT OF THE CASE AND FACTS

On September 19, 1993, James raped and strangled to death an eight-year-old

girl. James v. State, 695 So. 2d 1229, 1231 (Fla. 1997). He then stabbed to death the

child’s grandmother, Betty Dick, while another of her grandchildren watched. Id.

James stole her purse, jewelry and car and then drove across the country, selling her

property along the way. Id. Eventually, he was arrested in California and gave two

videotaped confessions. Id.

2

Plea and Penalty Phase

James pleaded guilty to two counts of first-degree murder, one count of

aggravated child abuse, one count of attempted sexual battery, one count of

kidnapping, one count of grand theft, and one count of grand theft of an automobile.

Id. at 1230. He also entered pleas of no contest to two counts of sexual battery charged

in a separate information. Id. At the penalty-phase trial, James testified that he felt

ashamed of what he had done. Id. at 1233. The jury returned an advisory

recommendation for a sentence of death for each of the first-degree murder

convictions. Id. The trial court followed the jury’s recommendation and sentenced

James to death on both first-degree murder convictions. Id.

Direct Appeal

The Florida Supreme Court affirmed the judgments and sentences of death.

Id. at 1238. This Court denied James’ petition for a writ of certiorari on December 1,

1997. James v. Florida, 522 U.S. 1000 (1997).

Pre-Warrant State Postconviction Proceedings

James, through counsel, filed his initial motion for postconviction relief on May

27, 1998. James v. State, 974 So. 2d 365, 366 (Fla. 2008). The trial court scheduled

an evidentiary hearing, however, on March 10, 2003, James filed a pro se motion to

voluntarily dismiss postconviction proceedings. Id. The trial court held a hearing and

engaged in a colloquy with James to ensure that he understood the consequences of

his actions. Id. It discharged James’ counsel and allowed him to withdraw his

postconviction motion after determining that he understood the consequences of his

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actions. Id.

Two years later, James wrote discharged postconviction counsel, stating that

he had changed his mind and requested the reappointment of counsel and the

reinstatement of postconviction proceedings. Id. Counsel filed a motion seeking

reinstatement of the proceedings, which the trial court denied after holding a hearing.

Id. The Florida Supreme Court affirmed the trial court’s order. Id. at 368.

On December 18, 2018, James, through counsel, petitioned for federal habeas

relief. He sought and was granted a stay of habeas proceedings while he exhausted

claims in state court. James v. Sec'y, Dep't of Corr., No. 25-10683, 2025 WL 796324,

at *1 (11th Cir. Mar. 13, 2025). The state trial court summarily dismissed James’

successive postconviction motion. The Florida Supreme Court affirmed that decision,

and this Court denied James’ petition for a writ of certiorari. James v. State, 323 So.

3d 158, 161 (Fla. 2021), cert. denied, 142 S. Ct. 1678 (2022).

28 U.S.C. Section 2254 Proceedings

In 2022, the district court lifted the stay, and James filed an amended habeas

petition. James proffered a series of affidavits and medical records in an attempt to

persuade the district court that it should excuse his decades-long delay in seeking

habeas relief. James, 2025 WL 796324, at *1. The district court held that the habeas

petition was barred by the statute of limitations. Id., at *2. James was not entitled to

equitable tolling, because he had failed “(1) to show a causal connection between his

mental impairments and his ability to timely file a § 2254 petition” and he had failed

“(2) to demonstrate reasonable diligence.” Id. The district court further concluded

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that the actual innocence gateway was inapplicable, because there was “no

reasonable likelihood that the new mental health evidence provided by Petitioner

would prevent any reasonable juror from finding him guilty.” Id. As such, the district

court denied the amended habeas petition as untimely and denied a certificate of

appealability. It denied James’ motion for reconsideration on November 18, 2024. Id.

James appealed to the Eleventh Circuit Court of Appeals on December 17,

2024. James, 2025 WL 796324, at *2. On February 3, 2025, an Eleventh Circuit judge

denied James’ application for a certificate of appealability, finding that jurists of

reason would not debate the district court’s holding. Id. On February 24, 2025, six

days after Florida Governor Ron DeSantis signed a death warrant and scheduled

James’ execution for March 20, 2025, James filed a motion for reconsideration and an

emergency motion for a stay of execution, which an Eleventh Circuit three-judge

panel denied. Id.

On the same day he filed his motion for reconsideration in the Eleventh Circuit,

February 24, 2025, James filed a motion to amend his habeas petition, or

alternatively, a motion for relief from judgment under Federal Rule of Civil Procedure

60(b) in the district court. James, 2025 WL 796324, at *2. He argued that relief was

warranted on the grounds of new evidence, i.e., newly received CT scans and expert

reports about those scans, warranting the application of equitable tolling or actual

innocence. Id.

The district court denied James’ Rule 60(b) motion, holding that the new

evidence would not warrant the application of equitable tolling or the actual

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innocence gateway. James, 2025 WL 796324, at *2. It denied James’ alternative

motion to amend his petition on the grounds that it lacked jurisdiction to allow an

amendment after it had entered final judgment on the petition. Id.

James then filed a second motion for a stay of execution with the Eleventh

Circuit as well as a notice of appeal and a motion for a certificate of appealability.

James, 2025 WL 796324, at *2. On March 13, 2025, the Eleventh Circuit denied

James’ motion for a stay of execution. Id., at *3. It found that he had not established

a substantial likelihood of success on the merits. Id., at *2-3. Namely, the newly

offered medical evidence and James’ previous evidence failed to establish a

connection between any mental impairment and the time before, during, or after his

waiver of collateral proceedings and through the end of his AEDPA limitations period.

Id., at *3. Further, the new evidence did not explain James’ lack of reasonable

diligence during the same timeframe and his later decision to attempt to reinstate

postconviction proceedings, or during the ten-year period between the Florida

Supreme Court’s affirmance of the denial of such reinstatement and his initiation of

federal habeas proceedings in 2018. Id. Finally, it held that a stay of execution would

not be equitable, because James voluntarily abandoned his postconviction challenges

years ago. Id.

Post-Warrant State Court Litigation

James filed a successive postconviction motion on February 23, 2025, raising

three claims: (1) his execution would violate the Eighth Amendment due to the length

of his incarceration, the conditions of his incarceration and his physical and mental

6

decline; (2) recently received brain scans from 2023 would render his execution

violative of the Eighth and Fourteenth Amendments; and (3) his execution would

violate the Eighth Amendment because the jury’s death recommendations were not

unanimous. The postconviction court summarily denied relief, finding claims one and

three untimely, procedurally barred and meritless and claim two untimely. James v.

State, No. SC2025-0280, 2025 WL 798376, *5 (Fla. March 13, 2025).

Post-Warrant Florida Supreme Court Litigation

James appealed to the Florida Supreme Court, raising all three claims. The

Florida Supreme Court affirmed the postconviction court’s summary denial of relief.

James v. State, No. SC2025-0280, 2025 WL 798376 (Fla. March 13, 2025). He also

filed an accompanying stay of execution, which the court denied holding that he had

failed to raise substantial grounds upon which relief might be granted. James, 2025

WL 798376, at *9.

Post-Warrant State Habeas Petition

On March 2, 2025, James filed a petition for writ of habeas corpus in the

Florida Supreme Court, arguing that the court should revisit its 2021 holding that

his 2019 successive postconviction motion was untimely under state procedural law.

He asserted that reconsideration was warranted because: (1) an amendment to state

procedural law no longer permits the waiver of postconviction counsel; (2) similarly

situated defendants had been permitted to reinstate postconviction proceedings; (3)

newly received CT scans undermine his waiver of postconviction proceedings; and (4)

manifest injustice. On March 13, 2025, the court denied the petition. James, 2025 WL

7

798376, at *9. It also denied James’ accompanying motion for a stay of execution,

holding that he had failed to raise substantial grounds upon which relief might be

granted. Id.

On March 17, 2025, James, represented by Capital Collateral Regional

Counsel – North (“CCRC-N”), filed a petition for a writ of certiorari in this Court

raising two questions.

REASONS FOR DENYING THE WRIT

ISSUE I

Whether this Court should grant review of a decision of the

Florida Supreme Court rejecting a claim that the Eighth

Amendment requires jury sentencing in capital cases and which

raises a federal constitutional challenge to Florida’s Conformity

Clause that was not addressed in the Court’s opinion.

A. Jury Unanimity

James first seeks review of the Florida Supreme Court’s decision rejecting a

claim that the Eighth Amendment mandates unanimous jury sentencing in capital

cases. Pet. at 6. The Florida Supreme Court found the Eighth Amendment claim to

be procedurally barred. The finding is an independent and adequate state law ground

precluding review in this Court. Furthermore, it is the Sixth Amendment right-to-ajury-trial provision that governs the jury’s role in sentencing, not the Eighth

Amendment. As this Court explained in McKinney v. Arizona, 589 U.S. 139 (2020), a

jury in a capital case is required to find one aggravating circumstance but a jury is

not required to weigh the aggravation against the mitigation or to make the ultimate

sentencing decision.

8

Even viewing the matter as an Eighth Amendment issue, there is no conflict

between this Court’s Eighth Amendment jurisprudence and the Florida Supreme

Court’s decision in this case. This Court’s long-standing precedent is that the Eighth

Amendment does not require jury sentencing in capital cases. Spaziano v. Florida,

468 U.S. 447 (1984); Harris v. Alabama, 513 U.S. 504 (1995). And this Court recently

denied review of this same question in the Florida capital cases of Dillbeck v. Florida,

143 S. Ct. 856 (2023) (No. 22-6819), and Zack v. Florida, 144 S. Ct. 274 (2023) (No.

23-5653). Nor is there any significant conflict between the Florida Supreme Court’s

decision in this case and that of the lower appellate courts. Therefore, review of this

question should be denied.

The Florida Supreme Court’s decision in this case

The Florida Supreme Court affirmed the postconviction court’s summary

denial of the claim that the Eighth Amendment requires unanimous jury sentencing

in capital cases. James, 2025 WL 798376, at *8. The court found that James’ Eighth

Amendment claim was an attempt to avoid a procedural bar, because he had argued

in an earlier appeal that his nonunanimous death sentence violated the Sixth

Amendment pursuant to Hurst v. Florida, 577 U.S. 92 (2016). Id. It held that even if

James framed the issue as one of “evolving standards of decency” under the Eighth

Amendment, this Court’s Eighth Amendment precedent, by which the Florida

Supreme Court is bound, does not require a unanimous jury recommendation for

death during the penalty phase. Id.

9

Independent and adequate state law grounds

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

(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. Id. at 1038, n.4 (quoting Fox

Film Corp. v Muller, 296 U.S. 207, 210 (1935)). Provided the state law is not

“interwoven” with federal law, this Court’s jurisdiction “fails.” Id. (citing Enter.

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 citing Harris v.

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

The Florida Supreme Court found the Eighth Amendment claim to be

procedurally barred. James, 2025 WL 798376, at *8. The court was interpreting a

Florida rule of court to determine whether the successive postconviction claim was

successive and, thus, procedurally barred. There is no federal constitutional aspect to

such determinations. The determination of being procedurally barred was not

interwoven with federal constitutional law. This is an independent and adequate

ground to deny review and this Court should decline review1.

1 This case would also present a very poor vehicle to address this issue as it comes to

10

The Sixth Amendment, not the Eighth Amendment

The Eighth Amendment prohibits cruel and unusual punishment; it does not

address a jury’s proper role in capital sentencing. The Eighth Amendment does not

speak to what findings a penalty phase jury must make regarding the death sentence.

It is the Sixth Amendment right-to-a-to-jury-trial provision that applies to those

types of issues. As the Nebraska Supreme Court observed, the Eighth Amendment is

not even “pertinent” to the issue of whether a panel of judges may make the ultimate

sentencing decision in a capital case. State v. Trail, 981 N.W.2d 269, 310 (Neb. 2022).

When a specific constitutional provision applies, this Court employs that provision

rather than a more general or inapplicable provision. The Sixth Amendment, not the

Eighth Amendment, governs this question. See City of Grants Pass, Oregon v.

Johnson, 603 U.S. 520, 542-43 (2024) (“The Cruel and Unusual Punishments Clause

focuses on the question what “method or kind of punishment” a government may

impose after a criminal conviction, not on the question whether a government may

criminalize particular behavior in the first place or how it may go about securing a

conviction for that offense.”) (citation omitted).

No conflict with this Court’s jurisprudence

There is no conflict between this Court’s Sixth Amendment or Eighth

this Court in the postconviction context and therefore this Court would have to

address the predicate issue of retroactivity. Certainly, any new procedural rule

mandating a unanimous penalty phase jury would not be retroactive. Edwards v.

Vannoy, 593 U.S. 255 (2021) (abolishing the watershed exception); Schriro v.

Summerlin, 542 U.S. 348, 353 (2004) (stating that Ring v. Arizona, 536 U.S. 584

(2002) was “properly classified as procedural and holding Ring was not retroactive).

11

Amendment jurisprudence and the Florida Supreme Court’s decision in this case. As

a Sixth Amendment claim, it is meritless under this Court’s decision in McKinney. As

this Court explained, the Sixth Amendment right-to-a-jury trial provision only

requires jury findings regarding the aggravating circumstances, not perform the

weighing or make the final decision. This Court stated that capital defendants are

entitled to a jury determination of at least one aggravating circumstance for the

defendant to be eligible for a death sentence. Id. at 141, 144. But the McKinney Court

also explained that defendants are not constitutionally entitled to a jury

determination of weighing or to a jury determination of the “ultimate sentencing

decision.” Id. at 144. This Court stated that “States that leave the ultimate life-ordeath decision to the judge may continue to do so.” Id. at 145. Neither Ring nor Hurst,

requires jury weighing of the aggravation against the mitigation. McKinney, 589 U.S.

at 145. Constitutionally, judges, including appellate judges, may perform the

weighing function and may also be the ultimate sentencer.

This Court has repeatedly observed that it is aggravators that are elements of

the greater offense of capital murder. Ring, 536 U.S. at 609 (stating that because

aggravating factors “operate as the functional equivalent of an element of a greater

offense” of capital murder, “the Sixth Amendment requires that they be found by a

jury”); Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003) (plurality opinion)

(explaining, that “for purposes of the Sixth Amendment’s jury-trial guarantee, the

underlying offense of ‘murder’ is a distinct, lesser included offense of ‘murder plus one

or more aggravating circumstances’” which “increases the maximum permissible

12

sentence to death” and therefore, a jury, and not a judge, must find the existence of

any aggravating circumstances beyond a reasonable doubt). So, because it is the

aggravator that increases the penalty to death, it is only the aggravating factor that

must be found by the jury, under this Court’s Sixth Amendment jurisprudence.

The petition does not cite, acknowledge, or attempt to distinguish McKinney.

Petitions for writ of certiorari that do not account for this Court’s most relevant

decisions do not warrant this Court’s serious consideration.

The Sixth Amendment does not require jury sentencing in capital cases

according to this Court’s decision in McKinney. There is no conflict between this

Court’s Sixth Amendment jurisprudence and the Florida Supreme Court’s decision in

this case.

As an Eighth Amendment claim, it is meritless under this Court’s decisions in

Spaziano, and Harris. In Spaziano, this Court rejected an Eighth Amendment

challenge to a judge overriding a penalty phase jury’s recommendation of a life

sentence. Id. at 459-65. This Court was not persuaded that a judge having the

ultimate responsibility to impose a death sentence in a capital case was “so

fundamentally at odds with contemporary standards of fairness and decency” that

Florida must be required to “give final authority to the jury to make the life-or-death

decision.” Id. at 465. This Court concluded that “there is no constitutional imperative

that a jury have the responsibility of deciding whether the death penalty should be

imposed.” Id. The dissent in Spaziano would have required jury sentencing in capital

cases, as a matter of Eighth Amendment law, believing that a jury was more attuned

13

to the community’s moral sensibility; more accurately reflects the composition and

experiences of the community as a whole; and were more likely to express the

conscience of the community. Id. at 469 (Stevens, J., dissenting); see also Hurst, 577

U.S. at 103 (Breyer, J., concurring) (expressing the view that the Eighth Amendment

requires a jury, not a judge, make the decision to sentence a defendant to death citing

Ring, 536 U.S. at 613 (Breyer, J., concurring) (quoting the dissent in Spaziano)).

And, in Harris, this Court held the Eighth Amendment does not require that

a capital sentencing judge assign a capital jury’s recommendation of a sentence any

particular weight. This Court rejected the notion that any “specific method for

balancing mitigating and aggravating factors” was “constitutionally required.” Id. at

512. Nor did the Constitution require a State to ascribe any specific weight to any

particular aggravating or mitigating factor. Id. This Court stated the “Constitution

permits the trial judge, acting alone, to impose a capital sentence.” Id. at 515.

While this Court’s decision in Hurst, overruled the Sixth Amendment aspects

of Spaziano, it did not overrule the Eighth Amendment aspects of Spaziano. Hurst,

577 U.S. at 101. The Hurst Court overruled both Spaziano and Hildwin v. Florida,

490 U.S. 638 (1989), but only “to the extent” they allowed “a sentencing judge to find

an aggravating circumstance.” Hurst, 577 U.S. at 102; see also State v. Poole, 297 So.

3d 487, 497 (Fla. 2020) (explaining that this Court retreated from the Sixth

Amendment concept of aggravators being sentencing factors rather than elements of

capital murder starting with Apprendi v. New Jersey, 530 U.S. 466 (2000), then in

Ring v. Arizona, 536 U.S. 584 (2002), and finally in Hurst v. Florida, 577 U.S. 92

14

(2016)); Poole, 297 So. 3d at 500 (noting Hurst v. Florida “overruled Spaziano and

Hildwin ‘to the extent they allow a sentencing judge to find an aggravating

circumstance, independent of a jury’s factfinding, that is necessary for the imposition

of the death penalty’” but noting that the United States Supreme Court did not

address the Eighth Amendment arguments raised by the petitioner in its Hurst

decision). Furthermore, this Court’s decision in Hurst did not speak to the holding of

Harris at all. Indeed, Harris was never even cited in the Hurst decision.

Spaziano remains good law regarding the issue of the Eighth Amendment not

requiring jury sentencing in capital cases, just as the Florida Supreme Court

concluded in this case. And the view that Spaziano remains good law was reinforced

by the reasoning of this Court’s recent decision in McKinney, albeit on Sixth

Amendment grounds. Spaziano and Harris remain valid Eighth Amendment

precedent which the Florida Supreme Court properly followed.

James’ counsel relies on the fact that since Hurst only four states have

executed a defendant who was sentenced after the jury was not unanimous to

establish that unanimous jury sentencing in capital cases is the widespread practice

in the United States. Pet. at 8. But jury sentencing in capital cases was the norm

when Spaziano was decided in 1984, as well as when Harris was decided in 1995.

James’ counsel insists that the decision to impose a death sentence “belonged”

to the jury at the time of the founding of the nation in support of an argument that

jury sentencing was part of the original understanding of the Eighth Amendment.

Pet. at 9. But that statement is directly contrary to this Court’s observation that at

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the time the “Eighth Amendment was adopted in 1791, the States uniformly followed

the common-law practice of making death the exclusive and mandatory sentence for

certain specified offenses.” Woodson v. North Carolina, 428 U.S. 280, 289 (1976)

(holding mandatory death sentences were unconstitutional) (emphasis added).

Mandatory death sentences were the norm from the founding until Furman v.

Georgia, 408 U.S. 238 (1972). And it was only in the wake of Furman that mandatory

death sentences were declared unconstitutional. Roberts v. Louisiana, 428 U.S. 325

(1976) (holding a mandatory death sentence statute was unconstitutional even under

a narrower definition of first-degree murder). James’ counsel’s argument is not

historically accurate.

Furthermore, contrary to opposing counsel’s basic assertion that jury

sentencing was part of the original understanding of the Eighth Amendment, the

original understanding of the Eighth Amendment was limited to bail, fines, and types

of punishments. The drafters of the Eighth Amendment, who adopted the English

phrasing, were “primarily concerned” with “proscribing tortures and other barbarous

methods of punishment.” Gregg v. Georgia, 428 U.S. 153, 170 & n.17 (1976) (plurality)

(quoting Furman v. Georgia, 408 U.S. 238, 316-27 (1972) (Marshall, J., concurring));

Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring) (observing that evidence

from the debates on the Constitution confirms that “the Eighth Amendment was

intended to disable Congress from imposing torturous punishments.”); Glossip v.

Gross, 576 U.S. 863, 894-95 (2015) (Scalia, J. concurring) (“Historically, the Eighth

Amendment was understood to bar only those punishments that added ‘terror, pain,

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or disgrace’ to an otherwise permissible capital sentence.”). That the Eighth

Amendment extends into other areas, such as to a jury’s role in sentencing, is a

modern invention flowing from the discussion of the dignity of man in Trop v. Dulles,

356 U.S. 86, 100 (1958) (“The basic concept underlying the Eighth Amendment is

nothing less than the dignity of man.”). But it is openly acknowledged in the caselaw

that that was not the original understanding of the Eighth Amendment. See, e.g.,

Hall v. Florida, 572 U.S. 701, 708 (2014) (stating that the Eighth Amendment is “not

fastened to the obsolete but may acquire meaning as public opinion becomes

enlightened by a humane justice” and the amendment’s “protection of dignity reflects

the Nation we have been, the Nation we are, and the Nation we aspire to be.”).

James counsel points to the jury’s power of nullification as support for the

assertion that common law juries determined the sentence without even attempting

to establish that it was even a common phenomenon for a jury to acquit a defendant

of a crime to avoid the death penalty. And regardless of the prevalence of such

acquittals, a jury’s power of nullification does not change the law. Mandatory death

sentences imposed by the judge were the norm at the time the Eighth Amendment

was adopted and for more than a century afterwards, not jury sentencing. Jury

sentencing in capital cases was not the historical practice.

This Court recently denied review of this exact same Eighth Amendment

question in two Florida capital cases. Dillbeck v. Florida, 143 S. Ct. 856 (2023) (No.

22-6819); Zack v. Florida, 144 S. Ct. 274 (2023) (No. 23-5653). Much the same

arguments made in the Dillbeck and Zack petitions, also under active warrants,

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regarding this question are repeated in this petition.

There is no conflict with this Court’s Sixth Amendment or Eighth Amendment

jurisprudence and the Florida Supreme Court’s decision in this case rejecting the

claim that the Eighth Amendment requires unanimous jury sentencing in capital

cases.

No conflict with the lower appellate courts

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

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

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

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

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

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

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

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

this Court’s attention. Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184

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

James counsel cites no federal circuit court case holding that jury sentencing

in capital cases is constitutionally required by the Eighth Amendment. The federal

circuit courts follow McKinney, Harris, and Spaziano. Nor is there any conflict

between the Florida Supreme Court’s decision in this case and any decision of any

other state supreme court. Various state supreme courts have followed this Court’s

decision in McKinney explaining that the ultimate sentencing decision in a capital

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case may be made by the judge. See, e.g., Trail, 981 N.W.2d at 309 (holding

Nebraska’s sentencing scheme, which leaves to the three-judge panel the ultimate

life-or-death decision as well as the determinations of whether the aggravating

circumstances justify the death penalty and weighing the aggravation against the

mitigation and concluding judge sentencing in capital cases “does not violate the

Sixth Amendment right to a jury trial” citing McKinney); State v. Whitaker, 196

N.E.3d 863 (Ohio 2022) (rejecting an argument that a capital defendant is entitled to

a jury determination of the mitigation and weighing citing McKinney); People v.

McDaniel, 493 P.3d 815, 851, 859 (Cal. 2021) (stating a penalty phase jury’s

sentencing decision “is not a traditional factual determination in any relevant sense”

and observing that under McKinney, the Constitution does not require a jury to

perform the weighing or they make the ultimate sentencing decision in a capital case),

cert. denied, McDaniel v. California, 142 S. Ct. 2877 (2022) (No. 21-7455). Opposing

counsel does not even attempt in the petition to establish any conflict between the

Florida Supreme Court’s decision and that of any other state supreme court after this

Court’s observation that states that leave the “ultimate life-or-death decision to the

judge may continue to do so.” McKinney, 589 U.S. at 145. There is no conflict between

the Florida Supreme Court’s decision and that of any federal circuit court of appeals

or that of any state court of last resort.

Because there is an independent and adequate state law ground, as well as the

claim being meritless under this Court’s existing precedent of McKinney, Spaziano

and Harris, review of this question regarding jury sentencing in capital cases should

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be denied.

B. Florida’s Conformity Clause

James next argues that Florida’s constitution conformity clause -- requiring its

interpretation of cruel and unusual punishment to conform to this Court’s Eighth

Amendment jurisprudence -- is a violation of James’ rights under the Eighth and

Fourteenth Amendments. This issue was not passed upon by the Florida Supreme

Court.

Poor vehicle to decide the question presented

In addition to this issue not being passed upon by the Florida Supreme Court,

it likewise involves no conflict. Sup. Ct. R. 10(b). Because the Florida Supreme Court

did not decide this issue, it certainly does not conflict with the decision of another

state court of last resort, United States court of appeals, or this Court.

It is this Court’s general practice to wait until an issue has sufficiently

developed with conflicting opinions before granting certiorari. See California v.

Carney, 471 U.S. 386, 400 & n.11 (1985) (Stevens, J., dissenting). That way, this

Court has the benefit of deep analysis on both sides of the issue and can bring its

best, most-informed judgment to bear on the constitutional question. See id. at 400

(“To identify rules that will endure, we must rely on the state and lower federal courts

to debate and evaluate the different approaches to difficult and unresolved questions

of constitutional law.”). James has not identified any conflict or opinion supporting

his position, and the Florida Supreme Court did not engage in analysis of this issue.

This Court should not depart from its normal practice to review this issue now

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without the benefit of any conflict or lower-court analysis, particularly on the eve of

an execution.

In addition, James fails to show how the Florida Supreme Court’s reliance on

the state’s conformity clause violates his federal constitutional rights. Nothing in the

Eighth Amendment forces state courts to expand this Court’s Eighth Amendment

jurisprudence into areas where this Court has not. James does not establish how the

state court’s adoption of this Court’s Eighth Amendment jurisprudence violates his

rights in any way.

What is more, lower courts are required to follow this Court’s precedents. The

United States Constitution mandates that “the Laws of the United States . . . shall

be the supreme Law of the Land” that judges in every state are bound by. See U.S.

Const. art. 6. Likewise, this Court has long acknowledged that lower courts are bound

to adhere to its precedent. See, e.g., Hohn v. United States, 524 U.S. 236, 252–53

(1998) (“Our decisions remain binding precedent until we see fit to reconsider them,

regardless of whether subsequent cases have raised doubts about their continuing

vitality.”); Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (“[I]t is this Court’s prerogative

alone to overrule one of its precedents.”); Thurston Motor Lines, Inc. v. Jordan K.

Rand, Ltd., 460 U.S. 533, 535 (1983) (“Needless to say, only this Court may overrule

one of its precedents.”); see also Hutto v. Davis, 454 U.S. 370, 375 (1982) (“[U]nless

we wish anarchy to prevail within the federal judicial system, a precedent of this

Court must be followed by the lower federal courts.”).

It is absurd to suggest that any lower court bound to this Court’s interpretation

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of the Eighth Amendment could overrule McKinney, Spaziano and Harris and require

jury sentencing. It simply cannot violate the Eighth Amendment to refuse to expand

this Court’s Eighth Amendment jurisprudence. This question is altogether not

worthy of this Court’s attention.

ISSUE II

Whether this court should grant certiorari to review a claim that

the application of a postconviction procedural bar to a

competency claim violates the due process clause when the

issue was not raised in post-warrant litigation, was previously

argued in a 2021 petition for writ of certiorari, and where James

knowingly and voluntarily declined to pursue an earlier

postconviction motion over two decades ago.

James’ next question presented to this Court involves whether the procedural

default of a postconviction substantive mental competency claim violates the Sixth,

Eighth and Fourteenth Amendments. James did not present this claim below in his

post-warrant litigation, thus precluding this Court’s review. To the extent that he

raised a similar, if not identical, claim in his January 27, 2022, petition for writ of

certiorari, his current argument constitutes an untimely and improper motion for

rehearing of this Court’s earlier denial. Further, fundamental fairness does not

mandate relitigation of his competency in 2003 to waive state postconviction

proceedings. Therefore, review of this question should be denied.

Issue not presented in state court

This Court’s jurisdiction to review a case from a state court of last resort is

premised on the state court deciding an important federal question. Sup. Ct. R.

10(b)(c). If a federal question has not first been presented to a state court, this Court

has “no power to consider it.” Street v. New York, 394 U.S. 576, 581–82 (1969); see

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also Hill v. California, 401 U.S. 797, 805 (1971) (finding an issue was not properly

before this Court when it was never raised, briefed, or argued in the state appellate

court).

James never raised the instant claim that there is a lack of consensus in state

and federal courts regarding whether a substantive claim of a defendant’s mental

incompetency can be subject to a time or procedural bar in either his post-warrant

successive postconviction motion or in his post-warrant habeas petition. Rather, he

argued that the Florida Supreme Court should revisit its earlier timeliness rulings

because: (1) an amendment to state procedural law no longer permits the waiver of

postconviction counsel; (2) similarly situated defendants had been permitted to

reinstate postconviction proceedings; (3) newly received CT scans undermine his

waiver of postconviction proceedings; and (4) manifest injustice.

As to his instant argument, James’ Petition makes no reference to the Florida

Supreme Court’s latest decision. James is silent on the Florida Supreme Court not

addressing the instant claim. Indeed, James has made no effort to show that this

issue was properly raised, nor does he show that the Florida Supreme Court’s failure

to consider it was for a reason other than lack of presentation. James’ failure to raise

this instant claim below precludes this Court’s jurisdiction, and certiorari must be

denied.

Untimely motion for rehearing of denial of petition for a writ of certiorari

On January 27, 2022, James filed a Petition for a Writ of Certiorari with this

Court following the Florida Supreme Court’s 2021, denial of his successive

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postconviction motion. James v. State, 323 So. 3d 158 (Fla. 2021). Citing “compelling

evidence of his substantive mental incompetency to plead guilty,” he argued that this

Court should grant review because the lower court’s decision presented the important

issue of whether a court may refuse to review a capital defendant’s substantive

incompetency. Petition for Writ of Certiorari at 4; Id. He also urged this Court to

grant review to resolve a lack of consensus regarding whether a state procedural bar

is applicable to substantive competency claims. Id. at 10. This Court denied James’

Petition for a Writ of Certiorari on April 18, 2022. James v. Florida, 142 S. Ct. 1678

(2022).

A petition for the rehearing of an order denying a petition for writ of certiorari

must be filed within 25 days after the order of denial. Sup. Ct. R. 44-2. The time for

filing a petition for the rehearing of an order denying a petition for a writ of certiorari

will not be extended. Id. Further, its grounds shall be limited to intervening

circumstances of a substantial or controlling effect or to other substantial grounds

not previously presented. Id. Finally, the petition shall be presented together with a

certification of counsel that it is restricted to the grounds specified in Rule 44-2 and

that it is presented in good faith and not for delay. Id.

Here, James did not file a petition for rehearing of this Court’s denial of his

Petition for a Writ of Certiorari in 2022. However, his current argument, made over

three years later, is essentially that. As such, it fails to comply with Rule 44-2 in

multiple ways. It is untimely. With the exception of opinions based on newly received

CT scans, which in reality are cumulative to the expert opinions on which he relied

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in 2021, it cites no intervening circumstances of a substantial or controlling effect or

to other substantial grounds not previously presented. Finally, counsel has not filed

a certificate stating that his argument is restricted in any way to intervening

circumstances of a substantial or a controlling effect. James’ untimely and improper

petition for rehearing of this Court’s 2022 ruling should be denied.

Fundamental fairness and relitigation of competency twenty-two years

ago

There is no federal constitutional right to state postconviction proceedings.

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). States have no obligation to provide

postconviction relief and when a state does, it is only fundamental fairness that

governs such proceedings. Id. A convicted defendant’s due process rights “must be

analyzed in light of the fact that he has already been found guilty at a fair trial and

has only a limited interest in postconviction relief.” Dist. Attorney’s Off. for Third Jud.

Dist. v. Osborne, 557 U.S. 52, 69 (2009). Only if the state’s postconviction procedures

violate fundamental fairness may they be challenged in federal court. Id. at 69 (citing

Medina v. California, 505 U.S. 437, 446, 448 (1992)).

The State agrees that a defendant must be competent under Dusky v. United

States, 362 U.S. 402 (1960), and Drope v. Missouri, 420 U.S. 162 (1975), to waive

postconviction proceedings and counsel in Florida. Durocher v. Singletary, 623 So. 2d

482, 485 (Fla. 1993) (holding the waiver of collateral proceedings and collateral

counsel must be “knowing, intelligent, and voluntary” and mandating a waiver

colloquy be held); James, 974 So. 2d at 367 (“[W]e have consistently held that the

right to counsel and to prosecute postconviction claims may be waived so long as the

25

waiver is made voluntarily, knowingly, and intelligently.”).

But James was found to be competent by the lower court in 2003. James, 974

So. 2d at 366 (noting the postconviction court “held a hearing to determine whether

James was competent and fully understood the consequences of dismissing the

postconviction motion” in the appeal of his motion to reinstate). Indeed, as the Florida

Supreme Court noted, James’ postconviction attorney did not challenge the validity

of the original waiver in that appeal. Id. at 368.

Opposing counsel is really arguing that fundamental fairness mandates that

James must be allowed to relitigate his competency in 2003 to waive state

postconviction proceedings, based on new evidence of his cerebral atrophy, discovered

20 years later, and to do so on the eve of a warrant. Fundamental fairness does not

mandate relitigation, and certainly not based on new evidence that has not been

shown to relate back in time to 2003, much less on the eve of a warrant.

CONCLUSION

James has advanced no compelling reason for this Court to grant his petition

for writ of certiorari. On the contrary, there is an independent and adequate state

law ground for the denial of his Eighth Amendment claim, which is meritless under

this Court’s existing precedent of McKinney, Spaziano and Harris. Further, the

conformity clause challenge was not passed upon below. Finally, the competency

claim was neither presented nor passed upon below. This case is an exceptionally

poor vehicle for this Court’s review. Accordingly, Respondent respectfully requests

that this Honorable Court deny the petition for a writ of certiorari.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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