Petition for Writ of Certiorari — Michael Tanzi, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections
Supreme Court briefApr 4, 2025
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No. _____
IN THE SUPREME COURT OF THE UNITED STATES
═════════════════════════════════
MICHAEL A. TANZI,
Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
Respondent.
═════════════════════════════════
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
═════════════════════════════════
CAPITAL CASE
DEATH WARRANT SIGNED
EXECUTION SET APRIL 8, 2025 AT 6:00 P.M.
═════════════════════════════════
PAUL KALIL*
Fla. Bar No. 174114
Assistant CCRC–South
KalilP@ccsr.state.fl.us
*Counsel of Record
TODD SCHER
Fla. Bar No. 0899641
Assistant CCRC-South
TScher@msn.com
ScherT@ccsr.state.fl.us
MICHAEL T. COOKSON
Fla. Bar No. 1057838
Staff Attorney
CooksonM@ccsr.state.fl.us
Capital Collateral Regional Counsel –
South
110 SE 6th Street, Suite 701
Fort Lauderdale, FL 33301
Tel. (954) 713-1284
April 4, 2025
COUNSEL FOR MICHAEL TANZI
CAPITAL CASE
QUESTIONS PRESENTED
In an attempt to avoid the clear implications of this Court’s decision in Erlinger
v. United States—that even unanimous jury recommendations for the death penalty
are void under the Sixth Amendment because they cannot substantively limit
executive and judicial power—the Florida Supreme Court relied on its own decision
dependent on Spaziano v. Florida to deny Mr. Tanzi’s claim. However, in Hurst v.
Florida this Court overruled Spaziano in relevant part, making it clear that a jury’s
“mere recommendation is not enough” under the Sixth Amendment. Accordingly, the
questions presented are:
1.
Whether Florida may limit a penalty phase jury’s role under the Sixth,
Eighth, and Fourteenth Amendments based on Spaziano v. Florida, a case which this
Court has explicitly overruled.
2.
Whether
Florida’s
continued
reliance
on
unanimous
advisory
recommendations as a substitute for jury fact-finding violates the Sixth Amendment
and the Due Process Clause under Apprendi and its progeny.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................................................................................... i
TABLE OF CONTENTS ........................................................................................... ii
TABLE OF CONTENTS – APPENDICES ............................................................ iii
TABLE OF AUTHORITIES .................................................................................... iv
PARTIES TO THE PROCEEDINGS BELOW .................................................... vii
LIST OF DIRECTLY RELATED PROCEEDINGS ........................................... viii
PETITION FOR A WRIT OF CERTIORARI ........................................................ 1
CITATIONS TO OPINION BELOW ....................................................................... 1
STATEMENT OF JURISDICTION ........................................................................ 1
CONSTITUTIONAL PROVISIONS INVOLVED ................................................. 1
STATEMENT OF THE CASE.................................................................................. 2
I.
RELEVANT LEGAL BACKGROUND ................................................ 2
II.
RELEVANT FACTS AND PROCEDURAL HISTORY ..................... 5
REASONS FOR GRANTING THE WRIT ............................................................ 16
1.
This Court Should Not Tolerate the Florida Supreme Court’s
Blatant Disregard of its Overruling of Spaziano v. Florida. .... 17
2.
The Florida Supreme Court’s Ruling Demeans The Right To
Trial By Jury And Flouts Clearly Established Federal Law..... 24
3.
a.
A Non-Advisory Jury Must Find The Aggravating
Circumstances Necessary To Impose a Sentence of Death.
...................................................................................................... 26
b.
The Florida Supreme Court’s Harmless Error Analysis Is
Divorced From Logic and The Reasonable Doubt
Standard..................................................................................... 29
The Florida Supreme Court’s Procedural Ruling Does Not Rest
On Adequate And Independent State Law Grounds. ................. 33
ii
CONCLUSION ......................................................................................................... 34
TABLE OF CONTENTS – APPENDICES
APPENDIX A:
April 1, 2025 Florida Supreme Court Opinion affirming the
denial of postconviction relief and denying a writ of habeas
corpus, reported as,
Tanzi v. Sec’y, Fla. Dep’t of Corr., SC2025-0372, 2025 WL
971568, at*1 (Fla. Apr. 1, 2025) .............................................. A1
APPENDIX B:
Fla. Stat. §§ 921.141 (1996) .................................................... A12
APPENDIX C:
February 19, 2003 “Advisory Sentence” (R. 1430) ................. A16
iii
TABLE OF AUTHORITIES
Cases
Ake v. Oklahoma, 470 U.S. 68 (1985) ................................................................... 37, 38
Alleyne v. United States, 570 U.S. 99 (2013) ................................................. 26, 27, 32
Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................ 3, 22, 27, 30
Blakely v. Washington, 542 U.S. 296 (2004) ...................................... 27, 30, 31, 32, 37
Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002)...................................................... 19, 24
Brady v. Maryland, 373 U.S. 83 (1963) ....................................................................... 14
Caldwell v. Mississippi, 472 U.S. 320 (1985) .................................................. 15, 33, 34
Cunningham v. California, 549 U.S. 270 (2007) ........................................................ 27
Cunningham v. Florida, 144 S. Ct. 1287 (Mem.) (2024) ............................................ 25
Erlinger v. United States, 602 U.S. 821 (2024) .................... 5, 6, 16, 17, 28, 30, 32, 38
Hildwin v. Florida, 490 U.S. 638 (1989) ..................................................................... 20
Hurst v. Florida, 577 U.S. 92 (2016) ................................. 2, 3, 5, 14, 20, 22, 23, 26, 32
Hurst v. State, 202 So. 3d 40 (Fla. 2016) ................................................................ 4, 14
Jones v. United States, 526 U.S. 227 (1999)............................................................... 22
Mathis v. United States, 579 U.S. 500 (2016) ............................................................ 27
Mississippi v. EPA, 744 F.3d 1334 (D.C. Cir. 2013) ................................................... 33
Mosley v. State, 209 So. 3d 1248 (Fla. 2016) .......................................................... 4, 14
North Carolina v. Alford, 400 U.S. 25 (1970) ............................................................... 7
Oregon v. Ice, 555 U.S. 160 (2009) .............................................................................. 30
Perry v. State, 210 So. 3d 630 (Fla. 2016) ................................................................... 14
Ring v. Arizona, 536 U.S. 584 (2002) ............................................................ 3, 5, 27, 30
Shepard v. United States, 544 U.S. 13 (2005) ............................................................ 27
iv
Southern Union Co. v. United States, 567 U.S. 343 (2012) ....................................... 27
Spaziano v. Florida, 468 U.S. 447 (1984) ........................................ 5, 20, 21, 22, 23, 24
Spencer v. State, 615 So. 2d 688 (Fla. 1993) .............................................................. 10
State v. Poole, 297 So. 3d 487 (Fla. 2020) ............................................... 4, 5, 21, 22, 24
Strickland v. Washington, 466 U.S. 668 (1984) .......................................................... 14
Tanzi v. Florida, 552 U.S. 1195 (2008) ........................................................................ 13
Tanzi v. Florida, 577 U.S. 865 (2015) .......................................................................... 14
Tanzi v. Florida, 586 U.S. 1004 (2018) ........................................................................ 15
Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644 (11th Cir. 2014) .............................. 14
Tanzi v. Sec’y, Fla. Dep’t of Corr., SC2025-0372, 2025 WL 971568 (Fla. Apr. 1, 2025)
................................................................................................. 1, 17, 18, 23, 29, 33, 38
Tanzi v. State, 251 So. 3d 805 (Fla. 2018) .............................................................. 4, 15
Tanzi v. State, 94 So. 3d 482 (Fla. 2012) ..................................................................... 13
Tanzi v. State, 964 So. 2d 106 (Fla. 2007) ....................................................... 12, 13, 36
United States v. Booker, 543 U.S. 220 (2005) ............................................................ 27
United States v. Haymond, 588 U.S. 634 (2019) ........................................................ 27
United States v. O’Brien, 560 U.S. 218 (2010) ........................................................... 27
Williams v. Florida, 399 U.S. 103 (1970) .................................................................... 25
Statutes
§ 921.141, Fla. Stat. (1996)...................................................................................... 2, 35
28 U.S.C. § 1257(a) ........................................................................................................ 1
28 U.S.C. § 2101(d) ........................................................................................................ 1
Constitutional Provisions
U.S. Const. amend. VI ............................................................................................. 1, 29
U.S. Const. amend. VIII ................................................................................................ 1
v
U.S. Const. amend. XIV ........................................................................................... 2, 29
vi
PARTIES TO THE PROCEEDINGS BELOW
Petitioner Michael A. Tanzi, a death-sentenced Florida inmate facing
imminent execution, was the Movant and Petitioner in the Florida Supreme Court.
Respondent
Secretary,
Florida
Department
Respondent in the Florida Supreme Court.
vii
of
Corrections,
was
the
LIST OF DIRECTLY RELATED PROCEEDINGS
Per Supreme Court Rule 14.1(b)(iii), the following proceedings relate to the
case at issue in this Petition:
Underlying Trial:
Sixteenth Judicial Circuit Court in and for Monroe County, Florida
State of Florida v. Michael A. Tanzi, Case No. 2000-CF-573-K
Judgment Entered: May 9, 2003
(Plea Date: January 31, 2003; Sentence Date: April 11, 2003)
Direct Appeal:
Florida Supreme Court, Case No. SC05-0457
Michael A. Tanzi v. State of Florida, 964 So. 2d 106 (Fla. 2007)
Judgment Entered: May 10, 2007
Rehearing Denied: August 27, 2007
Mandate Issued: September 12, 2007
Supreme Court of the United States, Case No. 07–8033
Michael Tanzi v. State of Florida, 552 U.S. 1195 (2008)
Judgment Entered: February 19, 2008
Initial Postconviction Proceedings and Appeal:
Sixteenth Judicial Circuit Court in and for Monroe County, Florida
State of Florida v. Michael A. Tanzi, Case No. 2000-CF-573-K
Judgment Entered: March 22, 2010
Florida Supreme Court, Case No. SC10-807
Michael A. Tanzi v. State of Florida, 94 So. 3d 482 (Fla. 2012)
Judgment Entered: April 19, 2012
Rehearing Denied: July 24, 2012
Mandate Issued: August 9, 2012
State Habeas Proceeding:
Florida Supreme Court, Case No. SC11–81
Michael A. Tanzi v. Sec’y, Fla. Dep’t of Corr., 94 So. 3d 482 (Fla. 2012)
Judgment Entered: April 19, 2012
viii
Federal Habeas Proceedings:
United States District Court for Southern District of Florida, Case No.
4:12-cv-1006
Michael Anthony Tanzi v. Sec’y, Fla. Dep’t of Corr., No. 4:12-cv-10066 (S.D.
Fla. Feb. 27, 2013) (unreported)
Judgment Entered: February 27, 2013
Motion to Alter or Amend Denied: April 24, 2013
United States Court of Appeals, Eleventh Circuit, Case No. 13-12421
Michael Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644 (11th Cir. 2014)
Judgment Entered: November 19, 2014
Petition for Rehearing En Banc Denied: January 22, 2015
Mandate Issued: February 2, 2015
Supreme Court of the United States, Case No. 14-10416
Michael A. Tanzi v. Sec’y, Fla. Dep’t of Corr., 577 U.S. 865 (2015)
Judgment Entered: October 5, 2015
Successive Postconviction Proceedings:
Sixteenth Judicial Circuit Court in and for Monroe County, Florida
State of Florida v. Michael A. Tanzi, Case No. 2000-CF-573-K
Judgment Entered: April 24, 2017
Florida Supreme Court, Case No. SC2017-1640
Michael A. Tanzi v. State of Florida, 251 So. 3d 805 (Fla. 2018)
Judgment Entered: April 5, 2018
Mandate Issued: April 16, 2018
Supreme Court of the United States, Case No. 18-5160
Michael A. Tanzi v. State of Florida, 586 U.S. 1004 (2018)
Judgment Entered: November 13, 2018
Successive Postconviction Proceedings (Under Warrant):
Sixteenth Judicial Circuit Court in and for Monroe County, Florida
State of Florida v. Michael A. Tanzi, Case No. 2000-CF-573-K
Judgment Entered: March 19, 2025
Florida Supreme Court, Case No. SC2025-0371
Michael A. Tanzi v. State of Florida, SC2025-0371, 2025 WL 971568, at *1
(Fla. Apr. 1, 2025) (unreported)
Judgment Entered: April 1, 2025
ix
State Habeas Proceeding (Under Warrant):
Florida Supreme Court, Case No. SC2025-0372
Michael A. Tanzi v. Sec’y, Fla. Dep’t of Corr., SC2025-0372, 2025 WL 971568,
at*1 (Fla. Apr. 1, 2025) (unreported)
Judgment Entered: April 1, 2025
All Writs Proceeding (Under Warrant):
Florida Supreme Court, Case No. SC2025-0424
Michael A. Tanzi v. Sec’y, Fla. Dep’t of Corr., No. SC2025-0424, 2025 WL
971568, at*1 (Fla. Apr. 1, 2025) (unreported)
Judgment Entered: April 1, 2025
x
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Michael A. Tanzi, prays that a Writ of Certiorari issue to review the
opinion of the Florida Supreme Court.
CITATIONS TO OPINION BELOW
The opinion of the Florida Supreme Court in this cause, is unreported but
available as Tanzi v. Sec’y, Fla. Dep’t of Corr., SC2025-0372, 2025 WL 971568, *1
(Fla. Apr. 1, 2025), and is attached as to this Petition as “Appendix A, at A1.”
STATEMENT OF JURISDICTION
Petitioner invokes this Court’s jurisdiction to grant the Petition for a Writ of
Certiorari to the Florida Supreme Court on the basis of 28 U.S.C. § 1257(a) and
2101(d). The Florida Supreme Court issued its decision on April 1, 2025.
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment to the United States Constitution provides, in relevant
part:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury.
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.
Section 1 of the Fourteenth Amendment to the United States Constitution
provides, in relevant part:
No State shall . . . deprive any person of life, liberty, or
property, without due process of law.”
1
STATEMENT OF THE CASE 1
I.
RELEVANT LEGAL BACKGROUND
Under Florida’s capital sentencing statute, death eligibility is dependent upon
the finding of certain statutorily defined facts in addition to the guilty jury verdict or
plea. § 921.141, Fla. Stat. (1996) (Appendix B at A12). At the time of Mr. Tanzi’s trial,
Florida’s capital
sentencing
scheme
permitted a
jury
to
return only
a
recommendation as to penalty and allowed the judge alone to find the statutorily
defined facts necessary to impose a death sentence. § 921.141(3).
In Hurst v. Florida, this Court struck down Florida’s capital sentencing scheme
as violative of the Sixth Amendment right to a jury trial and the Fourteenth
Amendment’s Due Process Clause, relying on Apprendi v. New Jersey, 530 U.S. 466
(2000) (holding that any fact that “expose[s] the defendant to a greater punishment
than that authorized by the jury’s guilty verdict” is an element that must be
submitted to a jury), and Ring v. Arizona, 536 U.S. 584 (2002) (applying Apprendi to
capital cases). 577 U.S. 92 (2016).
Applying Apprendi’s fundamental, broad-ranging constitutional command,
Hurst v. Florida held that a jury must find the additional statutorily defined facts
1 Citations to the state court proceedings in this Petition shall be designated
as follows: “(R. ___)” – record on direct appeal to the Florida Supreme Court; “(T. ___)”
– trial transcripts on direct appeal to the Florida Supreme Court; “(PCR. Vol. ___,
___)” – postconviction record on appeal to the Florida Supreme Court, Case No. SC10807; “(PCR-2. ___)” – successive postconviction record on appeal to the Florida
Supreme Court, Case No. SC17-1640; and “(PCR-3. ___)” – successive postconviction
record on appeal to the Florida Supreme Court under warrant, Case No. SC25-0371.
All other citations shall be self-explanatory.
2
required to render the defendant death eligible. 577 U.S. at 97. These facts include
both that “sufficient aggravating circumstances exist” and that “there are insufficient
mitigating circumstances to outweigh the aggravating circumstances.” Id. at 100. “[A]
jury’s mere recommendation is not enough.” Id. at 94.
On remand, the Florida Supreme Court held in Hurst v. State that, in addition
to the Sixth Amendment and due process requirements set forth in Hurst v. Florida,
the Eighth Amendment requires a unanimous jury to find beyond a reasonable doubt
that statutory aggravating circumstances exist, that the aggravating circumstances
are sufficient to impose the death penalty, and that the aggravating circumstances
outweigh the mitigating circumstances. Hurst v. State, 202 So. 3d 40, 53-59 (Fla.
2016). Thereafter, the court applied Hurst v. Florida error retroactively to cases that
became final after this Court’s decision in Ring. Mosley v. State, 209 So. 3d 1248 (Fla.
2016).
Hurst v. Florida applied to Mr. Tanzi; however, because his jury returned an
advisory recommendation of death by a unanimous vote of 12–0, the Florida Supreme
Court deemed the error harmless. Tanzi v. State, 251 So. 3d 805, 806 (Fla. 2018)
(citing Davis v. State, 207 So. 3d 142, 175 (Fla. 2016) (holding that “the State can
sustain its burden of demonstrating that any Hurst v. Florida error was harmless
beyond a reasonable doubt” where the jury rendered a unanimous recommendation
of death because “unanimous recommendations . . . are precisely what we determined
in Hurst to be constitutionally necessary to impose a sentence of death”).
In 2020, a reconstituted Florida Supreme Court receded from Hurst v. State
3
and held in State v. Poole that a death sentence could be imposed whenever a jury
found one or more aggravators beyond a reasonable doubt during either the guilt or
penalty phase. 297 So. 3d 487, 502-03 (Fla. 2020). The court also receded from its
prior decisions concerning the need for unanimity in death penalty proceedings,
holding that neither the Sixth Amendment nor the Florida Constitution’s prohibition
against cruel and unusual punishment require unanimous jury recommendations—
or jury recommendations at all. Id. at 505. To do so, the court notably relied heavily
on this Court’s decision in Spaziano v. Florida, 468 U.S. 447 (1984), overruled in part
by Hurst, 577 U.S. 92.
On June 21, 2024, this Court issued its decision in Erlinger v. United States,
602 U.S. 821 (2024). Erlinger concerned a challenge to 18 U.S.C. § 924(e)(1) of the
Armed Career Criminal Act (ACCA), which allowed a judge, rather than a jury, to
make the findings necessary to increase a defendant’s punishment. Finding the
provision violative of the Sixth Amendment and Fourteenth Amendment’s Due
Process Clause, this Court reiterated the “firmly entrenched” principle that “[o]nly a
jury may find ‘facts that increase the prescribed range of penalties to which a criminal
defendant is exposed.’” Erlinger, 602 U.S. at 833 (quoting Apprendi, 530 U.S. at 490).
Ring previously held that “if a State makes an increase in a defendant’s
punishment contingent on the finding of a fact, that fact—no matter how the State
labels it—must be found by a jury beyond a reasonable doubt.” 536 U.S. at 602
(emphasis added). Erlinger clarified that a jury determination is required for “even
seemingly straightforward factual questions.” 602 U.S. at 849. The Sixth Amendment
4
and the Fourteenth Amendment Due Process Clause require that “virtually ‘any fact’
that ‘increase[s] the prescribed range of penalties to which a criminal defendant is
exposed’” must be resolved by a unanimous jury beyond a reasonable doubt. Erlinger,
602 U.S. at 834 (quoting Apprendi, 530 U.S. at 490).
Despite the fact that Mr. Tanzi’s advisory jury made no findings at all, much
less determinations of defined facts necessary to impose death, Mr. Tanzi was denied
Hurst relief. Erlinger establishes the Florida Supreme Court’s decisions in Davis v.
State and its progeny were based on a fundamentally flawed conception of “Hurst
error” and wrongly decided. Mr. Tanzi’s death sentence is—and always has been—
unconstitutional at its core. This error demands a stay of Mr. Tanzi’s execution.
II.
RELEVANT FACTS AND PROCEDURAL HISTORY
Mr. Tanzi was indicted by a grand jury in Monroe County, Florida, on May 16,
2000, for the first-degree murder of Janet Acosta. (R. 13-14). An amended information
was filed on March 26, 2002, charging Mr. Tanzi with carjacking with a deadly
weapon, kidnapping to facilitate a felony with a deadly weapon, armed robbery with
a deadly weapon, and two counts of sexual battery with a deadly weapon. (R. 299301).
Initially, Mr. Tanzi pleaded not guilty to all charges. (R. 22). However, both of
Mr. Tanzi’s trial counsel believed his best chance was to plead guilty and waive a jury
for the penalty phase proceedings. (R. 2340-42, 2408). They told Mr. Tanzi that the
judge had a reputation as a fair sentencer. (R. 2407). The two were so sure, they
advised him of this course of action for at least two months. (R. 2264, 2420).
5
On January 31, 2003, Mr. Tanzi entered an Alford 2 plea to the first-degree
murder, carjacking, kidnapping, and armed robbery charges. Although Mr. Tanzi was
under the assumption that he could waive a penalty phase jury, the judge announced
during the plea colloquy that Mr. Tanzi would indeed have a penalty phase jury.
Following a lunch break, counsel asserted that Mr. Tanzi sought to waive his right to
a penalty phase jury and presented the affidavit Mr. Tanzi signed, which included
his intention to waive a jury. (R. 1921). However, because “[t]his [was] a momentous
issue,” the court “want[ed] . . the benefit of our fellow citizens and their
recommendation” and refused to accept Mr. Tanzi’s waiver. 3 (R. 1924). Mr. Tanzi’s
counsel thereafter stressed that “[i]f the Court is going to impanel an advisory jury .
. . [i]n that regard, our position would be that the jury is not an advisory jury, but the
jury is the fact finder with respect to the penalty, and also that the other
requirements that we believe should be met, that they have to be unanimous and that
they would have to find their findings beyond a reasonable doubt.” (R. 1927). Counsel
made clear that Mr. Tanzi was not waiving any Ring-based objection. (R. 1927).
Mr. Tanzi further maintained his plea of not guilty to the two sexual battery
charges and elected to be tried in Miami-Dade County where the offenses were
alleged to have occurred. After the two sexual battery charges were severed, the State
2 North Carolina v. Alford, 400 U.S. 25 (1970) (allowing criminal defendants to
enter guilty pleas in which they agree to be convicted and sentenced to the charged
offenses but not admit guilt).
3 Acting pro se, Mr. Tanzi attempted to withdraw his guilty plea. (R. 2044). The
trial court inquired into Mr. Tanzi’s relationship with his trial attorneys but did not
rule on the pro se motion. (R. 2044).
6
elected not to prosecute them. (R. 1803). Instead, the State moved to admit Mr.
Tanzi’s related confession during the penalty phase, even though it could not
establish corpus delecti pursuant section 92.565, Florida Statutes. (R. 1034-35). The
trial court granted the State’s motion. (R. 2043-44).
On September 23, 2002, Mr. Tanzi filed a Motion to Bar Imposition of Death
Sentence
on
Grounds
that
Florida’s
Capital
Sentencing
Procedure
is
Unconstitutional Under Ring v. Arizona, arguing inter alia that Florida’s sentencing
statute was unconstitutional because it required the trial judge, not the jury, to make
the findings necessary to impose a death sentence. (R. 606-25). He also filed a Motion
for Special Verdict Form Containing Findings of Fact by the Jury on January 23,
2003, (R. 1023), which the trial court denied. (T. 2097).
At the penalty phase, the State relied on forensic evidence and Mr. Tanzi’s
confession regarding the abduction and killing of Janet Acosta to establish several
aggravating factors. Despite Mr. Tanzi’s repeated denials, the State sought to prove
that Mr. Tanzi committed vaginal sexual battery through evidence of a drop of blood
on the inside of Ms. Acosta’s pants pocket, which the State argued was Mr. Tanzi’s.
The State also relied on the medical examiner’s finding of very small vaginal tears
and bruising, (T. 817-18, 821-22, 879-81); however, these injuries could have resulted
from consensual sex that occurred days before Ms. Acosta was abducted. (T. 909-11,
1234-35).
In its closing argument, the State repeatedly speculated to the jury that Mr.
Tanzi raped Ms. Acosta during the period it claimed was “unaccounted for” in Mr.
7
Tanzi’s statements:
But what else do we know? He’s already forced her to
perform oral sex. Why would we believe that it would stop
there? How long was he with her? How many hours?
***
And we know that he already raped her once in the Texaco
Station, and now we have evidence, further evidence that
he raped her again.
***
I ask you, ladies and gentlemen, what do you think
happened in the hour and a half that’s unaccounted for?
(T. 1706, 1711).
[W]e have an hour and a half unaccounted for, and that his
blood is on the inside of her pants, the only real question is
not whether Michael Tanzi vaginally raped Janet Acosta,
the real question is, how many times. How many times in
that hour and a half did he rape Janet Acosta?
(T. 1712).
When the penalty phase began, the jury was told that it would “render an
advisory sentence” because the “final decision as to what punishment shall be
imposed rests solely with the judge of this court.” (T. 30-31). The court reiterated in
the charge conference that it is the jury’s “duty to advise the Court as to what
punishment should be imposed upon the defendant,” emphasizing, “[a]s you have
been told, the final decision as to what punishment shall be imposed is the
responsibility of the judge.” (T. 1802). After barely 2 hours of deliberation, the jury
recommended by a 12–0 vote that Mr. Tanzi be sentenced to death. (R. 1805, 182024). The jury made no findings of fact. Its “advisory sentence” said only:
8
A majority of the jury, by a vote of 12-0 advise and
recommend to the court that it impose the death penalty
upon Michael A. Tanzi.
(R. 1430) (Appendix C at A).
Following the penalty phase, the trial court conducted a Spencer 4 hearing. (R.
2213-34). The trial court subsequently entered its order sentencing Mr. Tanzi to
death for the murder of Janet Acosta and to consecutive life sentences for each count
of carjacking, kidnapping, and robbery. 5 (R. 1804-32).
In imposing Mr. Tanzi’s death sentence, the trial court found seven
aggravating factors: (1) the murder was committed by a person previously convicted
of a felony and under sentence of life imprisonment or on felony probation (great
weight); (2) the murder was committed during the commission of a kidnapping (great
weight); (3) the murder was committed during the commission of two sexual batteries
(great weight); (4) the crime was committed for the purpose of avoiding arrest (great
weight); (5) the murder was committed for pecuniary gain (great weight); (6) the
murder was especially heinous, atrocious, or cruel (“utmost” weight); and (7) the
4 Spencer v. State, 615 So. 2d 688 (Fla. 1993).
5 The trial court, not a jury, found the following mitigating factors: (1) Mr.
Tanzi suffered from Axis II personality disorders (some weight); (2) Mr. Tanzi was
institutionalized as a youth (some weight); (3) Mr. Tanzi’s behavior benefited from
psychotropic medications (some weight); (4) Mr. Tanzi lost his father at a young age
(some weight); (5) Mr. Tanzi was sexually abused as a child (some weight); (6) Mr.
Tanzi twice attempted to join the military (some weight); (7) Mr. Tanzi cooperated
with law enforcement (some weight); (8) Mr. Tanzi assists other inmates by writing
letters and he enjoys reading (some weight); (9) Mr. Tanzi’s family has a loving
relationship with him (some weight); and (10) Mr. Tanzi has a history of substance
abuse (found but given no weight). (R. at 1804-32).
9
murder was committed in a cold, calculated, and premeditated manner (great
weight). (R. 1804-32). Regarding the “in the course of a felony” aggravators (2 and 3),
the trial court specifically pronounced:
The capital felony was committed while the Defendant was
engaged or was an accomplice, in the commission of, or an
attempt to commit, or right after committing or attempting
to commit a sexual battery and a kidnapping.
The Monroe County Medical Examiner testified that the
victim had suffered a vaginal tear before her death. He
testified that this tear was consistent with the victim
having had a nonconsensual sexual assault testified that
the DNA of blood found on the inside surface of the victim’s
pants before her death. He also pocket matched [sic] the
Defendant’s. The location of the blood stain leaves no other
explanation other than the victim’s jeans had been partially
removed at some point and that the Defendant had bled
inside of his victim’s pants. The subject blood splatter was
not found on the outer surface of the victim’s jeans.
The Defendant’s DNA also matched semen found on a towel
in the rear of the van. The State had established that over
one and one-half hours were unaccounted for on the time
line between the victim’s abduction and her murder,
enough time for the second sexual battery to have occurred.
Thus, in addition to the admitted sexual battery of the
forced oral sex in Florida City, a second sexual battery was
committed when the Defendant united an object with the
victim’s vagina against her will.
The court emphasizes that the facts set out above constitute
two separate aggravators: kidnapping and sexual battery.
The two are discussed together and treated as one
aggravating circumstance simply because the two are so
factually intertwined. The Defendant committed two
separate sexual batteries on the victim during the course of
her four-hour ordeal which the court is counting as one
aggravator even though the two sexual batteries could have
been separated in time and place. Neither the kidnapping
nor the sexual batteries was a necessary feature of the
other.
10
***
The kidnapping and the two sexual batteries were proven
beyond
a
reasonable
doubt.
Both
aggravating
circumstances will be given great weight as aggravating
circumstances 2 and 3.
(T. 1807-08).
The trial court, not the jury, found that “the Defendant committed two separate
sexual batteries,” which were “proven beyond a reasonable doubt” and should be given
“great weight.” (R. 1809). Similarly, the trial court, but not the jury, found “proven
beyond a reasonable doubt” that the “dominant motive for the Defendant’s murder of
Janet Acosta was to avoid arrest,” (R. 1811), that the murder was heinous, atrocious,
and cruel, (R. 1812), and that the murder was committed in a cold, calculated, and
premeditated manner. (R. 1814).
On direct appeal, the Florida Supreme Court determined that the trial court
had improperly doubled the murder in the course of a felony aggravator:
Therefore, the trial court in this case should have found one
murder in the course of a felony aggravator based upon the
multiple felonies of kidnapping and sexual battery and
weighed the aggravator accordingly.
Tanzi v. State, 964 So. 2d 106, 117 (2007). However, the court deemed the doubling
error harmless. Id. The court also perfunctorily rejected Mr. Tanzi’s claim that
Florida’s death sentencing scheme was unconstitutional under Ring, 536 U.S. 584. Id.
at 112 n.2. Mr. Tanzi sought certiorari of the Ring issue by this Court but was denied. 6
6 The pertinent questions presented by Mr. Tanzi’s petition for writ of certiorari
on direct appeal were:
(1) Whether the Florida capital sentencing scheme, which
11
Tanzi v. Florida, 552 U.S. 1195 (2008).
Mr. Tanzi sought postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.851. After an evidentiary hearing, (PCR-T. 1-433), the circuit court denied
all relief. (PCR. 511-20). The Florida Supreme Court affirmed the denial of
postconviction relief on appeal and further denied Mr. Tanzi’s state habeas petition.
Tanzi v. State, 94 So. 3d 482 (Fla. 2012).
Mr. Tanzi thereafter filed a petition for writ of habeas corpus in the United
States District Court for the Southern District of Florida, alleging inter alia that his
death sentence was unconstitutional under Ring. The district court denied the
petition, and the Eleventh Circuit Court of Appeals affirmed. Tanzi v. Sec’y, Fla. Dep’t
of Corr., 772 F.3d 644 (11th Cir. 2014), cert. denied, 577 U.S. 865 (2015).
On January 12, 2017, Mr. Tanzi filed a successive motion for postconviction
relief premised on this Court’s decision in Hurst v. Florida, 577 U.S. 92 (2016) and the
Florida Supreme Court’s decisions in Perry v. State, 210 So. 3d 630 (Fla. 2016); Hurst
v. State, 202 So. 3d 40 (Fla. 2016); and Mosley v. State, 209 So. 3d 1248 (Fla. 2016).
expressly conditions death-eligibility on judicial factfinding, violates the Sixth and Fourteenth Amendments as
interpreted by this Court in Ring v. Arizona, 536 U.S. 584,
122 S. Ct. 2428 (2002).
(2) Whether the Sixth and Fourteenth Amendment
requirements that any fact necessary to increase the
maximum sentence applies to the determination of the
sufficiency of aggravation, the finding of mitigation, and
the weighing of aggravating and mitigating circumstances,
a question on which Florida and other states conflict.
See Am. Pet. for Writ of Cert. i, Dec. 3, 2007.
12
(PCR-2. 1-68). Mr. Tanzi specifically contended that his death sentence was
unconstitutional under the Sixth and Eighth Amendments and also alleged that
developments in the law required the court to revisit his previous postconviction
claims under Strickland v. Washington, 466 U.S. 668 (1984), and Brady v. Maryland,
373 U.S. 83 (1963), to determine if, in light of Hurst v. State and Hurst v. Florida,
confidence in the outcome was undermined. (PCR-2. 19).
Despite Mr. Tanzi’s jury having never made any findings of fact in aggravation,
the circuit court denied the motion, finding that the unanimous advisory
recommendation from the jury rendered any Hurst error harmless. (PCR-2. 92). On
appeal, the Florida Supreme Court once again found constitutional error with Mr.
Tanzi’s death sentence but deemed the error harmless beyond a reasonable doubt.
Tanzi v. State, 251 So. 3d 805, 806 (Fla. 2018) (citing Davis, 207 So. 3d at 175).
Notably, Justice Quince dissented from the majority’s finding that the Hurst error was
harmless because “[t]he jury did not make the specific factual findings that Hurst
requires a jury to find in order to impose some of the serious aggravators at issue in
this case.” Id. at 807 (Quince, J., dissenting).
Mr. Tanzi petitioned for certiorari concerning the constitutionality of his
advisory jury and the Florida Supreme Court’s harmless-error analysis citing
Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985) (holding that “it is
constitutionality impermissible to rest a death sentence on a determination made by
a sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere”). While this Court declined
13
to intervene, Tanzi v. Florida, 586 U.S. 1004 (2018), Justice Sotomayor “dissent[ed]
[from the denial of certiorari] for the reasons set out in Reynolds v. Florida,” wherein
she emphasized that in cases like Mr. Tanzi’s, “[t]he consequence of error . . . is too
severe to leave petitioners’ challenges unanswered.” 586 U.S. at 1012 (2018)
(Sotomayor, J., dissenting).
On March 10, 2025, Governor Ron DeSantis signed Mr. Tanzi’s death warrant
and set his execution for April 8, 2025, at 6:00 p.m. The Florida Supreme Court, in
turn, issued an expedited scheduling order.
Mr. Tanzi timely filed a successive motion for postconviction relief, wherein he
asserted three claims challenging the constitutionality of the expedited warrant
process, Florida’s lethal injection protocol as applied to him, and the unfettered power
of the Governor to choose who shall live or die and set the warrant litigation
timeframe. (PCR-3. 582-690). The circuit court summarily denied relief on all claims.
(PCR-3. 957-70).
Mr. Tanzi thereafter appealed to the Florida Supreme Court and
simultaneously petitioned the court for a writ of habeas corpus in which he argued
that his death sentence is unconstitutional under the Sixth, Eighth, and Fourteenth
Amendment’s to the United States Constitution in light of this Court’s decision in
Erlinger v. United States, 602 U.S. 821 (2024). Mr. Tanzi asserted that Erlinger shows
the Florida Supreme Court’s definition of the Sixth Amendment and due process error
underlying his death sentence was fundamentally wrong because Erlinger reinforced
the bright-line principle that “virtually ‘any fact’ that ‘increase[s] the prescribed range
14
of penalties to which a criminal defendant is exposed’ must be resolved by a
unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).”Id. at
834 (quoting Apprendi, 530 U.S. at 490). In Mr. Tanzi’s case, the trial court found
every fact necessary to impose death, whereas his advisory jury found none. Thus, the
trial court subsumed the jury’s constitutional role as a “check[] on governmental
power” in direct violation of his Sixth Amendment and due process rights. Id. at 832.
Mr. Tanzi further argued Erlinger establishes that the clear Sixth Amendment error
as established in Apprendi and applied in Hurst, was not harmless because his jury
was merely advisory and made no findings of fact necessary to impose death.
Pursuant to Erlinger, the court cannot infer from a unanimous recommendation that
an advisory jury made any findings of fact.
On April 1, 2025, the Florida Supreme Court issued a consolidated opinion
affirming the denial of postconviction relief and denying Mr. Tanzi’s habeas petition.
Tanzi v. Sec’y, Fla. Dep’t of Corr., SC2025-0372, 2025 WL 971568, at*1 (Fla. Apr. 1,
2025). In doing so, the court rejected Mr. Tanzi’s challenge to the constitutionality of
his death sentence based on Erlinger as a “repackaged version[] of his [prior]
Apprendi, Ring, and Hurst arguments” and thus procedurally barred. Id. at *5. The
court further deemed Mr. Tanzi’s claim meritless because “Erlinger did not overrule”
Davis or its decision finding the Hurst error in Mr. Tanzi’s case harmless:
Davis held that when a jury “unanimously f[inds] all of the
necessary facts for the imposition of death sentences by
virtue of its unanimous recommendation,” that is “precisely
what we determined in Hurst to be constitutionally
necessary to impose a sentence of death.” 207 So. 3d at 175.
Tanzi claims this holding is irreconcilable with Erlinger. He
15
argues that an advisory jury is incapable of checking
governmental power and is thus unconstitutional. Erlinger,
Tanzi says, means that even unanimous recommendations
are void because they cannot substantively limit executive
judicial power.
If Tanzi is correct, then a unanimous, non-advisory
jury would be necessary to impose a death sentence.
Id. at *5-6 (alternation in original) (emphasis added). The court, however, promptly
dismissed this concession based on its holding in State v. Poole, that:
[O]ur state constitution’s prohibition on cruel and unusual
punishment, article I, section 17, does not require a
unanimous jury recommendation—or any jury
recommendation—before a death sentence can be
imposed. . . . Binding Supreme Court precedent in Spaziano
[v. Florida, 468 U.S. 447, 464-65 (1984)], holds that the
Eighth Amendment does not require a jury’s favorable
recommendation before a death penalty can be
imposed.
Id. at *6 (quoting Poole, 297 So. 3d at 505 (emphasis in original)).
Finally, the court held that because “Erlinger was a direct-appeal case—not a
postconviction case . . . and it involved required jury findings regarding an element,”
it is inapplicable to Mr. Tanzi “and “‘provides no support for vacating’ [his] death
sentence.” Id. (quoting Ford v. State, SC2025-0110, 2025 WL 428394, *5 (Fla. Feb. 7,
2025)).
The court thus denied Mr. Tanzi habeas relief, tersely advised that it would
“entertain no petition for rehearing,” id. at *7, and immediately issued its Mandate.
This Petition now follows.
REASONS FOR GRANTING THE WRIT
Notwithstanding this Court’s clear dictates, the Florida Supreme Court
16
continues to employ an unconstitutional capital sentencing scheme, nullifying the
Sixth Amendment protections established in Apprendi and its progeny, and further
clarified in Erlinger.
Granting certiorari review in this case is not engaging in error correction but
is instead the Court’s opportunity to avoid repeated meritorious demands for error
correction. The most fundamental vice of the decision below is not that it is wrong—
although it certainly is—but that it manipulates the rule to avoid federal oversight.
This case presents questions of great importance for this Court regarding the
analysis of a state court’s duty to give full effect to a federal constitutional holding.
This area of the law remains complicated and unclear to many lower courts and
practitioners. This Petition is an ideal vehicle for addressing the Florida Supreme
Court’s error, and it presents a question of life-or-death importance for Mr. Tanzi and
for the other death-row inmates in Florida whose claims have been denied premised
on the same incorrect application of the Sixth Amendment right to a jury’s trial.
1.
This Court Should Not Tolerate the Florida Supreme Court’s
Blatant Disregard of its Overruling of Spaziano v. Florida.
In the years between Ring and Hurst, Florida justified its refusal to find a
Sixth Amendment right to jury fact finding by relying on the 1984 decision in
Spaziano v. Florida. See Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002)(declining to
apply Ring v. Arizona to Florida’s capital sentencing scheme because this Court did
not expressly direct the court to do so in denying Bottoson’s petition for certiorari).
Spaziano determined that neither the Sixth nor Eighth Amendment required jury
factfinding to impose death nor precluded a judge’s imposition of death following an
17
override of a jury’s recommendation for life. 468 U.S. 447 (1984).
The Florida Supreme Court was wrong and this Court clarified as much in
Hurst: “We now expressly overrule Spaziano and Hildwin in relevant part.” Hurst,
577 U.S. at 101 (emphasis added). Hurst conclusively established that neither
Spaziano nor Hildwin 7 survived Apprendi and Ring 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.” Id. at 102.
“Time and subsequent cases have washed away the logic of Spaziano and Hildwin.”
Id.
In the years after Hurst, however, the Florida Supreme Court has attempted
to reconstitute Spaziano from its smoldering embers to justify its refusal to apply this
Court’s established Sixth Amendment precedent requiring a jury to make all of the
factfinding necessary to enhance a Defendant’s penalty, including this Court’s recent
Erlinger decision. In doing so, the court has manufactured limitations on this Court’s
Hurst rulings:
As we have explained, the Supreme Court in Spaziano
upheld the constitutionality under the Sixth Amendment
of a Florida judge imposing a death sentence even in the
face of a jury recommendation of life—a jury override. It
necessarily follows that the Sixth Amendment, as
interpreted in Spaziano, does not require any jury
recommendation of death, much less a unanimous one.
And as we have also explained, the Court in Hurst v.
Florida overruled Spaziano only to the extent it
allows a judge, rather than a jury, to find a necessary
aggravating circumstance.
7 Hildwin v. Florida, 490 U.S. 638 (1989).
18
Poole, 297 So. 3d at 504 (emphasis added) (internal citations omitted).
Poole’s contortion of Hurst’s rulings is irreconcilable with Hurst’s analysis and
Sixth Amendment jurisprudence. The Florida Supreme Court has taken this Court’s
overruling of Spaziano “in part” wildly out of context. A review of the Spaziano
opinion puts the issue to bed.
Spaziano concerned whether the Sixth or Eighth Amendment precluded a
judge from overriding a jury’s recommendation for life and, instead, imposing a death
sentence; however, the question necessitated first answering whether the Sixth or
Eighth Amendment required jury-fact finding at sentencing at all. The Spaziano
Court ruled:
In light of the facts that the Sixth Amendment does not
require jury sentencing, that the demands of fairness and
reliability in capital cases do not require it, and that
neither the nature of, nor the purpose behind, the death
penalty requires jury sentencing, we cannot conclude that
placing responsibility on the trial judge to impose the
sentence in a capital case is unconstitutional.
468 U.S. at 464.
Spaziano reasoned that the “fundamental issue involved” in the Sixth
Amendment analysis is the “determination of the appropriate punishment on the
individual;” and because the “[t]he Sixth Amendment has never been thought to
guarantee a right to a jury determination of that issue,” the Court declined to find so.
Id. at 459.
The Hurst Court expressly overruled Spaziano and held that a jury’s fact
finding is fundamental to the determination of the appropriate punishment. “The
Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose
19
a sentence of death. A jury's mere recommendation is not enough.” Hurst, 577
U.S. at 94 (emphasis added). Hurst’s holding is girded on the principle that findings
of fact statutorily required to render a Florida defendant death eligible are elements
of the offense, separating first-degree murder from capital murder under Florida law,
and thereby forming part of the definition of the crime of capital murder in Florida.
See Apprendi, 530 U.S. at 476; Jones v. United States, 526 U.S. 227 (1999).
Hurst did not limit the jury role to finding only “a necessary aggravator.” Poole,
297 So. 3d at 504. To the contrary, the Hurst Court reasoned that all of the specific,
enumerated findings listed in Florida’s capital sentencing scheme must be found by
a jury, because each is prerequisite to a death sentence. Hurst, 577 U.S. at 99-100
(“[T]he Florida sentencing statute does not make a defendant eligible for death until
‘findings by the court that such person shall be punished by death.’” (quoting Fla.
Stat. § 775.082(1)). Thus, in order for Mr. Tanzi’s jury to have imposed death, it was
required to have found “that sufficient aggravating circumstances exist” and “that
there are insufficient mitigating circumstances to outweigh the aggravating
circumstances.” Id. at 100.
This Court in Spaziano found that while a “capital sentencing is like a trial in
the respects significant to the Double Jeopardy Clause, [that] . . . does not[, however,]
mean that it is like a trial in respects significant to the Sixth Amendment's guarantee
of a jury trial.” Spaziano, 468 U.S. at 459. Once this Court in Hurst determined jury
findings are indeed required to satisfy the Sixth Amendment, any analysis Spaziano
offered about the jury’s role in sentencing became irrelevant.
20
The Florida Supreme Court relied on Spaziano’s Eighth Amendment analysis
to reject Mr. Tanzi’s assertion that he is entitled to a non-advisory jury.
Binding Supreme Court precedent in Spaziano holds that
the Eighth Amendment does not require a jury’s favorable
recommendation before a death penalty can be imposed.
Tanzi, 2025 WL 971568, *6 (emphasis omitted) (quoting Poole, 297 So. 3d at 505).
Again, a review of Spaziano establishes that Poole has misapprehended Spaziano and
what remains of its holdings post-Hurst.
The Florida Supreme Court in Poole further declared that Spaziano rejected
the
argument
that
the
Eighth
Amendment
requires
a
unanimous
jury
recommendation of death. Poole, 297 So. 3d at 504. This statement is flagrantly wrong
and misleading. Nowhere in Spaziano did this Court even mention jury unanimity.
Spaziano declined to find any Eighth Amendment requirement for jury
sentencing, reasoning that because any sentencer—jury or judge—is required to
make an individualized determination as to sentencing, there are no concerns as to
the fairness and reliability of the application of the death penalty. Spaziano, 468 U.S.
at 459, 464. Further, the Court determined that “neither the nature of, nor the
purpose behind, the death penalty requires jury sentencing.” Id. at 464. Specifically,
as to the jury-override procedure, the Court in Spaziano declined to find an Eighth
Amendment violation because there is no risk of an “arbitrary or discriminatory
application of the death penalty,” where “the trial judge is required to conduct an
independent review of the evidence and make his own findings regarding aggravating
and mitigating circumstances,” which the Florida Supreme Court will review. Id. at
466.
21
Poole ignores the fundamental premise of Spaziano⸻the “presumption that
jury involvement is not required in the sentencing proceedings of capital cases.”
Bottoson v. Moore, 833 So. 2d 693, 727 (Fla. 2002) (Lewis, J., concurring in result
only). This applies to the Court’s Sixth Amendment and Eighth Amendments
analyses, and illustrates how the two are not separate and distinct. Spaziano’s Eighth
Amendment discussion is rooted in the Court’s rejection of a Sixth Amendment right
to a jury at all. This analysis is again irreconcilable with the very foundation of Hurst.
The Florida Supreme Court consistently erodes this Court’s explicit and
binding Sixth Amendment jurisprudence, thereby stripping capital defendants of fair
and reliable sentencings, by continually moving the goalposts anytime a capital
defendant is guaranteed process that meets constitutional scrutiny. This is evidenced
by the court’s treatment of Spaziano and attempts to foster some illusory competition
amongst constitutional amendments. Once this Court determined an advisory jury is
unconstitutional under the Sixth Amendment, the Florida Supreme Court ruled the
Eighth Amendment does not require the same protections. A state court cannot
simply disregard this Court’s binding Sixth Amendment protections because it
thereafter determines the Eighth Amendment does not require the same. 8
8 Florida’s reliance on outdated jurisprudence to justify its erosion of the Sixth
Amendment right to a jury trial doesn’t end in the capital context. See Cunningham
v. Florida, 144 S. Ct. 1287 (Mem.) (2024) (Gosuch, J. dissenting in denial of
certiorari). In 2024, Justice Gorsuch admonished Florida in a non-capital case for
refusing “to honor” the promise of the right to a trial by jury, by relying on Williams
v. Florida, 399 U.S. 103 (1970) and requiring a verdict from only six jurors in
determining guilt for a serious criminal offense. Id. at 1287-88. Williams, Justice
Gorusch wrote, “was an embarrassing mistake—'wrong the day it was decided.’” Id.
at 1288 (quoting Khorrami v. Arizona, 598 U. S., at ––––, 143 S. Ct. 22, 23 (Mem.
22
This Court should not tolerate this kind of blatant disregard of its overruling
of Spaziano and should grant certiorari and overrule any remnants of Spaziano’s
holdings because its reasoning cannot be reconciled with the right to a jury
determination at sentencing in capital cases established in this Court’s Sixth and
Eighth Amendment jurisprudence. This Court has not shied away from “overrul[ing]
prior decisions where the necessity and propriety of doing so has been established.”
Hurst, 577 U.S. at 102 (quoting Ring, 536 U.S. at 608). Hurst acknowledged
unequivocally that “‘stare decisis does not compel adherence to a decision whose
‘underpinnings’ have been ‘eroded’ by subsequent developments of constitutional
law,’” particularly with respect to the Sixth Amendment and right to jury factfinding
at sentencing. Id. at 102 (quoting Alleyne v. United States, 570 U.S. 99, 116 n.5
(2013)).
(2022) (Gosuch, j. dissenting in denial of certiorari). In doing so, “Florida does what
the Constitution forbids of U.S.” Id. at 1287.
23
2.
The Florida Supreme Court’s Ruling Demeans The Right To
Trial By Jury And Flouts Clearly Established Federal Law.
This Court has decided case after case showing that Florida’s habitual
diminution of the jury right is plainly unconstitutional. Apprendi, 530 U.S. 466; Ring,
536 U.S. 584; Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker,
543 U.S. 220 (2005); Cunningham v. California, 549 U.S. 270 (2007); Southern Union
Co. v. United States, 567 U.S. 343 (2012); Alleyne v. United States, 570 U.S. 99; Hurst,
577 U.S. 92; United States v. Haymond, 588 U.S. 634 (2019) (plurality); Erlinger, 602
U.S. 821; see also Shepard v. United States, 544 U.S. 13 (2005); United States v.
O’Brien, 560 U.S. 218 (2010); Mathis v. United States, 579 U.S. 500 (2016).
But, time and again, Florida has flouted the Court’s decisions by
manufacturing ambiguities where, by design, none exist. Apprendi eliminated them
with a bright-line rule. “Virtually ‘any fact’ that ‘increases the prescribed range of
penalties to which a criminal defendant is exposed’ must be resolved by a unanimous
jury beyond a reasonable doubt.” Erlinger, 602 U.S. at 834 (quoting Apprendi, 530
U.S. at 490).
Nevertheless, Florida is poised to execute Mr. Tanzi, having never proved a
single aggravating circumstance to anyone but a judge. The only indicium of jury
factfinding in Mr. Tanzi’s case is a form labeled “Advisory Sentence” that states: “A
majority of the jury, by a vote of 12-0, advise and recommend to the court that it
impose the death penalty upon Michael A. Tanzi.” (Appendix C, at A16).
Below, Mr. Tanzi argued that this advisory sentence is a nullity. Beyond
“safeguard[ing] for criminal defendants those procedural protections well established
24
at common law,” the Due Process Clause and the Sixth Amendment act as
“fundamental reservations of power to the American people” by substantively
limiting executive and judicial power. Erlinger, 602 U.S. at 830-31. An advisory jury
cannot “ensure that a judge’s power to punish would ‘derive wholly’ from, and remain
always ‘controlled’ by the jury and its verdict.” See Id. at 831. Thus, incapable of
checking governmental power as the Framers intended, an advisory jury is a
constitutional nullity.” Id. at 831-32; see Hurst, 577 U.S. at 100 (finding the advisory
jury “immaterial”).
Apparently grasping the import of Erlinger but refusing to apply it
nonetheless, the Florida Supreme Court said:
Erlinger, Tanzi says, means that even unanimous
recommendations are void because they cannot
substantively limit executive and judicial power.
If Tanzi is correct, then a unanimous, non-advisory jury
would be necessary to impose a death sentence.
Tanzi, 2025 WL 971568, *5.
Mr. Tanzi is correct. Unless this Court’s repeated invocations of the Framers’
intent are all mere dicta, the Florida Supreme Court’s holding amounts to a refusal
to apply this Court’s holdings.
Respectfully, this Court should grant certiorari, stay Mr. Tanzi’s execution,
and rebuke the Florida Supreme Court’s refusal to apply clearly established federal
law. Florida’s disregard for the right to trial by jury is habitual; the Florida Supreme
Court will not self-correct. Without this Court’s intervention, Florida will persist in
treating the jury as a meaningless formalism.
25
a.
A
Non-Advisory
Jury
Must
Find
The
Aggravating
Circumstances Necessary To Impose a Sentence of Death.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial by an impartial jury . . . and to be informed of the nature and cause of
the accusation.” U.S. Const. amend. VI. Correspondingly, no State shall “deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV. Together, these provisions secure the right to trial by jury against legislative,
executive, and judicial encroachment.
Apprendi checked state legislatures’ ability to diminish the jury’s historic role,
holding “it is unconstitutional for a legislature to remove from the jury the
assessment of facts that increase the prescribed range of penalties to which a criminal
defendant is exposed.” 530 U.S. at 490 (quoting Jones v. United States, 526 U.S. 227,
252 (1999) (Stevens, J., concurring)); Ring, 536 U.S. at 586 (finding legislative label
immaterial). Apprendi itself discussed judicial encroachments on the jury by way of
legislative acts. But soon thereafter, Blakely clarified that Apprendi “ensure[s] that
the judge’s authority to sentence derives wholly from the jury’s verdict” because “just
as suffrage ensures the people’s ultimate control in the legislative and executive
branches, jury trial is meant to ensure their control in the judiciary.” 542 U.S. at 306.
And more recently, this Court held that “by requiring the Executive Branch to prove
its charges to a unanimous jury beyond a reasonably doubt” those provisions “seek to
mitigate the risk of prosecutorial overreach and misconduct.” Erlinger v. United
States, 602 U.S. 821, 832 (2024) (quoting The Federalist No. 83, p. 499 (C. Rossiter
ed. 1961)).
26
In securing the jury right against every branch of government, Apprendi and
its progeny embody centuries of common law tradition. Id. at 477. Naturally, this
tradition—and the Framers’ preoccupation with its preservation—inform the content
of the jury right. See e.g., Oregon v. Ice, 555 U.S. 160, 170 (2009) (noting “the scope of
the constitutional jury right must be informed by the historical role of the jury at
common law”). The Framers, “if they agree[d] in nothing else, concur[red] at least in
the value they set upon the trial by jury.” The Federalist No. 83, p. 543 (E. Mead ed.
1941). “If there [was] any difference between them,” it was that some viewed the jury
“as a valuable safeguard to liberty” and others “as the very palladium of free
government.” Id. Put plainly, all agreed that the jury was more than a factfinder—
“jury trial is meant to ensure [the People’s] control in the judiciary.” Blakely, 542 U.S.
at 306 (surveying historical sources).
Ambiguous boundaries invite both banal and flagrant encroachments on the
jury right. See Blakely, 542 U.S. at 308. Recognizing this risk, this Court has rejected
“the claim that the Framers would have left definition of the scope of jury power up
to judges’ intuitive sense of how far is too far.” Id. at 308. Any such ambiguity is
untenable—“the very reason the Framers put a jury-trial guarantee in the
Constitution is that they were unwilling to trust government to mark out the role of
the jury.” Id. at 308.
Accordingly, to “preserve[ ] the historic role of the jury as an intermediary
between the State and criminal defendants,” the Sixth Amendment and the Due
Process Clause demand a bright-line rule: “Virtually ‘any fact’ that ‘increases the
27
prescribed range of penalties to which a criminal defendant is exposed’ must be
resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a
guilty plea).” Erlinger, 602 U.S. at 834 (quoting Apprendi v. New Jersey, 530 U.S. 466,
490 (2000)); Blakely, 542 U.S. at 308 (rejecting “manipulable standard” in favor of
“Apprendi’s bright-line rule”).
Of course, a jury can only function as an intermediary, or bulwark, if it wields
authority that the government must actually respect. See Alleyne, 570 U.S. at 114. It
follows that a jury cannot function as intended—as a “fundamental reservation of
power in our constitutional structure”—if its verdict is advisory. See Blakely, 542 U.S.
at 306; Erlinger, 602 U.S. at 832 (describing jury as reserving power “to the American
people”). On its face, an advisory jury is incapable of controlling “a judge’s power to
punish.” See Erlinger, 602 U.S. at 831 (quoting Blakely, 542 U.S. at 306). Accordingly,
this Court has twice found Florida’s advisory juries “immaterial.” Hurst v. Florida,
577 U.S. at 99 (citing Walton v. Arizona, 497 U.S. 639, 648 (1990)). But they are more
than immaterial; advisory juries are perversions of the constitutional structure. See
Hurst, 577 U.S. at 99 (noting “the State fails to appreciate the central and singular
role the judge plays under Florida law). This defect exists regardless of unreliable
factfinding—the jury’s forced abdication and the judiciary’s ascension was error in
and of itself.
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b.
The Florida Supreme Court’s Harmless Error Analysis Is
Divorced From Logic and The Reasonable Doubt Standard.
Nevertheless, the Florida Supreme Court persists in treating advisory juries
and their verdicts as dispositive. Below, it held “that when a jury ‘unanimously finds
all of the necessary facts for the imposition of death sentences by virtue of its
unanimous recommendation,’ that is ‘precisely what we determined in Hurst [v. State,
202 So. 3d 40 (Fla. 2016)] to be constitutionally necessary to impose a sentence of
death.’” Tanzi, 2025 WL 971568,*5. In other words, while recognizing that the jury
must find every fact necessary to impose death, the Florida Supreme Court maintains
that the jury need not actually find every fact. Instead, a judge can simply infer every
fact from the advisory jury’s sentencing recommendation. This approach is patently
absurd.
At the outset, the Court has already found advisory juries “immaterial.” Hurst,
577 U.S. at 99. It is difficult to see how an “immaterial” advisory verdict becomes
material by virtue of a judge’s abstraction therefrom. Cf. Mississippi v. EPA, 744 F.3d
1334, 1353 (D.C. Cir. 2013) (“Garbage in; garbage out.”). What is more, the advisory
jury was constantly reminded that its verdict was, in fact, advisory. See Caldwell v.
Mississippi, 472 U.S. 320, 341 (1985) (finding sentencing decision unreliable where
prosecution “sought to minimize the jury’s sentence of responsibility for determining
the appropriateness of death”). This Court has recognized the factual consequences
of a procedure that diminishes the jurors’ sense of responsibility for a death verdict:
In evaluating the prejudicial effect of the prosecutor's
argument, we must also recognize that the argument offers
jurors a view of their role which might frequently be highly
attractive. A capital sentencing jury is made up of
29
individuals placed in a very unfamiliar situation and called
on to make a very difficult and uncomfortable choice. They
are confronted with evidence and argument on the issue of
whether another should die, and they are asked to decide
that issue on behalf of the community. Moreover, they are
given only partial guidance as to how their judgment
should be exercised, leaving them with substantial
discretion. . . Given such a situation, the uncorrected
suggestion that the responsibility for any ultimate
determination of death will rest with others presents an
intolerable danger that the jury will in fact choose to
minimize the importance of its role. Indeed, one can easily
imagine that in a case in which the jury is divided on the
proper sentence, the presence of appellate review could
effectively be used as an argument for why those jurors
who are reluctant to invoke the death sentence should
nevertheless give in.
472 U.S. at 332-33 (plurality opinion).
More fundamentally, the Florida Supreme Court’s inferential approach is
divorced from logic and Mr. Tanzi’s case exemplifies this. Mr. Tanzi pleaded guilty to
first-degree murder, carjacking, kidnapping, and armed robbery. Without additional
factfinding, Mr. Tanzi’s plea exposed him to a maximum sentence of life
imprisonment without the possibility of parole. Under Florida’s capital sentencing
statute, the trial court could only sentence Mr. Tanzi to death if, “notwithstanding
the recommendation of a majority of the jury,” it found “the facts (a) that sufficient
aggravating circumstances exist . . . and (b) that there are insufficient mitigating
circumstances to outweigh the aggravating circumstances.” Fla. Stat. §§ 921.141(1),
(3), (1996). Absent “specific written findings of fact based upon the circumstances in
subsection (5) [aggravators] and (6) [mitigators] and upon the records of the trial and
sentencing proceedings,” the sentencing statute commanded, “the court shall impose
sentence of life imprisonment.” § 921.141(3).
30
Applying this scheme, the trial court found every fact necessary to impose
death. The advisory jury found none, delivering only an advisory sentencing
recommendation that read: “A majority of the jury, by a vote of 12-0, advise and
recommend to the court that it impose the death penalty upon Michael A. Tanzi.”
(Appendix C, at A16). By the Florida Supreme Court’s logic, this recommendation
proves beyond a reasonable doubt that the jury actually found that at least one
aggravating circumstance existed.
Reasonable doubt abounds. Twelve jurors were instructed on seven
aggravators. They were not, however, required to unanimously find the same
aggravator, each could find for herself that any one aggravator was proven beyond a
reasonable doubt. The variations are infinite for all practical purposes.
This uncertainty is heightened by the variable complexity of the aggravators
themselves. Compare Aggravator One with Aggravator Two. Aggravator One
required a juror to find: “The crime for which Michael A. Tanzi is to be sentenced was
committed while he had been previously convicted of a felony and was on felony
probation.” (R. 1420). Putting aside the question of whether this aggravator is
independently sufficient, it is factually simple. In contrast, Aggravator Two required
the jury to find: “The crime for which the defendant is to be sentenced was committed
while he was engaged in the commission of or flight after committing or attempting
to commit the crime of sexual battery or kidnapping.” (R. 1420). Already the
complexities are obvious. Which crime did any given juror find? When did they find
it was committed? If two jurors found the same crime, did they also agree on the
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timing? And it only gets more convoluted.
The jurors were instructed that, before the sexual battery could be considered
as an aggravating circumstance, they needed to find every element of sexual battery.
To do so, each juror would have needed to find four elements. One of these elements
could be satisfied by four alternate but inconsistent findings. In other words, for this
aggravator to apply, the jurors needed to, in effect, find Mr. Tanzi guilty of sexual
battery. But they did not need to agree on which theory of the crime was actually
proven. Each juror could have believed a different theory of the offense if they even
found any offense at all.
Even if, in the face of these endless variations, a court could reliably infer all
of this, there is another wrinkle. On direct appeal, the Florida Supreme Court found
the trial court had impermissibly doubled the kidnapping and sexual battery
aggravators. Tanzi v. State, 964 So. 2d 106, 117 (Fla. 2007). Did the jurors interpret
their instructions, laden with alternate elements, such that they, too, doubled these
aggravators?
The bottom line is that there is simply no way to tell what the advisory jury
did or did not find. It made no factual findings. But by the Florida Supreme Court’s
reasoning, there was no error because—beyond a reasonable doubt—the aggravators
can be inferred. As the foregoing illustrates, the Florida Supreme Court’s inferential
approach necessitates absurd logical leaps and relegates the jury “to making a
determination that the defendant at some point did something wrong, a mere
preliminary to a judicial inquisition into the facts of the crime the State actually seeks
32
to punish.” Blakely, 542 U.S. at 307.
By relegating the jury to an advisory function only, the trial court committed
an independent constitutional violation. The jury’s advisory sentence, thus, cannot
render the constitutional violation harmless—it is part and parcel of the
constitutional violation. Properly considered under Erlinger, none of the aggravators
underlying Mr. Tanzi’s death sentence survive Sixth and Fourteenth Amendment
scrutiny.
3.
The Florida Supreme Court’s Procedural Ruling Does Not Rest
On Adequate And Independent State Law Grounds.
If “the State has made application of the procedural bar depend on an
antecedent ruling on federal law,” then it does not rest on “independent” grounds. Ake
v. Oklahoma, 470 U.S. 68, 75 (1985). In denying this claim on the merits, the Florida
Supreme Court suggested that a procedural bar applied, because “while presented as
an Erlinger claim, what Tanzi really raises are repackaged versions of his Apprendi,
Ring, and Hurst arguments.” Tanzi, 2025 WL 971568, *5. This procedural bar, thus,
depended on the Florida Supreme Court’s antecedent conflation of two distinct
federal constitutional commands: Hurst’s command that a unanimous jury must find
every fact necessary to impose death and Erlinger’s command that juries be preserved
as “checks on governmental power.” See Erlinger, 602 U.S. at 832. Although Apprendi
implements both commands, they are distinct.
Here, the issue relates to the latter, the judge-checking command, which the
Florida Supreme Court has not addressed. In contrast, Mr. Tanzi’s state
postconviction claim in the wake of Hurst v. Florida related exclusively to the former:
33
the jury factfinding command. Because the procedural bar rested on the antecedent—
and incorrect—ruling that these commands are synonymous, the purported
procedural bar is not an “independent” state law ground that would preclude this
Court’s review. See Ake, 470 U.S. at 75 (noting antecedent rulings may be explicit or
implicit).
CONCLUSION
This Court should grant a stay of execution, grant this writ of certiorari, and
review the decision of the Florida Supreme Court.
Respectfully submitted,
/s/ Paul Kalil
PAUL KALIL*
Assistant CCRC-South
Florida Bar No. 174114
kalilP@ccsr.state.fl.us
*Counsel of Record
/s/ Todd Scher
TODD SCHER
Assistant CCRC-South
Florida Bar No. 0899641
TScher@msn.com
MICHAEL T. COOKSON
Staff Attorney
Florida Bar No. 1057838
cooksonM@ccsr.state.fl.us
Capital Collateral Regional Counsel-South
110 SE 6th Street, Suite 701
Fort Lauderdale, FL 33301
Tel. (954) 713-1284
COUNSEL FOR MR. TANZI
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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.