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.

28

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

31

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

34

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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