Opposition Brief — Anthony Floyd Wainwright, Petitioner v. Florida

No, 24-7365

In the

Supreme Court of the United States

ANTHONY FLOYD WAINWRIGHT, Petitioner,

Vv.

STATE OF FLORIDA, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

EXECUTION SCHEDULED FOR JUNE 10, 2025, AT 6:00 P.M.

OFFICE OF THE ATTORNEY GENERAL

3507 East Frontage Rd., Suite 200

Tampa, Florida 33607

Telephone: (813) 287-7910

capapp@myfloridalegal.com

JAMES UTHMEIER

Attorney General of Florida

CARLA SUZANNE BECHARD*

Associate Deputy Attorney General

Counsel of Record

CHARMAINE MILLSAPS

Senior Assistant Attorney General

JASON W. RODRIGUEZ

Sentor Assistant Attorney General

JANINE D. ROBINSON

Assistant Attorney General

COUNSEL FOR RESPONDENT

II.

III.

Capital Case

QUESTIONS PRESENTED

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

Supreme Court holding the claim of newly discovered evidence of a

violation of Brady v. Maryland, 373 U.S. 83 (1963), was not

material?

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

Supreme Court holding the claim of new discovered evidence of

mitigation was untimely and meritless as a matter of state law?

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

Supreme Court holding the Eighth Amendment issue involving new

mitigation claim was “without merit”?

iP

TABLE OF CONTENTS

QUESTIONS PRESENTED 0.00... ceeseceseaeceseeeeeseeeeaeeeneeeeeaeesenseceeesseeeesneeess i

TABLE OF CONTENTS . 0.0... eeecceeseeeneeeseeresaceesneeeseeeenaeeesseseseeessaneeseeeeneetsaneeteceeeeseees ill

TABLE OF AUTHORITIES... cece c cesses snsscnsessseeccseescsseeessseasesseeesessaeeesesaes lv

OPINION BELOW 00000. eee cesecescecceseecesssstceecosneecesneeecesaeecsesaaceseaneeseueeseenanesenseees 1

JURISDICTION 0.0 ce cece eeeneescaeeneeeeeasesceeeosceeeeseseueeccuseeseseaeceseeeessaesersneaneeteanaa 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...............cccceee 1

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY ....0. ee eeseees 2

REASONS FOR DENYING THE PETITION ..00o. occ eeeecceeeeeeetenaeeeeseceeenseeees 8

TSSUE Doone eee eeeeecceeesnce cence sesneesesceeeessseseeesansesesseerseseeecesseeeesseeeesesteerennerees 8

Whether this Court should grant review of a decision of the

Florida Supreme Court holding the claim of newly discovered

evidence of a violation of Brady v. Maryland, 373 U.S. 83

(1963), was not material? ...........cccccccccccsssseesseceeseesecseesaaceeesaceeeeseesseeceseescesces 8

TSSUE Tene ecceeeessseeeessecessccessnneesesaceeeessacecessaeeeessseeeseaaeesesceessaeessteresseeeees 15

Whether this Court should grant review of a decision of the

Florida Supreme Court holding the claim of new discovered

evidence of mitigation of neurodevelopmental effects due to Agent

Orange was untimely and meritless as a matter of state law?.................. 15

TISSUE TID oo eee cceceeescceeseeeecseeecsececensuneecesseeecesaneesesneeessaeesesneeseseeseseeeeaeereess 21

Whether this Court should grant review of a decision of the

Florida Supreme Court holding the Eighth Amendment issue

involving new mitigation was “without Merit”? 0... cceesessseeeeceeeeesenseees 21

CONCLUSION o.oo cecseeeencecesaeeessceeeseaecessaseeesesaeeeeesaeaeensaesesaeeeseateessaaeeessueeseeeeees 29

iil

TABLE OF AUTHORITIES

Page(s)

Cases

143 S. Ct. 303 (2022) ...cccceccsessscssecsecessecsvessecssscssecsueessessussssessesaessesavessessessuesaseseesseessees 27

Adarand Constructors, Inc. v. Mineta,

584 U.S. 108 (2001) oo... cece ccc cc cccsssnssseeceeeeceeececeecesaasseseeeeceseeeaaeseeseceeeeeeasseeseeteeseeeses 23

Atkins v. Virginia,

536 U.S. 804 (2002) 00... ceccecccssececcccesssssssncececcsssnssaneeseeseeecececesensesaesaaessesceveuseneeass 28

Babcock v. Kijakazt,

BO5 U.S. 77 (2022) oo. cccccccccccccccecccccceccacecccececceceececeecceececeeeeeeeseasseseeeeeceansaneansareusesess 23

Barwick v. State,

361 So0.3d 785 (Fla. 2028) 2.0... eeeeeeeseessesccesceceececceeceeceeseensessessacseecanagesssssseeceneess 16

Bowles v. Sec.,

935 F.3d 1176 (11th Cir, 2019) ..cccccccceccsesssesssescseccsccsessucssessessucssecsscesvesseesuessueensecenes 28

Brady v. Maryland,

373 U.S. 88 (1968) oo... cc eeeececeeeseceeceeceeceeeeecerseseeseesecceeseesueceeeaeeessrseseneeseees 2, 3, 7,8

Braxton v. United States,

500 U.S. 844 (1991) o.oo eeeenseneensenseeseeeceecceeceeceereeceseseueeneensneaeseeseneasenes 14, 20, 27

Bronco ai,

Ln G wii c ccc ceecceccceeccasccseeteucceecceeecaveceecessecceusessaeeeeeeseusesucceeccsuceuessseecaucessecesenseesaseenes 13

City of Austin, Texas v. Reagan Nat'l Advert. Of Austin, LLC,

B96 U.S. 61 (2022) oo... cccccccceceeceeceecseceeccececeeceeescececcecsceceeceeseeeeenseceeseeeseneeeeueseeess 23

Coleman v. Thompson,

BOL U.S. 722 (1991) oo... ccccsesssssseecceceeceeessecseeceeceseesecaesenenseeecsessecesecseseeeeeteeesseseess 18

Cutter v. Wilkinson,

544 U.S. 709 (2005) o.oo. cc ccccsscsssssceceececeesensseeeeceneesessesneeaagecessseseeeesessessseneceeeseseees 23

Davis v. Kelley,

854 F.3d 967 (8th Cir. 2017) ......c.ccccceccccccccccsssssnseececcesesssnessesnanacaeeesecesssesssnsnseessaneees 28

Dillbeck v. Florida,

143 S. Ct. 856 (2028) oo... eee ceccccccesccceeessesseseecceceeceeeanaaeececeesaeuseseeeeeseeseauaaeesaneeeeaes 25

Dillbeck v. State,

304 So.3d 286 (Fla. 2020) ..............ccccceesseesssssessceececceaccececceecesseessesssssssssssssesesseres 16, 17

Erlinger v. United States,

602 U.S. 821 (2024) ooo. cecccccceenceeceasaeesesecceceasseceeceaecceeaaeceeseeeaseeeeseeaecetsensesenees 7

Ford v. Florida,

145 S. Ct. 1161 (2028) oo... cccccccccccecceccesessssenssnsesessesseccecceesceuceeecessceccecceuceeeeerss 25

Fox Film Corp. v. Muller,

296 U.S. 207 (1985) oo ccccccecssssssneaceceecessssssnneeescecsessseccesesssssuasseceeseceessscesececees 18

Fulks v. Watson,

4 F.4th 586 (7th Cir. 2021) 0.0.0... ..cecccccccececssecsssseccsenceeceecesceesessecssessesssssssccsssssseereseess 28

Gilmore v. Utah,

1V

A429 U.S. 1012 (1976) uo... cccescssseseessssssessessesssceseeseessasecseeseeaeeceesaessasaasaeesceeees 25

Glossip v. Oklahoma,

145 S. Ct 612 (Feb. 25, 2025) ..cccccccccssscsessecssessessecsucssscssecsessusssssssessessessessessessesseaseees 18

Gregg v. Georgia,

A428 U.S. 153 (1976) ..cccccccccccscssssaceeesecceesesesssesssneeeesesesesnaeaaseceseeseessenensaaeaeeseescesaceece 20

Harbison v. Bell,

556 U.S. 180 (2009) ...cecseccsesccesssecssecsecssessuesseesuesuesssessuecssecsuessuessucsaesseessessuesstessessessseen 9

Herb v. Pitcarn,

B24 U.S. 117 (1945) ooo csesssesessecscrssesssesessessssssesenseeasaescasaeseeaaasseaeeesseseesseees 10, 24

Hope v. United States,

108 F.3d 119 (7th Cir. 1997) 20.0... ccccccceeccceceececcesesensssessseseeesessessenseeeeeseeseeeereeees 28

Hutchinson v. Florida,

2025 WL 1261217 (U.S. May 1, 2025) ...ecccsccescescssecscecsesscsesseessessusssecsacsaeessessecssnesees 23

Hutchinson v. State,

2025 WL 1155717 (Fla. Apr. 21, 2025) ...ccescceccsescssecsseeccssessescsecerscesecssesseesseessseessees 17

Hutchinson v. State,

2025 WL 11980387 (Fla. Apr. 25, 2025) ............ccecccecceccessssneececeeseceessesssenseeserseeeueessees 23

In re Burton,

111 F.4th 664 (5th Cir. 2024) ....ccccccsccseccsccssecssessescssececsesssscssuecsacesuessscssneceusesueessaceaes 28

In re Hill,

437 F.3d 1080 (11th Cir. 2006) 00.0.0... sseeesseseseseesceeneeeceeeceseereceeeeceececassaceassanscesees 28

In re Aull,

715 F.3d 284 (Lith Cir, 2018) ooo... ccccscesesssesscsneceeeeeeececceeceecceeeeeceeceeeeeeeeeesasteaea 28

In re Johnson,

325 Fed. Appx. 337 (5th Cir. 2009) ..0..0........ccccccccsessssseseccceccessnecsssesseassnseceeseneecseesees 28

In re Richardson,

802 Fed. Appx. 750 (4th Cir. 2020) ............cccccccccsscceccecesscnneeeeceeeeeeseessnsesaeaeseeeeseeaeea 28

In re Soliz,

938 F.3d 200 (5th Cir. 2019) ....... ccc cccccssssssesseeeceecessssneneesecceeseeeesseeesenseeseeenseneeas 28

Trick v. Bell,

2010 WL 4238768 (E.D. Tenn. Oct. 21, 2010) o.oo. cceesssesenseneesssssssssssssssenssrsceeees 28

Jimenez v. State,

997 So.2d 1056 (Fla. 2008) ..............ccccccscssssessececceseececacaaeaasseseceeeseesaaeceeeeesessananes 16, 17

Johnson v. Singletary,

938 F.2d 1166 (11th Cir, 1991) ...ccccccccecceccssscssecssessecssecasessesassssesscssessesaeesessessneceseese 28

Jones v. State,

709 So. 2d 512 (Fla. 1998) ....csccesssecseccseessessecssessecsssessuessuesssesacssscssecssessesssessecsseesssveees 17

Jurek v. Texas,

428 U.S. 262 (1976) cccccccecseccseccoccsuessucsssesuessecsucssessssessecsssessesssessussssssecsasssecsseessessseee 20

Knox v. Johnson,

224 F.3d 470 (Sth Cir. 2000) ........... cc eccccceccccensceescessssscssesccceucecceasseccesseseusceneeeseees 14

LaGrand v. Stewart,

173 F.3d 1144 (1999) oo... cccccccccccsccsseuececeeeeeesaeeesecsescusaccessuscesceauseseacauacseacseesensees 25

Lockett v. Ohio,

A38 U.S. 586 (1978) .ocesccessesssscsscssesssssesesssesstssessesscsavsecsecsecsucsuesareneeneeareaeeateacaeeateees 25

Matter of Frazier,

558 P.38d 451 (Wash. 2024) ooo... cccccccccccccecccecececccceseeseeeeeseeeeneeeeeseeseenennvesseena 21, 29

McCleskey v. Zant,

A499 U.S. 467 (1991) oe cccessecccecccececccecceceeceneeceeeceeeneneeceecserseceeceeceeceeseeseesacaesees 11

McMillan v. State,

258 So. 3d 1154 (Ala. Crim. App. 2017)... ccecccceeeereeeeeeeeceeeeeseeseeseeeeesanseees 29

McQuiggin v. Perkins,

569 U.S. 383 (2018) occ eessceceeeeceessssscscneceeseceeseeseuseseaeeseeeeessnesssueeeeees 5, 26, 27, 28

Michigan v. Long,

463 U.S. 10382 (1988) ooo... eeccesccscecceccessssseseeseeececesessseesssseuseececeessssecseassesseeeeeeseceenees 18

Moore-El v. Luebbers,

446 F.3d 890 (8th Cir. 2006) 2.0... cccccsssscsececeesessessesssceceeceseeessssssseceeeeecsecensceesnes 14

Porter v. McCollum,

558 U.S. 80 (2009) oo ceecceccececcesessssneeseeeeeseesessssesesaeeeeccesesssssnaneeeesccesesceusssesaaees 20

Prieto v. Zook,

791 F.3d 465 (4th Cir. 2015) oo... ccc ceeesesesscceeceseeeseeseececeececsesessecneeeeeeseeeesensesenees 27

Proffitt v. Florida,

428 U.S. 242 (1976) 2.0... cscsscsssesesscnceseceaceacsseusensesceesscusesaeaeeesscesseseesesseeeseessaneeeeees 20

Pulley v. Harris,

AG5 U.S. 37 (1984) oo... ccceccsscceeceeeeeceeasenaeseaseaceaeeaneeucascassasaeeeaeeeseeceeseeaqaaaaees 19, 20

Rice v. Sioux City Mem Park Cemetery,

B49 U.S. 70 (1955) oo. cccccccccccccceceeesecceceecceseesecceececccseceececeeseeceeceeeeecceceeeseeseres 10, 24

Ring v. Arizona,

536 U.S. 584 (2002) ..cccccecsceccssecsecsseccsessuecsussuesssecssessucsuecsucssecesessueseuscsuessessuceresasecsecees 4

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

ABZ U.S. 182 (1987) oo. ccccsscssssssceceecesseeeeeeescaueseceececeeseesscsneececeeseseesnenaaaaes 14, 21, 27

Sawyer v. Whitley,

5O5 U.S. 883 (1992) ooo... cccsccseeececeeeessscsssecececsecesesssesssnraeeeeecessessesenseeeeeeees 25, 26, 28

Sliney v. State,

362 So.3d 186 (Fla. 2023) ...ccccceccesccecsesceececcsessesssessessucsuesscsssesseseeessesuessessassuecacenseesee 16

State ex rel. Johnson v. Blair,

628 S.W.3d 375 (Mo. 2021)...ccccsesssccscssccsesssesessscssssssesscssecsucsusseressesscssucssessesseesseceseess 29

Siate v. Absolu,

13 N.W.3d 764 (S.D. 2024)... ccecccccscccecceeeesessessseseeeseeceesessesaeseessessessesssssesaeeessessaes 14

State v. Lotter,

976 N.W.2d 721 (Neb. 2022) cccccsccsecssessessecssessessecssecssssssssessecsesssecsessucssecstsseessessecesece 29

Stewart v. LaGrand,

526 U.S. 115 (1999) -cscccsescsescsessescsuecsucssecceeseecssessuessucsseseuessuessesssessuessusssssssessesssscessece 25

Turner v. United States,

582 U.S. 313 (2017) cecccccecccescsccscsssesssecsvecsecsucssucseesesesssesuessuessuessuessesssecsessessees 9, 12, 13

United Siates v. Jones,

758 F.3d 579 (4th Cir. 2014) oo... ccccccccceccecceccecceccecceececceseeseeeeseeseneeaseeseeesensssensaes 27

United States v. Roof,

vl

10 F.4th 314 (4th Cir. 2021)... ccccccessssssseecececesssssseacescesceeeeseesensseeeeeceeceeceseeees 27

Wainwright v. Dixon,

144 SG. Ct. 1868 (2024) ooo... cccccccssstceececeessssseeaeseeceesesseneaaeseessessesesssaaesseeeeceseseneeess 6

Wainwright v. Florida,

546 U.S. 878 (1998) 2.0... ccccceeecccccssssceccecnseeccecnesecceeeeesscsesscaecccecusececeeeegscessensueessceuess 4

Wainwright v. McDonough,

ZOO6 WL 8449862 uo... cecccccessssscccccesscccceeesccecueasesececcaaueeeceeeseeeeeueeseeteaeeeeeeceseneess 5

Wainwright v. Sec’y, Dep’t of Corr.,

537 F.3d 1282 (11th Cir. 2007) .0....... cc ccccccsccscecceeessessesnceceeeecsenessesaceaceeeeeeesesseseeneeseees 5

Wainwright v. Sec’y, Fla. Dep’t of Corr.,

2023 WL 4582786 (11th Cir. July 18, 2028) ......... cece ccecceeessssesseeeceeeecsesnnreeeees 6

Wainwright v. State,

2. So 3d 948 (Fla. 2008) ......cceccceccecscceccsececseecseecseessecesscesseseseessucerecereverseeseeeeseeeseseen 4,13

Wainwright v. State,

43 S0.3d 45 (Fla. 2010) ..........cccccccsssssssssesceccccccescesssececeeeeeceecencaueseseeeeeeeeeenessssesssseseesas 4

Wainwright v. State,

704 So.2d 511 (Fla. 1997) 0.0.0... ccccccccssssssseeceeceeccenecaceseeeseecceeseeeecsseseeeeeseesseeecessasses 3, 4

Wainwright v. State,

896 So. 2d 695 (Fla. 2004) ........ es eeesseeececcsecceecseesececceesecescresscessccecceseesneasssesceeceseeseeeas 4

Wainwright v. State,

2011 WL 955608 (Fla. 2011) .0.....ce ec cccccssessssseeececeeeeessssseeeeaeeeseceeeesuseseeaaeeeeseesssaeenes 4

Wainwright v. State,

2017 WL 394509 (Fla. Jan. 80, 2017) ..........cccccccccccesceessssssceacesceeeeeeessssseeeetsetenseseeeeeas 4

Wainwright v. State,

2025 WL 1561151 (Fla. June 3, 2025) 000... ececccccccccecesssssenececeeceeseeeessennnneeneess Passim

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ooo. ccccecccscssecccccesessnssnnneeececeeeeecessanseeeseeeeeeetsessaaaaseeseuseassaasenees 23

Statutes

18 U.S.C. § 8599 (a)(2)..... ccc cccccccccceccessssenceeceeceeseseesssenseaseeeeeesessensneaaaaeeceeseseesaeassessenenses 9

28 U.S.C. § 2101)... ccccccescessssseeeeeeecsecesscensasaeeceecesssusesaesueececeecessensssaueceseeseeeceesees 1

ZB U.S.C. § 1257 (a) occ cccccccecessssnssneeceeceeeeescsecnseeececeecescecseuceeceeesecesessesnaceseeeesersnseneeneees 1

RCW 10.78. 100(1).........ccccccccccecesseessssnseeececeeceeseeseuaueeeececesseesseaceeceseeeeeseeessensneeesensss 21, 29

U.S. Const. amend. Vo... cccccccccecsseseeaceceeececeeseescenceseeeeeceseseeneaeesarsceeessesnseaeaeeeesaeeeaaes 1

USS. Const. amend. VIVID... cccccccccesseseeeceeceseesceeceecceesseeseeeeeeceesesceeeeeeeseceeeeesneeneeeas 2

U.S. Const. amend. XIV, § 1 o.cccc ccc cccccccccccccccceccceccecceceecsececececceccesceccesscesereseeseanseneaeaas 2

Rules

Fla. R. Crim. P. 3.851(@)(2) .......c.cccsssccccccessssesnnneceeceesesesessaseeecceesceseseseseeeeececseueasses 16, 17

vil

OPINION BELOW

The Florida Supreme Court’s opinion is published at Wainwright v. State, 2025 WL

1561151 (Fla. June 3, 2025).

JURISDICTION

On June 3, 2025, the Florida Supreme Court affirmed the state postconviction

court's summary denial of the amended eighth successive postconviction motion. The

Florida Supreme Court also denied a stay and issued the mandate immediately, due

to the active warrant.

On June 5, 2025, Wainwright, represented by pro bono second-chair counsel,

Terri Backhus, filed a petition for a writ of certiorari in this Court. The petition is

timely. See Sup. Ct. R. 13.3; 28 U.S.C. § 2101(d). Jurisdiction exists pursuant to 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution, which

provides:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due process

of law: nor shall private property be taken for public use, without just

compensation.

U.S. Const. amend. V.

The Eighth Amendment to the United States Constitution, which

provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

U.S. Const. amend. VIII.

The Fourteenth Amendment to the United States Constitution, section

one, which provides:

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

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

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

shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, lberty, or

property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

The litigation in this case spans over 30 years.

Facts of the crime

Anthony Wainwright and co-perpetrator Richard Hamilton escaped from

prison in Newport, North Carolina. They stole a green Cadillac and then burglarized

a home, taking guns from the home, including a Winchester rifle and a Remington

.22 rifle. They then drove to Florida in the stolen car. On April 27, 1994, in Lake City,

Florida, they decided to steal another car because the stolen Cadillac was

overheating. They drove to a Winn-Dixie parking lot and saw Carmen Gayheart, a

young mother of two, loading her groceries into her blue Ford Bronco. Hamilton forced

her into her own car at gunpoint and Wainwright followed in the Cadillac. They

abandoned the Cadillac, after transferring the stolen guns and ammunition to the

Bronco. They headed north on I-75 in the Bronco, but drove off the highway into a

wooded area. They both raped the victim, then strangled and executed her by

shooting her twice in the back of the head with the stolen .22 rifle. They were arrested

the next day in Mississippi following a chase and shootout with a Mississippi State

Trooper.

Procedural history in state court

The jury convicted Wainwright of first-degree murder, robbery, kidnapping,

and sexual battery, as charged. Wainwright v. State, 704 So.2d 511, 512 (Fla. 1997).

Wainwright’s mother was the sole witness presented by the defense at the penalty

phase. The jury unanimously recommended a death sentence. Jd. at 512. The trial

court found six aggravating circumstances: (1) under sentence of imprisonment; (2)

prior violent felony; (3) felony murder based on the robbery, kidnapping, and sexual

battery; (4) committed to effect escape; (5) the murder was especially heinous,

atrocious or cruel (HAC); and (6) the murder was committed in a cold, calculated,

and premeditated manner (CCP). Jd. at 512, n.2. The trial court found no statutory

mitigating circumstances, but found nonstatutory mitigation regarding his

difficulties in school and adjustment problems. Jd. at 512-13, n.3.

In the direct appeal to the Florida Supreme Court, Wainwright, represented

by Steve Seliger, raised nine issues. Wainwright v. State, 704 So. 2d 511, 513, n.4

(Fla. 1997). The Florida Supreme Court affirmed the convictions and the death

sentence, concluding the death sentence was proportionate. Jd. at 516.

On May 14, 1999, Wainwright, represented by registry counsel Glenn Arnold,

filed the initial postconviction motion raising 14 claims. Wainwright v. State, 896 So.

2d 695, 697, n.1 (Fla. 2004). The state postconviction court held an evidentiary

hearing on five of the claims and it was stipulated that original trial counsel Africano

was unable to testify due to his health. Jd. at 697 & n.6. The state postconviction

court denied the initial postconviction motion.

On appeal to the Florida Supreme Court, Wainwright, now represented by

registry counsel Joseph Hobson, raised eight issues. Wainwright, 896 So.2d at 697.

Wainwright also filed a state habeas petition in the Florida Supreme Court raising

four issues. Wainwright v. State, 896 So.2d 695, 703-04 (Fla. 2004). The Court

addressed the claim based on Ring v. Arizona, 536 U.S. 584 (2002), noting that one

of the aggravators was the prior violent felony aggravator, which does not need to be

found by a jury. Id. at 703-04.

Wainwright filed a petition for writ of certiorari in this Court which was denied

on October 3, 2005. Wainwright v. Florida, 546 U.S. 878 (1998).

Wainwright then filed numerous successive postconviction motions, including

both pro se motions and counseled motions, over the years. Wainwright v. State, 2

So 3d 948, 949 (Fla. 2008); Wainwright v. State, 43 So.3d 45 (Fla. 2010); Wainwright

v. State, 2011 WL 955603 (Fla. 2011); Wainwright v. State, 2017 WL 394509 (Fla.

Jan. 30, 2017).

Procedural history in federal court

On March 29, 2005, Wainwright, represented by Joseph Hobson and Cameron

P. Moyer, filed a § 2254 petition in the Middle District of Florida. Wainwright v.

McDonough, 2006 WL 8449862, 3:05-cv-00276 (M.D Fla. Mar. 10, 2006). The petition

was six days late. Wainwright v. Sec’y, Dep’t of Corr., 537 F.3d 1282, 1284 (11th Cir.

2007). The Secretary moved to dismiss the petition as untimely. On March 10, 2006,

the federal district court dismissed the petition as untimely, rejecting a claim of

equitable tolling. Wainwright, 2006 WL 8449862, at *3-*4.

Wainwright appealed to the Eleventh Circuit. The Eleventh Circuit concluded

that equitable tolling did not apply and affirmed the district court’s dismissal of the

habeas petition as untimely. Wainwright, 537 F.3d at 1287.

On June 22, 2018, the federal district court granted a motion, filed by the

Capital Habeas Unit of the Office of the Federal Public Defender of the Northen

District of Florida (CHU-N), to be appointed as Wainwright’s federal habeas counsel.

Nearly one year after the appointment, on June 21, 2019, CHU-N filed a Rule

60(b)(6) motion to reopen the closed habeas case in the district court. The motion to

reopen asserted the district court should reconsider its prior ruling regarding

equitable tolling. Wainwright also raised a gateway claim of actual innocence based

on McQuiggin v. Perkins, 569 U.S. 383 (2013). The claim of innocence was premised

on an affidavit, dated June 19, 2019, from DNA analyst Candy Zuleger criticizing

the testing methods and testimony of the State’s two DNA experts at trial. The

motion to reopen also raised numerous new grounds for habeas relief that were not

raised in the original habeas petition filed in 2005.

The Secretary argued that the Rule 60(b)(6) motion was an unauthorized

successive habeas petition over which the district court lacked jurisdiction because

it raised numerous new grounds that were not raised in the original habeas petition.

The district court denied the Rule 60(b) motion concluding that the motion to

reopen was an unauthorized successive habeas petition over which it lacked

jurisdiction.

The Eleventh Circuit granted a certificate of appealability (COA) on the denial

of the motion to reopen. The Eleventh Circuit affirmed the district court’s denial of

the Rule 60(b)(6) motion to reopen and the denial of an evidentiary hearing on the

issue of equitable tolling. Wainwright v. Sec’y, Fla. Dep’t of Corr., 2023 WL 4582786

(11th Cir. July 18, 2023).

On February 10, 2024, Wainwright, represented by CHU-N, filed a petition for

a writ of certiorari in this Court raising two questions related to the Rule 60(b)(6)

motion. On April 15, 2024, this Court denied review. Wainwright v. Dixon, 1448. Ct.

1363 (2024) (No. 23-6737).

Current warrant litigation

On May 9, 2025, Governor DeSantis signed a death warrant scheduling

Wainwright's execution for June 10, 2025, at 6:00 p.m.

On May 15, 2025, Wainwright, represented by lead state postconviction

counsel, registry counsel Baya Harrison III, and pro bono, second-chair counsel, Terri

Backhus, retired from the Capital Habeas Unit of the Office of the Public Defender of

the Northern District of Florida (CHU-N), filed an amended eighth successive

postconviction motion. (8th Succ. PC ROA at 181-205). The amended motion raised

three claims: (1) a claim that the death sentence violated the Sixth Amendment rightto-a-jury trial relying on Erlinger v. United States, 602 U.S. 821 (2024); (2) a claim of

newly discovered evidence of mitigation of neurodevelopmental effects due to Agent

Orange exposure; and (8) a claim of newly discovered evidence of a violation of Brady

v. Maryland, 373 U.S. 83 (1963), regarding a State’s witness, Robert Allen Murphy,

receiving probation in exchange for his trial testimony against Wainwright. The

appendix included an expert report regarding neurodevelopmental effects of Agent

Orange, based on a 2023 study of Vietnamese children as well as a recent affidavit

from Murphy, dated May 13, 2025. Id. at 219-233; 239-241.

On May 16, 2025, the State filed an answer to the amended eighth successive

postconviction motion. (8th Succ. PC ROA at 335-361). The State asserted the first

claim based on Erlinger was procedurally barred and meritless as a matter of law

under controlling United States Supreme Court and Florida Supreme Court

precedent and therefore, should be summarily denied. Id. at 338-48. The State

asserted the second claim of newly discovered evidence of mitigation regarding Agent

Orange was untimely and meritless as a matter of law and therefore, should be

summarily denied. Jd. at 349-54. The State additionally asserted that the third claim

of newly discovered evidence of a Brady violation was untimely and meritless as a

matter of law, both as to the newly discovered evidence aspect of the claim and as to

the Brady aspect of the claim and therefore, should be summarily denied. Id. at 354-

59. The State urged the postconviction court to summarily deny the amended eighth

successive postconviction motion. Jd. at 359.

On May 20, 2025, the postconviction court summarily denied the amended

eighth successive postconviction motion. (8th Succ. ROA at 441-460).

Wainwright appealed to the Florida Supreme Court. On June 3, 2025, the

Florida Supreme Court affirmed the summary denial of the amended eighth

successive postconviction motion. Wainwright v. State, 2025 WL 1561151 (Fla. June

3, 2025).

On June 5, 2025, Wainwright, represented solely by second-chair pro bono

counsel, Terri Backhus, filed a petition for a writ of certiorari in this Court raising

three questions related to the Florida Supreme Court’s affirmance of the summary

denial of the amended eighth successive postconviction motion.

REASONS FOR DENYING THE PETITION

ISSUE I

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

Supreme Court holding the claim of newly discovered evidence of a

violation of Brady v. Maryland, 373 U.S. 83 (1963),was not material?

Petitioner Wainwright seeks review of the Florida Supreme Court's decision

regarding a claim of newly discovered evidence of a violation of Brady v. Maryland,

373 U.S. 83 (1963). Pet.at 16. He asserts that the prosecution violated Brady by not

disclosing that a State’s witness, Robert Allen Murphy, expected a benefit from his

testimony. But this was not merely a Brady claim. Rather, it was a claim of newly

discovered evidence of a Brady violation and the newly discovered evidence aspect of

the claim is a state law matter. There is no conflict with this Court’s Brady

jurisprudence. The cumulative impeachment of Murphy is simply “too little” and “too

weak” under Turner v. United States, 582 U.S. 313, 326 (2017), to be material to

either the convictions or death sentence. Because the question involves a preliminary

matter of state law and does not present any conflict with this Court or the other

appellate courts regarding the materiality prong of Brady, this Court should deny

review of the question.!

The Florida Supreme Court’s decision

The Florida Supreme Court rejected the Brady claim, concluding that

Wainwright was not diligent, that the prosecution did not suppress the information,

and that the cumulative impeachment of Murphy was not material. Wainwright v.

State, 2025 WL 1561151, *8-*9 (Fla. June 3, 2025). The Court first found that

Wainwright was not reasonably diligent because it was a matter of public record that

Murphy was released on probation shortly after his testimony. Jd. at *8. “All of the

1 The petition itself is improper as it was filed without state postconviction lead

counsel’s signature, The state postconviction court viewed “pro bono” counsel Terri

Backus as a front for the Capital Habeas Unit of the Public Defender’s Office for the

Northern District of Florida’s involvement in the state court warrant litigation. (ROA

8th succ PC at 396). The state court did not believe that Terri Backhus had written

the substitute successive postconviction motion she filed that quickly. The expert

reports supporting the claims raised in that motion and attached to the motion were

explicitly prepared for CHU-N, not Terri Backhus. Allowing the retired chief of CHU-

N to appear in state court as “pro bono” counsel acting as a front for CHU-N’s

interference in state court undermines 18 U.S.C. § 3599(a)(2), which requires a

showing that current state postconviction counsel is inadequate before federal habeas

counsel may appear in state court and before federal funds are spent. Harbison v.

Bell, 556 U.S. 180, 189 (2009) (stating subsection (a)(2) provides for counsel only when

a state petitioner is unable to obtain adequate representation). This Court should

deny the petition on that basis alone.

information necessary for this claim to be raised was readily available to

postconviction counsel decades ago.” Id. Alternatively, the Florida Supreme Court

determined that the prosecution did not suppress the impeachment evidence. Jd. at

9. The Court observed that Murphy’s recent affidavit did not claim that Murphy had

received a promise from the State, only that Murphy had a “clear understanding and

expectation on his part that he would get a benefit.” Id. at *8. The Court additionally

concluded that the cumulative impeachment of Murphy was not material due to the

“significant evidence introduced against Wainwright.” Id. at *9. The Florida Supreme

Court affirmed the lower court’s summary denial of the Brady claim. Id

Threshold issues

Any decision from this Court regarding the matters Wainwright seeks to

explore, such as the diligence requirement for a Brady claim and the duty to disclose

a witness’ expectation of a benefit, would not matter to the ultimate outcome of this

case. The Brady claim would still be denied under the materiality prong of Brady and

this Court’s decision in Turner. This Court does not grant review of questions that

are theoretical or academic in the sense that the question presented does not effect

the actual outcome of the case, Rice v. Sioux City Mem'l Park Cemetery, 349 U.S. 70,

74 (1955); Herb v. Pitcarn, 324 U.S. 117, 125-26 (1945) (explaining that if the same

judgment would be rendered by the state court, this Court’s review would be nothing

more than an advisory opinion). The Florida Supreme Court’s alternative holding was

that the proposed cumulative impeachment was not material. Wainwright, 2025 WL

1561151, at *9. The petition simply ignores the Florida Supreme Court’s alternative

10

conclusion that the impeachment was not material. Any decision on the matters

raised in the petition would be purely academic because the Brady claim would still

be denied under the materiality prong.

This case also presents a very poor vehicle to address a Brady claim because it

comes to this Court from the denial of Wainwright’s Eighth Amended Successive

motion for post-conviction relief. Florida’s well established newly discovered evidence

rules require a Defendant to bring such a claim within one year of the time it could

have been discovered through the exercise of reasonable diligence.? The Florida

Supreme Court found this claim could have been brought “decades” ago with

reasonable diligence. This case would be uncertworthy under routine review from the

denial of an initial motion for post-conviction relief. It is even more uncertworthy on

review of an Eighth Successive motion under an active warrant. See McCleskey v.

Zant, 499 U.S. 467, 492 (1991) (noting the “disrespect” for “finality” that successive

collateral review imposes on society and our justice system).

No conflict with this Court

There is no conflict between this Court’s jurisprudence and the Florida

Supreme Court's decision in this case. Sup. Ct. R. 10(¢) (listing conflict with this Court

2 The Florida Supreme Court explained: “As the circuit court determined, it was clear

from the trial testimony that Murphy had a motion for modification of sentence

pending at the time of Wainwright's trial. And it was a matter of public record that

Murphy was released on probation shortly after his testimony. Murphy's recent

affidavit was not necessary to pursue this claim. So as the circuit court observed, his

recent affidavit really adds “nothing” to this claim. All of the information necessary

for this claim to be raised was readily available to postconviction counsel decades ago.

Wainwright, No. SC2025-0708, 2025 WL 1561151, at *8 (Fla. June 3, 2025).

11

as a consideration in the decision to grant review).

On recross examination, defense counsel asked Murphy if he knew of anything

that would preclude his attorney at his upcoming modification hearing from bringing

to the court’s attention that he had testified for the State in this capital case and

Murphy responded: “No.” (DAR Vol. 20 2726). Wainwright’s jury knew from this

testimony that Wainwright’s attorney could inform the presiding judge at his

upcoming sentence modification hearing that he had testified for the State in a capital

case and his sentence could be reduced as a result. There can be no meaningful

violation of Brady from failing to disclose information if the jury learns much the

same information from cross-examination. Wainwright points to no case from this

Court finding a violation of Brady when the jury knew from the testimony they heard

that there was a possibility of the witness obtaining a benefit from his testimony.

Additionally, the cumulative impeachment of Murphy is not material to either

the convictions or death sentence under Turner v. United States, 582 U.S. 313 (2017).

In Turner, this Court held the withheld information was not material to the

kidnapping, robbery, and murder convictions. This Court stated that “evidence that

is too little, too weak, or too distant from the main evidentiary points to meet Brady's

standards is not material.” Id. at 326.

Wainwright confessed to premeditated murder to Sheriff Reid in the presence

of both a FDLE Special Agent and an Investigator with the Hamilton County Sheriffs

Office, all of whom took notes. Wainwright told the Sheriff that they disposed of the

victim’s jewelry because they were planning on killing her. Wainwright v. State, 2

12

So.3d 948, 951 (Fla. 2008). And Wainwright’s DNA matched the semen from the back

of the victim’s stolen Bronco at 1 in 6 billion Caucasians. (DAR Vol. 7 at 1027). And

Wainwright and Hamilton were caught by a Mississippi State Trooper the next day

after the murder hundreds of miles away from the victim’s home in Central Florida

driving the victim’s Bronco.

None of this damning evidence depends on Murphy’s testimony. Any

cumulative impeachment of Murphy pales in comparison to the sheer amount of

evidence of Wainwright’s guilt and of the aggravation.? Any impeachment of Murphy,

in a case where the jury was aware that there was a possibility of his receiving benefit

from his testimony, is simply “too little” and “too weak” to be material. Turner, 582

U.S. at 326. There is no conflict with this Court.

No conflict with the federal appellate courts or state supreme courts

There is also no conflict with either the federal circuit courts or the state courts

of last resort and the Florida Supreme Court's decision. As this Court has observed,

a principal purpose for certiorari jurisdiction “is to resolve conflicts among the United

States courts of appeals and state courts concerning the meaning of provisions of

federal law.” Braxton v. United States, 500 U.S. 344, 347 (1991); see also Sup. Ct. R.

10(b) (listing conflict among federal appellate courts and state supreme courts as a

3 Any impeachment of Murphy would be cumulative because another inmate, Gary

Gunter, also testified that Wainwright also confessed to him. (DAR Vol.21 at 2736-

76). Gunter testified that Wainwright was the actual triggerman. Gunter, who was

dying of AIDS, testified that he expected to die in prison and did not want to leave

prison because he believed he was better off in prison. Additionally, Murphy was

impeached in other ways, including with his numerous prior felony convictions.

13

consideration in the decision to grant review). Issues that have not divided courts or

are not important questions of federal law do not merit this Court's attention.

Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184, n.3 (1987).

Wainwright points to no federal circuit court or state supreme court case

holding that cumulative impeachment of a witness in a case with both DNA evidence

of the rape and a confession to three law enforcement officers to premediated murder

is material that was decided after Turner (or even before Turner).

Nor is there any conflict regarding the Florida Supreme Court’s conclusion that

the impeachment information was not suppressed. Both federal circuits courts and

state supreme courts have held that the prosecution has no obligation under Brady

to disclose a witness’ own expectations of receiving a benefit from his testimony. State

v. Absolu, 13 N.W.3d 764, 778 (S.D. 2024) (explaining that a witness “might hope for,

or even expect, favorable treatment in exchange” for their testimony “but that hope

alone does not implicate Brady” citing Moore-El v. Luebbers, 446 F.3d 890, 900 (8th

Cir. 2006)); Moore-El v. Luebbers, 446 F.3d 890, 900 (8th Cir. 2006) (stating “a

nebulous expectation of help from the State is not Brady material”); Knox v. Johnson,

224 F.3d 470, 482 (5th Cir. 2000) (stating that a “nebulous expectation of help from

the state is not Brady material”).

Because the question involves a threshold issue as well as a state law aspect

and does not present any conflict with this Court or the other appellate courts, this

Court should deny review of the question.

14

ISSUE II

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

Supreme Court holding the claim of new discovered evidence of

mitigation of neurodevelopmental effects due to Agent Orange was

untimely and meritless as a matter of state law?

Petitioner Wainwright seeks review of the Florida Supreme Court’s decision

affirming the state postconviction court’s summary denial of his claim of newly

discovered evidence of mitigation. Pet.at 23. Wainwright raised a claim of newly

discovered evidence of mitigation of neurodevelopmental effects due to his father’s

exposure to Agent Orange during the Vietnam War, relying mainly on a 2028 study

of Vietnamese children. The issue of the timeliness of a claim of newly discovered

evidence of mitigation, filed in state court, pursuant to a state rule of court, raising a

state law claim is solely a matter of state law. Indeed, the entire concept of newly

discovered evidence of mitigation is a state law concept, not a federal constitutional

matter. This Court does not review matters of state law. Alternatively, there is no

conflict between this Court and the Florida Supreme Court’s decision. Federal courts

do not even recognize the concept of newly discovered evidence of mitigation,

discovered years after the sentence was final, as a basis for granting a new penalty

phase. There is also no conflict with either the federal circuit courts or the state courts

of last resort regarding the timeliness of a claim of newly discovered evidence of

mitigation as a federal constitutional matter. Because the question involves two

matters of state law and there is no conflict with this Court or the other appellate

courts, this Court should deny review of this question.

15

The Florida Supreme Court’s decision

The Florida Supreme Court affirmed the state postconviction court’s summary

denial of the claim of newly discovered evidence of mitigation regarding Agent

Orange. Wainwright, 2025 WL 1561151, at *6-*7, The Court explained that under

state law for a claim of newly discovered evidence to be considered timely, the claim

“must be filed within one year of the date on which the claim became discoverable

through due diligence.” Jd. at *6 (citing Dillbeck v. State, 304 So.3d 286, 288 (Fla.

2020); Jimenez v. State, 997 So.2d 1056, 1064 (Fla. 2008)); Fla. R. Crim. P.

3.851(e)(2)).

The Florida Supreme Court agreed with the lower court that the mitigation

was “not newly discovered evidence.” Wainwright, 2025 WL 1561151, at *7 (citing

Barwick v. State, 361 So.3d 785, 793 (Fla. 2023)). The Court explained that the claim

was untimely because the expert report cited studies from 1996 and 2001 and relied

“in large part on a study from 2023,” which under their precedent, was “insufficient

to support a newly discovered evidence claim.” Id. at *7 (citing Sliney v. State, 362

So.3d 186, 189 (Fla. 2023), cert. denied, 144 S. Ct. 501 (2023)).

Alternatively, on the merits, the Court concluded that a causal explanation for

Wainwright’s issues and behaviors was unlikely to result in a life sentence at a new

penalty phase. Wainwright, 2025 WL 1561151, at *7 (citing Hutchinson v. State, 2025

WL 1155717, at *3 (Fla. Apr. 21, 2025), cert. denied, 2025 WL 1261215 (U.S. May 1,

2025)). The new mitigation was unlikely to result in a life sentence, the Florida

Supreme Court concluded, due to the six statutory aggravators which included “three

16

of the most serious and weighty aggravators in the capital sentencing scheme.” Jd. at

*7. The Florida Supreme Court affirmed the postconviction court's summary denial

of the newly discovered evidence of mitigation claim.

Matters of state law

The sufficiency and timeliness of a claim of newly discovered evidence of

mitigation is solely a matter of state law. The Florida Supreme Court's decision

regarding the sufficiency of the claim was based exclusively on their own caselaw and

a Florida rule of court governing this state law claim. Wainwright, 2025 WL 1561151,

at *6 (citing Dillbeck, 304 So.3d at 288; Jimenez, 997 So.2d at 1064; Fla. R. Crim. P.

3.851(e)(2)). Indeed, the entire concept of newly discovered evidence of mitigation

under Jones v. State, 709 So. 2d 512, 521 (Fla. 1998), is also solely a matter of state

law.

Both the timeliness of a claim of newly discovered evidence of mitigation and

the entire concept of newly discovered evidence of mitigation are “adequate and

independent state law grounds,” precluding this Court’s review. This Court has

explained that if “the state court decision indicates clearly and expressly that it is

alternatively based on bona fide separate, adequate, and independent grounds, we,

of course, will not undertake to review the decision.” Michigan v. Long, 463 U.S. 1032,

1041 (1983). This Court's jurisdiction “fails” if the non-federal ground is independent

and adequate to support the judgment. Long, 463 U.S. at 1038, n.4 (quoting Fox Film

Corp. v. Muller, 296 U.S. 207, 210 (1935)). A decision “is independent only when it

does not depend on a federal holding" and "is not intertwined with questions of federal

17

law.” Glossip v. Oklahoma, 145 S. Ct 612, 624 (Feb. 25, 2025). The Florida Supreme

Court’s analysis regarding the timeliness of the claim mentioned only state law; it

was not intertwined with federal law in any manner. “In the context of direct review

of a state court judgment, the independent and adequate state ground doctrine is

jurisdictional.” Id. at 624 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

There is no federal question presented in the petition and therefore, this Court lacks

jurisdiction.

No equivalent constitutional concept

Federal courts do not recognize the concept of newly discovered evidence of

mitigation as a basis for ordering a new penalty phase. There simply is no

constitutional equivalent to the state law concept of newly discovered evidence of

mitigation. There is no precedent from this Court requiring a new sentencing

proceeding based on new mitigation discovered years after the sentence was final.

Wainwright cites no federal case entertaining such a concept in a capital case as a

matter of federal constitutional law, much less granting the relief of a new penalty

phase based on such a claim.

No conflict with this Court

There is no conflict between this Court and the Florida Supreme Court's

decision in this case. Sup. Ct. R. 10(c) (listing conflict with this Court as a

consideration in the decision to grant review).

There is no conflict between this Court’s jurisprudence and the Florida

Supreme Court's decision finding the claim of newly discovered evidence of mitigation

18

to be untimely and meritless. This Court does not recognize the concept of newly

discovered evidence of mitigation, discovered years after the sentence is final, as a

basis for ordering a new penalty phase, much less dictate time requirements

regarding such a claim. Petitioner cites to no case from this Court discussing newly

discovered evidence of mitigation discovered for the first time at the postconviction

stage, as a constitutional matter and certainly does not cite a case from this Court

holding a state court requiring threshold showings regarding such a claim violates

some provision of the U.S. Constitution.

Wainwright quotes from a smorgasbord of Kighth Amendment cases and

asserts that his execution would be “disproportionate, excessive and cruel as applied

to his individual circumstances.” Pet. at 25-26. This seems to be an argument that

this Court should require proportionality review of capital cases as a matter of Eighth

Amendment law. That would, of course, would require this Court to overrule its

decades-old precedent of Pulley v. Harris, 465 U.S. 37 (1984). This Court in Pulley

stated that there was “no basis in our cases for holding that comparative

proportionality review by an appellate court is required in every case in which the

death penalty is imposed,” Id. at 50. This Court explained that such a holding would

“effectively overrule” Jurek v. Texas, 428 U.S. 262 (1976), and would “substantially

depart” from both Gregg v. Georgia, 428 U.S. 153, 187 (1976), and Proffitt v. Florida,

428 U.S. 242 (1976). Id. at 51. The petition is implicitly advocating that this Court

overrule both Pulley and Jurek but without even acknowledging either case. A

petition raising a question that refuses to acknowledge this Court’s existing precedent

19

regarding the question should be denied on that basis alone.

Any reliance on Porter v. McCollum, 558 U.S. 30 (2009), is misplaced. Pet. at

26, 29. Porter was a Sixth Amendment right to the effective assistance of counsel case,

not an Eighth Amendment proportionality case. Porter does not even cite Pulley,

much less overrule it. Porter does not support an assertion that the Eighth

Amendment requires proportionality review.

There is no conflict between this Court and the Florida Supreme Court's

decision finding the claim of newly discovered evidence of mitigation to be untimely,

insufficient, and meritless as a matter of state law.

No conflict with the federal appellate courts or state supreme courts

There is also no conflict with either the federal circuit courts or the state courts

of last resort and the Florida Supreme Court's decision. As this Court has observed,

a principal purpose for certiorari jurisdiction “is to resolve conflicts among the United

States courts of appeals and state courts concerning the meaning of provisions of

federal law.” Braxton v. United Siates, 500 U.S. 344, 347 (1991); see also Sup. Ct. R.

10(b) (listing conflict among federal appellate courts and state supreme courts as a

consideration in the decision to grant review). Issues that have not divided courts or

are not important questions of federal law do not merit this Court's attention.

Rockford Life Ins. Co. v. Ill. Dep't of Revenue, 482 U.S. 182, 184, n.3 (1987).

There is no identified conflict between the Florida Supreme Court's decision in

this case and any decision of any federal circuit court of appeal. Wainwright cites no

decision from any federal circuit court even addressing the concept of newly

20

discovered mitigation, much less a decision holding that some provision of the federal

constitution mandates that states grant new penalty phases, based on new evidence

of mitigation, discovered years after the sentence was final. There is no conflict

between federal circuit courts and the Florida Supreme Court's decision.

There is also no identified conflict between any decision of any other state court

of last resort and the Florida Supreme Court's decision. Petitioner cites no decision

from any state supreme court addressing the concept of new mitigation as a federal

constitutional issue. While other states, like Florida, permit claims of newly

discovered evidence of mitigation to be raised, they do so as a matter of state law, not

as a matter of Eighth Amendment law. See, e.g. Matter of Frazier, 558 P.3d 451

(Wash. 2024) (citing RCW 10.73.100(1)). There is no conflict between the other state

supreme courts and the Florida Supreme Court’s decision.

The entire concept of newly discovered evidence of mitigation is purely a

matter of state law and the timeliness and sufficiency of such a claim is also matters

of state law. Because the question is a matter of state law over which there is no

conflict with this Court or among lower courts, review of the question should be

denied.

ISSUE III

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

Supreme Court holding the Eighth Amendment issue involving new

mitigation was “without merit”?

Petitioner Wainwright seeks review of the Florida Supreme Court's decision

regarding his claim of newly discovered evidence of mitigation as a matter of Eighth

Amendment law. Pet. at 30. He argues The Florida Supreme Court found the Eighth

21

Amendment claim was without merit. There is no conflict between this Court’s

jurisprudence and the Florida Supreme Court’s decision in this case. There is no

constitutional right to present new mitigation discovered years after the sentence is

final in postconviction proceedings. The Eighth Amendment right to present

mitigation is limited to trial and does not extend into the postconviction stage, much

less into the successive postconviction stage. There is no conflict with the Court’s

Eighth Amendment jurisprudence. There is also no conflict with the federal circuit

courts because federal courts do not recognize the concept of newly discovered

evidence of mitigation, discovered years after the sentence was final, as a federal

constitutional claim. Nor is there any conflict with the state courts of last resort.

Because the question is solely a matter of state law which does not present any

conflict with this Court or other appellate courts, this Court should deny review of

the question.

The Florida Supreme Court’s decision

The Florida Supreme Court found the Eighth Amendment claim was

“inadequately briefed and without merit.” Wainwright, 2025 WL 1561151, at *7,n.16,

The Florida Supreme Court relied on its prior decision in Hutchinson v. State, 2025

WL 1198037, at *5 (Fla. Apr. 25, 2025) (noting that despite Hutchinson’s “invocation

of vague constitutional principles, Hutchinson has not cited any authority holding

that the Eighth Amendment provides an absolute right to present mitigating

evidence at any time, regardless of its availability, regardless of the defendant's

diligence in locating and presenting it, and regardless of its strength or force.”), cert.

22

denied, Hutchinson v. Florida, 2025 WL 1261217 (U.S. May 1, 2025) (No. 24-7087).

Threshold issues

First, this exact issue regarding whether execution claims may be denied on

procedural grounds was not raised in the state postconviction court or in the Florida

Supreme Court. While Wainwright raised an Eighth Amendment claim, he did not

raise this exact issue. Petitioners may not raise questions for the first time in this

Court because this Court “is one of final review, not of first view.” Cutter v. Wilkinson,

544 U.S. 709, 718 n.7 (2005); Adarand Constructors, Inc. v. Mineta, 534 U.S. 1038, 110

(2001). Ordinarily, this Court does “not decide in the first instance issues not decided

below.” City of Austin, Texas v. Reagan Nat'l Advert. Of Austin, LLC, 596 U.S. 61, 76

(2022) (quoting Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012)). This

Court does not normally address arguments that were “neither pressed nor passed

upon below.” Babcock v. Kijakazi, 595 U.S. 77, 82, n.3 (2022)). This Court should not

grant review of a question that was not raised below.

Second, any decision from this Court regarding whether the Eighth

Amendment claim was adequately briefed would not matter to the ultimate outcome

of this case. This Court does not grant review of questions that are theoretical or

academic in the sense that the question presented does not effect the actual outcome

of the case, Rice v. Sioux City Mem'l Park Cemetery, 349 U.S. 70, 74 (1955); Herb v.

Pitcarn, 324 U.S. 117, 125-26 (1945) (explaining that if the same judgment would be

rendered by the state court, this Court’s review would be nothing more than an

advisory opinion). The Florida Supreme Court’s alternative holding was that the

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