Petition of Mark Todd Minor for rehearing submitted. — Mark Todd Minor, Petitioner v. Florida

No. 24-7489

IN THE

Supreme Court of the United States

_______________________

MARK TODD MINOR,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_______________________

On Petition for a Writ of Certiorari to the

Fourth District Court of Appeal of Florida

_______________________

PETITION FOR REHEARING

_______________________

GARY LEE CALDWELL

OFFICE OF THE PUBLIC DEFENDER

FIFTEENTH JUDICIAL CIRCUIT

421 Third Street

West Palm Beach, FL 33401

(561) 355-7600

gcaldwel@pd15.org

DEVI M. RAO

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3490

devi.rao@macarthurjustice.org

Counsel for Petitioner

i

TABLE OF CONTENTS

Page(s)

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

INTRODUCTION ........................................................ 1

REASONS TO GRANT REHEARING ....................... 2

CONCLUSION .......................................................... 12

CERTIFICATE OF COUNSEL

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Achilli v. United States,

353 U.S. 909 (1957) ................................................ 7

Addison v. New Hampshire,

565 U.S. 1174 (2012) .............................................. 5

Bowles v. Russell,

551 U.S. 205 (2007) ................................................ 8

Campbell v. United States,

543 U.S. 1116 (2005) .............................................. 4

Carbajal-Martinez v. United States,

543 U.S. 1116 (2005) .............................................. 4

Carlisle v. United States,

517 U.S. 416 (1996) ................................................ 8

Casseus v. Florida,

146 S.Ct. 1610 (Feb. 23, 2026) ............................. 10

Clemons v. Florida,

146 S.Ct. 1793 (March 9, 2026) ........................... 11

Criston v. United States,

543 U.S. 1117 (2005) .............................................. 4

Edwards v. Vannoy,

593 U.S. 255 (2021) ................................................ 7

Epps v. United States,

543 U.S. 1116 (2005) .............................................. 4

iii

Florida v. Rodriguez,

461 U.S. 940 (1983) ................................................ 5

Foster v. Texas,

563 U.S. 931 (2011) .............................................. 10

Gondeck v. Pan Am. World Airways, Inc.,

382 U.S. 25 (1965) (per curiam) ............................ 8

Gray v. Florida,

No. 25-7224, 2026 WL 1377017

(U.S. May 18, 2026).............................................. 11

Hausch v. Florida,

No. 25-7202, 2026 WL 1377144

(U.S. May 18, 2026).............................................. 11

Hawkins v. United States,

543 U.S. 1097 (2005) .............................................. 4

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991) (op. of Souter, J.) ................... 9

Jimenez-Velasco v. United States,

543 U.S. 1116 (2005) .............................................. 4

Kent Recycling Servs., LLC v. Army Corps of Eng’rs,

578 U.S. 1019 (2016) .......................................... 1, 5

Lauersen v. United States,

543 U.S. 1097 (2005) .............................................. 4

Lawrence on Behalf of Lawrence v. Chater,

516 U.S. 163 (1996) (per curiam) .......................... 6

Maples v. Thomas,

562 U.S. 1286 (2011) ............................................ 10

iv

McDonnell v. United States,

543 U.S. 1116 (2005) .............................................. 4

Melson v. Allen,

561 U.S. 1001 (2010) .......................................... 1, 5

Mitchell v. United States,

526 U.S. 314 (1999) ................................................ 9

Moehle v. Florida,

146 S.Ct. 195 (2025) (Oct. 6, 2026) ...................... 11

Moehle v. Florida,

146 S.Ct. 1443 (Jan. 12, 2026) ............................. 11

Newsome v. United States,

543 U.S. 1116 (2005) .............................................. 4

Parada v. United States,

146 S.Ct. 1477 (January 12, 2026) ...................... 10

Pearson v. United States,

543 U.S. 1116 (2005) .............................................. 4

Perez Rojas v. Florida,

146 S.Ct. 1584 (February 23, 2026) .................... 10

Perry v. New Hampshire,

563 U.S. 1020 (2011) .............................................. 5

Perry v. New Hampshire,

565 U.S. 228 (2012) ................................................ 5

Ramos v. Louisiana,

590 U.S. 83 (2020) .................................................. 3

Rideout v. United States,

543 U.S. 1116 (2005) .............................................. 4

v

Salas v. United States,

543 U.S. 1116 (2005) .............................................. 4

Smith v. Florida,

567 U.S. 954 (2012) ................................................ 5

Soto v. United States,

543 U.S. 1117 (2005) .......................................... 1, 4

United States v. Booker,

542 U.S. 956 (2004) ................................................ 4

United States v. Booker,

543 U.S. 220 (2005) ................................................ 4

United States v. Ohio Power Co.,

353 U.S. 98 (1957) (per curiam) ...... 2, 6, 7, 8, 9, 10

Van Alstyne v. United States,

543 U.S. 1116 (2005) .............................................. 4

Williams v. Florida,

399 U.S. 78 (1970) .......................................... 1, 3, 7

Statutes

Florida Statutes § 913.10 ............................................ 8

Other Authorities

S. Ct. R. 44 ................................................................. 10

S. Ct. R. 44.1 ................................................................ 8

S. Ct. R. 44.2 ............................................................ 1, 2

STEPHEN M. SHAPIRO ET AL.,

SUPREME COURT PRACTICE (11th ed. 2019) ... 1, 3, 6

INTRODUCTION

Rehearing of the denial of certiorari is appropriate

in situations involving “intervening circumstances of

a substantial or controlling effect or . . . other substantial grounds not previously presented.” S. Ct. R. 44.2.

One such circumstance warranting rehearing is that

in which the Court “has granted review of a related

issue in another case.” STEPHEN M. SHAPIRO ET AL.,

SUPREME COURT PRACTICE, Ch. 15.6.(b) (11th ed.

2019) (ebook) (collecting cases); see also, e.g., Kent Recycling Servs., LLC v. Army Corps of Eng’rs, 578 U.S.

1019 (2016); Melson v. Allen, 561 U.S. 1001 (2010);

Soto v. United States, 543 U.S. 1117 (2005).

This is just such a case. Petitioner was convicted of

a number of felony counts by a Florida jury, and sentenced to over 53 years in prison. But that jury only

had 6 members. As articulated in his petition for certiorari, one question presented by the case was “[d]oes

a state court defendant charged with a felony have the

right to trial by a twelve-member jury under the Sixth

Amendment?” Minor Pet. at i. The argument section

was titled “The reasoning of Williams v. Florida [399

U.S. 78 (1970)] has been rejected, and the case should

be overruled.” Id. at 26 (capitalization altered). In Williams, of course, this Court had held that the Sixth

Amendment did not require a jury of 12 members in

serious criminal cases.

On June 15, 2026—less than four months after this

Court denied the petition for a writ of certiorari in this

case—this Court granted certiorari in Kian v. Florida,

No. 25-6623, to address the same question. Indeed,

Mr. Kian cited Petitioner’s case both in framing his

question presented at the start of his petition and in

(1)

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his request for relief at the petition’s conclusion. He

noted, at the outset, that his case posed “the same

question presented” as in “Minor v. Florida, No. 247489.” Kian Pet. at ii. And he suggested that his petition “should be granted or held pending the disposition of . . . Minor v. Florida, No. 24-7489.” Id. at 27.

These two cases—filed in the same term, presenting the same question, arising out of the same Florida

practice, relying on the same authorities, and represented by the same Florida Public Defender’s Office—

should be resolved together. Although the ordinary

25-day period for filing a petition for rehearing has

elapsed, this Court retains the authority to entertain

petitions for rehearing where the interests of justice

so require. See United States v. Ohio Power Co., 353

U.S. 98, 99 (1957) (per curiam). And justice requires

rehearing here because the circumstances warranting

rehearing did not develop until after the 25-day rehearing period had expired. Without the application

of this Court’s rehearing grace, Petitioner will spend

the rest of his life in prison, convicted by a constitutionally-infirm half-jury, which issued an odd split decision. This Court should grant rehearing, vacate the

order denying certiorari, and hold this case pending

resolution of Kian on the merits.

REASONS TO GRANT REHEARING

1. The grant of certiorari in Kian is precisely the

type of “intervening circumstance[] of a substantial or

controlling effect” that is contemplated by the Rules.

See S. Ct. R. 44.2. This Court has a practice of granting rehearing of orders denying certiorari when it sub-

3

sequently grants certiorari on a “related issue in another case.” Shapiro, supra at Ch. 15.6.(b) (collecting

cases).

The issue that the Court agreed to resolve in Kian

is more than “related” to the issue in Petitioner’s case;

the two are identical. Both petitions asked this Court

to overrule its decision in Williams v. Florida, 399

U.S. 78 (1970)—using identical language. Compare

Minor Pet. at 26 (“The reasoning of Williams v. Florida has been rejected, and the case should be overruled.”) (capitalization altered) with Kian Pet. at 11

(“The reasoning of Williams v. Florida has been rejected, and the case should be overruled.”) (capitalization altered). That should not be surprising—the petitions were filed by the same Florida Public Defender’s

Office, which has been routinely raising this issue for

years.

In urging the Court to overrule Williams, the parties pressed the same arguments and relied on the

same authorities. For example, Petitioner argued that

Williams erred in rejecting evidence regarding the

history and tradition of 12-person juries. See Minor

Pet. at 27-29. Mr. Kian did the same. See Kian Pet. at

11-12. Petitioner argued that Williams was already

foreclosed by precedent when it was decided. See Minor Pet. at 26-28. Mr. Kian did the same. See Kian Pet.

at 11-13. Petitioner argued that Ramos v. Louisiana,

590 U.S. 83 (2020), is impossible to reconcile with Williams. See Minor Pet. at 30-31. Mr. Kian did the same.

See Kian Pet. at 14-16. And Petitioner argued that

empirical evidence has undermined Williams’s assumption that smaller juries could serve the same

function. See Minor Pet. at 31-34. Mr. Kian did the

same. See Kian Pet. at 17-20.

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2. These two cases—filed in the same term, presenting the same question, and making the same arguments—should be resolved together. The Court has

repeatedly granted rehearing in similar circumstances.

For example, in 2005, this Court granted 14 rehearing petitions in cases raising the same issue that

the Court ultimately resolved in United States v.

Booker, 543 U.S. 220 (2005). 1 Those petitioners were

federal criminal defendants who—like the petitioner

in Booker—had raised constitutional challenges to judicial fact-finding at sentencing. The Court had initially denied their petitions for certiorari. However,

shortly after those denials, the Court granted certiorari in Booker to address the same question. See

United States v. Booker, 542 U.S. 956 (2004) (granting

certiorari). The disappointed petitioners filed rehearing petitions. And after the Court clarified the law in

Booker, it granted the rehearing petitions and

1 See Hawkins v. United States, 543 U.S. 1097 (2005); Lauersen

v. United States, 543 U.S. 1097 (2005); Campbell v. United

States, 543 U.S. 1116 (2005); Carbajal-Martinez v. United States,

543 U.S. 1116 (2005); Epps v. United States, 543 U.S. 1116

(2005); Jimenez-Velasco v. United States, 543 U.S. 1116 (2005);

McDonnell v. United States, 543 U.S. 1116 (2005); Newsome v.

United States, 543 U.S. 1116 (2005); Pearson v. United States,

543 U.S. 1116 (2005); Rideout v. United States, 543 U.S. 1116

(2005); Salas v. United States, 543 U.S. 1116 (2005); Van Alstyne

v. United States, 543 U.S. 1116 (2005); Criston v. United States,

543 U.S. 1117 (2005); Soto v. United States, 543 U.S. 1117 (2005).

5

granted, vacated, and remanded their cases for further consideration in light of Booker. 2

Even when this Court has ultimately denied rehearing petitions based on later-granted cases raising

the same issue, the Court has tied that denial to the

ultimate disposition of the case that it granted. Take,

for example, the Court’s treatment of the rehearing

petition in Addison v. New Hampshire, 565 U.S. 1174

(2012). The petition for certiorari in Addison had

raised an issue related to eyewitness identification,

but that petition was denied. Shortly thereafter, this

Court granted certiorari in Perry v. New Hampshire,

563 U.S. 1020 (2011), which also raised an issue related to eyewitness identification. The petitioner in

Addison sought rehearing, and the Court held that petition for several months while Perry was heard on the

merits, denying the Addison rehearing petition only

after the Court resolved Perry in a manner that would

not aid Addison. See Perry v. New Hampshire, 565

U.S. 228 (2012) (resolving the case in favor of the

state). 3

As these cases illustrate, rehearing of orders denying certiorari is appropriate when the Court subsequently grants certiorari on a related issue in another

See also, e.g., Kent Recycling Servs., LLC v. Army Corps of

Eng’rs, 578 U.S. 1019 (2016) (granting rehearing of denial of certiorari and GVR’ing following a grant of certiorari in a case raising a related issue); Melson v. Allen, 561 U.S. 1001 (2010) (same);

Florida v. Rodriguez, 461 U.S. 940 (1983) (same).

2

3 See also, e.g., Smith v. Florida, 567 U.S. 954 (2012) (denying

rehearing only after holding the petition for several months as

the Court considered a case raising a related issue).

6

case. The Court should follow that rule here. Petitioner here pressed the same question on which the

Court ultimately granted certiorari in Kian. And this

Court is likely to provide critical guidance on that

question when it resolves Kian. For that reason, rehearing is appropriate.

3. Rehearing is also appropriate here because it

would advance “the interests of justice” by ensuring

“uniformity in the application of the principles” that

will be announced and applied in Kian, such that “this

case might be disposed of consistently.” Ohio Power

Co., 353 U.S. at 99.

Indeed, where cases on this Court’s certiorari

docket raise the same issue in the same term, the

Court “will typically” hold them on its docket and resolve the cases together. See Shapiro, supra at

Ch.6.31.(e). The Court follows that practice so that

cases that raise the same issue in the same term may

equally benefit from the “intervening development[]”

of this Court’s “own decisions,” through an order

granting certiorari, vacating the judgment below, and

remanding the case so that “the court below” can “fully

consider” the intervening decision. Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163, 166-68

(1996) (per curiam). A grant of rehearing of the denial

of certiorari in this case would allow the Court to follow that practice here.

Reconsideration would also avoid piecemeal litigation and the need for further collateral proceedings after Kian is resolved. Granting rehearing and holding

the case is more efficient than requiring Petitioner to

pursue post-conviction remedies and potentially return to this Court again on the same question. See

7

Ohio Power Co., 353 U.S. at 107 (Harlan, J., dissenting) (explaining that rehearing of a denial of certiorari

is appropriate where rehearing “serve[s] to avoid . . .

delay and expense” in “a criminal case presenting a

question that could again be raised in proceedings below and then brought to this Court in due course on

certiorari”) (citing Achilli v. United States, 352 U.S.

1023 (1957); Achilli v. United States, 353 U.S. 909

(1957)).

Moreover, even if this Court resolves Kian in favor

of Mr. Kian, post-conviction relief for Petitioner is not

guaranteed. Petitioner sought certiorari on direct review of his criminal conviction and sentence. The denial of certiorari made that conviction and sentence

final. And that finality will complicate any further relief that he seeks. See, e.g., Edwards v. Vannoy, 593

U.S. 255, 259 (2021) (holding Ramos’s jury-unanimity

rule does not apply retroactively on federal collateral

review). Collateral review is complex, and there are

many barriers to relief. A grant of rehearing would ensure that Petitioner receives the benefit of a new rule

announced in Kian. To deny him the opportunity for

reconsideration would be to let the calendar, rather

than the Constitution, determine his fate.

This would be especially unfair given the connection between—and overlapping timelines of—these

cases. The Court requested a response in Kian before

denying the petition in Minor. Florida’s response in

Kian, when ultimately filed, explicitly tied these cases

together—from its counterstatement of the question

presented to its headline reason for denying the petition. See Kian BIO at i (“As in Minor…”); 3 (“The

Court should, as it has done in several recent cases,

decline the invitation to revisit Willliams. See Minor

8

v. Florida…”). And no wonder—they arise from the

same Florida jury practice authorized under the same

state law and involve the same counsel on both sides.

See Florida Statutes § 913.10 (providing that “[t]welve

persons shall constitute a jury to try all capital cases,

and six persons shall constitute a jury to try all other

criminal cases”).

4. Although the ordinary 25-day period for filing a

petition for rehearing has elapsed, see S. Ct. R. 44.1,

this Court can still grant the petition. Because that

time limit is a “procedural rule[] adopted by the Court

for the orderly transaction of its business,” it is “not

jurisdictional” and “can be relaxed by the Court in the

exercise of its discretion.” Bowles v. Russell, 551 U.S.

205, 211-12 (2007) (quoting Schacht v. United States,

398 U.S. 58, 64 (1970)).

This Court therefore retains the authority to entertain untimely petitions for rehearing where “the interests of justice” so require. See, e.g., Ohio Power Co.,

353 U.S. at 99. And “the interest in the evenhanded

administration of justice” can “outweigh[] the interest

in finality” served by that 25-day period where—without rehearing—like cases will not be disposed of in

like ways. Carlisle v. United States, 517 U.S. 416, 450

(1996) (Stevens, J., dissenting); see also Gondeck v.

Pan Am. World Airways, Inc., 382 U.S. 25, 27-28

(1965) (per curiam) (granting motion for leave to file

untimely rehearing petition more than three years after denial of certiorari because intervening decisions

left petitioner’s case “stand[ing] completely alone”).

In United States v. Ohio Power Co., 353 U.S. 98

(1957) (per curiam), for instance, this Court sua

sponte vacated its own order denying a timely petition

9

for rehearing—nearly a year and a half after the original denial of certiorari—so that the case could be “disposed of consistently” with other cases raising the

same issue. Id. at 98. Even the dissent in Ohio Power

Co. agreed that “the Court’s inherent power over its

judgments” included the authority to take action that

“would otherwise be out of time under the Rules.” Id.

at 104 (Harlan, J., dissenting). And the dissent’s central objection was that the majority had exercised this

authority in a civil case, not a criminal one. Compare,

e.g., id. at 99 (majority insisting that its power to

grant untimely rehearing petitions has been “exercised . . . both in civil and criminal cases”); with, e.g.,

id. at 105-06 (dissent collecting cases in which the

Court has granted untimely rehearing petitions, noting that most were criminal cases, and opining that

“the granting of untimely relief in criminal cases presents considerations not found in civil cases”).

Indeed, if there is any distinction to be drawn, outof-time rehearing should be more readily available in

criminal cases like this one than in civil cases like

Ohio Power Co., because “the stakes are higher in

criminal cases, where liberty or even life may be at

stake.” Mitchell v. United States, 526 U.S. 314, 328

(1999) (internal quotation marks omitted); see also

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

541 (1991) (op. of Souter, J.) (discussing the finality

interests in civil and criminal cases).

More recently, in 2011, this Court permitted a capital defendant to file an untimely petition for rehearing three months after the original denial of certiorari.

The petitioner in that case had filed a petition for certiorari in January 2011, asking the Court to consider

10

issues relating to the ineffectiveness of state post-conviction counsel. His petition for certiorari was denied

that same month. However, a few months later, in

March 2011, the Court granted a petition for certiorari in a case raising a related issue. See Maples v.

Thomas, 562 U.S. 1286 (2011). In April 2011, well after the rehearing period had expired, Foster filed an

application for a stay of execution, and a motion for

leave to file a petition for rehearing. This Court

granted both requests. See Foster v. Texas, 563 U.S.

931 (2011). After considering the petition for rehearing and calling for a response, the Court ultimately

denied rehearing in May of 2011. But, as illustrated

by the Court’s order granting the motion for leave to

file out of time, timeliness did not pose a barrier to

relief.

This case presents circumstances that justify the

exercise of this Court’s “inherent power over its judgments” to consider an untimely petition. Ohio Power

Co., 353 U.S. at 104 (Harlan, J., dissenting). Petitioner could not have anticipated the “intervening circumstance[]” of a grant of certiorari in the time that is

contemplated by the Rules. See S. Ct. R. 44. The Minor

petition was rescheduled a number of times in the

September 2025 to February 2026 timeframe. The

Court ultimately denying certiorari in this case on

February 23, 2026 sent a strong message. What is

more, this Court took other actions which seemed to

confirm its decision not to hear the 12-person jury issue this term, denying certiorari in a number of other

cases presenting the same question. See Parada v.

United States, 146 S.Ct. 1477 (cert denied January 12,

2026); Casseus v. Florida, 146 S.Ct. 1610 (cert denied

Feb. 23, 2026); Perez Rojas v. Florida, 146 S.Ct. 1584

11

(cert denied February 23, 2026); Clemons v. Florida,

146 S.Ct. 1793 (cert denied March 9, 2026); Gray v.

Florida, No. 25-7224, 2026 WL 1377017 (U.S. May 18,

2026) (cert denied); Hausch v. Florida, No. 25-7202,

2026 WL 1377144 (U.S. May 18, 2026) (cert denied).

The Court even denied rehearing in a case where the

petitioner had—like Mr. Kian—asked to be held for

Parada and Minor, see Moehle v. Florida, 146 S.Ct.

195 (2025) (cert denied Oct. 6, 2026), rehearing denied

Moehle v. Florida, 146 S.Ct. 1443 (Jan. 12, 2026).

Given all this, when the 25-day period for rehearing

expired (on March 20), Petitioner had no way of anticipating that the Court would ultimately grant certiorari in Kian on the same question several months

later.

Without a grant of rehearing, Petitioner will spend

the rest of his life in prison, convicted by a jury of 6

that returned an odd split verdict. After five hours of

deliberation, the jury found Petitioner guilty of counts

related to items found on a desktop computer, but not

guilty of counts related to items found on a phone.

This unusual decision means that this mini-jury did

not believe Petitioner’s defense relating to the computer: that the items could have been downloaded by

any of the several adults living at the house, as well

as the drug-addicted friends of Petitioner’s daughter.

That a man’s fate in such a contested case would be

decided by anything less than a common-law jury of

twelve would have astonished the Founders. And one

presumes they would have expected Kian and Petitioner—similarly-situated in so many ways—to be

protected equally by the Constiution’s guarantees.

5. As the original certiorari-stage briefing demonstrated, there are no barriers to review in this case.

12

Petitioner’s conviction for serious offenses places him

squarely within the scope of the Sixth Amendment’s

protection. And this case comes to the Court on direct

appeal from a final judgment, unclouded by the procedural hurdles associated with postconviction review.

See Minor Pet. at 16. During his criminal proceedings,

Petitioner preserved his Sixth Amendment objection

at every stage, see id. at 12-13, 16, which Florida did

not contest in their brief in opposition, Minor BIO at

26. Indeed, Florida’s only vehicle argument was one of

harmless error, which Petitioner roundly refuted in

his reply in support of certiorari. Minor Cert. Reply at

10-12. Notably, in Kian, Florida asserted this same alleged vehicle issue nearly word-for-word.

Even if the Court is not prepared to grant rehearing of the denial of certiorari at this time, it should at

minimum hold this petition pending the resolution of

Kian and thereafter enter an appropriate order. Holding the petition would preserve the Court’s ability to

act consistently once Kian is decided, without prejudice to either party.

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that the Court grant rehearing of its order

denying the petition for certiorari, vacate that order,

and hold this case in abeyance pending the resolution

of Kian v. Florida (No. 25-6623).

13

Respectfully submitted,

DEVI M. RAO

Counsel of Record

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

501 H Street NE, Suite 275

Washington, DC 20002

(202) 869-3490

devi.rao@macarthurjustice.org

GARY LEE CALDWELL

OFFICE OF THE PUBLIC DEFENDER

FIFTEENTH JUDICIAL CIRCUIT

421 Third Street

West Palm Beach, FL 33401

(561) 355-7600

gcaldwel@pd15.org

Counsel for Petitioner

AUGUST 2026

CERTIFICATE OF COUNSEL

I hereby certify that this petition for rehearing is

presented in good faith and not for delay, and that is

it restricted to the grounds specified in Supreme

Court Rule 44.2.

/s/ Devi M. Rao

Devi M. Rao