Opposition Brief — Victor Tony Jones, Petitioner v. Florida, et al.
Supreme Court briefSep 29, 2025
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No. 25-5475
In The
Supreme Court of the United States
VICTOR TONY JONES
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
BRIEF IN OPPOSITION
EXECUTION SCHEDULED FOR SEPTEMBER 30, 2025, AT 6:00 P.M.
JAMES UTHMEIER
Attorney General of Florida
CARLA SUZANNE BECHARD*
Associate Deputy Attorney General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
3507 E. Frontage Rd., Ste. 200
Tampa, Florida 33607
Telephone: (813) 287-7900
Jennifer.Davis@myfloridalegal.com
Capapp@myfloridalegal.com
JENNIFER A. DAVIS
Senior Assistant Attorney General
LESLIE CAMPBELL
SENIOR ASSISTANT ATTORNEY GENERAL
LISA-MARIE LERNER
Senior Assistant Attorney General
COUNSEL FOR RESPONDENT
Capital Case
QUESTIONS PRESENTED
Whether certiorari should be denied because Jones has raised issues not presented
to the Florida Supreme Court and those presented were denied on independent State
law grounds of untimeliness and procedural bar.
I.
Whether this Court should grant review of the Florida Supreme
Court’s rejection of an intellectual disability claim on the basis of
a re-litigation bar where Jones had previously raised this claim
which was rejected on the merits after a full and fair evidentiary
hearing in state court.
II.
The Florida Supreme Court’s rejection of Jones’ mitigation evidence
as time barred presents no conflict with this Court’s precedent or
compelling justification for certioraris review
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................................................................... ii
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES ......................................................................................... iv
OPINION BELOW ......................................................................................................... 1
JURISDICTION............................................................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................ 1
STATEMENT OF THE CASE AND PROCEDURAL HISTORY ................................ 1
REASONS FOR DENYING THE WRIT ....................................................................... 7
I.
Whether this Court should grant review of the Florida Supreme Court’s
rejection of an intellectual disability claim on the basis of a re-litigation bar
where Jones had previously raised this claim which was rejected on the
merits after a full and fair evidentiary hearing in state court………………7
II.
The Florida Supreme Court’s rejection of Jones’ mitigation evidence as time
barred presents no conflict with this Court’s precedent or compelling
justification for certioraris review……………………………………………….31
CONCLUSION............................................................................................................. 37
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Atkins v. Virgina,
536 U.S. 304 (2002) .................................................................................................... 5
Brumfield v. Cain,
576 U.S. 305 (2015) ............................................................................................ 13, 29
Calderon v. Thompson,
523 U.S. 538 (1998) ................................................................................................... 36
Cardinale v. Louisiana,
394 U.S. 437 (1969) ..................................................................................................... 9
Clemons v. Comm’r, Ala. Dep’t of Corr.,
967 F.3d 1231 (11th Cir. 2020) ................................................................................. 26
Commonwealth v. Cox,
651 P.A. 272 (Pa. 2019) ............................................................................................. 28
Cruz v. Arizona,
598 U.S. 17 (2023) ..................................................................................................... 11
Eddings v. Oklahoma,
455 U.S. (1982) .......................................................................................................... 36
Enter. Irrigation Dist. v. Farmers Mut. Canal Co.,
243 U.S. 157 (1917) ................................................................................................... 33
Florida v. Powell,
559 U.S. 50 (2010) ....................................................................................................... 9
Foster v. Chatman,
578 U.S. 488 (2016) ................................................................................................... 33
Fox Film Corp. v. Muller,
296 U.S. 207 (1935) ............................................................................................... 9, 33
Gaskin v. State,
361 So. 3d 300 (Fla. 2023) ........................................................................................ 10
Hall v. Florida,
572 U.S. 701 (2014) .......................................................................................... 7, 8, 11
Harris v. Reed,
489 U.S. 255 (1989) ................................................................................................... 33
Hemphill v. New York,
142 S. Ct. 681 (2022) ................................................................................................... 9
iv
Henyard v. Sec’y, Dept. of Corr.,
543 F.3d 644 (11th Cir. 2008) ................................................................................... 32
House v. Bell,
547 U.S. 518 (2006) ................................................................................................... 12
Hurst v. Florida,
577 U.S. 92 (2016) ...................................................................................................... 7
In re Henry,
757 F.3d 1151 (11th Cir. 2014) ................................................................................. 25
In re Payne,
722 F. App’x 534 (6th Cir. 2018) .............................................................................. 30
Johnson v. Lee,
578 U.S. 605 (2016) ............................................................................................. 32, 33
Jones v. Fla. Dep’t. of Corr.,
568 U.S. 873 (2012) .............................................................................................. 4, 25
Jones v. Hendrix,
599 U.S. 465 (2023) ................................................................................................... 37
Jones v. McNeil,
766 F. Supp. 2d 1323 (S.D. Fla. 2011) ..................................................................... 25
Jones v. McNeil,
776 F. Supp. 2d 1323 (S.D. Fla. 2011) ....................................................................... 4
Jones v. State,
, 135 So. 3d 287 (Fla. 2014) ........................................................................................ 6
Jones v. State,
231 So. 3d 374 (Fla. 2017) .................................................................................... 7, 26
Jones v. State,
241 So. 3d 65 (Fla. 2018) ...................................................................................... 7, 13
Jones v. State,
652 So. 2d 346 (Fla. 1995) .................................................................................. 1, 2, 3
Jones v. State,
855 So. 2d 611 (Fla. 2003) .......................................................................................... 4
Jones v. State,
966 So. 2d 319 (Fla. 2007) .......................................................................... 5, 6, 13, 25
Jones v. State,
2025 2025 WL 2717027 ............................................................................ 2, 11, 26, 33
Kennedy v. Wainwright,
483 So. 2d 424 (Fla. 1986) ........................................................................................ 10
v
Kilgore v. Sec’y, Fla. Dep’t of Corr.,
805 F.3d 1301 (11th Cir. 2015) ................................................................................. 30
Knight v. State,
923 So. 2d 387 (Fla. 2005) ........................................................................................ 11
Lambrix v. Singletary,
520 U.S. 518 (1997) ................................................................................................... 32
Lynch v. Arizona,
578 U.S. 613 (2016) .................................................................................................. 11
McCleskey v. Zant,
499 U.S. 467 (1991) ................................................................................................... 36
McCrae v. Wainwright,
439 So.2d 868 (Fla.1983) ......................................................................................... 10
McNair v. Allen,
515 F.3d 1168 (11th Cir. 2008) ................................................................................. 32
Michigan v. Long,
463 U.S. 1032 (1983) ............................................................................................. 9, 33
Moore v. Texas,
(Moore I), 581 U.S. 1 (2017)............................................................................ 8, 27, 28
Moore v. Texas,
586 U.S. 133 ................................................................................................................ 8
Mullaney v. Wilbur,
421 U.S. 684 (1975) ..................................................................................................... 9
Parks v. State,
319 So. 3d 102 (Fla. 3d DCA 2021) ......................................................................... 12
Payne v. State,
493 S.W.3d 478 (Tenn. 2016).................................................................................... 30
Petetan v. State,
622 S.W.3d 321 ......................................................................................................... 28
Porter v. McCollum,
558 U.S. 30 (2009) ...................................................................................................... 6
Rice v. Sioux City Mem’l Park Cemetery,
349 U.S. 70 (1995) ..................................................................................................... 30
Ring v. Arizona,
536 U.S. 584 (2002) .................................................................................................... 7
Robertson,
520 U.S. 83 (1997) ....................................................................................................... 9
vi
Rogers v. State,
409 So. 3d 1257 (Fla.) ............................................................................................... 32
Sawyer v. Whitley,
505 U.S. 333 (1992) .................................................................................................. 35
Schiro v. Landrigan,
550 U.S. 465 (2007) ................................................................................................... 35
Schlup v. Delo,
513 U.S. 298 (1995) .................................................................................................. 12
Smith v. Sharp,
935 F.3d 1064 (10th Cir. 2019) ................................................................................. 30
State ex rel. Montgomery v. Kemp in & for Cnty. of Maricopa,
249 Ariz. 320, 469 P.3d 457 (2020)............................................................... 28, 29, 31
State v. Jackson,
157 N.E. 3d 240 (Ohio Ct. App. 2020) ...................................................................... 30
State v. Owen,
696 So. 2d 715 (Fla. 1997) ........................................................................................ 12
Steinhorst v. Wainwright,
477 So.2d 537 (Fla.1985) .......................................................................................... 10
Street v. New York,
394 U.S. 576 (1969) ..................................................................................................... 9
Sykes,
433 U.S. 72 (1977) ....................................................................................................... 9
Williams v. Kelley,
858 F.3d 464 (8th Cir. 2017) ..................................................................................... 30
Statutes
28 U.S.C. § 1257 ....................................................................................................... 1, 33
§ 924.051(8), Fla. Stat.................................................................................................. 32
Rules
Florida Rule of Criminal Procedure 3.851 .................................................................. 13
vii
OPINION BELOW
The decision below of the Florida Supreme Court appears as Jones v. State, No.
SC2025–1422.
JURISDICTION
Victor Tony Jones asserts that this Court’s jurisdiction is based upon 28 U.S.C.
§ 1257. The State of Florida agrees that this statute sets out the scope of this Court’s
certiorari jurisdiction. But, because the issues raised were resolved on independent
and adequate state law grounds, this case is inappropriate for the exercise of this
Court’s discretionary jurisdiction. The Florida Supreme Court’s opinion does not
conflict with any decision by this Court, another state court of last resort, or a United
States court of appeals. See Sup. Ct. R. 10(b)-(c).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The State accepts Jones’ statement regarding the constitutional provisions
involved.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Jones is under an active death warrant based on his conviction for two counts
of first-degree murder of Matilda Nestor and Jacob Nestor. Jones v. State, 652 So. 2d
346, 348 (Fla. 1995) (Jones I). Following his conviction for two counts of first-degree
murder and two counts of armed robbery, the jury recommended death for each
victim, the trial court imposed two death sentences and life on each robbery count,
all to run consecutively, and the Florida Supreme Court affirmed. Id. at 348-49. Over
the approximate thirty-five years since the murders, Jones has litigated his direct
1
appeal, six postconviction motions with two evidentiary hearings, and a federal
habeas petition, none of which were successful.
On August 29, 2025, Governor DeSantis signed a death warrant with the
execution set for September 30, 2025. On September 8, 2025, Jones filed a successive
postconviction motion, which was summarily denied. He appealed and the Florida
Supreme Court affirmed the denial of relief. Jones v. State, September 24, 2025 2025
WL 2717027.
Facts of the Crime
On December 19, 1990, the bodies of sixty-six-year-old Matilda Nestor and
sixty-seven-year-old Jacob Nestor were found in their place of business. Jones I, 652
So. 2d at 348. Jones, on his second day working for the Nestors, stabbed Mrs. Nestor
in the back severing her aorta and Mr. Nestor in the heart, killing them. Id. Before
he died, Mr. Nestor was able to remove the knife from his chest, attempt to call for
help, and fire five shots from his .22 caliber automatic pistol striking Jones once in
the forehead Id. After the stabbings, Jones robbed both victims. Id.
The police found Jones slumped over on the couch near Mr. Nestor’s body with
the butt of a .22 caliber automatic pistol sticking out from under his arm. Id. No
money or valuables were found on either victim. The police found Mrs. Nestor’s purse
on the couch with Jones. Id. Mrs. Nestor’s change purse, keys, lighter, and both
victims’ wallets were found in Jones’ pant pockets. Id.
Through Dr. Jethro Toomer, Jones presented mitigation evidence that when
he was five years old his mother went to New York and left him in the care of his aunt
2
Laura Long. Jones was raised by the Longs, a middle-class family, who cared for him
and took him to church regularly. They required him to behave well and tried to teach
Jones right from wrong. They provided Jones with clothing, food, and shelter.
According to his teacher indicated Jones was appropriately dressed and had the
proper school supplies when he came to class. Dr. Toomer also testified that Jones’
aunt was married to a minister who raised Jones along with his two cousins. Mrs.
Long indicated her husband loved Jones as he did his two sons.
Dr. Toomer told the jury that Jones was of average intelligence and that he
had never been treated for a mental disease or defect. Likewise, Jones never had any
psychological counselling. There was no evidence of Jones ever exhibiting bizarre or
psychotic behavior in prison. Dr. Toomer opined that Jones suffered from a borderline
personality disorder and was a victim of abandonment, whose family was
dysfunctional, resulting in his maladaptive behavior. Dr. Toomer acknowledged that
Jones did not suffer from any major mental disorder or psychosis. At no point during
the trial did Jones present any evidence of abuse by any source.
In its sentencing order, the trial court found in aggravation for each murder:
(1) under a sentence of imprisonment; (2) prior violent felony convictions; (3) murder
committed during the course of a robbery, and merged with, (4) pecuniary gain. Jones
I, 652 So. 2d at 348–49. The sentencing court found nothing in mitigation and
followed the jury’s recommendation in sentencing Jones to death for the double
homicide. Id. at 349.
3
Postconviction Proceedings
Jones filed his initial motion for postconviction relief that he later amended.
The court granted an evidentiary hearing, and Jones presented the testimony of two
of his relatives regarding his childhood and of several expert witnesses who had
evaluated Jones before his trial but did not testify in support of his claims. Jones’
trial counsel testified that Jones told him he was often beaten during his childhood.
Yet, Laura Long, his aunt who raised him, contradicted his claims by describing his
childhood as largely “idyllic,” as did another close relative. In addition, one of Jones’
teachers described him as a good student, verified by the school records, and that she
never saw any evidence of abuse. Jones also presented the testimony of his sister and
cousin to corroborate his claim. The trial court found his sister and cousin’s testimony
not credible and contradicted by the evidence. Jones v. State, 855 So. 2d 611, 618 (Fla.
2003). After a multi-day evidentiary hearing, the lower court denied relief on all
claims. The Florida Supreme Court affirmed the denial of postconviction relief and
denied Jones’ habeas petition. Id. at 615.
Federal Habeas Proceedings
Jones federal habeas petition was denied, and the Southern District denied
relief. Jones v. McNeil, 776 F. Supp. 2d 1323, 1338 (S.D. Fla. 2011). Jones’ petition
for writ of certiorari was denied. Jones v. Fla. Dep’t. of Corr., 568 U.S. 873 (2012).
Additional Successive Postconviction Proceedings
In 2006, Jones filed his first successive motion for postconviction relief alleging
intellectual disability under Atkins v. Virgina, 536 U.S. 304 (2002), as a bar to his
4
execution. Initially, the postconviction court summarily denied relief; however, the
Florida Supreme Court remanded the case for an evidentiary hearing. Jones v. State,
966 So. 2d 319, 322 (Fla. 2007) (Jones III). At the hearing, Dr. Hyman Eisenstein
testified on Jones’ behalf and the State presented Dr. Enrique Suarez and Lisa Wiley,
a psychological specialist with the Department of Corrections. Id. at 322. The Florida
Supreme Court noted, “[t]he parties stipulated that evidence from the evidentiary
hearing would be considered cumulatively with the evidence from prior proceedings.”
Id.
Before the penalty phase, Jones had a competency hearing where several
doctors testified although none of them found Jones was intellectually disabled. Id.
at 321. At age 14, after a psychiatric evaluation ordered by the juvenile court, he was
discharged with a diagnosis of “unsocialized aggressive reaction of adolescence,” with
no psychiatric treatment needed. A hospital document indicated that Jones
previously had been labeled at a juvenile facility as having borderline mental
retardation, but no documentation supported the statement. Id. at 322.
School records indicated that Jones was in regular classes, earning mostly Cs
in grades one and two, with some As and Bs in English and writing. By third grade,
his teacher reported that he was of “a little above average intelligence” and up until
seventh grade, Jones earned Bs and Cs in school. In eighth grade, he began using
drugs, skipping school, and having disciplinary problems and eventually dropped out
at age sixteen. During his teenage years, he was in several juvenile placements over
various periods of time and discharged from the State juvenile system in 1978. Id. at
5
323.
Jones supported himself through the years by working various jobs as a waiter,
as a bouncer, cutting lawns, and selling drugs. He had several intimate relationships
and a common law wife. Then, in 1989 he was arrested for armed robbery, and was
under sentence of imprisonment in 1990 when he committed the murders of the
Nestors and was shot in the head. Id.
Between 1991 and 2005, Jones was administered either the WAIS–R (Wechsler
Adult Intelligence Scales) or WAIS–III intelligence tests, and his IQ scores were
reported as follows: 72, 70, 67, 72, and 75. The doctors also administered other tests,
including the MMPI (Minnesota Multiphasic Personality Inventory) and the WRAT
(Wide Range Achievement Test). Id.
At the conclusion of the evidentiary hearing, the postconviction court found
that Jones did not meet even one of the three statutory prongs required to establish
an intellectual disability. The Florida Supreme Court affirmed. Jones v. State, 966
So. 2d at 325.
On November 29, 2010, Jones filed his second successive motion for
postconviction relief, raising a claim that Porter v. McCollum, 558 U.S. 30 (2009),
constituted a retroactive change in law that required reconsideration of the denial his
prior postconviction claims. The trial court summarily denied the motion. Jones later
voluntarily dismissed his appeal. Jones v. State, 135 So. 3d 287 (Fla. 2014).
In his third successive postconviction motion, Jones re-raised his claim of
intellectual disability, under Hall v. Florida, 572 U.S. 701 (2014), and requested a
6
new evidentiary hearing. The Florida Supreme Court affirmed the denial of Jones’
successive postconviction motion determining that Jones was not entitled to a new
hearing because the ruling in Hall did not disturb the previous findings that Jones
failed to establish that he has concurrent adaptive deficits, and onset before age
eighteen. Jones v. State, 231 So. 3d 374, 376 (Fla. 2017).
Jones filed his fourth successive postconviction motion for relief on October 13,
2017, again raising a Hurst v. Florida, 577 U.S. 92 (2016) claim. The trial court
summarily denied relief and the Florida Supreme Court affirmed, finding Hurst does
not apply retroactively to cases decided before Ring v. Arizona, 536 U.S. 584 (2002).
Jones v. State, 241 So. 3d 65, 66 (Fla. 2018). Jones’ petition for writ of certiorari was
denied by this Court. Jones v. Florida, 586 U.S. 1052 (2018).
Proceedings Under Warrant
After Governor DeSantis signed Jones’ death warrant Jones filed a fifth
successive 3.851 motion for postconviction relief. Of importance here, Jones alleged
newly discovered evidence that he was in a class of people that had attended the
Okeechobee School between 1940-1979. This claim of newly discovered evidence was
summarily denied by the lower court and the Florida Supreme Court affirmed.
REASONS FOR DENYING THE WRIT
I.
Whether this Court should grant review of the Florida Supreme
Court’s rejection of an intellectual disability claim on the basis of
a re-litigation bar where Jones had previously raised this claim
which was rejected on the merits after a full and fair evidentiary
hearing in state court.
Jones asserts that the Florida Supreme Court’s determination that a state
7
habeas petition is the improper vehicle to litigate, or re-litigate, federal constitutional
claims is somehow in violation of the Supremacy Clause. He further contends that
the State lacks a proper means to litigate such claims which arise in postconviction.
Jones goes on to claim that the Florida Supreme Court’s intellectual disability
analysis violates this Court’s directions in Hall v. Florida, 572 U.S. 701 (2014), Moore
v. Texas (Moore I), 581 U.S. 1 (2017); and Moore v. Texas (Moore II), 586 U.S. 133. He
further asserts that the way the Florida Supreme Court analyzes adaptive deficits
conflicts with the practices used in other states and federal Courts of Appeal. This
issue was not raised below in the Florida courts so Jones may not raise it for the first
time here. Furthermore, the Florida Supreme Court denied the claim Jones actually
raised in state court on independent state grounds thereby preventing consideration
by this Court. This Court should deny the petition for certiorari.
Certiorari review is not a matter of right, but of judicial discretion. It is granted
only for compelling reasons. This Court will not grant certiorari where the federal
constitutional claim was not passed upon by the state court or where the state
decision rests on an adequate foundation of state law. In Hemphill v. New York, this
Court stated that it “has almost unfailingly refused to consider any federal-law
challenge to a state-court decision unless the federal claim was either addressed by
or properly presented to the state court that rendered the decision we have been
asked to review.” Hemphill v. New York, 142 S. Ct. 681, 689 (2022). The claim must
have been “‘brought to the attention of the state court with fair precision and in due
time.’” Id. (citations omitted). Robertson, 520 U.S. 83, 90 (1997) (concluding this Court
8
should not “disturb the finality of state judgments on a federal ground that the state
court did not have occasion to consider.”). Because Jones failed to present this claim
to the Florida Supreme Court, certiorari must be denied.
Additionally, this Court has repeatedly recognized that where a state court
decision rests on non-federal grounds, where the non-federal state grounds are an
adequate basis for the ruling, independent of the federal grounds, “our jurisdiction
fails.” Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S.
1032, 1038 (1983). See also Cardinale v. Louisiana, 394 U.S. 437, 438 (1969)
(reaffirming that this Court has no jurisdiction to review a state court decision on
certiorari review unless a federal question was raised and decided in the state court
below); Street v. New York, 394 U.S. 576, 581-82 (1969) (same). If a state court’s
decision is based on separate state law, this Court “of course, will not undertake to
review the decision.” Florida v. Powell, 559 U.S. 50, 57 (2010). This Court has also
instructed that “state courts are the ultimate expositors of state law” and federal
courts “are bound by their constructions except in extreme circumstances.” Mullaney
v. Wilbur, 421 U.S. 684, 691 (1975). Sykes, 433 U.S. 72, 81 (1977) (noting principal
that a state decision resting on adequate state substantive law is immune from
federal review.) Certiorari must be denied.
a. A State Habeas Petition Is Not The Proper Vehicle
Jones incorrectly asserts that, under Florida law, a writ of habeas corpus
should be used to petition the Florida Supreme Court to reconsider an earlier
decision, particularly when an intervening decision by a higher court has modified
the law on an issue in the prior decision. He claims that a habeas petition is a proper
9
vehicle to correct manifest injustice when no other means are available. The Florida
Supreme Court has been very clear that the purpose of the writ of habeas corpus is
to provide a means of judicial evaluation of the legality of a prisoner’s detention.
McCrae v. Wainwright, 439 So.2d 868 (Fla.1983). It is not a vehicle for obtaining a
second determination of matters previously decided on appeal or as an additional
appeal. In fact, the very case that Jones cites as support for his use of the habeas
petition plainly states that it may not be used as he did. A habeas petition “is not
properly used for purposes of raising issues that could have been raised on appeal, or
for re-litigating questions that have been determined by means of a prior appeal. …
It is only in the case of error that prejudicially denies fundamental constitutional
rights that this Court will revisit a matter previously settled by the affirmance of a
conviction or sentence.” Kennedy v. Wainwright, 483 So. 2d 424, 425–26 (Fla. 1986);
Steinhorst v. Wainwright, 477 So.2d 537, 539 (Fla.1985) (“The principle of finality of
judgments, and the requirement that challenges to judgments and sentences be made
by means of the one appeal to which a person is entitled by law, prohibit allowing the
writ of habeas corpus to be utilized as a vehicle for obtaining a second appeal.”);
Gaskin v. State, 361 So. 3d 300, 309 (Fla. 2023) (“Habeas corpus is not to be used to
litigate or relitigate issues which could have been, should have been, or were
previously raised.”); Knight v. State, 923 So. 2d 387, 395 (Fla. 2005) (“[C]laims [that]
were raised in [a] postconviction motion ... cannot be relitigated in a habeas
petition.”). This has been the law and practice in Florida for decades, not something
the Florida Supreme Court suddenly announced in this case.
10
It was this body of law that the Florida Supreme Court followed when it denied
Jones' habeas petition. Jones was merely asking the court to revisit and change its
2017 decision denying him relief on his postconviction motion claiming that he is
ineligible for the death penalty due to intellectual disability in light of Hall v. Florida.
The court properly stated that a habeas petition is not to be used to relitigate issues
already decided. Jones v. State, No. SC2025-1422, 2025 WL 2717027, at *6 (Fla. Sept.
24, 2025). This re-litigation bar is routinely followed in Florida and is an independent
and adequate basis for the ruling below.
In Cruz v. Arizona, 598 U.S. 17, 25–26 (2023), Arizona’s high court upheld a
procedural bar to deny relief where the trial court refused to allow the defense to tell
the jury that the alternative sentence to death was only life without the possibility of
parole. In so doing, the Arizona court determined that this Court’s decision in Lynch
v. Arizona, 578 U.S. 613 (2016) was not a significant change in the law which would
have negated the procedural bar. This Court reversed, saying that Lynch was a
significant change in the law mandating relief. No such situation exists in Jones’ case.
Hall was the basis of his 2016 postconviction motion. This Court has not altered the
law on intellectual disability substantially since Atkins.
Jones invokes manifest injustice as a legal basis for this Court to grant
certiorari to mandate that the Florida Supreme Court reconsider its prior rulings. He
does so to circumvent the state postconviction procedures as well as the time and
procedural bars which preclude relief. The Florida Supreme Court has “the power to
reconsider and correct erroneous rulings in exceptional circumstances and where
11
reliance on the previous decision would result in manifest injustice, notwithstanding
that such rulings have become the law of the case.” State v. Owen, 696 So. 2d 715,
720 (Fla. 1997). No exceptional circumstances exist in Jones’ case, and none were
presented in the petition to warrant habeas relief as manifest injustice. Florida limits
the manifest injustice exception to extremely limited cases as a basis for permitting
a defendant to advance an otherwise barred claim. Parks v. State, 319 So. 3d 102 (Fla.
3d DCA 2021). A movant must demonstrate an error “so patently unfair and tainted
that it is manifestly clear to all who view it.” Parks, 319 So. 3d at 110. This Court has
equated manifest injustice to a defendant proving actual innocence. Schlup v. Delo,
513 U.S. 298 (1995); House v. Bell, 547 U.S. 518, 537 (2006). Manifest injustice is not
at play in this case.
b. Florida Has A Well Defined Postconviction Procedure For
Defendants To Assert Constitutional Claims
Jones claims that Florida provides no other means for him to assert a federal
constitutional claim if he cannot avail himself of the habeas writ. His stance is belied
from the history of his own case. Florida has laid out the means and manner for a
capital defendant to raise collateral and postconviction challenges to both the
conviction and the sentence in Florida Rule of Criminal Procedure 3.851. Jones filed
six postconviction motions under this or an earlier version of this rule. In his second
and fourth successive motions for relief, Jones challenged his death sentence on his
allegation that he is intellectually disabled. He could have raised this issue in his
sixth motion as well although he would have both time-barred and procedurally
barred from relief. Florida does provide a vehicle to make constitutional claims.
12
c. The Florida Supreme Court’s Resolution Of Jones Intellectual
Disability Claim Comports With This Court’s Jurisprudence
Despite having an evidentiary hearing on his Atkins claim where he was
permitted to present evidence on each of the three prongs for intellectual disability
(“ID”), as well as a second review following Hall, Jones asserts he should be permitted
another evidentiary hearing in an attempt to present additional evidence and
argument on the second intellectual disability prong of adaptive deficits. See Jones v.
State, 966 So. 2d 319 (Fla. 2007) and Jones v. State, 241 So. 3d 65 (Fla. 2018), cert.
denied 586 U.S. 1052 (2018). He claims that the Florida Supreme Court’s finding of
a procedural bar to his claim raised in a second state habeas petition was error as it
did not allow him to present argument under Moore I, Moore II, and Brumfield v.
Cain, 576 U.S. 305 (2015), to show that Florida’s adaptive deficit analysis was
improper under this Court’s precedent. A review of the evidence presented on the
original Atkins claim and the assessment of the intellectual disability claim, raised
post-Hall, established that the Florida Supreme Court’s analysis did not conflict with
any case from this Court, a federal circuit court, or another state supreme court.
Certiorari should be denied.
The Florida Supreme Court did not even reach the merits of the Atkins claim
because of the relitigation bar on state habeas review. Nonetheless, the record from
that prior hearing established that Jones was not intellectually disabled. At the
evidentiary hearing, Jones presented the testimony of Dr. Hyman Eisenstein, and the
State presented neurologist Dr. Enrique Suarez and Department of Corrections
Psychological Specialist Lisa Wiley. Each party offered testimony on each of the three
13
ID prongs.
Dr. Eisenstein, who was involved in the case since April 1991, explained that
he evaluated Jones in 1991, 1993, and 1999, each time giving Jones a form of the
Wechsler Adult Intelligence Scale (WAIS) IQ test. (PCR2-ST 181-82). The doctor
noted that other experts had given WAIS tests to Jones in 2003 and 2005, so he
decided not to retest Jones for the Atkins litigation. (PCR2-ST 182-83). Further, Dr.
Eisenstein did not believe there were any "formal test instruments” to determine
adaptive functioning so he did no testing. (PCR2-ST. 184). Dr. Eisenstein also stated
that over the years he gave Jones a number of other tests, including the Minnesota
Multiphasic Personality Inventory (MMPI) which he believed was "certainly
relevant" to determining whether Jones was intellectually disabled. (PCR2-ST. 189).
Jones gave invalid results on all the MMPI tests, but the doctor chose to believe that
this was not an indication of malingering. (PCR2-ST 281-88). For the Atkins claim,
Dr. Eisenstein again interviewed Jones trying to determine his mental status before
the age of eighteen. (PCR2-ST 190-92). The doctor had previously interviewed family
members for trial and the original postconviction litigation, including Jones’ sisters,
Pamela Mills and Valerie Johnson, his brother Michael Jones, his cousin Carl Miller,
and his aunt Laura Long who raised Jones. (PCR2-ST 192, 194).
Dr. Eisenstein acknowledged that at the time of trial Long had said that Jones
was a good child but changed her version during postconviction, claiming Jones was
slow. (PCR2-ST 194-95). Pre-trial and in 2005, Mills claimed Jones was unable to do
his schoolwork, so she did it for him. In 2005, Mills offered that Jones was placed in
14
classes for the learning disabled, that he stuttered, slurred his words, had difficulty
articulating, and was a loner. (PCR2-ST 199-202). Johnson asserted Jones was forced
to raise himself because of the lack of parental care. (PCR2-ST 203).
In 2005, Miller told Dr. Eisenstein that Jones was slow, needed directions
repeated before he could follow them, had trouble communicating, and lacked social
skills. (PCR2-T. 204-05). Also in 2005, Dr. Eisenstein interviewed Frank Mills, Jones’
brother, who reported they were not raised together and that he saw Jones briefly at
family gatherings held where Jones did not socialize. (PCR2-ST 206-10).
Dr. Eisenstein interviewed Shirley Anthony, a former girlfriend, who was
twenty years older than Jones. She had lived with Jones in a common law marriage
when he was sixteen living in Atlanta. (PCR2-ST 210). Anthony had difficulty
“recalling" her relationship with Jones but remembered he worked different jobs, and
she provided the home. (PCR2-ST. 210-11).
Dr. Eisenstein reviewed Jones’ discharge summary from Jackson Memorial
Hospital, school records, prison records, and the Wide Range Achievement Tests
(WRAT) given over the years. (PCR2-ST 212-17). Dr. Eisenstein believed Jones’
performance on the two WRATs he administered were consistent with those
administered by both Drs. Caddy and Suarez but that those doctors made scoring
errors. (PCR2-ST218-24). Jones’ 1988 Beta IQ test yielded an IQ of 76 and the Test
of Nonverbal Intelligence (TONI) administered by Dr. Suarez also showed a full-scale
IQ of 76 which was consistent with Jones’ other scores. (PCR2-ST 225-29).
Although Dr. Eisenstein claimed to follow the definition of intellectual
15
disability contained in the Diagnostic and Statistical Manual of Mental Disorders,
DSM-IV-TR, he stated that he limited his investigation of Jones’ adaptive functioning
to how he functioned before eighteen years old. In spite of the intellectual disability
diagnosis calling for evidence of (1) significantly subaverage intellectual functioning,
(2) concurrent deficits in present adaptive functioning and (3) onset before eighteen,
Dr. Eisenstein made no attempt to determine how Jones was functioned as an adult,
claiming it was not relevant to his functioning before the age of eighteen. He then
admitted that if present adaptive functioning actually meant functioning at the
present time, he had not assessed the prong at all. (PCR2-ST 289-91, 333-35).
Dr. Eisenstein stated that his opinion regarding Jones had changed since his
previous testimony because the definition of intellectual disability had changed. He
claimed that before the publication of the DMS-IV-TR in 2000, it was impossible to
diagnose intellectual disability if the IQ scores were higher than 70. (PCR2-ST. 298).
He admitted that he had reviewed the reports of all the other experts who had ever
been involved in the case and had conducted his own previous evaluations. Neither
he nor any of the other experts who evaluated Jones had ever been of the opinion he
was intellectually disabled. (PCR2-ST. 324-30). Dr. Eisenstein acknowledged that
intellectual disability was an important issue even at the time of trial. (PCR2-ST.
324-31).
In terms of how Jones was presently functioning, Dr. Eisenstein was aware
Jones communicates in writing using more than one and two syllable words and that
Jones has an entire routine for cleaning his cell. (PCR2-ST 338). Also, the doctor was
16
cognizant that Jones established his own exercise routine and fashioned his exercise
equipment himself out of the furnishings in his cell. Further, Dr. Eisenstein was
aware that Jones attended to his personal hygiene and pursued resolution of
grievances concerning his prison account and finances. (PCR2-ST 338-40). Dr.
Eisenstein acknowledged that Jones remembered meeting with him previously and
discussed when they last met. Jones recounted the medications he was taking and
their dosages, the medications he had taken previously, and when they were changed.
Jones also evidenced a desire to remain alert while incarcerated and his concerns for
his safety when he was not alert because of medication or his physical condition.
(PCR2-ST. 341-35). Likewise, Dr. Eisenstein was aware that Jones reported going to
the law library twice a week. (PCR2-ST. 346-48).
Dr. Eisenstein admitted that he never saw any school records indicating Jones
was in special education classes but insisted that this was because the school records
were incomplete. (PCR2-ST 367-68). When confronted with the fact Jones’ third grade
teacher had testified Jones was a good student of above average intelligence, Dr.
Eisenstein then claimed Jones did well because Mills helped him. The doctor
admitted that the decline in Jones’ grades in school coincided with an increase in
disciplinary problems and truancy. (PCR2-ST 370-72). Although he admitted that the
prison records showed Jones’ functioning was average, that his IQ score was an
underestimate, and that his true level of intellectual functioning was in the low
average range, Dr. Eisenstein did not believe that the functioning level indicated
anything about Jones’ adaptive functioning. (PCR2-ST. 381-83).
17
Lisa Wiley, a psychological specialist for the Department of Corrections with a
master’s degree in clinical psychology, worked with death row inmates for the past
thirteen years providing them frontline clinical psychological services. (PCR2ST. 24950). She explained that in making weekly rounds she checked to see if the inmates
were acting strangely, appeared withdrawn, or had their cells in disarray. She stated
inmates were required to keep their cells clean by mopping and sweeping the floors,
throwing out their garbage, changing their linens and uniforms, and keeping their
personal effects in their lockers. (PCR2-ST 253).
Wiley knew Jones since his arrival on death row in 1993. She did not recall
Jones ever having a dirty cell or behaving in anything but an appropriate and polite
manner. While Jones rarely spoke to her during rounds, Wiley recalled Jones
requesting assistance in having his television repaired. (PCR2-ST 250-54). The sole
time the staff ever suggested Jones needed treatment was in response to a call from
one of his sisters suggesting he was depressed. (PCR2-ST. 254-55). When Jones chose
to speak to Wiley, he was able to communicate in a rational, coherent, and logical
manner. The language he used in these conversations was not elementary. (PCR2ST. 256, 261). Wiley never had any concerns that Jones might be intellectually
disabled, nor had any other corrections staff member ever suggested to Wiley that
they had such concerns. (PCR2-ST 256-57).
Wiley stated she was familiar with Jones’ handwriting from seeing requests he
had written to her. She identified Jones’ handwriting on several informal grievances.
In one, he had complained about not receiving mail. (PCR2-ST. 259, 261-62). Wiley
18
recalled that Jones was prescribed medications for diabetes and Lipitor, which Jones
administered himself. She did not recall there ever being an issue of Jones being
unable to take his medications properly. (PCR2-ST. 264-65). Similarly, Jones
monitored his inmate account and submitted grievances when he had concerns that
deposits were not made that were expected. (PCR2-ST 260, 265, 275-78). Wiley stated
that she had said to Dr. Suarez that Jones had some deficits in social skills because
Jones had a flatter effect than normal people. (PCR2-ST 271).
Dr. Enrique Suarez testified that one needed to consider malingering in a
forensic evaluation, as the DSM-IV requires. Not all psychological tests include
malingering or validity checks; the MMPI has validity checks, while the IQ tests do
not. Dr. Suarez administered tests to Jones to assess his motivation, i.e., whether he
was putting in good effort. (PCR2-ST. 399-402).
Dr. Suarez interviewed Jones since the interview was important because
intellectual disability has behavioral consequences at all levels and would be
noticeable to a professional. That interview indicated that Jone was normal. (PCR2ST. 406-07). Because multiple WAIS IQ tests had been administered to Jones, Dr.
Suarez did not believe that additional intelligence tests were necessary. Instead, Dr.
Suarez chose to give a test of non-verbal intelligence (TONI) because he did not
believe Jones would be familiar with it and because it corresponded with a validity
test Dr. Suarez would be administering. (PCR2-ST 402-05, 531). The TONI was
normed and validated using the same method as the WAIS, however, the TONI tests
only reasoning ability and avoids measurement errors caused by language problems,
19
sensory deficits, and the practice effect. (PCR2-ST. 405-06).
On the TONI, Jones scored a 76, with the confidence interval between 68 and
84, and falling in the borderline range. (PCR2-ST 408-09). Dr. Suarez explained that
a borderline score is not in the intellectual disability range but is in the range above
intellectual disability; and there is no such diagnosis as borderline intellectual
disability. (PCR2-ST 410). As a result, the notation in the Jackson Memorial Hospital
report is a misnomer. (PCR2-ST 410).
After defining the three-prong criteria for intellectual disability and the
standard error of measurement, Dr. Suarez stated that Jones had been repeatedly
tested, and this repeated testing produced scores that all but one fell in the borderline
range. (PCR2-ST 411-15, 433-34, 591-92). The doctor noted that most of the IQ tests
were not accompanied by tests of validity. Jones, however, was given the TOMM in
2005 along with the WAIS and Dr. Suarez gave Jones two validity tests. (PCR2-ST
416-17). The TOMM indicated a blatant tendency not to use one's best effort; the VIP
indicated Jones was compliant in the verbal area and non-compliant and inconsistent
on the nonverbal area. (PCR2-ST 416-18). Dr. Suarez concluded Jones was not
performing optimally on purpose. (PCR2-ST 419, 451). This opinion was reinforced
by the content of Dr. Suarez's interview with Jones where he exhibited a surprising
ability to articulate, use words, structure sentences, understand concepts, and
remain internally consistent in his speech. (PCR2-ST 420-24).
Dr. Suarez explained that intellectually disabled people have a limited ability
to learn beyond a certain level and because of that limitation, are unable to be
20
employed in more than menial tasks, to travel on their own or to live without
supervision. (PCR2-ST 420-21). Further, the intellectually disabled frequently have
difficulty communicating and understanding questions, which was not the case with
Jones. His history of traveling independently, being employed, supporting himself
through legal and illegal means, and having relationships with women indicated a
level of functioning inconsistent with intellectual disability. (PCR2-ST 421-28).
Further, Jones also showed the ability to care for himself medically and an awareness
of his needs at a level again inconsistent with intellectual disability. The information
Jones provided in his interview was confirmed by a review of Jones’ jail medical
records. (PCR2-ST 429-33).
Regarding adaptive deficit functioning analysis, Dr. Suarez stated that the
preferred method of evaluating it was through the administration of an instrument
like the Adaptive Behavior Assessment Scales (ABAS) or Vineland. By doing so, one
receives standardized information. (PCR2-ST. 588). To evaluate whether Jones had
concurrent deficits in present adaptive functioning, Dr. Suarez spoke with Jones and
administered the ABAS to individuals familiar with Jones and his present abilities
and those during the last few years. (PCR2-ST 435-36). Dr. Suarez explained that the
composite scores on the ABAS administrations placed Jones in the forty-seventh,
fifty-fifth, and seventieth percentiles. While Jones’ social skills were the area in which
he achieved his lowest scores on all of the ratings, his scores in this area were in the
borderline and low average ranges, which are too high for Jones to be considered to
have a deficit in adaptive behavior in this area. (PCR2-ST 609-13). Although one later
21
also gave Jones a below average score in self-direction, again it was not low enough
to be considered a deficit. (PCR2-ST 614).
Dr. Suarez rejected Dr. Eisenstein's hypothesis that Jones’ poor performance
on the TOMM was due to brain damage as the TOMM was specifically designed not
to be affected by brain damage. (PCR2-ST 451-53). Further, Jones’ highest score on
any subtest of the WAIS was in picture completion, supporting Dr. Suarez’s
interpretation that the TOMM results showed Jones intentionally suppressed his
level of effort. (PCR2-ST 452-54). Likewise, Dr. Suarez disagreed with Dr.
Eisenstein’s opinion the Jones’ good scores on some of the WAIS subtests indicated
Jones was not malingering. This is so because most malingerers do so in more subtle
ways such as performing well on some parts of the tests and not on others. (PCR2ST. 457-58). Also, Jones’ completion of the MMPI Dr. Suarez administered supported
the finding of malingering and exaggeration. Jones was able to read the test which
requires a Sixth grade reading ability and to answer the questions quickly. Jones
scores on the F-scales, those designed to measure malingering, exaggeration, and
confusion, were so high the results were invalid. The results indicated Jones was not
answering the questions randomly but was grossly exaggerating. (PCR2-ST 458-64,
467-70). The MMPI results indicated that Jones understood the questions but was
exaggerating so much that he had to be malingering. (PCR2-ST 561-64).
In addition to his interviews and testing, Dr. Suarez reviewed the reports of
five other mental health experts, the 1975 hospital report, the medical records of
Jones’ 1990 gunshot to his head, numerous transcripts, raw data from testing by Drs.
22
Gregory Prichard and Eisenstein, and Jones’ corrections records. (PCR2-ST 496). Of
note, the hospital records following the gun shot injury indicated Jones recovered
remarkably well and contained no indication of retardation. (PCR2-ST 497-98). With
regard to the 1975 hospital report noting Jones having been labeled “borderline
mentally retarded,” Dr. Suarez saw nothing supporting that statement and that
balance of the report was inconsistent with the original statement as it stated that
Jones was functioning normally. (PCR2-ST 499-500).
Based on everything he had reviewed, and all the tests and interviews
conducted, Dr. Suarez opined that Jones was not intellectually disabled. (PCR2-ST
502-07). Dr. Suarez did not believe that Jones had significantly subaverage
intellectual functioning because Jones had consistently scored in the borderline range
on IQ tests and the collateral information suggested that Jones was probably actually
functioning in the borderline to low average range. The doctor further opined that
Jones intellectual functioning probably was even higher as the tests at issue were
administered after Jones had been shot in the head. (PCR2-ST. 502-03, 505-06).
With regard to adaptive functioning, Dr. Suarez stated that nothing in Jones’
present functioning or his history of travel, employment, and relationships suggests
any deficits. Likewise, Jones’ school records do not suggest intellectual functioning
deficits as a child as Jones did not have failing grades until junior high school when
he started behaving badly and being truant. (PCR2-ST 503-07). Further, Dr. Suarez
saw no indication that Jones had exhibited confused or disorganized behavior which
would be expected in an intellectually disabled person, particularly one who needed
23
instructions repeated before he grasped them. (PCR2-ST. 520-22).
Based on the above, the trial court found Jones had not established any of the
three intellectual disability prongs. (PCR2-SR2 495-506). The trial court noted that
the IQ tests at issue were given between 1991 and 2005, and “[m]ost notably, Dr.
Eisenstein found that Jones’ major head trauma compromises his ability to perform
these tests. Dr. Eisenstein testified, in fact, that the majority of Defendant’s
deficiencies were caused by the gunshot wound to the head received at the time of the
commission of the crime.” (PCR2-SR2 497, 499). Jones failed to prove the second and
third prongs for intellectual disability. (PCR2-SR2 505).
Jones clearly does not suffer from deficiencies in his adaptive
functioning. He keeps his cell clean, takes his own medication and is
aware of which medications he takes and in which dosages. He has
fashioned a way to exercise in his cell. Most telling, the grievance letters
Jones wrote show that he has ample communication skills and is
sophisticated enough in his thought process to understand how wire
transfers are made from Europe to his prison account.
Finally, there is no evidence whatsoever of the onset of [intellectual
disability] before the age of eighteen. Jones has failed to present proof
by clear and convincing evidence that he is [intellectually disabled].
(PCR2-SR2 505-06)
On appeal, the Florida Supreme Court agreed. Jones III, 966 So. 2d at 325-29.
When this issue was raised in his federal habeas review, the district court rejected
the claim as meritless. Jones v. McNeil, 766 F. Supp. 2d 1323, 1369-75 (S.D. Fla.
2011). A certificate of appealability was denied and this Court denied certiorari. Jones
v. Fla. Dep’t of Corr., 133 S. Ct. 413 (2012). When this Court decided Hall, Jones
sought another review. Hall “created a procedural requirement that those with IQ
24
test scores within the test's standard of error would have the opportunity to otherwise
show intellectual disability.” In re Henry, 757 F.3d 1151, 1161 (11th Cir. 2014). The
Florida Supreme Court determined that Jones had a full evidentiary hearing on his
Atkins claim and that Hall did not require a second review, especially because Jones
had failed to prove he had adaptive deficits and onset before age eighteen. “Jones is
not entitled to a new hearing in order to present additional evidence of intellectual
disability because he was already provided the opportunity to present evidence
regarding each of the three prongs of the intellectual disability standard.” Jones, 231
So. 3d at 376. Further “Hall does not change the fact that Jones failed to establish
that he meets the second or third prong” of an intellectual disability claim. Id. This
Court denied certiorari. Jones v. Florida, cert. denied, 586 U.S. 1052 (2018).
Following the signing of his death warrant, Jones filed a successive state
habeas petition asking the Florida Supreme Court to reconsider the summary denial
of the Hall claim in light of Moore I; Moore II, and Brumfield. Such was rejected on
state procedural grounds. Jones v. State, No. SC2025-1422, 2025 WL 2717027, at *6
(Fla. Sept. 24, 2025). Jones’ attempt to show the Florida Supreme Court’s decision
conflicts with Moore and Brumfield and is an outlier in how it assesses the deficits in
adaptive functioning prong fails. Neither Moore I, Moore II, nor Brumfield assist
Jones, and Florida’s resolution of the adaptive functioning prong meets constitutional
muster.1
1 While Jones focuses on adaptive deficits, it should be noted that an average of his
five IQ scores obtained from 1991 to 2005, (72 + 70 + 67 + 72 + 75) yields and average
25
Dr. Eisenstein, Jones’ mental health expert, never evaluated Jones for present
deficits in adaptive functioning; he made no attempt to determine how Jones was
functioning as an adult, claiming it was not relevant to his functioning before the age
of eighteen. This was despite the clear requirement for a diagnosis under the relevant
DSM manual for intellectual disability finding. Dr. Eisenstein admitted that if
present adaptive functioning actually meant functioning at the present time, he had
not assessed the prong at all. (PCR2-ST 289-91, 333-35). Contrary to Dr. Eisenstein’s
initial position, Dr. Suarez found an intellectual disability diagnosis required
assessing the subject adaptive functioning as an adult and he conducted such a
review using the ABAS and conducting interviews. Even considering the lowest
scores Jones received on the ABAS, he was in the borderline and low average ranges,
which are scores too high for Jones to be considered to have a deficit in adaptive
functioning. (PCR2-ST 609-13). The state courts agreed with Dr. Suarez in
determining Jones failed to prove the second prong of intellectual disability.
Jones’ reliance on the Moore cases and Brumfield do not further his position.
In Moore I, this Court did not dictate a particular way adaptive functioning deficits
had to be assessed but like in Atkins and Hall, determined the states discretion was
not “unfettered” and should “be informed by the medical community’s diagnostic
score of 71.2. This averaging of IQ scores is a recognized and accepted manner of
dealing with multiple scores. See Clemons v. Comm’r, Ala. Dep’t of Corr., 967 F.3d
1231, 1249 (11th Cir. 2020) (using an average of four IQ scores to determine that the
defendant’s IQ was 70.25), cert. denied, Clemons v. Dunn, 141 S. Ct. 2722 (2021) (No
20-1197). Such an average established that Jones has not met the first prong of
intellectual disability.
26
framework.” Moore I, 581 U.S. at 13. Moore I merely criticized the Texas appellate
court for overemphasizing the defendant’s perceived adaptive strengths when the
assessment was for adaptive deficits. Id. at 16. Yet, this Court did not hold that
adaptive strengths could not be considered as Jones suggests. Instead, this Court
reasoned that adaptive strength in one area could not be used to overcome adaptive
deficits in another area. Id. As the majority explained:
The dissent suggests that disagreement exists about the precise role of
adaptive strengths in the adaptive-functioning inquiry. See post, at 1058
– 1059. But even if clinicians would consider adaptive strengths
alongside adaptive weaknesses within the same adaptive-skill domain,
neither Texas nor the dissent identifies any clinical authority permitting
the arbitrary offsetting of deficits against unconnected strengths in
which the CCA engaged, see 470 S.W.3d, at 520–526.
Moore I, 581 U.S.at 1, n.8 (emphasis supplied). The Arizona Supreme Court
recognized that adaptive strengths may be considered when it succinctly stated that
to assess adaptive behavior, as informed by Moore I and Moore II:
… a court should first conduct an overall assessment by holistically
considering the strengths and weaknesses in each of the life-skill
categories (conceptual, social, and practical), as identified by the medical
community, to determine if there is a deficit in any of these areas. Under
this step, the court cannot offset weaknesses in one category with
unrelated strengths from another category. Moore I, 137 S. Ct. at 1050
n.8. And although Moore I cautioned against overemphasizing adaptive
strengths, a court should consider both a defendant's strengths and
weaknesses within the life-skill categories. Id. at 1050; see also DSM-5,
supra ¶ 1 n.1, at 25 (cautioning that there is an “imperfect fit between
the questions of ultimate concern to the law and the information
contained in a clinical diagnosis” and stating “additional information is
usually required” for a legal determination of intellectual disability);
AAIDD Guide, supra ¶ 1 n.1, at 1 (“Within an individual, limitations
often coexist with strengths.”). Consideration of both strengths and
weaknesses within each individual category is part of the necessary
overall assessment for an intellectual disability determination in
27
Arizona.
State ex rel. Montgomery v. Kemp in & for Cnty. of Maricopa, 249 Ariz. 320, 325–26,
469 P.3d 457, 462–63 (2020) (emphasis supplied footnote omitted). Similarly, neither
Petetan v. State, 622 S.W.3d 321, 358059 (Tex. Crim. App. 2021) nor Commonwealth
v. Cox, 651 P.A. 272, 300 (Pa. 2019), show any conflict in the way the Florida Supreme
Court resolved Jones’ intellectual disability claim or in how the state courts assessed
the adaptive functioning prong.
The State’s expert, Dr. Suarez, considered each area of Jones’ skill set using
the ABAS. He supported his findings of no adaptive deficits based on the test results
and related evidence. Conversely, Jones’ expert, Dr. Eisenstein acknowledged he did
not even address Jones’ adaptive functioning as an adult. Jones has not pointed to
any adaptive functioning strengths from an unrelated category which was used
improperly to overcome a deficit in a different category. The fact that the Florida
Supreme Court determined that Jones did not have adaptive functioning deficits in
any category as an adult, does not run afoul of Moore I, Moore II, and the medical
community as addressed in State ex rel. Montgomery. Jones has failed to show a basis
for certiorari review.
Likewise, Brumfield, 576 U.S. at 305 does not aid in Jones’ attempt to gain
review from this Court. In fact, it is completely distinguishable. Brumfield involved
a Louisiana case in which the defendant timely raised an Atkins claim and pointed
to evidence from the trial to support it. Defendants in Louisiana had to be granted
funds to investigate postconviction claims. The trial court in Brumfield refused to
grant the funds and instead summarily found that the defendant failed to prove the
28
Atkins claim based solely on the trial evidence. This Court found that the state court
had acted unreasonably, and that the defendant only had to present sufficient
information to show a doubt on each element of intellectual disability to be granted
funds and an evidentiary hearing. Id. at 308-10. Contrary to what happened to the
defendant in Brumfield, the Florida courts granted Jones a full evidentiary hearing
where he was permitted to present evidence on all three intellectual disability prongs.
The court properly considered prior testimony, as stipulated to by Jones, in assessing
witness credibility and persuasiveness. Jones has not established any constitutional
error which conflicts with this Court’s precedent or that of a federal circuit court, or
other state supreme court. Certiorari should be denied.
Jones Has Already Had A Full Evidentiary Hearing Where The
Florida Courts Properly Analyzed His Adaptive Deficits
As discussed previously, Jones had a full evidentiary hearing where he was
permitted to present evidence on all three prongs required to prove he is intellectually
disabled. His evidentiary proof was insufficient to prove he currently suffers adaptive
deficits. Hence, the question presented is not case-dispositive and does not merit
certiorari. Cf. Rice v. Sioux City Mem’l Park Cemetery, Inc., 349 U.S. 70, 74 (1995)
(opining certiorari should not be granted when the question, though “intellectually
interesting” is merely “academic”).
Further, the lower court and the Florida Supreme Court analyzed all the
evidence presented in a manner consistent with this Court’s direction in Atkins and
Hall. Most Circuit Courts of Appeal have recognized that Hall, Moore I, and Moore II
did not state new rules, but applied a general rule in Atkins. See Smith v. Sharp, 935
29
F.3d 1064, 1084–85 (10th Cir. 2019); In re Payne, 722 F. App’x 534, 538 (6th Cir.
2018); Williams v. Kelley, 858 F.3d 464, 474 (8th Cir. 2017) (per curiam); Kilgore v.
Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301, 1314-15 (11th Cir. 2015); Payne v. State, 493
S.W.3d 478, 489-91 (Tenn. 2016); State v. Jackson, 157 N.E. 3d 240, 253 (Ohio Ct.
App. 2020) (citing the “substantial and growing body of case law that has declined to
apply Hall . . . retroactively”). After the evidentiary hearing, the Florida courts looked
to all three prongs, as Hall outlined, to ascertain whether Jones had proven
intellectual disability, including whether he currently suffers from deficits in
adaptive behavior. They conducted “an overall assessment by holistically considering
the strengths and weaknesses in each of the life-skill categories (conceptual, social,
and practical) … to determine if there is a deficit in any of these areas.” State ex rel.
Montgomery v. Kemp in & for Cnty. of Maricopa, 249 Ariz. 320, 325 (2020). The
Florida courts did not “offset weaknesses in one category with unrelated strengths
from another category.” Id. Jones failed to present evidence that, as an adult, he had
any such adaptive deficits. It is not true that Florida denied Jones a chance to fully
develop the facts to support his claim, unlike the cases he cites.
Finally, this Court denied certiorari after the Florida Supreme Court denied
relief in both 2006 and 2017. Having previously denied review directly, there is no
basis for reconsidering the issue after a death warrant was signed. This Court should
deny certiorari.
II.
The Florida Supreme Court’s rejection of Jones’ mitigation
evidence as time barred presents no conflict with this Court’s
precedent or compelling justification for certioraris review
30
Jones asserts that Florida unduly restricted his post-conviction presentation
of mitigating evidence by applying a time bar to his alleged abuse at a correctional
school for boys that was only raised after his death warrant was signed. Clearly,
Florida has the authority to adopt procedural rules that apply in its courts. Indeed,
this Court has observed that “[a] State’s procedural rules are of vital importance to
the orderly administration of its criminal courts; [and] when a federal court permits
them to be readily evaded, it undermines the criminal justice system.” Johnson v.
Lee, 578 U.S. 605, 612 (2016) (quoting Lambrix v. Singletary, 520 U.S. 518, 525
(1997)). Time bars, specifically, are not unusual and are necessary to discourage
dilatory tactics. See, e.g., Henyard v. Sec’y, Dept. of Corr., 543 F.3d 644, 647 (11th Cir.
2008) (applying Florida’s four-year statute of limitations to bar section 1983 lethal
injection challenge); McNair v. Allen, 515 F.3d 1168, 1172-78 (11th Cir. 2008) (finding
lethal injection challenge barred under Alabama’s two-year statute of limitations);
see also § 924.051(8), Fla. Stat. (instructing “that all terms and conditions of direct
appeal and collateral review be strictly enforced, including the application of
procedural bars, to ensure that all claims of error are raised and resolved at the first
opportunity”).
The state court’s finding of procedural bar under state law is an independent
and adequate basis to deny review. Furthermore, this untimely and procedurally
barred claim presents no unsettled or important constitutional question for review.
Certiorari should be denied.
In finding this claim barred under state law, the Florida Supreme Court stated:
31
The circuit court correctly determined that Jones's claim is procedurally
barred. The alleged abuse occurred nearly fifty years ago—and roughly fifteen
years before his trial—yet Jones did not raise it at trial or in any prior
postconviction proceeding. Because Jones's claim about any abuse he suffered
at the Okeechobee School could have and should have been raised earlier, it is
procedurally barred. See Rogers v. State, 409 So. 3d 1257, 1263 (Fla.) (“[I]n an
active warrant case, a postconviction claim that could have been raised in a
prior proceeding is procedurally barred.”), cert. denied, 145 S. Ct. 2695 (2025).
Jones v. State, No. SC2025-1422, 2025 WL 2717027, at *3 (Fla. Sept. 24, 2025)
This Court lacks jurisdiction over cases that do not present federal questions.
28 U.S.C. § 1257 (Scalia, J., concurring) (noting that 28 U.S.C. § 1257 imposes a
federal-question requirement as a condition of this Court’s appellate jurisdiction). In
Michigan v. Long, 463 U.S. 1032 (1983), this Court explained that it lacks jurisdiction
over a case if a state court’s decision rests upon two grounds: a state law ground and
a federal ground, provided the state law ground is independent and adequate itself.
Id. at 1038, n.4 (quoting Fox Film Corp. v Muller, 296 U.S. 207, 210 (1935)). Provided
the state law is not “interwoven” with federal law, this Court’s jurisdiction “fails.” Id
(citing Enter. Irrigation Dist. v. Farmers Mut. Canal Co., 243 U.S. 157, 164 (1917));
see also Foster v. Chatman, 578 U.S. 488, 497 (2016) (noting that this Court lacks
jurisdiction to review a state court judgment if that judgment rests on state law citing
Harris v. Reed, 489 U.S. 255, 260 (1989)).
In finding Jones newly discovered mitigation claim barred the court was
interpreting Florida law which prohibits untimely and piecemeal post-conviction
challenges. There is no federal constitutional aspect to such determination. See
Johnson v. Lee, 578 U.S. 605, 609 (2016) (acknowledging that state postconviction
court is generally not used to litigate claims that were or could have been raised at
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trial or direct appeal and finding that the procedural bar “qualifies as adequate to
bar federal habeas review”). The procedural bar determination was not interwoven
with federal constitutional law. This is an independent and adequate ground to deny
review and this Court should decline certiorari.
Moreover, the Florida Supreme Court’s alternative holding that the newly
discovered mitigation would not change the sentencing calculus does not present any
unsettled or important question of federal law. There is no conflict with this Court’s
case law. It must be remembered that this is a long final post-conviction case, and
this Court has never held a defendant has an unfettered right to present and force
courts to consider post-conviction mitigation evidence. Jones’ mitigation claim is
neither new nor compelling. Jones received a letter related to a class of individuals
eligible for compensation and such correspondence is not adjudication of fact nor is it
recognition of abuse specific to Jones. Importantly Jones never raised these abuse
allegations during decades of litigation despite having had every opportunity to do
so.
Further, his assertion that the prosecutions argument at trial was undermined
is unfounded. The jury’s sentencing recommendation and the court's ruling were
based on the totality of the evidence including aggravators far outweighing the
mitigation offered. Nothing in the letter from January 2025 alters the record or
establishes that the trial arguments were materially false. Finally, Florida courts
properly denied the successive claim in a summary proceeding because it failed to
present newly discovered evidence warranting relief. Florida law requires that newly
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discovered evidence be of such nature that it would be that it would probably produce
acquittal or life sentence on retrial. See Sawyer v. Whitley, 505 U.S. 333 (1992) (In
order to demonstrate actual innocence to permit court to consider merits of abusive
claims that fail cause and prejudice requirement, as well as successive claims,
petitioner must show by clear and convincing evidence that but for constitutional
error, no reasonable juror would have found petitioner eligible for death penalty
under applicable state law). A generalized letter of class eligibility, without
individualized findings and decades after the fact does not meet that standard.
Even assuming Petitioner’s allegations of abuse are true, this is not newly
discovered information. Petitioner was aware of his own history at the time of trial
and had every opportunity to present such evidence then. Petitioners’ belief that
presenting new mitigation more than thirty years later would alter the outcome does
not meet this standard and the Eighth Amendment does not require courts to reopen
final judgments every time a defendant claims that additional background evidence
might have persuaded one juror differently. To do so would elevate speculation over
finality and ignore the balance struck by this Court between accuracy and capital
sentencing and the state’s compelling interest in enforcing the lawful judgments.
This Court has made it clear that late-raised mitigation, even if colorable, does
not entitle a defendant to relief absent a showing that it would have changed the
result. See Schiro v. Landrigan, 550 U.S. 465, 478 (2007) (rejecting a claim where
new mitigation evidence, decades later, would not have changed the outcome);
Sawyer, 505 U.S. at 333 (requiring clear and convincing evidence that but for
34
constitutional error, no reasonable juror would have found petitioner eligible for
death penalty in order to reopen a final sentence.) Petitioners’ reliance on new
mitigation after three decades falls short of that burden.
Jones now attempts to repackage his eligibility for Florida’s Okeechobee School
victim-compensation program as “powerful mitigation.” This argument fails for
several reasons. First, the alleged abuse was always known to petitioner himself and
cannot constitute newly discovered evidence. A later legislative program recognizing
such abuse does not transform petitioner’s personal history into “new” mitigation.
And mitigation cannot be introduced decades later simply because a legislative
program exists.
Second, even if this evidence were considered, the Constitution does not
require that it be assigned controlling weight. As Eddings makes clear, the only
requirement is that mitigation not be excluded. Eddings v. Oklahoma, 455 U.S. 104,
114–15 (1982). Petitioner never presented mitigation of the alleged abuse at the
Okeechobee School, at the time of his trial. The alleged abuse occurred more than
fifty years ago, and Jones had personal knowledge of it. Florida courts did not exclude
this mitigation, it was never presented until after the warrant was signed.
Finally, Jones’s attempt to relitigate his sentence under the guise of “new
mitigation” is foreclosed by this Court’s finality jurisprudence. Permitting such
claims at the warrant stage would encourage endless delays, undermining both the
State’s interest in finality and the victims’ interest in closure. See Calderon v.
Thompson, 523 U.S. 538, 555–56 (1998) (finality is essential in capital cases);
35
McCleskey v. Zant, 499 U.S. 467, 491 (1991) (abuse-of-the-writ doctrine bars
repetitive claims). The Eighth Amendment does not require that final judgments be
set aside whenever a defendant identifies background evidence that could have been
raised decades earlier. See, e.g., Jones v. Hendrix, 599 U.S. 465, 482-87 (2023)
(holding there is no constitutional right to two rounds of postconviction review even
for legal innocence claims). Allowing Jones’ claim would erode finality, undermine the
State’s compelling interest in enforcing lawful sentences, and convert capital
litigation into a cycle of perpetual delay. This Court should reject Jones’ attempt to
relitigate his sentence under the guise of mitigation evidence long available to him.
36
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
JAMES UTHMEIER
ATTORNEY GENERAL OF FLORIDA
/s/ C. Suzanne Bechard________
CARLA SUZANNE BECHARD
Associate Deputy Attorney General
Counsel of Record
JENNIFER A. DAVIS
Senior Assistant Attorney General
LESLIE CAMPBELL
Senior Assistant Attorney General
LISA-MARIE LERNER
Senior Assistant Attorney General
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, Florida 33607
Jennifer.Davis@myfloridalegal.com
(813) 287-7900
COUNSEL FOR RESPONDENT
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.