Petition for Writ of Certiorari — Billy Leon Kearse, Petitioner v. Florida

Supreme Court briefFeb 28, 2026

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*** CAPITAL CASE ***

No. _____

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════════════

BILLY LEON KEARSE,

Petitioner,

STATE OF FLORIDA,

Respondent.

═════════════════════════════════

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

═════════════════════════════════

PETITION FOR WRIT OF CERTIORARI

DEATH WARRANT SIGNED

EXECUTION SET MARCH 3, 2026, AT 6:00 P.M.

═════════════════════════════════

SUZANNE KEFFER*

Acting CCRC-South

Florida Bar No. 150177

keffers@ccsr.state.fl.us

*Counsel of Record

COURTNEY M. HAMMER

Staff Attorney

Florida Bar No. 1011328

hammerc@ccsr.state.fl.us

February 28, 2026

PAUL E. KALIL

Assistant CCRC-South

Florida Bar No. 174114

kalilp@ccsr.state.fl.us

Capital Collateral Regional

Counsel - South

110 SE 6th Street, Suite 701

Fort Lauderdale, Florida 33301

Tel. (954) 713-1284

Fax (954) 713-1299

CAPITAL CASE

QUESTIONS PRESENTED

Over decades, this Court has had occasion to issue sharp rebukes to the Florida

Supreme Court in a number of areas, in particular regarding the manner in which

that court has conducted appellate review of constitutional issues in capital cases.

For example, in Parker v. Dugger, 498 U.S. 308 (1991), this Court found that the

Florida Supreme Court acted arbitrarily and capriciously in reviewing a capital

sentence on direct appeal by “ignor[ing]” evidence in the record and affirming the

sentence “based on a mischaracterization of the trial judge’s findings.” Id. at 320. In

reversing the death sentence in Parker, this Court made the extraordinary

observation that the Florida Supreme Court “did not conduct an independent review”

and “[i]n fact, there is a sense in which the court did not review Parker’s sentence at

all.” Id. at 321 (emphasis added).

The following year, in Sochor v. Florida, 504 U.S. 527 (1992), this Court again

reproached the Florida Supreme Court for its “ambiguity” in addressing the

harmlessness of Eighth Amendment error, observing that its analysis fell “far short

of clarity,” was strewn with mere “allusions by citation,” and “cannot even arguably

substitute for explicit language” that the court conducted an actual harmless error

review. Id. at 539-40.

And more recently, this Court addressed the Florida Supreme Court’s law

imposing an absolute bar on intellectual disability claims for defendants whose IQ

scores were below 70, finding it “unconstitutional” because, in part, “our society does

not regard this strict cutoff as proper or humane.” Hall v. Florida, 572 U.S. 701, 718i

23 (2014). The Hall Court further chastised the Florida Supreme Court’s embrace of

an unconstitutional law as “contravene[ing] our Nation’s commitment to dignity and

its duty to teach human decency as the mark of a civilized world.” Id. at 724.

Undeterred by this Court’s prior admonitions, the Florida Supreme Court’s

woeful attempts at appellate review have continued, evidenced by the decision in Mr.

Kearse’s case that is devoid of any attempt at engagement with Mr. Kearse’s actual

arguments much less any attempt at meaningful review of the serious constitutional

issues he presented to it. Further, its imposition of judicially created procedural bars

and timeliness concerns to preclude review of a potentially meritorious claim of

intellectual disability must yield to the Eight Amendment’s categorical bar on the

execution of the intellectually disabled.

He thus presents the following questions for this Court’s review:

Given that the Florida Supreme Court affords a right to appeal to a

capital defendant, even in the posture of a successive attempt to seek postconviction

relief, does the Due Process Clause of the Fourteenth Amendment require that appeal

to be “’more than a ‘meaningless ritual,’” Evitts v. Lucey, 469 U.S. 387, 394 (1985)

(quoting Douglas v. California, 372 U.S. 353, 358 (1963)), or must it require the

Florida Supreme Court to actually engage in meaningful appellate review of Mr.

Kearse’s constitutional claims and, if so, did the Florida Supreme Court’s “review” of

Mr. Kearse’s claims violate Due Process?

Does the Florida Supreme Court’s understanding of due diligence—

unsupported by any case-specific context and steeped in hindsight—comport with this

Court’s definition of diligence as explained in Williams v. Taylor, 529 U.S. 420 (2000),

and Holland v. Florida, 560 U.S. 631 (2010)?

Can a state procedural bar, or a finding of a lack of diligence in bringing

a claim of intellectual disability, override the Eighth Amendment prohibition against

executing the intellectually disabled?

iii

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Billy Leon Kearse, a death-sentenced Florida inmate, was the

Petitioner/Appellant in the Florida Supreme Court.

Respondent State of Florida was the Respondent/Appellee in the Florida

Supreme Court.

LIST OF DIRECTLY RELATED PROCEEDINGS

In accordance with Supreme Court Rule 14.1(b)(iii), the following proceedings

relate to the case at issue in this Petition:

Underlying Trial:

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: November 8, 1991

Direct Appeal I:

Florida Supreme Court, Case No. SC1960-79037

Billy Leon Kearse v. State of Florida, 662 So. 2d 677 (Fla. 1995)

Judgment Entered: June 22, 1995

Rehearing Denied: November 9, 1995

Mandate Issued: December 11, 1995

Resentencing Proceeding:

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: March 24, 1997

Direct Appeal II:

Florida Supreme Court, Case No. SC1960-90310

Billy Leon Kearse v. State of Florida, 770 So. 2d 1119 (Fla. 2000)

Judgment Entered: June 29, 2000

Rehearing Denied: August 24, 2000

Mandate Issued: September 25, 2000

Supreme Court of the United States, Case No. 00-8104

Billy Leon Kearse v. State of Florida, 532 U.S. 945 (2001)

Judgment Entered: March 26, 2001

Initial Postconviction Proceedings:

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: November 26, 2001

Rehearing Denied: March 22, 2002

Florida Supreme Court, Case No. SC2002-0716

Billy Leon Kearse v. State of Florida, SC2002-0716 (Fla. June 13, 2002)

(unreported)

Voluntarily Dismissed: June 13, 2002

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: August 30, 2005

Florida Supreme Court, Case No. SC2005-1816

Billy Leon Kearse v. State of Florida, 969 So. 2d 976 (Fla. 2007)

Judgment Entered: August 30, 2007

Rehearing Denied: November 30, 2007

Mandate Issued: December 17, 2007

State Habeas Proceedings:

Florida Supreme Court, Case No. SC2006-0942

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., 969 So. 2d 976 (Fla. 2007)

Judgment Entered: August 30, 2007

Rehearing Denied: November 30, 2007

Mandate Issued: December 17, 2007

First Successive Postconviction Proceedings:

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: September 17, 2008

Florida Supreme Court, Case No. SC08-1986

Billy Leon Kearse v. State of Florida, 11 So. 3d 355 (Fla. 2009)

(unpublished table decision)

Judgment Entered: May 22, 2009

Second Successive Postconviction Proceedings:

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: January 7, 2011

Florida Supreme Court, Case No. SC11-244

Billy Leon Kearse v. State of Florida, 75 So. 3d 1244 (Fla. 2011)

Judgment Entered: October 21, 2011

Second State Habeas Proceedings:

Florida Supreme Court, Case No. SC12-1349

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., 100 So. 3d 1148 (Fla. 2012)

Judgment Entered: August 30, 2012

Third Successive Postconviction Proceedings:

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: July 16, 2016

Rehearing Denied: January 30, 2017

Florida Supreme Court, Case No. SC17-0346

Billy Leon Kearse v. State of Florida, SC17-0346 (Fla. May 9, 2017)

(unreported)

Dismissed (Lack of Jurisdiction): May 9, 2017

Rehearing Denied: September 13, 2017

Fourth Successive Postconviction Proceedings:

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: February 6, 2018

Rehearing Denied: February 22, 2018

Florida Supreme Court, Case No. SC18-458

Billy Leon Kearse v. State of Florida, 252 So. 3d 693 (Fla. 2018)

Judgment Entered: August 30, 2018

Mandate Issued: September 17, 2018

Supreme Court of the United States, Case No. 18-7643

Billy Leon Kearse v. State of Florida, 139 S. Ct. 1452 (2019)

Judgment Entered: April 1, 2019

Federal Habeas Proceedings:

United States District Court, Southern District of Florida,

Case No. 2:09-cv-14240-WJZ

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., No. 2:09-cv-14240-WJZ (S.D.

Fla. Nov. 23, 2010) (unreported)

Judgment Entered: November 23, 2010

vii

Motion to Alter or Amend Denied: April 12, 2011

United States Court of Appeals, Eleventh Circuit, Case No. 11-12267

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., 669 F.3d 1197 (11th Cir. 2011)

Judgment Vacated and Remanded: November 3, 2011

United States District Court, Southern District of Florida,

Case No. 2:09-cv-14240-WJZ

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., No. 2:09-cv-14240-WJZ (S.D.

Fla. Aug. 30, 2012) (unreported)

Judgment Entered: August 30, 2012

Motion to Alter or Amend Denied: November 26, 2012

United States Court of Appeals, Eleventh Circuit, Case No. 12-16610

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., 736 F.3d 1359 (11th Cir. 2013)

Judgment Vacated and Remanded: December 2, 2013

United States District Court, Southern District of Florida,

Case No. 2:09-cv-14240-WJZ

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., No. 2:09-cv-14240-WJZ (S.D.

Fla. Sept. 1, 2015) (unreported)

Judgment Entered: September 1, 2015

Motion to Alter or Amend Denied: October 21, 2015

United States Court of Appeals, Eleventh Circuit, Case No. 15-15228

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., No. 15-15228, 2022 WL

3661526 (11th Cir. Aug. 25, 2022) (unreported)

Judgment Entered: August 25, 2022

Petition for Rehearing En Banc Denied: October 26, 2022

Supreme Court of the United States, Case No. 22-6868

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., 143 S. Ct. 2439 (2023)

Judgment Entered: May 1, 2023

Fifth Successive Postconviction Proceedings (Under Warrant):

Nineteenth Judicial Circuit Court in and for St. Lucie County, Florida

State of Florida v. Billy Leon Kearse, Case No. 5611991CF000136A

Judgment Entered: February 14, 2026

viii

Florida Supreme Court, Case No. SC2026-2051

Billy Leon Kearse v. State of Florida, No. SC2026-2051, 2026 WL 523132 (Fla.

Feb. 25, 2026) (unreported)

Judgment Entered: February 25, 2026

Mandate Issued: February 25, 2026

Third State Habeas Proceedings (Under Warrant):

Florida Supreme Court, Case No. SC2026-2050

Billy Leon Kearse v. Sec’y, Fla. Dep’t of Corr., No. SC2026-2050, 2026 WL

523132 (Fla. Feb. 25, 2026) (unreported)

Judgment Entered: February 25, 2026

TABLE OF CONTENTS

QUESTIONS PRESENTED................................................................................................. i

PARTIES TO THE PROCEEDINGS BELOW ................................................................ iv

LIST OF DIRECTLY RELATED PROCEEDINGS ..........................................................v

TABLE OF CONTENTS .......................................................................................................x

TABLE OF AUTHORITIES ............................................................................................. xiii

PETITION FOR A WRIT OF CERTIORARI ................................................................... 1

CITATIONS TO OPINIONS AND ORDERS BELOW .................................................... 1

STATEMENT OF JURISDICTION ................................................................................... 1

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

INTRODUCTION ................................................................................................................. 2

STATEMENT OF THE CASE ............................................................................................ 5

Trial, Resentencing, and Direct Appeal Proceedings ............................. 6

State Postconviction Proceedings .............................................................. 9

Federal Habeas Proceedings ....................................................................... 9

State Postconviction Proceedings Under Warrant.................................10

REASONS FOR GRANTING THE WRIT ........................................................................21

II.

Florida Supreme Court Continually Fails to Perform Meaningful

Appellate Review ..........................................................................................21

The Florida Supreme Court’s “I Know It When I See It” Test

for Diligence .......................................................................................24

The Improper Impermissible Influence Claim ............................24

The Florida Supreme Court’s Procedural Bar to Atkins claim32

Putative “Pleading Deficiency” of Atkins Claim .........................34

The Florida Supreme Court’s Rote Application of Procedural Bars to

Atkins Claims Creates an Unacceptable Risk of Executing the

Intellectually Disabled in Contravention of the Eighth and

Fourteenth Amendments.............................................................................35

Notwithstanding this Court’s clear command, the Florida

Supreme Court has rigidly applied procedural bars to Atkins

claims in Florida, including in Mr. Kearse’s case. ......................37

CONCLUSION.....................................................................................................................39

TABLE OF CONTENTS – APPENDICES

VOLUME I

APPENDIX A:

Billy Leon Kearse v. State of Florida, No. SC2026-0251 &

SC2026-0250, 2026 WL 523132 (Fla. Feb. 25, 2026),

Florida Supreme Court Opinion Affirming Denial of

Postconviction Relief Under Warrant ..................................... 1a

APPENDIX B:

State of Florida v. Billy Leon Kearse, Case No.

5611991CF000136A, Circuit Court of the Nineteenth

Judicial Circuit in and for St. Lucie County, Florida,

Order Denying Defendant’s Successive Motion for

Postconviction Relief, Motion for Stay of Execution, and

Motion to Declare § 921.137(4) Unconstitutional

(unreported) ............................................................................. 9a

APPENDIX C:

State of Florida v. Billy Leon Kearse, Case No.

5611991CF000136A, Circuit Court of the Nineteenth

Judicial Circuit in and for St. Lucie County, Florida,

Order Following Second Case Management Conference

and Notice of Cancellation of February 13, 2026

Evidentiary Hearing (unreported) .......................................... 32a

VOLUME II

APPENDIX D:

Defendant’s Successive Motion to Vacate Judgments of

Conviction and Sentence with Special Request for Leave to

Amend and for Evidentiary Hearing, filed in the Circuit

Court of the Nineteenth Judicial Circuit in and for St.

Lucie County, Florida, Case No. 5611991CF000136A,

February 9, 2026...................................................................... 40a

VOLUME III

APPENDIX E:

Initial Brief of Appellant, filed in the Florida Supreme

Court in Billy Leon Kearse v. State of Florida,

No. SC2026-0251, February 17, 2026 ..................................... 185a

APPENDIX F:

Corrected Reply Brief of Appellant, filed in the Florida

Supreme Court in Billy Leon Kearse v. State of Florida, No.

SC2026-0251, February 19, 2026 ............................................ 296a

xii

TABLE OF AUTHORITIES

Cases

Aron v. United States, 291 F. 3d 708 (11th Cir. 2002) ............................................... 29

Asay v. State, 210 So. 3d 1 (Fla. 2016) ........................................................................ 22

Atkins v. Virginia, 536 U.S. 304 (2002) ................................................ 3, 15, 18, 23, 36

Barclay v. Florida, 463 U.S. 939 (1983) ...................................................................... 22

Barwick v. State, 361 So. 3d 785 (Fla. 2023) ............................................................... 21

Bowles v. State, 276 So. 3d 791 (Fla. 2019) .......................................................... 29, 34

Cherry v. State, 959 So. 2d 702 (Fla. 2007) ................................................................. 33

Ford v. Wainwright, 477 U.S. 399 (1986) ............................................................... 4, 36

Foster v. State, 132 So. 3d 40 (Fla. 2013) .................................................................... 28

Gregg v. Georgia, 428 U.S. 153 (1976) ........................................................................ 35

Hall v. Florida, 572 U.S. 701 (2014) ............................................... 4, 23, 33, 36, 38, 39

Holbrook v. Flynn, 475 U.S. 560 (1986)........................................................... 13, 23, 25

Holland v. Florida, 560 U.S. 631 (2010) ............................................................... 28, 34

Irvin v. Dowd, 366 U.S. 717 (1961) ............................................................................. 23

Jacobellis v. State of Ohio, 378 U.S. 184 (1964) ......................................................... 24

Kearse v. Florida, 532 U.S. 945 (2001).......................................................................... 9

Kearse v. Sec’y, Fla. Dep’t of Corr., 2022 WL 3661526 (11th Cir. 2022) ................ 2, 10

Kearse v. State, 662 So. 2d 677 (Fla. 1995) ................................................................... 7

Kearse v. State, 75 So. 3d 1244 (Fla. 2011) (unpublished table disposition) .............. 9

Kearse v. State, 770 So. 2d 1119 (Fla. 2000) ............................................................. 2, 8

Kearse v. State, 969 So. 2d 976 (Fla. 2007).................................................................... 9

Kearse v. State, Nos. SC2026-0250 & SC2026-0251, 2026 WL 523132 (Fla. Feb. 25,

2026) ............................................................................................................................ 1

xiii

Kennedy v. Louisiana, 554 U.S. 407 (2008) .......................................................... 35, 37

Kyles v. Whitley, 514 U.S. 419 (1995).................................................................... 21, 22

Lockett v. Ohio, 438 U.S. 586 (1978) ........................................................................... 21

Marshall v. State, 854 So. 2d 1235 (Fla. 2003)............................................................. 3

Moore v. Texas, 581 U.S. 1 (2017) ............................................................................... 38

Parker v. Dugger, 498 U.S. 308 (1991) .................................................................... 4, 32

Pozo v. State, 963 So. 2d 831 (Fla. 4th DCA 2007)...................................................... 14

Premo v. Moore, 562 U.S. 115 (2011) .......................................................................... 30

Rogers v. Alabama, 192 U.S. 226 (1904) ..................................................................... 37

Roper v. Simmons, 534 U.S. 551 (2005) .......................................................... 18, 35, 36

Shootes v. State, 20 So. 3d 434 (Fla. 1st DCA 2009) ............................................. 14, 25

State ex rel. Clayton v. Griffith, 457 S.W. 3d 735 (Mo. 2015)..................................... 37

Strickland v. Washington, 466 U.S. 668 (1984) .......................................................... 30

The Florida Bar v. Udell, 22 So. 3d 60 (Fla. 2009) ....................................................... 9

Trotter v. Florida, 607 U.S. ___, Case No. 25-6853 (25A926) (Feb. 24, 2026) ..... 15, 33

Walls v. State, 213 So. 3d 340 (Fla. 2016) ................................................................... 36

Williams v. Taylor, 529 U.S. 420 (2000) ............................................................... 28, 34

Woods v. Dugger, 923 F.2d 1454 (11th Cir. 1991) ........................................... 13, 23, 25

Statutes

§ 921.137(1), Fla. Stat. ................................................................................................. 17

Rules

Fla. R. Crim. P. 3.575 .................................................................................................. 27

Constitutional Provisions

U.S. Const. amend. VI ................................................................................................... 1

xiv

U.S. Const. amend. VIII ................................................................................................ 1

U.S. Const. amend. XIV ................................................................................................. 2

PETITION FOR A WRIT OF CERTIORARI

Petitioner Billy Leon Kearse respectfully petitions this Court for a Writ of

Certiorari to review the judgment of the Florida Supreme Court in this case.

CITATIONS TO OPINIONS AND ORDERS BELOW

The Florida Supreme Court’s consolidated opinion affirming the denial of state

postconviction relief and denying Mr. Kearse’s petition for writ of habeas corpus is

unreported. Kearse v. State, Nos. SC2026-0250 & SC2026-0251, 2026 WL 523132

(Fla. Feb. 25, 2026) (Pet. App. Vol I at 2a-8a). The state circuit court’s order denying

Mr. Kearse’s motion for postconviction relief pursuant to Florida Rule of Criminal

Procedure 3.851 is unreported. (Pet. App. Vol. I at 10a-31a).

STATEMENT OF JURISDICTION

The Florida Supreme Court issued its consolidated order affirming the denial

of postconviction relief and denying Mr. Kearse’s petition for writ of habeas corpus on

February 25, 2026. The mandate issued immediately thereafter. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, in relevant

part:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury . . .

and to have the Assistance of Counsel for his defence.

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

Section 1 of the Fourteenth Amendment to the United States Constitution

provides, in relevant part:

No State shall . . . deprive any person of life, liberty, or

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

person within its jurisdiction the equal protection of the

laws.

INTRODUCTION

The State of Florida seeks to execute Billy Leon Kearse, an intellectually

disabled, indigent defendant, who was just 18 years and 84 days old at the time of

the tragic murder of a law enforcement officer in this case. “What . . . [Mr.] Kearse

did was horrible,” Kearse v. State, 770 So. 2d 1119, 1138 (Fla. 2000) (Anstead, J.,

dissenting), however, three justices of the Florida Supreme Court 26 years ago

recognized the foundational impropriety of Mr. Kearse’s sentence and determined

that “[i]t is not one of the most aggravated and least mitigated or among the worst of

the worst for which we have reserved death as the only appropriate response.” Id.

“The bottom line is that this is clearly not a death case,” id., and that “bottom line is

the same under federal law.” Kearse v. Sec’y, Fla. Dep’t of Corr., 2022 WL 3661526, at

*29 (11th Cir. 2022) (Wilson, J., concurring in part & dissenting in part). This

conclusion has only grown stronger in light of new evidence that arose for the first

time in the face of imminent execution.

On February 2, 2026, an assessment of Mr. Kearse’s intellectual and cognitive

functioning using the newest edition of the Weschler Adult Intelligence Scale (WAIS)

and most accurate normative sample available revealed that Mr. Kearse has a fullscale IQ score of 75. (Pet. App. Vol. II at 170a-178a). This newly discovered fact,

coupled with a litany of uncontroverted deficits in conceptual and social adaptive

behaviors that manifested during the developmental period, now establishes that Mr.

Kearse is intellectually disabled and categorically exempt from execution under this

Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), and its progeny.

In conjunction with this categorical bar, new evidence additionally

demonstrates that the jury at Mr. Kearse’s resentencing proceeding was

impermissibly influenced by an overwhelming presence of uniformed law

enforcement officers in the courtroom. This evidence came to light when a juror,

Claire Hamblin Matthews, voluntarily disclosed her recollection of the case during

the social media maelstrom that ensued after the signing of Mr. Kearse’s death

warrant. 1 The juror’s commentary unequivocally revealed the forceful impact that a

“courtroom . . . filled with Leo’s from every city and county in the state” who “would

stand there for several hours, never wavering” had on her, how she “remember[ed]

silently hoping that [the victim’s] family and friends would know how much he was

loved,” leading Mr. Kearse to allege in his successive state postconviction motion that

he was deprived of his right to a fair and impartial jury under the Sixth and

Fourteenth Amendments at his resentencing as a result. (Pet. App. Vol. II at 42a51a).

1 In Florida, attorney ethical rules and decisional law generally prohibit an

attorney or her representatives from attempting to speak with jurors after the trial

has concluded. See Marshall v. State, 854 So. 2d 1235 (Fla. 2003). If information

surfaces that might require a juror interview, the Florida Supreme Court has

provided strict rules for seeking leave of court to interview a juror or jurors. Id. In

Mr. Kearse’s case, he did seek leave of the Florida circuit court and the Florida

Supreme Court to interview Juror Matthews after Matthews’s voluntary social media

post came to light, but his efforts were turned down by both courts.

Notwithstanding the foregoing, the state circuit court summarily denied relief

on both the impartial jury and the intellectual disability issues, and the Florida

Supreme Court affirmed, finding both claims untimely, procedurally barred, and/or

legally insufficient. (Pet. App. Vol. I. at 3a-6a). The court further denied habeas relief.

(Pet. App. Vol. I at 7a-8a). Even the most cursory review of Mr. Kearse’s claims and

arguments on appeal shows that “[t]he Florida Supreme Court affirmed [Mr.

Kearse’s] death sentence neither based on a review of the individual record in this

case nor in reliance on the [circuit court] judge’s findings based on that record, but in

reliance on some other nonexistent findings.” Parker v. Dugger, 498 U.S. 308, 321

(1991). Indeed, “there is a sense in which the court did not review [Mr. Kearse’s]

sentence [or claims] at all.” Id.

This Court has “emphasized repeatedly the crucial role of meaningful appellate

review in ensuring that the death penalty is not imposed arbitrarily or irrationally,”

id. at 321, and the Florida Supreme Court’s flagrant dismissal of a categorical bar to

execution and objective, firsthand evidence from a juror who voted to impose “the

most irremediable and unfathomable of penalties,” Ford v. Wainwright, 477 U.S. 399,

411 (1986), is antithetical to that process. “Persons facing the most severe sanction

must have a fair opportunity to show that the Constitution prohibits their execution,”

Hall v. Florida, 572 U.S. 701, 724 (2014), and the court’s opinion in Mr. Kearse’s case

is part of a troubling trend that signifies appellate review under warrant in Florida

is nothing more than a hollow exercise on an execution check-list.

In addition, Mr. Kearse submits that the Eighth Amendment’s categorical

prohibition on executing those with intellectual disabilities must yield to any stateimposed judicial barriers to review such as the procedural bars or timeliness issues

which were utilized by the Florida Supreme Court to avoid addressing Mr. Kearse’s

intellectual disability claim.

STATEMENT OF THE CASE 2

Petitioner Billy Leon Kearse was convicted and sentenced to death in St. Lucie

County, Florida for the murder of Fort Pierce Police Officer Danny Parrish3 on

January 18, 1991, when Mr. Kearse was just 18 years and 84 days old. Earlier that

evening, Mr. Kearse had confronted his stepfather who was being verbally abusive to

his mother, and they had a fight. (R1. 1457, 2725-26); (SR. 28). Upset, Mr. Kearse

went to friends Derrick Dickerson and Rhonda Pendleton’s house. (R1. 1457). They

decided to order a pizza for dinner. Mr. Kearse and Ms. Pendleton took her brother’s

car to go pick it up. (R1. 1458-59). While on their way back to the house, the car started

leaking oil and smoking. (R1. 1461). To avoid traffic, Mr. Kearse turned and drove the

wrong way down a one-way street. (R1. 1460-61).

Officer Parrish witnessed this violation and conducted a traffic stop. Mr. Kearse

did not have a valid driver’s license. Initially, he gave Officer Parrish false names,

which he knew was wrong. (SR. 10). Officer Parrish told Mr. Kearse that if he provided

2 Citations to the record refer to the Appendix or the records on appeal in this

case. All other citations shall be self-explanatory.

3 Officer Danny Parrish was posthumously promoted to the rank of sergeant

by the Fort Pierce Police Department. In accord with the trial and resentencing

record, Mr. Kearse refers to Sgt. Parrish using his rank of officer at the time of the

crime in 1991 in this Petition.

his real name, he would write three tickets and let him go. (SR. 8). Mr. Kearse then

gave Officer Parrish his real name, date of birth, and age. (SR. 8-19). Officer Parrish

nonetheless initiated an arrest.

Officer Parrish told Mr. Kearse to exit the car and put his hands on top of it.

(R1. 1465); (SR. 5, 19). While maneuvering with the handcuffs, Officer Parrish hit Mr.

Kearse under his left eye with them. (SR. 5, 19). A scuffle ensued during which Mr.

Kearse believed Officer Parrish was reaching for his gun. (SR. 5, 11, 19). Panicked,

Mr. Kearse grabbed Officer Parrish’s weapon and fired over a dozen shots, killing him.

Trial, Resentencing, and Direct Appeal Proceedings

Mr. Kearse was indicted for one count of first-degree murder and one count of

possession of a firearm (Officer Parrish’s weapon) by a convicted felon. 4 (R1. 242830). The State later filed an Amended Indictment adding the charge of robbery with

a firearm (the taking of Officer Parrish’s weapon during the struggle). (R1. 2431-33).

Mr. Kearse pleaded not guilty and was tried by a jury in October 1991 in Indian

River County, Florida. 5 The jury rendered guilty verdicts on both the first-degree

murder and robbery counts. (R1. 1864-65). After the penalty phase, the jury

recommended death by a vote of 11–1. (R1. 2361, 2367). The trial court imposed a

sentence of death for the murder and life imprisonment for the robbery conviction.

4 Mr. Kearse’s previous felony conviction was for burglary and “possession of

burglary tools” after he and some friends broke into a school two years prior.

Due to pervasive pretrial publicity, the State and Defense executed a

Stipulated Agreement to transfer venue for the trial from St. Lucie County to Indian

River County. (R1. 2519-20)

(R1. 2395, 2403, 2423).

On direct appeal, the Florida Supreme Court affirmed Mr. Kearse’s convictions

but held that aggravating factors were impermissibly doubled and that the heinous,

atrocious, and cruel (HAC) aggravating factor was improperly found. Kearse v. State,

662 So. 2d 677 (Fla. 1995). Mr. Kearse’s death sentence was vacated, and the case

was remanded for a new penalty phase, which took place in 1996.

Prior to jury selection for the resentencing, counsel for Mr. Kearse 6 filed a

Motion for Order Regulating Courtroom Spectators, arguing that Mr. Kearse would

be deprived of a fair proceeding due to the presence of uniformed officers in the

courtroom during the 1991 trial. (R2T. 216-17; R2. 532-33). The court deferred ruling

“until counsel believes that the situation exists that requires their ruling and we can

discuss that outside the presence of everybody.” (R2T. 225). Trial counsel never

revisited the issue.

The resentencing jury returned a unanimous recommendation for death. (R2T.

2695). In imposing Mr. Kearse’s sentence, the trial court found two aggravators: (1)

in the course of a robbery, and (2) avoid arrest, hinder law enforcement, and the

victim was a law enforcement officer (merged). (R2. 706-09). The court found age to

be a statutory mitigator and gave it “some but not much weight.” (R2. 708). The court

also found that Mr. Kearse exhibited acceptable behavior at trial and that he had a

6 Mr. Kearse was represented by Robert Udell at both his original 1991 trial

and the 1996 resentencing proceeding. Mr. Udell was later disbarred. See infra note

difficult childhood that resulted in psychological and emotional problems. 7 (R2. 709).

The non-statutory mitigating factors directly related to, or a byproduct of, Mr.

Kearse’s intellectual deficits and low IQ that were found by the trial court included:

“Low IQ, impulsive, and unable to reason abstractly”; “Impulsive person with memory

problems and impaired social judgment”; “Difficulty attending to and concentrating

on visual and auditory stimuli”; “Difficulty with perceptual organizational ability and

poor verbal comprehension”; “Impaired problem solving”; “Impaired cognitive

flexibility”; “Deficits in visual and motor performance”; “Lower verbal intelligence”;

Poor auditory short-term memory”; Mildly retarded and functioned at a third or

fourth grade level”; “Developmentally learning disabled”; Slow learner and needed

special assistance school”; “The Defendant was severely emotionally handicapped”;

“Impaired memory”; “Impoverished academic skills”; Mental, emotional, and learning

disabilities”; “Delayed developmental milestones”; and “Severely emotionally

disturbed child.” (R2. 591-92; 709).

The Florida Supreme Court affirmed Mr. Kearse’s death sentence by a 4–3

margin. Kearse v. State, 770 So. 2d 1119 (Fla. 2000). The dissent expressed “several

concerns with the majority’s treatment of the issues, and especially the conclusion

7 The non-statutory mitigating factors found by the trial court that pertained

to Mr. Kearse’s difficult upbringing included: “Socially and economically

disadvantaged”; Impoverished background”; “Improper upbringing”; “Defendant was

malnourished”; “No opportunity to bond with his natural father”; Father died when

Defendant was young and he grew up without a male role model”; “Defendant came

from a broken home and raised in poverty”; “Raised in a dysfunctional family”;

“Alcoholic mother”; “Neglect by mother”; “Childhood trauma”; “Defendant subjected

to sexual abuse”; and Mother gave up on Defendant at an early age and raised himself

in the streets.” (R2. 591-92; 709).

that this is one of the most aggravated and least mitigated murders requiring that

that eighteen-year-old defendant be executed.” Id. at 1135 (Anstead, J., dissenting).

It also pointed out that “there is no evidence that [Mr.] Kearse set out that night

intending to commit any crime, let alone murder.” Id. at 1136. Certiorari was denied

by this Court. Kearse v. Florida, 532 U.S. 945 (2001).

State Postconviction Proceedings

Mr. Kearse timely filed a motion for postconviction relief pursuant to Florida

Rule of Criminal Procedure 3.850/3.851. (PCR2. 14-68; 1458-1572). Following a

limited evidentiary hearing, (PCR2. 1458-1572, 1660-63), relief was denied. (PCR2.

5703). The Florida Supreme Court affirmed and also denied Mr. Kearse’s petition for

habeas relief. 8 Kearse v. State, 969 So. 2d 976 (Fla. 2007).

Federal Habeas Proceedings

Mr. Kearse thereafter petitioned for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 in the United States District Court for the Southern District of Florida.

The next half decade of federal litigation was devoted to the State’s unfounded

contention that Mr. Kearse’s petition was untimely because the sworn verification to

his initial Rule 3.851 motion was not stapled to the motion itself. This litigation

included two separate dismissal orders from the federal district court and two

On October 29, 2009, Mr. Kearse’s trial and resentencing counsel was

disbarred. The Florida Bar v. Udell, 22 So. 3d 60 (Fla. 2009). After Udell’s

disbarment, Mr. Kearse filed a successive Rule 3.851 motion. (PCR3. 4-21). The

circuit court summarily denied relief, and the Florida Supreme Court affirmed.

(PCR3. 94-96); Kearse v. State, 75 So. 3d 1244 (Fla. 2011) (unpublished table

disposition).

separate opinions from the Eleventh Circuit Court of Appeals reversing those orders.

The district court issued a final order denying habeas relief in 2015, which a divided

Eleventh Circuit panel ultimately affirmed. 9 Kearse v. Sec’y, Fla. Dep’t of Corr., 2022

WL 3661526 (11th Cir. 2022), cert. denied, 143 S. Ct. 2439 (2023).

State Postconviction Proceedings Under Warrant

On January 29, 2026, Florida Governor Ron DeSantis signed a death warrant

for Mr. Kearse, scheduling his execution for Tuesday, March 3, 2026, at 6:00 p.m. (WR.

46-60). The Florida Supreme Court, in turn, issued an expedited scheduling order,

which was later modified at the request of Mr. Kearse’s lead counsel. 10 In accordance

9 One

of the issues before the Eleventh Circuit was whether Mr. Kearse’s

sentence of death constitutes cruel and unusual punishment due to his deficits in

intellectual functioning and mental and emotional impairments, in combination with

his youth at the time of offense. Circuit Judge Wilson dissented, finding that the

Florida Supreme Court unreasonably applied clearly established federal law when it

engaged in “a patently unreasonably narrow characterization of [Mr.] Kearse’s

Eighth Amendment argument” and “failed to analyze whether [his] death sentence

was proportional or constitutionally excessive given the facts of his case.” Kearse v.

Sec’y, Fla. Dep’t of Corr., 2022 WL 3661526, at *29 (11th Cir. 2022). Judge Wilson

asserted that “[t]hree justices of the Florida Supreme Court said it best: ‘The bottom

line is that this is clearly not a death case’” and “[t]he bottom line is the same under

federal law. You need not be an Eighth Amendment scholar to see why.” Id. at *2930 (internal citation omitted).

10 Since the signing of his death warrant, Mr. Kearse’s lead counsel of 22 years,

Paul Kalil, had been working around the clock in order to adequately represent him

and meet the courts’ scheduling deadlines. However, in the afternoon hours of

February 5, Mr. Kalil’s father was admitted to hospice for end-of-life care. Due to the

warrant, Mr. Kalil had been unable to be with his father the entire week leading up

to his hospice admission. Placed in an impossible situation, Mr. Kalil stepped away

from Mr. Kearse’s case to be with his father and family in those final days. Mr. Kalil’s

father passed away on February 9, and he has remained unavailable for the duration

of these warrant proceedings. Mr. Kearse’s subsequent request to modify the

scheduling order after his father’s death was denied. (WR. 914).

with the modified schedule, Mr. Kearse timely filed a successive motion for

postconviction relief, raising 3 claims, two of which are relevant to this Petition.

The first claim asserted that new evidence established Mr. Kearse was denied

a fair resentencing proceeding because his jury was subjected to impermissible

influences outside of the evidence in the courtroom that tended to subvert its purpose

in contravention of his Sixth and Fourteenth Amendment rights. (Pet. App. Vol. II at

42a-51a). This claim was based on new evidence that came to light on social media

after Mr. Kearse’s warrant was signed.

As set forth in the motion, the Facebook page “Slcscanner” 11 made a post, titled

“Widow of Sgt. Danny Parrish Wants Shared Credit Recognized in Long Fight for

Justice.” The post outlined efforts made by law enforcement agencies, the State

Attorney, prosecutors, and Sgt. Parrish’s widow to secure the signing of Mr. Kearse’s

death warrant. A comment to that post read as follows:

Claire Hamblin Matthews

I was a Juror at the second trial, for a possible resentencing of

the young man that killed Danny. At the end of that 2nd trial, his

death sentence remained. It was one of the hardest things I’ve ever done,

but there was no doubt it was the right sentence. I’ll never forget the

respect and support shown to Danny in that courtroom. Every

day, no matter how long the trial went, the back of the courtroom

was filled with Leo’s from every city and county in the state, so

much support and respect from his fellow Leo’s. They would

stand there for several hours, never wavering. I remember

silently hoping that his family and friends would know how

11 “Slcscanner” is a media/news company whose Facebook page, which posts

news and other information about “what’s going on in St. Lucie County,” has some

142,000 followers. (Pet. Vol. II at 45a).

much he was loved.

(Pet. App. Vol. II at 86a) (emphasis added). The post was made on February 3, 2026. 12

(Pet. App. Vol. II at 45a).

The record confirms that Claire Hamblin Matthews was indeed a juror at Mr.

Kearse’s resentencing. 13 (R2. 1112). Her voluntary post makes clear that “every day,”

no matter “how long the trial went,” the “back of the courtroom was filled with Leo’s

12 A screenshot of Matthews’s post was taken by Mr. Kearse’s legal team at

10:42 p.m. on February 3, 2026, and Matthews’s comment was posted about an hour

before the screenshot was taken. Curiously, the post was subsequently deleted from

the platform less than 24 hours after it was made. (Pet. App. Vol. II at 45a).

13 The record adds intriguing context to Juror Matthews and her social media

post. During voir dire, Matthews acknowledged handing “some insurance matters”

for one of the prosecutors on the case and that she had spoken with him and his family

over the phone and in person. (R2T. 860). Matthews also acknowledged “vaguely

remembering something” about Mr. Kearse’s case from the media and shared that “in

conversations with a family member last night, [she] learned of another family

member who was coming into town for the holidays only because he has to testify in

a trial where a cop was killed and [that she had] a feeling, and . . . [was] assuming

that it’s possibly this trial . . . .” (R2T. 867-68). Matthews advised that this family

member was Leo Raulerson who was retired from the Fort Pierce Police Department.

(R2T. 867-68). The prosecutor thereafter explained that there was a law enforcement

witness named “Les Raulerson.” (R2T. 868). When Matthews was again questioned

about what she had learned about Mr. Kearse’s case from sources outside of the

courtroom when Mr. Kearse was initially tried, she “recalled reading about it in the

paper and hearing about it in the media several years ago.” (R2T. 1007-08). She “just

remember[ed] it was a cop in Fort Pierce and . . . that he was shot about 14 times . . .

.” (R2T. 1007-08). Notwithstanding whatever prior knowledge she recalled from

reading media accounts, Matthews said she could be fair. (R2T. 1015-16).

Trial counsel moved to strike Juror Matthews for cause “based upon her

knowledge of the facts of the case and other statements which would indicate that

she could not be fair and impartial.” (R2T. 1097). The court denied the cause

challenge. (R2T. 1098). The defense later noted that it had used its allotted

peremptory challenges and requested additional ones in order to assert a peremptory

against Matthews, among others. (R2T. 1105, 1107-08). That request was denied, and

Matthews sat as a juror. (R2T. 1112).

from every city and county in the state, so much support and respect from his fellow

Leo’s.” Juror Matthews’s voluntary post also specifically indicates that the law

enforcement presence was “never wavering,” with officers standing there “for several

hours.” The influence Juror Matthews felt from the fact that the courtroom was “filled”

with law enforcement officers “from every city and county in the state” is

unequivocally expressed in her statement that she would “never forget the respect and

support shown to Danny in that courtroom” and that she “remember[ed] silently

hoping that his family and friends would know how much he was loved.”

Mr. Kearse asserted that Juror Matthews’s social media comments establish

not just the presence of uniformed law enforcement officers “filling” the courtroom and

showing their unwavering support for the victim during the resentencing, but also

that their presence created an atmosphere that prejudiced Mr. Kearse in

contravention of his “Sixth Amendment right to be tried ‘by a panel of impartial,

“indifferent” jurors [whose] verdict must be based solely upon the evidence developed

at trial.’” Woods v. Dugger, 923 F.2d 1454, 1456-57 (11th Cir. 1991) (quoting Irvin v.

Dowd, 366 U.S. 717, 722 (1961) (alternation in original); Holbrook v. Flynn, 475 U.S.

560, 570 (1986) (emphasizing “the threat that a roomful of uniformed and armed

policeman might pose to a defendant’s chance of receiving a fair trial”).

Mr. Kearse maintained that Juror Matthews’s social media revelations could

not have been previously discovered until her voluntary post was made on February

3, as there is no information in the extant record nor anything in the record of the

resentencing proceeding that could have led reasonably diligent counsel to investigate

further. As such, the claim was timely filed outside the one-year limitation set forth

in Florida Rule of Criminal Procedure 3.851(d)(2)(A).

Mr. Kearse likewise alleged that Juror Matthews’s post satisfied the requisite

tests for both actual and inherent prejudice under the applicable law. Compare

Shootes v. State, 20 So. 3d 434, 438 (Fla. 1st DCA 2009) (noting that the test for actual

prejudice requires a defendant to establish “some indication or articulation by a juror

or jurors that they were conscious of some prejudicial effect”), with Pozo v. State, 963

So. 2d 831, 837 (Fla. 4th DCA 2007) (explaining the test for inherent prejudice does

not require a showing that “jurors actually articulated a consciousness of some

prejudicial effect,” but rather “whether ‘an unacceptable risk is presented of

impermissible factors coming into play’” (quoting Holbrook, 475 U.S. at 570)).

Mr. Kearse sought an evidentiary on this claim and filed a Motion to Interview

Juror Matthews wherein he alleged good cause to investigate this evidence. 14 (WR.

14 Mr. Kearse also filed demands for additional public records pursuant to

Florida Rule of Criminal Procedure 3.852(i) to the Office of the Attorney General,

Office of the State Attorney, Nineteenth Judicial Circuit; and St. Lucie County

Sheriff’s Office. (WR. 569-98). These demands sought all communications between

any current or former employees of each agency and Juror Matthews given the

curious deletion of her post amidst commentary on the same thread from the victim’s

widow (who is a current employee of the St. Lucie County Sheriff’s Office) and the

existence of other comments on the same social media platform about the signing of

Mr. Kearse’s warrant from one of the Assistant Attorney Generals prosecuting this

case. The circuit court denied Mr. Kearse’s demands as untimely, overly broad, and

not reasonably calculated to lead to a colorable claim. (Pet. App. Vol. I at 34a-35a).

On appeal, the Florida Supreme Court found that the circuit court did not abuse its

discretion in denying Mr. Kearse’s demands because they “were untimely filed six

days after the deadline imposed by the circuit court’s scheduling order” and “[e]ven

accepting [Mr.] Kearse’s timeline and factual allegations as true, his theory that a

state or county agency engaged in misconduct by contacting Juror M about her post

is purely speculative and does not provide a basis for a colorable claim of relief.”(Pet.

App. Vol. I at 4a-5a). As such, the Florida Supreme Court found that Mr. Kearse’s

743-50).

The second claim in Mr. Kearse’s motion for postconviction relief asserted that

newly discovered evidence of a full-scale IQ score of 75 on the newly released WAIS-5

establishes that he is intellectually disabled. 15 (Pet. App. Vol. II at 52a-62a). Mr.

Kearse asserted that this newly discovered fact, coupled with his lifelong deficits in

adaptive functioning, established that he is intellectually disabled, which is an

absolute bar to execution under Atkins v. Virginia, 536 U.S. 304 (2002), and its

progeny. Mr. Kearse sought an evidentiary hearing to demonstrate that this evidence

was timely discovered and that he meets all three prongs of Florida’s test for

evaluating intellectual disability set forth in Section 921.137(1), Florida Statutes

(2013). 16

Mr. Kearse further asserted that he meets prong 2 of Florida’s intellectual

“records requests amount[ed] to a fishing expedition rather than a proper basis for

obtaining post-warrant public records under rule 3.852.” (Pet. App. Vol. I at 5a). The

Florida courts’ denial of Mr. Kearse’s demands for additional public records here is

yet another example of the “Catch-22” recognized by Justice Sotomayor in her

February 24, 2026 statement respecting the denial of Melvin Trotter’s application for

a stay of execution and denial of certiorari. See Trotter v. Florida, 607 U.S. ___, Case

No. 25-6853 (25A926) (Feb. 24, 2026) (Sotomayor, J., respecting the denial of

application for stay of execution and denial of certiorari).

15 Mr. Kearse was administered the WAIS-5 on February 2, 2026, by Robert H.

Ouaou, Ph.D., whose report was attached to his Rule 3.851 motion. (Pet. App. Vol. II

at 170a-178a). Mr. Kearse indicated that Dr. Ouaou would be available to testify to

the facts alleged in his motion at an evidentiary hearing.

16 Mr. Kearse filed a separate motion asking the state circuit court to declare §

921.137(4) regarding the “clear and convincing evidence” burden of proof for

establishing an intellectual disability claim unconstitutional. (WR. 792-800). The

circuit court denied Mr. Kearse’s motion, and the Florida Supreme Court affirmed.

(Pet. App. Vol. I at 7a, 27a-28a).

disability standard because he exhibits chronic and significant deficits in both the

conceptual and social domains. Mr. Kearse pointed to uncontroverted record evidence

establishing that he has struggled with language and literary since birth. In doing so,

he noted how he developed physically and emotionally later than his peers and had

both slurred speech and trouble pronouncing words “like a child his age should have

been able to do.” (R2T. 1983). Mr. Kearse likewise noted how his school records are

rife with evidence that he functioned below grade level starting in kindergarten,

(PCR2. 4409-4994), and how standardized testing shows that he had difficulties with

comprehension, reading, mathematics, handwriting, attention, and communication.

In this vein, Mr. Kearse highlighted how he was administered the Weschler

Intelligence Scale for Children – Revised (WISC-R) in 1981 and attained a full-scale

IQ score of 78. His verbal IQ score of 74 on the instrument placed him in the 5th

percentile.

Mr. Kearse additionally emphasized how administration of the Wide Range

Achievement Test – Revised (WRAT-R) when he was in eighth grade indicated that

he was functioning below a third-grade level. He scored in the 2nd percentile for

reading and was below the 1st percentile relative to his age and grade-matched peers.

Mr. Kearse’s scores on the Peabody Individual Achievement Test (PIAT) that same

year also showed significant deficits in these areas.

Mr. Kearse asserted that his records were replete with additional notations of

learning and emotional problems and show he was placed into special education

classes as part of an emotionally handicapped program at the Anglewood Center in

St. Lucie County. He also noted how several of his former teachers and counselors

throughout his life have attested to his academic and developmental difficulties in this

case.

Mr. Kearse finally argued that the above established his deficits “manifested

during the period from conception to 18.” § 921.137(1), Fla. Stat. In doing so, Mr.

Kearse stressed how he was barely 18 years old when the crime in this case occurred

and that deficits in his intellectual functioning and adaptive behavior were both

observed and well documented before then, as demonstrated by the lengthy list of

mitigating evidence pertaining to his IQ and cognitive abilities that the trial court

found established by the greater weight of the evidence. (R1. 2726-30); (R2. 708-09).

Mr. Kearse additionally noted that the State’s own expert at the 1996 resentencing

admitted Mr. Kearse’s “test results suggest that [he] has intellectual deficits and

subnormal IQ.” Kearse, 770 So. 2d at 1139 (Anstead, J., dissenting); (R2T. 2384-85).

Mr. Kearse simultaneously filed a motion to stay his execution asserting, inter

alia, that this Court’s decision in Hamm v. Smith, No. 24-872, would directly impact

the Florida courts’ assessment of evidence pertaining to his intellectual functioning

and eligibility for execution. (WR. 751-58).

Notwithstanding clear factual disputes with Mr. Kearse’s claims, the circuit

court denied an evidentiary hearing on February 12, 2026. (Pet. App. Vol. I at 33a37a). A final order summarily denying relief on all claims and a stay of execution was

entered on February 14, 2026. (Pet. App. Vol. I at 10a-31a).

Mr. Kearse thereafter appealed to the Florida Supreme Court, (WR. 937-39),

and simultaneously filed a petition for writ of habeas corpus. In his petition, Mr.

Kearse’s asserted that new evidence and scientific consensus establish that his age at

the time of the crime and lower intellectual functioning place him in the very

categories of capital defendants that this Court sought to protect through its decisions

in Atkins, 536 U.S. 304, and Roper v. Simmons, 534 U.S. 551 (2005), and that the

arbitrary and capricious nature of Mr. Kearse’s trial and postconviction proceedings

has contravened constitutional protections designed to ensure that the gravest

sentence our society can impose be applied only to the most aggravated and least

mitigation of capital cases.

The Florida Supreme Court issued a consolidated opinion affirming the circuit

court’s order summarily denying postconviction relief and denying Mr. Kearse’s

habeas petition on February 25, 2026. 17 (Pet. App. Vol. I at 2a-8a).

In rejecting Mr. Kearse’s claim regarding Juror Matthews’s post-warrant social

media post and the denial of his right to a fair and impartial jury, the court supplied

the following barebones analysis:

Kearse’s claim is untimely because it is premised on facts that could have

been discovered decades ago with due diligence. His second penalty

phase occurred in 1996, and our affirmance of his death sentence became

final in 2001. The presence of uniformed officers in the courtroom during

17 Prior to the issuance of the opinion, Mr. Kearse filed an Emergency Motion

To Relinquish Jurisdiction To Allow The Filing Of Demands For Public Records

Pursuant To Fla. R. Crim. P. 3.852(i) or, In The Alternative, Motion For An Order

Directing The Florida Department Of Corrections To Immediately Provide

Unredacted Records To Mr. Kearse Concerning The Executions Of Ronald Heath And

Melvin Trotter. This request was prompted by the concerns expressed by Justice

Sotomayor in her statement regarding the denial of certiorari in another capital case.

Twenty-six minutes after the State’s filed its objection, the Florida Supreme Court

issued an order denying Mr. Kearse’s request. The court’s order supplied no reasoning

for its decision.

the second penalty phase would have been readily observable. To the

extent that the officers’ presence raised constitutional concerns, Kearse

had ample opportunity to investigate any potential undue influence on

the jury. Whatever the relevance of Juror M’s Facebook post, it merely

discloses information that due diligence could have uncovered long ago.

In addition, this Court has held that “in an active [death] warrant case,

a postconviction claim that could have been raised in a prior proceeding

is procedurally barred.” Rogers v. State, 409 So. 3d 1257, 1263 (Fla.), cert.

denied, 145 S. Ct. 2695 (2025).

This rule applies to Kearse’s claim here, which he could have raised long

ago on appeal or in an earlier postconviction proceeding. The circuit court

was right to deny Kearse’s claim as procedurally barred.

(Pet. App. Vol. I at 4a) (alteration in original).

In thereafter rejecting Mr. Kearse’s claim that his death sentence is

unconstitutional based on newly discovered evidence that he is intellectually disabled,

the court held that “Kearse’s last-minute, post-warrant IQ score does not qualify as

newly discovered evidence, and the circuit court did not err in denying this untimely,

procedurally barred, and legally insufficient claim.” (Pet. App. Vol. I at 6a.). As for

timeliness, the court specifically found that “Kearse has failed to establish that he

exercised due diligence in discovering his alleged intellectual disability” because

“[e]ven accepting Kearse’s argument that that he could not have discovered his IQ

score of 75 before the WAIS-5 was released, . . . [i]t was not filed within one year of

when his IQ score could have been discovered through the exercise of due diligence.”

(Pet. App. Vol. I at 6a). In reaching this conclusion, the court reasoned that:

According to Kearse, the WAIS-5 was released in October 2024.

Assuming that is true, October 2024 would be the earliest date upon

which Kearse’s IQ score would have become discoverable through the

exercise of due diligence. Thus, to satisfy rule 3.851(d)(2)(A), Kearse’s

claim would need to have been filed by October 2025 at the very latest.

(Pet. App. Vol. I at 6a). This finding concerning the timing of the WAIS-5

administration is wholly absent from the circuit court’s order and was not advanced

by the State in its response to Mr. Kearse’s motion for postconviction relief or brief on

appeal.

In determining that the circuit court also properly denied Mr. Kearse’s

intellectual disability claim as procedurally barred, the Florida Supreme Court noted

that “Kearse has engaged in numerous postconviction proceedings over the last two

and a half decades. Yet not at trial, on appeal, or in any of his state or federal

postconviction proceedings has he raised a claim that he is intellectually disabled

under Atkins.” (Pet. App. Vol. I at 6a.).

The Florida Supreme Court finally found that summary denial of his

intellectual disability claim was proper because:

Kearse failed to sufficiently plead the second prong—concurrent

adaptive deficits—of the intellectual disability standard under section

921.137(1). . . . Thus, even if Kearse’s last minute, post-warrant IQ test

results were sufficient to raise a factual issue as to prong one of section

921.137(1) (they are not), Kearse is not entitled to relief because he has

not alleged any current deficits in adaptive behavior.

(Pet. App. Vol. I at 6a). In doing so, the court noted that “Kearse has alleged only

adaptive deficits that were present during his childhood, relating to his trouble with

reading and mathematics, as well as being less emotionally developed than his peers

at school. Kearse has not alleged any adaptive deficits that are present now, as would

be required to satisfy prong two of section 921.137(1).” (Pet. App. Vol. I at 6a).

According to the court, “Kearse did not allege that any of his domains are impaired

such that ongoing support is needed, nor did he allege that he is currently receiving

support.” (Id.). Therefore, “he failed to make out a sufficient claim that he is

intellectually disabled under Florida law.” (Id.). Any purported pleading deficiency

with this claim was not part of the circuit court’s analysis and never asserted by the

State at any point.

As to Mr. Kearse’s habeas petition, the Florida Supreme Court found Mr.

Kearse’s claim procedurally barred the court has already rejected his argument “that

he should be exempt from execution based on an interplay of Roper and Atkins” during

initial postconviction proceedings.” (Pet. App. Vol. I at 7a). Thus, “Kearse cannot

relitigate the issue now.” (Pet. App. Vol. I at 7a). Moreover, the court found Mr.

Kearse’s claim meritless “as [it] determined in his initial postconviction appeal.” The

court then pointed to its decision in Barwick v. State, 361 So. 3d 785 (Fla. 2023), to

assert that the conformity clause of article I, section 17 of the Florida Constitution,

likewise precluded relief. (Pet. App. Vol. I at 8a).

No motion for rehearing was permitted, and the Mandate issued immediately.

This Petition now follows.

REASONS FOR GRANTING THE WRIT

Florida Supreme Court Continually Fails to Perform Meaningful

Appellate Review

This Court’s “’duty to search for constitutional error with painstaking care is

never more exacting than it is in a capital case.’” Kyles v. Whitley, 514 U.S. 419, 422

(1995) (quoting Burger v. Kemp, 483 U.S. 776, 785 (1987)). This principle extends to

all lower courts—both state and federal—given the fact that “death is different.” See

also Lockett v. Ohio, 438 U.S. 586, 605 (1978) (“Given that the imposition of death by

public authority it so profoundly different from all other penalties, we cannot avoid

the conclusion that an individualized decision is essential in capital cases”); Asay v.

State, 210 So. 3d 1, 18 (Fla. 2016) (“Both this Court and the Supreme Court have

recognized that ‘death is different.’”) (citations omitted).

“[I]n death cases,” the Florida Supreme Court has, in the past, prided itself on

the fact that it “has taken care to ensure all necessary protections are in place before

one forfeits his or her life . . . ” Asay, 210 So. 3d at 18. Regrettably, as the decision

from the Florida Supreme Court in Mr. Kearse’s case establishes, the Florida

Supreme Court has abdicated its responsibility to conduct meaningful appellate

review in capital postconviction cases, particularly those in a successor posture, and

instead, “in its regular practice . . . has become a rubber stamp for lower court deathpenalty determinations.” Barclay v. Florida, 463 U.S. 939, 973 (1983) (Stevens, J.,

concurring in the judgment). 18 This Court’s intervention is warranted at this time

“even though [its] labors may not provide posterity with a newly minted rule of law,”

and its review of Mr. Kearse’s case is “especially important” given the “current

popularity of capital punishment” in Florida. Kyles, 514 U.S. at 455-56 (Stevens, J.,

concurring). The bottom line is that “the law requires that [Mr. Kearse] have the

opportunity to present evidence” to support his claims, in particular the evidence “of

his intellectual disability, including deficits in adaptive functioning over his lifetime.”

Justice Stevens expressed confidence in the Florida Supreme Court’s

appellate review in capital cases at that time because it had reversed a substantial

percentage of death sentences in direct appeal decisions. Barclay, 463 U.S. at 973

(Stevens, J., concurring). Mr. Kearse notes that, as of the date of this petition, there

have been 22 executions in Florida since January 1, 2025, with three active death

warrants (including Mr. Kearse’s); the Florida Supreme Court never once has issued

a stay of execution since that date, nor has it remanded for an evidentiary hearing,

much less granted any capital defendant relief under an active death warrant.

Hall v. Florida, 572 U.S. 701, 724 (2014).

The principal way in which the Florida Supreme Court’s decision in Mr.

Kearse’s case demonstrates that court’s abdication of its obligation to afford him

meaningful appellate review is its blind adherence to the state’s bald accusation that

Mr. Kearse’s claims should not be heard because of a lack of “diligence.” Two of the

most troubling and fact-laden constitutional issues he brought to the Florida

Supreme Court—one alleging newly discovered evidence that his resentencing jury

in 1996 was subjected to improper undue influence due to the presence of uniformed

state-wide law enforcement officers “filling” the courtroom, 19 the other alleging that

he has an IQ score of 75 on the newest test for assessing intellectual disability (the

WAIS-5) which, along with unrefuted deficits in adaptive functioning that also

existed prior to the age of 18 (when he was arrested for the instant offense),

establishes that he is intellectually disabled, a categorical bar on the state’s ability to

execute him 20—were rejected based on the Florida Supreme Court’s finding that Mr.

Kearse lacked “diligence” in failing to bring the claims earlier notwithstanding the

fact that the record is replete with Mr. Kearse’s allegations establishing that he was

in fact diligent in bringing both his improper jury influence claim and his intellectual

disability claim. The Florida Supreme Court did not engage with Mr. Kearse’s

allegations at all. It did not address them. It did not analyze them, or disagree with

19 See Irvin v. Dowd, 366 U.S. 717 (1961); Holbrook v. Flynn, 475 U.S. 560

(1986); Woods v. Dugger, 923 F. 2d 1454 (11th Cir. 1991).

20 See Atkins v. Virginia, 536 U.S. 304 (2002).

them, or find them legally insufficient or contrary to the record or otherwise reject

them. It just ignored them as if the allegations were never made.

That is not

meaningful appellate review.

A. The Florida Supreme Court’s “I Know It When I See It” 21 Test for

Diligence

1. The Improper Impermissible Influence Claim

Rather than squarely addressing Mr. Kearse’s claim arising from the postwarrant voluntary social media post from Juror Matthews, the Florida Supreme

Court searched for any conceivable way to bypass the actual constitutional issues the

post raised. (Pet. App. Vol I at 4a) (“Whatever the relevance of Juror M’s Facebook

post . . . ”) (emphasis added). It did so in 2 ways:

First, the Florida Supreme Court stripped Matthews’s Facebook post of vital

details necessary to make out a colorable claim that Mr. Kearse’s resentencing jury

was subjected to impermissible influences outside of the evidence that tended to

subvert its purpose. The court only addressed that part of Matthews’s post where she

revealed that the courtroom at Mr. Kearse’s resentencing was filled with uniformed

officers. (Pet. App. Vol. I at 4a (referring only to Matthews’s statement about “[t]he

presence of uniformed officers in the courtroom during the second penalty phase”)

(emphasis added); id. (“[t]o the extent that the officers’ presence would have raised

constitutional concerns …”) (emphasis added). The court never addressed the other

equally relevant and equally new parts of Matthews’s post that Mr. Kearse cited to

See Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,

concurring).

as relevant to his claim, particularly as to the actual/inherent prejudice standard he

must meet. 22 Matthews’s social media post comment was relevant not just for its new

revelation about the overwhelming presence of uniformed law enforcement officers

from around the state in the courtroom at the 1996 resentencing but, as Mr. Kearse

alleged, Matthews acknowledged a concrete awareness of the prejudicial effect:

she would “never forget the respect and support shown to Danny in that courtroom,”

there was “so much support and respect” from his fellow law enforcement officers,

who would “stand there for several hours, never wavering,” and “remember[s] silently

hoping that his family and friends would know how much she was loved” (WR 643).

These statements demonstrate not only inherent prejudice but actual prejudice; they

certainly establish more than a mere “indication” or “articulation” of “some

prejudicial effect.”

Second, the Florida Supreme Court’s surgical excision of extremely relevant

portions from the entirety of Matthews’s post—and thus allowing it to arbitrarily

reframe the issue as merely one about the presence of uniformed law enforcement

officers in the courtroom—led it to baldly declare, notwithstanding Mr. Kearse’s

allegations to the contrary, that Mr. Kearse was not diligent in investigating and

22 See Woods, 923 F. 2d at 1457 (“In order for Woods to prevail on his claim of

being denied a fair trial he must show either actual or inherent prejudice”) (citing

Holbrook v. Flynn, 475 U.S. 560 (1986); Irvin v. Dowd, 366 U.S. 717 (1961)). The test

for actual prejudice defendant to establish “some indication or articulation by a juror

or jurors that they were conscious of some prejudicial effect.” Shootes v. State, 20 So.

3d 434, 438 (Fla. 1st DCA 2009). Inherent prejudice, on the other hand, does not

require a showing that jurors actually articulated a consciousness of some prejudicial

effect but rather whether “‘an unacceptable risk is presented of impermissible factors

coming into play.” Holbrook, 475 U.S. at 570 (emphasis added).

raising this claim before his initial state court postconviction motion because “[t]he

presence of uniformed officers in the courtroom during the second penalty phase

would have been readily observable” and that Mr. Kearse thus “had ample

opportunity to investigate any potential undue influence on the jury.” (Pet. App. Vol.

I at 4a) (emphasis added).

Meaningful appellate review does not entail a court contorting a constitutional

claim in order to then deny it based on a nebulous unarticulated finding of a “lack of

diligence.” As noted above, there were 2 components to Mr. Kearse’s allegations

concerning Matthews’s post: (1) her disclosure that the courtroom at the resentencing

was “filled” with uniformed officers from around the state showing their “support”

and respect” for the victim, and (2) her revelation about how the presence of these

uniformed law enforcement officers affected her to such an extent that she vividly

recalled this decades later.

As to the first component, the Florida Supreme Court’s bare and nebulous

conclusion that the officers’ presence in the courtroom “would have been readily

observable” simply begs the question. The Florida Supreme Court pointed to nothing

to support its speculative assertion (“I know it when I see it”) that the officers’

presence “would have been readily observable.” To whom would it supposedly have

been “readily observable”? To defense counsel? To the trial court judge? To the

bailiffs? To the prosecutor? 23 To other courtroom spectators? To people in the hallway

23Curiously, at a hearing in the Florida circuit court to determine whether Mr.

Kearse would be entitled to an evidentiary hearing on this claim, one of the state

prosecutors directly challenged the truth of Matthews’s comments that there was any

law enforcement presence in the courtroom at Mr. Kearse’s resentencing. See (WR.

who might have been able to observe people entering and exit the courtroom? The

person selling coffee and snacks at the kiosk in the courthouse hallway? There was

no evidentiary hearing on this claim, and thus the record is absolutely silent on this

point. There is simply no evidence in this record, much less any that the Florida

Supreme Court pointed to, that would have put reasonably diligent collateral counsel

on notice that there may be an undue jury influence issue to investigate. 24

As to the second component regarding the prejudicial effect that the law

enforcement presence in the courtroom had on Matthews, the Florida Supreme Court

simply ignored Matthews’s comments. By doing so it avoiding having to acknowledge

the obvious: that Matthews’s comments concerning the prejudicial effect could never

have been discovered by Mr. Kearse because Florida jurors are not allowed to be

interviewed on any matter concerning their jury service absent the most compelling

of reasons and only with leave of court. See Fla. R. Crim. P. 3.575; Foster v. State, 132

903-04) (prosecutor’s argument that “the inescapable conclusion” was that this issue

was not previously raised “because it’s not the case” that the courtroom was filled

with uniformed law enforcement officers”;

hypothesizing that Matthews’s

“perception . . . could have been bailiffs standing in the back of the room,” concluding

that “I find it hard to believe that the courtroom was packed with people standing in

the back of the room”).

24 As noted earlier, prior to jury selection for the resentencing, counsel for Mr.

Kearse filed a Motion for Order Regulating Courtroom Spectators, arguing that Mr.

Kearse could be deprived of a fair resentencing proceeding due to the presence of

uniformed officers in the courtroom during his original 1991 trial. (R2T. 216-17; R2.

532-33). The court deferred ruling “until counsel believes that the situation exists

that requires their ruling and we can discuss that outside the presence of everybody.”

(R2T. 225). Trial counsel never revisited the issue and thus the record has been silent

about the presence of uniformed law enforcement officers at the resentencing until

Juror Matthews’s recent Facebook post after Mr. Kearse’s death warrant was signed.

So. 3d 40, 65 (Fla. 2013). And when Mr. Kearse did seek judicial leave to interview

Matthews after her Facebook post was discovered, his attempts were rebuffed by the

state circuit court and by the Florida Supreme Court. (Pet. App. Vol I at 4a) (“Kearse

has not demonstrated good cause under Rule 3.575 to excuse his decades-long delay

in seeking a juror interview”).

The Florida Supreme Court’s invocation of “lack of diligence” epitomizes the

lack of meaningful appellate review it afforded to Mr. Kearse’s claim because it

“empties” the concept of diligence “of its meaning.” Williams v. Taylor, 529 U.S. 420,

435 (2000). This Court has, on several occasions, defined the parameters of “due

diligence.” Due diligence is defined as “`reasonable diligence,’” not “`maximum

feasible diligence.’” Holland v. Florida, 560 U.S. 631, 652 (2010) (citations omitted).

It “depends upon whether the prisoner made a reasonable attempt, in light of the

information available at the time, to investigate and pursue claims in state court.”

Williams, 529 U.S. at 435 (emphasis added). “It does not depend . . . upon whether

those efforts could have been successful.” Id. (emphasis added). If there is simply “no

basis” in the record to put reasonably diligent counsel on notice of a potential area for

investigation, then the belated discovery of that information cannot be attributable

to indiligent counsel. Id. at 443. To be found diligent, counsel is not required to chase

every single rabbit down every single imaginable hole. Id. (“We should be surprised,

to say the least, if a district court familiar with the standards of trial practice were to

hold that in all cases diligent counsel must check public records containing personal

information pertaining to each and every juror”).

While it is clear that, under the law, “[d]ue diligence does not require a prisoner

to undertake repeated exercises in futility or to exhaust every imaginable option, but

rather to make reasonable efforts,” Aron v. United States, 291 F. 3d 708, 712 (11th

Cir. 2002), the Florida Supreme Court has, in the past, disagreed with the premise

that, to be diligent, counsel in collateral cases are not required to engage in exercises

of futility. For example, the Florida Supreme Court’s understanding of the concept of

due diligence absolutely requires collateral counsel to undertake exercises in futility

in, for example, raising a claim of intellectual disability when the claim is foreclosed

as a matter of state law. See Bowles v. State, 276 So. 3d 791, 794-95 (Fla. 2019)

(“Bowles’ inaction [in failing to previous raise an intellectual disability claim] should

not be ignored on the basis of the perceived futility of his claim”) (emphasis added). In

other words, the Florida Supreme Court understands that diligence entails an

essential requirement to raise a legally unavailable, or legally insufficient, or a legally

or factually unavailable claim no matter what, at the risk of later being faulted for

a lack of diligence should that previously unavailable claim become, for one reason or

another, newly available. That is not this Court’s understanding of diligence,

however, nor are exercises in futility required under any court’s definition of diligence

save the Florida Supreme Court’s.

An additional problem inheres in the Florida Supreme Court’s understanding

of diligence: it is steeped in hindsight. But conjuring up all the things counsel could

have done but did not (even if those efforts would have been futile or fruitless) is not

the test as it has been articulated by this Court. Just as with a claim of ineffective

assistance of counsel under the standard enunciated by this Court in Strickland v.

Washington, 466 U.S. 668 (1984), “every effort [must] be made to eliminate the

distorting effects of hindsight” because “it is all too easy for a court, examining

[counsel’s actions] after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.” Id. at 689. Indeed, this Court has

expressed a specific concern about “the potential for distortions and imbalance that

can inhere in a hindsight perspective . . . ” Premo v. Moore, 562 U.S. 115, 125 (2011).

These principles apply equally to the diligence inquiry of collateral counsel, but it is

the antithesis of the speculation and hindsight-laden “analysis” performed by the

Florida Supreme Court in Mr. Kearse’s case.

2. The Intellectual Disability Claim.

The Florida Supreme Court also avoided confronting Mr. Kearse’s intellectual

disability claim by relying on a hindsight-driven diligence finding. 25 Mr. Kearse

alleged that he was intellectually disabled, and thus categorically exempt from

execution under the Eighth Amendment, due to score of 75 on the WAIS-5 testing

instrument which was released in October 2024. (Pet. App. Vol. I at 6a; Pet. App. Vol.

II at 52a-62a). The results of that test, administered to Mr. Kearse on February 2,

2026, were alleged in his successive postconviction motion, attached to which were

the report of the mental health expert who conducted the evaluation, Dr. Robert H.

Ouaou, (Pet. App. Vol. II 170a-178a), at as well as a report from another mental

health expert, Dr. Cecil R. Reynolds, who explained that “a full-scale IQ resulting

25 The Florida Supreme Court also imposed procedural bars to the claim; that

analysis is addressed in the following section of this petition.

from proper and accurate administration of the WAIS-5 is the best representation of

an individual’s current intellectual functioning one can attain due to the currentness

of its normative data” (Pet. Vol. II at 92a). Dr. Reynolds also explained that while the

WAIS-5 was released in late October 2024, practitioners

did not immediately start using it in clinical or forensic evaluations as

soon as the test was released—particularly in cases involving high-stakes

decision-making in cognitive assessments like death penalty proceedings.

This is because under the APA’s professional and ethical standards,

examiners are required to be competent in the administration of any test

they use, which requires studying the applicable manual, as well as

practicing both administering and scoring the test itself. While there is

no set rule on how to acquire competency in IQ testing administration,

it is imperative that any examiner practice multiple times in situations

that lack any sort of legal, clinical, or other practical consequences. For

these reasons, it took time for the WAIS-5 to be regularly administered.

(Pet. App. Vol. II at 91a-92a) (emphasis added).

When the Florida state circuit court rejected Mr. Kearse’s intellectual

disability, it did not determine—nor did the state argue—that a time bar precluded

it from reaching the merits of the claim because the WAIS-5 came out in October 2024

and Mr. Kearse was not tested with the WAIS-5 until February 2, 2026 (in other

words, a few months more than 1 year after the WAIS-5 was released). However,

undeterred by the fact that the lower court did not find a time bar for this reason—

nor did the state argue a time bar for this reason in either the lower state court or in

its brief to the Florida Supreme Court—and giving no acknowledgement whatsoever

of Dr. Reynold’s proffered report, the Florida Supreme Court concluded that Mr.

Kearse’s counsel were not diligent because his full-scale IQ score on the WAIS-5 was

the result of a test taken more than a year after the WAIS-5 was “released.” (Pet.

App. Vol. I at 6a) (to be timely, “Kearse’s claim would need to have been filed by

October 2025 at the very latest. Therefore, Kearse’s intellectual disability claim based

on his February 2, 2026, IQ score is untimely”). (Pet. App. Vol. I at 6a).

Again, this finding of a lack of diligence, the consequence of a limited hindsight

lens, is anathema to the notion of meaningful appellate review as this Court has

defined that principle in Evitts and Douglas. Mr. Kearse, in unmistakably clear

language, and accompanied by a report from a qualified mental health expert,

explained in his postconviction motion why rushing to administer a newly released

intellectual functioning testing instrument is contrary to accepted professional

standards. (Pet. App. Vol. II at 61a-62a); Pet. App. Vol. III at 281a-282a). But, like

Mr. Kearse’s allegations concerning the Juror Matthews post, see supra, the

allegations concerning the timeliness of his intellectual disability claim were not

addressed by the Florida Supreme Court. The court did not even acknowledge they

were made. The allegations were never disputed by the lower court because the lower

court did not find that the claim was untimely for the reason the Florida Supreme

Court did. It could not be clearer that the Florida Supreme Court “did not conduct an

independent review” of Mr. Kearse’s intellectual disability claim and “[i]n fact, there

is a sense in which the court did not review [the claim] . . . at all.” Parker, 498 U.S. at

321.

B. The Florida Supreme Court’s Procedural Bar to Atkins claim

In addition to its erroneous timeliness determination, the Florida Supreme

Court also applied a procedural bar to his intellectual disability claim because he had

never previously raised an Atkins claim in his state or federal postconviction

proceedings. (Pet. App. Vol. I at 6a). While the statement that Mr. Kearse had never

previously raised an Atkins claim is factually correct, it does not follow that Mr.

Kearse’s current claim is somehow procedurally barred for failing to raise it sooner.

In an unwitting acknowledgement that Mr. Kearse could not, as a matter of Florida

law at the time, previously raise a good faith intellectual disability claim, the Florida

Supreme noted that IQ testing from Mr. Kearse’s earlier proceedings established IQ

scores of 78 and 79, which, in the court’s view, “placed Kearse outside the intellectual

disability range.” (Pet. App. Vol. I at 5a.) (emphasis added). Aside from the fact that

statement is no longer in fact accurate, see Hall v. Florida, 572 U.S. 701 (2014), this

statement establishes exactly why Mr. Kearse could not previously raise an Atkins

claim in good faith: under Florida’s prior law providing a strict cutoff for intellectual

disability claims for those defendants scoring above a full scale IQ of 70, see Cherry

v. State, 959 So. 2d 702 (Fla. 2007), Mr. Kearse’s scores did not qualify him for relief

under Atkins, as the court acknowledged. (Pet. App. Vol. I at 5a) (Mr. Kearse’s prior

scores of 78 and 79 “placed Kearse outside the intellectual disability range.” (emphasis

added).

Only a failure to meaningfully review Mr. Kearse’s claim and a concomitant

insistence that Florida capital defendants must raise frivolous claims they cannot

prove just to preserve them in the event the law or the facts change can explain the

Florida Supreme Court’s imposition of a procedural bar for the reasons it explained

in its opinion. Talk about a “Catch-22.” See Trotter v. Florida, 607 U.S. ___, Case No.

25-6853 (25A926) (Feb. 24, 2026) (Sotomayor, J., respecting the denial of application

for stay of execution and denial of certiorari). The court acknowledged that prior to

the 75 score on the WAIS-5, Mr. Kearse’s IQ scores placed him “outside the

intellectual disability range” yet the court faulted him for not raising an Atkins claim

previously with scores that the court acknowledged place him outside of the

protections of the Eighth Amendment and Atkins. While the Florida Supreme Court

is of the view that capital defendants must in fact undertake exercises in futility to

preserve an otherwise legally or factually unsupported claim, see Bowles, 276 So. 3d

at 794-95 (“Bowles’ inaction [in failing to previous raise an intellectual disability

claim] should not be ignored on the basis of the perceived futility of his claim”), that

is not the law of this Court. Williams; Holland. The Florida Supreme Court’s

imposition of a procedural bar here is yet a further example of its failure to afford Mr.

Kearse meaningful appellate review.

C. Putative “Pleading Deficiency” of Atkins Claim

The last reason the Florida Supreme Court offered for rejecting Mr. Kearse’s

intellectual disability claim was that he purportedly “failed to sufficiently plead the

second prong—concurrent adaptive deficits . . .” (Pet. App. Vol. I at 6a). Nothing could

be further from the truth, and it is simply mystifying why the Florida Supreme Court

would make such a finding on this record—a finding the lower court did not make

and an argument that the state never advanced.

Even a cursory review of Mr. Kearse’s state court postconviction motion, which

should be a prerequisite to meaningful appellate review, reveals his extensive

allegations concerning the adaptive deficit prong; in fact, there is a separately

delineated 3-page section of the motion devoted to the issue under the heading “Mr.

Kearse has deficits in adaptive functioning.” (Pet. App. Vol. II at 57a-59a)

(emphasis added). Dr. Ouaou’s report also extensively addressed Mr. Kearse’s

adaptive deficits. (Pet. App. Vol. II at 174a-175a; 177a-178a). Mr. Kearse’s Initial

Brief to the Florida Supreme Court likewise addressed the adaptive deficit prong

(Pet. App. Vol. II at 205a-206a; 289a). The Florida Supreme Court’s determination

that this prong had been insufficiently pled has no basis in fact whatsoever, another

consequence of the court’s lack of meaningful appellate review in this case.

II.

The Florida Supreme Court’s Rote Application of Procedural Bars

to Atkins Claims Creates an Unacceptable Risk of Executing the

Intellectually Disabled in Contravention of the Eighth and

Fourteenth Amendments.

The Eighth Amendment’s prohibition against the infliction of cruel and

unusual punishment “flows from the basic ‘precept of justice that punishment for

crime should be graduated and proportioned to [the] offense.’” Kennedy v. Louisiana,

554 U.S. 407, 419 (2008) (quoting Weems v. United States, 217 U.S. 349, 367 (1910)).

In this vein, this Court has long recognized that the death penalty is “unique in its

severity and irrevocability,” Gregg v. Georgia, 428 U.S. 153, 187 (1976), and that “the

Eighth Amendment applies to it with special force.” Roper v. Simmons, 543 U.S. 551,

568 (2005) (citing Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) (O’Connor, J.,

concurring in the judgment)). The foundational principle that “death is different” in

tandem with evolving standards of decency has therefore resulted in the recognition

of that certain “particularized characteristics,” Gregg, 428 U.S. at 190, of an

individual offender necessitate a categorical bar to ensure that “only the most

deserving of execution [be] put to death.” Atkins v. Virginia, 536 U.S. 304, 319 (2002).

This Court’s decision in Atkins established that execution of the intellectually

disabled is unconstitutionally excessive punishment and “that the Constitution

‘places a substantive restriction on the State’s power to take the life’ of [an

intellectually disabled] offender.” 536 U.S. at 307-07 (quoting Ford v. Wainwright,

477 U.S. 399, 405 (1986)). There is no question that this categorical bar exists, and

this Court has held that “[p]ersons facing the most severe sanction must have a fair

opportunity to show that the Constitution prohibits their execution” to

uphold “our Nation’s commitment to dignity and its duty to teach human decency as

the mark of a civilized world.” Hall v. Florida, 572 U.S. 701, 724 (2014) (emphasis

added). Accord Walls v. State, 213 So. 3d 340, 348 (Fla. 2016) (Pariente, J.,

concurring) (“More than fundamental fairness and a clear manifest injustice, the risk

of executing a person who is not constitutionally able to be executed trumps any other

considerations that this Court looks to when determining if a subsequent decision of

the United States Supreme Court should be applied”).

Categorical bans exist to protect both the individual as well as the interests of

society. Ford, 477 U.S. at 409-10. This Court has never suggested that the Eighth

Amendment’s prohibition on executing an intellectually disabled person is subject to

any sort of waiver or procedural bar or lack of diligence in bringing the claim sooner.

Just as it would be illegal to execute a person who was convicted of murder as a 15year-old and who failed to raise an Eighth Amendment challenge at the appropriate

time, see Roper, 543 U.S. at 568-69, or to execute a person who was convicted of rape

but not murder and failed to raise a challenge at the appropriate time, see Kennedy,

554 U.S. at 419, so too would it be illegal to execute an intellectually disabled person

who failed to raise his claim at the appropriate procedural time. See, e.g., State ex rel.

Clayton v. Griffith, 457 S.W. 3d 735, 757 (Mo. 2015) (Stith, J., dissenting) (“[I]f

[petitioner] is intellectually disabled, then the Eighth Amendment makes him

ineligible for execution . . . [I]f a 14-year-old had failed to raise his age at trial or in

post-trial proceedings then [] would [it] be permissible to execute him for a crime he

committed while he was a minor? Of course not. His age would make him ineligible

for execution. So too, here, if [petitioner] is intellectually disabled, then he is ineligible

for execution”).

A. Notwithstanding this Court’s clear command, the Florida

Supreme Court has rigidly applied procedural bars to Atkins

claims in Florida, including in Mr. Kearse’s case.

Neither the Florida Supreme Court nor the circuit court below disputed that

Mr. Kearse has a 75 full-scale IQ score placing him in the intellectual disabled range;

yet each refused to apply the clearly established constitutional bar to his execution

based on procedural grounds. See (Pet. App. A, at 5a-6a); (Pet. App. B, at 22a). And

although the Florida Supreme Court incorrectly (and inexplicably) determined that

Mr. Kearse had not made sufficient allegations as to the adaptive deficit prong of the

intellectual disability test, the fact remains that he did. See supra. A state court may

not “under the color of local practice,” Rogers v. Alabama, 192 U.S. 226, 230 (1904)

(Holmes, J.), use a cloudy and manipulable state-law standard to evade review of a

federal constitutional right it disfavors.

Since Atkins, this Court has twice rejected state- or court-created standards

for the determination of intellectual disability that were contrary to or in conflict with

clinical definitions guided by medical authorities. See Hall, 572 U.S. at 719 (“Atkins

did not give the States unfettered discretion to define the full scope of the

constitutional protection”); Moore v. Texas, 581 U.S. 1, 5-6 (2017) (“As we instructed

in Hall, adjudications of intellectual disability should be ‘informed by the views of

medical experts.’ That instruction cannot sensibly be read to give courts leave to

diminish the force of the medical community’s consensus”) (internal citation omitted).

Although Hall and Moore both concerned how states and courts were operating to

define who is intellectually disabled—requiring the guidance of the medical

community—the critical principle from both cases applies equally here. This guiding

principle is that although states are tasked with implementing the constitutional

restriction, they may not fashion legislative (as in Hall) or judicial (as in Moore) rules

that “create[] an unacceptable risk that persons with intellectual disability will be

executed.” Hall, 572 U.S. at 704. This restricting principle should not be limited to

defining who is in the category of those intellectually disabled offenders ineligible for

execution under medical community guidelines; here, Florida’s state-created rule of

timeliness precludes even the presentation of evidence of Mr. Kearse’s intellectual

disability based on a theory of timeliness that is not only absurd under the facts of

this case, see supra, but is fundamentally unfair.

The Florida Supreme Court’s procedural and timeliness bars which are

preventing Mr. Kearse from obtaining even review of his intellectual disability claim

violate this Court’s proscription that in Atkins cases a condemned inmate must at

least have an “opportunity to present evidence of [his] intellectual disability.” Hall,

572 U.S. at 724 (“Freddie Lee Hall may or may not be intellectually disabled, but the

law requires that he have the opportunity to present evidence of his intellectual

disability”) (emphasis added).

Individuals who are categorically ineligible for

execution like Mr. Kearse cannot be left by states without a form to at least receive a

single merits review of his claim. This contravenes Atkins, Hall, and their progeny

because of the “unacceptable risk that persons with intellectual disability will be

executed.” Id. at 704.

CONCLUSION

For the reasons set forth above, this Petition for Writ of Certiorari to review

the judgment of the Florida Supreme Court should be granted.

Respectfully submitted,

/s/Suzanne Keffer

SUZANNE KEFFER

Acting CCRC-South

Florida Bar No.

keffers@ccsr.state.fl.us

*Counsel of Record

PAUL E. KALIL

Assistant CCRC-South

Florida Bar No. 174114

kalilp@ccsr.state.fl.us

COURTNEY M. HAMMER

Staff Attorney

Florida Bar No. 1011328

hammerc@ccsr.state.fl.us

Capital Collateral Regional Counsel – South

110 SE 6th Street, Suite 701

Fort Lauderdale, FL 33301

Tel. (954) 713-1284

Fax (954) 713-1299

COUNSEL FOR PETITIONER

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.