Petition of Hausch for rehearing submitted. — Kurt N. Hausch, Petitioner v. Florida

No. 25–7202

IN THE SUPREME COURT OF THE UNITED STATES

KURT N. HAUSCH, PETITIONER,

v.

STATE OF FLORIDA, RESPONDENT.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA

_____________

PETITION FOR REHEARING

DANIEL EISINGER

Public Defender

Gary Lee Caldwell

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

lmattocks@pd15.org

appeals@pd15.org

TABLE OF CONTENTS

Page

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

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

REASONS TO GRANT REHEARING ................................................ 3

CONCLUSION .............................................................................. 14

CERTIFICATE OF COUNSEL ........................................................ 14

i

TABLE OF AUTHORITIES

Cases

Achilli v. United States, 352 U.S. 1023 (1957) .................................... 8

Addison v. New Hampshire, 565 U.S. 1174 (2012) .......................... 5

Bowles v. Russell, 551 U.S. 205 (2007)........................................... 9

Carlisle v. United States, 517 U.S. 416 (1996) ................................. 9

Edwards v. Vannoy, 593 U.S. 255 (2021) ....................................... 8

Flowers v. Mississippi, 588 U.S. 284 (2019) .................................... 8

Foster v. Texas, 563 U.S. 931 (2011) ................................................ 11

Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25 (1965) .......... 9

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ............................. 8

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) ....... 11

Kent Re-cycling Servs., LLC v. Army Corps of Eng’rs, 578 U.S. 1019

(2016) .......................................................................................... 1

Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163 (1996) ..... 7

Maples v. Thomas, 562 U.S. 1286 (2011) .......................................... 11

Melson v. Allen, 561 U.S. 1001 (2010) ............................................ 1

Mitchell v. United States, 526 U.S. 314 (1999) ............................... 10

Perry v. New Hampshire, 563 U.S. 1020 (2011) .............................. 5

Perry v. New Hampshire, 565 U.S. 228 (2012) ................................ 6

Ramos v. Louisiana, 590 U.S. 83 (2020).......................................... 8

Schacht v. United States, 398 U.S. 58 (1970) .................................. 9

Soto v. United States, 543 U.S. 1117 (2005) .................................... 1

United States v. Booker, 543 U.S. 220 (2005) ...................................... 4

United States v. Ohio Power Co., 353 U.S. 98 (1957) .............. passim

ii

Williams v. Florida, 399 U.S. 78 (1970) ...................................... 1, 3

Rules

S. Ct. R. 44 .................................................................................... 13

S. Ct. R. 44.1 ............................................................................... 10

S. Ct. R. 44.2 ............................................................................. 1, 3

Constitutional Provisions

U.S. Const. amend. VI .................................................................... 2

iii

INTRODUCTION

Rehearing of the denial of certiorari is appropriate in

situations involving “intervening circumstances of a substantial or

controlling effect or . . . other substantial grounds not previously

presented.” S. Ct. R. 44.2. One such circumstance is where the

Court “has granted review of a related issue in another case.”

STEPHEN M. SHAPIRO ET AL., SUPREME COURT PRACTICE, Ch.

15.6.(b) (11th ed. 2019) (ebook) (collecting cases); see also, e.g.,

Kent Re-cycling Servs., LLC v. Army Corps of Eng’rs, 578 U.S. 1019

(2016); Melson v. Allen, 561 U.S. 1001 (2010); Soto v. United States,

543 U.S. 1117 (2005).

This is just such a case. Petitioner was convicted of a serious

felony by a Florida jury, and sentenced to 5 years in prison. But

that jury only had 6 members. As articulated in his petition for

certiorari, the question presented by the case was: “Whether a

person charged with a felony in state court has the right to trial by

a twelve-member of jury under the Sixth Amendment?” Hausch Pet.

at i. The argument section was titled “Williams v. Florida should be

overruled and the Sixth Amendment right to a jury of twelve should

be restored.” Id. at 6 (capitalization altered). In Williams, of course,

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this Court had held that the Sixth Amendment did not require a

jury of 12 members in serious criminal cases.

On Monday, June 15, 2026 — only one business day after this

Court denied the petition for a writ of certiorari in this case on June

12 — this Court granted certiorari in Kian v. Florida, No. 25-6623,

to address the same question.

These two cases — filed in the same term, presenting

essentially the same question, arising out of the same Florida

practice, relying on the same authorities, and represented by the

same Florida Public Defender’s Office — should be resolved

together. Although the ordinary 25-day period for filing a petition

for rehearing has elapsed, this Court retains the authority to

entertain petitions for rehearing where the interests of justice so

require. See United States v. Ohio Power Co., 353 U.S. 98, 99 (1957)

(per curiam). And justice requires rehearing here because the

circumstances warranting rehearing did not develop until the next

business day after the 25-day re-hearing period had expired.

Without the application of this Court’s rehearing grace, Petitioner

will remain incarcerated, convicted by a constitutionally-infirm halfjury. This Court should grant rehearing, vacate the order denying

2

certiorari, and hold this case pending resolution of Kian on the

merits.

REASONS TO GRANT REHEARING

1. The grant of certiorari in Kian is precisely the type of

“intervening circumstance[] of a substantial or controlling effect”

contemplated by the Rules. See S. Ct. R. 44.2. This Court has a

practice of granting rehearing of orders denying certiorari when it

subsequently grants certiorari on a “related issue in another case.”

Shapiro, supra at Ch. 15.6.(b) (collecting cases).

The issue that the Court agreed to resolve in Kian is more than

“related” to the issue in Petitioner’s case; the two are essentially

identical. Both petitions asked this Court to overrule its decision in

Williams v. Florida, 399 U.S. 78 (1970). That should not be

surprising — the petitions were filed by the same Florida Public

Defender’s Office, which has been routinely raising this issue for

years.

In urging the Court to overrule Williams, the parties pressed

the same arguments and relied on the same authorities. For

example, Petitioner argued Williams erred in rejecting evidence

regarding the history and tradition of 12-person juries. See Hausch

3

Pet. at 6-11. Mr. Kian did the same. See Kian Pet. at 11-12.

2. These two cases — filed in the same term, presenting the same

question, and making the same arguments — should be resolved

together. The Court has repeatedly granted rehearing in similar

circumstances.

For example, in 2005, this Court granted 14 rehearing petitions in

cases raising the same issue that the Court ultimately resolved in

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

federal criminal defendants who — like the petitioner in Booker — had

raised constitutional challenges to judicial fact-finding at sentencing.

The Court had initially denied their petitions for certiorari. However,

shortly after those denials, the Court granted certiorari in Booker to

address the same question. See United States v. Booker, 542 U.S. 956

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

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

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

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

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

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

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

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

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

543 U.S. 1116 (2005); Criston v. United States, 543 U.S. 1117

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

4

(2004) (granting certiorari). The disappointed petitioners filed rehearing

petitions. And after the Court clarified the law in Booker, it granted the

rehearing petitions and granted, vacated, and remanded their cases for

further consideration in light of Booker. 2

Even when this Court has ultimately denied rehearing

petitions based on later-granted cases raising the same issue, the

Court has tied that denial to the ultimate disposition of the case

that it granted. Take, for example, the Court’s treatment of the

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

(2012). The petition for certiorari in Addison had raised an issue

related to eyewitness identification, but that petition was denied.

Shortly thereafter, this Court granted certiorari in Perry v. New

Hampshire, 563 U.S. 1020 (2011), which also raised an issue

related to eyewitness identification. The petitioner in Addison

sought rehearing, and the Court held that petition for several

months while Perry was heard on the merits, denying the Addison

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

Eng’rs, 578 U.S. 1019 (2016) (granting rehearing of denial of

certiorari and GVR’ing following a grant of certiorari in a case

raising a related issue); Melson v. Allen, 561 U.S. 1001 (2010)

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

5

rehearing petition only after the Court resolved Perry in a manner

that would not aid Addison. See Perry v. New Hampshire, 565 U.S.

228 (2012) (resolving the case in favor of the state).3

As these cases illustrate, rehearing of orders denying certiorari is

appropriate when the Court subsequently grants certiorari on a related

issue in another case. The Court should follow that rule here. Petitioner

here pressed the same question on which the Court ultimately granted

certiorari in Kian. And this Court is likely to provide critical guidance

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

appropriate.

3. Rehearing is also appropriate here because it would

advance “the interests of justice” by ensuring “uniformity in the

application of the principles” that will be announced and applied in

Kian, such that “this case might be disposed of consistently.” Ohio

Power Co., 353 U.S. at 99.

Indeed, where cases on this Court’s certiorari docket raise the

same issue in the same term, the Court “will typically” hold them on

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

rehearing only after holding the petition for several months as the

Court considered a case raising a related issue).

6

its docket and resolve the cases together. See Shapiro, supra at

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

the same issue in the same term may equally benefit from the

“intervening development[]” of this Court’s “own decisions,” through

an order granting certiorari, vacating the judgment below, and

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

the intervening decision. Lawrence on Behalf of Lawrence v. Chater,

516 U.S. 163, 166-68 (1996) (per curiam). A grant of rehearing of

the denial of certiorari in this case would allow the Court to follow

that practice here.

Reconsideration would also avoid piecemeal litigation and the

need for further collateral proceedings after Kian is resolved. Granting

rehearing and holding the case is more efficient than requiring

Petitioner to pursue post-conviction remedies and potentially return to

this Court again on the same question. See Ohio Power Co., 353 U.S. at

107 (Harlan, J., dissenting) (explaining rehearing of a denial of

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

and expense” in “a criminal case presenting a question that could again

be raised in proceedings below and then brought to this Court in due

7

course on certiorari”) (citing Achilli v. United States, 352 U.S. 1023

(1957)).

Moreover, if this Court resolves Kian in favor of Mr. Kian, postconviction relief for Petitioner is not guaranteed. Petitioner sought

certiorari on direct review of his criminal conviction and sentence.

The denial of certiorari made that conviction and sentence final.

And that finality will complicate any further relief that he seeks.

See, e.g., Edwards v. Vannoy, 593 U.S. 255, 259 (2021) (holding

jury-unanimity rule of Ramos v. Louisiana, 590 U.S. 83 (2020), does

not apply retroactively on federal collateral review). Collateral review

is complex, and there are many barriers to relief. A grant of

rehearing would ensure that Petitioner receives the benefit of a new

rule announced in Kian. To deny him the opportunity for

reconsideration would be to let the calendar, rather than the

Constitution, determine his fate.

In plain terms, grant of rehearing would advance the basic

goal of this Court: “equal justice under law.” Hampton v. Mow Sun

Wong, 426 U.S. 88, 100 (1976); Flowers v. Mississippi, 588 U.S.

284, 301 (2019).

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

8

rehearing has elapsed, see S. Ct. R. 44.1, this Court can still grant

the petition. Because that time limit is a “procedural rule[] adopted

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

jurisdictional” and “can be relaxed by the Court in the exercise of its

discretion.” Bowles v. Russell, 551 U.S. 205, 211-12 (2007) (quoting

Schacht v. United States, 398 U.S. 58, 64 (1970)).

This Court retains the authority to entertain untimely

petitions for rehearing where “the interests of justice” so require.

See, e.g., Ohio Power Co., 353 U.S. at 99. And “the interest in the

evenhanded administration of justice” can “outweigh[] the interest

in finality” served by that 25-day period where — without rehearing

— like cases will not be disposed of in like ways. Carlisle v. United

States, 517 U.S. 416, 450 (1996) (Stevens, J., dissenting); see also

Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25, 27–28 (1965)

(per curiam) (granting motion for leave to file untimely rehearing

petition more than three years after denial of certiorari because

intervening decisions left petitioner’s case “stand[ing] completely

alone”).

In Ohio Power Co., for instance, this Court sua sponte vacated

its own order denying a timely petition for rehearing — nearly a year

9

and a half after the original denial of certiorari — so that the case

could be “disposed of consistently” with other cases raising the

same issue. Id. 353 U.S. at 98. Even the dissent in Ohio Power Co.

agreed that “the Court’s inherent power over its judgments”

included the authority to take action that “would otherwise be out

of time under the Rules.” Id. at 104 (Harlan, J., dissenting). And the

dissent’s central objection was that the majority had exercised this

authority in a civil case, not a criminal one. Compare, e.g., id. at 99

(majority insisting that its power to grant untimely rehearing

petitions has been “exercised . . . both in civil and criminal cases”);

with, e.g., id. at 105-06 (dissent collecting cases in which the Court

has granted untimely rehearing petitions, noting that most were

criminal cases, and opining that “the granting of untimely relief in

criminal cases presents considerations not found in civil cases”).

So if there is any distinction to draw, out-of-time rehearing

should be more readily available in criminal cases like this one than

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

criminal cases, where liberty or even life may be at stake.” Mitchell

v. United States, 526 U.S. 314, 328 (1999) (internal quotation

marks omitted); see also James B. Beam Distilling Co. v. Georgia,

10

501 U.S. 529, 541 (1991) (op. of Souter, J.) (discussing the finality

interests in civil and criminal cases).

More recently, in 2011, this Court permitted a capital defendant

to file an untimely petition for rehearing three months after the original

denial of certiorari. The petitioner in that case had filed a petition for

certiorari in January 2011, asking the Court to consider issues relating

to the ineffectiveness of state post-conviction counsel. His petition for

certiorari was denied that same month. However, a few months later, in

March 2011, the Court granted a petition for certiorari in a case raising

a related issue. See Maples v. Thomas, 562 U.S. 1286 (2011). In April

2011, well after the rehearing period had expired, Foster filed an

application for a stay of execution, and a motion for leave to file a

petition for rehearing. This Court granted both requests. See Foster v.

Texas, 563 U.S. 931 (2011). After considering the petition for rehearing

and calling for a response, the Court ultimately denied rehearing in

May of 2011. But, as illustrated by the Court’s order granting the

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

relief.

This case presents circumstances that justify the exercise of this

11

Court’s “inherent power over its judgments” to consider an untimely

petition. Ohio Power Co., 353 U.S. at 104 (Harlan, J., dissenting).

Petitioner could not have anticipated the “intervening circumstance[]”

of a grant of certiorari in the time that is contemplated by the Rules.

See S. Ct. R. 44. The Court had recently denied a petition raising the

identical issue in Minor v. Florida, No. 24–7489, after it was

rescheduled a number of times in the September 2025 to February 2026

timeframe. What is more, this Court took other actions which seemed to

confirm its decision not to hear the 12-person jury issue this term,

denying certiorari in a number of other cases presenting the same

question. See Parada v. United States, 146 S.Ct. 1477 (cert denied

January 12, 2026); Casseus v. Florida, 146 S.Ct. 1610 (cert denied Feb.

23, 2026); Perez Rojas v. Florida, 146 S.Ct. 1584 (cert denied February

23, 2026); Clemons v. Florida, 146 S.Ct. 1793 (cert denied March 9,

2026); Gray v. Florida, No. 25-7224, 2026 WL 1377017 (U.S. May 18,

2026) (cert denied). The Court even denied rehearing in a case where

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

Minor. See Moehle v. Florida, 146 S.Ct. 195 (2025) (cert denied Oct. 6,

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

12

2026). Given all this, when the 25-day period for rehearing expired (on

June 12, the Friday before the grant in Kian), Petitioner had no way of

anticipating that the Court would ultimately grant certiorari in Kian

the next week. And as of June 12 he had no basis for claiming

intervening circumstances such as to form the basis for rehearing

Without a grant of rehearing, Petitioner must remain imprisoned,

convicted by a jury of 6 which heard sharply conflicting evidence about

the underlying incident in which Petitioner and the alleged victim were

both cut. That a man’s fate in such a contested case would be decided by

anything less than a common-law jury of twelve would have astonished

the Founders. And one presumes they would have expected Kian and

Petitioner — similarly-situated in so many ways — to be protected

equally by the Constitution’s guarantees.

Even if the Court is not prepared to grant rehearing of the

denial of certiorari at this time, it should at minimum hold this

petition pending the resolution of Kian and thereafter enter an

appropriate order. Holding the petition would preserve the Court’s

ability to act consistently once Kian is decided, without prejudice to

either party.

13

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that

the Court grant rehearing of its order denying the petition for

certiorari, vacate that order, and hold this case in abeyance pending

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

Respectfully submitted,

DANIEL EISINGER

Public Defender

GARY LEE CALDWELL

Assistant Public Defender

Counsel of Record

Office of the Public Defender

Fifteenth Judicial Circuit of Florida

421Third Street

West Palm Beach, FL 33401

(561) 355–7600

gcaldwel@pd15.org

lmattocks@pd15.org

appeals@pd15.org

CERTIFICATE OF COUNSEL

I hereby certify that this petition for rehearing is presented in

good faith and not for delay, and that is it restricted to the grounds

specified in Supreme Court Rule 44.2.

/s/ Gary Lee Caldwell

Gary Lee Caldwell

14